Rogers v International Paper Company Writ of Certiorari

    QJmrrt at tip? United States
October Term, 1974 

No. 74-..........

I n  the

Henry Lee R ogers, Lee Chester. Smith, 
and N.A. T hompson,

Petitioners.
— v .—

I nternational, P aper Company; International Brother­
hood of E lectrical W orkers AFL-CIO, And Its L ocal 
2033; United P aperwoekebs I nternational U nion 
AFL-CIO, And Its L ocals 731, 735, 833 and 898,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE EIGHTH CIRCUIT

J ohn W . W alker 
P hilip K aplan

Walker, Kaplan & Mays 
822 Pyramid Life Building 
Little Bock, Arkansas 72201

Jack Greenberg 
Morris J. B aller 
Deborah M. Greenberg 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Petitioners

A lbert R osenthal 
435 West 116th Street 
New York, New York 10027

Of Counsel



TABLE OF CONTENTS
PAGE

Opinions Below .................-...........-............ ................... 1

Jurisdiction ............ ..... ..... .......................... ................... 2
Questions Presented............................. ..........................~ 2
Statutory Provisions Involved .......... -............ ..... ........  3

Statement of the Case ...... ................................. .............  4
Reasons for Granting the Writ—

I—The Case Presents an Important Question 
of Federal Law Which Should Be Settled by
This Court .................... ................. ........ ......... 10

II—The Decision Below Is in Conflict With the 
Decisions of Other Courts of Appeals on the 
Same Matter ....... .............. ............. ......... .....  12

III—Efficient Judicial Administration Would Be 
Served if This Court Will Grant Certiorari, 
Vacate the Judgment Below, and Remand
for Further Consideration in the Light of 
This Court’s Decision in Albemarle Paver 
Company v. Moody and Halifax Local No. 
425, United Papermakers and Paperworkers,
AFL-CIO v. Moody .......................................   14

Conclusion...............................................   15

A ppendix—

Opinion of District Court......................    la
Opinion of Court of Appeals ....... ........................  35a
Order Modifying Opinion and Denying Respon­
dent International Paper Company’s Petition for 
Rehearing ...................................       68a
Order Denying Petitioner’s Petition for Rehearing 71a



11

Table of A uthorities

Cases: page

Albemarle Paper Company v. Moody, No. 74-389, ar­
gued April 14, 1975 ........ ............ ........ .......... ..... 2, 7,14,15

Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th 
Cir. 1969), 489 F.2d 896 (7th Cir. 1973) ................. 13

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ......... 14

Halifax Local No. 425, United Papermakers and 
Paperworkers, AFL-CIO v. Moody, No. 74-428, ar­
gued April 14, 1975 ........ ................. ..... ....... ..... .... 2,14,15

Head v. Timken Roller Bearing Co., 484 F.2d 870 (6th 
Cir. 1973) .......................................................................... 13

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 
1364 (5th Cir. 1974) ....................... .............................12,14

Local 189, United Papermakers & Paperworkers v. 
United States, 416 F.2d 980 (5th Cir. 1969), cert, 
denied, 397 U.S. 919 (1970) ........................... ..............  5

Louisiana v. United States, 380 U.S. 145 (1965) ........... 11

Moody v. Albemarle Paper Co., 474 F.2d (4th Cir.
1973), cert, granted, ------  U.S. ------ , 95 S.Ct. 654
(Dec. 16, 1974) ...............        12

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 
(5th Cir. 1974) ...........................................     12

Robinson v. Lorillard Corp., 319 F. Supp. 835 (M.D.
N.C. 1970) affirmed, 444 F.2d 791 (4th Cir. 1971), 
cert, dismissed, 404 U.S. 1006 (1971) .............. 5,9,13,14



Ill

PAGE

Rosen v. Public Service Gas & Electric Co., 477 F.2d 
90 (3rd Cir. 1973) ..... ......... ........ .................................. 13

United States v. Bethlehem Steel Corp., 446 F.2d 652 
(2d Cir. 1971) .................................-............................. 5,9

United States v. Georgia Power Co., 474 F.2d 906 (5th 
Cir. 1973) ............. .................. ......................................... 12

United States v. N.L. Industries, 479 F.2d 354 (8th 
Cir. 1973) ..................................................................... 5, 7,13

Statutes:

P.L. 92-261, 86 Stat. 103 (Equal Employment Opportu­
nity Act of 1972) ..................... ......................................-  11

28 U.S.C. §1254(1) ............ ............................. .................  2

28 U.S.C. §§ 1343(4), 2201 and 2202 ..............................  5

29 U.S.C. § 151 et seq...................................................... 5

42 U.S.C. §§ 2000e et seq. (Title VII, Civil Rights Act 
of 1964) .......................... .............................................passim

42 U.S.C. § 2000e-2(a) (Title VII, § 703(a)) ................  3

42 U.S.C. § 2000e-2(c) (Title VII, § 703(c)) ................  3

42 U.S.C. § 2000e-5(g) (Title VII, § 706 (g )) ...............  4

42 U.S.C. § 1981 ..................................................................  4

Other Authorities:

118 Cong. Rec. 4942 (1972) 

118 Cong. Rec. 7168 (1972)

12
12



I n  th e

Supreme (tart of %  TtHniUb
October Term, 1974 

No. 74-...........

H enry Lee R ogers, Lee Chester Smith , 
and N.A. T hompson,

Petitioners,
—v.—

I nternational P aper Company ; I nternational Brother­
hood oe E lectrical W orkers AFL-CIO, And Its L ocal 
2033; United Paperworkers I nternational Union 
AFL-CIO, And Its Locals 731, 735, 833 and 898,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE EIGHTH CIRCUIT

The petitioners respectfully pray that a writ of certiorari 
issue to review the judgment and opinion of the United 
States Court of Appeals for the Eighth Circuit entered in 
this proceeding on January 7, 1975 and modified February 
14, 1975.

Opinions Below

The decision of the United States Court of Appeals for 
the Eighth Circuit and the order denying the petition for 
rehearing of the respondent International Paper Company, 
reported at 510 F.2d 1340, are reprinted infra at 35a and



2

68a, respectively.1 The order denying the petition for re­
hearing of the petitioners is printed infra at 71a. The 
memorandum opinion of the United States District Court 
for the Eastern District of Arkansas has not been reported, 
but is printed infra at la.

Jurisdiction

The judgment and opinion of the Court of Appeals was 
entered on January 7, 1975. Separate petitions for rehear­
ing timely filed by respondent International Paper Com­
pany and by petitioners were denied, respectively, on Feb­
ruary 14 and 18, 1975. Jurisdiction of this Court is invoked 
pursuant to 28 U.S.C. § 1254(1).

Questions Presented

1. Whether the future elimination of racial discrimi­
nation in opportunities for promotion and transfer, pur­
suant to court order under Title VII of the Civil Rights 
Act of 1964, obviates the need for back pay to redress 
economic loss suffered in the past by victims of such dis­
crimination.

2. Whether the decision of the court below, in denying 
back pay to victims of racial discrimination in employment, 
is consistent with the disposition that will be made by this 
Court of the questions concerning the standards governing 
the award of back pay under Title Y U  of the Civil Rights 
Act of 1964 raised in Albemarle Paper Company v. Moody, 
No. 74-389, and Halifax Local No, 425, United Paper makers 
and Paper workers, AFL-CIO v. Moody, No. 74-428, argued 
April 14, 1975 and presently pending before this Court.

1 This form of citation is to pages of the Appendix.



3

Statutory Provisions Involved

The pertinent sections of Title V II of the Civil Eights 
Act of 1964, 42 U.S.C. §§ 2000e et seq., as amended, provide:

Section 703(a), 42 U.S.C. § 2000e-2(a) :

It shall be an unlawful employment practice for an 
employer—

(1) to fail or refuse to hire or to discharge any in­
dividual, or otherwise to discriminate against any in­
dividual with respect to his compensation, terms, con­
ditions, or privileges of employment, because of such 
individual’s race, color, religion, sex, or national 
origin; or

(2) to limit, segregate, or classify his employees or 
applicants for employment in any way which would 
deprive or tend to deprive any individual of employ­
ment opportunities or otherwise adversely affect his 
status as an employee, because of such individual’s 
race, color, religion, sex, or national origin.

Section 703(y), 42 U.S.C. § 2000e-2(c):

It shall be an unlawful employment practice for a 
labor organization—

(1) to exclude or to expel from its membership, or 
otherwise to discriminate against, any individual be­
cause of his race, color, religion, -sex, or national 
origin;

(2) to limit, segregate, or classify its membership 
or applicants for membership, or to classify or fail 
or refuse to refer for employment any individual, in 
any way which would deprive or tend to deprive any 
individual of employment opportunities, or would limit



4

such employment opportunities or otherwise adversely 
affect his status as an employee or as an applicant for 
employment, because of such individual’s race, color, 
religion, sex, or national origin.

Section 706(g), 42 U.S.C. § 2000e-5(g):

I f  the court finds that the respondent has inten­
tionally engaged in or is intentionally engaging in an 
unlawful employment practice charged in the com­
plaint, the court may enjoin the respondent from en­
gaging in such unlawful employment practice, and 
order such affirmative action as may be appropriate, 
which may include, but is not limited to, reinstatement 
or hiring of employees, with or without back pay (pay­
able by the employer, employment agency, or labor or­
ganization, as the case may be, responsible for the 
unlawful employment practice), or any other equitable 
relief as the court deems appropriate. . . .  No order of 
the court shall require the admission or reinstatement 
of an individual as a member of a union, or the hiring, 
reinstatement, or promotion of an individual as an em­
ployee, or the payment to him of any back pay, if such 
individual was refused admission, suspended, or ex­
pelled, or was refused employment or advancement or 
was suspended or discharged for any reason other than 
discrimination on account of race, color, religion, sex, 
or national origin or in violation of section 704(a).

Statement o f  the Case

The petitioners, Henry Lee Rogers, Lee Chester Smith 
and N.A. Thompson, black employees of respondent Inter­
national Paper Company, brought this suit as a class 
action on May 17, 1971, under Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. §§ 2000e et seq.; 42 U.S.C. §1981;



5

and 29 U.S.C. § 151 et seq. (prescribing a duty of fair 
representation). Federal jurisdiction was predicated upon 
28 TT.S.C. §§1343(4), 2201 and 2202. The complaint 
alleged racial discrimination in employment by respondent 
International Paper Company (hereinafter “the Com­
pany” ) with respect to hiring, compensation, promotion 
and other terms and conditions of employment at its Pine 
Bluff, Arkansas mill, and the maintenance of discrimina­
tory employment practices by the respondent unions.2 
Following a trial in February and March 1972, the District 
Court found that all of the respondents “ openly dis­
criminated on the basis of race in the hiring and assign­
ment of employees” from the time the Pine Bluff Mill 
opened in 1958,3 and that this discrimination and the effects 
thereof, as perpetuated by a variety of practices including 
a “ job seniority” system,4 continued unabated until August

2 International Brotherhood of Pnlp, Sulphite and Paper Mill 
Workers, APL-CIO; Locals 898 and 946 of the International 
Brotherhood of Pulp, Sulphite and Paper Mill Workers; United 
Papermakers and Paperworkers, AFL-CIO; Locals 731, 735 and 
833, United Papermakers and Paperworkers, Pine Bluff, Arkansas; 
International Brotherhood of Electrical Workers, AFL-CIO; and 
Local 2033, International Brotherhood of Electrical Workers. 
Local 946 of the International Brotherhood of Pulp, Sulphite and 
Paper Mill Workers, the local to which all black employees 
belonged, was dissolved in 1968. After trial the International 
Brotherhood of Pulp, Sulphite and Paper Mill Workers and United 
Papermakers and Paperworkers merged, becoming the United 
Paperworkers International Union, AFL-CIO. Their respective 
local union numbers remained the same after the merger.

8 The Company reserved certain jobs for whites and other jobs, 
the lower-paying, more physically demanding ones, for blacks 
(6a). No blacks occupied a previously all-white job until 1967; 
no white was assigned to a black job until 1968 (11a).

4 See, e.g., Local 189, United Papermakers and Paperworkers v. 
United States, 416 F.2d 980 (5th Cir. 1969), cert, denied, 397 
U.S. 919 (1970) ; United States v. Bethlehem Steel Corp., 446 F.2d 
652 (2d Cir. 1971) ; Robinson v. Lorillard Corp., 444 F.2d 791 
(4th Cir. 1971), cert, dismissed, 404 U.S. 1006 (1971); United 
States v. N.L. Industries, 479 F.2d 354 (8th Cir. 1973).



6

7, 1968, but that on that date such conduct and the effect 
thereof ceased. In particular, the court held (a) that the 
seniority system as modified in 1968 was adequate to 
protect the rights of black employees despite the admitted 
continuation of shortcomings requiring further corrective 
action in 1972, after this action had been instituted (24a, 
25a); (b) that the Company’s testing program was not 
discriminatory and was job-related (20a, 27a); and (c) 
that there was no evidence of discrimination in mainte­
nance, i.e., craft, jobs (18a).5 The opinion made no mention 
of the exclusion of blacks from supervisory jobs. The 
court concluded that injunctive relief was unnecessary to 
assure compliance with Title VII (31a) but retained juris­
diction and directed the Company to make periodic reports 
to the court “ of its employment activities” (33a). Stating 
that “ this litigation has, without doubt, acted as a catalyst 
which partially prompted the defendants to take some 
action implementing its [sic] own fair employment 
policies and seeking compliance with the requirements of 
Title V II” , the court awarded the petitioners costs includ­
ing counsel fees (34a).

Although petitioners had shown that the class suffered 
severe economic loss as a result of respondents’ dis­
criminatory practices,6 the court specifically denied back

5 The record shows that at the time of trial there were 253 white 
and only two blacks in true craft jobs. Both blacks were appren­
tices; there had never been a black journeyman.

6 The District Court found that Black employees had been 
assigned lower-paying jobs than white employees (6a). The record 
shows 1) that in nearly every department, almost all blacks earned 
less than most whites, 2) that in every department the average 
hourly rate of whites was higher than the average hourly rate of 
blacks, 3) that not one of 112 black hourly-rated employees held 
a job with an hourly rate in excess of $4.31, while 404 whites out 
of 1081 (37%) held such jobs, and 4) that the average hourly rate 
at the time of trial of whites hired in any given year was higher 
than the average hourly rate of blacks hired in the same year.



7

pay, relying on United States v. N.L. Industries, 479 F,2d 
354 (8th Cir. 1973) (33a-34a).

Petitioners appealed to the United States Court of Ap­
peals for the Eighth Circuit,7 which reversed in part, 
vacated in part, and remanded (35a-67a). It held as 
follows:

(a) Supervisory Personnel: Statistical evidence that 
among 160 supervisory employees there was only one black, 
an accountant hired in 1969, coupled with the existence of 
a selection system that lends itself to racial abuse, was 
sufficient to make a prima facie showing of racial dis­
crimination, which had not been rebutted by the Company. 
Since the District Court in defining the class had excluded 
supervisory employees (22a), this aspect of the case was 
remanded for further hearings and a determination as to 
whether there was racial discrimination in this category 
(38a-46a),

(b) Maintenance Craft Jobs: The Company’s use of a 
battery of standardized tests as selection devices for main­
tenance craft jobs had a disproportionately adverse effect 
on black applicants and the Company’s attempt to prove 
the tests job-related by means of validation studies was 
unsatisfactory in many respects.8 The District Court was 
instructed, on remand, to direct the Company to conduct 
new validation studies, and if it finds the tests to have 
resulted in a racially discriminatory hiring or transfer 
policy to devise remedies to give hiring or transfer prefer­
ence, as vacancies become available, to those who had 
suffered therefrom (48a-55a).

7 Petitioners raised the District Court’s denial of back pay as a 
separate point of error in their appeal to the Court of Appeals.

8 Cf. Albemarle Paper Company v. Moody, No. 74-389.



8

The court also found no business necessity for the Com­
pany’s present entry level age limitation, together with 
a disparate effect on black applicants because of prior 
discrimination, and ordered temporary raising of the 
maximum age for entry into apprenticeship programs until 
the District Court determines that there is sufficient 
minority representation in the Company’s maintenance 
craft jobs (55a-56a).

(c) Production Jobs: The court held that, in light of the 
respondents’ past history of maintaining racially segre­
gated lines of progression, with those open to blacks the 
lowest paying and least desirable, the continuance of 
facially neutral seniority, promotion and transfer policies 
continued the effects of past discrimination into the 
present. Despite the 1968 changes, which had been deemed 
sufficiently curative by the District Court, as well as further 
revisions made in 1972, after the trial but before the District 
Court decision in the instant case, the Court of Appeals 
noted that “no significant movement to rightful places has 
been realized by former discriminatees concluded
“that the present transfer, promotion and seniority 
practices in the production department at Pine Bluff con­
tinue to perpetuate the effects of past discrimination,” and 
held that the district court had been in error in denying 
injunctive relief (56a-65a).

Accordingly, the Court of Appeals directed that on 
remand:

(a) The District Court should ensure full wage pro­
tection to affected class members who exercise transfer 
opportunities by raising “ red circle” 9 ceilings to realistic

9 “Red Circling” is the name commonly given to the practice 
of continuing the wage rates of employees who transfer into other 
departments or lines of progression at levels paying lower rates, 
so that the temporary drop in wages will not discourage such



9

(b) The District Court should require the Company to 
demonstrate which jobs provide essential training for 
progression and which could be skipped upon entry and 
promotion, so that advancement of victims of previous 
discrimination would not be held back by barriers unsup­
ported by business necessity.

(c) For the same reason, the District Court should 
review the length of the residency requirements in a given 
job which employees have to satisfy before being eligible 
for advancement to the next higher level, to determine 
whether they are the least restrictive means to accomplish 
their purpose, and to consider whether functionally equiv­
alent experience in former lines of progression may satisfy 
those requirements;

(d) The District Court should review the Company’s 
practices in advancing victims of racial discrimination to 
their rightful place as expeditiously as possible and to the 
same extent as it now accords a rightful place to returning 
servicemen; and

(e) This relief should be made available to all affected 
class members regardless of whether they had declined 
transfer offers in the past (65a-66a).

The court then stated: “If these conditions are fully 
implemented, the need for a bach pay award will be 
o b v ia te d (66a) (Emphasis supplied).

levels (in accordance with a formula set forth by the Court
of Appeals) and extending coverage to class members
previously excluded.

transfers. Apart from its use in other labor-management situa­
tions, it has been frequently ordered as an essential ingredient in 
the correction of discriminatory seniority and transfer practices. 
See, e.g., United States v. Bethlehem Steel Corp., 446 F.2d 652, 
661 (2nd Cir. 1971) ; Robinson v. Lorillard Corp., 319 F. Supp. 
835, 842 (M. D. N. C. 1970), affirmed, 444 F.2d 791, 796 (4th 
Cir. 1971).



10

Both the petitioners and the Company asked the Conrt 
of Appeals for rehearing, the petitioners also suggesting 
a rehearing en banc. Petitioners specifically sought on re­
hearing an award of back pay. In response to the Com­
pany’s petition the court made minor changes in the text 
of its opinion, and it denied both petitions for rehearing 
(68a-71a).

Reasons for Granting the Writ

I

The Case Presents an Important Question of Federal 
Law Which Should Be Settled by This Court.

Petitioners and their class suffered loss of income as a 
result of employment practices which the Court of Appeals 
found to be discriminatory. They will continue to lose 
earnings until all present discriminatory practices and 
effects of past discrimination have been eradicated. While 
the Court of Appeals directed the removal of a number of 
racially discriminatory barriers to promotion and transfer, 
it denied compensation for the losses they caused in the 
past. In holding that the opening up of such opportunities, 
in time to come, satisfies the responsibility of the judiciary 
to effectuate the purposes of Title VII, the court has ruled 
in effect that compensation for monetary loss suffered be­
cause of past discrimination may be traded away for 
injunctive relief forbidding continued discrimination in the 
future.

The rationale of the Court of Appeals, that future in­
junctive relief might “ obviate” the “need” for back pay, 
is self-contradictory and untenable. Injunctive relief is by 
definition-retrospective. No amount of prospective injunc­
tive relief can provide class members with compensation



11

for monetary loss suffered in the past (and until the 
remedial decree issues). For those older workers who will 
be unable to take advantage of the opportunities for ad­
vancement which injunctive relief should provide, to deny 
back pay is to deny the only meaningful relief afforded by 
Title VII for a lifetime of discrimination.

In Title VII cases as in other civil rights areas, “ the 
court has not merely the power but the duty to render a 
decree which will so far as possible eliminate the dis­
criminatory effects of the past as well as bar like dis­
crimination in the future.” Louisiana v. United States, 380 
U.S. 145, 154 (1965). Back pay, to redress economic harm 
caused by unlawful employment discrimination, has here­
tofore been unifoi'mly regarded as an essential component 
of the remedies available in order to make the victims 
whole. In reviewing the judicial construction of Title VII 
and recommending the adoption of the Equal Oppor­
tunity Act of 1972, P. L. 92-261, 86 Stat. 103,10 the Con­
ference Committee, in its section-by-section analysis, 
stressed the importance of full remedial relief:

The provisions of this subsection are intended to 
give the courts wide discretion exercising their equi­
table powers to fashion the most complete relief pos­
sible. In dealing with the present section 706(g) the 
courts have stressed that the scope of relief under that 
section of the Act is intended to make the victims of 
unlawful discrimination ivhole, and that the attainment 
of this objective rests not only upon the elimination 
of the particular unlawful employment practice com­
plained of, but also requires that persons aggrieved

i° While the 1972 law amended Title VII of the Civil Eights Act 
of 1964 in a number of respects, none of the changes bears upon 
the back pay issue as it arises in the instant case, and if the holding 
below is allowed to stand it would be equally applicable to the 
amended statute.



12

by the consequences and effects of the unlawful em­
ployment practice be, so far as possible, restored to a 
position where they would have been were it not for 
the unlawful discrimination (emphasis supplied). 118 
Cong. Rec. 7168 (1972); see also 118 Cong. Rec. 4942 
(1972) (Seetion-by-Section Analysis introduced into 
Record by Sen. Williams).

The decision of the court below, so long as it stands 
unreversed, will constitute a serious threat to the effectua­
tion o f  a Congressional policy of utmost national im­
portance.

II

The Decision Below Is in Conflict With the Decisions 
o f  Other Courts o f  Appeals on the Same Matter.

The courts of appeals of five other circuits have consis­
tently awarded both injunctive relief and hack pay in cases 
strikingly similar to the instant case. Back pay was 
awarded, along with injunctions against continued use of 
discriminatory seniority systems and invalid tests, in 
Moody v. Albemarle Payer Co., 474 F.2d 134 (4th Cir.
1973) ,11 cert, granted,------ U .S .------- , 95 S.Ct. 654 (Dec. 16,
1974) ; United States v. Georgia Power Co., 474 F.2d 906 
(5th Cir. 1973),12 Johnson v. Goodyear Tire & Rubber Co., 11 12

11 “ . . .  a plaintiff or a complaining class who is successful in 
obtaining an injunction under Title Y U  of the Act should 
ordinarily be awarded hack pay unless special circumstances would 
render such an award unjust.” 474 F.2d at 142.

12 “ Given this Court’s holding that £ [a] n inextricable part of 
the restoration to prior [or lawful] status is the payment of back 
wages . . .’ it becomes apparent that this form of relief may not 
properly be regarded as a mere adjunct of some more basic equity. 
It is properly viewed as an integral part of the whole of relief. . . .” 
474 F.2d at 921.



13

491 F.2d 1364 (5th Cir. 1974),13 and Pettway v. American 
Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974). Back pay 
was combined with injunctions against invalid seniority 
practices in Robinson v. Lorillard Corp., 444 F.2d 791 (4th 
Cir. 1971), cert, dismissed, 404 U.S. 1006 (1971); and 
Head v. Timken Roller Bearing Co., 484 F.2d 870 (6th Cir. 
1973). Back pay, and an injunction against an unwarranted 
weight lifting requirement that discriminated against 
women and an improper seniority program, were combined 
in Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 
1969), 489 F.2d 896 (7th Cir. 1973). And in Rosen v. Public 
Service Gas & Electric Co., 477 F.2d 90 (3d Cir. 1973), 
back pay accompanied an injunction against continuation 
of a discriminatory pension system.

All of these cases conflict with the holding of the court 
below that comprehensive injunctive relief obviates the 
necessity of back pay.13 14

13 “Where employment discrimination has been clearly demon­
strated . . . victims of that discrimination must be compensated if 
financial loss can be established. . . .  To implement the purposes 
behind Title VII, a court should give ‘a wide scope to the act in 
order to remedy, as much as possible,. the plight of persons who 
have suffered from discrimination in employment opportunities.’ ” 
(footnote omitted). 491 F.2d at 1375,

14 There is an additional conflict- in the circuits if the denial of 
back pay for the reason stated by the Court of Appeals was 
intended to apply only to blacks excluded from production jobs. 
(It may be noted that the sentence stating that “ the need for a 
back pay award will be obviated” appears at the close of the 
section of the opinion relating to production jobs (56a-66a). If so, 
the failure of the court to reverse the District Court’s blanket 
refusal to grant back pay may be deemed an affirmance of that 
aspect of the District Court’s decision to the extent that it applied 
to other categories of -employment, i.e., supervisory and main­
tenance jobs.

That refusal, in turn, was based on an earlier decision of the 
Court of Appeals for the Eighth Circuit, United States v. N.L. 
Industries, Inc., 479 F.2d 354, 380 (1973), in which back pay was 
withheld because “ [i]n this Circuit the law in regard to back pay 
has not been adequately defined to provide employers and unions



14

III

Efficient Judicial Administration W ould Be Served 
if  This Court Will Grant Certiorari, Vacate the Judg­
ment Below, and Remand for  Further Consideration in 
the Light o f  This Court’s Decision in Albemarle Paper 
Company v. Moody and Halifax Local No. 425, United 
Papermakers and Paperworkers, AFL-CIO v. Moody.

The two petitions for certiorari in Moody referred to 
above were granted, and the cases were consolidated, 
briefed and argued, and are now awaiting decision. (Doc­
ket Nos. 74-389 and 74-428.) The question of the standards 
that should govern the awarding of back pay was one of 
the two issues raised in the first of these petitions and the 
only issue raised in the second. If, as appears probable, 
this Court decides that issue, almost inevitably its decision 
and opinion will at least cast some light on the propriety 
of the denial of back pay in the instant case and may well 
be dispositive of it. It would be wasteful of judicial time 
and effort and of the labors of counsel to deny certiorari 
and thus allow the case to be remanded to the district court 
for further proceedings under instructions that take no 
account of the rulings to be made by this Court on the 
very subject in dispute.

with notice that they will be liable for a discriminatee’s economic 
losses. . . Such a limitation on back pay has been expressly 
rejected by other circuits: “ [T]he unsettled nature of the law 
applicable to a particular employment practice does not constitute 
a legally cognizable defense to a claim for back pay in a Title VII 
suit.” Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 
1375 (5th Cir. 1974) Accord: Robinson v. Lorillard Corp., 444 
F.2d 791, 804 (4th Cir. 1971). It is also inconsistent with each of 
the cases cited in the text above which was the first in its respective 
circuit to hold the practices complained of illegal, and with this 
Court’s rejection of “good intent or absence of discriminatory 
intent” as defenses, in Griggs v. Duke Power Co., 401 U.S 424 
432 (1971).



15

We therefore respectfully urge that this Court grant the 
writ, and that if the Court decides the merits of the afore­
mentioned Moody cases in a manner consistent with the 
position of petitioners herein, it summarily vacate the 
judgment below insofar as it fails to grant back pay and 
remand for further consideration in the light of that 
decision.

CONCLUSION

For these reasons, a writ of certiorari should be issued 
to review the judgment and opinion of the United States 
Court of Appeals for the Eighth Circuit.

Respectfully submitted,

J ohn W . W alker 
P hilip K aplan

Walker, Kaplan & Mays 
622 Pyramid Life Building 
Little Rock, Arkansas 72201

J ack Greenberg 
Morris J. Baller 
Deborah M. Greenberg 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Petitioners

A lbert R osenthal 
435 West 116th Street 
New York, New York 10027

Of Counsel



A P P E N D I X



I n the

UNITED STATES DISTRICT COURT 

E astern District oe A rkansas 

P ine Blijef D ivision 

No. PB 71-047

Opinion o f  District Court

H enry Lee R ogers, L ee Chester Smith, and N. A. T homp­
son, Individually and on behalf of other persons simi­
larly situated,

Plaintiffs,
v.

International P aper Company, P ine Bluff, A rkansas,

and

I nternational Brotherhood of Pulp, Sulphite and Paper 
Mill W orkers, AFL-CIO; L ocals 898 and 946 of T he 
International Brotherhood of P ulp, Sulphite and 
P aper Mill W orkers; United P apermakers and P aper- 
workers, AFL-CIO; L ocals 731, 735 and 833 United 
Papermakers and P aperworkers, P ine Bluff, A rkan­
sas; and I nternational Brotherhood of Electrical 
W orkers,

Defendants.

Memorandum Opinion

The plaintiffs filed this class action proceeding pursuant 
to 28 U.S.C. 4 1343(4); 42 U.S.C. § 2000e-5(e) and ( f ) ; and 
28 U.S.C. §§2201 and 2202. The named plaintiffs are



2a

black employees of the defendant, International Paper 
Company (hereinafter called “I.P.” ), and bring this action 
on behalf of themselves and other blacks similarly situated, 
pursuant to Pule 23(b)(2) of the Federal Pules of Civil 
Procedure.

In addition, this is a suit in equity under the provisions 
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§§ 2000e, et seq. The plaintiffs invoke the jurisdiction of 
this Court to secure protection of and to redress depriva­
tion of rights secured by (a) 42 U.S.C. §§ 2Q00e, et seq., 
providing' for injunctive and other relief against racial 
discrimination in employment, (b) 42 U.S.C. § 1981, pro­
viding for the equal rights of all persons in every state and 
territory within the jurisdiction of the United States, and 
(c) the duty of fair representation, 29 U.S.C. §§ 151, et seq.

The class which the plaintiffs represent is composed 
of black persons employed or who might seek employment 
by I.P. at its manufacturing facilities in Pine Bluff, 
Arkansas, and who have been and continue to be or might 
be adversely affected by the practices complained of. The 
plaintiffs also bring this action on behalf of the black mem­
bers of the International Brotherhood of Pulp, Sulphite 
and Paper Mill Workers, AFL-CIO, Locals 898 and 946, 
International Brotherhood of Pulp, Sulphite and Paper 
Mill Workers, United Papermakers and Paperworkers, 
AFL-CIO, and Locals 731, 735, and 833, United Paper- 
makers and Paperworkers, Pine Bluff, Arkansas and Inter­
national Brotherhood of Electrical Workers, AFL-CIO, and 
Local 2033, International Brotherhood of Electrical 
Workers, who have been and continue to be or might be 
adversely affected by the practices complained of.

The plaintiffs allege that there are common questions of 
law and fact affecting the rights of members of their class 
who are and continue to be limited, classified, discriminated

Opinion of District Court



3a

against and refused employment and which deprive and 
tend to deprive them of equal employment opportunities 
and, otherwise adversely affect their status as employees 
because of their race and color. These persons are so 
numerous that joinder of all members is impracticable. 
A  common relief is sought, and the interests of the class 
are adequately represented by the plaintiffs.

The nature of the claim is for declaratory relief, with 
permanent injunction requested, restraining all of the defen­
dants from continuing policies and practices discriminating 
against the plaintiffs and other blacks with respect to hir­
ing, compensation, terms and conditions of employment; 
limiting, segregating and classifying employees in ways 
that deny the members of the class their equal employ­
ment and, otherwise adversely affecting their status as 
employees or prospective employees; refusing to promote 
because of race; demoting because of race; merging for­
merly segregated unions without provision for protection 
of the formerly all black unions; and by excluding plain­
tiffs and members of their class from union membership 
because of their race.

The named plaintiffs are black citizens of the State of 
Arkansas, and employees of I.P., located at Pine Bluff, 
Arkansas, who have filed charges of discrimination with 
the Equal Employment Opportunity Commission pursuant 
to Title VII of the Civil Rights Act of 1964 against the 
defendant Company and unions and who have received 
notice of their right to bring this action.

The defendant, I.P., Pine Bluff, Arkansas, is a branch 
of a private corporation doing business in the State of 
Arkansas and the City of Pine Bluff. The Pine Bluff facility 
is an employer within the meaning of 42 U.S.C. § 20Q0e (b) 
in that the Company is engaged in an industry affecting- 
commerce and employs at least 25 persons.

Opinion of District Court



4a

The defendants organized as international unions are 
labor organizations which exist in whole or in part for the 
purpose of dealing with International Paper Company con­
cerning grievances, labor disputes, wages, rates of pay, 
hours and other terms and conditions of employment of 
employees of the Company at its facilities in and around 
the City of Pine Bluff in the State of Arkansas. The defen­
dant Locals are agents and affiliates of international unions 
and exist in whole or in part for the same purposes as the 
international union.

On June 29, 1971, I.P. filed a Motion to Dismiss or, alter­
natively, a Motion to Stay the Proceeding pending further 
conciliation efforts by the Equal Employment Opportunity 
Commission (EEOC). Although the Motion to Dismiss was 
predicated upon several grounds, it was in essence, a chal­
lenge to the procedural steps taken by plaintiffs as a proper 
basis for the filing of the Complaint in this case. The Pulp 
and Sulphite Workers and the Papermakers likewise filed 
a Motion to Dismiss the Complaint on the ground that the 
Court lacked jurisdiction over the parties. Both of these 
motions were denied by the Court in its Order of October 
22, 1971.

The defendant, I.P., and defendant unions filed answers, 
respectively, consisting of general denials of the material 
allegations of the plaintiffs’ complaint with regard to dis­
crimination in employment and in union activities but, also, 
raised the specific questions of whether or not plaintiffs 
have exhausted their remedies prior to invoking the juris­
diction of this Court; whether or not they have standing 
to represent the class referred to in the Complaint; and 
whether or not both I.P. and defendant unions have elim­
inated remaining vestiges of alleged prior discrimination

Opinion of District Court



5a

by the adoption and implementation of a document known 
as the “ Jackson Memorandum of Understanding” (herein­
after Jackson Memorandum).

The trial of the case was scheduled in November, 1971, 
but was continued to permit the parties to engage in exten­
sive pre-trial discovery in the form of depositions and 
interrogatories. Subsequently, the Court scheduled the case 
for trial commencing the week of February 7, 1972. Just 
prior to the trial of the case, the plaintiffs filed a Motion 
to sever all questions pertaining to back pay and requested 
that a master be 'appointed by the Court to take evidence 
and present findings of fact with respect to that issue. The 
defendants, in responding to the Motion, strongly con­
tended that the plaintiffs were not entitled to money dam­
ages or back pay and affirmatively pleaded the statute of 
limitations and the equitable doctrine of laches as a com­
plete bar to any back pay claim. The Court, in granting 
the Motion to sever, entered an Order on November 28, 
1972, but did not grant the request for a master to be 
appointed regarding the back pay issue.

The trial of the case consumed the weeks of February 7, 
and March 20, 1972. The Court heard extensive oral evi­
dence and received innumerable exhibits. Plaintiffs filed 
a Motion to Dismiss Pulp and Sulphite Workers and its 
Locals 898 and 946, and Papermakers and its Locals 731, 
735, and 833, based upon an agreement attached to the 
Motion to Dismiss. The basis of the agreement was that 
all issues raised in the pleadings with respect to the parties 
thereto had been settled and that -the action should, there­
fore, be dismissed with respect to these defendants. Defen­
dants I.P. and IBEW opposed the Motion and a formal 
Order was entered by the Court on November 28, 1972, 
denying the Motion.

Opinion of District Court



6a

The Pine Bluff Paper Mill is a substantial operation 
primarily engaged in the treatment of wood and, through 
extensive process, converts it into paper. It is one of a 
number of such facilities maintained and operated by the 
defendant I.P.

The Pine Bluff Paper Mill was constructed and began 
production in August, 1958. Many of the employees, and 
especially skilled and 'supervisory employees were trans­
ferred from other facilities operated by the Company. The 
remainder of the jobs, including some highly-skilled posi­
tions, were filled by employees newly hired by the Com­
pany at that time.

Jefferson County, Arkansas, in which the paper mill is 
located, has at all times relevant to this litigation had a 
'Substantial black population. It is undisputed that the 
initial staffing of the paper mill was made along strict racial 
lines as a matter of Company policy, with some job cate­
gories reserved solely for white employees and some for 
blacks.

The job categories assigned to black employees were 
generally lower-paying, more physically demanding, and, 
generally less desirable than those assigned to whites. Em­
ployee facilities at the paper mill, such as lunchrooms and 
other service facilities, were operated on a strictly segre­
gated basis.

The paper mill and job assignments for its operation 
are divided into several departments, each consisting of 
various jobs, having a close functional relationship with 
each other and usually operating with a distinct geographic 
area.

Most job assignments in the paper mill were organized 
into lines of progression (hereinafter sometimes referred 
to as “LOP’s” ), under which an employee assigned to a 
particular LOP would progress from one job assignment

Opinion of District Court



7a

to another along the LOP in a predetermined sequence. 
LOP’s were organized in accordance with a number of 
criteria including, sometimes in combination and sometimes 
singly, location, department, function, relationship of skills, 
wages and the traditions of the Southern paper mill in­
dustry.

There were a number of jobs in the paper mill which 
were not assigned to any line of progression. Among these 
were the laborers jobs, some of which were assigned to work 
with each of various LOP’s or in various departments, and 
managerial and 'supervisory personnel. As an example, the 
woodyard department consisted from employees from two 
LOP’s, the woodyard LOP and the equipment LOP, to­
gether with a laborer complement. The woodyard LOP and 
the woodyard labor pool initially were all black, while the 
equipment LOP was all white.

Jobs in the woodyard LOP, the equipment LOP, and the 
woodyard labor pool, were and are very closely related 
functionally, and employees assigned to all those jobs 
work in conjunction with each other on a daily basis. The 
only distinction between the two LOP’s located within the 
woodyard, other than the racial one indicated above, was 
that job categories in the equipment LOP received higher 
wages than those in the woodyard LOP.

The pulp mill LOP was staffed solely by white employees. 
A small number of job assignments functionally related 
exclusively to those in the pulp mill LOP were filled solely 
by blacks, such as the “ lime wheeler” . These black-staffed 
jobs were not included in the pulp mill LOP.

The beater room LOP was staffed solely by white em­
ployees............

The paper machine LOP, the most highly paid LOP 
in the paper mill, was staffed solely by whites. A  group of

Opinion of District Court



8a

black laborers worked with the members of the paper ma­
chine LOP but were not assigned to it.

The LOP of the polyethylene extruder, added sometime 
after the opening of the paper mill in 1958, was staffed 
solely by whites.

This method of assignment and job classification pre­
vailed throughout the facility wherein the whites were 
assigned to specific jobs and other specific assignments to 
blacks. The guard force consisted of white employees as 
did the managerial and supervisory employees. Neither of 
these were organized into LOP’s, although the testimony 
revealed that there were recurring patterns for promotion 
from one job assignment to another as is common practice 
in managerial structures.

The International Brotherhood of Pulp, Sulphite, and 
Paper Mill Workers represented the employees in the 
woodyard and pulp mill. Its Local 946 represented black 
employees, and its Local 898 represented whites in the 
pulp mill and in the laboratory LOP. In order to bring 
the continued operation of their local unions in compliance 
with the law, the defendant, International Union of Pulp, 
Sulphite, and Paper Mill Workers ordered a merger of the 
two locals. They were merged into one local and continues 
as Local 898. Local 946 was dissolved.

The defendant, International Brotherhood of United 
Papermakers and Paperworkers represented their mem­
bers employed by I.P. through their Local 731, 735, and 
833. Black members of the union suffered similar dis­
crimination in the operations of their labor organization.

The International Brotherhood of Electrical Workers 
and its Local 2033 represented the employees in the elec­
trical, instrument and power plant LOP’s. The guards, 
and office and clerical employees, were not represented by

Opinion of District Court



9a

any of the union® as parties to this litigation. The man­
agerial and supervisory employees were not, and are not, 
represented by any labor organization.

The defendant, I.P., has, at all times pertinent to this 
litigation, had exclusive control over the hiring for all jobs, 
whether represented or not represented. The Company re­
tains for itself the right to establish the minimum require­
ments and standards for all applicants for employment as 
well as the right to make decisions regarding placement 
of employees in labor pools or positions within the plant. 
Once hired, an employee’s movements from one job assign­
ment to another, among those jobs whose occupants are 
represented by any of the labor organizations wrho are 
parties defendant, are and have been controlled by pro­
visions of a series of collective bargaining agreements 
entered into by the defendants. Under the collective bar­
gaining agreements, each employee accrues three (3) types 
of seniority, to-wit: company seniority, the length of time 
he has been continuously employed by I .P .; department 
seniority, the length of time he has been permanently and 
continuously assigned to a particular LO P; and job senior­
ity, the time he has spent permanently and continuously 
assigned to a given job slot. Periods during which an em­
ployee may have been laid off are included in figuring 
company seniority, but not department or job seniority.

In order to enter a LOP, whether from another LOP 
or from a job outside any LOP, employees have historically 
competed on the basis of company seniority. If there was 
a permanent vacancy in a LOP, the employee with the 
greatest company seniority, who indicated his desire for 
it, would receive the assignment, if he was of the race for 
which the LOP was reserved. After the plant was initially

Opinion of District Court



10a

staffed, an employee newly assigned to a LOP entered it 
by being assigned to its lowest-paying job.

Once in a LOP, employees competed for progression 
from one permanent job assignment to the next highest- 
paying one in the LOP on the basis of their job seniority. 
The employee with the greatest tenure of permanent as­
signment to the job slot immediately below the vacancy 
would receive the assignment. If job seniority were equal, 
greater departmental seniority would control; if both were 
equal, greater company seniority would control. This re­
sulted from an entry level job of lower pay to an ascending 
scale of pay.

From 1958 until 1962, black employees of the defendant, 
I.P., were not permitted entry level jobs in any LOP except 
the woodyard. As late as 1971, the woodyard was the next 
to lowest pay when measured by LOP hourly wage.

In 1962 Executive Order 10925 was promulgated which, 
in effect, prohibited government contractors from discrim­
inating against any employee because of race, color, creed 
or national origin. The International Paper Company be­
came subject to the Executive Order as a substantial con­
tractor. I.P. responded promptly to the requirements of 
the Executive Order and announced that henceforth there 
would be no segregation of its facilities and that all LOP’s 
were open to all employees without regard to race, color, 
or national origin. It was of such import to I.P. that 
officials from the division level toured each of the mills in 
its Southern Kraft Division, including Pine Bluff, and met 
with local mill management and employee representatives, 
including black union leaders, as a means for announcing 
the new policy required by Executive Order 10925. The 
Company began immediately the desegregation of its facil­

Opinion of District Court



11a

ities which has long since been accomplished and is not 
an issue in this case. In addition, the Company further 
announced a policy of recruitment of individuals without 
regard to race or color, and a promotion policy which 
eliminated race as a factor.

With these announced changes in policy, black em­
ployees, who demonstrated potential ability to perform 
jobs in a line of progression under I.P.’s testing program, 
and who so desired, could transfer under the Labor Agree­
ment with the unions to former predominantly white jobs. 
There was some movement of incumbent blacks into some 
of the predominantly white positions.

The transition was slow. Desegregation of Company 
facilities was not completed until 1966. The first black em­
ployee who was permanently assigned to a previously all- 
white job did not occur until 1967. The first white em­
ployee assigned to a formerly all-black job was made on 
a permanent basis in 1968.

Because of the operation of the contract’s seniority pro­
visions, any black employee who entered a previously all- 
white LOP as late as 1967 would remain behind the white 
employees who entered the line of progression before him, 
notwithstanding the fact that the white employee may have 
been employed several years after the black employee.

As a result of the continuing effect of past discrimina­
tion, and a 1968 District Court decision, in TJ.S. v. Local 
189, United Papermakers and Paperworkers, 282 F. Supp. 
39 (E.D. La. March 1968), the Office of Federal Contract 
Compliance (OFCC) undertook the acceptance of an agree­
ment, by I.P. and the unions, to modify the effects of the 
contract seniority provisions. Discussions took place be­
tween OFCC and the Company toward providing incum­
bent blacks with additional opportunities for advancement

Opinion of District Court



12a

in employment throughout the Southern Kraft Division 
of I.P.

A  special conference was called in Jackson, Mississippi, 
in June, 1968. Top management of the Company and labor 
organizations, which included representatives of manage­
ment and labor for each of the mills in the Southern Kraft 
Division of I.P., participated in the conference; since the 
conference was instigated by OFCC, government repre­
sentatives also participated in the discussions. Repre­
sentatives of black employees were in attendance at the 
conference as delegates and participated in the discussions. 
There was some testimony that the blacks were present 
as “ observers” and not as official representatives of the 
black employees.

During the course of the conference, the Office of Fed­
eral Contract Compliance presented twelve points to the 
Company and unions as a basis for their discussion of 
necessary and appropriate changes which should be made 
to their existing Labor Agreements. The negotiations pro­
duced an agreement called the “Memorandum of Under­
standing” or “Jackson Memorandum” . Pursuant to the 
“ Jackson Memorandum”, the parties agreed to revise the 
basic Labor Agreements and employment practices, al­
leviating some of the continuing effects of the defendants’ 
past discriminatory practices. The Jackson Memorandum 
was circulated at the various mills of the Southern Kraft 
Division, including Pine Bluff, and was ratified by the 
local unions at all mills.

The OFCC adopted the position that the Jackson Memo­
randum was sufficient for compliance with Executive Order 
112461 without the need for further collective bargaining

Opinion of District Court

1 Executive Order 11246 superseded Executive Order 10925.



13a

beyond the agreed changes included in the Memorandum.
The primary impact of the Jackson Memorandum was to 

identify an “ affected class” of employees (hereinafter re­
ferred to as “AC” ), and to displace the old job seniority 
system with a mill seniority system, whereby members of 
AC compete with other employees for promotion, trans­
fer, and other personnel actions on the basis of mill se­
niority. This took the place of the old policy of competing 
on the basis of job or departmental seniority.

The Jackson Memorandum also contained a provision 
to the effect that the Company and the unions, at each 
plant, would conduct further negotiations toward an agree­
ment on restructuring of the LOP’s, so that the formerly 
all-black jobs were integrated into longer LOP’s also con­
taining traditionally white jobs. However, if competition 
between an affected class member and a non-affected class 
member does not exist, the Jackson Memorandum provides 
that the traditionally contract seniority applies.

Members of the affected class are identified, or defined, 
as those black employees hired prior to September 1, 1962, 
or employed thereafter, but prior to the date of the Jack- 
son Memorandum, and initially placed in a job or line of 
progression which was formerly a predominantly black job 
or line.

The Jackson Memorandum contains a further provision 
that all current employees are eligible for transfers or ad­
vancement into a line of progression if they possess qual­
ifications equal to the minimally qualified employee cur­
rently working in that line. Testing was deleted as a 
requirement for incumbent employees to be eligible for 
transfer to or entry into any production line of progres­
sion. It further provides for affected class transfer under

Opinion of District Court



14a

a “ red-circle” rate which protects against wage loss in the 
event the desired transfer is to a lower paying job.

Subsequently, the OFCC submitted a letter of expla­
nation of the Jackson Memorandum written by the acting 
Director and became known as the “McCreedy letter” . It 
was made clear that no skipping of job assignments within 
a LOP or entry to a LOP at other than the lowest-paying 
job was to be permitted. Designation of a job opening as 
a “ temporary” or “permanent” one had always and was 
still made solely by the Company. Assignments upwards 
along a LOP designated as “ temporary” had often lasted 
long periods of time, and, in some cases, even longer than 
a year.

As a result of these practices, some employees spent 
large portions of their working time “temporarily” as­
signed to jobs one or more steps in a LOP above their 
“permanent” assignment. The effect was that some spent 
a lot of their time “ temporarily” assigned to higher-level 
jobs.

The so-called McCreedy letter gave some significance to 
this distinction between a “permanent” and a “temporary” 
job assignment. Only an employee “permanently” assigned 
to a given job slot was eligible for assignment to the next 
higher slot.

Some of the rights granted to black employees by the 
Jackson Memorandum depended on some affirmative action 
on the part of the employee to obtain them. Shortly after 
the adoption of the Jackson Memorandum, August 7, 1968, 
the Personnel Department of the Pine Bluff mill of I.P. 
interviewed, individually, all affected class employees in 
order to advise them of their rights and, in an attempt to 
determine from them their interest in transferring from

Opinion of District Court



Opinion of District Court

the line in which they were working, at that time, to another 
line of progression. As to those which were not in a line 
of progression, an effort was made by the Personnel De­
partment to determine the lines of progression into which 
they desired to enter, if any.

Written applications were prepared for AC’s who de­
sired to transfer, or to he promoted; these applications 
were retained in the Personnel Office for reference if va­
cancies occurred. There were some instances of job re­
fusals by black employees, whereby the employees allegedly 
indicated their refusal to be assigned to jobs higher in the 
LOP than their then-current assignment. AC’s, who ini­
tially said they were not interested in transferring or 
moving up were, subsequently, contacted again to deter­
mine if they desired then to exercise their rights under 
the Jackson Memorandum.

Subsequently, the Company agreed to post throughout 
the plant notices for seven days of all permanent vacan­
cies in entry level jobs as well as for temporary vacancies 
which were expected to last more than thirty days. Copies 
of these notices were made available to each of the local 
unions. All employees could apply for any vacancy that 
was posted. Competition between applicants, e.g., em­
ployees who had previously expressed a desire for that 
line of progression, and employees in the labor pool serv­
ing that line of progression was resolved on the basis of 
mill seniority as provided by the terms of the Jackson 
Memorandum.

There was substantial statistical data furnished by both 
parties. The plaintiffs attempted to show a “ lock in” effect 
of prior practices. However, I.P. contends that such re­
sult, if any, was from failure of more complete utilization 
by affected class employees of opportunities afforded under



16a

the remedial relief measures agreed to by the defendants, 
I.P. and unions.

In any event, the Court is impressed with the fact that 
there was statistical data which shows some permanent 
movement by AC’s into formerly predominantly white jobs 
and, also, movement via posted temporary vacancies, i.e., 
those expected to last over thirty days. In view of the fre­
quently recurring vacancies, employees classified at one 
job level often received temporary promotions to the next 
higher job where they may have an opportunity for an 
even higher temporary promotion. It is quite clear, how­
ever, that there are a great many more temporary vacan­
cies of less than thirty days which AC’s fill in accordance 
with the terms of the Jackson Memorandum. The Court is 
persuaded and concludes, from all the evidence, that a 
qualified AC who desires promotion or transfer to better 
jobs, under the Jackson Memorandum, has had the oppor­
tunity to do so provided his mill seniority was greater than 
others applying for the same vacancy. It is further noted, 
from the record, that there are those who have not declined 
promotion who have received one or more promotions.

Numerous exhibits have been received in the record il­
lustrating how effective the Jackson Memorandum has been 
in precipitating accelerated movement of the affected class. 
The record discloses that, as a result of the Jackson Memo­
randum, there has been substantial movement of black em­
ployees into the lines of progression. This has not been 
without some difficulty. However, it has served substan­
tially toward achieving the intended purpose.

Where an affected class member was in competition with 
a non-affected class member, under the Jackson Memoran­
dum, the AC received the job. There is no substantial evi­
dence to the effect that a qualified senior AC failed to re­

Opinion of District Court



Opinion of District Court

ceive a job sought by him. There are instances wherein 
claims have been made which raise the question of qualifi­
cations or, in some cases, fear as to the ultimate result. 
Nevertheless, the ultimate result has been that the AC’s 
have either received advancement or transfer on their re­
quest under the Jackson Memorandum, or have voluntarily 
declined transfer and, in some cases, removed themselves 
from contention in other jobs. The record discloses, and 
the Court concludes, that the Jackson Memorandum has 
served as an effectual instrument toward eradication of the 
effects of past discrimination.

Even though the Court concludes from the evidence in 
the case that the Jackson Memorandum, as modified by the 
McCreedy letter, has provided remedial relief against the 
residual effects of past practices engaged in by the Com­
pany and the unions, and that I.P. and the unions have, in 
good faith, undertaken implementation, it developed that 
there were yet some steps to be taken toward the elimina­
tion of the last vestiges that remained from the effects of 
past discrimination.

In recognition of the need for further revision of pro­
cedures within the various mills of the defendant, Inter­
national Paper Company, a second Jackson conference was 
convened in June, 1972, under the auspices of the OECC. 
The Southern Kraft Division of the defendant, Inter­
national Paper Company, and paper production unions, 
representing the various I.P. mills, negotiated a new Memo­
randum of Understanding.2 There were some ten (10) 
mills, including the Pine Bluff mill, in the Southern Kraft 
Division of the International Paper Company affected by 
the revisions to the “ Jackson Memorandum” . Although the

2 A revision, supplementing the original Memorandum of Under­
standing.



18a

plaintiffs claim they were not represented at these negotia­
tions, it is an established fact that members of the black 
race were in attendance as observers.

The “McCreedy letter” complained of by the plaintiffs 
had been partially nullified to the effect that temporary 
service on the jobs began the basis for competition for 
permanent vacancies. In fact, the 1972 Memorandum elim­
inated the consequences of the distinction between “tem­
porary” and “ permanent” job assignments. Further, the 
recall provisions of the McCreedy letter were nullified. 
The parties were authorized, subject to approval of OFCC, 
to identify jobs which may be skipped or jobs which may 
be entered at an advanced level in certain lines of pro­
gression. The definition of the affected class was enlarged 
and a new, substantially higher, red-circle rate was adopted.

Pursuant to the revised Jackson Memorandum, an agree­
ment was entered into by the defendants so as to provide 
seniority protection for a period of six (6) months for an 
affected class employee who transfers from a line of pro­
gression to the Maintenance Department as an apprentice. 
These additional procedures, included in the revision, were 
adopted in order that greater equal employment oppor­
tunities, as they evolve, would occur and consequently 
remove, voluntarily, any and all vestige of past discrim­
ination.

The plaintiffs contend that the revised Jackson Memo­
randum was inadequate as a matter of law because it did 
not apply to Maintenance Departments. The OFCC had 
previously determined that there was no evidence of dis­
crimination against blacks in the maintenance crafts. Thus, 
OFCC did not request any action be taken in the Jackson 
conference affecting employees in the Maintenance De­

Opinion of District Court



19a

partments. The testimony fails to disclose that there has 
been overt discrimination in these departments.

The defendant, I.P., initiated certain testing require­
ments as prerequisites for hiring or promotion. Testing 
requirements remain as prerequisites for most of the jobs 
at the paper mill today. The test used in the Production 
and Maintenance Departments are as follows:

Production

Wonderlic Personnel Test—15 
Bennett Test of Mechanical Comprehension 
(Form A A )—20 

or
Bennett Test of Mechanical Comprehension 
(Form BB)— 12

Maintenance

Wonderlic Personnel Test—18 
Bennett Test of Mechanical Comprehension 
(Form A A )—45 

or
Bennett Test of Mechanical Comprehension 
(Form B B )— 37
Minnesota Paper Form Board Test—45.

These tests are administered in a controlled atmosphere 
by a test coordinator who follows the procedures outlined 
in the manuals prepared by the test publishers. Although 
there has been no challenge to the manner of administra­
tion, or scoring, of the Company’s personnel testing, the 
plaintiffs contend that they operate so as to disqualify 
blacks at a significantly higher rate than whites from hir­

Opinion of District Court



20a

ing, promotion, and transfer. The Court concludes the 
evidence is insufficient to show any substantial impact of 
the Company’s testing program as to the ability of blacks 
to obtain employment at the defendant’s Pine Bluff mill. 
More recently, the Company has initiated a comprehensive 
process of validating its production and maintenance tests 
by the criterion-related method of test validation. Through 
this method, the Company has established a reasonable 
procedure for a determination of an applicant’s capability 
to perform, successfully, particular jobs. This method of 
test validation is recognized in the profession and as gov­
ernmental guidelines for employee selection. EEOC, Guide­
lines on Employee Selection Procedures, 29 C.F.R. § 1607.1, 
et seq.; OFCC, Employee Testing Other Selection Proce­
dures, 41 C.F.R. § 60-3.1, et seq.

Finally, the plaintiffs presented testimony to the effect 
that various members of the class had been the victims of 
discrimination on a personal, or individual, basis solely 
because of their race. The Court has given special atten­
tion, and somewhat critically, to the claims in each in­
dividual instance; the Court agrees that, from the testi­
mony, it is clear that two basic factors characterize these 
charges of discrimination. First, it is apparent that they 
stem from misapprehension of the defendant’s, I.P., em­
ployment practices. In the second place, they were not 
processed through, admittedly, available grievance chan­
nels. The Court, therefore, concludes that neither the Com­
pany, nor the defendant unions, are now giving any con­
sideration to black employees for special treatment in a 
discriminatory manner. All employees, both black and 
white, are provided protection under present collective bar­
gaining agreements, pursuant to the Jackson Memorandum

Opinion of District Court



21a

of Understanding, and are, thus, provided remedy for ap­
propriate and good faith complaints.

Numerous witnesses on behalf of the plaintiffs, includ­
ing Mr. Henry Lee Rogers, plaintiff, Mr. Fair and Mr. 
Randle, admitted that they were members of the union and 
were aware of their rights under the Contract as to griev­
ance procedures. They testified that they had free access 
to the personnel office and the plaintiff, Rogers, admitted 
that he had been benefited monetarily by the filing and 
processing of the grievance. Although harassment has been 
claimed by some of the plaintiffs, the testimony discloses 
that, since the adoption of these protective procedures pur­
suant to the Jackson Memorandum, no grievances have 
been filed by any member of the affected class alleging 
harassment or racial discrimination.

From the substantial testimony presented, ore tenus, 
during the trial of the ease, innumerable exhibits by all 
parties, stipulations, and the entire record, the Court makes 
the following conclusions of law:

1. The Court has jurisdiction of this action pursuant to 
42 U.S.C. § 2000e-5(f); 42 U.S.C. §1381; 28 U.S.C. §1343 
(4 ); 28 U.S.C. §§ 2201 and 2202.

2. International Paper Company is an employer in an 
industry affecting interstate commerce within the meaning 
of § 701(b) of the Civil Rights Act of 1964, 42 U.S.C. 
§2Q00e(b); the defendant labor unions are organizations 
engaged in an industry affecting commerce within the 
meaning of § 701(d) and (e) of the Civil Rights Act of 
1964, 42 U.'S.C. §2000e(d) and (e).

3. Plaintiffs have complied with the procedural require­
ments of § 706(a), (d) and (e) of the Civil Rights Act of 
1964, 42 U.S.C. §2000e-5(d) and (e).

Opinion of District Court



22a

4. This proceeding is a proper class action pursuant 
to Rule 23 of the Federal Rules of Civil Procedure. The 
class is defined as follows:

“Those black employees employed and still employed 
since the commencement of this cause and all future 
employees of International Paper Company at its Pine 
Bluff, Arkansas, mill who are members or eligible to 
be members of Pulp and Sulphite W orkers; Locals 898 
and 946; Papermakers; Locals 731, 735, and 833; and 
IBEW ” .

5. The defendants, which are local unions, are for the 
purpose of this litigation, the agents of their respective 
international unions.

6. The defendant, International Paper Company, has a 
historical policy of hiring only blacks for certain jobs in 
the production of paper and related products in their 
various mills, including Pine Bluff, and only whites for 
other jobs within their mill operations, which constituted 
racial discrimination against black employees and, would 
be black employees. This historical policy of discrimina­
tion has been consistently reflected in collective bargaining 
agreements between the defendant, I.P., and the defendant 
unions.

7. The Pine Bluff paper mill was constructed, and com­
menced operation, in 1958. The historical policy of dis­
crimination, or effects of such past discrimination, con­
tinued unabated until August 7, 1968.

8. Discrimination, as consistently practiced within the 
operation of the defendant’s paper mill, constitutes an un­

Opinion of District Court



23a

lawful employment practice under the Civil Eights Act of 
1964, 42 U.S.C. § 2Q00e-2(a) and (c).

9. The collective bargaining agreements entered into 
periodically between the Company and the unions have had 
the effect of perpetuating past discrimination, or the effects 
of past discriminatory policies, since, under the terms of 
the agreements, qualified black employees employed prior 
to white employees remain at job levels on the various lines 
of progression below those white employees.

10. Employment practices which perpetuate, or tend to 
perpetuate, past discrimination are forbidden, by Title VII, 
to the extent that they are not supported by overriding 
legitimate, non-racial business necessity. Griggs v. Duke 
Power Co., 401 U.S. 424 (1971); Rowe v. General Motors 
Corp., 457 F.2d 348 (5th Cir. 1972).

11. The seniority system, as developed during the years 
of operation of the International Paper Mill at Pine Bluff, 
and which was agreed to by all of the defendants, has con­
sistently been a condition of employment which discrim­
inates against blacks in violation of Title V II of the Civil 
Rights Act of 1964.

In view of the ratification, and becoming parties to var­
ious collective bargaining agreements incorporating the 
seniority system after the effective date of Title VII of 
the Civil Rights Act of 1964, unlawful, discriminatory em­
ployment practices, and the effect of past discriminatory 
practices, continued until August 7, 1968.

12. The defendant’s failure to institute adequate re­
medial measures, after the adoption of the Civil Rights Act

Opinion of District Court



24a

of 1964, Title VII, was a continuing violation of Title VII 
until the adoption of the two Memorandums of Under­
standing referred to as “Jackson Memorandum” , first 
adopted August 7, 1968, and revised June, 1972.

13. The Court further concludes that the lines of pro­
gression at issue are essential to the proper operation of 
the defendant, I.P.’s, business and that they are functional 
and meet the needs of business necessity. The presently 
constructed lines of progression, at the defendant’s Pine 
Bluff mill, strike a reasonable balance between the de­
mands of the business and the rights of the members of 
the affected class, pursuant to the Jackson Memorandum 
of Understanding, as subsequently ratified by the defen­
dant parties to this litigation. See Quarles v. Philip Morris, 
Inc., 279 F.Supp. 505 (E.D. Va. 1968); U.S. v. Local 189, 
301 F.Supp. 906, aff’d sub-nom, 416 F.2d 980 (5th Cir. 
1969); cert, denied, 897 U.S. 919 (1970); U.S. v. Bethlehem 
Steel Corp., 446 F.2d 652 (2nd Cir. 1971); and Robinson 
v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971).

14. The seniority system, as presently provided by the 
collective bargaining agreements between the defendant 
parties, pursuant to the Jackson Memorandum of Under­
standing, adequately provides for the affected class to 
reach their “rightful place” in the Company’s present em­
ployment scheme according to their qualifications. Brown 
v. Gaston County Dye & Machine Co., 457 F.2d 1377 (4th 
Cir. 1972).

15. It is established, and the Court concludes, that prior 
to July 2, 1965, the effective date of the Civil Rights Act 
of 1964, the defendants, Company and unions, openly dis­

Opinion of District Court



25a

criminated on the basis of race in the hiring and assigning 
of employees at the Pine Bluff paper mill.

16. Although, the Company initiated some changes to­
ward the alleviation of discriminatory practices, after the 
promulgation of Executive Order 10925 in 1962, discrim­
inatory practices, or the effects of past discriminatory 
practices, continued until the adoption of the Memorandum 
of Understanding at the conference in Jackson, Mississippi, 
on August 7, 1968. Effective as of that time, the members 
of the affected class, who were qualified, were given the 
opportunity of claiming their “rightful place” in any mill 
job vacancy on the basis of mill seniority with the Com­
pany at its Pine Bluff mill. From experience, after the 
Jackson Memorandum, other discrepancies, such as distin­
guishing between temporary and permanent assignment, 
recall rights, and job skipping, developed. These and other 
questions were the subject of consideration which resulted 
in the second Memorandum of Understanding, adopted in 
June of 1972. It follows, and the Court concludes, that 
although the defendants followed a policy of overt racial 
discrimination prior to the Civil Rights Act of 1964, effec­
tive July 2, 1965, the Court concludes that such conduct, 
and the effect thereof, ceased with the adoption of the 
Jackson Memorandum, August 7, 1968.

17. Prior to the adoption of the Civil Rights Act by 
Congress, the Company initiated a standardized testing 
program; it has been subject to continuing process of val­
idation. It was not adopted as a result of this litigation, 
and no showing has been made that its use has resulted 
in discrimination. It is designed to determine qualifica­
tions of a person, not only for employment, but for assign­
ment and promotion.

Opinion of District Court



26a

“ . . . Congress did not intend by Title VII, however, to 
guarantee a job to every person regardless of qualifi­
cations. In short, the Act does not command that any 
person be hired simply because he was formerly the 
subject of discrimination, or because he is a member 
of a minority group. . . . What is required by Congress 
is the removal of artificial, arbitrary, and unnecessary 
barriers to employment when the barriers operate in­
vidiously to discriminate on the basis of racial or other 
impermissible classification.

# *  #

. . . The Act proscribes not only overt discrimination 
but also practices that are fair in form, but discrim­
inatory in operation. The touchstone is business neces­
sity. I f  an employment practice which operates to ex­
clude Negroes cannot be shown to be related to job 
performance, the practice is prohibited.” Griggs v. 
Duke Power Co., 401 U.S. 424, 430-31.

The burden of proof to establish the contentions, as 
alleged in the Complaint, is upon the plaintiffs. Here the 
plaintiffs have the burden to show that, by the use of such 
tests, there is demonstrated adverse impact on the class 
they represent. However, once the plaintiffs show a dis­
criminatory effect, the burden shifts to the defendants to 
prove the test’s validity. Furthermore, the Congress has 
placed on the employer the burden of showing that any 
given requirements must have a manifest relationship to 
the employment in question. Griggs, supra, p, 432.

The Equal Employment Opportunity Commission, having 
enforcement responsibility, has issued guidelines interpret­
ing § 703(h) to permit only the use of job-related tests. 
Griggs, supra, p. 433 n.9.

Opinion of District Court



27a

During the extended debate in the Congress on this sec­
tion (§ 703(h)), proponents of Title VII sought to assure 
the critics that the Act would have no effect on job-related 
tests. On the Senate floor, the co-managers o f the bill 
entered a memorandum explaining that the proposed Title 
VII, “ expressly protects the employer’s right to insist that 
any prospective applicant, Negro or white, must meet the 
applicable job qualifications. Indeed, the very purpose of 
title VII is to promote hiring on the basis of job qualifica­
tions, rather than on the basis of race or color.” Griggs, 
supra, p. 434.

An amendment was subsequently adopted to require that 
employment tests be job-related, § 703(h).

The defendant, I.P., presented extensive documentary 
evidence, together with expert testimony, on the question 
of the job-related nature of its testing program, The Court 
is impressed with the showing and, concludes from the 
evidence, that the tests utilized by the Company have been 
shown empirically to be highly correlated with successful 
perf ormance on the maintenance and production jobs at the 
Pine Bluff mill. Allen v. City of Mobile, 331 P.Supp. 1134 
(8.D. Ala. 1971). The Court, therefore, concludes that the 
Company has clearly established that the intent and pur­
pose of the testing procedures is to “measure the person 
for the job and not the person in the abstract” . Griggs, 
supra, p. 436.

18. The plaintiffs have alleged, and have attempted to 
prove, that the hiring practices of defendant, I.P., are 
discriminatory. The plaintiffs contend I.P. has consistently 
refused to hire blacks solely because of their race. The 
plaintiffs present statistical proof to show that the Com­
pany employs a disparately higher percentage o f white

Opinion of District Court



28a

employees and, particularly, in certain categories of em­
inent.

In Parham v. Southwestern Bell Telephone Co., 433 F.2d 
421 (8th Cir.), the Eighth Circuit Court of Appeals stated 
the well-established rule as follows:

“We hold as a matter of law that these statistics, 
which revealed an extraordinarily small number of 
black employees, except for the most part as menial 
laborers, established a violation of Title VII of the 
Civil Rights Act of 1964. 42 U.S.C.A. §2000e-2(a). 
See United States v. Sheet Metal Workers Local 36, 
AFL-CIO, 416 F.2d 123 (8th Cir. 1969); Local 189, 
United Bapermakers and Paperworkers, AFL-CIO v. 
United States, 416 F.2d 980 (5th Cir. 1969), cert, denied, 
397 U.S. 919 (1970); Plumbers Local 73, supra, 314 
F.Supp. 160; Clark v. American Marine Corporation, 
304 F.Supp. 603 (E.D. La. 1969); Lea v. Cone Mills 
Corporation, 301 F.Supp. 97 (M.D.N.C. 1969); Medical 
Society of South Carolina, supra, 298 F.Supp. 145; 
Dobbins, supra, 292 F.Supp. 413.” p. 426.

Again, in United States of America v. N. L. Industries, 
Inc., and Chemical Workers’ Basic Union, Local 1744, AFL- 
CIO, the Eighth Circuit Court o f Appeals, in No. 72-1143, 
filed March 28, 1973 (not yet reported), stated at page 27:

“ The statistics themselves reflect evidence of discrimi­
nation, and ‘In racial discrimination cases, statistics 
often demonstrate more than the testimony of many 
witnesses, and they should be given proper effect by 
the courts.’ Jones, supra. 431 F.2d at 247.”

Opinion of District Court

Further, our Court stated that these lopsided ratios are 
not conclusive proof of past discriminatory hiring prat-



29a

tices; however, they do present a prima facie case. The 
onus of going forward with the evidence and the burden of 
persuasion is thus on Hayes. Hays, supra, 456 F.2d 112.

In the instant case, no witnesses, on behalf of the plain­
tiffs, testified that they were rejected employment on the 
basis of their race. One witness, Mr. Blakely, testified as 
to the manner by which the Company informs the public 
when vacancies occur, stated that he learned about the 
employment opportunities at the mill by talking with other 
black members of the Pine Bluff community. The defen­
dant, I.P., presented testimony which demonstrated that 
the current ratio of black applicants employed by the Com­
pany is higher than the ratio of white applicants. Specifi­
cally, since the adoption of the Jackson Memorandum in 
1968, over 20% of all persons employed have been black. 
Out of a total of 108 composite net employees, 46 in that 
period have been black, which represents a gain of 42.6% 
of the total. Therefore, the statistics, relating to produc­
tion workers, demonstrate that the Company’s hiring prac­
tices do not discriminate against blacks. As to employment 
in the clerical field, the evidence establishes that there has 
been no hiring in this area for a significant period of time. 
In fact, during the last three years, the testimony reveals, 
only one clerical employee has been hired at the Pine Bluff 
mill. It is further established, by the testimony, that I.P.’s 
Personnel Manager has taken effective measures to estab­
lish a list of qualified black clerical applicants for any 
vacancies that might occur. Applicants are encouraged 
and received continuously, and periodically, the Company 
schedules such applicants for the clerical test administered 
by the Company.

Since the Company has demonstrated that its job-related 
testing procedures have resulted in the Company employing

Opinion of District Court



30a

significant numbers of black applicants and, the Company 
is continuously maintaining a list of qualified applicants 
in the clerical and office force, the Court concludes, and 
from the evidence in the record it is established, that the 
hiring policies and practices at the Pine Bluff mill are not 
discriminatory on the basis of race. Parham v. South­
western Bell Telephone Co., supra, Ochoa v. Monsanto Co., 
335 F.Supp. 53 (S.D. Tex. 1971).

This Court has previously approved the practice of 
utilizing the services of the local employment office in 
recruiting and hiring practices. The Court is of the opin­
ion that, in view of the fast expansion of industry in the 
Pine Bluff area, and the ratio of black population to white 
in the area, and the educational opportunities afforded by 
educational institutions in the area, the Company should 
utilize the services of the local office as to the availability 
of qualified blacks in the area for employment when vacan­
cies occur. Irvin v. Mohawk Rubber Company, 308 F.Supp. 
152 (1970).

19. In determining the appropriate remedy for this 
class action proceedings, the Court possesses wide dis­
cretion in modeling a decree to insure compliance with the 
1964 Civil Rights Act wherein a violation of Title VII has 
been found. See Hutchings v. United States Industries, 
Inc., 428 F.2d 303 (5th Cir. 1970); United States of 
America v. Sheet Metal Workers, Int’l. Ass’n., Local 36, 
AFL-CIO, 416 F.2d 123 (8th Cir. 1969); Local 53 of Int’l. 
Ass’n. of Heat and Frost Insulators and Asbestos Workers 
v. Vogler, 407 F.2d 1047 (5th Cir. 1969); and United 
States v. Medical Society of South Carolina, 298 F.Supp. 
145 (D.S.C. 1969).

Opinion of District Court



31a

The plaintiffs seek injunctive relief to enjoin the defen­
dants from unlawful employment discrimination under 
Title VII, 42 U.S.C. §2000e-5(g).

From the record in the case, the evidence establishes 
that the Company has demonstrated good faith efforts 
since the adoption of the Jackson Memorandum, August 7, 
1968, and has continued, since that time, in its efforts to 
recruit black employees. The Company has demonstrated, 
as actual results show, that it continues to implement 
programs designed to assist blacks in obtaining employ­
ment with the Company on a non-discriminatory basis. 
The Company has further demonstrated that each appli­
cant is considered on the basis of qualifications for the 
particular job sought by the applicant. As already stated, 
the Company should improve its procedures by publicizing 
its equal employment opportunity policy. Parham v. 
Southwestern Bell Telephone Co., supra.

The Company’s record over the past four years is im­
pressive and salutary. The Court recognizes that I.P. has 
shown considerable progress under its affirmative action 
program adopted in 1968. The thrust of this program, in 
seeking minority group individuals for employment, tends 
to overcome the discrimination built into the previous 
recruitment system which commenced in 1958. The record 
establishes that I.P.’s management personnel have under­
taken greater supervision and implementation of its em­
ployment policies and programs. Parham, supra.

In view of this record, established by substantial evi­
dence, numerous exhibits, depositions, and stipulations, 
the Court concludes that an injunction is unnecessary for 
Title VII compliance with the requirements for equal em­
ployment opportunities at this time. By the enactment of 
the Civil Rights Act of 1964, Congress placed great em­

Opinion of District Court



32a

phasis on private settlement and the elimination of unfair 
practices without resorting to the Court’s injunctive 
powers. See 42 U.S.C.A. §2000e-5; Hutchings, supra, 428 
F.2d 303; Culpepper v. Reynolds Metals Company, 421 
F.2d 888 (5th Cir. 1970); Jenkins v. United Gras Corpora­
tion, 400 F.2d 28 (5th Cir. 1968); Oatis v. Crown Zeller- 
bach Corporation, 398 F.2d 496 (5th Cir. 1968); Quarles v. 
Philip Morris, Incorporated, 279 F.Supp. 505 (E.D. Va. 
1968).

However, the Court reiterates its findings that the defen­
dant I.P.’s recruitment policies and practices, initiated 
with the establishment of production at the Pine Bluff mill 
in 1958, which continued virtually unabated until the effec­
tive date of the Civil Rights Act, July 2, 1965, were dis­
criminatory, based on race, although the Company at­
tempted some change in policy following the issuance of 
the Executive Order of 1962. The Court also reiterates its 
findings that such discrimination, or the result of such 
discriminatory practices, continued from the effective date 
of the Civil Rights Act, July 2, 1965, until the adoption of 
the Jackson Memorandum, August 7, 1968. While recogniz­
ing that the Company has made tremendous progress in the 
hiring of black employees, and coordinating its efforts 
with the defendant unions, the Court thinks it should be 
noted that such progress preceded the plaintiffs’ Com­
plaint to the EEOC and the subsequent institution of this 
litigious proceeding on May 17, 1971. Such progress must 
not end with the cessation of this litigation. It is incum­
bent upon the defendant, I.P., to insure that its policies of 
equal employment opportunity continue to be implemented 
and enforced by all Company personnel engaged in em­
ployee hiring and promotion, notwithstanding existing 
collective bargaining agreements with the unions. Parham, 
supra.

Opinion of District Court



33a

In order that the findings and conclusions of the Court 
may be implemented, and an}̂  affirmative relief may be 
determined, the Court retains jurisdiction of this action, 
and the defendant, I.P., is directed to make periodic 
reports to the Court of its employment activities. See 
United States of America v. N. L. Industries, Inc., and 
Chemical Workers’ Basic Union, Local 1744, AFL-CIO, 
supra.

20. With reference to the claim for back pay, an issue 
which by agreement of counsel for the parties was deferred, 
the Court takes cognizance of the opinion of the United 
States Court of Appeals for the Eighth Circuit, United 
States of America v. N. L. Industries, Inc., and Chemical 
Workers’ Basic Union, Local 1744, AFL-CIO, No. 72-1143, 
filed March 28, 1973 (unreported), in which the Court laid 
down the rule as to such an award, as follows:

“Despite what we have said as to the appropriateness 
of backpay, we do not make such an award here. In 
this Circuit the law in regard to backpay has not been 
adequately defined to provide employers and unions 
with notice that they will be liable for a discriminatee’s 
economic losses due to continuation of past or present 
discriminatory policies.” p. 49.

It is noted that this opinion by our Circuit Court of 
Appeals was rendered approximately one year after the 
conclusion of the hearing in the instant proceedings. In 
view of this rule, by our own Eighth Circuit Court of 
Appeals, this Court adopts the rule in this case. How­
ever, as the Court stated in United States of America v. 
N. L. Industries, Inc., et ah, supra, where an employer 
and the unions have had ample opportunity to remedy 
unlawful employment practices, they should be put on

Opinion of District Court



34a

notice that they will he held responsible for the economic 
losses accruing to the parties injured by such unlawful 
policies.

21. Although the Court finds no injunction warranted, 
this litigation has, without doubt, acted as a catalyst which 
partially prompted the defendants to take some action 
implementing its own fair employment policies and seek­
ing compliance with the requirements of Title VII. In 
this sense, the plaintiffs have performed a valuable public 
service in bringing this action. Having prevailed in their 
contentions of prior racial discrimination against blacks 
generally, the plaintiffs are entitled to their costs, including 
reasonable attorneys’ fee. The Court, taking judicial notice 
of the tremendous work in the preparation, discovery, and 
trial of the case and the voluminous record developed 
during the course of the proceedings, is of the opinion that 
the plaintiffs are entitled to recover from the defendants, 
jointly and severally, their costs, and in addition thereto, 
reasonable attorneys’ fee in the sum of $15,000.00 to com­
pensate the plaintiffs’ attorneys for their work and efforts, 
authorized by 42 U.8.C. § 2000e-5(k). See Parham v. 
Southwestern Bell, supra; Clark v. American Marine 
Corporation, 304 F.Supp. 603 (E.D. La. 1969); and Irvin 
v. Mohawk Rubber Company, 308 F.Supp. 152 (1970).

The Court incorporates its findings and conclusions 
pursuant to Rule 52 of the Federal Rules of Civil Pro­
cedure.

An Order wall be entered in accordance, and consistent 
with this Memorandum Option.

Dated this 10th day of December, 1973.

Ores Harris
United States District Judge

Opinion of District Court



35a

UNITED STATES COURT OF APPEALS

F or the E ighth Circuit

Nos. 74-1086, 74-1087 
74-1101, 74-1115

Opinion of Court of Appeals

H enry L ee R ogers, et al.,

Appellants-Cross- Appellees,

v.

International P aper Company, et al.,

Appellees-Cross- Appellants.

Appeal from the United States District Court 
for the Eastern District of Arkansas,

Submitted: October 14, 1974

Filed: January 7, 1975

Before:
Heaney, Bright and Ross,

Circuit Judges.

Ross, Circuit Judge.

Henry Rogers, Lee Smith and N. A. Thompson, on behalf 
of themselves and other blacks similarly situated, brought 
this action against International Paper Company [herein­
after I.P.] and I.P. unions under Title V II of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000e-5(e), 42 U.S.C. §1981,



36a

and 29 U.S.C. §§ 151 et seq. The complaint alleges racially 
discriminatory employment policies were practiced by I.P. 
at its Pine Bluff Mill in four general employment classifi­
cations: production departments, maintenance craft jobs, 
office and clerical jobs, and supervisory positions.

After a lengthy trial and upon detailed factual evidence, 
the district court concluded, with respect to production 
jobs, that although I.P. had clearly discriminated in past 
job assignments and although its seniority system had 
perpetuated the effects of that past discrimination, I.P.’s 
Memorandum of Understanding negotiated between I.P. 
and the Office of Federal Contract Compliance under Exec­
utive Order 11,246 substantially eliminated the effects of 
the former discriminatory policy. Respecting maintenance 
craft jobs the court concluded there was no overt discrimi­
nation against blacks and the tests administered as a pre­
requisite to employment for those jobs were not ishown to 
have a racially disparate impact, nor, in any event, to be 
unrelated to job performance. Third, the district court 
noted there had been no hiring for office and clerical posi­
tions for a significant period of time and concluded that 
I.P. had undertaken effective measures to remedy any dis­
crimination in office and clerical employee selection by 
establishing a list of qualified black clerical applicants. 
The district court did not address the question of discrimi­
nation in supervisory employee selection. Upon those bases, 
the court denied injunctive relief. For the reasons herein­
after set forth, we reverse and remand.

I. Internal Structure.

The Pine Bluff Mill, located in Jefferson County, Arkan­
sas, is one of a number of such facilities maintained by I.P. 
for treatment and conversion of wood into paper. It com­

Opinion of Court of Appeals



37a

menced production in 1958 and, at the time of trial, em­
ployed 1,443 employees, of which 118 were black. The 
population of Jefferson County is 30% black. The mill 
consists primarily of production departments which process 
wood into paper and maintenance craft departments which 
are responsible for repairing and maintaining the machin­
ery used at the mill. Also employed at Pine Bluff are 
supervisory personnel and office and clerical personnel.1 
Of the 160 supervisory personnel, one accountant hired in 
1969 is black.

Production workers are organized into ten departments1 2 
which, in turn, are subdivided into various lines of pro­
gression [LOP] based either upon the type of job performed 
or geographic proximity to other jobs in a particular LOP. 
As a worker ascends in the LOP his pay rate increases. 
Associated with many of these departments are labor pools 
into which employees are hired by I.P. and from which 
laborers are assigned to various entry level jobs in a LOP 
as temporary or permanent vacancies therein occur. Also 
in the production area, but not associated with any specific 
department or LOP, are various miscellaneous hourly jobs. 
Under the collective bargaining agreements in effect at 
Pine Bluff, promotion, demotion, layoff and recall are deter­
mined on the basis of seniority of which there are three 
types : company or mill seniority, department seniority, and 
job seniority.3 *

1 In this appeal neither the plaintiffs nor the United States 
Equal Employment Opportunity Commission challenge the find­
ings of the district court relating to office and clerical jobs.

2 Wood Yard, Pulp Mill, Laboratory, Beater Boom, Machine 
Room, Polyethylene Extruder, Finishing and Shipping, Store­
room, Equipment, and Power Plant.

3 Company seniority is the length of service with the company.
Department seniority is the length of service in a department or 
line of progression. Job seniority is the length of service on a 
job in a line of progression.

Opinion of Court of Appeals



38a

Prior to 1962 all of the production jobs were segregated 
on the basis of race. The Wood Yard Department was 
the only production department permitting blacks. Var­
ious miscellaneous jobs were designated black jobs and 
the General Yard Crew was a black labor pool. The 
black jobs were generally less desirable, lower paying, 
and more physically demanding. Subsequent to 1962 this 
situation changed as will be hereafter discussed.

The maintenance crafts jobs are organized into three 
departments4 and are represented by various skilled crafts,* 6 
both journeyman and apprentice status. These are the 
highest paying hourly positions at I.P. The company, 
based upon test results achieved on a battery of tests, 
effectuates hiring of these employees into the apprentice­
ship programs. Applicants therefor must be under 25 
years of age, or 29 if the applicant is an I.P. incumbent 
employee. Job training and union membership' follow. Un­
til 1962 the bargaining representatives for these crafts 
were segregated white unions. Thus the maintenance crafts 
at Pine Bluff were all white. At the time of trial, two 
black apprentices had been hired into the 255 skilled craft 
positions at the Pine Bluff Mill.

II. 'Supervisory P ersonnel.

In a recent class action challenge alleging employment 
discrimination we have noted that employment policies af­
fecting supervisory and managerial positions are not in­
sulated from the reaches of Title V II enforcement. Gil­
more v. Kansas City Terminal Ry.) No. 74-1207 (8th Cir.,

4 Maintenance, Electrical, and Instrument.
6 Pipefitters, Carpenters, Insulators, Millwrights, Welders, Steel­

workers, Boilermakers, Sheet Metal Workers, Machinists, and Auto 
Mechanics.

Opinion of Court of Appeals



39a

January , 1975). In that case we held that statistical 
data may establish a prima facie case of employment dis­
crimination, specifically in the context of supervisory per­
sonnel, and that such a showing shifts the burden to the 
employer to rebut the inference that racial considerations 
have dictated employment choices. Id. at 6. When a de­
fense of lack of minority qualification is interposed by the 
employer, we there held that an employer may rebut the 
prima facie ease of discrimination upon a showing that 
the required qualifications have a manifest relationship 
to the employment in question. Gilmore v. Kansas City 
Terminal Ry., supra, at 7. Thereafter, it is open to plain­
tiffs to demonstrate a violation of Title VII on either of 
two independent bases: “that the employment policies re­
flect present discriminatory conduct or that current poli­
cies, though neutral on their face, carry forward vestiges 
of past discrimination.” Id.

Here, by means of the statistic that only one black 
has been hired for a supervisory position, the plaintiffs 
have made a prima facie showing of racial discrimination 
by I.P. in its employee selection policies for supervisory 
personnel.6 The record does not demonstrate that I.P. 
interposed any defense to this aspect of the class action 
complaint. Because the trial court, in defining the class, 
excluded supervisory employees, and since I.P. did not

6 Even though proof was offered and received as to supervisory 
employees, the district court defined the class in this action as 

“ Those black employees employed and still employed since the 
commencement of this cause and all future employees of 
International Paper Company at its Pine Bluff, Arkansas, mill 
who are members or eligible to be members of Pulp and Sul­
phite Workers; Locals 898 and 946; Papermakers; Locals 731, 
735, and 833; and IBEW.”

On remand the district court should redefine the class to include 
supervisory employees.

Opinion of Court of Appeals



40a

present evidence to rebut the prima facie statistical show­
ing of racial discrimination, we remand this aspect of the 
case to the trial court for further hearings and a deter­
mination as to whether or not there has been racial dis­
crimination in the hiring* of supervisory employees by 
I.P. I f  the trial court determines there has been such 
discrimination it shall then fashion an appropriate remedy. 
In resolving this issue the district court should apply the 
following standards.

A. Current Discrimination.

Proof of intent. Notwithstanding the provision in Title 
Y II allowing injunctive relief and back pay only where 
the respondent has intentionally engaged in unlawful prac­
tice, 42 U.S.O. §2000e-5(g), courts have established that 
proof of discrimination does not require proof of intent 
to discriminate. All that is required is that the employ­
ment practice not be accidental. See, e.g., Local 189, United 
Papermakers & Paperworkers v. United States, 416 F.2d 
980, 996 (5th Cir. 1969), cert, denied, 397 U.S. 919 (19700- 
The Supreme Court has adopted this interpretation. In 
Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971), the 
Court stated that, “ Congress directed the thrust of the 
Act to the consequences of employment practices, not sim­
ply the motivation.” See also United States v. N. L. In­
dustries, 479 F.2d 354, 361 (8th Cir. 1973) (and cases 
cited therein).

Overt discrimination. Overt discrimination may be dem­
onstrated by the production of qualified minority appli­
cants for past vacancies who were rejected for a less 
qualified white person. If such employer conduct is estab­
lished, a deliberate purpose to discriminate may be in­
ferred and close judicial scrutiny of employment practices

Opinion of Court of Appeals



is warranted. In Brown v. Gaston County Dyeing Machine 
Co., 457 F.2d 1377, 1382 (4th Cir. 1972), the court observed:

Courts have often observed that proof of overt 
racial discrimination in employment is seldom direct. 
Recognizing this, we have found “ error in limiting 
Title VII to present specific acts of racial discrim­
ination,” and it is now well established that courts 
must also examine statistics, patterns, practices and 
general policies to ascertain whether racial discrim­
ination exists. (Citations omitted.)

Recruitment. Evidence of discrimination by design might 
also be based upon a history of minimal recruitment ef­
forts in publicizing vacancies and openings in supervisory 
and management positions. The passive nature of past 
recruitment together with the failure to undertake af­
firmative recruitment efforts after the passage of Title 
Y II may justify a finding of discriminatory conduct. 
United States v. N. L. Industries, supra, 479 F.2d at 368 ; 
Parham v. Southiuestern Bell Telephone Co., 433 F.2d 
421, 426-27 (8th Cir. 1970); United States v. Sheet Metal 
Workers Local 36, 416 F.2d 123, 139-40 (8th Cir. 1969).

Examination of criteria. A  final method in the assess­
ment of present discriminatory conduct is the examination 
of the supervisory selection and promotion criteria em­
ployed by I.P. Such criteria are especially susceptible to 
employer practices which discriminate in fact under a fa­
cade of apparent neutrality. Griggs v. Duke Power Co., 
supra, 401 U.S. at 431, in holding unlawful an employer’s 
use of a written test not shown to have been related to 
job performance, teaches that employee selection criteria 
must be scrutinized. Under Griggs, an employer must dem­
onstrate that hiring and promotional requirements with

Opinion of Court of Appeals



42a

a racially disparate effect “have a manifest relationship 
to the employment in question.” Id. at 432.

Where objective criteria are employed the EEOC guide­
lines on Employer Selection Procedures, 29 C.F.R. § 1607 
et seq. cited with approval by the Court in Griggs, supra, 
401 U.S. at 434, as expressing the will of Congress, con­
trol. They require generally that empirical evidence must 
demonstrate a significant correlation between the test em­
ployed and important elements of work behavior.

Greater possibilities for abuse, however, are inherent in 
•subjective definitions of employment selection and promo­
tion criteria. Yet they are not to be condemned as unlawful 
per se, for in all fairness to applicants and employers 
alike, decisions about hiring and promotion in supervisory 
and managerial jobs cannot realistically be made using ob­
jective standards alone. Thus, it is especially important 
for courts to be sensitive to possible bias in the hiring and 
promotion process arising from such subjective definition 
o f employment criteria. The EEOC guidelines,7 the Execu­
tive Order program,8 and the courts have all established

7 Those guidelines, which, set forth validation standards for 
objective professionally developed tests, also state that:

Selection techniques other than tests . . . may be improperly 
used so as to have the effect of discriminating against minor­
ity groups. . . . Where there are data suggesting employ­
ment discrimination, the person may be called upon to present 
evidence concerning the validity of his unscored procedures 
as well as of any tests which may be used, the evidence of 
validity being of the same types referred to in §§ 1607.4 and 
1607.5.

29 C.F.R. § 1607.13 (1973). That passage suggests that even sub­
jective criteria must be validated by the employer.

8 Executive Order 11,246, regulating employment practices of 
employers with government contracts, also requires empirical vali­
dation for “selection techniques other than tests,” including un­
scored interviews, unscored application forms, and records of edu­
cational and work history, if such techniques have the effect of 
discriminating against blacks. 41 C.F.R. § 60-313 (1973).

Opinion of Court of Appeals



43a

%

the requirements of, and in most cases a measure for, ex­
amining subjective hiring and promotion criteria. At the 
very least, it is necessary to identify the goals underlying 
the subjective criteria through a job analysis. Examination 
of those goals might reveal underlying .personal biases or 
discriminatory stereotype classifications. See, e.g., EEOC 
Dec. No. 72-0721 (Dec. 27, 1971), 4 FEP Cases 439 (1972). 
It may additionally appear that subjective preference is 
accorded factors which are discriminatory, as for example, 
education accomplishment when such is not shown to be 
related to job performance,9 a history of arrest records,10 11 
a history of wage garnishment,11 or personal references 
that are nepotistic or culturally biased.12 If there is any 
evidence of a discriminatory policy, courts have in the past

Opinion of Court of Appeals

9 Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). The Court 
there observed that “History is filled with examples of men and 
women who rendered highly effective performance without the 
conventional badges of accomplishment in terms of certificates, 
diplomas, or degrees.” Id. at 433. See also Carter v. Gallagher, 
452 F.2d 315, 326 (8th Cir 1971), modified on rehearing en banc, 
452 F.2d 327 (8th Cir.), cert, denied, 406 U.S. 905 (1972); De­
velopments in the Law— Employment Discrimination and Title 
VII of the Civil Eights Act of 1964, 84 ITarv. L. Eev. 1109, 1141- 
45 (1971).

10 Carter v. Gallagher, supra, 452 F.2d at- 326; Gregory v. Litton 
Systems, Inc., 316 F.Supp. 401, 403 (C.D. Cal. 1970), modified, 
472 F.2d 631 (9th Cir. 1972). See also Developments in the L a w -  
Employment Discrimination and Title VII of the Civil Rights 
Act of 1964, 84 Harv. L. Rev. 1109, 1151-52 (1971). Compare 
Schware v. Board of Bar Examiners, 353 U.S. 232, 241 (1957).

11 Wallace v. Debron Corp., 494 F.2d 674, passim (8th Cir. 
1974) ; Johnson v. Pike Corp. of America, 332 F.Supp. 490, passim 
(C.D. Cal. 1971).

12 Rowe v. General Motors Corp., 457 F.2d 348, 358-59 (5th Cir. 
1972) ; Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 
427 (8th Cir. 1970) ; Asbestos Workers Local 53 v. Vogler, 407 
F.2d 1047, 1054 (5th Cir. 1969).



44a

Opinion of Court of Appeals

closely circumscribed and even rejected practices of per­
sonal interviews,13 supervisory recommendations,14 and 
other subjective hiring criteria.15

B. Neutral Practices Perpetuating Vestiges 
of Discrimination.

The Supreme Court has announced that a district court 
has:

not merely the power but the duty to render a decree 
which will so far as possible eliminate the discrimina­
tory effects of the past as well as bar like discrim­
ination in the future.

Louisiana v. United States, 380 U.S. 145, 154 (1965) (em­
phasis added). As applied to employment discrimination 
cases, the concept which originated in Quarles v. Philip 
Morris, Inc., 279 F.Supp. 505, 516 (E.D. Ya. 1968) that 
Congress did not intend to freeze an entire generation of 
Negro employees into discriminatory patterns that existed 
before the Act, was adopted by the Supreme Court in 
Griggs v. Duke Power Co., supra, 401 U.S. at 430:

Under the Act, practices, procedures, or tests neutral 
on their face, and even neutral in terms of intent,

13 United States v. Sheet Metal Workers Local 36, 416 F.2d 123, 
136 (8th Cir. 1969) ; Chance v. Board of Examiners, 330 F.Supp. 
203, 223 (S.D. N.Y. 1971), aff’d, 458 F.2d 1167 (2d Cir. 1972).

14 United States v. N. L. Industries, 479 F.2d 354, 368 (8th Cir. 
1973); Leisner v. New York Telephone Co., 358 F.Supp. 359, 369 
(S.D. N.Y. 1973). See also EEOC Dec. No. 7094 (Aug. 19, 1969), 
2 FEP Cases 192, 193 (1971).

15 Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377, 
1382-83 (4th Cir. 1972) ; United States v. Bethlehem Steel Corp., 
446 F.2d 652, 655 (2d Cir. 1971). See also EEOC Dec. No. 72-0265 
(Aug. 6, 1971), 4 FEP Cases 68 (1972).



45a

cannot be maintained if they operate to “ freeze” the 
status quo of prior discriminatory employment prac­
tices.

Pre-Act discriminatory conduct is thus an integral com­
ponent in the calculus of employment discrimination and 
remedial relief. United States v. N. L. Industries, supra, 
479 F.2d at 360-61 (and cases therein cited). Neutral pol­
icies which perpetuate past discrimination cannot be con­
tinued unless there is a showing of “compelling business 
necessity.” United States v. St. Louis-San Francisco Ry., 
464 F.2d 301, 308, (8th Cir. 1972), cert, denied, 409 U.S. 
1107 (1973). See also Griggs v. Duke Power Co., supra, 
401 TJ.8. at 431; United States v. N. L. Industries, supra, 
479 F.2d at 364-65. Such a business necessity “ ‘connotes 
an irresistible demand.’ The system in question must not 
only foster safety and efficiency, but must be essential to 
that goal.” United States v. St. Louis-San Francisco Ry., 
supra, 464 F.2d at 308. In United States v. N. L. Industries, 
supra, 479 F.2d at 365, we stated:

[T]he business purpose must be sufficiently compelling 
to override any racial impact; the challenged practice 
must effectively carry out the business purpose it is 
alleged to serve; and there must be available no ac­
ceptable alternative policies or practices which would 
better accomplish the business purpose advanced, or 
accomplish it equally wTell with a lesser differential 
racial impact. (Citation omitted.)

Thus where the prescribed qualifications rest on factors, 
the ability to obtain which was denied minority applicants 
under past discriminatory policies, then the criteria must 
be modified, to the extent possible, so as to substitute

Opinion of Court of Appeals



46a

functionally equivalent criteria which, does not have a dis­
criminatory effect. Only when there are “ available no ac­
ceptable alternative policies or practices which would . . . 
accomplish [the business purpose advanced] equally well 
with a lesser differential racial impact,” might a neutral 
policy perpetuating’ prior discrimination be retained. 
United States v. N. L. Industries, supra, 479 F.2d at 365.

III. Maintenance Ckaet J obs.

The two issues raised on appeal relating to I.P.’s em­
ployee selection practices for skilled craft jobs, are gov­
erned by different theories under Title VII. The first 
challenge, I.P.’s use of a battery of standardized tests16 as 
selection devices for maintenance craft jobs,17 rests upon 
the determination of whether these tests constitute subtle 
examples of present discrimination. The second issue, tem­
porary enlargement of the minority entry level age limita­
tion for the skilled crafts; is governed by considerations 
of whether such relief is necessary to dispel the effects of 
past discrimination and render whole the former discrim- 
inatees. Thus we treat these issues separately, but we do 
not intimate that test validation and entry-level age ad­
justments may be exclusive remedies for skilled crafts ap­

16 Wonderlie, Bennett, and Minnesota Paper Form tests. These 
tests have been the subject of repeated challenges under Title VII. 
See Griggs v. Duke Power Co., 401 U.S. 424 (1971) [Wonderlie 
and Bennett] ; Duhon v. Goodyear Tire & Rubber Co., 494 F.2d 
817 (5th Cir. 1974) [Wonderlie and Bennett] ; United States v. 
Georgia Power Co., 474 F.2d 906, 911 n.3, 912 n.5 (5th Cir. 1973) 
[Bennett and Wonderlie] ; Moody v. Albemarle Paper Co., 474 
F.2d 134, 138 (4th Cir. 1973) [Wonderlie],

17 The Wonderlie and Bennett tests are also employed as selec­
tion criteria for production positions. Lower cutoff scores, how­
ever, are applied and on this record the tests thus applied have 
not been shown to have an exclusionary impact on minority appli­
cants for production positions.

Opinion of Court of Appeals



47a

plicants. Our considerations on appeal do not diminish 
I.P.’s obligation to undertake positive measures to dispel 
the residual effects of admitted prior discrimination under 
Title VII, 29 C.F.R. § 1607.14, or under the Executive 
Order18 program, 41 iC.F.R. § 60-3.14. See generally, Note, 
Remedial Minority Employment, 56 Minn. L. Rev. 842. 
844-45 (1972). The determination of the perimeters of 
affirmative relief, however, is committed to the district court 
on remand in the exercise of its inherent “ equitable power 
to remedy past wrongs” “ once a right and a violation have 
been shown.” Swann v. Charlotte-Mecklenburg Board of 
Education, 462 U.S. 1, 15 (1971).

In analyzing the legitimacy of testing devices as pre­
requisite to employment, several principles are significant. 
In Griggs v. Duke Power Co., supra, 401 U.S. at 431, the 
Supreme Court held that employment practices which 
“ [operate] to exclude Negroes [and] cannot be shown to 
be related to job performance”  were “ artificial, arbitrary, 
and unnecessary barriers to employment” and therefore 
were prohibited. The Court also held that “ Congress has 
placed on the employer the burden of showing that any 
given requirement [has] a manifest relationship to the 
employment in question,” id. at 432, and that the EEOC 
guidelines on Employer Selection Procedures, 29 C.F.R. 
§ 1607, expressed the will of Congress and were thus a

18 Under Executive Order 11,246 the Office of Federal Contract 
Compliance (OFCC) monitors Government contractors and sub­
contractors.. The Executive Order requires that no government 
contractor or subcontractor shall discriminate against employees 
or applicants for employment because of race, color, religion, sex 
or national origin. Additionally the contractor is required to take 
affirmative action, see 41 C.F.B, § 60-2, to guarantee that mem­
bers of an affected class who, by virtue of past discrimination, 
continue to suffer the present effects of that discrimination, are 
employed and that such employees are treated during employ­
ment without regard to race, color, religion, sex or national origin.

Opinion of Court of Appeals



48a

measure relevant to demonstrating manifest relationship 
to employment. Griggs, supra, at 434. That burden, how­
ever, does not shift to the employer until the plaintiff has 
shown a discriminatory effect of the challenged employment 
requirement. Id. at 431; Gilmore v. Kansas City Terminal 
Ry., supra, slip opinion at 6-7; United States v. Georgia 
Power Co., 474 F. 2d 906, 912 (5th Gir. 1973); Moody v. 
Albemarle Paper Co., 474 F. 2d 134, 138 (4th Gir. 1973); 
Chance v. Board of Examiners, 458 F. 2d 1167, 1176 (2d 
Gir. 1972). Yet such a showing of discriminatory impact 
may be prima facie established by statistical data. Gilmore 
v. Kansas City Terminal Ry., supra, slip opinion at 6 
(cases therein cited).

The district court here concluded that the evidence was 
“ insufficient to show any substantial impact of the Com­
pany’s testing program as to the ability of blacks to obtain 
employment at the defendant’s Pine Bluff mill.” However 
the evidence relating to racial success on the tests was 
meager. I.P. either did not maintain such records or with­
held them for they were not available upon plaintiffs’ dis­
covery requests nor inquiries at trial. The court apparently 
relied upon the statistic urged by I.P. that 2 of the 5 in­
cumbent black applicants for transfer to maintenance craft 
positions were accepted, while only 7 of 59 white applicants 
were selected. Thus black opportunity for transfer was 
40% while white opportunity was only about 11.9%. These 
figures are somewhat elusive, however. First, the statistical 
population itself, incumbent employees seeking transfer, 
represents a discriminatorily conceived pool and does not 
reflect a typical composition of applicants for maintenance 
craft positions at Pine Bluff based upon geographical mi­
nority population. Second, the two blacks who success­
fully transferred did so after I.P.’s 1968 commitment to 
provide affirmative promotional and. transfer relief for

Opinion of Court of Appeals



incumbent former discriminatees. Finally, evidence of a 
test’s discriminatory effect is not confined to the ultimate 
hiring and rejection ratios. “ The use of any [unvalidated] 
test which adversely affects hiring, promotion, transfer or 
any other employment . . . opportunity of classes protected 
by title V II constitutes discrimination” . 29 C.F.R. § 1607.3. 
See, e.g., Johnson v. Goodyear Tire <& Rubber Co., 491 F. 2d 
1364, 1372 (5th Cir. 1974); United States v. Georgia Power 
Co., supra, 474 F. 2d at 912 n. 5; Chance v. Board of Ex­
aminers, supra, 458 F. 2d at 1176.

Better evidence of the test’s racial impact can be found 
in the testimony of the personnel director at Pine Bluff 
who was aware of no black success19 in 1962 on the Won- 
derlic and Bennett tests for production transfer eligibility. 
This was confirmed by one of the Pine Bluff black em­
ployees. Similarly he did not believe that any blacks passed 
the production battery of tests in 1967 or 1968. There is, 
however, some conflicting evidence on this latter point for 
one of plaintiffs’ witnesses testified that two blacks passed 
in 1968. The fact remains, however, that as late as 1971, 
only two blacks had been hired into the apprentice program 
at Pine Bluff. Black employees were virtually excluded 
even from production transfer until 1968 and passing 
scores for production transfer were even lower than min­
imal scores for skilled craft admittance. And company 
officials, notably the Industrial Relations Manager at Pine 
Bluff, were aware of and expressed disappointment over 
the poor minority success on the test batteries.

19 Applicants for transfer to other production lines of progres­
sion were originally similarly required to pass the same Wonderlic 
and Bennett tests required of maintenance employee applicants. 
Cutoff scores, however, were set lower than minimal passing scores 
for transfer to skilled crafts jobs. These scores for production 
transfer were themselves lowered in later years.

Opinion of Court of Appeals



50a

This statistical evidence, then, though partly based on 
tests administered to production employees, is sufficient to 
show the racially disparate impact of the skilled crafts’ 
testing program, see also Boston Chapter, NAACP, Inc. 
v. Director and Commissioner of Civil Service, No. 74-1067, 
slip opinion at 5-6 (1st Cir., Sept. 18, 1974), and to shift 
the onus of validation to I.P., which appropriately came 
forward with evidence of attempted validation the district 
court determined to be adequate. The legal issue, then, on 
review in this case resolves to the sufficiency of the valida­
tion study as persuasive evidence that the test battery is 
truly predictive of job performance. For this we turn to 
the EEOC guidelines.

Under the guidelines, “ [ejvidence of a test’s validity 
should consist of empirical data demonstrating that the 
test is predictive of or significantly correlated with impor­
tant elements of work behavior which comprise or are rele­
vant. to the jobs or jobs for which candidates are being 
evaluated.” 29 C.F.R. §1607.4(c). Three procedures are 
cited as the generally acceptable methodology for satisfy­
ing those requirements: criterion-related validity, content 
validity, and construct validity.20 The latter two are per-

20 Criterion validity correlates test scores with some measure of 
job success. It can be accomplished by two methods: predictive 
validation or concurrent validation. “ ‘Predictive validation con­
sists of a comparison between the examination scores and the sub­
sequent job performance of those applicants who are hired’ ; ‘Con­
current validation requires the administration of the examination 
to a group of current employees and a comparison between their 
relative scores and relative performance on the job.’ ” Vulcan 
Society of New York City Fire Dept. v . , Civil Service Comm, of 
N.Y., 490 P. 2d 387, 394 (2d Cir. 1973). Content validity corre­
lates the content of the test with the content of the job and is 
generally used to determine the validity of achievement tests. 
Construct validity matches an employment test with results of 
some other test known to measure the relevant characteristics.

Opinion of Court of Appeals



51a

miasible only where criterion-related validity is not feasible. 
29 C.F.R. § 1607.5(a). Here I.P. undertook a predictive 
criterion-related validity study for higher than entry level 
jobs, a permissible undertaking for a validity study under 
29 C.F.R. § 1607.4(c)(1). Supervisor raters were asked to 
rate workers in the sample under a paired comparison rat­
ing technique.21 The rating lists were then matched with 
test battery results to determine whether those tests had 
been an adequate measure of job performance. We note 
several deficiencies in this validation study.

Sample deficiencies and lack of differential validation. 
The samples were small and they included no minority 
skilled craft employees. Neither was there a differential 
validation study performed. Under 29 C.F.R. § 1607.5(b) 
(1), “ [wjbere a validity study is conducted in which tests 
are administered to present employees, the sample must 
be representative of the minority groups currently included 
in the applicant population.” Under 29 C.F.R. § 1607.5(b) 
(5), data must be generated and results separately reported 
for minority and nonminority groups wherever technically 
feasible.

Here, however, I.P.’s Pine Bluff Industrial Relations 
Manager, his assistant, and the expert psychologist called 
by I.P. all represented in their testimony that no attempts

Opinion of Court of Appeals

21 This technique was explained by I.P.’s Industrial Psychologist 
as:

“ [Y]ou make up a little slip, put each pair of guys in 
the group to be rated, so everybody is paired with everybody 
else. And the rater then goes through that little booklet and 
He checks each pair. He checks the one man of those two 
doing the better job on his job . . . .  So when he gets 
through, every man has been paired with every other man. 
Then you tally those, and the guy that gets the most tallies 
is ‘superior’ . . . and the guy that gets the fewest tallies is 
. . . bottom.”



52a

were made to conduct a differential validation, to include 
blacks in the validation studies, or even to maintain rec­
ords of black performance on the standardized tests. Under 
the guidelines, the burden of establishing that noncom­
pliance with any of the minimal validation standards is 
not technically feasible is on the employer. 29 C.F.R. 
§ 1607.4(b). It would seem that black performance on the 
tests could easily have been calibrated by I.P. since the 
tests have been administered to blacks since 1962 for both 
production and maintenance applicants. Similarly, balance 
in the racial composition of the samples could seemingly 
have been achieved, as well as differential validation, by 
selecting validation samples from other I.P. mills or even 
other companies within the industry where similar tests 
were employed and minority representation was adequate. 
Such statistics are permissible under the guidelines where
(a) the studies pertain to jobs which are comparable, and
(b) there are no major differences in contextual variables 
or sample composition which are likely to significantly 
affect validity. 29 C.F.R. § 1607.7.

I.P.’is casual disregard of the obligation to undertake 
differential comparisons on test results and in validation 
■studies falls short of proof of technical nonfeasibility. The 
absence of differential validation and the deficiencies in the 
sample composition, therefore, render the study inadequate. 
See also United States v. Georgia Power Co., supra, 474 
F.2d at 914-15, 916; United States v. Jacksonville Terminal 
Co., 451 F.2d 418, 456 (5th Cir. 1971), cert, denied, 406 U.S. 
906 (1972).

Jot Analysis. 29 C.F.R. § 1607.5(b) (3) establishes as 
one of the critical standards for validation that:

The work behaviors or other criteria of employee ade­
quacy which the test is intended to predict or identify

Opinion of Court of Appeals



53a

mast be tally described. . . . Whatever criteria are ased 
they mast represent major or critical work behaviors 
as revealed by careful job analysis.

Here there were no adequate job analyses performed. 
Raters were given general guidelines then directed to select 
the better of two employees in various pairs. The guide­
lines apprised the raters to consider factors .such as quality 
of work on the job, quantity of work on the job, ability to 
work with others, ability to direct a crew if that were re­
quired of a job, job knowledge and safety awareness. 
There were, however, no individualized analyses for each 
of the different jobs under consideration. Although some­
what constrained, the rating process here was still prin­
cipally subjective. We have in the past condemned the use 
of such nebulous standards. United States v. N. L. Indus­
tries, supra, 479 F.2d at 368; United States v. Sheet Metal 
WorJcers Local 36, supra, 416 F.2d at 137-138. Where, as 
here, subjective evaluations are used in the very process 
of test validation, a similar potential for abuse exists. 
Moreover, job analyses are intended to be a careful quan­
tification of criteria that “ represent major or critical work 
behaviors” for the individual jobs. 29 C.F.R. § 1607.5(b) (3). 
“A job analysis for one [job] . . . would not necessarily be 
suitable for another.” Walston v. County School Board of 
Nansemond County, 492 F.2d 919, 926 (4th Cir. 1974). 
There is no indication that these general guidelines here 
were individualized for the wide variety of jobs examined. 
The resulting absence of proper and careful job analyses, 
therefore, is fatal to the validation study. See Moody v. 
Albemarle Paper Co., supra, 474 F.2d at 139; Western 
Addition Community Organisation v. Alloto, 340 F. Supp. 
1351, 1355 (N.D. Cal. 1972).

Opinion of Court of Appeals



54a

Utility of the test. Several infirmities arise here. First, 
each of the battery tests was not validated for each job 
for which the test is a prerequisite of employment.22 This 
offends 29 C.F.R. § 1607.4(c) because a failing score on any 
one of the three tests disqualifies an applicant from em­
ployment in a skilled craft position at Pine Bluff. Since 
each test then effectively exercises an absolute veto pre­
rogative, each must be validated to show significant corre­
lation with respective job performance. See Moody v. 
Albemarle Paper Co., supra, 474 F.2d at 138, 140. Addi­
tionally we note that for 9% of the oases considered there 
was no correlation between the test scores and job perfor­
mance. If a test does not prove statistically significant for 
a given job, it cannot be employed as a selection criterion. 
29 C.F.R. § 1607.5(c)(1). See also United States v. Georgia 
Power Co., supra, 474 F.2d at 915. Under Griggs, the test 
battery is prohibited for at least those 9% cases where the 
test bears no demonstrable relationship to the employment 
in question. Griggs v. Duke Power Co., supra, 401 U.S. at 
431. Finally the evidence .strongly suggests that the cutoff 
scores23 have been set too high. For example 40% of the 
skilled craftsmen in a sample of machinists and millwright 
journeymen would have been unable to achieve admission 
to their respective crafts under the present standards. 
Some justification must be proffered for the level o f cutoff 
adopted under these circumstances. See Walston v. County 
School Board of Nansemond County, supra, 492 F.2d at 927.

22 Wonderlie correlations were reported for six skilled craft 
groupings; Bennett correlations, for nine groupings; and Minne­
sota Paper Form correlations for only one _ grouping. By con­
trast, there are thirty skilled craft jobs at Pine Bluff.

23 The cutoff scores on the test battery for skilled crafts jobs at 
Pine Bluff are: Wonderlie, 18; Bennett, 45, Minnesota Paper 
Form, 45.

Opinion of Court of Appeals



55a

Thus we conclude that on remand the trial court should 
direct I.P. to conduct new validation studies conforming 
to the standards set forth herein and take such additional 
evidence as is necessary to permit the trial court to deter­
mine whether or not the administration of the tests has 
in fact resulted in a racially discriminatory hiring or trans­
fer policy. If the trial court determines that the tests have 
had such result, it should then devise a remedy which w ill: 
(a) determine which tests are permissible under the stan­
dards set forth herein and the proper cut-off score for each 
test; (b) direct that prior applicants who have taken the 
■tests and whose scores meet the revised standards be 
offered employment in maintenance craft jobs on a pre­
ferred basis as vacancies become available with the same 
■seniority which would have resulted if  they had been em­
ployed in maintenance craft jobs as of the time of their 
first application, and (c) offer all other members of the 
■affected class an opportunity to take the tests under the 
revised standards and give hiring or transfer preference 
to those who pass the tests under the revised standards.

The second question on appeal concerning relief for mi­
nority maintenance crafts’ applicants24 is the request for 
temporary enlargement of the entry level age limitation. 
By reason of past discrimination,25 because there was no 
showing of business necessity26 for the present age limita­
tion, and because I.P. presently permits incumbent pro­

Opinion of Court of Appeals

24 We leave for determination of the trial court the request
that the apprenticeship program be shortened in the case of 
minority applicants.

26 Carter v. Gallagher, supra, 452 F.2d at 326.
26 United States v. N. L. Industries, supra, 479 F.2d at 364; 

United States v. St. Louis-San Francisco By., 464 F.2d 301, 308 
(8th Cir. 1972), cert, denied, 409 U.S. 1107 (1973).



56a

deletion workers who have been bumped down to entry 
level positions in their departments to enter the appren­
ticeship programs up to the age of 36, the entry level age 
for admission to the skilled crafts apprenticeship programs 
should be enlarged to age 36 as to all members of the 
affected class, until the district court determines that there 
is sufficient minority representation in I.P.’s maintenance 
craft jobs. See Carter v. Gallagher, 452 F.2d 315, 326 (8th 
Cir. 1971), modified on rehearing en banc, 452 F.2d 327 
(8th Cir.), cert, denied, 406 TJ.S. 1107 (1973). The details 
of this remedy are left to the district court on remand.

IV. P roduction J obs.

From the commencement of operations at the Pine Bluff 
mill until 1962, employees were assigned to production 
jobs on the basis of race. However, pursuant to Executive 
Order 10,925,27 I.P. announced a policy of racial desegre­
gation for both the physical facilities at the mill and admis­
sion into lines of progression. Initial company focus was 
directed towards desegregation of the physical facilities 
and only one black was permanently assigned to a white 
job prior to 1967.28

Opinion of Court of Appeals

27 Executive Order 10,925 has been superseded by Executive 
Order 11,246.

28 This was due in large part to the fact that in 1962 I.P. began 
to require black applicants for employment and transfer to pass 
tests previously given only to whites. Minimal passing scores for 
production jobs were set at 18 and 38 on the Wonderlic and Ben­
nett tests respectively. In 1968 the testing requirements for pro­
duction jobs were reassessed and thereupon reduced to 15 and 20 
respectively. Significantly greater numbers of black applicants 
have since been hired for production jobs. The present testing 
requirements for production employment do not now appear to 
have an adverse racial impact.



57a

In 1968, the Office of Federal Contract Compliance, in 
the execution of the Executive Order program, advised 
I.P. that they had failed to comply with the nondiscrim­
ination requirements of the Executive Order and that, in 
order to retain government contract privileges, they would 
have to change employment practices. A conference wfith 
representatives of the Southern Kraft Division of I.P. 
was thereupon called by OFCC in Jackson, Mississippi, 
to discuss necessary modifications for Executive Order 
compliance. A Memorandum of Understanding, negotiated 
at that meeting and endorsed by the affected unions 
and representative mills, was approved by the OFCC as 
sufficient for compliance with the Executive Order. That 
memorandum, dealing only with production jobs, created 
remedial transfer, promotion and recall opportunities for 
members of an “affected class,” defined as all black incum­
bent employees hired before September 1, 1962, and those 
additional blacks hired into black jobs after 1962.29 The 
memorandum provided that members o f the affected class 
could compete against other applicants30 for entry level 
positions in any other line of progression on the basis of 
mill seniority, so long as an affected class member’s quali­
fications were as high as the minimally qualified employee 
currently working in the line.31 Affected class members 
who transferred under these provisions were offered wage 
maintenance protection so as not to deter the exercise of

Opinion of Court of Appeals

29 At the time of trial, that class consisted of 57 employees.
30 Usually such applicants came from the labor pools associated 

with a specific department and therefore competed on the basis of 
department seniority, a less general form of contract seniority.

31 The effect of this proviso was to eliminate the test battery 
requirement for affected class transferees to other production 
LOP’s.



58a

the transfer rights to lower paying entry level jobs in 
other lines of progression.32 The memorandum also estab­
lished that promotion, demotion, layoff, and recall rights 
of affected class members would be governed by mill senior­
ity whenever a class member was in competition with a 
nonclass member. Finally the memorandum provided that 
negotiations were to take place at the mill level, between 
local management and local unions regarding possible 
merger or shortening of lines of progression, job skipping, 
and advanced level entry.33

In May, 1969, upon I.P.’s request, OFCC issued a clarifi­
cation of the Jaekson Memorandum’s provisions relating to 
promotion and recall. As I.P. had been administering the 
Memorandum, affected class employees either permanently 
or temporarily34 classified on the job immediately preeed-

32 Any affected class member requesting transfer within six 
months could have his former permanent wage rate “red circled,” 
the effect of which was to retain that rate after transfer in those 
cases where the transferee position was rated at a lower wage 
than his former laborer wage. The maximum “red circle” rate 
was $3.00 per hour. Most, but not all, affected class members 
earned less than this amount.

33 As a result of Pine Bluff local negotiations, two jobs were 
added to the top of the Wood Yard line of progression (the 
formerly all black line of progression) and one formerly black 
miscellaneous job was incorporated into each of the Pulp Mill 
and Beater Room lines of progression. No lines of progression 
were shortened. Job skipping and advanced level entry were 
apparently not discussed.

34 When a temporary vacancy occurs somewhere in a line of 
progression, for example as a result of vacation, medical, or mili­
tary leave, temporary assignments, called temporary set-ups, are 
made to fill the vacancy. These assignments are determined on 
the basis of job, then department, seniority. Thus when a vacancy 
occurs in the middle of a line of progression, under the bidding 
and seniority provisions operative, the person in the position im­
mediately below the vacancy is generally assigned to fill the 
temporary vacancy, thereby creating another temporary vacancy.

Opinion of Court of Appeals



59a

mg the vacancy, could he considered to fill the permanent 
vacancy and could compete with nonaffected class members 
on the basis of mill seniority. The Union had opposed this 
practice, since under the collective bargaining agreement 
only those permanently assigned to immediately preceding 
jobs were eligible for permanent promotions, and also had 
contended that affected class members could not compete 
on the basis of mill seniority against those eligible for re­
call to an entry level position in a line of progression. The 
OFOO response, called the MoCreedy Letter, authorized 
the company to either establish residency requirements for 
each job representing minimal time periods essential to 
qualification for advancement, or to limit competition for 
permanent vacancies to those permanently assigned to the 
immediately preceding job classifications. I.P. chose the 
latter course. The McCreedy Letter also eliminated af­
fected class mill seniority competition against incumbent 
employees with recall rights for entry into a line of pro­
gression.

After the trial of this matter below, a revision of the 
Jackson Memorandum was tentatively adopted. The 1972

Opinion of Court of Appeals

The net effect of this process is that several persons in the line 
of progression temporarily advance up the line and create a 
temporary vacancy in the entry level position at the bottom of 
the line. The longer the individual line of progression, the greater 
the chance for temporary set-ups. Oftentimes, then, employees 
temporarily progress more than one position in the line and, 
having either been set-up at, immediately below, and even above, 
a particular vacancy are qualified to perform the skills required 
of a position more than one place above them in the line of pro­
gression. The effect of permitting competition only among perma­
nent assignees to the immediately subordinate job, then, is to 
effectively eliminate competition for permanent vacancies; where­
as, if a qualified temporary present or former assignee may com­
pete for permanent vacancies up the line, some degree of job 
skipping is the result, and the pre-existing seniority pattern is 
not locked in.



60a

Jackson Memorandum expanded the parameters of the af­
fected class; advanced the maximum red circle wage main­
tenance rates from $3.00 to $3.86 per hour; permitted per­
manent promotion eligibility to rest upon fulfillment of 
residency requirements in prerequisite jobs without regard 
to the permanent or temporary nature of assignment 
thereto; and permitted affected class competition on the 
basis of mill seniority against incumbents with recall rights 
for entry level positions in lines of progression. The 
memorandum again called for local negotiations on ad­
vanced level entry and job skipping.35

The district court found that, with respect to production 
jobs, since much discrimination had been eliminated, fur­
ther injunctive relief from the allegedly discriminatory 
seniority, promotion, and transfer policies governing those 
jobs was inappropriate. The legal issue on appeal, then, 
is whether I.P.’s allegedly neutral policies, as modified by 
the Jackson Memoranda, effectively dispel the present ef­
fects of admitted past discrimination or, if not, whether 
they are necessary to a compelling business necessity.36 See  
p. 10-12, ante.

35 recorq does nor disclose whether those negotiations took 
place. Under the 1968 Jackson Memorandum, however, I.P. took 
the position that the implementation of wage retention and mill 
seniority competition practices upon transfer obviated the need 
for job skipping and advanced level entry. But see n. 34, supra. 
At oral argument, it appeared as though a similar position had 
been advanced by I.P. after the 1972 memorandum.

36 Our inquiry does not end with the implementation of the 
Jackson Memoranda, although they have been approved by the 
OFCC as sufficient for compliance with the nondiscrimination 
standards of the Executive Order program. “ [F]inal responsi­
bility for enforcement of Title VII is vested with federal courts.” 
Alexander v. Gardner-Denver Go., 415 U.S. 36, 44 (1974). See 
also Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 219, 
221 n. 21 (5th Cir. 1974); Peed v. Arlington Hotel Co., Inc., 476

Opinion of Court of Appeals



61a

Under Title VII, seniority and promotion policies have 
been frequently scrutinized by courts, despite an exemp­
tion for “bona fide seniority or merit systemfs],” 42 U.S.C. 
§ 2000e~2(h), for they can be subtle forms of discrimina­
tion which perpetuate discriminatory patterns of the past. 
See, e.g., Pettway v. American Cast Iron Pipe Go., supra, 
494 F.2d at 224; Johnson v. Goodyear Tire & Rubber Co., 
supra, 491 F.2d at 1373, n. 27 (and cases therein cited); 
United States v. St. Louis-San Francisco Ry., supra, 464 
F.2d at 307. The approach most often followed in amelio­
rating the built-in discrimination peculiar to dual seniority 
plans, the most common form of seniority discrimination, 
is the “ rightful place”  doctrine.37 Ring v. Roadway Ex­
press, Inc., 485 F.2d 441, 451 (5th Cir. 1973); United States 
v. St. Louis-San Francisco Ry., supra, 464 F.2d at 309; 
United States v. Bethlehem Steel Corp., 446 F.2d 652, 661 
(2d Cir. 1971). Various remedies in effectuating the right- * 87

Opinion of Court of Appeals

F.2d 721, 724 (8th Cir.), cert, denied, 414 U.S. 854 (1973) ; Local 
189, United Papermakers & Paper-workers v. United States, 416 
F.24 980, 985 (5th Cir. 1969), cert, denied, 397 U.S. 919 (1970). 
Nor does I.P.’s reliance on the provisions of the memoranda, if 
they prove short of adequate remedy under Title VII, excuse 
I.P. from compliance with Title VII. “ [G]ood intent or absence 
of discriminatory intent does not redeem employment procedures 
. . . that operate as ‘built-in headwinds’ for minority groups . . . ” 
Griggs v. Duke Power Co., supra, 401 U.S. at 432.

87 The “rightful place” approach holds that continued mainte­
nance of the relative competitive disadvantage imposed on minori­
ties by the past operation of a discriminatory system violates Title 
VII. Thus it permits minority members to compete for promo­
tion on the basis of total company service. Note, Title VII, Se­
niority Discrimination and the Incumbent Negro, 80 Harv. L. Rev. 
1260, 1268-75 (1967). See also Developments in the Law-Employ­
ment Discrimination and Title VII of the Civil Rights Act of 1964, 
84 Harv. L. Rev. 1109, 1155-64 (1971) ; Cooper and Sobol, Se­
niority and Testing Under Fair Employment Laws: A  General 
Approach to Objective Criteria of Hiring and Promotion, 82 Harv. 
L, Rev. 1598, 1626-29 (1969).



Opinion of Court of Appeals

ful place doctrine have been adopted. Among them are 
mergers of segregated unions,38 39 advanced level transfers,89 
job skipping,40 and wage maintenance.41 To some degree 
these policies are reflected in the Jackson Memoranda. 
However, those compliance pronouncements are deficient 
in several respects.

The $3.00 per hr. ceiling on wage rate protection under 
the 1968 Jackson Memorandum discouraged several af­
fected class members who already had permanent wage 
rates in excess of that figure. The increased red circle 
ceiling in the 1972 memorandum, it has been represented, 
reflects merely overall increases in wage rates since 1968 
but does not bring within its protections those previously 
excluded. Additionally, temporary assignments to jobs 
higher up a line of progression with comparably higher 
rates of pay are a frequent fact of employment at Pine 
Bluff. Thus an employee’s permanent wage rate does not 
necessarily represent his average hourly net rate of pay 
over a period of time. Finally, the red circle computation

38 Rock v. Norfolk and Western Ry., 473 F.2d 1344, 1348 (4th 
Cir.), cert, denied, 412 U.S. 933 (1973); United States v. St. 
Louis-San Francisco Ry., supra, 464 F.2d at 310-11.

39 United States v. Hayes International Corp., 456 F.2d 112, 
119 (5th Cir. 1972) ; Long v. Georgia Kraft Co., 450 F.2d 557, 
561 (5th Cir. 1971); United States v. Local 189, United Paper- 
makers & Paperworkers, 301 F.Supp. 906, 917-18 (E.D. La.), 
aff’d, 416 F.2d 980, 990 (5th Cir. 1969); Bush v. Lone Star Steel, 
7 FEP Cases 1258, 1270 (E.D. Tex. 1974).

40 Id.
41 United States v. Bethlehem Steel Corp., 446 F.2d 652, 660-61 

(2d Cir. 1971) citing Robinson v. Lorillard Corp., 319 F.Supp. 
835, 839, 843 (M.D. N.C. 1970); Bush v. Lone Star Steel, supra, 
7 FEP Cases at 1270; Hicks v. Crown Zellerbach Corp., 321 
F.Supp. 1241, 1243-44 (E.D, La. 1969); United States v. Local 
189, United Papermakers & Paperworkers, supra, 301 F.Supp. at 
918, 923.



63a

does not permit cost-of-living and contract renegotiation 
wage increase adjustments. See generally n. 41, ante.

The necessity to serve in every job in a line of progres­
sion is still an announced policy of I.P. As proffered at 
oral argument, an employee must still meet a residency 
requirement on the job for which he is bidding as well 
as that of the job immediately below. The cumulative 
effect of this policy is to nearly eliminate the possibility 
of job skipping or advanced level entry transfer oppor­
tunities. These seemingly neutral requirements that an 
employee serve in every job in a line of progression have 
impeded, in the past, affected class members’ progress 
toward their rightful place. They may be retained, there­
fore, only upon a showing of business necessity. United 
States v. N.L. Industries, supra, 479 F.2d at 364-66; United 
States v. St. Louis-San Francisco By., supra, 464 F.2d 
at 308-09. I.P., however, did not present evidence that 
each job was an essential prerequisite to the next higher 
job in every line of progression. Some general evidence 
only was presented about general structures of lines of 
progression and their business convenience. But that ev­
idence was not specific enough to meet the test of business 
necessity. Additionally, neither is there any assessment 
of the legitimacy of the length of each individual residency 
period42 or consideration of whether functionally equiv­
alent experience in another line of progression may be 
substituted for the residency period. See United States v. 
Jacksonville Terminal Co., supra, 451 F.2d at 453-54. Ab­

Opinion of Court of Appeals

42 At oral argument, I.P. represented that the average resi­
dency requirement for higher level jobs was two months and less 
than that for lower level jobs. It is true that this policy was 
adopted after the trial in the court below. However, the district 
court relied on this modification in denying future injunctive 
relief.



64 a

sent a showing of business necessity for, and justification 
of, the residency requirements and their respective lengths, 
advanced level entry and job skipping may be appropriate 
remedies. See n. 39 and n. 40, ante.

Finally, even assuming the trial court should determine 
that each job is essential to progression, I.P. has in the 
past, though in part in reliance on OFCC, retarded af­
fected class promotion by its administration of the an­
nounced policies. After the McCreedy Letter, competition 
for permanent vacancies was limited to only those per­
manently assigned to the position immediately subordi­
nate to the vacancy. This policy effectively eliminated 
competition for permanent vacancies, and was totally in­
effectual in rendering whole the former discriminatees. The 
1972 memorandum permits promotion eligibility to rest 
upon fulfillment of residency requirements without regard 
to permanent assignments to jobs. However, to bid on a 
vacancy, an employee must have fulfilled both the resi­
dency period for the job immediately subordinate to the 
vacancy, as well as the period for the vacancy itself. The 
latter requirement, while properly left to the district court 
for determination, should be very closely scrutinized. An­
other factor that will retard affected class movement and 
is a result of I.P.’s administration of the 1972 Jackson 
Memorandum is its present practice of further restrict­
ing competition for those vacancies to those either per­
manently assigned, or then temporarily assigned, to an 
immediately subordinate job. Employees may have satis­
fied a legitimate residency period in the recent past and 
thus he qualified for promotion though not be temporarily 
assigned to the preceding job when the permanent vacancy 
occurs in the line.

For these reasons we conclude that the present transfer, 
promotion, and seniority practices in the production de­

Opinion of Court of Appeals



65a

partment at Pine Bluff continue to perpetuate the effects 
of past discrimination. No significant movement to right­
ful places has been realized by former discriminatees, al­
though some movement has been accomplished.48 Thus 
some relief is warranted, and the district court was in 
error in denying such relief. We applaud, however, the 
district court’s management of these complex issues as 
well as I.P.’s attempt to advance its discriminatees into 
and up other lines of progression in the production de­
partments. We recognize that although I.P. was initially 
culpable, it was not individually so. The respective, then- 
segregated, unions must share liability for the discrim­
inatory past conduct. Indeed, even since 1968, affected 
class movement has been partially frustrated by positions 
adopted by the unions, although at least UPIU has re­
cently expressed a willingness to effectuate whatever rem­
edies the court should impose.43 44

On remand the court should insure full wage protection 
to affected class members who exercise transfer oppor­
tunities b y : extending red circle ceilings to average hourly 
rates, inclusive of temporary set-ups, over a reasonable

Opinion of Court of Appeals

43 Judged in light of the rightful place doctrine I.P. adopts 
with respect to returning military employees, affected class pro­
motion is anything but salutory. Under the former policy, a re­
turning military incumbent employee is entitled to any promo­
tion which he would have received had he been there as deter­
mined by his place on the seniority list. He would, however, re­
turn to the job he left, but he would then move up through the 
intermediate jobs as fast as he could he trained without regard to 
intermediate vacancies.

44 In the second week of trial, United Paperworkers International 
Union, Locals 731, 735, 833 and 898, stipulated with plaintiffs as 
to its discriminatory past and willingness to seek affirmative re­
dress for discriminatees and thereafter took a nonadverse position 
as party defendant. International Brotherhood of Electrical Work­
ers, Local 2033, however, remained an active party defendant.



Opinion of Court of Appeals

period of time immediately preceding the transfer, or to 
permanent wage rates of the employee, whichever is higher, 
including therein a factor for future adjustments for cost- 
of-living or contract negotiations wage increases and by 
extending coverage to every member of the affected class. 
Such provisions should be accompanied with an order for 
full publication, dissemination, and explanation of the terms 
o f the court’s decree. Additionally, red circle protections 
■should extend to affected class members who transfer to 
maintenance craft positions. The district court should re­
quire that I.P. demonstrate which jobs provide essential 
training for progression and are supported by business 
necessity and which jobs, if any, could be skipped upon 
entry and promotion. The court should also review the 
lengths of the residency requirements to determine whether 
they are the least restrictive means to accomplish their 
purpose and consider whether functionally equivalent ex­
perience in former lines o f progression may satisfy those 
requirements. Finally, the court should review I.P.’s ad­
ministration of its policy of advancement of affected class 
members to their rightful place in light of I.P.’s military 
rightful place policy, with a view toward rendering whole 
these former discriminatees as expeditiously as possible 
and to the same extent that it now accords a rightful place 
to returning service men. Provisions of this relief should 
be made available to all affected class members regardless 
of whether they have declined transfer offers in the past. 
If these conditions are fully implemented, the need for a 
back pay award will be obviated.

V. A ttorneys Fees.

The district court here awarded plaintiffs attorneys fees 
in the amount of $15,000 for their presentation of this Title



Opinion of Court of Appeals

V II case. The award of attorneys fees under these cir­
cumstances is a matter committed to the discretion o f the 
district court. This matter is remanded, however, with 
directions that the district court allocate the assessment of 
the attorneys fees among the three defendants weighing 
culpability, size, and ability to pay. This remand is also 
without prejudice to whatever further award of attorneys 
fees the district court determines to be in the interest of 
justice as a result of further proceedings.

We award the plaintiffs $3,000 attorneys fees on this 
appeal and assess them as follows: $2,000 to be paid by
I.P., and $500 each by the two union defendants.

For the reasons hereinbefore expressed, the order of the 
district court is reversed in part, vacated in part and re­
manded for further proceedings consistent with the views 
expressed herein.

A true copy.

Attest:

Clerk, TT.S. Court or A ppeals, E ighth Circuit.



68a

UNITED STATES COURT OF APPEALS

F oe the E ighth Circuit

Nos. 74-1086, 74-1087 
74-1101, 74-1115

Order Modifying Opinion and Denying Respondent
International Paper Company’s Petition

for  Rehearing

Henry Lee R ogers, et al.,

Appellamts-Cross-Appellees,

v.

International Paper Company, et al.,

Appellees-Cross- Appellants.

Appeal from the United States District Court 
for the Eastern District of Arkansas.

Filed: February 14, 1975.

Before:
H eaney, Bright and Ross,

Circuit Judges.

Order

Upon consideration of the Petition for Rehearing tiled 
by International Paper Company (IPC), the Court has 
determined that certain minor modifications should be made 
in its opinion.



Order Modifying Opinion and Denying Respondent
International Paper Company’s Petition

for Rehearing

IPC claims that portions of the Court’s opinion incor­
rectly state the facts because of a misinterpretation of 
remarks of counsel for IPC at oral argument. The portions 
o f the opinion claimed to be in error are as follows:

1. p. 29. The necessity to serve in every job in a 
line of progression is still an announced policy of I.P. 
As proffered at oral argument, an employee must still 
meet a residency requirement on the job for which he is 
bidding as well as that of the job immediately below. 
The cumulative effect of this policy is to nearly elim­
inate the possibility of job skipping or advanced level 
entry transfer opportunities.

2. pp. 30-31. However, to bid on a vacancy, an em­
ployee must have fulfilled both the residency period for 
the job immediately subordinate to the vacancy, as well 
as the period for the vacancy itself. The latter require­
ment, while properly left to the district court for deter­
mination, should be very closely scrutinized.

3. p. 31. Another factor that will retard affected 
class movement and is a result of I.P.’s administration 
of the 1972 Jackson Memorandum is its present prac­
tice of further restricting competition for those vacan­
cies to those either permanently assigned, or then 
temporarily assigned, to an immediately subordinate 
job.

After a. careful review of the transcript of oral argument 
the Court has concluded that the suggestions are well taken 
and that the opinion should be and is hereby modified by 
inserting the following material in place of the material



70a

set forth in paragraphs 1 and 2, and deleting all of the
material in paragraph 3.

1. p. 29. The necessity to serve in every job in a 
line of progression, (with a few exceptions), is still 
an announced policy of I.P. As proffered at oral argu­
ment, in most cases an employee must still meet a 
residency requirement on the job immediately below 
the job for which he is bidding. The cumulative 
effect of this policy is to severely restrict the possi­
bility of job skipping or advanced level entry transfer 
opportunities.

2. pp. 30-31. However, to bid on a vacancy, an em­
ployee must have fulfilled the residency period for 
the job immediately subordinate to the vacancy. This 
requirement, while properly left to the district court 
for determination, should be very closely scrutinized.

In addition, the final sentence of footnote 35 is deleted.

The petition for rehearing is denied.

Order Modifying Opinion and Denying Respondent
International Paper Company’s Petition

for Rehearing

A. true copy.

Attest:

Clerk, IT. S. Court op A ppeals, E ighth Circuit.



71a

Order Denying Petitioner’s Petition for Rehearing

UNITED STATES COURT OF APPEALS

F or the E ighth Circuit

Nos. 74-1086, 74-1087 
74-1101, 74-1115

September Term, 1974

Henry Lee R ogers, e t a l.,
Appellants-Appellees,

v.

International P aper Company, e t a l.,
Appellees-Cross- Appellants.

Appeals from the United States District Court 
for the Eastern District of Arkansas.

The Court having considered petition for rehearing en 
banc filed by counsel for appellants-appellees, Henry Lee 
Rogers, et al., and being fully advised in the premises, it is 
ordered that the petition for rehearing en banc be, and it 
is hereby, denied.

Considering the petition for rehearing en banc as a peti­
tion for rehearing it is ordered that the petition for rehear­
ing also be, and it is hereby, denied.

February 18, 1975



M EIIEN PRESS I N C  —  N. ¥. C. 219