Dent v. St. Louis-San Francisco Railway Company Record on Appeal

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    IN THE

Unitefc ^tatea (tart of Appeals
FOB THE FIFTH CIRCUIT

No. 24810
JAMES C. DENT and 

UNITED STATES EQUAL 
EMPLOYMENT OPPORTUNITY 

COMMISSION,
Appellants, 

vs.
ST. LOUIS-SAN FRANCISCO 
RAILWAY COMPANY, et al,

Appellees.

No. 24811
ALVIN C. MULDROW, et al,

Appellants,
vs.

No. 24812
WORTHY PEARSON, et al,

Appellants,
vs.

ALABAMA BY-PRODUCTS 
CORPORATION, et al,

Appellees.

No. 24813
RUSH PETTWAY, et al, 

Individually and on behalf of others 
similarly situated, and UNITED 

STATES EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION,

Appellants,
vs.

H. K. PORTER COMPANY, INC., 
et al,

Appellees.

AMERICAN CAST IRON PIPE 
COMPANY,

Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF ALABAMA

RECORD ON APPEAL

OSCAR W. ADAMS
1630 Fourth Avenue, North 
Birmingham, Alabama 35203

JACK GREENBERG 
LEROY CLARK 
MICHAEL MELTSNER 
ROBERT BELTON 
GABRIELLE A. KIRK 

10 Columbus Circle 
New York, New York 10019



Papers on Appeal in C.A. No. 66-65

Complaint .............................................   1

Motion to Dismiss by Brotherhood, etc............ ............ 10

Motion to Dismiss by St. Louis-San Francisco Rail­
way Co....... ....................................................................... 12

Amended Motion to Dismiss by St. Louis-San Fran­
cisco Railway Co. _____ ____-....................... — ........  15

Pleading in Intervention ......................................—   18

Motion by St. Louis, etc. in Opposition to Motion to 
Intervene, etc............................................................ -  22

Order ......... ...... ..... ............................................-...... -........ 24

Amended Motion to Dismiss by St. Louis, et al............. 25

Amended Motion to Dismiss by Brotherhood, etc. ....... 27

Decree ... ...............................................................................  28

Opinion ................................. ...........-................-....... .......  29

Order on Motion to Dismiss ............................................. 42

Notice of Appeal by Plaintiff ........................- ............... 43

Plaintiff’s Designation of Record ------- --- -.........-........  45

Notice of Appeal by Intervenor ..................................— 46

Clerk’s Certificate ...................................................... -....  48

I N D E X
PAGE



XI

Papers on Appeal in C.A. No. 66-206

Complaint ...........................................................................  49

Motion to Dismiss by H. K. Porter Company, Inc......... 56

Exhibit A— (Not Printed) Agreement ..................  66

Exhibit B—Complaint ............... ................... .........  67

Exhibit C—Complaint ........................................  68
Exhibit D—Charge of Discrimination ..................  69

Exhibit E—Charge of Discrimination ..................  72

Exhibit F Amendment to Charge ........................  75
Exhibit Gr—Charge of Discrimination ..................  76

Order .....    79

Amended Complaint ...........      80

Order Enlarging Time for Motion, etc............................ 89

Motion to Dismiss by United States Steelworkers, etc. 90

Motion to Dismiss by H. K. Porter Company, Inc......... 92

Motion for Order Requiring Intervention, etc............... 98

Plaintiffs’ Motion in Opposition to Defendant Porter’s 
Motion to Dismiss ......................... ........ ................ .....  100

Plaintiffs’ Motion in Opposition to Defendants’ Mo­
tion to Dismiss ........................................... ........ .........  105

PAGE

Order 108



Plaintiffs’ Notice of Appeal ....    109

Designation of Record ....................................................  I l l

Clerk’s Certificate ............................................................ 112

I ll

PAGE

Papers on Appeal in C.A. No. 66-320

Complaint .................................. -..............---------------------  113

Motion to Dismiss by Alabama By-Prodncts Corpo­
ration ............................................................................... 120

Exhibit A— (Not Printed) Agreement ..............  125
Exhibit B—Memorandum of Understanding, etc. .. 126

Order ..........................................................................    128

Amended Complaint ........................................................  129

Motion to Dismiss by Alabama By-Products Corpo­
ration  .................................. .................................... —. 137

Exhibit A—Arbitrator’s Opinion and A w ard....... 145

Motion to Dismiss by International Union, etc.............  151

Amended Motion to Dismiss by Alabama By-Products 
Corporation ........      153

Plaintiffs’ Motion for Order Requiring Intervention, 
etc............................      154

Plaintiffs’ Motion in Opposition to Motion to Dismiss, 
etc..............................................................................    156



Order ................................................................................... 158

Opinion ............................................................................... 159

Plaintiffs’ Notice of A ppeal............................................. 159

Designation of Record.............................................    161

Clerk’s Certificate ............................................................ 162

iv
PAGE

Papers on Appeal in C.A. No. 66-315

Complaint ...........................................................................  163

Defendant’s Motion to Dismiss .....................................  170

Exhibit A—Charge of Discrimination ............... . 176

Exhibit B—Affirmation Form ................. ...... .......  179

Motion for Leave to Intervene ..............................   180

Pleading in Intervention ................................................  182

Order ............................................................    186

Opinion ...............................................................................  187

Plaintiffs’ Notice of Appeal ........................................... 187

Plaintiffs’ Designation of Record ......... ..........................  189

Intervenor’s Notice of Appeal .......      190

Clerk’s Certificate 191



VOLUME I

I n the

MmUb Btntzb iiatrirt CEmtrt
F ob the Northern District of A labama 

Southern Division 

Civil A ction No. CA 66-65

J ames C. Dent,

-v.-
Plaintiff,

S t . L ouis-San F rancisco R ailway Company, a Missouri 
Corporation; B rotherhood of R ailway Carmen of 
A merica, an unincorporated association; Clarence 
Mann , General Chairman of Brotherhood of Railway 

Carmen of America; Clyde V inyard, Chairman of 
Local 60 of Brotherhood of Railway Carmen of 
America,

Defendants.

Complaint

(Filed February 7, 1966)

J urisdiction

1. Jurisdiction of this Court is invoked pursuant to 
28 U.S.C. §1343(4). This is a suit in equity authorized 
and instituted pursuant to Title VII of the Act of Con­
gress known as the “Civil Rights Act of 1964,” 42 U.S.C. 
§§ 2000e et seq., and pursuant to 42 U.S.C. § 1983. The 
jurisdiction of this Court is invoked to secure protection



2

of and to redress deprivation of rights secured by said 
42 U.S.C. §§ 2000e et seq., providing for injunctive and 
other relief against racial discrimination in employment, 
and by 42 U.S.C. § 1981, providing for the equal rights 
of citizens and all persons within the jurisdiction of the 
United States.

Complaint

R elief

2. This is a suit for a preliminary and permanent in­
junction restraining defendants from continuing to limit, 
segregate, classify or otherwise discriminate against plain­
tiff and his class in ways which deprive or tend to deprive 
them of employment opportunities, limit such employment 
opportunities or otherwise adversely affect their status 
as employees because of their race or color.

Class A ction

3. Plaintiff brings this action of the Federal Rules of 
Civil Procedure under Rule 23(a)(3) on his own behalf 
and on behalf of other Negroes who are employed by 
defendant St. Louis-San Francisco Railway in the East 
Thomas Yards in Birmingham, Alabama, and who are 
members of Local 750 of defendant Brotherhood of Rail­
way Carmen of America. There are common questions 
of law and fact affecting the rights of such other Negroes 
who are and have been limited, classified, segregated or 
otherwise discriminated against in ways which deprive 
and tend to deprive them of employment opportunities, 
limit such employment opportunities, or otherwise ad­
versely affect their status as employees because of their 
race or color. These other Negroes are so numerous as 
to make it impractical to bring them all before this Court.



3

A common relief is sought. The interests of this class are 
adequately represented by plaintiff.

F oe, a Cause of A ction

4. Plaintiff James C. Dent is a Negro citizen of the 
United States and of the State of Alabama residing in 
the City of Birmingham, Alabama.

Plaintiff is employed by defendant St. Louis-San Fran­
cisco Railway Company and has been so employed for 
more than twenty-one (21) years. Plaintiff is a member 
of Local 750, commonly known as Parker Lodge #750, 
a chartered, dues-paying, racially segregated local of de­
fendant Brotherhood of Railway Carmen of America hav­
ing a solely Negro membership.

Plaintiff in his employment with the defendant Railway 
Company has been classified as carmen helper. This classi­
fication means generally that such employee repairs and 
maintains passenger and freight railroad cars. The classi­
fication of “first class carmen” , or “carmen” , is superior 
to that of the other carman classifications in both com­
pensation and responsibility. Plaintiff is qualified by ex­
perience to do the work of a first class carman, a classi­
fication to which he has not been promoted.

5. Defendant St. Louis-San Francisco Railway Com­
pany is a corporation incorporated under the laws of the 
State of Missouri, doing business in the State of Alabama 
and in the city of Birmingham and having a place of 
business of 30 South 18th Street in said city. Defendant 
operates and maintains the East Thomas Yards for ser­
vicing passenger and freight cars in said City of Birming­
ham, Alabama. Defendant is an employer engaged in the 
railroad industry, which industry affects interstate com­

Complaint



4

merce. Defendant employs more than one hundred em­
ployees on a full-time basis.

Defendant Brotherhood of Railway Carmen of America 
is an unincorporated association with its national office 
located in Kansas City, State of Missouri. Defendant does 
business and has members residing in the State of Ala­
bama and in the City of Birmingham, Alabama. Defen­
dant is a labor organization engaged in the railroad in­
dustry, which industry affects interstate commerce. De­
fendant has more than one hundred (100) members and 
is the certified representative of carmen, carmen helpers 
and upgraded carmen under the provisions of the Railway 
Labor Act, as amended.

Defendant Clarence Mann is the General Chairman of 
the defendant Brotherhood of Railway Carmen of America.

Defendant Clyde Vineyard is Chairman of Local 60, 
commonly known as Iron City Lodge #60, a chartered 
dues-paying racially segregated local of Railway Carmen 
of America, having a solely white membership.

6. Plaintiff by reason of his knowledge and experience 
has been, is, and continues to be qualified for promotion 
to the position or classification of first class carman. 
During the period of plaintiff’s employment white carmen 
helpers with less knowledge, experience and seniority than 
plaintiff were permitted to advance to the position of 
first class carman.

7. Prior to 1962 persons of both the Negro and white 
race have been employed as carmen helpers. The method 
of advancement from carman helper to first class carman 
was by accumulating a certain amount of experience as 
first class carman by filling in for vacancies created in

Complaint



5

the first class positions (hereinafter referred to as “up­
grade” positions). During the period of plaintiff’s em­
ployment upgrade positions were filled in a preferential, 
discretionary and discriminatory manner so as to preclude 
and prevent Negro carmen helpers from accumulating 
sufficient “upgrade” experience so as to qualify for first 
class status. The method of upgrading conducted by 
defendant employer individually or in concert, collusion 
and acquiescence of defendant labor union was and is 
with the design, purpose and intent of excluding Negro 
carmen helpers from first class carmen positions because 
of their color or race. Consequently advancement of Negro 
carmen helpers to positions with first class status has 
been only on a token basis, if at all.

8. Notwithstanding the pattern, practice, usage and 
custom of denying Negro carmen helpers their right to 
accumulate upgrade experience plaintiff and others simi­
larly situated have, through long years of training and 
experience, acquired the needed qualifications to do first 
class carmen work. In 1962, to further prevent and avoid 
the inevitable upgrading of qualified Negro carmen helpers, 
defendant employer individually or in collusion with and 
acquiescence of defendant labor union eliminated the job 
classification of carmen helper. Consequently plaintiff and 
others similarly situated, that is Negro carmen helpers 
who had not accumulated sufficient upgrade time to be 
promoted to first class carmen, were laid off or furloughed. 
The intent, purpose, and design of eliminating the helper 
classification was to further prevent and preclude quali­
fied high seniority Negro helpers from advancing to first 
class positions because of their color or race.

Complaint



6

9. Since the elimination of carmen helper positions 
defendant employer individually or in collusion with de­
fendant labor union has initiated an apprenticeship pro­
gram ostensibly to train apprentices to do first class work 
but which in fact has discriminated against Negroes be­
cause of their race or color in admission to and employ­
ment in such program. Newly hired apprentices with far 
less seniority and experience than plaintiff and the class 
he represents are performing work which would otherwise 
be performed by the furloughed carmen helpers.

10. The method of hiring apprentices is designed to 
perpetuate the exclusively white first class carman classi­
fication. From its inception to the present time the ap­
prenticeship program has been conducted on a “white 
only” basis.

As presently constituted only employees who have served 
apprenticeship time can advance to the position of first 
class carmen. The method of hiring apprentices has as 
its intent and design the exclusion of members of the 
Negro race because of their race or color and is calculated 
to accomplish that purpose. Thus the present apprentice­
ship program is just one more of a series of acts or ploys 
intended to frustrate, prevent, exclude and deny plaintiff 
and persons similarly situated from advancing to the 
position of first class carman because of their race or 
color.

11. Defendant St. Louis-San Francisco Railway Com­
pany maintains segregated locker rooms, rest rooms and 
lunch room facilities at the East Thomas Yards, by means 
of cinder blocks which separate the white employees from 
the Negro employees. Such segregation of facilities by

Complaint



7

race adversely affects the status of an plaintiff and other 
Negroes as employees. The absence of signs denoting the 
presence of segregated facilities has not precluded the 
continuation of the custom and practice of separate white 
and Negro facilities.

12. Defendant Brotherhood of Railway Carmen of 
America and defendant General Chairman of the Brother­
hood, Clarence Mann, and defendant Local Chairman, 
Clyde Vineyard, have operated dual locals numbers 60 
and 750 which are based on race. Such segregation of 
Union membership deprives or tends to deprive plaintiff 
and other Negro members of employment opportunities.

13. Neither the State of Alabama nor the City of 
Birmingham has a law prohibiting the unlawful practices 
alleged herein. On September 10, 1965 plaintiff filed a 
complaint with the Equal Employment Opportunity Com­
mission alleging denial by defendant St. Louis-San Fran­
cisco Railway Company and defendant Brotherhood of 
Railway Carmen of America of plaintiff’s rights under 
42 TJ.S.C. §§ 2000e et seq., commonly known as Title VII 
of the “ Civil Rights Act of 1964” . On December 8, 1965 
said Commission found reasonable cause to believe that 
these defendants had violated Title VII of such Act. 
Subsequently, the Commission notified plaintiff that de­
fendants’ compliance with Title VII had not been accom­
plished within the maximum period allowed to the Com­
mission by 42 U.S.C. §§ 2000e et seq., and that plaintiff 
is entitled to maintain a civil action for relief in a District 
Court of the United States.

14. Plaintiff has no plain, adequate or complete remedy 
at law to redress the wrongs alleged, and this suit for a

Complaint



8

preliminary and permanent injunction is Ms only means 
of securing adequate relief. Because of the nature of Ms 
claim and the failure of defendant Brotherhood of Bailway 
Carmen of America to institute any grievance on his 
behalf, the remedies, if any, provided by grievance ma­
chinery in the Collective Bargaining Agreement, the griev­
ance machinery in the constitution of the Brotherhood 
of Railway Carmen of America, and the procedure before 
the National Railroad Adjustment Board are wholly in­
adequate. Plaintiff and the class he represents are now 
suffering and will continue to suffer irreparable injury 
from defendants’ unlawful practices as set forth herein.

W herefore, plaintiff respectfully prays this Court to 
advance this case on the docket, order a speedy hearing 
at the earliest practicable date, cause this case to be in 
every way expedited, and upon such hearing to:

Grant plaintiff and the class he represents a prelim­
inary and permanent injunction enjoining the defendants 
from continuing the practices which deprive or tend to 
deprive the plaintiff and others similarly situated from 
equal employment opportunities secured by 42 U.S.C. 
§§ 2000e et seq. and 42 U.S.C. § 1981 without discrimina­
tion on the basis of race or color, including but not limited 
to the maintenance of any collusive or non-collusive prac­
tice of refusing to promote or to recommend for promo­
tion, Negro carmen helpers to the grade of carmen, or of 
avoiding to call out, or recommending not to call out, 
Negro carmen helpers to work as carmen, in the City of 
Birmingham, Alabama, and in the State of Alabama;

Grant plaintiff back pay from the date of defendant 
St. Louis-San Francisco Railway Company wrongfully re­
fused to promote plaintiff, to the present date;

Complaint



9

Enjoin defendant St. Louis-San Francisco Railway Com­
pany from maintaining segregated locker rooms, rest rooms 
and lunch room facilities;

Enjoin defendant Brotherhood of Railway Carmen of 
America, its General Chairman Clarence Mann, and the 
Chairman of Local 60, Clyde Vinyard, from maintaining 
segregated locals;

Allow plaintiff his costs herein, including reasonable 
attorney’s fees and such other additional relief as may 
appear to the Court to be equitable and just.

Respectfully submitted,

/ s /  Oscab W . A dams, Jb.
Oscab W . A dams, Jb.

1630 Fourth Avenue, North 
Birmingham, Alabama 35203

J ack Gbeenbebg
L eboy Clabk

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiff

Complaint



10

Motion to Dismiss by Brotherhood, etc.

(Filed March 23, 1966)

Come now the defendants Brotherhood of Railway Car­
men of America, an unincorporated association, and 
Local 60 of Brotherhood of Railway Carmen of America, 
an unincorporated association, and separately and severally 
move to dismiss the complaint, and as grounds therefor 
show:

1. The plaintiff fails to state a claim upon which relief 
can be granted against defendants or either of them.

2. The plaintiff’s complaint complains of matters over 
which Congress has delegated exclusive jurisdiction to the 
National Railroad Adjustment Board.

3. The plaintiff’s complaint reveals on its face that 
the plaintiff has failed to exhaust available administrative 
and/or contractual remedies.

4. The complaint fails properly to allege Federal juris­
diction. It fails to allege a violation of the Civil Rights 
Act of 1964 within the operative period of that Act.

5. There is a lack of diversity of citizenship between 
all the parties in that defendant Brotherhood of Railway 
Carmen of America and Local 60, Brotherhood of Rail­
way Carmen of America, are unincorporated associations 
and each has individual members resident in the State 
of Alabama, the residence of plaintiff.



11

Motion to Dismiss by Brotherhood, etc.

6. The plaintiff failed to institute his action within 
the time allowed by law. 42 TJ.S.C, § 2000e-5(e).

Mulholland, H ickey & Lyman

741 National Bank Building 
Toledo, Ohio

By / s /  Mulholland, H ickey & L yman

Cooper, M itch, J ohnston & 
Crawford

1025 Bank for Savings Bldg.
Birmingham, Alabama

By /s /  George C. L ongshore



12

Motion of St. Louis-San Francisco Railway Company
To Dismiss

(Filed April 5, 1966)

Comes now St. Lonis-San Francisco Railway Company, 
one of the defendants in the above styled cause, and 
moves the Court to dismiss the complaint on the follow­
ing grounds, separately and severally:

1. The complaint fails to state a claim against this 
defendant upon which relief can be granted.

2. The complaint is barred by the statute of limitations 
applicable thereto in that the complaint fails to allege 
that this action was instituted within the thirty day period 
prescribed by Section 706(e) of Title VII of the Civil 
Rights Act for the institution of actions thereunder fol­
lowing notification from the Equal Employment Oppor­
tunity Commission.

3. The action is barred by the statute of limitations 
applicable thereto in that the plaintiff was notified by 
the Equal Employment Opportunity Commission by letter 
of January 5, 1966 that he was entitled to maintain a 
civil action under Title VII of the Civil Rights Act and 
in that this action, having been instituted by the filing 
of the complaint more than thirty days thereafter on 
February 7, 1966, was not brought and commenced within 
the period of thirty days prescribed by Section 706(e) 
of Title VII of the Civil Rights Act for the institution of 
actions thereunder following notification from the Equal 
Employment Opportunity Commission.

4. The complaint complains of and seeks to bring into 
issue and litigation matters which are the subject of a



13

Motion of St. Louis-San Francisco Railway Company
to Dismiss

prior action pending in which this same plaintiff is a 
party plaintiff and this defendant is a party defendant 
and which is presently pending in this same Court under 
the style of James G. Glover, et al. v. St. Louis-San Fran­
cisco Railway Company, et al., Case No. 65-477.

5. The complaint complains of and seeks to bring into 
issue and litigation matters which are within the exclu­
sive jurisdiction of the National Railroad Adjustment 
Board.

6. The complaint shows on its face that the plaintiff 
has failed to exhaust the administrative remedies avail­
able to him through the procedures of the National Rail­
road Adjustment Board.

7. The complaint shows on its face that the plaintiff 
has not requested co-defendant Brotherhood of Railway 
Carmen of America to pursue on his behalf the claim 
asserted in the complaint through any grievance proce­
dures embodied in agreement between the defendants.

8. The complaint fails to allege that the plaintiff has 
exhausted the contractual grievance procedure remedies 
available to him.

9. The institution of this action as a class action is 
contrary to and prohibited by the provision of Section 
706(e) of Title VII of the Civil Rights Act which limits 
actions thereunder to “the person claiming to be ag­
grieved.”

10. The institution of this action as a class action is 
contrary to and prohibited by the fact that Title VII of



14

Motion of St. Louis-San Francisco Railway Company
to Dismiss

the Civil Rights Act provides for suits thereunder only 
by persons who have first filed a complaint with the Equal 
Employment Opportunity Commission and the complaint 
shows on its face that only the plaintiff, and not the 
class claimed to be represented by him, has filed such a 
complaint with such Commission.

11. The provisions of Rule 23(a) of the Federal Rules 
of Civil Procedure are not applicable to and do not au­
thorize the institution and maintenance of this action as 
a class action in that the requirement of such Rule of a 
common question of law or fact is not present.

12. There is an absence of indispensable parties defen­
dants in that the complaint seeks a result which would 
adversely affect the interest of employees of this defen­
dant who are not named as parties to the action.

/ s /  Drayton T. S cott 
Drayton T. Scott

/ s / W illiam F. Gardner 
W illiam F. Gardner

/ s /  P aul R. Moody 
P aul R. Moody

Attorneys for the St. Louis-San 
Francisco Railway Company

Cabaniss, J ohnston, Gardner & Clark 
902 First National Building 
Birmingham, Alabama

Of Counsel



15

(Filed April 13, 1966)

Comes now St. Louis-San Francisco Railway Company, 
one of the defendants in the above styled cause, and 
amends its motion to dismiss heretofore filed by adding 
thereto the following additional separate and several 
grounds:

13. The complaint is barred by the statute of limita­
tions applicable thereto in that the complaint shows on 
its face that the action was not instituted within the period 
of time required by Section 706(e) of Title VII of the 
Civil Rights Act for the institution of civil actions there­
under.

The provisions of Section 706(e) of Title VII of the 
Civil Rights Act provide a maximum period of time of 
sixty days after a charge is filed with the Equal Employ­
ment Opportunity Commission for the Commission to at­
tempt to secure voluntary compliance and, upon the ex­
piration of such sixty day period, to notify the person 
filing the charge that he may then institute a civil action. 
The provisions of Section 706(e) of Title VII of the Civil 
Rights Act further provide and require that the civil 
action must be instituted within thirty days following 
such notification from the Commission upon the expiration 
of the sixty day period.

The complaint in this action shows on its face and 
alleges that the charge which the plaintiff filed with the 
Commission concerning the subject matter of the complaint 
was filed on the date of September 10, 1965. The sixty

Amended Motion to Dismiss by St. Louis-San Francisco
Railway Co.



16

day period provided by Section 706(e) accordingly ex­
pired on or before November 10, 1965, and this civil 
action was accordingly required by Section 706(e) to be 
instituted on or before December 10, 1965. Therefore, 
this action, not having been instituted by the filing of the 
complaint until February 7, 1966, was not instituted within 
the statute of limitations of thirty days as required by 
Section 706(e) and is barred.

14. The complaint is barred for the reason that while 
the provisions of Section 706(a) and 706(e) of Title VII 
of the Civil Rights Act provide for and require “methods 
of conference, conciliation, and persuasion” by the Com­
mission with respect to the subject matter of a charge 
filed with the Commission and such methods and proce­
dure are a prerequisite and condition to the institution 
of a civil action thereunder, there were no such methods 
or procedures followed within the period of time pro­
vided therefor with respect to the subject matter of the 
charge filed by the plaintiff or of the subject matter of 
the complaint in this action.

15. The allegations of Paragraph 11 of the complaint 
were not made the subject of any charge filed by the 
plaintiff with the Equal Employment Opportunity Com­
mission as is required by Sections 706(a) and 706(e) of 
Title VII of the Civil Rights Act as a prerequisite to the 
institution of a civil action thereunder.

16. The Court is deprived of jurisdiction and pre­
cluded by the provisions of the Norris-LaGuardia Act,

Amendedl Motion to Dismiss by St. Louis-San Francisco
Bailway Co.



17

29 TJ.S.C. §§101-115, from granting the injunctive relief 
sought by the complaint.

/ s /  Drayton T. S cott 
Drayton T. Scott

/ s /  W illiam F. Gardner 
W illiam F. Gardner

/ s /  P aul E. Moody 
P aul E. Moody

Attorneys for the St. Louis-San 
Francisco Railway Company

Cabaniss, J ohnston, Gardner & Clark 
901 First National Building 
Birmingham, Alabama

Of Counsel

Amended, Motion to Dismiss by St. Louis-San Francisco
Railway Co.



18

(Filed May 5, 1966)

The United States Equal Employment Opportunity Com­
mission (hereinafter referred to as EEOC), as intervenor 
herein, by the Attorney General of the United States, 
alleges:

1. This is a pleading in intervention filed by the EEOC 
pursuant to Rule 24(c) of the Federal Rules of Civil 
Procedure. The EEOC is an agency of the United States 
charged with administering Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. §§ 2000e et seq.

2. On February 7, 1966, the plaintiff filed this class 
action seeking injunctive relief to restrain defendants from 
continuing practices which deprive the plaintiff and others 
similarly situated of equal employment opportunities, as 
secured by 42 U.S.C. §§ 1981, 1983, and 2000e et seq., 
without discrimination on the basis of race or color.

3. On March 23, 1966, defendants Brotherhood of Rail­
way Carmen of America and Local 60 of Brotherhood 
of Railway Carmen of America filed a motion to dismiss, 
the sixth ground of which states that plaintiff failed to 
institute his action within the time allowed by law under 
42 U.S.C. § 2000e-5(e).

4. On April 6, 1966, defendant St. Louis-San Francisco 
Railway Company filed a motion to dismiss, the second 
and third grounds of which state that plaintiff is barred 
by the statute of limitations prescribed in 42 U.S.C. 
§ 2000e-5(e).

5. On April 13, 1966, defendant St. Louis-San Francisco 
Railway Company filed an amended motion to dismiss, 
the thirteenth ground of which states that plaintiff is

Pleading in Intervention



19

barred by the statute of limitations prescribed in 42 U.S.C. 
§ 2000e-5(e), not having filed his complaint within 30 days 
after the expiration of the 60-day period provided for 
the Commission to secure compliance, and the fourteenth 
ground of which states that the action is barred because 
the EEOC failed to complete the “methods of conference, 
conciliation, and persuasion” within the time prescribed 
by 42 TJ.S.C. § 2000e.

6. The facts material to the issues raised by these 
contentions are as follows:

a. On September 10, 1965, James C. Dent filed a sworn 
statement with the EEOC, charging the St. Louis-San 
Francisco Railway Company and the Brotherhood of Rail­
way Carmen of America with violations of Title VII of 
the Civil Rights Act of 1964;

b. On October 8, 1965, copies of Mr. Dent’s charges 
were served on the Company and the Brotherhood;

c. On December 8, 1965, Commissioner Holcomb of the 
EEOC issued a decision finding reasonable cause to believe 
the Company and the defendant unions were in violation 
of Title VII of the Civil Rights Act of 1964;

d. By letter dated January 5, 1966, the EEOC, by 
Alfred W. Blumrosen, Chief of Conciliation, advised Mr. 
Dent that EEOC had engaged in methods of conciliation 
but had been unable to conciliate the case and notified 
him of his right to bring a judicial action within the time 
prescribed by the Act.

7. Pursuant to section 716(b) of Public Law 88-352 
(note following 42 TJ.S.C. 2000e), the EEOC began to 
function on July 2, 1965. Between that date and Decern-

Pleading in Intervention



20

ber 31, 1965, the EEOC received a large number of com­
plaints which made excessive demands upon its small staff. 
During that period, EEOC’s staff, which did not exceed 
25 part-time investigators and two conciliators, processed 
3,263 charges of which 1,384 were recommended for in­
vestigation.

8. The EEOC follows the practice of utilizing the full 
60 days provided by 42 U.S.C. 2000e-5(e) to investigate 
and to attempt to eliminate by conciliation all meritorious 
charges of unlawful employment practices.

9. Because of the EEOC’s extremely heavy workload 
and small staff and its practice of utilizing the full 60 days 
to investigate and to attempt to eliminate by conciliation 
all meritorious charges of unlawful employment practices, 
it is not possible for the EEOC to notify each aggrieved 
person within 60 days after any such person has filed a 
charge of unlawful employment practice. Nor is it pos­
sible in every case for the EEOC to complete its investi­
gation and informal methods of conference, conciliation, 
and persuasion within that 60-day period.

10. The public interest would be seriously prejudiced 
if the EEOC terminated all investigations of and efforts 
to conciliate unfair employment practices within 60 days 
of the receipt of charges; and if aggrieved parties were 
precluded from initiating civil actions under 42 IJ.S.C. 
2000e-5(e) unless the EEOC completed its investigation 
and conciliation and gave notice of its disposition of 
charges within said period.

W h e b e f o e e , the United States Equal Employment Op­
portunity Commission prays that this Court issue an 
order denying the motions to dismiss filed by the defen­
dants insofar as they contend that the plaintiff failed to

Pleading in Intervention



21

institute this action within the time period afforded by 
42 U.S.C. §2000e-5(e) and insofar as said motions are 
based upon the failure of the EEOC to initiate or com­
plete informal methods of conference, conciliation, and 
persuasion within 60 days after the filing by plaintiff of 
a charge under 42 U.S.C. § 2000e-5(e).

It is further prayed that this Court grant such other 
relief as the facts and law may warrant.

/ s /  Nicholas deB. K atzenbach 
Nicholas deB. K atzenbach 
Attorney General

/ s /  J ohn D oae 
J ohn Doar

Assistant Attorney General

/ s /  Macon L. W eaver 
Macon L. W eaver 
United States Attorney

/ s /  S t . J ohn B arrett 
S t . J ohn B arrett 
Attorney
Department of Justice 
Washington, D. C. 20530

/ s /  Charles T. D uncan 
Charles T. D uncan 
General Counsel 
Equal Employment 
Opportunity Commission

Of Counsel

Pleading in Intervention



22

Motion by St. Louis, etc. in Opposition to Motion to 
Intervene and Pleading in Intervention

(Filed May 6, 1966)

Comes now the St. Lonis-San Francisco Railway Com­
pany, one of the defendants in this cause, and files this 
motion in opposition to the motion of the Equal Employ­
ment Opportunity Commission, by the Attorney General 
of the United States, to intervene filed and served upon 
this defendant in late afternoon of May 5, 1966.

As grounds therefor, this defendant shows to the Court 
as follows:

1. The provisions of Title VII of the Civil Rights Act 
govern the intervention of the Attorney General in civil 
actions under Title VII by the following provision of Sec­
tion 706(E) of the Act (42 U.S.C. §2000E 5(e)):

“Upon timely application, the court may, in its 
discretion, permit the Attorney General to intervene 
in such civil action if he certifies that the case is of 
general public importance.”

2. None of the pleadings and documents filed by the 
Equal Employment Opportunity Commission, by the At­
torney General, to intervene in this case set forth any 
certification by the Attorney General “that the case is of 
general public importance” as required by Section 706(e) 
of the Act.

3. The Act provides for intervention by the Attorney 
General and not by the Equal Employment Opportunity 
Commission.



23

4. The petition for intervention is for these reasons 
not in compliance with the plain and explicit requirement 
of the statute and should be denied.

/ s /  D rayton  T. S cott 
D rayton  T. S cott

/ s /  W illiam F. Gardner 
W illiam F. Gardner

Attorneys for Defendant St. Louis- 
San Francisco Railway Company

Cabaniss, J ohnston, Gardner & Clark 
901 First National Building 
Birmingham, Alabama

Of Counsel

Motion by St. Louis, etc. in Opposition to Motion to
Intervene and Pleading in Intervention



24

Order

(Filed May 16, 1966)

This cause, coming on to be heard on a regular motion 
docket on May 6, 1966, was submitted on motion of the 
United States Equal Employment Opportunity Commis­
sion for leave to intervene in this action pursuant to 
Eule 24(b) of the Federal Eules of Civil Procedure. Upon 
consideration of the motion and for good cause shown:

It is hereby Ordered, A djudged and Decreed by the 
court that said motion to intervene be and the same hereby 
is granted and that the United States Equal Employment 
Opportunity Commission he and it is hereby impleaded as 
a party hereto.

It is further Ordered by the court that all other pending 
motions filed in this action be and they hereby are con­
tinued to be reset for hearing on September 2, 1966. 
The defendants are hereby required to file briefs on such 
motions within 30 days from and after the date of this 
order; plaintiff, and intervening plaintiff, are required 
to file their reply briefs within 15 days after receipt of 
defendants’ briefs.

Done, this the 16th day of May, 1966.

/ s /  Seybourn H. L ynne 
Seybourn H. L ynne 
Chief Judge



25

Amended Motion to Dismiss by St. Louis, etc.

(Filed July 15, 1966)

Comes now St. Louis-San Francisco Bailway Company, 
one of the defendants in the above styled cause, and 
pursuant to Rule 15(a) of the Federal Rules of Civil 
Procedure and with leave of Court amends its motion 
to dismiss filed on April 5, 1966 and its amended motion 
to dismiss filed on April 13, 1966 as follows:

By adding to paragraph 14 of the amended motion to 
dismiss of April 13, 1966 the words “or at any time” 
following the phrase “within the period of time provided 
therefor” and preceding the phrase “with respect to” so 
that, as thus amended, paragraph 14 of the amended 
motion to dismiss of April 13, 1966 shall read as follows:

14. The complaint is barred for the reason that 
while the provisions of Section 706(a) and 706(e) of 
Title VII of the Civil Rights Act provide for and 
require “methods of conference, conciliation, and per­
suasion” by the Commission with respect to the sub­
ject matter of a charge filed with the Commission 
and such methods and procedure are a prerequisite 
and condition to the institution of a civil action there­
under, there were no such methods or procedures 
followed within the period of time provided therefor 
or at any time with respect to the subject matter



26

Amended Motion to Dismiss by St. Louis, etc.

of the charge filed by the plaintiff or of the subject 
matter of the complaint in this action.

/ s /  Drayton T. S cott 
Drayton T. S cott

/ s /  W illiam F. Gardner 
W illiam F. Gardner

Attorneys for the Defendant,
St. Louis-San Francisco Railway 
Company

Cabaniss, J ohnston, Gardner & Clark 
901 First National Building 
Birmingham, Alabama

Of Counsel

Order of Court

The foregoing amended motion to dismiss having been 
exhibited to the Court and request having been made for 
leave of the Court to amend in accordance therewith, the 
Court has considered the same and is of the opinion that 
such leave to amend is due to be given. It is accordingly 
so ordered this the 15th day of July, 1966.

/s /  Seybourn H. L ynne 
Seybourn H. L ynne 
United States District Judge



27

Amended Motion to Dismiss by Brotherhood, etc.

(Filed July 25, 1966)

Come defendants Brotherhood of Railway Carmen of 
America, an unincorporated association, and Clyde Yin- 
yard, and respectfully move the Court to dismiss this 
action as to them for the following additional grounds:

7. The complaint fails to set out or attach copies of
(i) a charge under oath filed with the Commission naming 
these defendants; (ii) a determination by the Commission 
of reasonable cause; (iii) notice from the Commission of 
its inability to obtain voluntary compliance, all as provided 
in Section 706 of the Act.

8. As to individual defendant Clyde Vinyard, the com­
plaint does not allege that he is an employer, employment 
agency or labor organization subject to and as set forth 
in Section 706(a) of the Act, and the Court is therefore 
for that reason without jurisdiction of this complaint as 
against him.

Mtjlholland, H ickey &  L yman 
741 National Bank Building 
Toledo, Ohio

Cooper, Mitch & Crawford

By / s /  J erome A. Cooper 
J erome A. Cooper

1025 Bank for Savings Building 
Birmingham, Alabama



28

Decree

(Filed August 10, 1966)

Upon request of the plaintiff, and for good cause shown, 
the time for plaintiff to file a reply brief in the above- 
styled cause is hereby extended to August 22, 1966. 

Done this the 10th day of August, 1966.

/ s /  Clarence W . A llgood 
District Judge



29

(Filed March 13, 1967)

Invoking the provisions of Title VII of the Civil Rights 
Act of 1964,1 the plaintiff has brought this action against 
his employer and his collective bargaining representative 
alleging racial discrimination in terms and conditions of 
employment against himself and the class which he claims 
to represent in this suit.

By motions to dismiss, the jurisdiction of the court 
and the plaintiff’s right to maintain the action in its 
present posture have been brought into question. The 
Equal Employment Opportunity Commission in turn re­
sponded with its petition to intervene for the purpose 
of presenting its views regarding the questions raised by 
the motions. The court granted its petition and has wel­
comed the benefit of its views.

One of the questions before the court concerns the 
necessity of the plaintiff first pursuing remedies available 
under the collective bargaining agreement or before the' 
National Railroad Adjustment Board. The court agrees 
with the position, taken by the plaintiff and the Comis­
sion, that the principle of Republic Steel Corp. v. Maddox2 
should not be applied to actions brought under Title VII 
of the Act and therefore holds that remedies under the 
collective bargaining agreement or before the Adjustment 
Board need not be pursued prior to the institution of an 
action under this title.3

142 U.S.C. §§ 2000e et seq. The provisions governing the procedure 
before the Equal Employment Opportunity Commission and in the courts 
are set forth in section 706 of the Act and will be referred to by such 
section in this opinion.

2 379 U.S. 650 (1965).
8 Compare McKinney v. M-K-T Railroad Co., 357 U.S. 265 (1958).

Opinion



30

A second question before the court is whether the suit 
was timely filed. Pointing to the fact that section 706 
provides a 60 day period for the investigation and con­
ciliation functions of the Commission and a 30 day period 
for the filing of suit, the defendants have argued that this 
establishes a period of 90 days from the filing of the charge 
within which suit must be instituted in order to be timely. 
However, the court agrees with the plaintiff and the 
Commission that the 60 day time period provided for the 
investigation and conciliation of charges is properly to be 
accorded a directory rather than a mandatory construction 
and that the Commission is not required to undertake con­
ciliation of charges within the 60 day period in order for 
a civil action based on the charge to be timely filed 
thereafter.

There remains the fact that this action, as well as several 
similar suits under Title VII pending in this court,4 were 
instituted without there having been any conciliation efforts 
by the Commission, either within or beyond the 60 day 
period. The court is therefore faced with the critical issue 
as to whether it is a prerequisite to the institution of a 
civil action under Title VII that there be compliance by 
the Commission with the direction of section 706(a) that 
it “shall endeavor to eliminate any such unlawful em­
ployment practice by informal methods of conference, 
conciliation, and persuasion.”

4 The other Title VII suits pending in this court which were instituted 
without conciliation having been undertaken are as follows:

C.A. No. 66-206-S, Muldrow, et al v. H. K. Porter Co., Inc.;
C.A. No. 66-315-S, Pettway, et al v. American Cast Iron Pipe 

Co.;
C.A. No. 66-320-S, Pearson, et al v. Alabama By-Products Corp., 

et al:
C.A. No. 66-402-S, Reese v. Pullman, Inc., et al;
C.A. No. 66-641-NW, Hyler, et al v. Reynolds Metal Co., et al.

Opinion



31

The court has devoted the most careful and studied 
consideration to the resolution of this issue. It lias in 
this study had the benefit of complete and exhaustive 
briefs, both original and supplemental; the issue has been 
argued orally as well, and the court has independently 
researched all available pertinent material. Having done 
so, the court is firmly of the opinion that conciliation was 
intended by Congress to be and is a jurisdictional pre­
requisite to the institution of a civil action under Title VII 
and that the actions instituted without this prerequisite 
must accordingly be dismissed.

I.

This is the only result which could be reached con­
sistent with the congressional intent, for the legislative 
history establishes conclusively and beyond doubt that 
Congress intended that conciliation be preferred to coercion 
and that the conciliation step would be a prerequisite to 
the institution of a civil action under this title.

From the outset and continuously throughout the legis­
lative process which produced this statute, emphasis was 
placed on the conciliation step and on the fact that en­
forcement proceedings would not be initiated without an 
effort having been made to resolve the matter through 
conciliation.

At an early day in this legislative history, the Report 
of the House Education and Labor Committee on the bill 
providing for adjudication by the Commission stated that 
“It is the intent of the Committee that maximum efforts 
be concentrated on informal and voluntary methods of 
eliminating unlawful employment practices before com­
mencing formal procedures” and that “Formal proceed­

Opinion



32

ings leading toward an order of the Commission should be 
pursued only when informal methods fail or appear futile.

The bill reported by the House Judiciary Committee, 
providing for adjudication by the district couits, was 
explained in equally emphatic terms as requiring concilia­
tion before the institution of the civil action.6

Moreover, while the bill originally contained a clause 
which would have permitted the institution of a civil 
action “in advance” of conciliation,7 this clause was 
eliminated from the bill through amendment in the House 
for the express purpose of insuring that civil actions would 
not be brought until there had been conciliation.8

The explanations for the deletion of the “in advance 
thereof” clause can permit of no question concerning this 
intent. The amendment to delete the clause was offered 
by Representative Celler, who not only introduced the bill 
but was Chairman of the Judiciary Committee which re­
ported it as well, and he explained that “ the language is 
stricken out to make certain that there will be a resort 
by the Commission to conciliatory efforts before it resorts 
to a court for enforcement.” 9

6 House Report No. 570 on H.R. 405, 88th Cong., 1st Sess. (1963).
6 For example: “ The procedures are carefully spelled out. . . . Those 

procedures are designed to give due protection to everyone. They com­
mand that there first be voluntary procedures.’' 110 Cong. Record 1638 
(February 1, 1964).

i The bill as reported to the House provided that the Commission 
should bring the civil action if it had not eliminated the unlawful em­
ployment practice through conciliation “or in advance thereof if cir­
cumstances warrant.” H.R. 7152, 88th Cong., 1st Sess.

8110 Cong. Record 2567.
9110 Cong. Record 2566 (February 8, 1964). This was reiterated by 

another congressman as follows: “We thought that the striking out of 
the language would make it clear that an attempt would have to be 
made to conciliate in accordance with the language . . . before an action 
could be brought in the district court.” 110 Cong. Record 2566.

Opinion



33

II.

It is conceded, as necessarily it must be, that “ the effect 
of deleting the clause was to make Commission-initiated 
conciliation a condition precedent to the Commission’s 
right to bring suit.” 10 Instead, the court is asked to dis­
tinguish this chapter of the legislative history on the 
theory that the Dirksen compromise measure,11 in sub­
stituting the “person aggrieved” for the Commission as the 
party authorized to bring the civil action, eliminated the 
conciliation step as a prerequisite to the institution of 
the action.

The court cannot agree, for the adoption of this argu­
ment would be entirely contrary to logic and to the legis­
lative intent regarding the procedure under the Dirksen 
compromise.

This measure was not only a compromise in terms and 
effect but was as well described as “a further softening 
of the enforcement provisions of Title VII” 12 and as 
placing “greater emphasis . . .  on arbitration and volun­
tary compliance than there was in the house bill.” 13 It 
would therefore be most anomalous and contrary to logic 
to construe this measure as permitting the institution of 
a civil action without conciliation and thus as providing 
less protection to potential defendants and as placing 
less emphasis on voluntary compliance than did the House 
bill.

Such a construction would require an equally patent dis­
regard for the fact that the procedure under the com­

Opinion

10 Original brief for plaintiff at pp. 4-5.
11110 Cong. Record 11936 (May 26, 1964).
12110 Cong. Record 12595 (June 3, 1964).
13110 Cong. Record 15876 (July 2, 1964).



34

promise was explained, just as was the House bill, as 
authorizing the institution of the civil action only after 
conciliatory efforts by the Commission.

This intent was once again emphasized. For example, 
it was explained that by the conciliation step, “we have 
leaned over backward in seeking to protect the possible 
defendants” ,14 that “If efforts to secure voluntary com­
pliance fail, the person complaining of discrimination may 
seek relief in a federal district court” ,15 and that “The 
point of view of this section is to permit one who believes 
lie has a valid complaint to have it studied by the Com­
mission and settled through conciliation if possible. The 
court procedure can follow.” 16

It was further explained in a similar vein that “If the 
procedures before the Commission are unsuccessful, the 
complainant may seek relief in the federal courts” , that 
“ Section 706(e) provides for suit by the person aggrieved 
after conciliation has failed” , that “those of us who have 
worked upon the substitute package have sought to simplify 
the administration of the bill . . .  in terms of seeking a 
solution by mediation of disputes, rather than forcing 
every ease before the Commission or into a court of law” , 
and that “We have placed emphasis on voluntary concilia­
tion—not coercion.” 17

14 Senator Morse at 110 Cong. Record 14190 (June 17, 1964).
16 Senator Muskie at 110 Cong. Record 12617 (June 3, 1964).
16 Senator Saltonstall at 110 Cong. Record 14191 (June 17, 1964).
17 Senator Humphrey at 110 Cong. Record 12708-12709, 12723, 13088, 

14443 (June 4-9, 1964).
It should be added that it would be most unrealistic to take the in­

consistent comments by Senators Humphrey and Javits at 110 Cong. 
Record 14188 and 14191 as an accurate reflection of the legislative intent, 
both because they were addressed to the situation where the Commission 
finds no reasonable cause and hence has no occasion to undertake con­

Opinion



35

To incorporate all the expressions of legislative intent 
which the court has reviewed would unduly extend this 
opinion. It is enough to say that this sampling provides 
ample illustration of the unmistakable congressional intent 
that conciliation efforts would be a prerequisite to the 
institution of a civil action and, by so doing, to achieve 
the ends of protecting charged parties against being- 
brought into court without the opportunity to resolve the 
matter through conciliation and of promoting voluntary 
compliance in preference to coercion. To hold otherwise 
would be to sterilize and disregard the clear intent of the 
Congress which enacted this statute.18

III.

The plaintiff and the Commission have urged the view 
that the bypassing of the conciliation step should be dis­
regarded because “the EEOC received a large number of 
complaints which made excessive demands upon its small 
staff.” 19

The court cannot accept the view that a statutory re­
quirement may be disregarded because of the caseload of 
an administrative agency. As the Court of Appeals for

Opinion

ciliation and because they can hardly detract from the force of the ex­
pressions of the legislative intent regarding conciliation as a prerequisite 
to suit where there is a finding of reasonable cause. It may further be 
noted that the plaintiff has characterized one of these inconsistent re­
marks as “ Senator Humphrey’s discredited statement. . . (Original 
brief for plaintiff, p. 6.)

18 Compare Michael I. Sovern, Legal Restraints on Racial Discrimina­
tion in Employment (1966) at p. 82: “That the structure of section 
706, with its linkage of the individual suit to Commission conciliation, 
leads naturally to the conclusion that a complainant cannot sue until the 
Commission takes the steps specified could not have been lost in Congress, 
for the bill’s opponents made much of this.”

19 Commission’s pleading in intervention, p. 3.



36

this circuit recently said of the due process requirement, 
“administrative convenience or necessity cannot override 
this requirement.” 20

Moreover, the arguments which the plaintiff and the 
Commission have presented with respect to the timely 
filing of the suit, and which the court has agreed with, 
provide the answer to their argument regarding the Com­
mission’s caseload as an excuse for bypassing concilia­
tion. The court agrees with the Commission’s view, ad­
dressed to the time periods provided by the Act, that “The 
public interest would be seriously prejudiced if the EEOC 
terminated all investigations of and efforts to conciliate 
unfair employment practices within 60 days of the receipt 
of charges,” 21 and consistent with the intent of the 
statute and this public interest consideration, it was the 
Commission’s obligation to have undertaken conciliation 
before this suit was filed, whether within or beyond the 
60 day period.

The court should further point out that during the 
pendency of this case, the Commission amended its pro­
cedural rules both to free the conciliation step from the 
limitations of the 60 day time period22 and, even more to 
the point of this case, to provide that the notice to the 
charging party advising him that he may file the civil

Opinion

20 Russell-Newman Mfg. Co. v. NLRB, ------  F.2d ----- - (5th Cir. Dec.
27, 1966, No. 22955).

21 Commission’s pleading in intervention, p. 4.
22 While the Commission’s procedural rules formerly provided that it 

would undertake conciliation “within the limitations of time set forth 
in section 706(e) of the Act” (29 C.F.R. §1601.21), this has now been 
deleted (31 Fed. Reg. 10269-10270; July 29, 1966) so that its rules 
now provide that it “shall endeavor to eliminate such practice by informal 
methods of conference, conciliation and persuasion” without the limita­
tions of the time period.



action will not be issued “prior to efforts at conciliation 
with respondent.” 23

Accordingly, the Commission has by administrative con­
struction now adopted the procedure which is consistent 
with the intent of the statute and which should have been 
followed with respect to this case.

It is of further relevance to this case that the position 
that the civil action is not to be brought until after 
conciliation has not only been adopted by the Commission 
through amendment of its procedural rules but has as 
well been accepted informally as the proper interpreta­
tion by its legal office.24

Section 706(e) provides that if “ . . . the Commission 
has been unable to obtain voluntary compliance with this 
title, the Commission shall so notify the person aggrieved 
and a civil action may, within 30 days thereafter, be 
brought against the respondent named in the charge.” 
To read this clear language by interpolating after “unable” 
the phrase “because of its caseload,” as plaintiff and in- 
tervenor have urged at oral arguments and on briefs 
would be the grossest distortion. For the purpose of this 
opinion it is sufficient to observe that absent some effort 
or attempt to obtain voluntary compliance, however mini­
mal, it cannot be said realistically that the Commission 
has been unable to do so.

Opinion

23 31 Fed. Reg. 14255 (Nov. 4, 1966).
24 The plaintiff has attached to his brief, as authority applicable to 

the time periods of the Act, a copy of a letter from the office of the 
Commission’s General Counsel stating that “ it is the intent of the statute 
to require the aggrieved person to delay his suit until the Commission 
has exercised its function of conciliation. . . .”



38

IV.

The court has also been urged by the plaintiff and the 
Commission to overlook the defect in this case by resort 
to section 706(e) which provides for a stay of proceed­
ings “ for not more than sixty days pending the termina­
tion of . . . the efforts of the Commission to obtain volun­
tary compliance.”

This argument has a certain appeal from the practical 
standpoint, but it cannot cure the fact that the action 
was brought without there having been any attempted 
conciliation whatsoever.

In the first place, it would strain the stay clause beyond 
its reasonable limits to apply it to a case brought before 
there has been any conciliation effort at all. It not only 
speaks of “ the termination” of conciliation but was like­
wise explained in Congress as authorizing a stay pending 
“ further efforts at conciliation by the Commission,” 25 and 
it therefore is to authorize a stay for the termination or 
continuation of conciliation efforts, not for their initia­
tion.

In the second place, it is not neceessary to go beyond 
the Act itself to demonstrate that Congress was well 
aware of the way to provide for the institution of a civil 
action and then for a stay for the initiation of conciliation 
when this was the intended procedure. This is the pro­
cedure established by section 204 for suits under Title II 
of the Act, and the court cannot disregard the fact that a 
different procedure was established for actions under 
Title VII.

In the third place, it is of even more fundamental im­
portance that “Federal jurisdiction depends on the facts

Opinion

25110 Cong. Record 15866 (July 2, 1964).



39

at the time suit is commenced, and subsequent changes 
neither confer nor divest it.” 26 It would be entirely im­
permissible to cure jurisdictional defects by ex post facto 
action, and the court will not do so in this case.

This principle has a particularly compelling applica­
tion here, for it was one of the purposes of the concilia­
tion step to provide “due protection” to parties against 
whom charges are filed, and protection which comes too 
late is no protection at all.

Opinion

V.
While the congressional intent is conclusive without 

more, it should further be said in the interest of complete 
analysis that the court does not read District Judge 
Gray’s decision in Hall v. Werthan Bag Co., 251 F. Supp., 
184 (M.D. Tenn. 1966) as authority for the proposition 
that conciliation may be bypassed. Rather the court be­
lieves that case is in agreement that conciliation is a pre­
requisite to a civil action.

The holding of the case allowed the intervention of 
another employee with respect to the plaintiff’s allega­
tions of discrimination in training, wages, and transfers, 
the court reasoning that these matters had been the sub­
ject of conciliation and that it was not necessary to con­
ciliate again on these matters common to all the Negro 
employees. At the same time, the court further held that 
matters which were personal to the intervening employee 
and which had not been the subject of conciliation would 
not be heard in the case, “ for the Commission has not 
attempted conciliation in regard to rectifying any alleged

26 E.g., Ford, Bacon & Davis v. Volentine, 64 F.2d 800, 801 (5th Cir. 
1933).'



40

injuries which other Negro employees or would-be em­
ployees may claim to have suffered as a result of the 
defendant’s alleged discrimination.” 27

VI.

While much has been said in argument to the court 
regarding considerations of fairness to the plaintiffs, it 
has never been the function of the courts to disregard 
statutory requirements on the basis of which side can 
present the most moving emotional argument.

Moreover, the claims of unfairness rest upon surface 
appearances belied by the actual facts. The plaintiff is 
not being deprived of his day in court, for he will be 
entitled to proceed with a civil action once the prere­
quisite of conciliation has been satisfied, if, indeed, con­
ciliation should not resolve the dispute. Furthermore, 
Congress did not lose sight of the unfairness which would 
result to parties against whom charges are filed if they 
could be brought into court without the conciliation step, 
and the courts certainly should not lose sight of this fact.

Even so, this is to some extent a hard case from the 
standpoint of the plaintiff, and it is appropriate enough 
that he would ask that the court make bad law by utter 
disregard of a clear congressional purpose.

Therefore, having carefully considered and weighed the 
arguments and the authorities, the court holds that this 
action, and the similar actions filed in this court without 
conciliation efforts having been undertaken, are properly 
to be and must be dismissed. No other result could con­
ceivably be reached consistent with the procedure intended

Opinion

27 251 P. Supp. at 188.



Opinion

by Congress, and the court is firm and clear in so holding. 
This the 10th day of March, 1967.

S eyboijrn H . L y n n e  

Chief Judge

A True Copy

W illiam E. Davis, Clerk 
United States District Court 
Northern District of Alabama

By: / s /  M aby  L. T obtoeici 
Deputy Clerk

[seal]



42

Order on Motions to Dismiss

(Filed March 13, 1967)

This cause came oil to be heard on the defendants mo 
tions to dismiss and was heard and submitted following 
briefing and argument by counsel for the plaintiff, the 
defendants, and the intervenor.

In conformity with the opinion of the court filed con­
temporaneously herewith, it is Ordered, A djudged and 
Decreed by the court that the complaint in this case be 
and the same is hereby dismissed without prejudice. 

Done, this the 10th day of March, 1967.

Seybourn H. L ynne
Chief Judge

A True Copy
W illiam E. Davis, Clerk 
United States District Court 
Northern District of Alabama

By: / s /  Mary L. T ortorici 
Deputy Clerk

[seal]



43

Notice of Appeal by Plaintiff

(Filed April 7, 1967)

IN THE UNITED STATES DISTRICT COURT 

F oe the Northern District of A labama 

Southern D ivision 

Civil A ction No. 66-65

James C. Dent, 

— v.—
Plaintiff,

St. L ouis-San F rancisco R ailway Company, a Missouri 
Corporation; B rotherhood op R ailway Carmen op 
A merica, an unincorporated association; Clarence 
Mann , General Chairman of Brotherhood of Railway 
Carmen of America; Clyde V inyard, Chairman of 
Local 60 of Brotherhood of Railway Carmen of 
America,

Defendants.

Notice is hereby given that James C. Dent, the plaintiff 
herein, hereby appeals to the United States Court of 
Appeals for the Fifth Circuit from an order of the 
United States District Court for the Northern District 
of Alabama, Southern Division dismissing plaintiff’s com-



44

Notice of Appeal by Plaintiff

plaint, said order dated March 10, 1967 and filed in the 
clerk’s office on March 13, 1967.

Dated: April 6, 1967

/sj Oscar W . A dams, J r.
Oscar W. A dams, J r.

1630 Fourth Avenue, North 
Birmingham, Alabama

J ack Greenberg 
Leroy D. Clark

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiff



45

Plaintiff’s Designation of Record

(Filed April 25, 1967)

Plaintiff, through his undersigned attorneys, designate 
the entire record as the Record on Appeal in the above 
styled matter in which notice of appeal was filed April 6, 
1967.

/ s /  Oscab W . A dams, J k.
Oscab W . A dams, Jb.

1630 Fourth Avenue, North 
Birmingham, Alabama

Jack Greenberg 
Leboy D. Clark

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiff



46

Notice of Appeal by Intervenor

(Filed May 8, 1967)

IN THE UNITED STATES DISTRICT COURT 

F ob the Northern District of A labama 

S outhern D ivision 

Civil A ction No. 66-65

J ames C. Dent,

— v .

Plaintiff,

St. L ouis-San F rancisco R ailway Company, et al.,

Defendants,

E qual E mployment Opportunity Commission,

Intervenor.

Notice is hereby given that the United States Equal 
Employment Opportunity Commission, Intervenor above 
named, hereby appeals to the United States Court of 
Appeals for the Fifth Circuit from the Order of Dismissal



47

Notice of Appeal by Intervenor

of this Court of March 10, 1967, dismissing for lack of 
jurisdiction the complaint in the above named case.

Signed: R ichard K. B erg
Attorney for
Equal Employment Opportunity 
Commission

Address: 1800 G Street, N. W.
Washington, D. C. 20506



48

Clerk’s Certificate

U nited States of A merica,
Northern D istrict op A labama,

I, W illiam E. Davis, Clerk of the United States District 
Court for the Northern District of Alabama do hereby 
certify that the foregoing pages numbered from one (1) 
to forty-six (46), both inclusive, comprise the original 
pleadings in this case and are herewith attached as a full, 
true and correct transcript of the record on appeal in the 
Matter of J ames C. Dent, Plaintiff-Appellant, and U nited 
States E qual E mployment Opportunity Commission, In- 
tervenor-Appellant, vs. St. L ouis-San F rancisco R ailway  ̂
Company, a Missouri Corporation, et al., Defendants-Ap- 
pellees, Civil Action No. 66-65—Southern Division, as fully 
as the same appears of record and on file in my office.

In W itness W hereof, I have hereunto subscribed my 
name and affixed the seal of said Court in Birmingham, 
Alabama, in said District, on this the 12th day of May, 
1967.

/ s /  W illiam E. Davis
W illiam E. Davis, Clerk 
United States District Court

[seal]



49

VOLUME II

IN THE UNITED STATES DISTRICT COURT

F oe the Northern District op A labama 

Southern D ivision 

Civil A ction No. CA 66-206

A lvin C. Muldrow, Henry Smith , Council O’Neil J ackson, 
individually and on behalf of others similarly situated,

Plaintiffs,

H. K. P orter Company, I nc., a Delaware Corporation,
Defendant.

Complaint
(Piled March 31, 1966)

I

Jurisdiction of this Court is invoked pursuant to 
28 U.S.C. Sec. 1343. This is a suit in equity authorized 
and instituted pursuant to Title VII of the Act known as 
“The Civil Rights Act of 1964,” 42 U.S.C. Sections 2000e 
et seq. (sometimes hereinafter referred to as the “ Civil 
Rights Act of 1964” ) and 42 U.S.C. Sec. 1983. The juris­
diction of this Court is invoked to secure protection of 
and to redress deprivation of rights secured by (a) Title 
VII of the Civil Rights Act of 1964, providing for injunc­
tive and other relief against racial discrimination in em­
ployment, and (b) 42 U.S.C. Sec. 1981, providing for the



50

equal rights of citizens and all persons witihn the juris­
diction of the United States.

II
Plaintiffs bring this action on their own behalf and on 

behalf of others similarly situated pursuant to Buie 23(a) 
(3) of the Federal Rules of Civil Procedure. There are 
common questions of law and fact affecting the rights of 
other Negroes seeking equal employment opportunity with­
out discrimination on the ground of race or color who are 
so numerous as to make it impracticable to bring them 
all before this Court. A  common relief is sought. The 
interests of said class are adequately represented by 
plaintiffs.

Complaint

III

This is a proceeding for a preliminary and permanent 
injunction restraining defendant from maintaining a policy, 
practice, custom and usage of (a) discriminating against 
plaintiffs and others similarly situated because of race 
or color with respect to compensation, terms, conditions 
and privileges of employment, and (b) limiting, segregating 
and classifying its employees in ways which deprive and 
tend to deprive plaintiffs and others similarly situated of 
employment opportunities and otherwise adversely affect 
and tend to affect their status as employees because of 
race or color at the mills, plants and/or manufacturing 
facilities owned and operated by defendant.

IV

Plaintiffs Alvin C. Muldrow, Henry Smith and Council 
O’Neil Jackson are Negro citizens of the United States



51

and the State of Alabama residing in the City of Birming­
ham, Alabama.

Complaint

V
Defendant, IT. K. Porter Company, Inc., is a corporation 

incorporated under the laws of the State of Delaware, 
doing business in the State of Alabama and the City of 
Birmingham. Defendant operates and maintains mills, 
plants and/or manufacturing facilities in the City of 
Birmingham, State of Alabama.

VI
Defendant is an employer engaged in an industry which 

affects interstate commerce and defendant employs more 
than one hundred employees.

VII

A. Plaintiffs are employed in Defendant’s Conners Steel 
Division, located at 5000 Powell Avenue, Birmingham, 
Alabama.

B. Despite numerous requests by each of the plaintiffs 
for assignments of seniority, defendant failed and refused 
and continues to fail and refuse to assign such seniority, 
while in the meantime assigning seniority to white em­
ployees who were and have been in defendant’s employ 
for substantially shorter periods of time. Defendant’s 
regulations require written requests for assignments of 
seniority; but while plaintiffs have each submitted a 
written request, most of the aforesaid white employees 
have been assigned seniority without written requests. 
As a consequence of such discrimination, plaintiffs have 
been assigned to a pool, called the “extra board” , of men



52

of lesser seniority who are employees not regularly sched­
uled to work, and plaintiffs have lost substantial wages.

C. Defendant maintains in the plant racially segregated 
bathhouses and locker and restroom facilities.

D. Defendant maintains badge numbers assigned on 
the basis of race and color, which has the consequence 
of racially segregating defendant’s time clocks.

E. Defendant maintains higher pay rates in the plant 
for jobs performed by white employees than for sub­
stantially equivalent jobs performed by Negro employees. 
The job of “layover” in the Eolling Mill, is a job tradi­
tionally occupied by whites, pays substantially more than 
the job of “catcher” in the Auxiliary Mill, a job tradi­
tionally occupied by Negroes. The men employed in these 
jobs do substantially the same work.

VIII

Plaintiffs have been discriminated against because of 
their race and color with respect to compensation, terms, 
conditions and privileges of employment, and defendant 
has limited, segregated and classified its employees in 
ways which deprive and tend to deprive plaintiffs of 
employment opportunities and otherwise adversely affect 
and tend to adversely affect their status as employees 
because of race and color, all in violation of Title VII of 
the Civil Eights Act of 1964 and 42 U.S.C. Sec. 1981.

IX

Neither the State of Alabama nor the City of Birming­
ham has a law prohibiting the unlawful practices alleged 
herein. On November 22, 1965, plaintiffs filed a charge

Complaint



53

with, the Equal Employment Opportunity Commission al­
leging denial by defendant of their rights under Title VII 
of the Civil Rights Act of 1964. On January 11, 1966, 
the Commission found reasonable cause to believe that 
violations of Title VII of the Civil Rights Act of 1964 
had occurred by defendant. Subsequently, the Commission 
notified plaintiffs that defendant’s compliance with Title 
VII had not been accomplished within the maximum period 
allowed to the Commission by Title VII of the Civil Rights 
Act of 1964 and that plaintiffs are entitled to maintain 
a civil action for relief in a United States District Court.

X

Plaintiffs have no plain, adequate or complete remedy 
at law to redress the wrongs alleged, and this suit for a 
preliminary and permanent injunction is their only means 
of securing adequate relief. Plaintiffs and the class they 
represent are now suffering and will continue to suffer 
irreparable injury from defendant’s policy, practice, cus­
tom, and usage as set forth herein.

W herefore, plaintiffs respectfully pray this Court ad­
vance this case on the docket, order a speedy hearing 
at the earliest practicable date, cause this case to be in 
every way expedited, and upon such hearing to :

1. Grant plaintiffs and the class they represent a prelim­
inary and permanent injunction enjoining the defendant, 
its agents, successors, employees, attorneys, and those 
acting in concert with them and at their direction, from 
continuing or maintaining the policy, practice, custom and 
usage of denying, abridging, withholding, conditioning,

C omplaint



54

limiting or otherwise interfering with the right of plain­
tiffs and others similarly situated that:

(a) defendant maintain a seniority system free from 
discrimination on the basis of race or color;

(b) defendant maintain bathhouses and locker and rest­
room facilities which are not segregated on the basis 
of race or color;

(c) defendant maintain badge number assignments free 
from discrimination on the basis of race or color and 
time clocks free from segregation on the basis of 
race or color; and

(d) defendant maintain equivalent pay rates for sub­
stantially equivalent jobs without discrimination on 
the basis of race or color.

2. Grant plaintiffs and the class they represent a prelim­
inary and permanent injunction enjoining defendant, its 
agents, successors, employees, attorneys, and those acting 
in concert with them and at their direction, from con­
tinuing or maintaining the policy, practice, custom and 
usage of denying, abridging, withholding, conditioning, 
limiting or otherwise interfering with the rights of plain­
tiff and others similarly situated to enjoy equal employ­
ment opportunities as secured by Title VII of the Act 
known as “ The Civil Rights Act of 1964,” 42 U.S.C. Sec­
tions 2000e et seq., and 42 U.S.C. Sec. 1981 without dis­
crimination on the basis of race or color, including but 
not limited to the maintenance of any policy, practice, 
custom, or usage o f :

(a) maintaining a seniority system which is discrim­
inatory on the basis of race or color;

Complaint



55

(b) maintaining bathhouses and locker and restroom 
facilities which are segregated on the basis of race 
or color;

(c) maintaining badge number assignments on the basis 
of race or color and maintaining time clocks segre­
gated on the basis of race or color; and

(d) maintaining discriminatory pay rates for substan­
tially equivalent jobs on the basis of race or color.

3. Grant plaintiffs, Alvin C. Muldrow, Henry Smith 
and Council O’Neil Jackson, back pay for each day that 
they did not work by virtue of having been assigned to 
the “extra board” from the time of having been so wrong­
fully assigned to the present.

4. Allow plaintiffs their costs herein, including reason­
able attorney’s fees and such other additional relief as may 
appear to the Court to be equitable and just.

/ s /  Oscab W. A dams, Jr.
Oscar W . A dams, J r.

1630 Fourth Avenue, North 
Birmingham, Alabama 35203

J ack Greenberg
Leroy D. Clark
Michael Meltsner

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiff

Complaint



56

Motion to Dismiss by H. K. Porter Company, Inc.

(Filed April 22, 1966)

Comes now H. K. Porter Company, Ine., named as the 
defendant in the above styled cause, and moves the Court 
to dismiss the complaint on the following grounds, sepa­
rately and severally:

I .

The complaint fails to state a claim upon which relief 
can be granted.

II.

The complaint fails to name and to join an indispensable 
party defendant to this action in that the United Steel­
workers of America, AFL-CIO, and its Local Union No. 
2250 (hereinafter referred to as “ the Union” ) has a mate­
rial and substantial interest in the subject matter of the 
complaint which would be directly and vitally affected by 
any decree in this action, in that this action could not be 
completely determined without the presence of the Union 
as a party to this action, in that this complaint seeks to 
annul, hinder, or affect contracts between this defendant 
and the Union, and in that the maintenance of this action 
without the presence of the Union would leave the action 
in such a condition that its final termination would be 
inconsistent with equity.

The status of the Union as an indispensable party to 
this action is shown in more detail by the following sepa­
rate and several reasons:

(1) The plaintiffs and the class which they claim to 
represent in this action are now and have at all times 
material to this action been employees of the Connors



57

Works, Connors Steel Division of defendant and as such 
employees have been represented by the Union for pur­
poses of collective bargaining for all matters regarding 
their compensation, terms, conditions, and privileges of 
employment.

(2) All matters regarding the compensation, terms, con­
ditions, and privileges of employment of the plaintiffs and 
of the class which they claim to represent are now and 
have at all times material to this action been governed 
and controlled by collective bargaining agreements entered 
into on their behalf by the Union with the Connors Works, 
Connors Steel Division of defendant (hereinafter referred 
to as “the Union contract” ). The most recent and the 
current such Union contract was entered into on Octo­
ber 1, 1965 and is attached hereto and made a part hereof 
as Exhibit “A” .

(3) Under both the provisions of the National Labor 
Relations Act, 29 U.S.C. §§ 151-168, and the provisions of 
the Union contract, the defendant is obligated to recog­
nize, negotiate, and contract exclusively with the Union 
for matters regarding the compensation, terms, conditions, 
and privileges of employment of the plaintiffs and of the 
class which they claim to represent in this action, the 
Union is established as the sole and the exclusive bar­
gaining representative of the plaintiffs and of the class 
which they claim to represent in this action for matters 
regarding their compensation, terms, conditions, and priv­
ileges of employment, and the plaintiffs and the class 
which they claim to represent in this action are obligated 
to allow the Union, as their collective bargaining repre­
sentative, to handle, discuss, negotiate, adjust, and con-

Motion to Dismiss by II. K. Porter Company, Inc.



58

tract on. their behalf with respect to matters regarding 
their compensation, terms, conditions, and privileges of 
employment.

(4) The claims, matters, and allegations which the com­
plaint in this action seeks to bring into issue and litigation 
are substantially and materially governed and controlled 
by provisions of the Union contract and by the status of 
the Union under law and contract as the sole and exclusive 
bargaining representative of the plaintiffs and of the class 
which they claim to represent in this action. For example:

(a) The allegations of the complaint regarding al­
leged discrimination against the plaintiff s and the class 
which they claim to represent are specifically governed 
and controlled by the provisions of Section 1(C) of 
the Union contract, which provides that “It is the 
continuing policy of the Company and of the Union 
that the provisions of this agreement shall be applied 
to all employees without regard to race, color, religious 
creed, national origin or sex. The representatives of 
the Company and of the Union in all steps of the 
grievance procedure and in all dealings between the 
parties shall comply with this provision.” (Pp. 21-22).

(b) The allegations of the complaint regarding pay 
rates are specifically governed and controlled by the 
provisions of Section 4 of the Union contract and 
by the appendices to the Union contract setting forth 
the negotiated and agreed upon pay rates of all em­
ployees, including the plaintiffs and the class which 
they claim to represent in this action (Pp. 23-33 and 
85-88).

Motion to Dismiss by II. K. Porter Company, Inc.



59

(c) The allegations of the complaint regarding al­
leged differences in the pay rates for “ substantially 
equivalent jobs” are specifically governed and con­
trolled by the provisions of Sections 4(D) and 4(E) 
of the Union contract, which provide for the proce­
dure and criteria applicable to claims of inequities or 
differentials in and among pay rates of the employees 
represented by the Union, including the plaintiffs and 
the class which they claim to represent in this action 
(Pp. 25-29).

(d) The allegations of the complaint regarding as­
signments of seniority are specifically governed and 
controlled by the provisions of Section 8 of the Union 
contract, which set forth the procedures and criteria 
for the promotion, assignment, and transfer of the 
employees represented by the Union, including the 
plaintiffs and the class which they claim to represent 
in this action (Pp. 46-54).

(e) The allegations of the complaint regarding as­
signments of seniority are further and even more 
specifically governed and controlled by the provisions 
of Paragraph 5 of Section 8 of the Union agreement 
(Pp. 49-52). Such provisions of the Union contract 
not only govern specifically the assignments of senior­
ity but further were negotiated, agreed upon, and 
entered into between the defendant and the Union 
and embodied in the Union contract as the means of 
handling and adjusting the seniority assignments of 
the Negro employees, including the plaintiffs and the 
class which they claim to represent in this action.

(5) The maintenance of this action without the presence 
of the Union and any final decree in this action without

Motion to Dismiss by II. K. Porter Company, Inc.



60

the presence of the Union would not and could not settle 
the matters that are the subject of the complaint, could 
result in an adjudication regarding the provisions of the 
Union contract in the absence of the Union, and could 
further place this defendant in the position of being di­
rected by Court decree to take action contrary to or in­
consistent with the provisions of the Union contract.

(6) The substantial, material, and indispensable interest 
of the Union in the subject matter of the complaint in 
this action has been recognized by the plaintiffs them­
selves and is emphasized by the fact that the charges 
which the plaintiffs filed with the Equal Employment Op­
portunity Commission regarding the subject matter of the 
complaint were filed against the Union as well as the 
Company.

(7) The substantial, material, and indispensable interest 
of the Union in this action is further emphasized by the 
fact that there are two other actions filed under Title VII 
of the Civil Rights Act which are pending in the United 
States District Court for the Northern District of Alabama 
and that the complaints in both actions, filed by the same 
attorneys filing this complaint, have named and joined 
as parties defendants the Unions which represent the 
plaintiffs (Dent v. St. Louis-San Francisco Railway Com­
pany, et al., No. 66-65, Hall et al., v. United States Pipe 
and Foundry Company, et al., No. 66-212).

(8) United Steelworkers of America, AFL-CIO and its 
Local Union No. 2250, above referred to collectively as the 
Union, are each a necessary and indispensable party to 
this action.

Motion to Dismiss by H. K. Porter Company, Inc.



61

III.
The plaintiffs and the class which they claim to represent 

in this action have failed to exhaust the administrative 
and the contractual remedies provided for them by the 
Union contract for the redress of any grievances or claims 
which they may have regarding their compensation, terms, 
conditions, or privileges of employment.

IV.
(1) The institution and maintenance of this action as a 

class action is contrary to and prohibited by the provision 
of Section 706(e) of Title VII of the Civil Rights Act 
which limits the institution of civil actions thereunder to 
“the person claiming to be aggrieved.”

(2) The institution and maintenance of this action as a 
class action is contrary to and prohibited by the fact that 
the provisions of Section 706(a) and 706(e) of Title VII 
of the Civil Rights Act provide for a civil action thereunder 
only by a person who has first filed a charge with the Equal 
Employment Opportunity Commission, and the complaint 
shows on its face that only the plaintiffs, and not the 
class which they claim to represent in this action, have 
filed such charges with the Commission.

(3) The complaint shows on its face that the members 
of the class claimed to be represented in this action have 
not exhausted, or even attempted to pursue, the admin­
istrative remedies before the Equal Employment Oppor­
tunity Commission as provided by Sections 706(a) and 
706(e) of Title VII of the Civil Rights Act as a prere­
quisite to the institution of a civil action thereunder.

Motion to Dismiss by H. K. Porter Company, Inc.



62

(4) The provisions of Rule 23(a) of the Federal Rules 
of Civil Procedure are not applicable to and do not author­
ize the institution and maintenance of this action as a 
class action in that the requirement of such rule of a com­
mon question of a law or fact is not present in and with 
respect to this action.

Motion to Dismiss by H. K. Porter Company, Inc.

V.

(1) The complaint is barred by the statute of limitations 
applicable thereto in that this action was not instituted 
within the period of time required by Section 706(e) of 
Title YII of the Civil Rights Act for the institution of 
civil actions thereunder.

Specifically, the provisions of Section 706(e) of Title 
YII of the Civil Rights Act provide a maximum period 
of time of sixty days after a charge is filed with the 
Commission for the Commission to attempt to secure volun­
tary compliance and, upon the expiration of such sixty 
day period, to notify the person filing the charge that he 
may institute a civil action. The provisions of Section 
706(e) further provide that the civil action must be insti­
tuted within thirty days following such notification from 
the Commission upon the expiration of the sixty day 
period.

Here, charges regarding the subject matter of the com­
plaint were filed with the Commission by the plaintiffs 
Smith and Muldrow on September 27, 1965 and by the 
plaintiff Jackson on October 11, 1965. There is attached 
hereto and made a part hereof marked as Exhibit “B” 
the charge filed by the plaintiff Smith, as Exhibit “ C” the 
charge filed by the plaintiff Muldrow, and as Exhibit “D” 
the charge filed by the plaintiff Jackson.



63

The sixty day period provided by Section 706(e) ac­
cordingly expired on or before November 27, 1965 with 
respect to the charges filed by the plaintiffs Smith and 
Mnldrow and on or before December 11, 1965 with respect 
to the charge filed by the plaintiff Jackson. Therefore, 
this action, not having been instituted by the filing of the 
complaint until March 31, 1966, was not instituted within 
the statute of limitations of thirty days as required by 
Section 706(e) and is barred.

(2) The plaintiffs filed amended charges with the Com­
mission on November 30, 1965, true and correct copies of 
which are attached hereto and made a part hereof as Ex­
hibits “E” , “F” , and “ Gf” , but the filing of such amended 
charges did not and could not extend the sixty day period 
and the thirty day statute of limitations provided by Sec­
tion 706(e) or initiate another sixty day period or thirty 
day statute of limitations for the reason that such pro­
visions of Section 706 of Title VII of the Civil Rights Act 
relate only to the periods of time following the filing of 
the charge.

(3) The complaint is barred by the statute of limita­
tions applicable thereto for the further and separate rea­
son that while the complaint alleges that the plaintiffs 
were notified by the Equal Employment Opportunity Com­
mission that they were entitled to maintain a civil action 
in a United States District Court, the complaint fails to 
allege that this action was instituted by the filing of the 
complaint within thirty days following such notification 
as required by Section 706(e) of Title VII of the Civil 
Rights Act for the institution of civil actions thereunder.

Motion to Dismiss by II. K. Porter Company, Inc.



64

VI.

The complaint is barred for the reason that while the 
provisions of Section 706(a) and 706(e) of Title VII of 
the Civil Rights Act provide for and require “methods of 
conference, conciliation, and persuasion” bv the Commis­
sion with respect to the subject matter of charges filed 
with the Commission and such methods and procedure1 
are a prerequisite and condition to the institution of a 
civil action thereunder, there were no such methods or 
procedures followed with respect to the subject matter of 
the charges filed by the plaintiffs and the subject matter 
of the complaint in this action.

VII.
The Court is deprived and precluded by the provisions 

of the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, from 
granting the injunctive relief sought by the complaint in 
this action.

Motion to Dismiss by H. K. Porter Company, Inc.

/ s /  L u cien  D . G ardner, Jr. 
L u cien  D . Gardner, Jr.

/ s /  W illiam F. Gardner 
W illiam F. Gardner

Attorneys for Defendant 
H. K. Porter Company, Inc.

Cabaniss, J ohnston, Gardner & Clark 
901 First National Building 
Birmingham, Alabama

Of Counsel



65

State of A labama,
J effebson County,

This day personally appeared before me B. Campbell 
Blake, who being first duly sworn, deposes and says on 
oath that he is Vice President and General Manager of 
the Connors Steel Division of H. K. Porter Company, Inc., 
that he is authorized to execute this affidavit, that the 
collective bargaining agreement attached to the foregoing 
Motion as Exhibit “A” is a true and correct copy of the 
collective bargaining agreement which is currently in effect 
between the United Steelworkers of America and its Local 
Union No. 2250 and the Connors Works, Connors Steel 
Division of the H. K. Porter Company, Inc., and that 
the charges and the amended charges attached to such 
Motion as Exhibits “B” through “G” are true and correct 
copies of such charges and amended charges as received 
by the Connors Steel Division of the H. K. Porter Com­
pany from the Equal Employment Opportunity Commis­
sion.

/ s /  B. Campbell Blake 
B. Campbell B lake

Motion to Dismiss by II. K. Porter Company, Inc.

Subscribed and sworn to before 
me this 21 day of April, 1966.

/ s /  Oscar L. H uett 
Notary Public

[ s e a l ]



66

A G R E E M E N T

BETWEEN

CONNORS WORKS 
CONNORS STEEL DIVISION 

H. K. PORTER COMPANY, INC.

AND

UNITED STEELWORKERS OF AMERICA, 
AFL-CIO

October 1, 1965

Birmingham, Alabama

Exhibit A

[Not Printed]



67

Exhibit B

5-9-1372
September 27, 1965

COMPLAINT against H. K. Portor Company, Conner 
Steel Division, Birmingham, Alabama and AFL-CIO 
Union Local #2250

I have worked in the Electric Furnace Department a 
total of about three years out of the four years I have 
worked for this company. I requested departmental senior­
ity several times, but it was not granted until after 36 new 
employees were hired with a total seniority ranging from 
one and a half to two years (not departmental seniority). 
They were placed in the department ahead of me. I feel 
that being a senior employee and working in the depart­
ment before any of these new men were hired, my transfer 
request should have been granted first. As a result of 
being transferred last, I am now working a lower paying 
job than the newer employees.

I filed a grievance with AFL-CIO Local 2250 with Mr. 
Calvin Parker, president, Mr. Joe Frost, vice-president, 
and Mr. Henry Robinson, committeeman-at-large. They 
took no action on the grievance.

/ s /  Henry S mith 
H enry Smith 
608 Avenue Z, Pratt City 
Birmingham, Alabama 
Phone: 871-2132

/ s /  L uvandy Sheppard
M y Com m ission E xpires January 5, 1968



68

Exhibit C

5-9-1371
September 27, 1965

COMPLAINT against H. K. Portor Company, Conner 
Steel Division, Birmingham, Alabama and AFL-CIO 
Union Local #2250

I have worked in the Electric Furnace Department a 
total of 2% years out of the 4 years I have worked for 
this company. I made three requests for departmental 
seniority, but it was not granted until after 36 new em­
ployees were hired with a total seniority ranging from 
one and a half to two years (not departmental seniority). 
They were placed in the department ahead of me. I feel 
that being a senior employee and working in the depart­
ment before any of these new men were hired, my transfer 
request should have been granted first. As a result of 
being transferred last, I am now working a lower paying 
job than the newer employees.

I filed a grievance with AFL-CIO Local 2250 with Mr. 
Calvin Parker, president, Mr. Joe Frost, vice-president, 
and Mr. Henry Robinson, committeeman-at-large. They 
took no action on the grievance.

/ s /  A. C. M uldrow  
A. C. M uldrow

1415 12th Avenue, North, Apt. 8 
Birmingham, Alabama 
Phone: 324-9734

/ s /  L uvandy Sheppard

M y Com m ission E xpires January 5, 1968



69

E xh ib it D

Form approved 
Bureau of the Budget 
No. 124-R001

E qual E mployment Oppobtunity Commission 
Washington, D. C. 20506 

Chabge of D iscrimination

F ill Out T his F orm :
(Please print or type)

Y our Na m e :
Council O’Neil Jackson 
Telephone Number: 323-7437

A ddress :
2510 21st Avenue North 
Birmingham, Alabama

1. Were you discriminated against in connection with 
employment because of
jX] Race or Color
□  Religion
□  Sex
□  National Origin

2. Who discriminated against you? Give the name and 
address of the employer, labor organization, employ­
ment agency, or apprenticeship committee.

Name :
H. K. Porter Company 
Conner Steel Division 
AFL-CIO Local 2250

A ddress :
5000 Powell Avenue 
Birmingham, Alabama

5-10-1772



70

3. When did this discrimination take place!
Over a period of time

4. Please tell your story of discrimination. Explain what 
unfair thing was done to you.
After working for this company for a while, I was 
placed on the seniority list for the Mill Auxiliary 
Dept. About 2/3rds of the four years I have worked 
for this company, I have been in the Furnace Dept. 
I requested several times that my seniority be trans­
ferred to the Furnace Dept, but the request was de­
nied. During that same time they were hiring new 
men and giving them seniority in this department 
ahead of me. When my seniority was finally trans­
ferred I was behind the approximately 25 men who 
had been hired within the last year.

I filed a grievance with the union but they took 
no action.

(The law requires that your charge be made under oath. 
You may take this paper for notarization to a notary 
public or other official who is authorized to administer 
oaths. If this is impractical, send this paper to the Com­
mission without having it notarized. The Commission will 
arrange to have the oath administered to you.)
I S wear or A ffirm T hat I Have B ead the A bove and 

T hat It Is T rue to the B est of My K nowledge

Date: 10/11/65
/ s /  Council O’Neil J ackson

Subscribed and sworn to before me 
this 11th day of October, 1965.
/ s /  L uvandy Sheppard

My Commission Expires January 5, 1968

Exhibit D



71

You need not be able to answer the questions below, but 
if you do know the answers, it will help the Commission 
to handle your complaint more quickly.

1. Have you filed a complaint about this discrimination 
with a State or local government agency?
□  Yes
M  No
If you checked yes, please give the following informa­
tion:
Name op A g en cy ..... .............................................................. ~

A ddress .......................................................................................

Exhibit I)

Date Y oxj F iled Com plaint ..................................................

2. If your charge is against a company or a union, does 
it have more than one hundred (100) employees or 
members ?

(Xj Yes
□  No
□  Do not know 

Mail to:
Franklin D. Roosevelt, Jr., Chairman 
Equal Employment Opportunity Commission 
Washington, D. C. 20006 
Received: October 14, 1965



72

Exhibit E

Form approved 
Bureau of the Budget 
No. 124-R001

E qual E mployment Opportunity Commission 
Washington, D. C. 20506 

Charge op D iscrimination

F ill Out T his F orm :
(Please print or type)

Y our Na m e :
A. C. Muldrow 
Telephone Number: 324-9734

A ddress :
1415 12th Ave., N 
Birmingham, Alabama

1. Were you discriminated against in connection with 
employment because of

|Xl Race or Color
□  Religion
□  Sex
□  National Origin

2. Who discriminated against you? Give the name and 
address of the employer, labor organization, employ­
ment agency, or apprenticeship committee.
Nam e :
H. K. Porter and Local 2250

U.S.W.A.
A ddress :
5000 Powell Ave.
Birmingham, Ala.



73

3. When did this discrimination take place!
Prior to and since July 2, 1965

4. Please tell your story of discrimination. Explain what 
unfair thing was done to you.

A mendment to Original Charge

The company and the union maintain differential 
pay scales which are disguised by the subterfuge of 
different job names. The company maintains racially 
separate bath houses and locker rooms. Time cards 
and time clocks have historically been racially sepa­
rated.

(The law requires that your charge be made under oath. 
You may take this paper for notarization to a notary 
public or other official who is authorized to administer 
oaths. If this is impractical, send this paper to the Com­
mission without having it notarized. The Commission will 
arrange to have the oath administered to you.)

I Swear or A ffirm T hat I H ave R ead the A bove and 
T hat It Is T rue to the B est of My K nowledge

Date : November 30, 1965
/%/ A. C. Muldrow

Exhibit E

Subscribed and sworn to before me 
this 30 day of November, 1965.

/ s /  Calvin D. Banks EEOC Repr.



74

You need not be able to answer the questions below, but 
if you do know the answers, it will help the Commission 
to handle your complaint more quickly.

1. Have you filed a complaint about this discrimination 
with a State or local government agency?
□  Yes 
jx] No

If you checked yes, please give the following informa­
tion:

Name of A g en cy .......................................................................

A ddbess ........................................................................................

Exhibit E

Date Y ou F iled Com plaint ..................................................

2. If your charge is against a company or a union, does 
it have more than one hundred (100) employees or 
members ?
□  Yes
□  No
□  Do Not Know 

Mail to:
Franklin D. Roosevelt, Jr., Chairman 
Equal Employment Opportunity Commission 
Washington, D. C. 20006



75

Exhibit F

5-10-1772

AMENDMENT TO CHARGE

After the number of stackers was reduced, I was rolled 
back to a laborer, working only when called. Several 
white employees, having less seniority, continue to rank 
above me. Their employment was accomplished at my 
disadvantage and I continue to be deprived of my rights 
because I am a Negro.

Signature Council O’Neil J ackson

November 30, 1965

Subscribed and sworn to before me 
this 30th day of November 1965

/s /  Calvin D. B anks 
EEOC Repr.



76

Exhibit G

Form approved 
Bureau of the Budget 
No. 124-R001

E qual E mployment Opportunity Commission 
Washington, D. C. 20506 

Charge op D iscrimination

F ill Out T his F orm :
(Please print or type)

Y our Na m e :
Mr. Henry Smith
Telephone Number: 205-871-2132

A dbress :
608 Avenue Z, Pratt City 
Birmingham, Alabama

1. Were you discriminated against in connection with 
employment because of
jxl Race or Color
□  Religion
□  Sex
□  National Origin

2. Who discriminated against you! Give the name and 
address of the employer, labor organization, employ­
ment agency, or apprenticeship committee.
Name :
H. K. Portor Company, Conner Steel Division 
and AFL-CIO Union Local #2250

A ddress :
5000 Powell Avenue 
Birmingham, Alabama



77

3. When did this discrimination take place!

4. Please tell your story of discrimination. Explain what 
unfair thing was done to you.

A mendment to Original Charge (5-9-1372)

After the number of stackers was reduced, I was 
rolled-back to crane-follower. Several white employees, 
having less seniority, continued to rank above me. 
The personnel director, of the plant, promised to 
correct his mistake but nothing was done by the griev­
ance procedure and I continued at a disadvantage be­
cause I am a Negro.

(The law requires that your charge be made under oath. 
You may take this paper for notarization to a notary 
public or other official who is authorized to administer 
oaths. If this is impractical, send this paper to the Com­
mission without having it notarized. The Commission will 
arrange to have the oath administered to you.)

I Swear or A ffirm T hat I H ave R ead the A bove and 
T hat It Is T rue to the B est of My K nowledge

D a t e : November 30, 1965
/ s /  H en ry  S m it h

Exhibit G

Subscribed and sworn to before me 
this 30 day of November, 1965.

/ s /  Calvin I). Banks EEOC Repr.



78

You need not be able to answer the questions below, but 
if you do know the answers, it will help the Commission 
to handle your complaint more quickly.

1. Have you filed a complaint about this discrimination 
with a State or local government agency!
□  Yes
□  No

If you checked yes, please give the following informa­
tion:
Name op A g en cy ....................... ...............................................

A ddress ............................................... -......................................

Exhibit G

Date Y oxj F iled Com plaint ..................................................

2. If your charge is against a company or a union, does 
it have more than one hundred (100) employees or 
members ?
□  Yes
□  No
□  Do Not Know 

Mail to:
Franklin D. Roosevelt, Jr., Chairman 
Equal Employment Opportunity Commission 
Washington, D. C. 20006



79

Order
(Filed May 16, 1966)

This cause, coming on to be heard, was submitted on 
defendant’s motion to dismiss the complaint on the ground 
that it fails to join indispensable parties defendant.

It appearing’ to the court that the United Steelwoikers 
of America, AFL-CIO and its Local Union No. 2250 have 
a material and substantial interest in the subject matter 
of the complaint which would be directly and vitally 
affected by any decree in this action and that this action 
could not be completely determined without the presence 
of the United Steelworkers of America, AFL-CIO and 
its Local Union No. 2250 as parties to this action:

It is, therefore, Ordered, A djudged and Decreed by 
the court that defendant’s said motion to dismiss the 
complaint be and the same hereby is sustained and that 
the complaint be and it hereby is dismissed, with leave, 
however, to plaintiffs to amend their complaint, if so 
advised, within 30 days after the date of this order, tô  
bring in said indispenable parties.

Done, this the 16th day of May, 1966.

/ s /  Seyboubn II. L ynne
Chief Judge



80

Amended Complaint
(Filed July 15, 1966)

Come now the plaintiffs herein pursuant to the order 
of this Court of May 16, 1966, and as enlarged by oral 
order granting plaintiffs leave to file an amended com­
plaint for the purpose of adding as party defendants: 
United States Steelworkers of America, AFL-CIO; Local 
Union No. 2250 of the United Steelworkers of America 
under the Presidency of defendant Calvin L. Parker.

I.

Jurisdiction of this Court is invoked pursuant to 
28 U.S.C. Sec. 1343 (4) and 42 U.S.C. Sec. 2000e-5(f). 
This is a suit in equity authorized and instituted pur­
suant to Title VII of the Act of Congress known as “The 
Civil Rights Act of 1964,” 42 U.S.C. Sections 2000e et seq. 
Jurisdiction of this Court is invoked to secure the pro­
tection of and redress the deprivation of rights secured 
by 42 U.S.C. Sections 2000e et seq., providing for in­
junctive and other relief against racial discrimination in 
employment.

II.

Plaintiffs bring this action on their own behalf and on 
behalf of others similarly situated pursuant to Rule 23(b) 
(2) of the Federal Rules of Civil Procedure. There 
are common questions of law and fact affecting the rights 
of other Negroes seeking equal employment opportunity 
without discrimination on the ground of race or color 
who are so numerous as to make it impracticable to bring 
them all before this Court. A common relief is sought. 
The interests of said class are adequately represented by 
plaintiffs.



81

Amended Complaint

III.
This is a proceeding for a preliminary and permanent 

injunction restraining the defendants from maintaining a 
policy, practice, custom and usage of (a) discriminating 
against plaintiffs and others similarly situated because of 
race or color, with respect to compensation, terms, condi­
tions and privileges of employment and (b) limiting, 
segregating and classifying its Negro employees, by agree­
ment and otherwise, in ways which deprive and tend to 
deprive plaintiffs and others similarly situated of employ­
ment opportunities and otherwise adversely affect and 
tend to affect their status as employees of defendant 
H. K. Porter Company, Inc. because of race or color at 
the mills, plants, and/or manufacturing facilities owned 
and operated by defendant Ii. K. Porter Company, Inc., 
in Birmingham, Alabama.

IY.

Plaintiffs Alvin C. Muldrow, Henry Smith and Council 
O’Neil Jackson are Negro citizens of the United States 
and the State of Alabama residing in the City of Birming­
ham, Alabama.

V .

A. Defendant H. K. Porter Company, Inc., (hereinafter 
referred to as “the Company” ) is a corporation incor­
porated under the laws of the State of Delaware, doing 
business in the State of Alabama and the City of Birming­
ham. The Company operates and maintains mills, plants 
and/or manufacturing facilities in the City of Birming­
ham, State of Alabama. The Company is an employer 
engaged in an industry which affects interstate commerce



82

and the Company employs more than one hundred em­
ployees.

B. Defendant United Steelworkers of America, AFL- 
CIO (hereinafter referred to as “ the Steelworkers” ) is 
a labor organization engaged in an industry affecting 
commerce and exist in whole or in part for the purpose 
of dealing with the Company concerning grievances, labor 
disputes, wages, rates of pay, hours and other terms or 
conditions of employment of employees of the Company 
at its mills, plants and/or manufacturing facilities in the 
City of Birmingham in the State of Alabama. The Steel­
workers have more than one hundred members.

C. The defendant Local 2250 of the United Steelworkers 
of America, AFL-CIO (hereinafter referred to as “Local 
2250” ), is an affiliate of the Steelworkers. Local 2250 is a 
labor organization engaged in an industry affecting inter­
state commerce and exists in whole or in part for the 
purpose of representing the Steelworkers and members 
of Local 2250 by dealing with the Company concerning 
grievances, labor disputes, wages, rates of pay, hours, 
and other terms or conditions of employment of employees 
of the Company not covered under the collective bargain­
ing agreement entered into by the Steelworkers and the 
Company at the Company’s mills, plants, and/or manu­
facturing facilities in the City of Birmingham in the 
State of Alabama. Local 2250 has more than 100 members. 
Defendant Calvin L. Parker is the principal officer of 
Local 2250.

Amended Complaint

VI.

A. Plaintiffs and the class they represent are employed 
in the Company Conners Steel Division located at 500



83

Powell Avenue, in the City of Birmingham and the State 
of Alabama. Plaintiffs and the class they represent have 
been at all times material to this action, members of 
Local 2250, and by virtue of their membership in Local 
2250 are members of the Steelworkers.

B. All matters regarding compensation, terms, condi­
tions and privileges of employment of the plaintiffs and 
the class they represent have been at all times material 
to this action, governed and controlled by collective bar­
gaining agreements entered into between the Steelworkers 
and the Company and/or local supplemental agreements 
(hereinafter referred to as “Agreements” ) entered into 
between Local 2250 and the Company. Under and pur­
suant to the terms of the Agreements, the defendants have 
established a promotional and seniority system, the design, 
intent and purpose for which is to continue and preserve, 
and which has the effect of continuing and preserving, the 
defendants’ long standing policy, practice, custom and 
usage of limiting the promotional and seniority rights of 
Negro employees of the Company because of race or color.

C. Pursuant to the terms of said Agreement an em­
ployee does not acquire seniority rights until he has served 
a probationary period in a department and subsequent 
thereto has requested, in writing, to have seniority as­
signed to him. While plaintiffs, and other members of the 
class they represent, have submitted written requests for 
assignment of seniority, the Company, with full acqui­
escence and condonation by the Steelworkers and Local 
2250, has failed and refused, and continues to refuse to 
assign senority to Negro employees on the same basis as 
the Company has assigned seniority to white employees.

Amended Complaint



84

1. The Company, with full acquiescence and condona­
tion by the Steelworkers and Local 2250, has assigned 
seniority to many white employees without such em­
ployees first having submitted a written request.

2. The Company, with full acquiescence and condona­
tion by the Steelworkers and Local 2250, has assigned 
seniority to some white employees who have been in 
the Company’s employ for substantially shorter periods 
of time than the plaintiffs and other members of the 
class they represent.

As a consequence, with the failure of the Company to 
assign seniority to Negro employees on the same basis 
as the white employees, plaintiffs and other members of 
the class they represent, have been assigned to a labor 
pool referred to as “Extra Board” . The “Extra Board” 
consists of employees who are not regularly scheduled to 
work. Plaintiffs by virtue of having been assigned to the 
“Extra Board” have lost and are losing substantial wages.

D. Under and pursuant to said Agreements the defen­
dants have established a pay rate schedule the purpose, 
design, and intent of which is to continue and preserve 
and which has the effect of continuing and preserving, 
the Company’s long standing policy, practice, custom and 
usage of paying Negro employees a lesser rate of pay 
than white employees, even though the Negro employees 
perform substantially the same job as white employees: 
The job of “layover” in the Rolling Mill is a job which 
has been traditionally limited to whites and pays more 
than the job of “catcher” in the Auxiliary Mill, a job 
which has traditionally been limited to Negroes. Employees

Amended Complaint



85

in both the job of “layover” and “catcher” do substan­
tially the same work.

E. The Company maintains racially segregated bath­
houses, locker and rest room facilities.

F. The Company maintains badge numbers assigned on 
the basis of race and color which has the consequence of 
racially segregating the Company’s time clocks.

VII.

All of the discriminatory practices herein alleged existed 
prior to July 2, 1965 and have continued to exist subse­
quent to July 2, 1965. Plaintiffs have been discriminated 
against because of their race and color with respect to 
compensation, terms, conditions and privileges of employ­
ment and the defendants have limited, segregated and 
classified the Negro employees in ways which deprive, and 
tend to deprive plaintiffs and others similarly situated, 
of employment opportunities because of race and color, 
all in violation of Title VII of the Act known as “ The 
Civil Rights Act of 1964” 42 U.S.C. §§2000e et seq.

VIII.

Neither the State of Alabama nor the City of Birming­
ham has a law prohibiting the unlawful practices herein 
alleged. On November 22, 1965, plaintiffs filed a charge 
with the Equal Employment Opportunity Commission al­
leging denial by the Company of their rights under Title 
VII of “The Civil Rights Act of 1964,” 42 U.S.C. §§2000e 
et seq. On January 11, 1966, the Commission found rea­
sonable cause to believe that violations of Title VII of 
the Civil Rights Act of 1964 had occurred by the Com­

Amended Complaint



86

pany. Subsequently, the Commission notified plaintiffs 
that compliance with Title VII had not been accomplished 
within the maximum period allowed to the Commission 
by Title YII of “The Civil Rights Act of 1964,” and that 
plaintiffs are entitled to maintain a civil action for relief 
in a United States District Court.

IX.

Plaintiffs have no plain, adequate or complete remedy at, 
law to redress the wrong alleged herein, and this suit for 
a preliminary and permanent injunction is their only 
means of securing adequate relief. Plaintiffs and the 
class they represent are now suffering and will continue 
to suffer irreparable injury from defendants’ policy, prac­
tice, custom and usage as set forth herein.

W hebeeobe, plaintiffs respectfully pray that this Court 
advance this case on the docket, order a speedy hearing 
at the earliest practicable date, cause this case to be in 
every way expedited, and upon such hearing to :

1. Grant plaintiffs and the class they represent, a pre­
liminary and permanent injunction enjoining defendants, 
H. K. Porter Company, Inc., United Steelworkers of 
America, AFL-CIO, and Local 2250 of the United Steel­
workers of America, AFL-CIO, their agents, successors, 
employees, attorneys and those acting in concert with them 
and at their direction from continuing or maintaining the 
policy, practice, custom and usage of denying, abridging, 
withholding, conditioning, limiting or otherwise interfer­
ing with the rights of the plaintiffs and others similarly 
situated to enjoy equal employment opportunities as se­
cured by Title VII of the Act known as “The Civil Rights 
Act of 1964,” 42 U.S.C. §2000e et seq. without discrimina­

Amended Complaint



87

tion on the basis of race or color, including but not 
limited to maintenance of any policy, practice, custom or 
usage o f :

(a) maintaining a seniority system which is discrimi­
natory on the basis of race or color;

(b) maintaining discriminatory pay rates for substan­
tially equivalent jobs on the basis of race or 
color;

(c) maintaining badge number assignments on the 
basis of race or color; and maintaining time 
clocks segregated on the basis of race or color;

(d) maintaining bathhouses, locker rooms and rest 
room facilities which are segregated on the basis 
of race or color.

2. Grant plaintiffs and the class they represent a pre­
liminary and permanent injunction and enjoining the de­
fendants, H. K. Porter Company, Inc., United Steelworkers 
of America, AFL-CIO, and Local 2250 of the United Steel­
workers of America, AFL-CIO, their agents, successors, 
employees, attorneys, and those acting in concert with 
them and at their direction, from continuing or maintain­
ing the policy, practice, custom and usage by agreement 
or otherwise of denying, abridging, withholding, condi­
tioning, limiting or otherwise interfering with the rights 
of the plaintiffs and other similarly situated and cause;

(a) Defendants to establish a seniority system free 
from discrimination on the basis of race or color;

(b) Defendants to establish a pay rate schedule for 
substantially equivalent jobs without discrimina­
tion on the basis of race and color;

Amended Complaint



88

(c) The Company to establish a badge number assign­
ment free from discrimination on the basis of race 
and color, and;

(d) The Company to establish bathhouses, locker 
rooms and rest room facilities which are not 
segregated on the basis of race or color.

3. Grant plaintiffs Alvin C. Muldrow, Henry Smith, 
and Council O’Neil Jackson back pay for each day they 
did not work by virtue of having been assigned to the 
“Extra Board” from the time of having been so wrong­
fully assigned to the present.

4. Allow plaintiffs their costs herein, including reason­
able attorney fees and other additional relief as may 
appear to the Court to be equitable and just.

/ s /  Oscar W . A dams, Je.
Oscae W . A dams, Je.

1630 Fourth Avenue, North 
Birmingham, Alabama 35203

Jack Greenberg
Leeoy D. Clark
Michael Meltsner,

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiff

Amended Complaint



89

Order Enlarging Time for Motion or Response to 
Plaintiffs’ Amended Complaint

(Filed July 27, 1966)

Upon the request of the defendants and the agreement 
of the plaintiffs and for good cause shown, it is hereby 
ordered that the time for the motion or response of de­
fendants to the plaintiffs’ Amended Complaint be and 
the same is hereby extended and enlarged for a period 
of thirty (30) days from the date hereof.

This the 27th day of July, 1966.

/ s /  Seyboukn H. L ynxe 
Seybourn H. Lynne 
United States District Judge



90

Motion to Dismiss by United Steelworkers, etc.

(Filed August 15, 1966)

Come now the defendants United Steelworkers of 
America, AFL-CIO, an unincorporated association; Local 
Union No. 2250 of the United Steelworkers of America, 
an unincorporated association; and Calvin L. Parker, 
President of Local 2250 of the United Steelworkers of 
America, and separately and severally move to dismiss 
the complaint, and as grounds therefor show:

1. The plaintiff fails to state a claim upon which relief 
can be granted against defendants or either of them.

2. The plaintiff’s complaint reveals on its face that 
the plaintiff has failed to exhaust available contractual 
remedies.

3. The complaint fails properly to allege Federal juris­
diction. It fails to allege a violation of the Civil Rights 
Act of 1964 within the operative period of that Act.

4. The plaintiff failed to institute his action within the 
time allowed by law. 42 U.S.C. §2000e—5(e).

5. The complaint fails to set out or attach copies of
(i) a charge under oath filed with the Commission naming 
these defendants; (ii) a determination by the Commission 
of reasonable cause; (iii) notice from the Commission 
of its inability to obtain voluntary compliance, all as 
provided in Section 706 of the Act.

6. The complaint is barred for the reason that while 
the provisions of Section 706(a) and 706(e) of Title VII 
of the Civil Rights Act provide for and require “methods



91

of conference, conciliation, and persuasion” by the Com­
mission with respect to the subject matter of a charge 
filed with the Commission and such methods and pro­
cedure are a prerequisite and condition to the institution 
of a civil action thereunder, there were no such methods 
or procedures followed within the period of time pro­
vided therefor or at any time with respect to the subject 
matter of the charge filed by the plaintiff or of the sub­
ject matter of the complaint in this action.

7. The persons constituting the alleged class are not 
sufficiently described to indicate that they are so numerous 
as to make it impracticable to bring them all before the 
court; and, accordingly, no sufficient basis for treating 
this as a class action under Rule 23 is alleged.

8. As to individual defendant Calvin L. Parker, the 
complaint does not allege that he is an employer, employ­
ment agency or labor organization subject to and as set 
forth in Section 706(a) of the Act, and the Court is there­
fore for that reason without jurisdiction of this complaint 
as against him.

Motion to Dismiss by United Steelworkers, etc.

Cooper, Mitch & Crawford

By /s /  J erome A. Cooper 
Jerome A. Cooper 

1025 Bank for Savings Bldg. 
Birmingham, Alabama



92

Motion to Dismiss by H. K. Porter Company. Ine.

(Filed August 25, 1966)

Comes now H. K. Porter Company, Inc., one of the 
defendants in the above styled cause, and moves the Court 
to dismiss the Amended Complaint filed in this action on 
the following grounds, separately and severally:

I.
The complaint as amended fails to state a claim upon 

which relief can be granted against this defendant.

II.

The complaint as amended is barred for the reason 
that while the provisions of Section 706(a) and 706(e) of 
Title VII of the Civil Eights Act provide for and require 
“methods of conference, conciliation, and persuasion” by 
the Equal Employment Opportunity Commission with re­
spect to the subject matter of charges filed with the Com­
mission and such methods and conciliation procedure are 
a prerequisite and condition to the institution of a civil 
action thereunder, there were no such methods or proce­
dures followed with respect to the subject matter of the 
charges filed by the plaintiffs or the subject matter of the 
complaint and amended complaint in this action prior to 
the institution of such action by the filing of the complaint.

III.

The complaint as amended shows on its face that the 
plaintiffs and the class which they claim to represent in 
this action have failed to exhaust the administrative and 
the contractual remedies provided for them by the Union 
contract for the redress of any grievances or claims which



93

they may have regarding their compensation, terms, con­
ditions, or privileges of employment.

IV.

The complaint as amended fails to allege conduct by 
this defendant in violation of the provisions of Title VII 
of the Civil Rights Act within the effective and operative 
period of such Title on and after July 2, 1965 but to the 
contrary shows on its face that it seeks to bring into issue 
and litigation alleged matters averred to have occurred 
or existed prior to the effective date of Title VII on 
July 2, 1965.

Motion to Dismiss by II. K. Porter Company, Inc.

V.

(1) The complaint as amended is barred by the statute 
of limitations applicable thereto in that this action was 
not instituted within the period of time required by Sec­
tion 706(e) of Title VII of the Civil Rights Act for the 
institution of civil actions thereunder.

(2) The provisions of Section 706(e) of Title VII of 
the Civil Rights Act provide a maximum period of time of 
sixty days after a charge is filed with the Commission for 
the Commission to attempt to secure voluntary compliance 
and, upon the expiration of such sixty day period, to 
notify the person filing the charge that he may institute 
a civil action. The provisions of Section 706(e) further 
provide that the civil action must be instituted within 
thirty days following such notification from the Commis­
sion upon the expiration of the sixty day period.

Here, charges regarding the subject matter of the 
amended complaint were filed with the Commission by



94

the plaintiffs Smith and Muldrow on September 27, 1965 
and by the plaintiff Jackson on October 11, 1965.

The sixty day period provided by Section 706(e) ac­
cordingly expired on or before November 27, 1965 with 
respect to the charges filed by the plaintiffs Smith and 
Muldrow and on or before December 11, 1965 with respect 
to the charge filed by the plaintiff Jackson. Therefore, 
this action, not having been instituted by the filing of the 
complaint until March 31, 1966 and of the amended com­
plaint on July 15, 1966, was not instituted within the 
statute of limitations of thirty days as required by Sec­
tion 706(e) and is barred.

(3) The plaintiffs filed amended charges with the Com­
mission on November 30, 1965, but the filing of such 
amended charges did not and could not extend the sixty 
day period and the thirty day statute of limitations pro­
vided by Section 706(e) or initiate another sixty day period 
or thirty day statute of limitations for the reason that 
such provisions of Section 706 of Title VII of the Civil 
Rights Act relate only to the periods of time following 
the filing of the charge.

(4) The complaint as amended is barred by the statute 
of limitations applicable thereto for the further and sepa­
rate reason that while the complaint as amended alleges 
that the plaintiffs were notified by the Equal Employment 
Opportunity Commission that they were entitled to main­
tain a civil action in a United States District Court, the 
complaint as amended fails to allege that this action was 
instituted within thirty days following such notification 
as required by Section 706(e) of Title VII of the Civil 
Rights Act for the institution of civil actions thereunder.

Motion to Dismiss by II. K. Porter Company, Inc.



95

VI.

The complaint as amended fails to allege that the charges 
filed by the plaintiffs with the Equal Employment Oppor­
tunity Commission were filed within the period of ninety 
days after the alleged unlawful employment practices oc­
curred as provided and required by Section 706(d) of the 
Civil Eights Act.

Motion, to Dismiss by H. K. Porter Company, Inc.

VII.
The complaint as amended fails to allege that the charges 

filed by the plaintiffs with the Equal Employment Oppor­
tunity Commission and the finding of reasonable cause 
relate to or are the same as or similar to the allegations 
of unlawful employment practices set forth in the com­
plaint as amended.

VIII.
The complaint as amended is barred for the reason that 

a finding of reasonable cause by the Commission itself, or 
at least by a quorum of three members of the Commission 
(Section 705(b) of the Act), is required by the provisions 
of Title VII of the Act as a prerequisite to the institution 
and maintenance of a civil action thereunder and that the 
only finding of reasonable cause as to any of the plaintiffs 
was made by only one member of the Commission.

IX.

(1) The institution and maintenance of this action as 
a class action is contrary to and prohibited by the provision 
of Section 706(e) of Title VII of the Civil Rights Act which 
limits the institution of civil actions thereunder to “ the 
person claiming to be aggrieved.”



96

(2) The institution and maintenance of this action as a 
class action is contrary to and prohibited by the fact 
that the provisions of Section 706(a) and 706(e) of Title 
VII of the Civil Rights Act provide for a civil action there­
under only by a person who has first filed a charge with 
the Equal Employment Opportunity Commission, and the 
complaint as amended shows on its face that only the 
plaintiffs, and not the class which they claim to represent 
in this action, have filed such charges with the Com­
mission.

(3) The complaint as amended shows on its face that 
the members of the class claimed to be represented in this 
action have not exhausted, or even attempted to pursue, the 
administrative remedies before the Equal Employment Op­
portunity Commission as provided by Sections 706(a) and 
706(e) of Title VII of the Civil Rights Act as a prerequisite 
to the institution of a civil action thereunder.

(4) While the provisions of Rule 23 of the Federal 
Rules of Civil Procedure require the presence of the 
prerequisites of both subdivisions (a) and (b) of such 
rule for the maintenance of a class action, the complaint 
as amended fails to allege the presence of the prerequisite 
of subdivision (a) and instead shows on its face that it 
purports to be brought only under subdivision (b) of 
such rule, which is not sufficient.

(5) The provisions of Rule 23 of the Federal Rules 
of Civil Procedure are not applicable to and do not au­
thorize the institution and maintenance of this action as 
a class action in that there is not present in and with 
respect to this action the requirements of such rule that 
there be questions of law or fact common to the class and

Motion to Dismiss by Ii. K. Porter Company, Inc.



97

that the claims asserted by the plaintiffs be typical of the 
claims of the class which they claim to represent.

X.

The Court is deprived and precluded by the provisions 
of the Norris-LaGuardia Act, 29 U.S.C. §§ 101-115, from 
granting the injunctive relief sought by the complaint as 
amended.

Motion to Dismiss by H. K. Porter Company, Inc.

/ s /  L u cien  I). G ardner, Jr. 
L u cien  D. Gardner, Jr.

/ s /  W illiam  F. G ardner 
W illiam  F. G ardner

Attorneys for Defendant 
H. K. Porter Company, Inc.

Cabaniss , J o h n sto n , G ardner &  Clark  
901 First National Building 
Birmingham, Alabama

Of Counsel



98

Motion for Order Requiring Intervention, etc.

(Filed September 8, 1966)

Come now the plaintiffs and move this court to enter 
an order requiring the Equal Employment Opportunity 
Commission to intervene in this action or to file an amicus 
curiae brief for the limited purpose of informing the court 
as to the propriety of actions taken by the Commission 
prior to the filing of suit by the plaintiffs. As grounds 
for such relief, plaintiffs allege the following:

1. Defendants in their Motions to Dismiss have asserted 
that the conditions precedent to a suit under Title VII 
of the Civil Rights Act of 1964 have not been satisfied. 
The defendants challenge the propriety of actions taken 
by the Equal Employment Opportunity Commission (here­
inafter called the Commission) in connection with plain­
tiffs’ complaint before that body prior to the institution 
of this action. Defendants alleges, inter alia, (1) that the 
Commission was without power to entertain plaintiffs’ 
complaint prior to the exhaustion by plaintiffs of admin­
istrative and contractual remedies, (2) that the Commis­
sion failed to undertake conciliation efforts, (3) that the 
commission failed to notify the plaintiffs of their right to 
institute a civil action within the period required by statute.

2. The defendants’ motion to dismiss, therefore, raises 
questions of law and fact concerning the jurisdiction of 
the Commission and the manner in which said Commission 
processed plaintiffs’ complaint.

3. The Commission is most privy to the factual allega­
tions in defendants’ Motion to Dismiss and has an interest 
in preserving the authority for their proceedings, and has



99

Motion for Order Requiring Intervention, etc.

sought to intervene on a prior occasion when like issues 
were presented to the court.

4. The Commission, pursuant to Section 705 (h) of the 
Civil Rights Act of 1964, has authority to direct their at­
torneys to appear for and represent the Commission in any 
case in court.
Dated: September 7, 1966

Respectfully submitted,

/ s /  L eroy D. Clark

J ack  Greenberg 
L eroy D. Clark  
R obert B elton

10 Columbus Circle 
New York, New York 10019

O scar W. A dams, Jr.
1630 Fourth Avenue, North 
Birmingham, Alabama

Attorneys for Plaintiffs



100

Plaintiffs’ Motion in Opposition to Defendant Porter’s 
Motion to Dismiss

(Filed September 28, 1966)

Come now the plaintiffs by their attorneys and move the 
Court to overrule and dismiss the Motion to Dismiss filed 
by the defendant, H. K. Porter Company, Inc., and cite 
as grounds therefor the following:

I
Plaintiffs’ complaint sets forth a claim upon which relief 

can be granted as provided by Rule 8 of the Federal Rules 
of Civil Procedure and Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000e-2(a) (1) (2) and 42 U.S.C. 
§ 2000e-2(c)(1)(3).

II

Title VII of the Civil Rights Act of 1964 does not require 
conciliation as a prerequisite to the maintenance of a civil 
suit.

I l l

In Paragraph IX  of plaintiffs’ amended complaint, plain­
tiffs indicate that they filed a charge with the Equal Em­
ployment Opportunity Commission, that the Commission 
found reasonable cause and that the union’s and com­
pany’s compliance with Title VII had not been accom­
plished within the maximum period allowed to the Com­
mission by Title VII of the Civil Rights Act of 1964. 
Plaintiffs need not exhaust contractual remedies, if any, 
prior to seeking enforcement of rights under Title VII.



101

IV

In Paragraphs III, VII C, D, E and F, and VIII of 
plaintiffs’ amended complaint, plaintiffs allege that defen­
dant has engaged in discriminatory practices in violation 
of Title VII of the Civil Rights Act of 1964, prior and 
subsequent to July 2, 1965 (the effective date of Title VII).

V

The plaintiffs’ amended complaint is not barred by the 
statute of limitations since plaintiffs filed their original 
complaint against H. K. Porter Co., Inc. within thirty (30) 
days after the receipt of the letter from EEOC advising 
them of their right to bring a civil action. The amended 
complaint was only filed after the Id. K. Porter Company 
filed a motion to dismiss for failure to join the United 
Steelworkers as an indispensable party. Since the allega­
tions which plaintiffs make concerning H. K. Porter Com­
pany in their amended complaint arose out of the conduct, 
transaction or occurrence which was set forth in their 
original complaint, the amended complaint will relate 
back to the time of the filing of the original complaint for 
the purposes of the statute of limitations. Any defense 
which the United Steelworkers may have concerning the 
statute of limitations is personal to them and cannot prop­
erly be asserted by the II. K. Porter Company. The alle­
gations made by plaintiffs in the amended complaint are 
sufficient to indicate that the plaintiffs have complied with 
all conditions precedent to the filing of this suit.

Plaintiffs’ Motion in Opposition to Defendant Porter’s
Motion to Dismiss



102

VI

Section 706(d) of Title VII of the Civil Rights Act does 
not require the plaintiffs in their complaint to allege that 
the charges filed by them with the EEOC were filed within 
the period of ninety (90) days after the unlawful employ­
ment practices occurred. However, as a matter of fact, 
plaintiffs did file their charge with the EEOC within ninety 
(90) days after the occurrence of the unlawful employ­
ment practices herein alleged.

VII

The plaintiffs have set forth the finding of reasonable 
cause by the EEOC with sufficient specificity to withstand 
a motion to dismiss.

Plaintiffs’ Motion in Opposition to Defendant Porter’s
Motion to Dismiss

VIII

Although Section 705(b) of Title VII of the Civil Rights 
Act of 1964 states that three members of the Commission 
shall constitute a quorum, it does not make a finding of 
reasonable cause by a quorum of three members a pre­
requisite to the institution and maintenance of a civil ac­
tion under Title VII. However, in the instant case a finding 
of reasonable cause preceded plaintiffs’ institution of this 
suit.

IX

A. The most logical and meaningful interpretation of 
Title VII would support the maintenance of a class action. 
See Hall v. Werthan Bag Corp., 251 F.Supp. 184 (M.D.



103

Term. 1966) in which a class action was held to be proper 
under Title VII of the Civil Rights Act of 1964.

B. The very nature and purpose of a class action is to 
obviate the necessity for all members of the class to file 
charges and utilize administrative processes with the EEOC 
which would be a burdensome if not insurmountable task.

C. At the time of the filing of the amended complaint, 
plaintiffs’ maintenance of a class action pursuant to Rule 
23(a)(3) [see Paragraph II of the amended complaint] 
was allowable. Rule 23 of the Federal Rules of Civil 
Procedure as amended, if that is what defendant makes 
reference to in Paragraph IX (4) of its Motion to Dismiss, 
was not effective until July 1, 1966, which was after the 
plaintiffs filed their amended complaint.

D. There are questions of law or fact common to the 
class which plaintiffs represent and the claims asserted 
by the plaintiffs are typical of the claims of the class they 
represent.

Plaintiffs’ Motion in Opposition to Defendant Porter’s
Motion to Dismiss

X

A simple reading of Section 706(h) of the Civil Rights 
Act of 1964 clearly indicates that the Norris-LaGuardia



104

Act, 29 U.S.C. §§ 101-115, does not apply with respect to 
civil actions brought under that section of Title VII.

Respectfully submitted,

/ s /  O scar W . A dams, J e .
O scar W. A dams, Jr.

1630 Fourth Avenue, North 
Birmingham, Alabama

J ack  Greenberg  
L eroy D. Clark  
R obert B elton

10 Columbus Circle 
New York, New York 10019

Plaintiffs’ Motion in Opposition to Defendant Porter’s
Motion to Dismiss



105

Plaintiffs’ Motion in Opposition to Defendants’ 
Motion to Dismiss

(Filed September 28, 1966)

Come now the plaintiffs by their attorneys and move the 
Court to overrule and dismiss the Motion to Dismiss filed 
by defendants United Steelworkers of America, Local 
Union No. 2250 and Calvin L. Parker, and cite as grounds 
therefor the following:

1. Plaintiffs’ complaint sets forth a claim upon which 
relief can be granted, as provided under Rule 8 of the 
Federal Rules of Civil Procedure and Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1) (2) and 
42 U.S.C. § 2000e-2(c) (1) (3).

2. Plaintiffs need not exhaust contractual remedies, if 
any, prior to seeking enforcement of rights under Title VII.

3. In Paragraph I of their amended complaint, plain­
tiffs properly invoked the jurisdiction of this Court. In 
Paragraphs III, VII C, D, E and F, and VIII of their 
amended complaint, plaintiffs allege that defendants have 
engaged in discriminatory practices in violation of Title 
VII of the Civil Rights Act of 1964, prior and subsequent 
to July 2, 1965 (the effective date of Title VII). Plaintiffs 
therefore have properly invoked the jurisdiction of this 
Court and have alleged a violation of Title VII within the 
operative period of that Title.

4. Plaintiffs instituted this action within the time al­
lowed by Title VII of the Civil Rights Act of 1964.

5. Plaintiffs allege in their complaint the proceeding 
before the Equal Employment Opportunity Commission in



106

accordance with Rule 9(c) and 9(d) of the Federal Rules 
of Civil Procedure. In Paragraph IX  of plaintiffs’ amended 
complaint, plaintiffs indicate that they filed a charge with 
the Equal Employment Opportunity Commission, that the 
Commission found reasonable cause and that the Union’s 
and Company’s compliance with Title VII had not been 
accomplished within the maximum period allowed to the 
Commission by Title VII of the Civil Rights Act of 1964.

6. In compliance with Section 706(a) of Title VII of the 
Civil Rights Act of 1964 (42 U.S.C. § 2000e-5(a)), on 
January 21, 1966, the EEOC informed defendants that 
“after investigation” they had determined that reasonable 
cause existed to believe that defendants had engaged in 
an unlawful employment practice within the meaning of 
Section 703 of the Civil Rights Act of 1964. Section 706(1) 
(42 U.S.C. § 2000e-5(l)) states that after a period of time 
if “ the Commission has been unable to attain voluntary 
compliance with this Title,” the Commission shall notify 
the charging party that a civil action may be initiated 
by him within thirty (30) days. A plain reading of this 
latter section does not support the Steelworkers’ and 
Union 2250’s Motion to Dismiss. Section 706(e) of the 
Civil Rights Act of 1964 does not make conciliation or 
even attempted conciliation by the EEOC a prerequisite 
to filing a complaint under Title VII.

7. A class action is properly stated in plaintiffs’ com­
plaint as provided under Rule 23 of the Federal Rules of 
Civil Procedure and Hall v. Werthan Bag Corp., 251 
F.Supp. 184 (M.D. Tenn. 1966). In Paragraph II of their 
amended complaint, plaintiffs allege that a common ques­
tion of law and fact affect the rights of other Negroes

Plaintiffs’ Motion in Opposition to Defendants’
Motion to Dismiss



107

seeking equal employment opportunity without discrimina­
tion on the grounds of race or color. This description is 
sufficient to indicate that the members of the class are 
too numerous to bring them all before the Court.

8. Calvin L. Parker is named a defendant in his capacity 
as the President of Local 2250 of the United Steelworkers 
of America. The Court has jurisdiction of this complaint 
against him since as the principal officer of Local 2250 
he must be joined as a defendant to enable the Court to 
properly proceed in a case which names Local 2250 as a 
defendant.

Plaintiffs’ Motion in Opposition to Defendants’
Motion to Dismiss

Respectfully submitted,

/ s /  O scar W . A dams, J r .
O scar W . A dams, J r .

1630 Fourth Avenue, North 
Birmingham, Alabama

J ack  Greenberg 
L eroy D. Clark  
R obert B elton

10 Columbus Circle 
New York, New York 10019



108

Order

(Filed March 13, 1967)

This cause came on to be heard on the defendants’ 
motions to dismiss and was heard and submitted following 
briefing and argument by counsel for the plaintiff and 
the defendants.

In conformity with the opinion of the court in the case 
of James C. Dent v. St. Louis-San Francisco Railway Co., 
et al, Civil Action No. 66-65, a copy of which is attached 
hereto:

It is Ordered, A djudged and D ecreed by the court that 
the complaint in this case be and the same is hereby dis­
missed without prejudice.*

Done, this the 10th day of March, 1967.
S eybourn  H. L y n n e

Chief Judge
A True Copy
W il l ia m  E. D avis, Clerk 
United States District Court 
Northern District of Alabama

By: / s /  M ary  L. T ortorici 
Deputy Clerk

* In tlie event a notice of appeal is filed in D en t or in any case re­
ferred to in footnote 4 to the opinion in that ease, counsel for plaintiff 
in each case may file a motion for a rehearing which will be held under 
submission pending disposition of such appeal.

Opinion

(Filed March 13, 1967)

[Printed heretofore at page 29 et seq.]



109

Plaintiffs’ Notice of Appeal

(Filed April 7, 1967)

IN THE UNITED STATES DISTRICT COURT 

F ob th e  N orthern  D xstbict of A labam a 

S ou th ern  D ivision  

C iv il  A ction  N o . 66-206

A lvin  C. M ulurow , H en ry  S m it h , C o uncil  O ’N eil  J ack so n , 
individually and on behalf of others similarly situated,

Plaintiffs,

H . K. P orter C o m pan y , I n c ., a Delaware corporation,

Defendant.

Notice is hereby given that Alvin C. Muldrow, Henry 
Smith, Council O’Neil Jackson, individually and on behalf 
of others similarly situated, the plaintiffs herein, hereby 
appeal to the United States Court of Appeals for the 
Fifth Circuit from an order of the United States District 
Court for the Northern District of Alabama, Southern 
Division dismissing plaintiffs’ complaint, said order dated



110

Plaintiffs’ Notice of Appeal

March 10, 1967 and filed in the clerk’s office on March 13, 
1967.

Dated: April 6, 1967.

/ s /  O scar W . A dams, J r .
Oscar W . A dams, J r .

1630 Fourth Avenue, North 
Birmingham, Alabama

J ack  G reenberg 
L eroy D. Clark

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs



I l l

Designation of Record

(Filed April 25, 1967)

Plaintiffs, through their undersigned attorneys, designate 
the entire record as the Record on Appeal in the above 
styled matter in which notice of appeal was filed April 6, 
1967.

/s /  O scar W. A dams, Jr.
O scar W . A dams, J r .

1630 Fourth Avenue, North 
Birmingham, Alabama

J ack  G reenberg 
L eroy D. Clark

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs



112

Clerk’s Certificate

U n ited  S tates op A m erica ,
N orthern  D istrict  op A labam a ,

I, W illiam  E. D avis, Clerk of the United States District 
Court for the Northern District of Alabama do hereby 
certify that the foregoing pages numbered from one (1) 
to seventy-five (75), both inclusive, comprise the original 
pleadings in this cause and are herewith attached as a 
full, true and correct transcript of the record on appeal 
in the Matter of A lv in  C. M tjldrow, H en r y  S m it h , C o uncil  
O ’N eal  J ackson , individually and on behalf of others simi­
larly situated, Appellants, vs. H. K. P orter C o m pan y , I n c ., 
a Delaware Corporation, et al ., Appellees, Civil Action 
No. 66-206, Southern Division, as fully as the same appears 
of record and on file in my office.

I n  W itness W hereof , I  have hereunto subscribed my 
name and affixed the seal of said Court at Birmingham, 
Alabama, in said District, on this the 12th day of May, 1967.

/ s /  W illiam  E. D avis

W illiam  E. D avis, C lerk

United States District Court

[ s e a l ]



113

VOLUME III

IN THE UNITED STATES DISTRICT COURT 

Foe t h e  N orthern  D istrict  of A labam a 

S o u th ern  D ivision  

C ivil  A ction  N o. CA 66-320

W o rth y  P earson , H erm an  T rout , L evert V in c e n t , 
N a t h a n ie l  L. J e n k in s , individually and on behalf 

of others similarly situated,
Plaintiffs,

A labam a  B y -P roducts C orporation , A Corporation; 
L ocal 12136, D istrict  50, U n ited  M in e  W orkers 

of A m erica ,
Defendants.

Complaint

(Filed May 17, 1966)

I

Jurisdiction of this court is invoked pursuant to 28 U.S.C. 
Sec. 1443 (4). This is a suit in equity authorized and 
instituted pursuant to Title VII of the Act of Congress 
known as “The Civil Rights Act of 1964,” 42 U.S.C. Sec­
tions 2000e et seq., and pursuant to 42 U.S.C. Sec. 1983. 
The jurisdiction of this court is invoked to secure pro­
tection of and to redress the deprivation of rights secured 
by 42 U.S.C. Sections 2000e et seq., providing for injunc-



114

tive and other relief against racial discrimination in em­
ployment, and by 42 U.S.C. Sec. 1981, providing for the 
equal rights of citizens and all persons within the juris­
diction of the United States.

II
The plaintiffs bring this action on their behalf and on 

behalf of others similarly situated pursuant to Rule 23 
(a) (3) of the Federal Rules of Civil Procedure. There 
are common questions of law and fact affecting the rights 
of other Negroes seeking equal employment opportunity 
without discrimination on the ground of race or color who 
are so numerous as to make it impracticable to bring 
them all before this court. A common relief is sought. 
The interests of the class are adequately represented by 
plaintiffs.

III
This is a suit for a preliminary and permanent injunc­

tion restraining defendants from continuing to limit, segre­
gate, classify or otherwise discriminate against plaintiffs 
and their class in ways which deprive or tend to deprive 
them of employment opportunities, limit such employment 
opportunities or otherwise adversely affect their status 
as employees because of their race or color.

IV

This is a proceeding for a preliminary and permanent 
injunction restraining defendants from maintaining a 
policy, practice, custom or usage of (a) discriminating 
against plaintiffs and others similarly situated because 
of race or color with respect to compensation, terms, con­

Complaint



115

ditions and privileges of employment, and (b) limiting, 
segregating and classifying its employees in ways which 
deprive and tend to deprive plaintiffs and others similarly 
situated of employment opportunities and otherwise ad­
versely affect and tend to affect their status as employees 
because of race or color.

Complaint

V

The plaintiffs, Worthy Pearson and Herman Trout are 
Negro citizens of the United States and the State of Ala­
bama residing in the City of Birmingham, Alabama. The 
plaintiff, Nathaniel L. Jenkins is a Negro citizen of the 
United States and the State of Alabama residing in Fair- 
field, Alabama. The plaintiff, Levert Vincent is a Negro 
citizen of the United States and the State of Alabama 
residing in Tarrant, Alabama.

VI

Defendant, Alabama By-Products Corporation is a cor­
poration incorporated under the laws of the State of 
Alabama. The defendant is an employer engaged in an 
industry which affects interstate commerce and employs 
more than 100 employees.

VII

The defendant, Local 12136, District 50, United Mine 
Workers of America, is a labor union and plaintiffs are 
members of said union.

Plaintiffs are discriminated against by the defendants in 
that:

A. Separate lines of progression are maintained by the 
defendants for Negro and white employees.



116

B. Plaintiffs and the class that they represent have 
been denied an opportunity by defendants to gain ex­
perience on jobs by the defendants that is essential to 
being promoted to better employment.

C. The defendant, Alabama By-Products Corporation, 
has pursuant to Sec. 20 of the Labor-Management Agree­
ment entered into by defendant company and defendant 
union, arbitrarily determined that because of the previous 
limited job opportunities for Negroes, none are qualified 
for promotion to jobs that were previously held by whites 
when compared to a white person that bids for the vacancy.

D. The defendants have ignored the seniority of plain­
tiffs in making promotions and have promoted white em­
ployees who had less seniority than plaintiffs to jobs 
which plaintiffs were entitled to because of their superior 
seniority status.

E. The defendant, Alabama By-Products Corporation 
maintains segregated facilities in that the rest rooms, 
locker rooms, showers, and credit union activities are 
operated on a racially-designated basis.

F. Defendant union has failed to represent plaintiffs 
with the end toward eliminating the above discriminatory 
practices.

Complaint

VIII

Plaintiffs are qualified for promotions and training for 
promotions that could lead to better paying positions with 
the defendant company.



117

IX
Neither the State of Alabama nor the City of Birming­

ham has a law prohibiting the unlawful practices alleged 
herein. Plaintiffs filed a complaint with the Equal Em­
ployment Opportunity Commission alleging denial by de­
fendants of their rights under Title VII of “The Civil Rights 
Act of 1964,” 42 U.S.C. Sections 2000e et seq. On April 1, 
1966, the Commission found reasonable cause to believe 
that a violation of the Act had occurred by the defendants. 
On April 18, 1966, the Commission notified plaintiffs that 
the defendants compliance with Title VII had not been 
accomplished within the maximum period allowed to the 
Commission by Title VII of “ The Civil Rights Act of 
1964,” 42 U.S.C. Sections 2000e et seq., and that plaintiffs 
are entitled to maintain a civil action for relief in a United 
States District Court.

Complaint

X
Plaintiffs have no plain, adequate or complete remedy 

at law to redress the wrongs alleged and this suit for a 
preliminary and permanent injunction is their only means 
of securing adequate relief. Plaintiffs and the class they 
represent are now suffering and will continue to suffer 
irreparable injury from defendant’s policy, practice, cus­
tom and usage as set forth herein.

W herefore , plaintiffs respectfully pray this Court ad­
vance this cause on the docket, order a speedy hearing 
at the earliest practicable date, cause this case to be in 
every way expedited and upon such hearing to :

1. Grant plaintiffs and the class they represent a prelim­
inary and permanent injunction enjoining the defendants,



118

Alabama By-Products Corporation, a corporation, Local 
12136, District 50, United Mine Workers of America, their 
agents, successors, employees, attorneys, and those acting- 
in concert with them and at their direction from continuing 
or maintaining a policy, practice, custom and usage of 
denying, abridging, withholding, conditioning, limiting or 
otherwise interfering with the right of plaintiffs to a single 
line of progression, equal application of seniority rights, 
admission to employee training programs for better jobs 
and the use of the facilities of the company such as rest 
rooms, locker rooms, shower rooms, and credit union ac­
tivities on an equal basis with white employees at defen­
dants firm in Birmingham, Alabama.

2. Grant plaintiffs and the class they represent a prelim­
inary injunction enjoining defendants, Alabama By-Prod­
ucts Corporation, Local 12136, District 50, United Mine 
Workers of America, its agents, successors, employees, 
attorneys, and those acting in concert with them and at 
their direction from continuing or maintaining the policy, 
practice, custom and usage of denying, abridging, with­
holding, conditioning, limiting or otherwise interfering with 
the rights of the plaintiffs and others similarly situated to 
enjoy equal employment opportunities as secured by Title 
VII of the Act known as “ The Civil Rights Act of 1964,” 
42 U.S.C. Sections 2000e et seq., and 42 U.S.C. Sec. 1981, 
without discrimination on the basis of race or color, in­
cluding but not limited to a single line of progression, equal 
application of seniority rights, admission to employee train­
ing programs for better jobs and the use of the facilities 
of the company such as rest rooms, locker rooms, shower 
rooms, and credit union activities on an equal basis with

Complaint



119

white employees at defendants firm in Birmingham, Ala­
bama.

3. Grant plaintiffs, Worthy Pearson, Herman Trout, 
Levert Vincent and Nathaniel L. Jenkins back pay from 
the time that they were wrongfully denied equal employ­
ment opportunities by the defendants.

4. Grant plaintiffs their costs herein, including reason­
able attorneys fees and other additional relief as may 
appear to the Court to be equitable and just.

/ s /  O scar W. A dams, Jr.
O scar W. A dams, Jr.

1630 Fourth Avenue, North 
Birmingham, Alabama 35203

J ack  G reenberg 
L eroy D . Clark

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs

Complaint



120

Motion to Dismiss by Alabama, etc.

(Filed June 14, 1966)

Comes now Alabama By-Products Corporation, one of 
the defendants in the above-styled cause, and moves the 
Court to dismiss the complaint on the following grounds, 
separately and severally:

I.

The complaint fails to state a claim upon which relief 
can be granted.

II.

The complaint fails to name and to join an indispensable 
party defendant to this action in that the complaint names 
only Local Union 12136 of District 50, United Mine Workers 
of America (hereinafter referred to as “the Local Union” ) 
but has not named or joined District 50, United Mine 
Workers of America (hereinafter referred to as “the In­
ternational Union” ), and the International Union has a 
material and substantial interest in the subject matter of 
the complaint which would be directly and vitally affected 
by any decree in this action, this action could not be com­
pletely determined or complete relief accorded among 
those already parties without the presence of the Inter­
national Union as a party to this action, this complaint 
seeks to annul, hinder, or affect contracts between this 
defendant and the International Union, and the mainte­
nance of this action without the presence of the Interna­
tional Union would leave the action in such a condition 
that its final termination would be inconsistent with equity.

The status of the International Union as an indis-



121

pensable party to this action is shown in more detail by 
the following separate and several reasons:

(1) The plaintiffs and the class which they claim to 
represent in this action are now and have at all times 
material to this action been represented for purposes of 
collective bargaining for all matters regarding their com­
pensation, terms, conditions, and privileges of employment 
not by the Local Union alone but rather by both the In­
ternational Union and the Local Union.

(2) This defendant is obligated both by law and con­
tract to recognize, negotiate, and contract with the Inter­
national Union as well as the Local Union for all matters 
regarding the compensation, terms, conditions, and priv­
ileges of employment of the employees employed at the 
defendant’s By-Products plant, including the plaintiffs and 
the class which they claim to represent in this action.

(3) The collective bargaining agreements which govern 
and control the compensation, terms, conditions, and priv­
ileges of employment of the employees at the defendant’s 
By-Products plant, including the plaintiffs and the class 
they claim to represent, are and have at all times material 
to this action been entered into and maintained by and 
between this defendant and the International Union acting 
on behalf of the Local Union.

The most recent and the current such collective bargain­
ing agreement (hereinafter referred to as “the Union 
contract” ) was entered into on July 1, 1965 and is attached 
hereto and made a part hereof as Exhibit “A” . The status 
of the International Union as the contracting party to this 
contract is shown by the provision that the contract is 
made and entered into between the Alabama By-Products

Motion to Dismiss by Alabama, etc.



122

Corporation and “International Union of District 50, United 
Mine Workers of America, on behalf of its affiliated Local 
Union No. 12136 as party of the second part (herein 
called ‘Union’ ).” (Page 3).

(4) There has further been negotiated and entered into 
an agreement which was specifically designed to handle 
and adjust the promotions, the promotional opportunities, 
and the training of employees employed at the defendant’s 
By-Products plant, including the plaintiffs and the class 
which they claim to represent in this action, and such 
agreement was entered into between this defendant and 
both the International Union and the Local Union.

A copy of such agreement is attached hereto and made 
a part hereof as Exhibit “B” , and the status of the Inter­
national Union as a contracting party to such agreement 
is shown by the recital of the meetings with “the local 
union committee and District 50 officials” and by the ex­
ecution of the agreement by the International Union.

(5) The claims, matters, and allegations which the com­
plaint in this action seeks to bring into issue and litigation 
are substantially and materially governed and controlled 
by provisions of the Union contract entered into with this 
defendant by the International Union on behalf of the 
Local Union, by the agreement governing the promotion 
and training of employees entered into with this defen­
dant by both the International Union and the Local Union, 
and by the status of both the International Union and the 
Local Union under law and contract as the sole and ex­
clusive bargaining representative of the plaintiffs and of 
the class which they claim to represent in this action. 
For example:

Motion to Dismiss by Alabama, etc.



123

(a) The allegation of the complaint regarding ac­
tion allegedly taken by this defendant “pursuant to 
Sec. 20 of the Labor-Management Agreement entered 
into by defendant company and defendant union” obvi­
ously seeks an adjudication regarding a provision of 
the contract which has been entered into with this 
defendant by the International Union on behalf of the 
Local Union.

(b) The allegation of the complaint regarding the 
alleged denial to the plaintiffs of “an opportunity by 
defendants to gain experience on jobs” could not be 
adjudicated without construction or application of the 
agreement concerning the promotion and training of 
employees which has been negotiated and entered into 
with this defendant by both the International Union 
and the Local Union.

(c) The allegation of the complaint that the “defend­
ant union has failed to represent plaintiffs” could not 
be adjudicated without the presence of the Interna­
tional Union as a party to this action in that the Inter­
national Union as well as the Local Union is the repre­
sentative of the plaintiffs and the class which they 
claim to represent and in that the “ Settlement of Dis­
putes” article of the Union contract provides for the 
adjustment and handling of claims, grievances, and 
disputes by the International Union as well as the 
Local Union in Step Three of the Grievance Procedure 
and in Arbitration (Pages 36-37).

(6) The Local Union is a subordinate body and subject 
to the policies and the directions of the International Union.

Motion to Dismiss by Alabama, etc.



124

(7) The maintenance of this action without the presence 
of the International Union and any final decree in this ac­
tion without the presence of the International Union would 
not and could not settle the matters that are the subject of 
the complaint, could result in an adjudication regarding 
the provisions of the Union contract and the agreement 
concerning the promotion and training of employees with­
out the presence of the International Union as a party to 
such contract and agreement, and could place this defend­
ant in the position of being directed by Court decree to 
take action contrary to or inconsistent with the provisions 
of the Union contract and the agreement concerning the 
promotion and training of employees without the presence 
of the International Union as a party to such contract and 
agreement.

/ s /  Drayton T. S cott 
Drayton T. S cott

/ s /  W illiam F. Gardner 
W illiam F. Gardner

Attorneys for Defendant 
Alabama By-Products Corporation

Cabaniss , J o h n sto n , G ardner &  C lark  
901 First National Building 
Birmingham, Alabama

Of Counsel

Motion to Dismiss by Alabama, etc.



125

A G R E E M E N T

BETWEEN

ALABAMA BY-PRODUCTS CORPORATION
AND

INTERNATIONAL UNION OF DISTRICT 50 
UNITED MINE WORKERS OF AMERICA

Exhibit A

LOCAL UNION NO. 12136

Dated as of July 1, 1965

[Not Printed]



126

TARRANT, ALABAMA 

March 14, 1966.
MEMORANDUM OE UNDERSTANDING O F  POLICY AND PRACTICE 

REGARDING IN -PLA N T TRAINING FOR PROMOTION AND 

PROGRESSION IN  JOB CLASSIFICATIONS.

In recent meetings between management and the local 
union committee and District 50 officials seniority rights 
and job opportunities of our employees were discussed in 
an effort to clarify the company’s current procedure of fill­
ing temporary vacancies, determining successful bidders 
in the awarding of advertised jobs, and the training of 
employees for job advancement.

In order to have available qualified men to fill vacant 
jobs during vacations, sickness, etc., it is necessary to 
retain additional men and train them plant-wide to work 
wherever needed. These men make up a group which has 
been designated as the Labor Department and who do not 
hold bid-in jobs. It is agreed that the training and qualifica­
tions gained by these men while in the Labor Department 
will not be given precedence over departmental seniority 
in determining the successful bidder on advertised jobs, as 
follows:

“A senior employee with departmental seniority bidding 
on an advertised job in his own department will be 
given preference over any qualified employee in the 
Labor Department bidding on the same job.”

“A senior employee with departmental seniority bidding 
on an advertised job in a department in which he holds 
no seniority will be given preference over any qualified 
employee in the Labor department bidding on the 
same job.”

Exhibit B

Company Copy



127

In regard to the opportunities of the senior men to ad­
vance upward in job rates and classifications in their own 
department, it is recognized that we now have a number of 
men in each department holding regular bid-in jobs who are 
trained and qualified to work the higher rated jobs. In fill­
ing vacancies in the higher rated jobs, qualifications will be 
given precedence over departmental seniority.

When it becomes necessary to train additional men, senior 
employees will be given the opportunity to so train and 
qualify. The selection of employees by the company will be 
determined by physical fitness and ability to qualify for 
additional training. If and when necessary, employees so 
selected will alter their work schedules in order to train in 
higher classifications. Selectees for training will be from 
the lower rated job groups in the lines of progression as 
illustrated by departments on the attached charts.

This memorandum of understanding in no way changes 
or modifies the agreement between the company and the 
Union.
For the Company:
/ s /  H . J. H ager

For District 50:
/ s /  C. W . M cC oleman  

Reg. Dir. Reg. 29 
/ s /  W alter M cCarty

A pproved :

/ s /  E lwood M offett 
President
District #50, U.M.W.A.

Exhibit B

For the Local Union:
/ s /  T hom as E . W alden 
/ s /  H . V . H igginbotham  
/ s /  L. 0. Guthrie  
/ s /  R. F. T aylor 
/ s /  M. J. S coggin, Jb.
/ s /  P. H. D u k e , Jr.
/ s /  A l  J em ison



128

Order

(Filed July 6, 1966)

This cause, coming on to be heard on June 30, 1966, was 
submitted to the court on motion filed in behalf of defend­
ant Alabama By-Products Corporation to dismiss the com­
plaint herein. Upon consideration of the motion, and it 
appearing to the court that the complaint fails to join the 
International Union of District 50, United Mine Workers 
of America, an indispensable party defendant hereto, it is 
the opinion of the court that the motion to dismiss is due 
to be sustained.

It is, accordingly, O rdered, A djudged and D ecreed by the 
court that the motion to dismiss the complaint filed in be­
half of defendant Alabama By-Products Corporation be 
and the same hereby is granted, and said complaint is here­
by dismissed, with leave, however, to plaintiffs to amend 
their complaint, within twenty days from and after the date 
of this order, to include the indispensable party.

Done, this the 5th day of July, 1966.

S eybourn  H . L y n n e  
Chief Judge



129

Amended Complaint

(Filed July 25, 1966)

Come now the plaintiffs herein pursuant to the order 
of this Court of July 5, 1966, granting plaintiffs leave to 
file an amended complaint to add as an indispensable party 
defendant the International Union of District 50 of the 
United Mine Workers of America.

I

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. § 1343 (4) and 42 U.S.C. §2000e-5(f). This is a 
suit in equity authorized and instituted pursuant to Title 
VII known as “ The Civil Rights Act of 1964” 42 U.S.C. 
§ 2000e et seq. Jurisdiction of this Court is invoked to 
secure the protection of and to redress the deprivation of 
rights secured by 42 U.S.C. § 2000e et seq., providing for 
injunctive and other relief against racial discrimination in 
employment.

II
Plaintiffs bring this action on their own behalf and on 

behalf of others similarly situated pursuant to Rule 23 (b)
(2) of the Federal Rules of Civil Procedure. There are com­
mon questions of law and fact affecting the rights of other 
Negroes seeking equal employment opportunity with de­
fendant, Alabama By-Products Corporation, and who are 
members of defendant International Union of District 50, 
United Mine Workers of America and Local Union No. 
12136 of International Union of District 50, United Mine 
Workers of America, without discrimination on the ground 
of race or color who are so numerous as to make it im­
practicable to bring them all before this Court. A common



130

relief is sought. The interests of said class are adequately 
represented by the plaintiffs.

I ll
This is a proceeding for a preliminary and permanent in­

junction restraining the defendants from maintaining a 
policy, practice, custom or usage of': (a) discriminating 
against plaintiffs and others similarly situated because of 
race or color with respect to compensation, terms, condi­
tions or other privileges of employment; and (b) limiting, 
segregating or classifying Negro employees of defendant 
Alabama By-Products Corporation in ways which deprive 
and tend to deprive plaintiffs and others similarly situated 
of employment opportunities or otherwise adversely affect 
and tend to affect their status as employees because of race 
or color.

Amended Complaint

IV
A. Plaintiffs Worthy Pearson and Herman Trout are 

Negro citizens of the United States and the State of Ala­
bama residing in the City of Birmingham, Alabama. Plain­
tiff Nathaniel L. Jenkins is a Negro citizen of the United 
States and the State of Alabama residing in Fairfield, Ala­
bama. Plaintiff Levert Vincent is a Negro citizen of the 
United States and the State of Alabama residing in Tar­
rant, Alabama.

B. Plaintiffs and the class they represent are presently 
employed by defendant Alabama By-Products Corporation 
at the Tarrant Coke Plant Division located in the City of 
Birmingham, Alabama.



131

C. Plaintiffs and the class they represent have been at 
all times material to this action members of Local Union 
No. 12136, International Union of District 50, United Mine 
Workers of America, and by virtue of their membership in 
Local Union No. 12136, are members of International Union 
of District 50, United Mine Workers of America.

V

A. Defendant Alabama By-Products Corporation (here­
inafter referred to as “the Company” ) is a corporation do­
ing business in the State of Alabama and the City of 
Birmingham. The Company is an employer engaged in an 
industry affecting interstate commerce. The Company 
operates and maintains mills, plants and/or other manufac­
turing facilities in the State of Alabama and the City of 
Birmingham for the production of coke and other by­
products of coal. The Company employs more than 100 
persons.

B. Defendant International Union of District 50, United 
Mine Workers of America (hereinafter referred to as “ the 
Mine Workers” ) is a labor organization engaged in an 
industry affecting interstate commerce and exists in whole 
or in part for the purpose of dealing with the Company con­
cerning grievances, labor disputes, wages, rates of pay, 
hours and other terms or conditions of employment of em­
ployees of the Company at its mills, plants and/or other 
manufacturing facilities located in the City of Birmingham, 
Alabama.

C. Defendant Local Union No. 12136, International 
Union of District 50, United Mine Workers of America 
(hereinafter referred to as “Local 12136” ) is a labor or­

Amended Complaint



132

ganization engaged in an industry affecting interstate 
commerce and exists in whole or in part for the purpose 
of representing the Mine Workers and members of Local 
12136 by dealing with the Company concerning grievances, 
labor disputes, wages, rates of pay, hours and other terms 
or conditions of employment of employees of the Company 
where not covered under collective gargaining agreements 
entered into by the Mine Workers and the Company. Local 
12136 has more than 100 members.

VI
A. All matters regarding compensation, terms, condi­

tions and privileges of employment of the plaintiffs and 
the class they represent have been, at all times material to 
this action, governed and controlled by collective bargain­
ing agreements entered into by the Mine Workers and the 
Company and/or supplemental agreements entered into 
between Local 12136 and the Company (hereinafter referred 
to as “Agreement” )- Nothwithstanding the terms of the 
Agreements the plaintiffs and the class they represent have 
been and are discriminated against by the defendants in 
that:

(1) Separate lines of progression based solely on race 
or color are maintained by defendants for Negro and white 
employees. If a Negro employee is in a so-called “white” 
line of progression, such employment is on a token basis 
only.

(2) Plaintiffs and the class they represent have been 
denied the opportunity by the defendants to gain experience 
on jobs which could lead to better paying and more desir­
able positions.

Amended Complaint



133

(3) The Company has arbitrarily determined that be­
cause of previous limitations placed on Negroes because 
of race or color, none is qualified for promotions to jobs 
previously limited to white persons.

(4) The defendants have ignored the seniority rights of 
plaintiffs and other members of the class they represent in 
making promotions, and have promoted white employees 
who had less seniority than plaintiffs to jobs which plain­
tiffs were entitled to because of their superior seniority 
status.

(5) The Company maintains segregated facilities in that 
the rest rooms, locker rooms, shower rooms, and credit union 
activities are operated on a racially segregated basis.

(6) The Mine Workers and Local 12136 have failed to 
adequately represent the plaintiffs for the purpose of 
eliminating the aforementioned discriminatory practices.

B. All of the practices herein alleged existed prior to, 
and continued to exist subsequent to, July 2, 1965, all in 
violation of Title VII of “ The Civil Bights Act of 1964” 42 
U.S.C. § 2000e et seq.

Amended Complaint

VII

Plaintiffs are qualified for promotions and training for 
promotions which could lead to better paying and more 
desirable job classifications with the Company.

VIII
A. Neither the State of Alabama nor the City of Birm­

ingham has a law prohibiting the unlawful practices herein



134

alleged. Pursuant to the provisions of Title Y II of the 
Civil Rights Act of 1964, the plaintiffs filed a complaint 
with the Equal Employment Opportunity Commission al­
leging denial by the Company and Local 12136 of their 
rights under Title YII. On April 1, 1966, the Commission 
found reasonable cause to believe that a violation of the 
Act had occurred by the Company and Local 12136. On 
April 18, 1966, the Commission notified plaintiffs that the 
Commission had not achieved voluntary compliance by the 
Company and Local 12136 within the maximum period al­
lowed to the Commission by Title VII of the Civil Rights 
Act of 1964, and that plaintiffs were entitled to initiate a 
civil action for relief in a United States district court.

B. On May 17, 1966 plaintiffs filed a complaint against 
the Company and Local 12136 in the United States District 
Court for the Northern District of Alabama, Southern Divi­
sion. On June 16, 1966, the Company filed a motion to 
dismiss for failure to join the Mine Workers. By order of 
the court of July 5, 1966, the court granted leave to file an 
amended complaint to add the Mine Workers as a party 
defendant.

Amended Complaint

IX

Plaintiffs have no plain, adequate or complete remedy at 
law to redress the wrongs alleged herein and this suit for a 
preliminary and permanent injunction is their only means 
of securing adequate relief. Plaintiffs and the class they 
represent are now suffering and will continue to suffer ir­
reparable injury from the defendants’ policies, practices, 
customs and usages as set forth herein.

W herefore plaintiffs respectfully pray this court ad­
vance this case on the docket, ordering a speedy hearing at



135

the earliest practicable date, cause this case to be in every 
way expedited and upon such hearing to :

(1) Grant the plaintiffs and the class they represent a 
preliminary and permanent injunction enjoining the de­
fendants, Alabama By-Products Corporation, International 
Union of District 50, and Local Union No. 12136, their 
agents, successors, employees, attorneys, and those acting 
in concert with them and at their direction from continuing 
or maintaining a policy, practice, custom or usage of deny­
ing, abridging, withholding, conditioning, limiting or other­
wise interfering with the rights of the plaintiffs as pro­
vided under Title VII of “The Civil Rights Act of 1964” 42 
U.S.C. § 2000e et seq.

(2) Grant the plaintiffs and the class they represent a 
preliminary and permanent injunction enjoining the de­
fendants, Alabama By-Products Corporation, International 
Union of District 50 United Mine Workers of America, and 
Local Union No. 12136, District 50, United Mine Workers 
of America, their agents, successors, employees, attorneys 
and those acting in concert with them and at their direction 
from continuing and maintaining a policy, practice, custom 
or usage of denying, abridging, withholding, conditioning, 
limiting or otherwise interfering with the rights of the 
plaintiffs to a non-discriminatory application of seniority 
rights; admission to employee training programs which 
can lead to better jobs; and the use of facilities of the 
Company such as rest rooms, locker rooms, shower rooms, 
and credit union activities on an equal basis with white 
employees.

(3) Grant plaintiffs Worthy Pearson, Herman Trout, 
Levert Vincent and Nathaniel L. Jenkins back pay from

Amended Complaint



136

the time they were wrongfully denied equal employment 
opportunities by the defendants to the present.

(4) Grant plaintiffs their costs herein including reason­
able attorneys’ fees and other additional relief as may ap­
pear to the court to be equitable and just.

Bespectfully submitted,

/ s /  Oscar W . A dams, J r .
O scar W . A dams, J r .

1630 Fourth Avenue, North 
Birmingham, Alabama 35203

J ack  Greenberg 
L eroy D . Clark

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs

Amended Complaint



137

Comes now Alabama By-Products Corporation, one of 
the defendants in the above-styled cause, and moves the 
Court to dismiss the Amended Complaint filed in this 
action on the following grounds, separately and severally:

I.
The complaint as amended fails to state a claim upon 

which relief can be granted.

Motion to Dismiss by Alabama, etc.

(F iled  August 5, 1966)

II.
The complaint as amended is barred for the reason 

that while the provisions of Section 706(a) and 706(e) of 
Title VII of the Civil Bights Act provide for and require 
“methods of conference, conciliation, and persuasion” by 
the Commission with respect to the subject matter of 
charges filed with the Commission and such methods and 
conciliation procedure are a prerequisite and condition to 
the institution of a civil action thereunder, there were no 
such methods or procedures followed with respect to the 
subject matter of the charges filed by the plaintiffs or the 
subject matter of the complaint and amended complaint 
in this action prior to the institution of such action by 
the filing of the complaint.

III.

The action is barred by the statute of limitations appli­
cable thereto in that it was not instituted within the 
period of time required by Section 706(e) of Title VII 
of the Civil Bights Act for the institution of civil actions 
thereunder.



138

Specifically, the provisions of Sections 706(e) of Title 
VII of the Civil Rights Act provide a maximum period 
of time of sixty days after a charge is filed with the Com­
mission for the Commission to attempt to secure voluntary 
compliance and, upon the expiration of such sixty day 
period, to notify the person filing the charge that he may 
institute a civil action. The provisions of Section 706(e) 
further provide that the civil action must be instituted 
within thirty days following such notification from the 
Commission upon the expiration of the sixty day period.

Here, charges regarding the subject matter of the com­
plaint were filed with the Commission by the plaintiff 
Worthy Pearson on September 30, 1965, by the plaintiff 
Levert Vincent on December 20, 1965, by the plaintiff 
Nathaniel Jenkins on December 8, 1965, and by the plain­
tiff Herman Trout on December 6, 1965.

The sixty day period provided by Section 706(e) of 
the Act accordingly expired, at the latest, on or before 
February 20, 1966 with respect to the charges filed by all 
the plaintiffs. Therefore, this action, not having been 
instituted by the filing of the complaint within thirty days 
thereafter and not until May 17, 1966, was not instituted 
within the statute of limitations as required by Section 
706(e) of the Act and is therefore barred.

IV.

The allegations of and the relief sought by the com­
plaint as amended regarding promotions, qualifications for 
promotion, promotional opportunities and lines of progres­
sion (Paragraphs V I-A -(1)(5)) are barred and should 
properly be dismissed for the following separate and 
several reasons:

Motion to Dismiss by Alabama, etc.



139

(1) The plaintiff Worthy Pearson elected his remedy 
regarding such allegations and matters by the filing of a 
grievance concerning his claimed right to promotion and 
by agreeing to the submission of such claim for decision 
by an Arbitrator.

Specifically, the plaintiff Pearson filed a grievance pur­
suant to the grievance procedure of the contract between 
this defendant and the Union claiming that he had been, 
wrongfully denied promotion and, through the Union as 
his collective bargaining representative, submitted for de­
cision by an Arbitrator such claim that he had been wrong­
fully denied promotion. Following the holding of a hearing 
for the taking of testimony and the introduction of ex­
hibits, the Arbitrator rendered his Opinion and Award on 
November 26, 1965, a true and correct copy of which is 
attached hereto as Exhibit “A” . The Arbitrator, in such 
Opinion and Award, found and held that the plaintiff 
Pearson had not wrongfully been denied promotion, that 
he was not qualified for the job, and that “There was no 
discrimination on account of race in awarding the job to 
MeClung over Pearson.”

(2) The Award of the Arbitrator rendered pursuant to 
the grievance and arbitration procedure of the contract 
finding and holding that the plaintiff Pearson had not 
been wrongfully denied promotion and that there was no 
racial discrimination against him is binding and conclusive 
of the issue and bars the attempted re-litigation of such 
issue and matter in this action.

(3) The allegations of and relief sought by the com­
plaint as amended with regard to the plaintiff Worthy 
Pearson are further barred by the statute of limitations

Motion to Dismiss by Alabama, etc.



140

provided by Title YII of the Act for the filing of charges 
thereunder.

Specifically, Section 706(d) of the Act provides and re­
quires that charges under Title YII shall be filed within 
ninety days after the alleged unlawful employment prac­
tice occurred. . . .” As shown by the Opinion and Award 
of the Arbitrator, the alleged unlawful employment prac­
tice of denying promotion to the plaintiff Pearson oc­
curred in March of 1965, and the charge filed by the plain­
tiff Pearson with the Equal Employment Opportunity Com­
mission on September 30, 1965 was accordingly not filed 
within the period of ninety days following the occurrence 
of the alleged unlawful employment practice and is there­
fore barred.

(4) The allegations of and relief sought by the com­
plaint as amended with respect to the plaintiff Worthy 
Pearson are not authorized and are barred for the further 
reason that such allegations and relief sought arise from 
and relate to the denial of promotion to him in March of 
1965 and that such event was prior to the effective and 
operative date of Title VII of the Civil Rights Act on 
July 2, 1965.

(5) Even if the Award of the Arbitrator regarding the 
plaintiff Worthy Pearson were not binding and conclusive 
of the claim asserted by the complaint as amended in this 
action concerning promotion and promotional oppor­
tunities, the Court should decline to re-hear and decide 
again such claim in the interest of avoiding a multiplicity 
of litigation and in the interest of providing for the settle­
ment of claims and disputes through the grievance and 
arbitration procedure of collective bargaining agreements.

Motion to Dismiss by Alabama, etc.



141

(6) The plaintiffs Herman Trout, Levert Vincent, and 
Nathaniel Jenkins filed grievances pursuant to the griev­
ance procedure of the contract between this defendant and 
the Union claiming that they had been wrongfully denied 
promotions and thereby elected their remedies regarding 
such allegations and matters and are barred from the 
attempted re-litigation of such matters in this action.

V.

The allegations of and the relief sought by the com­
plaint as amended as to the plaintiffs Herman Trout, 
Levert Vincent, and Nathaniel Jenkins are barred and 
should be dismissed for the further reason that a finding 
of reasonable cause by the Equal Employment Oppor­
tunity Commission as provided by Section 706(a) of the 
Act constitutes a prerequisite to the institution and main­
tenance of a civil action thereunder and no finding of rea­
sonable cause was made as to such plaintiffs.

Specifically, this defendant was advised by the Equal 
Employment Opportunity Commission that a finding of 
reasonable cause had been made with respect to the charge 
filed by the plaintiff Worthy Pearson and that charges 
had since been filed by the plaintiffs Herman Trout, 
Nathaniel Jenkins, and Levert Vincent, and, “ Since the 
Commission cannot undertake the coxiciliation of a case 
in the absence of a finding of probable cause,” this defen­
dant was requested by the Commission to submit to a 
finding of reasonable cause as to these plaintiffs so that 
“The conciliation of all cases could then proceed.”

This defendant accordingly agreed to submit to such 
finding of reasonable cause for the sole purpose, as re­
quested by the Commission, of permitting the eases to be 
conciliated.

Motion to Dismiss by Alabama, etc.



142

However, this action was then instituted without there 
having been any effort at conciliation by the Commission 
and, having been instituted without a finding of reasonable 
cause as to the plaintiffs Trout, Jenkins, and Vincent for 
any purpose except that of conciliation, is accordingly 
barred as to each of such plaintiffs.

VI.

The complaint as amended fails to allege that the charges 
filed by the plaintiffs with the Equal Employment Oppor­
tunity Commission were filed within the period of ninety 
days after the alleged unlawful employment practice oc­
curred as provided and required by Section 706(d) of the 
Civil Rights Act.

Motion to Dismiss by Alabama, etc.

VII.
The complaint as amended fails to allege that the 

charges filed by the plaintiffs with the Equal Employment 
Opportunity Commission and the finding of reasonable 
cause by the Commission as to the charge filed by the 
plaintiff Worthy Pearson relate to or are the same as or 
similar to the allegations of unlawful employment prac­
tices set forth in the complaint as amended.

VIII.

The complaint as amended is barred for the reason 
that a finding of reasonable cause by the Commission itself, 
or at least by a quorum of three members of the Com­
mission (Section 705(b) of the Act), is .required by the 
provisions of Title VII of the Act as a prerequisite to the 
institution and maintenance of a civil action thereunder 
and that the only finding of reasonable cause as to any



143

of the plaintiffs was made neither by the Commission itself 
nor by members of the Commission but was signed by the 
Secretary of the Commission.

IX.
(1) The institution and maintenance of this action as a 

class action is contrary to and prohibited by the provision 
of Section 706(e) of Title VII of the Civil Rights Act 
which limits the institution of civil actions thereunder 
to “the person claiming to be aggrieved.”

(2) The institution and maintenance of this action as a 
class action is contrary to and prohibited by the fact that 
the provisions of Section 706(a) and 706(e) of Title VII 
of the Civil Rights Act provide for a civil action thereunder 
only by a person who has first filed a charge with the Equaj 
Employment Opportunity Commission, and the complaint 
as amended shows on its face that only the plaintiffs, anu 
not the class which they claim to represent in this action, 
have filed such charges with the Commission.

(3) The complaint as amended shows on its face that 
the members of the class claimed to be represented in this 
action have not exhausted, or even attempted to pursue, 
the administrative remedies before the Equal Employmen 
Opportunity Commission as provided by Sections 706(a) 
and 706(e) of Title VII of the Civil Rights Act as a pre­
requisite to the institution of a civil action thereunder.

(4) The provisions of Rule 23 of the Federal Rules 
of Civil Procedure are not applicable to and do not author­
ize the institution and maintenance of this action as a 
class action in that there is not present in and with re­

Motion to Dismiss by Alabama, etc.



144

spect to this action the requirements of such rule that there 
be questions of law or fact common to the class and that 
the claims asserted by the plaintiffs be typical of the claims 
of the class which they claim to represent.

X.

The Court is deprived and precluded by the provisions 
of the Norris-LaGfuardia Act, 29 U.S.C. §§ 101-115, from 
granting the injunctive relief sought by the complaint as 
amended.

/ s /  D rayton  T. S cott 
D rayton  T. S cott

/ s /  W illiam  F. G ardner 
W illiam  F. Gardner

Attorneys for Defendant 
Alabama By-Products Corporation

Cabaniss , J o h n sto n , G ardner & C lark  
901 First National Building 
Birmingham, Alabama

Motion to Dismiss by Alabama, etc.

Of Counsel



145

Arbitrator’s Opinion and Award in the Grievance o f : 
Worthy Pearson

Exhibit A

In the Matter of Arbitration 

between

A labam a  B y -P roducts C orporation 

and

L ocal U nion  12136, I n tern atio n al  U nion  of D istrict 50, 
U nited  M in e  W orkers of A m erica .

Arbitrator:
Evans Dunn

Hearing:
This hearing in arbitration was held in Room 533 Frank 

Nelson Building, Birmingham, Alabama, at 10 A. M., on 
the 13th day of October, 1965.
Appearing for Alabama By-Products Corp.:

H. J. Hager
Appearing for International Union, District 50:

C. W. McColeman
Nature of grievance:

Grievant, Worthy Pearson, has been employed by Ala­
bama By-Products Corporation, hereinafter called ABC, 
since August 1, 1946. For the past several years he has 
been a brakeman, until July, 1965, when the job was re­
classified and termed a switchman. His work has been in 
the transportation Department and his brakeman and



146

switchman duties were in connection with the Company’s 
rail operations in and about their plants. In the same de­
partment the Company operates a locomotive crane. In 
March, 1965, the job of crane operator became vacant and 
was posted for bids in keeping with the contract between 
ABC and the Union. Grievant, Worthy Pearson, was 
among the bidders. The job was awarded to one McClung, 
whose seniority dated back only from April 15, 1960. 
Grievant contends that because of his seniority he should 
have been awarded the job. ABC, on the other hand, con­
tends that McClung was qualified for the job and Pearson 
was not.

The contract provides in Article 2, Section 9,
“The senior man in each department shall be allowed 
to exercise his seniority rights in the event of a vacancy 
in his department * * * ”

Section 20 of said Article 2 provides:
“It is further agreed that in case of promotion the 
employee having the record of longest continuous ser­
vice will be given preference, provided that he is quali­
fied. Qualifications as herein used shall cover such 
items as knowledge, ability, skill, training, efficiency 
and physical fitness.”

There is no provision in the contract for a training 
period.

Exhibit A

B ackground

According to the testimony, there has always been in the 
Transportation Department, two lines of promotions or 
progressions,—one leading up to locomotive engineer and 
the other leading up to crane engineer (operator). Testi­



147

mony was to the effect that promotions as to the locomotive 
job came up by route of hostler, brakeman, switchman, head 
switchman and then locomotive engineer, while the other 
line of promotion came up by the crane fireman route to 
the crane operator route. Prior to the year 1961 it was 
understood that the negro employees could not get as 
high up on the crane line of promotion as crane firemen, 
nor could they get further than that of switchman on a 
locomotive line of progression. There was no fast and 
firm rule in that regard, but it was a custom that was 
understood by the Company, the employees and the Union. 
In other words, the jobs of head switchman, locomotive 
fireman and locomotive engineer could be held only by 
white employees, and the position of crane fireman and 
crane operator could be held only by white employees. 
After 1961 this practice was discontinued and all jobs be­
came open for bidding by any employee within the rules 
of the contract, there being no discrimination or separa­
tion as regards different races.

In addition to the matters just above discussed, ABC 
introduced in evidence as Exhibits the Minutes from vari­
ous meetings with the Union Committee over the past year 
or two having to do with grievances in instances where 
seniority was not recognized, but where jobs wTere awarded 
on the basis of qualification. These records indicate that 
uniformly grievances had been denied where the employee 
receiving or being awarded the job was thought to be, or 
was, better qualified than the senior bidder.

C on tentions  of t h e  P arties

The Union contends that seniority should have been 
recognized and that the senior bidder, even though not at 
the moment qualified for the job, should have been given

Exhibit A



148

the opportunity to show his ability to perform it with 
some training and that a person with the experience and 
education of Pearson, he having had twelve years of grade 
school and two years of college work, should have been 
able to fill the job with little difficulty, and further that 
Section 20 of the Contract had more to do with promo­
tions to foreman or management positions, although in 
this respect there was no particular evidence that it had 
been used only for that purpose. The Company contended 
that Section 20 definitely applied, that there was no provi­
sion in the contract to train an employee for the job,— 
that the job as a crane operator was a particularly danger­
ous and hazardous job. The locomotive crane is a crane 
with a long boom operating up and down the rail tracks 
and picking up heavy objects from time to time and mov­
ing them about the plant. That in the handling of the 
crane and the swinging of the boom, and in the picking up 
of various objects, damage could easily occur to property 
and employees could be seriously injured if the operation 
was in charge of a man unskilled in that job. They fur­
ther pointed out that Section 20 had been uniformly ap­
plied to vacancies in jobs within the bargaining unit and 
not as regards promotions to management jobs. The man­
agement cited several arbitration decisions in other parts 
of the Country in line with its position. One was the 
case of American Bakeries <& Confectionary Workers, Local 
Union 612. This decision was reported in Commerce Clear­
ing House Arbitration decisions, Volume 1964 (2), para­
graph 8592. There the contract provided:

“When an employee force is increased or decreased, or 
promotions or demotions are made, the oldest em­
ployee in term of service will be given preference for 
any job he is qualified to fill.”

Exhibit A



149

Exhibit A

The Arbitrator held:
“ The grievant himself proposes that he receive a period 
of training. He readily admitted he was not qualified 
in a number of things a mechanic would have to do. 
If he were promoted to the job of mechanic, in time 
he probably would become proficient. The parties, 
however, have negotiated that the person be qualified 
to do the work at the instant of appointment.”

Another case cited by the Company was that of Christy 
Vault Workers and Greens Attendants Union, Local 265. 
This is reported in the same volume of Commerce Clear­
ing House in paragraph 8774. It was there held:

“A Company did not violate the seniority provisions of 
its agreement when it gave a junior employee, in length 
of service, a job assignment over a senior employee 
who lacked equal ability.”

A third decision cited by the Company was that of 
Wilson Jones Company—Local 148-E, United Paper Makers 
& Papers Workers Union. This decision was in the same 
volume of Commerce Clearing House, paragraph 8842. 
The Arbitrator there held:

“ Under contract the Company was not required to fur­
nish a trial period to senior bidders for a new job.”

In answer to the question propounded to the grievant 
by a representative of the Company,

“Are you qualified for the job of crane operator?” 

the grievant’s answer was,

“No, sir.”



150

C onclusions

Your Arbitrator finds as follows:
1. Section 20 of the contract must be construed accord­

ing to its language, and requires preference to be given 
to a bidder qualified for the job over a bidder who is 
not qualified for the job regardless of seniority.

2. Section 20 is not restricted or confined in its applica­
tion to promotions into management, but is and has been 
applied for jobs within the bargaining unit.

3. There was no discrimination on account of race in 
awarding the job to MeClung over Pearson.

4. That the job of a crane operator is a hazardous job 
insofar as damage to property and personnel is concerned, 
and the crane needs to be operated only by one properly 
qualified to do so.

5. That MeClung to whom the job was given was quali­
fied by reason of prior training and experience.

6. That grievant, Worthy Pearson, by his own admis­
sion, was not qualified.

7. That the contract does not require a training period.
O pin io n

Based upon the testimony, exhibits and findings of fact, 
as above set forth, and the lack of authority in the Arbi­
trator to modify or change the terms of the contract be­
tween the parties, as it is written, and being under the 
duty to give to the contract the meaning the ordinary 
words imply, it is the decision of your Arbitrator that 
the grievance be denied.

Done at Birmingham, Alabama, this 26th day of Novem­
ber, 1965.

/ s /  E vans  D u n n  
Evans Dunn

Exhibit A



151

Motion to Dismiss by International Union, etc.

(Filed August 12, 1966)

Come now the defendants, International Union of Dis­
trict 50, United Mine Workers of America; Local Union 
12136, District 50, United Mine Workers of America, un­
incorporated associations and Thomas E. Walden as Presi­
dent of Local Union No. 12136, District 50, United Mine 
Workers of America and move the Court to dismiss the 
complaint and as grounds therefor show:

1. The complaint fails to state a claim upon which 
relief can be granted against defendants.

2. The complaint fails to allege that this action was 
timely instituted after a finding of reasonable cause and 
a period of attempted voluntary compliance as provided 
in the Civil Rights Act of 1964, particularly § 706 (e).

3. The complaint fails to set out or attach copies of 
(i) a charge under oath filed with the Commission naming 
these defendants; (ii) a determination by the Commission 
of reasonable cause; (iii) notice from the Commission of 
its inability to obtain voluntary compliance, all as pro­
vided in § 706 of the Act.

4. The complaint fails to allege facts sufficient to es­
tablish the existence of a class and to allow the plaintiffs 
to maintain this action as a class action within the mean­
ing of Rule 23, Federal Rules of Civil Procedure.



152

5. The complaint fails to allege that plaintiffs have 
exhausted available contractual remedies under the col­
lective bargaining agreement upon which they rely.

C ooper, M it c h  & Crawford

B y  / s /  W illiam  E. M itch

1025 Bank for Savings Bldg. 
Birmingham, Alabama 

Attorneys for Defendants

Motion to Dismiss by International Union, etc.



153

Amended Motion to Dismiss by Alabama, etc.

(Filed August 12, 1966)

Comes now Alabama By-Products Corporation, one of 
the defendants in the above-styled cause, and amends its 
motion to dismiss heretofore filed on August 5, 1966, by 
adding thereto the following additional separate and 
several ground:

XI.

The plaintiffs and the class which they claim to repre­
sent in this action have failed to exhaust the administra­
tive and contractual remedies provided for and available 
to them by the Union contract for the redress of any 
grievances or claims which they may have regarding their 
compensation, terms, conditions, or privileges of employ­
ment.

/ s /  D rayton  T. S cott 
Drayton T. Scott

/ s /  W illiam  F. G ardner 
William F. Gardner
Attorneys for Defendant 
Alabama By-Products Corporation

Cabaniss, J o h n sto n , Gardner & Clark  
901 First National Building 
Birmingham, Alabama

Of Counsel



154

(Filed September 8, 1966)

Come now the plaintiffs and move this court to enter 
an order requiring the Equal Employment Opportunity 
Commission to intervene in this action or to file an amicus 
curiae brief for the limited purpose of informing the 
court as to the propriety of actions taken by the Commis­
sion prior to the filing of suit by the plaintiffs. As grounds 
for such relief, plaintiffs allege the following:

1. Defendants in their Motions to Dismiss have as­
serted that the conditions precedent to a suit under Title 
VII of the Civil Rights Act of 1964 have not been satisfied. 
The defendants challenge the propriety of actions taken 
by the Equal Employment Opportunity Commission (here­
inafter called the Commission) in connection with plain­
tiffs’ complaint before that body prior to the institution 
of this action. Defendants allege, inter alia, (1) that the 
Commission was without power to entertain plaintiffs’ 
complaint prior to the exhaustion by plaintiffs of adminis­
trative and contractual remedies, (2) that the Commission 
failed to notify the plaintiffs of their right to institute a 
civil action within the period required by statute, (3) that 
the commission failed to find probable cause as to some of 
the plaintiffs but sought to conciliate their cases without 
such a finding.

2. The defendants’ Motions to Dismiss, therefore, raise 
questions of law and fact concerning the jurisdiction of 
the Commission and the manner in which said Commission 
processed plaintiffs’ complaint.

Plaintiffs’ Motion for Order Requiring Intervention, etc.



155

3. The Commission is most privy to the factual allega­
tions in defendants’ Motions to Dismiss and has an in­
terest in preserving the authority for their proceedings, 
and has sought to intervene on a prior occasion when like 
issues were presented to the court.

4. The Commission, pursuant to Section 705 (h) of the 
Civil Rights Act of 1964, has authority to direct their 
attorneys to appear for and represent the Commission 
in any case in court.

Dated: Sept. 7, 1966

Respectfully submitted,

/ s /  L eroy D. Clark  
J ack  Greenberg 
L eroy D. Clark  
R obert B elton

10 Columbus Circle 
New York, New York 10019

O scar W . A dams, J r .
1630 Fourth Avenue, North 
Birmingham, Alabama

Plaintiffs’ Motion for Order Requiring Intervention, etc.

Attorneys for Plaintiffs



156

Plaintiffs’ Motion in Opposition of Motion to Dismiss 
of Defendant Alabama By-Products Corporation

(Filed September 8, 1966)

Come now the plaintiffs and move this Court to overrule 
the Motion to dismiss (and as amended) of defendant 
Alabama By-Products Corporation and cite as grounds 
therefor, the following:

1. Plaintiffs’ complaint sets forth a claim for relief un­
der the Act of Congress known as “ Title VII of The Civil 
Bights Act of 1964,” 42 U.S.C. §2000e, et seq.; and plain­
tiffs plead this claim in their complaint in accordance with 
the provision of Buie 8(a) of the Federal Buies of Civil 
Procedure.

2. The complaint was timely filed since plaintiffs insti­
tuted this action within thirty (30) days of a receipt of a 
letter, under date of April 18, 1966, from the Equal Em­
ployment Opportunity Commission advising that a civil 
action may be brought as provided by Title VII of The 
Civil Bights Act of 1964, 42 U.S.C. §2000e-5(e). Plaintiffs 
filed their complaint on May 17, 1966.

3. Plaintiffs allege in their complaint the proceedings 
before the Equal Employment Opportunity Commission 
in accordance with Buie 9(c) and 9(d) of the Federal Buies 
of Civil Procedure. There is nothing in the language of 
Title VII which even suggests that plaintiffs are barred 
from maintaining an action in a federal court because of 
the Commission’s conduct upon receipt of their complaint.

4. Plaintiffs need not exhaust any contractual remedies 
prior to seeking enforcement of rights under Title VII. 
That one of the plaintiffs may have pursued the grievance



157

Plaintiffs’ Motion in Opposition of Motion to Dismiss 
of Defendant Alabama By-Products Corporation

procedure under a collective bargaining agreement does 
not preclude seeking relief under Title VII since rights 
created under Title VII are distinct from whatever rights 
may exist under the terms of a collective bargaining agree­
ment.

5. A class action is properly stated as provided under 
Rule 23 of The Federal Rules of Civil Procedure. See 
Hall v. Werthan Bag Corp., 251 F.Supp. 184 (M.D. Tenn. 
1966).

W herefore , plaintiffs pray this Court to overrule and 
dismiss defendant’s motion to dismiss.

/ s /  O scar W . A dams, J r,
O scar W . A dams, Jr.

1630 Fourth Avenue, North 
Birmingham, Alabama

J ack  G reenberg 
L eroy D. Clark

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs



158

Order

(Filed March 13, 1967)

This cause came on to be heard on the defendants’ mo­
tions to dismiss and was heard and submitted following 
briefing and argument by counsel for the plaintiff and the 
defendants.

In conformity with the opinion of the court in the case 
of James C. Dent v. St. Louis-San Francisco Railway Co., 
et al., Civil Action No. 66-65, a copy of which is attached 
hereto:

I t  is Ordered, A djudged and D ecreed b y  the cou rt that 
the com pla in t in  th is case be and the sam e is hereby  dis­
m issed  w ith ou t p re ju d ice .*

Done, this the 10th day of March, 1967.

Seybourn H. Lynne 
C h ie f  J udge

A True Copy 
W illiam  E. D avis, Clerk 
United States District Court 
Northern District of Alabama
By: , / s /  M ary L. T ortorici

Deputy Clerk

[ s e a l ]

* In the event a notice of appeal is filed in Dent or in any case re­
ferred to in footnote 4 to the opinion in that case, counsel for plaintiff 
in each other case may file a motion for a rehearing which will be 
held under submission pending disposition of such appeal.



159

Opinion

(Filed March 13, 1967)

[Printed heretofore at page 29 et seq.]

Plaintiffs’ Notice of Appeal

(Filed April 7, 1967)

I n th e

UNITED STATES DISTRICT COURT

F or th e  N orthern  D istrict  of A labam a 
S ou th ern  D ivision

Civil Action No. 66-320

W o rth y  P earson , et al.,

—vs.
Plaintiffs,

Al abama B y -P roducts C orporation , et al.,

Defendants.

Notice is hereby given that Worthy Pearson, Herman 
L. Trout, Lnvert Vincent, Nathaniel L. Jenkins, the plain­
tiffs herein, hereby appeal to the United States Court of 
Appeals for the Fifth Circuit from an order of the United 
States District Court for the Northern District of Alabama, 
Southern Division dismissing plaintiffs’ complaint, said



160

Plaintiffs’ Notice of Appeal

order dated March 10, 1967 and filed in the clerk’s office 
on March 13, 1967.

Dated: April 6, 1967

/ s /  Oscar W . A dams, J r.
Oscar W . A dams, Jr.

1630 Fourth Avenue, North 
Birmingham, Alabama

J ack Greenberg 
L eroy D. Clark

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs



161

Designation of Record

(Filed April 25, 1967)

Plaintiffs, through their undersigned attorneys, designate 
the entire record as the Record on Appeal in the above 
styled matter in which notice of appeal was filed April 6, 
1967.

/ s /  O scab W. A dams, Je.
O scab W . A dams, J r .

1630 Fourth Avenue, North 
Birmingham, Alabama

J ack  G reenberg 
L eroy D. Clark

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs



162

Clerk’s Certificate

U n ited  S tates op A mebica  )
N o rthern  D istrict  op A labam a  )

I, W illiam  E. D avis, Clerk of the United States District 
Court for the Northern District of Alabama do hereby 
certify that the foregoing pages numbered from one (1) 
to sixty-five (65), both inclusive, comprise the original 
pleadings in this action and are herewith attached as a 
full, true and correct transcript of the record on appeal 
in the Matter of W o rth y  P earson , H erm an  T rou t , 
L evert V in c e n t , N a t h a n ie l  L . J e n k in s , individually and 
on behalf of others similarly situated, Plaintiffs-Appel- 
lants, vs. A labam a  B y -P roducts C orporation , a Corpora­
tion; L ocal 12136, D istrict  50, U nited  M in e  W orkers of 
A m erica , Defendants-Appellees, Civil Action 66-320, South­
ern Division, as fully as the same appears of record and 
on file in my office.

In w itn ess  w h ereo f , I have hereunto subscribed my 
name and affixed the sale of said Court at Birmingham, 
Alabama, in said District, on this the 12th day of May, 
1967.

/ s /  W illiam  E. D avis

W illiam  E. D avis, Clerk 
United States District Court

[ seal]



163

VOLUME IV

IN THE UNITED STATES DISTRICT COURT 

P oe t h e  N orthern  D istrict of A labama 

S ou th ern  D ivision  

Civil Action No. CA 66-315

R u sh  P ettw ay , P eter J. W ren n , A lex  F it t s , D avis J ordon, 
individually and on behalf of others similarly situated,

Plaintiffs,

A merican  Cast I ron P ipe C o m pan y , a Corporation,

Defendant.

Complaint
(Filed May 13, 1966)

I

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. Section 1343. This is a suit in equity authorized 
and instituted pursuant to Title VII of the Act known as 
“ The Civil Rights Act of 1964,” 42 U.S.C. Sections 20003 
et seq., and 42 U.S.C. Sec. 1983. The jurisdiction of this 
court is invoked to secure protection of and to redress de­
privation of rights secured by (a) Title VII of the Act 
known as “The Civil Rights Act of 1964,” 42 U.S.C. Sec­
tions 2000e et seq., providing for injunctive and other re­
lief against racial discrimination in employment and (b) 
42 U.S.C. Sec. 1981, providing for the equal rights of citi­



164

zens and all persons within the jurisdiction of the United 
States.

Complaint

II
Plaintiffs bring this action on their own behalf and on 

behalf of others similarly situated pursuant to Rule 23 (a) 
(3) of the Federal Rules of Civil Procedure. There are 
common questions of law and fact affecting the rights of 
other Negroes seeking equal employment opportunity with­
out discrimination on the ground of race or color who are 
so numerous as to make it impracticable to bring them all 
before this court. A common relief is sought. The inter­
ests of said class are adequately represented by plaintiffs.,

III

This is a pi’oceeding for a preliminary and permanent 
injunction restraining defendant from maintaining a policy, 
practice, custom and usage of withholding, denying or at­
tempting to withhold or to deny, and depriving or attempt­
ing to deprive, or otherwise interfering, with the rights of 
the plaintiffs and others similarly situated of equal em­
ployment opportunities at the American Cast Iron Pipe 
Company, without discrimination on the ground of race 
or color.

IV
Plaintiff Rush Pettway, Peter J. Wrenn and Alex Fitts 

are Negro citizens of the United States residing in Birming­
ham, Alabama. Plaintiff Davis Jordon is a Negro citizen 
of the United States residing in the City of Bessemer, 
Alabama.



165

V
Defendant, American Cast Iron Pipe Company is a cor­

poration incorporated under the laws of the State of 
Alabama, doing business in the State of Alabama and the 
City of Birmingham. Defendant maintains and operates 
a facility in the City of Birmingham, Alabama for the 
purpose of manufacturing and producing cast iron pipes.

VI

Defendant is an employer engaged in an industry which 
affects interstate commerce and defendant employs more 
than one hundred employees.

VII
A. Defendant limits the employment opportunity of its 

Negro employees in the apprenticeship and journeyman 
programs because of race and color. If Negroes are in 
these programs, such inclusion is only on a token basis.

B. Defendant maintains racially segregated rest rooms, 
lunch rooms, medical and dental facilities in violation of 
Title VII of the Civil Eights Act of 1964.

C. Defendant maintains and sponsors racially segre­
gated employee recreational and charitable activities.

D. All of the above stated unlawful employment prac­
tices existed prior to July 2, 1965, and have been con­
tinued by the defendant since July 2, 1965. Plaintiffs al­
lege that under the defendant’s present organizational 
structure the company is organized and set up with the 
purpose, intent, and design to perpetuate the above stated

Complaint



166

discriminatory practices and to limit employment oppor­
tunities of Negro persons. On information and belief, the 
company was willed in trust by the founder to a Board 
of Management and a Board of Operatives which serves 
jointly as the Board of Trustees of the defendant company; 
that membership on the Board of Trustees is limited to 
“white male employees over 21 years of age;” and that 
membership of Negroes on the management and policy 
making level is restricted to an “Auxiliary Board” . The 
present organizational structure of the defendant’s com­
pany allows the defendant to continue the above stated dis­
criminatory practices against Negro persons in violation 
of Title VII of the Civil Rights Act of 1964. Plaintiffs 
and other Negroes have been denied employment oppor­
tunity because of the defendant’s unlawful practices pur­
suant to the defendant’s long standing policy, practice, cus­
tom and usage of hiring Negroes only in certain designated 
job classifications and/or refusing to give Negroes promo­
tions and training for promotions out of these racially re­
stricted job classifications and/or categories on the same 
basis as white employees.

Complaint

VIII

Plaintiffs are qualified for promotions and training for 
promotions that could lead to better paying positions with 
the defendant company.

IX

Neither the State of Alabama nor the City of Birming­
ham has a law prohibiting the unlawful practices alleged 
herein. On November 22, 1965, plaintiffs filed a complaint 
with the Equal Employment Opportunity Commission al­



167

leging denial by defendant of their rights under Title VII 
of the “ Civil Rights Act of 1964,” 42 U.S.C. Sections 2000e 
et seq. On February 3, 1966, the Commission found reason­
able cause to believe that a violation of the Act had oc­
curred by defendant. On April 13, 1966, the Commission 
notified plaintiffs that defendant’s compliance with Title 
VII had not been accomplished within the maximum period 
allowed to the Commission by Title VII of the “ Civil Rights 
Act of 1964,” 42 U.S.C. Sections 2000e et seq., and that 
plaintiffs are entitled to maintain a civil action for relief 
in a United States District Court.

X

Plaintiffs have no plain, adequate or complete remedy 
at law to redress the wrongs alleged and this suit for a 
preliminary and permanent injunction is their only means 
of securing adequate relief. Plaintiffs and the class they 
represent are now suffering and will continue to suffer 
irreparable injury from defendant’s policy, practice, cus­
tom and usage as set forth herein.

W herefore, plaintiffs respectfully pray this Court ad­
vance this case on the docket, order a speedy hearing at 
the earliest practicable date, cause this case to be in 
every way expedited, and upon such hearing to :

1. Grant plaintiffs and the class they represent a pre­
liminary and permanent injunction enjoining the defen­
dant, American Cast Iron Pipe Company, its agents, suc­
cessors, employees, attorneys, and those acting in concert 
with them and at their direction, from continuing or main­
taining the policy, practice, custom and usage of denying, 
abridging, withholding, conditioning, limiting or otherwise

Complaint



168

interfering with the right of plaintiffs to employment pro­
motion, admission to the apprenticeship and journeyman 
programs, and the nse of the medical, dental, recreational, 
lunch room, shower, locker room, and rest room facilities 
on an equal basis with white employees at defendant’s 
firm in Birmingham, Alabama.

2. Grant plaintiffs and the class they represent a pre­
liminary and permanent injunction enjoining defendant, 
American Cast Iron Pipe Company, its agents, successors, 
employees, attorneys, and those acting in concert with them 
and at their direction from continuing or maintaining the 
policy, practice, custom and usage of denying, abridging, 
withholding, conditioning, limiting or otherwise interfer­
ing with the rights of the plaintiffs and others similarly 
situated to enjoy equal employment opportunities as se­
cured by Title VII of the Act known as “ The Civil Eights 
Act of 1964” , 42 U.S.C. Sections 2000e et seq., and 42 
U.S.C. Sec. 1981 without discrimination on the basis of 
race or color, including but not limited to promotional 
opportunities, admission to the apprenticeship and journey- 
manship programs, equal opportunity to participate in the 
management of the company and the use of the medical, 
dental, recreational, lunch room, shower, locker room and 
rest room facilities on the equal basis with white em­
ployees without consideration of race or color.

3. Grant plaintiffs, Rush Pettway, Peter J. Wrenn, Alex 
Fitts and Davis Jordon, back pay from the time they were 
wrongfully denied equal employment opportunities by the 
defendant.

Complaint



169

4. Allow plaintiffs their costs herein, including reason­
able attorneys fees and other additional relief as may ap­
pear to the Court to be equitable and just.

/ s /  O scar W . A dams, J r .
O scar W . A dams, Jr.

1630 Fourth Avenue, North 
Birmingham, Alabama 35203

J ack  Greenberg 
L eroy D. C lark

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs

Complaint



170

Comes now American Cast Iron Pipe Company, named 
as the defendant in the above-styled cause, and moves the 
Court to dismiss the complaint on the following separate 
and several grounds:

Defendant’ s Motion to Dismiss

(F iled  June 2, 1966)

1 .

The complaint fails to state a claim upon which relief 
can be granted.

2.

Said complaint fails to apprise this defendant with suffi­
cient certainty how or in what manner this defendant 
denied to the plaintiffs any of their rights under Title VII 
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

3.

Said complaint fails to aver that the plaintiff or any 
of them have complied with the conditions precedent set 
out in Title VII of the Civil Rights Act of 1964 to the 
maintenance and institution of a suit by a person claiming 
to be aggrieved under said Act.

4.

Said complaint fails to aver that the plaintiffs or any 
one of them filed a complaint under oath with the Equal 
Employment Opportunity Commission prior to the in­
stitution of this suit.



171

For aught appearing from the allegations of the com­
plaint, none of the plaintiffs herein filed with the Equal 
Employment Opportunity Commission, prior to the insti­
tution of this suit, a written charge under oath, charging 
that the plaintiffs or any of them had been aggrieved by 
any alleged unlawful employment practice of this defen­
dant.

Defendant’s Motion to Dismiss

5.

6.

Said complaint fails to aver with sufficient certainty 
what charge of discrimination, if any, was filed with the 
Equal Employment Opportunity Commission by the plain­
tiffs or any of them as a “person claiming to be aggrieved” 
prior to the institution of this suit.

7.

Said complaint fails to set out in haec verba or in sub­
stance any charge of discrimination which may have been 
filed by the plaintiffs or any of them with the Equal Em­
ployment Opportunity Commission prior to the institu­
tion of this suit.

8.

For aught appearing from the allegations of the com­
plaint, the “complaint” filed by the plaintiffs with the 
Equal Employment Opportunity Commission alleging de­
nial by defendant of their rights under Title VII of the 
Civil Eights Act of 1964, was neither in writing nor under 
oath nor filed by the person claiming to be aggrieved, all 
as required by the Civil Eights Act of 1964 as conditions 
precedent to the institution and maintenance of this suit.



172

9.

For aught appearing from the allegations set out in 
the bill of complaint, the “complaint” allegedly filed by 
the plaintiffs on November 22, 1965, with the Equal Em­
ployment Opportunity Commission was wholly unrelated 
to any charge of unlawful employment practice alleged in 
the bill of complaint in this suit.

10.

For aught appearing from the allegations of the com­
plaint, the alleged finding by the Equal Employment Op­
portunity Commission of “reasonable cause to believe that 
a violation of the Act had occurred by defendant” is wholly 
unrelated to any charge set forth in the bill of complaint.

11.

The complaint is barred by the statute of limitations 
applicable thereto in that the complaint shows on its face 
that the action was not instituted within the period of 
time prescribed by Section 706(e) of Title VII of the 
Civil Rights Act of 1964 for the institution of civil actions 
thereunder.

Defendant’s Motion to Dismiss

12.
For aught appearing from the allegations of the bill of 

complaint, the complaint allegedly filed with the Equal 
Employment Opportunity Commission was not filed within 
the period of time specified by Section 706(d) of Title VII 
of the Civil Rights Act of 1964.



173

13.

The institution of this action as a class action is con­
trary to and prohibited by the provision of Section 706(e) 
of Title VII of the Civil Rights Act of 1964 which limits 
actions thereunder to “the person claiming to be aggrieved.”

14.

The provisions of Rule 23(a) of the Federal Rules of 
Civil Procedure are not applicable to and do not authorize 
the institution and maintenance of this action as a class 
action in that the requirement of such rule of a common 
question of law or fact is not present.

15.

This action is improperly brought as a class action in 
that the complaint shows on its face that no common 
question of law or fact is presented.

16.

The institution and maintenance of this action are un­
authorized for that the allegations of the complaint fail 
to show compliance with all of the conditions precedent 
required to be met by Title VII of the Civil Rights Act 
of 1964 before a suit may be instituted and maintained by 
a person or persons claiming to be aggrieved under said 
Act.

Defendant’s Motion to Dismiss

17.

The institution and maintenance of this action are con­
trary to and prohibited by the provisions of Section 706(a) 
of Title VII of the Civil Rights Act of 1964 in that no



174

charge was filed with the Equal Employment Opportunity 
Commission in writing and under oath by any of the 
plaintiffs herein as a person claiming to be aggrieved 
prior to the institution of this suit, but defendant is in­
formed and believes and on such information and belief 
avers that a written charge in the form attached hereto 
as Exhibit “A” was filed with the Equal Employment 
Opportunity Commission by a committee self-styled as 
“Committee for Equal Job Opportunity,” to which was 
later attached a separate sheet in the form attached 
hereto as Exhibit “B” upon which appears the signature 
of plaintiff Bush Pettway, and this defendant avers that 
said alleged written charge failed to meet the require­
ments specified therefor in Section 706(a) of Title YII of 
the Civil Bights Act of 1964.

18.

Said complaint fails to aver that the Equal Employ­
ment Opportunity Commission made, prior to the institu­
tion of this suit, a determination that there is reasonable 
cause to believe that any charge of discrimination made 
by the plaintiffs or any of them against this defendant 
with said Commission is true.

19.

The complaint fails to aver with sufficient certainty what 
charge, if any, filed, in writing, under oath, with the Equal 
Employment Opportunity Commission by the plaintiffs or 
any of them, was determined by the Commission prior 
to the institution of this action as having reasonable cause 
to believe it to be true.

Defendant’s Motion to Dismiss



175

For aught appearing from the allegations of the bill 
of complaint, the Equal Employment Opportunity Com­
mission, prior to the institution of this suit, determined 
after investigation that there was no reasonable cause to 
believe that any written charge of unlawful employment 
practice made by the plaintiffs or any of them with the 
Commission and now alleged as a basis of recovery in this 
action was true.

Defendant’s Motion to Dismiss

20.

/&/  J am es R . F orm an , J r .
James R. Forman, Jr.

/ s /  S am u e l  H. B urr 
Samuel H. Burr
Attorneys for
American Cast Iron Pipe Company

T h om as , T aliaferro, F orm an , B urr & M urray  
1130 Bank for Savings Building 
Birmingham, Alabama 35203

Of Counsel



176

Exhibit “ A”

Form approved 
Bureau of the Budget 
No. 124-R001

E qual E m plo ym e n t  O ppo rtu n ity  C omm ission  
Washington, D. C. 20506

C harge of D iscrim ination

F ill  O ut T h is  F orm :
(Please print or type)

Y our N a m e :
Committee For Equal Job Opportunity

A ddress :
P. 0. Bos 2241 
Birmingham, Alabama 35203

1. Were you discriminated against in connection with 
employment because of
fx] Race or color
□  Religion
□  Sex
□  National Origin

2. Who discriminated against you? Give the name and 
address of the employer, labor organization, employ­
ment agency, or apprenticeship committee.

N am e  :
American Cast Iron Pipe Company 

A ddress :
2930—16 Street North 
Birmingham, Alabama 35204



177

3. When did this discrimination take place!
2 7 1965

4. Please tell your story of discrimination. Explain what 
unfair thing was done to you.

We are being discriminated against in bathhouse 
facilities, and Employees Representation. The testing- 
policy has limited the job opportunity of Employees 
with 15 and 20 years of continuous service with the 
company. We don’t believe it is right for management 
to set limits on Employees because of their race, color, 
creed, sex, or national origin, when these employees 
have the necessary age and experience with the com­
pany to prove their worth.

(The law requires that your charge be made under oath. 
You may take this paper for notarization to a notary 
public or other official who is authorized to administer 
oaths. If this is impractical, send this paper to the Com­
mission without having it notarized. The Commission will 
arrange to have the oath administered to you.)

I S w ear or A ffirm  T hat  I H ave R ead th e  A bove and 
T h a t  It Is T rue to th e  Best of My K nowledge

Date: 10/25/65

/ s /  Com m ittee  F or E qual J ob Oppo rtu n ity

Subscribed and sworn to before me 
this 24 day of October, 1965.

/ s /  J esse B lockm on  Notary Public 
My Commission Expires April 4, 1968

Exhibit A



178

You need not be able to answer the questions below, but 
if you do know the answers, it will help the Commission 
to handle your complaint more quickly.
1. Have you filed a complaint about this discrimination 

with a State or local government agency!
□  Yes 
jx], No
If you checked yes, please give the following informa­
tion:

N am e  of A g e n c y ...............................................................................

A ddbess .................................................................................................

Exhibit A

D ate Y ou F iled C o m plain t  .....................................................

2. If your charge is against a company or a union, does 
it have more than one hundred (100) employees or 
members! 
jx] Yes
□  No
□  Do not know 

Mail to:
Franklin D. Roosevelt, Jr., Chairman 
Equal Employment Opportunity Commission 
Washington, D. C. 20006



179

I S w bab  ob A ffirm  T h a t  I H ave R ead th e  F oregoing and 
T h a t  It Is T rue to t h e  B est op My K nowledge

D ate  November 22, 1965 S ignature  / s/  R ush P ettw ay

Exhibit “ B”

D ate ...................................... S ignature  .........................................

D ate ..................... ............... S ignature  ........ ......... .......................

D ate ..................................... S ignature  .........................................

D ate ..................................... S ignature  .........................................

D ate .................................—■ S ignature  .............................. -.........

D ate .................................... S ignature  .............................. -.........

D ate ..................... -.............. S ignature  .........................................

S ubscribed and S w orn  to B efore Me 
T h i s ...... ...........D ay  of ...................................... , 196.

(N am e) (T itle )



180

Motion for Leave to Intervene Under 
Rule 24 (b) F.R.C.P.

(Filed September 8, 1966)

IN THE UNITED STATES DISTRICT COURT 

F oe th e  N orthern  D istrict of A labam a 

S outhern  D ivision  

Civil Action No. 66-315

R u sh  P e ttw a y , et al.,

-v.-
Plaintiffs,

A merican  C ast I ron  P ipe  C o m pa n y , a Corporation,
Defendant.

U nited  S tates E qual E m plo ym e n t  
O ppo rtu n ity  C o m m ission ,

Intervenor.

The United States Equal Employment Opportunity Com­
mission, by the Attorney General of the United States, 
moves this Court for an order granting leave to intervene 
in this action, and to file the attached Pleading In Inter­
vention. This motion is made pursuant to Rule 24(b) of 
the Federal Rules of Civil Procedure, and is based upon 
the attached Pleading In Intervention, and upon the follow­
ing considerations.

1. The United States Equal Employment Opportunity 
Commission is an agency of the United States charged 
with the responsibility of administering and giving effect 
to section 706(a) and (e) of Title YII of the Civil Rights 
Act of 1964 (42 U.S.C. 2000e-5(a) and (e)).



181

Motion for Leave to Intervene Under 
Buie 24 (b) F.R.C.P.

2. The present action is brought under sections 706(e) 
and (f) of Title VII of the Civil Eights Act of 1964 and 
presents for decision by this Court issues of fact and law 
which could affect the authority and responsibility of the 
Equal Employment Opportunity Commission and the pub­
lic interest.

3. Intervention by the Equal Employment Opportunity 
Commission is necessary in order adequately to represent 
its interests as an agency of the United States, and to 
present its position to this Court.

4. The Commission’s claims or defenses with respect to 
the interpretation and administration of Section 706(a) 
and (e) of the Act present questions of law or fact which 
are common to the main action.

5. The Commission’s participation as a party to this 
action will in no way delay or prejudice the adjudication 
of the rights of the original jiarties.

/s /  N icholas deB. K atzenbach  
Nicholas deB. Katzenbach, 
Attorney General

/ s /  Charles T . D un can  
Charles T. Duncan, 
General Counsel 
Equal Employment 
Opportunity 
Commission 
Of Counsel

/ s /  J o h n  D oar 
John Doar,
Assistant Attorney General

/ s /  M acon L. W eaver 
Macon L. Weaver,
United States Attorney

Granted
September 8, 1966 

/ s /  S eybourn  H . L yn n e

/ s /  D avid L. N orm an , 
David L. Norman,

Judge

Attorney,
Department of Justice, 
Washington, D. C. 20530



182

(Filed September 8, 1966)

The United States Equal Employment Opportunity Com­
mission (hereinafter referred to as EEOC), as intervenor 
herein, by the Attorney General of the United States, al­
leges :

1. This is a pleading in intervention filed by the EEOC 
pursuant to Buie 24(c) of the Federal Buies of Civil Pro­
cedure. The EEOC is an agency of the United States 
charged with administering Title VII of the Civil Bights 
Act of 1964, 42 U.S.C. § 2000e et seq.

2. On May 13, 1966, the plaintiffs filed this class action 
seeking injunctive relief to restrain defendant from con­
tinuing practices which deprive the plaintiffs and others 
similarly situated of equal employment opportunities, as 
secured by 42 U.S.C. §§ 1981, 1983, and 2000e et seq., with­
out discrimination on the basis of race or color.

3. On June 7, 1966, defendant American Cast Iron Pipe 
Company filed a motion to dismiss, the third and sixteenth 
grounds of which are that the allegations of the complaint 
fail to show compliance with all of the conditions precedent 
to the filing of a complaint under Title VII of the Civil 
Bights Act of 1964, 42 U.S.C. 2000e et seq.; the eleventh 
ground of which is that the plaintiffs are barred by the 
statute of limitations prescribed in 42 U.S.C. § 2000e-5(e), 
not having filed their complaint within thirty days after 
the expiration of the sixty day period provided for the 
EEOC to secure compliance and the seventeenth ground 
of which is that the “ Committee For Equal Job Opportu­
nity” was not a proper party to file a charge with the EEOC 
and that consequently no charge was ever filed with the

Pleading in Intervention



183

EEOC which could supply the appropriate condition prece­
dent to an action under Section 706(e) of Title VII.

4. The facts material to the issues raised by these con­
tentions are as follows:

(a) On November 22,1965, Bush Pettway filed his charge 
with the EEOC, charging the defendant with viola­
tions of Title VII of the Civil Bights Act of 1964;

(b) On the same date, November 22, 1965, a copy of Mr. 
Pettway’s charge was served on the defendant;

(c) On February 3, 1966, Commissioner Holcomb of the 
EEOC issued a decision finding reasonable cause to 
believe the defendant was in violation of Title VII of 
the Civil Bights Act of 1964;

(d) By letter dated April 13, 1966, the EEOC, by Alfred
W. Blumrosen, Chief of Conciliation, advised Mr. 
Pettway that the EEOC had found it impossible to 
undertake or to conclude conciliation of the case 
and notified him of his right to bring a judicial action 
within the time prescribed by the Act.

5. Pursuant to section 716(b) of Public Law 88-352 (note 
following 42 U.S.C. 2000e), the EEOC began to function 
on July 2, 1965. Between that date and December 31, 1965, 
the EEOC received a large number of complaints which 
made excessive demands upon its small staff. During that 
period, EEOC’s staff, which did not exceed 25 part-time 
investigators and two conciliators, processed 3,263 charges 
of which 1,384 were recommended for investigation.

6. The EEOC follows the practice of utilizing the full 
60 days provided by 42 U.S.C. 2000e-5(e) to investigate and

Pleading in Intervention



184

to attempt to eliminate by conciliation all meritorious 
charges of unlawful employment practices.

7. Because of the EEOC’s extremely heavy workload 
and small staff and its practice of utilizing the full 60 days 
to investigate and to attempt to eliminate by conciliation 
all meritorious charges of unlawful employment practices, 
it is not possible for the EEOC to notify each aggrieved 
person within 60 days after any such person has filed a 
charge of unlawful employment practice. Nor is it possible 
in every case for the EEOC to complete its investigation 
and informal methods of conference, conciliation, and per­
suasion within that 60-day period.

8. The public interest would be seriously prejudiced if 
the EEOC terminated all investigations of and efforts to 
conciliate unfair employment practices within 60 days of 
the receipt of charges; and if aggrieved parties were pre­
cluded from initiating civil actions under 42 U.S.C. 2000e- 
5(e) unless the EEOC completed its investigation and con­
ciliation and gave notice of its disposition of charges within 
said period.

W h e r e f o b e , the United States Equal Employment Op­
portunity Commission prays that this Court issue an order 
denying the motion to dismiss filed by the defendant inso­
far as it contends (1) that the plaintiffs did not comply 
with a condition precedent to the filing of a lawsuit under 
42 U.S.C. 2000e-5 by filing a proper charge with the EEOC; 
(2) that the plaintiffs failed to institute this action within 
the time period afforded by 42 U.S.C. 2000e-5(e) and (3) 
insofar as said motions are based upon the failure of the 
EEOC to initiate or complete informal methods of con­

Pleading in Intervention



185

ference, conciliation, and persuasion within 60 days after 
the filing by plaintiffs of a charge under 42 U.S.C. 
2Q00e-5(e).

It is further prayed that this Court grant such other re­
lief as the facts and law may warrant.

/ s /  N icholas deB . K atzenbach  
N icholas deB . K atzenbach  
Attorney General

/ s /  J ohn  D oab 
J ohn D oar

Assistant Attorney General

/ s /  M acon L. W eaver 
M acon L. W eaver 
United States Attorney

/&/ D avid L. N orman  
D avid L. N orm an ,
Attorney,
Department of Justice, 
Washington, D.C. 20530

/&/ C harles T. D un can  
Charles T. D u n can  
General Counsel 
Equal Employment 
Opportunity Commission 

Of Counsel

Pleading in Intervention



186

Order

(Filed March 13, 1967)

This cause came on to be heard on the defendant’s motion 
to dismiss and was heard and submitted following briefing 
and argument by counsel for the plaintiff and the defendant.

In conformity with the opinion of the court in the case of 
James C. Dent v. St. Louis-San Francisco Railway Co., 
et al., Civil Action No. 66-65, a copy of which is attached 
hereto:

It is O rdered, A djudged and D ecreed b y  the court that 
the complaint in this case be and the same is hereby dis­
missed without prejudice.*

Done, this the 10th day of March, 1967.

S eybourn  H. L y n n e

Chief Judge

A True Copy
W illiam  E. D avis, Clerk 
United States District Court 
Northern District of Alabama
By: / s /  M ary  L. T ortorici 

Deputy Clerk

[ s e a l ]

* In the event a notice of appeal is filed in Dent or in any case re­
ferred to in footnote 4 to the opinion in that case, counsel for plaintiff 
in each other case may file a motion for a rehearing which will be held 
under submission pending disposition of such appeal.



187

Opinion

(Filed March 13, 1967)

[Printed heretofore at page 29 et seq.]

Plaintiffs’ Notice of Appeal

(Filed April 7,1967)

IN  THE

UNITED STATES DISTRICT COURT 
For th e  N orthern D ivision  of A labam a  

S o u th ern  D ivision 

C ivil  A ction No. 66-315

R u sh  P e t t w a y , P eter J . W r e n n , A lex  P itts , D avis J ordan, 
individually and on behalf of others similarly situated,

vs.
Plaintiffs,

A m erican  Cast I ron  P ipe C o m pa n y , a corp ora tion ,

Defendant.

Notice is hereby given that Rush Pettway, Peter J. 
Wrenn, Alex Pitts, Davis Jordan, individually and on be­
half of others similarly situated, the plaintiffs herein, here­
by appeal to the United States Court of Appeals for the 
Fifth Circuit from an order of the United States District



188

Plaintiffs’ Notice of Appeal

Court for the Northern District of Alabama, Southern Divi­
sion dismissing plaintiffs’ complaint, said order dated 
March 10, 1967 and filed in the clerk’s office on March 13, 
1967.

Dated: April 6,1967.

/ s /  O scar W . A dams, J r .
O scar W . A dams, J r .

1630 Fourth Avenue, North 
Birmingham, Alabama

J ack  G reenberg 
L eroy D. Clark

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs



189

Plaintiffs’ Designation of Record

(Filed April 25, 1967)

Plaintiffs, through their undersigned attorneys, designate 
the entire record as the Record on Appeal in the above 
styled matter in which notice of appeal was filed April 6, 
1967.

/ s /  O scab W . A dams, J b .
O scab W . A dams, J b .

1630 Fourth Avenue, North 
Birmingham, Alabama

J ack  G beenbebg 
L eboy D. Clabk

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs



190

Intervenor’s Notice of Appeal

(Filed May 8, 1967)

IN  THE

UNITED STATES DISTRICT COURT 

F oe t h e  N orthern  D istrict  oe A labam a  

S outhern  D ivision  

Civ il  A ction  N o. 66-315

R u sh  P ettw ay , et al., 

vs.
Plaintiffs,

A merican  Cast I ron P ipe  C o m pan y , a co rp ora tion ,

Defendant,
U nited  S tates

E qual E m plo ym en t  O pportu n ity  C om m ission ,

Intervenor.

Notice is hereby given that the United States Equal 
Employment Opportunity Commission, Intervenor above 
named, hereby appeals to the United States Court of Ap­
peals for the Fifth Circuit from the Order of Dismissal of 
this Court of March 10, 1967, dismissing for lack of juris­
diction the complaint in the above named case.

Signed: R ichard  K. B erg

Attorney for Equal 
Employment Opportunity 
Commission

Address: 1800 G Street, N. W.
Washington, D. C. 20506



191

Clerk’s Certificate

U nited  S tates of A merica  )
N orthern  D istrict of A labam a  ^

I, W il l ia m  E. D ayis , Clerk of the United States District 
Court for the Northern District of Alabama do hereby 
certify that the foregoing pages numbered from one (1) to 
thirty-eight (38), both inclusive, comprise the original 
pleadings in this case and are herewith attached as a full, 
true and correct transcript of the record on appeal in the 
Matter of B u sh  P ettw ay , P eter J . W r e n n , A lex P itts, 
D avis J ordan, individually and on behalf of other similarly 
situated, Plaintiffs-Appellants, and U nited  S tates E qual 
E m plo ym en t  O ppo rtu n ity  C om m ission , Intervenor-Appel- 
lant, vs. A m erican  Cast I ron  P ipe C o m pa n y , a Corporation, 
Defendant-Appellee, Civil Action No. 66-315, Southern Divi­
sion, as fully as the same appears of record and on file in 
my office.

I n  w itn ess  w h ereo f , I have hereunto subscribed my name 
and affixed the seal of said Court at Birmingham, Alabama, 
in said District, on this the 12th day of May, 1967.

/  s / W illiam  E. D avis

W illiam  E. D avis, Clerh 
U nited S tates D istrict C ourt

[ s e a l ]



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