Stevenson v. International Paper Company Brief for Plaintiffs-Appellants

    IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 
NO. 73-1758

JESSIE STEVENSON, et al.,
Plaint if fs-Appe Hants , 

vs.
INTERNATIONAL PAPER COMPANY, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the Southern District of Alabama 

Southern Division

BRIEF FOR PLAINTIFFS-APPELLANTS

J. U. BLACKSHER
1407 Davis Avenue 
Mobile, Alabama 36603

JACK GREENBERG 
MORRIS J. BALLER 
CHARLES S. RALSTON 
JEFFRY A. MINTC

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs- 
Appel1 ants



IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 
NO. 73-1758

JESSIE STEVENSON, et al..
Plaintiff s-Appe Hants, 

vs.
INTERNATIONAL PAPER COMPANY, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the Southern District of Alabama 

Southern Division

CERTIFICATE REQUIRED BY LOCAL RULE 13(a)

The undersigned counsel for plaintiffs-appellants Jessie 
Stevenson, et al., in conformance with Local Rule 13(a), 
certifies that the following listed parties have an interest 
in the outcome of this case. These representations are made 
in order that judges of this Court may evaluate possible dis­
qualification or recusal:

1. Jessie Stevenson, Coley Dawson, Elijah Fluker, George 
Herron, John Bivins, Charles James, Charlie Hudson, Kiah Edwards, 
and Horace Gill, named plaintiffs.



2. The class of black workers at defendant International 
Paper Company's Mobile Mill, represented by the named plaintiffs.

3. International Paper Company, defendant.
4. United Paperworkers International Union and its 

Local Unions 229, 337, 265, 265A, and 940, defendants.

4 [.ILDOo _
A
orney
ppellanr

r Plaintiffs-

-2-



INDEX

Table of Authorities ----------------------------------------- i

Note on Form of Record Citations ----------------------------- vii

Statement of Questions Presented----------------------------- viii

Statement of the Case---------------------------------------  1

Statement of Facts------------------------------------------- 4

A. General Setting and the Historical Background of
Segregation ----------------------------------------- 4

B. Production Jobs --------------------------------------- 8

1. The Situation in 1962 ----------------------------  8
2. Events of 1962 -----------------------------------  10
3. The 1966 LOP Mergers-------------------------------11
4. The 1968 Jackson Memorandum and the McCreedy

Letter---------------------------------------------12
5. The Failure of the Jackson Memorandum and the

1972 Revision--------------------------------------16

C. Maintenance Jobs ---------------------------------------19

D. Testing Practices ------------------------------------  23

E. Supervisory Positions --------------------------------  26

ARGUMENT

Introduction and Summary ---------------------------------  29

I. The District Court Erred In Ruling That Plaintiffs 
Were Precluded From Litigating Certain Issues In 
This Action By The Doctrine of Res Judicata---------  31

II. The District Court Erred In Concluding That The
Jackson Memorandum Fully Remedied Defendants’ Prior 
Discrimination In Production Jobs, In That The 1968 
Jackson Memorandum Unnecessarily Restricted Black 
Employees' Advancement Opportunities ----------------  40

A. The District Court's Holding --------------------  40

B. The District Court Failed To Recognize And Apply
The Correct Legal Standards Requiring That All 
Feasible Remedial Steps Be Taken ---------------  41

Page

l



Page
C. The 1968 Jackson Memorandum Left Substantial 

Unnecessary Impediments To Affected Class 
Members' Advancement Toward Their Rightful 
Places ------------------------------------------- -

1. "Red-circling" limitations -------------------  4 5
2. Shortening of LOPs, Advance Level Entry, and

Job Skipping--------------------------------- -
3. Additional Limitations Imposed by the

McCreedy Letter--------------------------------  2.
4. Discrimination In Implementation of the

1968 Jackson Memorandum ----------------------  5 3
5. The 1972 Jackson Memorandum and The Remedy ---  58

HI* International Paper Company's Use of Written
Employment Aptitude Tests Discriminates Against
Black Employees And Is Not Job-Related-----------------5 9

A. The Testing Program Has a Disproportionate
Adverse Impact on Black Employees Seeking 
Maintenance Jobs --------------------------  c no U

B. The Testing Program Was Not Shown to Be Related
to Job Performance------------------------------- - -

IV. IP Discriminatorily Excludes Affected Class Members and
Other Blacks From Maintenance Craft Positions _________  71

V. IP Denies Black Employees Opportunity to Advance
Into Supervisory Jobs ---------------------------------  75

VI* T^e District Court Erred In Denying the Plaintiff Class
an Award of Back Pay and Reasonable Attorney's Fees____  78

Conclusion --------------------------------------------------  83
Certificate of Service --------------------------------------  85

Table of Cases:

Acree v. Air Line Pilots Ass'n, 390 F.2d 199 (5th Cir. 1968) 
cert, denied 393 U.S. 852 (1968) ------------------------ 1

Baltimore S.S. Co. v. Phillips, 274 U.S. 316 (1927)_________

Baxter v. Savannah Sugar Refining Co., No. 72-1039__________

i i



Page
Bing v. Roadway Express, Inc., 444 F.2d 687 

(5th Cir. 1971) ----------------- 1______ -- 62
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969)__  80

Brito v. Zia Co., 478 F.2d 1200 (10th Cir. 1973)_____________ 61

Broadway v. Culpepper, 439 F.2d 1253 (5th Cir. 1971)________ 78
Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377

(4th Cir. 1972), cert, denied 93 S.Ct. 319 (1972)---------- 44

Clark v. American Marine Corp., 304 F.Supp. 603 
(E.D. La. 1969) ----------------------------- —  45

Cleveland Board of Education v. LaFleur, 41 LW 4186 
(Jan. 21, 1974)------------------------------- ?4

Commissioner v. Sunnen, 333 U.S. 591 (1948) _________________ _

Cooper v. Aaron, 358 U.S. 1 (1958) --------------------------  51

Cooper v. Allen, 467 F.2d 836 (5th Cir, 1972) _______________ 61

Cromwell v. Sac County, 94 U.S. 353 _______________________  39

Culpepper v. Reynolds Metals Co., 421 F.2d 888 
(5th Cir. 1970)------------------------- 44, 58

Louis Dreyfus & Cie. v. Panama Canal Co., 298 F.2d 733 
(5th Cir. 1962) -------------------------- 60

Duhon v. Goodyear Tire & Rubber Co., ____ F.Supp.
(E.D. Tex. 1972), on appeal. No. 73-1296 ______ 61, 81

Fluker, et al. v. Locals 265 and 940, United Papermakers and 
Paperworkers, AFL-CIO, et al.,
C.fl. NO. 5839-70-P -------------- 5.31,32,33,34,35,36,37,38,39,40,  83

Franks v. Bowman Transportation Co., n o.72-3239 _________ 81
Griggs v. Duke Power Co., 401 U S 424 

(1971) ----------------------- 1____
-41,59,61,63,68, 70,75,79

Head v. Timken Roller Bearing Co., 486 F 2d 870 
(6th Cir. 1973)---------------------- 1_____ 42, 81

Herron, et al. v. United Papermakers and Paperworkers, AFL-CIO 
NO. 5665-69-P ----------------  5.31.32.33.34.35.36.37.38.39:40

111



Page

Hicks v. Crown-Zellerbach Corp., 319 F.Supp. 314
(E.D. La. 1970) -----------------------------------------  45

Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122
(5th Cir. No. 72-3294, Jan. 21, 1974) -----------------  44, 81

Johnson v. Goodyear Tire & Rubber Co., 349 F.Supp. 3
(S.D. Tex. 1972), on appeal, No. 73-1712 ------------------- 61

Local 53, Asbestos Workers v. Vogler, 407 F.2d 1047
(5th Cir. 1969)----------------------------------------- 43,75

Local 189, United Papermakers and Paperworkers v. United
States, 416 F.2d 980 (5th Cir. 1969), cert, denied 397 U.S.
919 (1970)-------------------------------------  41, 42, 43, 52, 57

Local 189, etc. v. United States, 301 F.Supp. 906 (E.D. La.
1969)------------------------------------------------- 45,47,50

Long v. Georgia Kraft Co., 450 F.2d 557
(5th Cir. 1971) ------------------------  41,42,43,45,47,48,57

Long v. Georgia Kraft, 4 EPD <57815 (N.D. Ga. 1972)-----------  50

Louisiana v. United States, 380 U.S. 145 (1965) -------------  42

Marquez v. Omaha District Sales Office, Ford Division,
440 F. 2d 1157 (8th Cir. 1971) ----------------------------- 77

Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 1960-83

Moody v. Albemarle Paper Co., 474 F.2d 134
(4th Cir. 1973) ----------------------- 25,41,61,65,67,68,69,81

Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968)- 2

Parham v. Southwestern Bell Telephone Co., 433 F.2d 421
(8th Cir. 1970) -------------------------------------------  73

Pettway v. American Cast Iron Pipe Co., ____ F.Supp. ____
(N.D. Ala. 1972), on appeal, No. 73-1163 ---------------- 61,81

Quarles v. Philip Morris, Inc., 279 F.Supp. 505
(E.D. Va. 1968) -------------------------------------------  10

Roberts v. Ross, 344 F.2d 747 (3rd Cir. 1965) ---------------  60

Roberts v. St. Regis Co. (M.D. Fla., No. 70-292-Civ-J,
Jan. 28, 1972) --------------------------------------------- 50

IV



Page

Robinson v. Lorillard Corp., 319 F.Supp. 835 (M.D.N.C.
1970) , aff'd, 444 F.2d 791 (5th Cir.
1971) --------------------------------- 42,45,46,47,68,69,79,80

Rock v. Norfolk and Western Rwy. Co., 473 F.2d 1344
(4th Cir. 1973), cert, denied, 37 L.Ed.2d 161 (1973) ------- 42

Rogers v. International Paper Co., ____ F.Supp. ____
(E.D. Ark. 1973) ------------------------------------------- 61

Rooted Hair, Inc. v. Ideal Toy Corp., 329 F.2d 761
(2nd Cir. 1964) ------------------------------------------- 60

Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.
1972) ------------------------------ 2 9,43,44,55,62,66,69,73,77

Sanchez v. Standard Brands, 431 F.2d 455 (5th Cir. 1970)------ 36

Seaboard Coast Line R. Co. v. Gulf Oil Corp., 409 F.2d
879 (5th Cir. 1969) -----------------------------------------37

Sims v. Sheet Metal Workers Int11 Assn., Local 65,
____ F. 2d ____, 6 EPD f 9035 (6th Cir. 1973)------------------75

Stamps v. Detroit Edison Co., 365 F.Supp. 87 (E.D. Mich.
1973) -------------------------------------------------------61

Turner v. Fouche, 396 U.S. 346 (1970)---------------  62,67,73,78

United States v. Alabama, 304 F.2d 583 (5th Cir. 1962)
aff'd, 371 U.S. 37 (1962) --------------------------------  73

United States v. Bethlehem Steel Corp., 446 F.2d 652
(2nd Cir. 1971) ------------------------------------------  42

United States v. Continental Can Co., 319 F.Supp. 161
(E.D. Va. 1970) ------------------------------------------ 50

United States v. Georgia Power Co., 474 F.2d 906
(5th Cir. 1973)-----------------------------  6 3,67,68,69,75,80

United States v. Hayes International Corp., 456 F.2d 112
(5th Cir. 1972)--------------------------------- 52,62,72,73,77

United States v. Hinds County Board of Education, 417 F.2d
852 (1969) ------------------------------------------------ 72

v



United States v. Jacksonville Terminal Co., 451 F.2d 
418 (5th Cir. 1971), cert, denied, 406 U.S. 906 
(1972) 41,42,63,69

United States v. N.L. Industries, Inc., 479 F.2d 354
(8th Cir. 1973) ----------------------------------------- 42,45

United States v. Sheet Metal Workers, Local 36, 416 F.2d
123 (8th Cir. 1969) ------------------------------ 1________75

Wasoff v. American Automobile Insurance Co., 451 F 2d 765
(5th Cir. 1971)--------------------------------------- 34,37,40

Watkins v. Scott Paper Co., 6 EPD 58912 (S.D. Ala. 1973),
on appeal, No. 74-1001 -----------------------------------  61

Watkins v. United Steel Workers of America, Local 2369,
____ F.Supp. ____, 7 EPD 19130 (E.D. La. 1974) -----------  52

Wirtz v. B.B. Saxon Co., 365 F.2d 457 (5th Cir. 1966)_______  69

Statutes and Other Authorities:

Age Discrimination Act, 29 U.S.C. § 621 (1968) _____________  7 5

Equal Employment Opportunity Commission Guidelines on 
Employment Selection Procedures, 29 C.F.R. § 1607.1 
(1970) ---------------------------------------------------- 68

Executive Order 10925 (1962) -------------------------------  7

Executive Order 11246 (1965) -----------------------------  H

Federal Rules of Civil Procedure, Rule 16 ------------------  36

IB Moore's Federal Practice (2nd ed. 1965) -------------------------------------  3 7

National Labor Relations Act, 29 U.S.C. §§ 151 et seq.______  2

Title VII, Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq. 2,41,48

28 U.S.C. § 1291 -------------------------------------------  ,

42 U.S.C. § 1981-------------------------------------------  9

Page

vi



Note on Form of Record Citations
The following record citations are frequently used in this 

brief, filed under the deferred appendix system:

"R- ___" ~ pages of the original record on appeal, as
numbered therein (including trial transcript).

"PI. Ex. ___" - exhibit introduced by plaintiffs at trial.
"D. Ex. __ " - exhibit introduced by defendant International

Paper Company at trial.
"Ex. ___" - exhibit to answers of defendant International

Paper Company to plaintiffs' first interroga­
tories, admitted into evidence by stipulation.

"A.II ___" - pages of the record in the Herron-Fluker
matter, to be reprinted for the convenience 
of the Court.

V l l



Statement of Questions Presented

I. Did the district court err in barring appellants from relief 
on the principal allegations of their broad-based complaint of com­
prehensive practices of discrimination by an employer and its unions, 
on the grounds that appellants had previously litigated much narrower 
claims of union-discrimination arising at the same premises?

II * Did the district court err in holding that appellees' senior­
ity, promotion and transfer practices, as modified in 1968 to reduce 
but not eliminate the effects of prior discriminatory practices, no 
longer discriminate against appellants and their class with regard to 
opportunities in the production departments?

HI* A * Did the district court err in concluding that the 
appellee's aptitude test battery did not have a disproportionate 
adverse impact on black employees? and if so,

B. Did the district court err in holding that the appellee 
had demonstrated its test battery to be manifestly job—related?

IV. Did the court below err in finding no discrimination with
regard to the maintenance departments, despite the appellees' nearly 
complete exclusion of blacks from maintenance craft jobs?

V. Did the district court abuse its discretion in denying appel­
lants and their class an award of back pay to compensate them for 
economic losses inflicted on them by appellees' unlawful practices?

VI. Should the appellants be awarded their costs, including 
reasonable attorney's fees, in this action?

v m



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 73-1758

JESSIE STEVENSON, et al.,
Plaintiff s-Appe Hants, 

vs.
INTERNATIONAL PAPER COMPANY, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the Southern District of Alabama

BRIEF FOR PLAINTIFFS-APPELLANTS

STATEMENT OF THE CASE
This appeal presents for review a decision of the United States 

District Court for the Southern District of Alabama, Hand, J., 
rejecting every one of plaintiffs-appellants1 claims of systematic 
employment discrimination by a major pulp-and-paper industry employe 
and the pertinent labor unions. This Court has jurisdiction of the 
appeal under 28 U.S.C. § 1291.

The nine plaintiffs filed this suit as a class action on May 10
1/1971 (R. 1). They brought action under three federal statutes:

17 See explanatory note on form of record citations, p. , infra.



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

42 U.S.C. § 1981, and the duty of fair representation subsumed in 

the National Labor Relations Act, 29 U.S.C. §§ 151 et seg. (R. 1-2). 

Their complaint alleges a variety of discriminatory employment prac­

tices on the defendants' part which adversely affected employment 

and promotional opportunities of plaintiffs and members of the 

class (R. 3-8). All the plaintiffs had previously filed charges of 

discrimination before the Equal Employment Opportunity Commission

(EEOC) on November 19, 1969, raising the same issues as the later
2/

complaint (R. 4-5). At least five of the named plaintiffs received

letters from EEOC authorizing them to bring suit in federal court
3/dated April 14, 1971 (R. 73-77).

The defendants answered, denying all the material allegations of 

discrimination (R. 28-32, 92-108). The court ordered that the case 

proceed as a class action, and on July 18, 1972 defined the class to 

include all then-employed black employees of International Paper's 

Mobile Mill, all blacks employed at the commencement of the action, 

and all future black employees (excluding all job applicants) who were 

members or eligible to be members of the defendant unions (R. 345, 405) 

On August 11, 1972, the court conducted an elaborate pre-trial

2/ Plaintiff Stevenson filed his charge on November 6, 1969. 
Plaintiffs Gill and Hudson filed their charges on February 4, 1970.
All the defendants were named in at least several of the EEOC charges.

3/ Under the law of this Circuit, the other plaintiffs, who are 
also class members, can also properly bring suit under Title VII.
Oatis v. Crown-Zellerbach Corp.. 398 F.2d 496 (5th Cir. 1968).

-2-



conference, at which pre trial briefs and argument were received,

evidence was authenticated, the issues for trial were defined, and

a lengthy pre-trial order was entered (R. 445-492). Soon after, all

defendants filed motions for summary judgment and amended answers

raising their defenses of res judicata and collateral estoppel
(R. 430-433, 434-436, 438, 440).

The cause was tried on September 5-8 and 11-12, 1972. On

December 7, 1972, the court issued its Opinion and Judgment in favor

of all the defendants on every issue (R. 501-537). The court found

that the defendants had never committed any actionable employment

discrimination at the Mobile Mill. In particular, the court held:

(1) plaintiffs were barred, on res judicata grounds, from raising the

principal issues in the case by virtue of their prior litigation of

two different union-discrimination actions arising at the same
4/

location (R. 533); (2) the defendants' seniority system governing

promotion and transfer of employees, as modified in 1968 to provide

for greater but still restricted opportunities for blacks, satisfied
5/

and exceeded the requirements of law (R. 535); (3) the International

Paper Company's testing program did not operate to exclude blacks from 

job opportunities, and was shown to be related to those jobs (R. 536);

i/ _ The court's ruling went only to the jobs in the Papermakers' 
jurisdiction, nearly half the jobs here at stake. But since the other 
jobs are subject to identical provisions, the ruling effectively 
negates most of plaintiffs' case.

5/ The court did not specifically rule on the question of whether 
the pre-1968 seniority system was unlawful (R. 518-519).

-3-



(4) despite the nearly complete absence of blacks from maintenance and 

supervisory jobs, defendants had committed no unlawful practices in 

these regards (R. 525-527, 532-533); (5) plaintiffs were not entitled

to an award of back pay or attorneys' fees (R. 536). The court taxed 

costs against plaintiffs (R. 537) .

Plaintiffs filed their notice of appeal on January 5, 1973
6/

(R. 540).
STATEMENT OF FACTS

A. General Setting and the Historical Background of Segregation

The nine named plaintiffs in this action, appellants here, all 

worked in the Mobile Mill of defendant International Paper Company (IP) 

when they filed this complaint. They all held jobs in the production 

area of the Mill, with some from each of the major union jurisdictions. 

They are long-time IP employees, hired in the 1940s or 1950s (R. 3-5). 

The class of similarly situated employees that plaintiffs represent 

includes approximately 405 black workers (Pi. Ex. 3).

Defendant IP operates a large pulp-and-paper mill, the subject

of this action, at Mobile (R. 509). The Mobile Mill is one of ten

pulp-and-paper mills in IP's Southern Kraft Division (R. 570). The

Mobile operation centers around six paper machines (R. 573). Hourly

wage jobs at the Mill are grouped in two major areas most pertinent

to this action: the production departments in which pulp and paper

manufacturing and related functions are carried out, and the maintenance

department, which comprises the craft workers who maintain and repair

6/ This appeal was docketed on April 3, 1973, but the record on appeal 
was not completed until January 17, 1974, with the filing of the 
reporter's trial transcript.

-4-



equipment and machinery (r . 584) . The Mill housed 2115 employees, 
including 1698 whites and 417 blacks, as of January, 1972 (R. 201).

Nearly all hourly-wage employees in production jobs at Mobile Mill 
are represented by the defendant United Paperworkers International union 
(UPIU). This unipn was formed just before trial in August, 1972, as a 
result of the merger of defendants United Papermakers and Paperworkers 
( Papermakers") and International Brotherhood of Pulp, Sulphite and 
Paper Mill Workers ("Sulphite workers") (R. 513, n. 8). For clarity of 
reference and because this convention obtained throughout the proceed­
ings below, we will designate the respective unions by their original 
names herein. The Papermakers had three local union affiliates at 
Mobile Mill at time of trial, Locals 265, 265A, and 940 (R. 501). Prior
to 1968, the Papermakers also maintained an all-black local, 406 (R. 503). 
The jobs represented by Papermakerslocals were those related to the 
papermaking, finishing, and shipping processes. The Sulphite Workers
had two locals, 229 and 337, at time of trial (r . 501); formerly i t  too

9/maintained an all-black local, 412, until 1966 (R. 451). The Sulphite 
Workers-represented jobs were related to the wood, pulping, and certain 
grounds and maintenance functions. All the Papermakers and Sulphite 
Workers locals are defendants to this action. All the union defendants 
have a single union contract (CBA) with IP ( r . 202). This joint bargain­
ing group arrangement has been in effect for at least 20 years (R. 517) .

7^ k®'?31.. 1315 of the International Brotherhood of Electrical Workers 
(IBEW) also represents employees in some jobs at Mobile. Neither IBEW nor its Local 1315 is a defendant here.
tC J v6 discrirninat°ry manner in which black Local 406 was disbanded by the Papermakers and its membership assigned to the white locals was the 
controversy dealt with by Judge Virgil Pittman in the Herron and Fluker cases, discussed infra at pp. 31-37 . ------ —
_9/ The discriminatory manner in which black Local 412 was disbanded and 
its members assigned to white Local 337 was alleged in the original com­
plaint in the instant action (R. 6-8) . However, due to intervening 
events, this union merger issue was not included in the pre-trial order 
and was not an issue in this action by the time it was tried.

-5-



The methods for entry into and promotion through hourly-wage jobs 
at IP's Mobile Mill, as at most other pulp and paper mills in the 
South, are essentially different in the production and maintenance 
departments. Nearly all the production jobs are arranged in "lines of 
progression" (LOPs), in which a new employee starts at the bottom job 
and advances, ordinarily one step at a time, to higher paying jobs 
as vacancies occur and his seniority entitles him to promotion (R. 593- 
594, 910). Competition for entry into the production LOPs is governed 
almost strictly by seniority (R. 662-665). Entry-level LOP jobs have 
since 1968 been posted for bidding by incumbent employees (R. 674).
Only if no employee desires to transfer to the entry level vacancy 
does the Company hire a new applicant from outside (R. 1905). Only in 
extraordinary circumstances can the Company disqualify a production 
employee for transfer or promotion to another production job without 
first giving him the opportunity actually to perform in the job (Ex.
B, 1970 CBA § VI(c)(4)).

By contrast, maintenance craft jobs are not arranged in lines of 
progression (R. 650). The Company places in these craft classifica­
tions only finished journeymen or apprentices trained by IP (r . 644- 
64j>, 651-652). Production employees may compete with their mill 
seniority for apprentice vacancies, but only if they first satisfy
special age, education, and testing requirements IP has established to

, . 11/screen applicants for maintenance jobs.
In addition to production and maintenance jobs, this case involves 

supervisory positions in the production and maintenance departments.

- There are about 21 LOPs grouped in 12 departments at the Mill (PI. Ex. 1, 8).
11/ See pp. 20-24 , i n f r a .

-6-



With a single exception noted at p. 26 below, supervisors are salaried 
employees not represented by any union.

Prior to September 1, 1962, all jobs at the Mobile Mill were 
strictly segregated by race (r . 518). The parties stipulated that 
48 jobs in 11 departments were prior to 1962 held by blacks; and that 
the remaining jobs, numbering over 183 in 12 departments, were held by 
whites (R. 446-449). IP's Mobile Mill Personnel Director was easily 
able to identify the traditional racial character of all jobs and 
departments with specificity (R. 633-642). Blacks were restricted to 
the lowest paid, most menial production jobs, some of which were 
organized into all-black lines of progression (id., and R. 446-448,
518, 1791). All of the better production jobs, all maintenance jobs 
and all supervisor positions were open to whites only (R. 448-449). 
This system of racial job segregation was supplemented and reinforced 
by the aforementioned maintenance of racially segregated local unions 
of both the Papermakers and Sulphite Workers, see p. 5t supra.
IP would not assign black employees to jobs in the jurisdictions of 
the white locals, nor white employees to jobs in the black units, 
either by initial placement or transfer (R. 1767, 1785)

Following promulgation of Executive Order 10925 in 1962, the 
Department of Defense informed ip that its mills were in violation of 
the Order (R. 1768-1771). in September, 1962, officials from the 
Southern Kraft Division headquarters visited the Company's southern 
mills, including the Mobile Mill, and instructed local mill management 
and the local unions thereafter to consider all jobs open to all 
applicants and employees without regard to race or color (R. 1786-1787) 
However, the Company and unions took no affirmative action at that

-7-



time to disestablish the firmly entrenched patterns of job segregation 
or to remedy the ongoing effects of prior racially exclusionary poli­
cies (R. 518, R. 1787-1790).

B. Production Jobs
1. The Situation in 1962.

All production jobs at Mobile Mill fall within the scope of the 
Joint Bargaining Unit. From the inception of the Joint Bargaining 
Uhxt in 1951 to the present, promotions, demotions, transfers, lay­
offs, and recalls in production jobs have been governed by substan­
tially the same seniority principles. These provisions, as described 
in Section VI(B) through (F) of the 1970-73 CBA (Ex. B), constitute
a system of job and department seniority as traditionally maintained

13/
in the Southern pulp-and-paper industry. This system assures a step- 
by-step progression both up and down the LOPs, with all employees 
remaining permanently in the same relative order unless they choose 
or are forced to step out of that order by refusal to promote, dis-

~ F?o about ten years after the Mobile Mill began operations in the 
late 1920 s, employees were not represented by labor unions. Advance- 
ment among production jobs during this period followed informal LOPs 
(R. 1806), with blacks segregated in the lowest—paying jobs in 1939 
or 1940 IP recognized the defendant unions, or their predecessors, as 
bargaining representatives for its production workers (R. 1764). * The 
Company bargained with the racially segregated unions individually, 
and each union had jurisdiction over certain jobs (R. 1764-1765)
The lines of progression remained informal, but their structure and the 
assignment of employees to particular job classifications were con­
sidered internal affairs of the segregated unions, in which IP took 
no Part (R. 1767, 1808). When in 1951 the defendant unions were 
certified by the National Labor Relations Board and the lines of pro­
gression were formalized as part of the joint collective bargaining 
agreement, IP did not insist upon any changes in these previously
lRfO1807-1808))n~deVelOPed L°PS' and substantially none was made 

12/ See, e.g., cases cited infra, p. 41.
-8-



14/
qualification, etc.

An employee may transfer to another LOP, but he must start there 
at the bottom job, carrying the base pay rate. (1970-73 CBA, § VI(D)). 
He competes for vacancies in that bottom job on the basis of mill 
seniority (R. 662-665, 1905), but thereafter he must promote according 
to job and department seniority in the new LOP; he cannot ordinarily 
carry over the job and department seniority he accumulated in his 
former LOP (1970-73 CBA, § VI(C)).

The effect of such a seniority system is, of course, to discourage 
transfer between LOPs (particularly by more senior workers), and.

li/ Three types of seniority are recognized at the Mobile Mill and 
throughout the Southern Kraft Division: (1) job seniority, defined as
length of service on a particular job within an LOP; (2) department 
seniority, or the length of service within a particular LOP; and (3) 
mill seniority, the length of service at the Mobile Mill (1970-73 CBA, 
§ VI(B)). Permanent and temporary promotions within an LOP are given* 
to the employee with the greatest amount of job seniority in the job 
immediately below the vacancy. If the job seniority of twoT̂ oFlriori- 
competing employees is equal, the promotion is awarded to the one who 
has the most department seniority. Only if department seniority is 
equal is the promotion made on the basis of mill seniority (1970 CBA,

The most senior qualified employee is promoted automatically 
without the necessity of his bidding for the job. if the Company 
considers the employee unqualified and the question cannot be resolved 
by agreement between the appropriate union and the Company, the worker 
must be given a trial "setup" to allow him to demonstrate his ability 
adequately to perform the job. (id., § VI(C)(4)).

The senior competing employee may decline a promotion by "signing 
out" of the LOP. He signs a refusal form and thereby forfeits his 
rights to all future promotions until he indicates in writing that he 
again wishes to advance (id., § VI(C)(9)). when there is a reduction 
m  force employees are demoted, according to their job, department 
and mill seniority, in the reverse order of their promotion. (Id.,
§ VI(E)). if they "bump back" down the line of progression to a base 
rated job, they are then subject to layoff according to their mill 
seniority. (Id_. ) . Employees demoted to base rated jobs due to a 
reduction in force retain recall rights to their former job and/or 
LOP on the basis of their job and/or department seniority as 
applicable. (Id., § VI(F)(4)).

-9-



within an LOP, to keep employees in their previously-established 
place on the job ladder (R. 1740, 1474). This effect in the present 
context has a racial dimension: against the historical background of
segregated departments and relegation of blacks to bottom-level LOP 
jobs without regard to their mill seniority, the job seniority system 
is a powerful "lock-in" device”

2. Events of 1962.
IP's announced policy change on September 1, 1962 had practically 

no effect on the segregated job system at the Mobile Mill, as the 
court below recognized in characterizing the change as "more in theory 
than practice" (R. 518). All black employees remained dead-ended 
either in inferior black LOPs or in isolated black jobs (such as 
laborer or clean-up) functionally and geographically within a white 
department but detached from its promotional sequence (R. 518, 958,
960). To enter a white LOP, a black employee would still have had to 
transfer under the union contract provisions, with severely adverse 
consequences in terms of seniority, pay, promotions, demotions and 
layoffs. And to these impediments the Company on September 1, 1962 
added a new and, for ACs, virtually insuperable barrier: written
aptitude tests thereafter required for transfer between LOPs, see 
P- 23 , infra. As a result of these seniority and testing practices,
the 1962 "changes" were wholly illusory and meaningless for black

16/
workers. The court's comment that "no affirmative action was taken to

-L5/ See cases cited at p. 41~T infra; and discussion in Quarles v 
Philip Morris, Inc., 279 F. Supp. 505 (E.D. Va. 1968).
-iJl/ Plaintiff Gill testified that the only real change made in 1962 was 
to desegregate use of water coolers: "this was not helping the working 
conditions; just only removing some things that were immaterial, as far 
as employees moving up and getting his rightful place in the liAe or 
equal opportunities on jobs" (R. 960).

-10-



encourage blacks to move" in 1962 (R. 518) is a great understatement.

3. The 1966 LOP Mergers.
Following promulgation of Executive Order 11246 in 1965 and at the 

insistence of the Office of Federal Contract Compliance (OFCC), the 
Company and the local unions conducted negotiations for the purpose of 
merging the black and white LOPs (R. 1812-1813). Although IP and the 
white locals of both the Sulphite Workers and the Papermakers signed 
merger agreements for the LOPs in their respective jurisdictions, only 
the Sulphite Workers LOP mergers became effective. Thus, on May 1,
1966, certain black jobs were merged into the previously all-white
Maintenance and General Yard, Woodyard, Groundwood Mill, and Pulp Mill

, IZ/LOPs (see R. 697-698, Ex. H and Pi. Ex. 23). The proposed LOP mergers
in the Papermakers jurisdiction did not become effective because the
President of all—black Papermakers Local 406 refused to agree to their

18/
terms (R. 723-724, 1813).

The 1966 Sulphite Workers mergers were designed and implemented to 
minimize the opportunities of blacks and to preserve previously acquired 
advantages of whites. Each merger merely slotted the black jobs into 
the white LOP according to their previously negotiated wage rates, which 
situated the black jobs at or near the bottom of the lines (R. 708-710,

17/ These merger agreements were signed by the Mobile Mill Manager, by 
the white President of the historically all-white Sulphite Workers Local 
337, and by the President of all-white Papermakers Local 265-A. (Ex. H) 
On the day of the merger, but before the agreements were signed, all­
black Sulphite Workers Local 412 was involuntarily disbanded and its 
membership assigned to formerly all-white Local 337 (R. 983-988).

18/ The 1966 proposed mergers, which resembled in substance the Sulphite 
Workers mergers, were far more unfair and discriminatory than those 
subsequently accepted by Local 406 in 1968 (see Ex. H).

-11-



. li/Ex. H and Pi. Ex. 23). in the few cases where white jobs fell beneath
black jobs, the white incumbents were given the first right to advance

20/to higher jobs, bypassing the blacks in jobs slotted above them. As 
the court below recognized, the 1966 mergers made little difference, 
for "unfortunately the blacks were locked in their jobs and protective 
measures were not installed to insure they would reach their proper 
place within the new line of progression" (R. 518).

4. The 1968 Jackson Memorandum and the McCreedy Letter. 
Early in 1968, plaintiff George Herron and other black employees 

in IP's Southern Kraft Division complained to the Office of Federal 
Contract Compliance (OFCC) about defendants' continuing practices of 
racial discrimination (R. 450). OFCC investigated these complaints 
and, at a joint meeting of the company and unions in Jackson, Missis­
sippi, in June 1968, informed the defendants that their promotion and 
transfer system under the existing Joint Collective Bargaining Agreement 
was not in compliance with Executive Order 11246 and that twelve 
changes were necessary to bring these practices into compliance ( r . 450- 
451). OFCC distributed these "Twelve Points" to the Jackson conferees
in memorandum form; they were discussed but not accepted (Pi. Ex. 32, R.
804 -815 ).
197 ~ ; -------
—  Plaintiffs' expert witness on industrial engineering testified 
that slotting jobs into LOPs by wage rates is potentially non-functional 
and incorporates the discriminatory influences that originally went 
into the wage rate determinations (R. 1455-1458, 1460, 1508-1509).
20/ This result was accomplished by allowing white incumbents to retain 
first promotional rights to jobs higher in the white LOP on which they 
had been "permanently rated." E.g., Ex. H, R. 704-707, 709. Nearly 
all of the white employees in the bottom jobs had been "permanently 
rated" on higher jobs by virtue of having worked in those jobs more 
than thirty days on temporary setups necessitated by the absences and 
vacations of workers throughout the LOP (R. 1902-1904, 1867-1868).

Other artificial and discriminatory conditions obtained in merged 
lines in demotion situations, e.g., in the Woodyard (R. 709-713).

-12-



The defendant Company and unions (and the IBEW, which is not a 
party to this lawsuit) thereupon entered into a Memorandum of Understand- 
ing (hereinafter called the "1968 Jackson Memorandum") (d . Ex . 13), 
which modified the existing Joint Collective Bargaining Agreement and 
became effective August 11, 1968 (R. 450-451). The 1968 Jackson Memo­
randum defined an "affected class" comprised of all black employees 
hired before September 1, 1962, and those hired before August 2, 1968, 
into black jobs. it gave affected class members (hereinafter sometimes 
ACs") a chance to transfer into the bottom job of formerly all-white 
LOPs on the basis of mill seniority, so long as their "qualifications 
[were] as high as the minimally qualified employee currently working in 
the line" (D. Ex. 13, § I.C. (2)). This latter language removed the
aptitude test barrier to transfer between LOPs for ACs (R. 806). ACs
who transferred to a new LOP whose bottom job paid less than their old

22/
job could have their wage rate "red circled”  at the rate of the job 
they left, but only if it was $3.00 per hour or less and only if they 
transferred within six months after the Jackson Memorandum became 
effective (D. Ex. 13, § I.C.(3)). The $3.00 red circle ceiling was
already below the current rates of many ACs in August, 1968 (R. 1858-
1859). in all LOPs affected class members were to be allowed to compete 
with non-ACs for promotion, demotion, layoff and recall on the basis of

21/  --------- '—  As implemented at the Mobile Mill, the affected class 
included no blacks hired after 1962 (R. 2062). actually

*ed,circling" m  the present context means giving wage protection 
° ^Cs ^h° transfer to the bottom of a higher-paying LOP, so that they 

need not suffer a temporary pay cut in order to seek eventual promotion 
to ]obs paying more than those in their original lines.

-13-



mill seniority. Contract seniority, —  e.q., job and department 
seniority continued to control competition between non-AC employees 
or when ACs competed with each other (D. Ex. 13 § I.A,B).

The 1968 Jackson Memorandum also directed IP and the local unions 
at each mill to negotiate revisions in the LOPs to facilitate movement 
of ACs to the higher paying jobs which were their "rightful places." 
Black and white LOP mergers were to be accomplished within 90 days after 
the Memorandum was ratified (id. § H.A.), and within thirty days there­
after the defendants were to "meet to examine the shortening of lines 
of progression and [to] determine those jobs, if any, which may be 
skipped in advancing within or transferring between lines of progres­
sion. " (id. § II.B).

Pursuant to this latter clause negotiations were conducted at 
the Mobile Mill and black and white LOPs in the Papermakers jurisdiction 
were merged on terms more favorable to the black incumbents than those 
proposed in 1966 (R. 1819-1820). Thereafter, formal discussions were 
held between management and the local unions at which IP advanced 
"numerous" line-shortening proposals, but no specific proposals were 
made for job-skipping opportunities (R. 727-729). However, these dis­
cussions yielded no revisions in the LOP structures, nor did they
provide any job-skipping or advanced level entry opportunities for the

23/
affected class (R. 729).

Shortly after the 1968 Jackson Memorandum went into effect, repre­
sentatives of the defendant unions complained that affected class

— f An expert description and discussion of these terms and concepts 
appears at R. 1478-1482. Briefly, "job-skipping" means allowing ACs to 
bypass an intermediate job which does not provide necessary training 
for higher jobs, in promoting to their rightful place in the LOP. 
"Advanced level entry" is job-skipping at the entry level: an entering 
AC is allowed to begin above the non-essential bottom job(s) of the progression.

-14



members were progressing up the various LOPs faster than the terms of 
the Memorandum, as they interpreted it, allowed (R. 1824, 1863). As 
IP was then administering the Memorandum, ACs either temporarily setup 
or permanently classified on a particular job were considered, on the 
basis of mill seniority, for permanent as well as temporary vacancies 
in the next higher job (R. 1862). The unions opposed this practice and 
further contended that ACs could not compete with their mill seniority 
for recalls (R. 1825).

The Company requested an OFCC interpretation of the 1968 Jackson 
Memorandum with respect to these two issues (id_.). OFCC responded in a 
document known as the "McCreedy Letter" (D. Ex. 15), an undated letter 
sent to an IP vice President about May 1, 1969 (R. ). The McCreedy
Letter, in effect, adopted the restrictive interpretations of the unions
on both issues and authorized ip to modify its practices and limit ACs’24/
rights accordingly.

Upon receipt of the McCreedy Letter, IP began refusing to allow
ACs to compete for permanent promotions when they were only temporarily

25/
assigned to the level below the vacancy. This was a retreat from the

24/ ~ ~~~The McCreedy Letter authorized IP to administer promotions under 
the 1968 Jackson Memorandum either by developing reasonable residency 
periods for^each job in an LOP, representing the time necessary for an 
AC to work in each job before being considered qualified for permanent 
or temporary promotions to the next higher job, or by limiting compe­
tition for permanent (but not temporary) promotions to those employees, 
including ACs, permanently classified in the job immediately below the 
permanent vacancy. With respect to recalls, the Letter authorized 
defendants to give priority to white employees with recall rights to 
entry jobs, over ACs with greater mill seniority (D. Ex. 15).
2_5/ The Company rejected the residency period alternative proposed 
by OFCC only because the adoption of residency periods would have 
necessitated additional company-union negotiations (R. 1864).

-15-



practices in effect beginning Auguqt, 1968. The net impact of the 
McCreedy Letter was to slow ACs' advancement toward permanent promotion 
to their rightful places. The McCreedy Letter interpretations also 
adversely affected ACs in competition with other employees for recall 
from layoff, by recognizing those others' "prior rights" gained by
virtue of past discrimination. ACs had no opportunity to gain "prior
. . 26/ rights" in jobs from which they had been racially excluded.

5. The Failure of the Jackson Memorandum and the 1972 
Revision.

As a result of its manifold inadequacies, the 1968 Jackson Memo­
randum had by 1972 proved itself an abject failure as a meaningful 
instrument to remedy past discrimination. Plaintiffs' main statistical 
table (PI. e x. 1) graphically illustrates the continuing segregation 
and racial stratification of the production lines. in all lines, 
blacks remained on the bottom. The Woodyard was still all-black with 
the exception of five whites inserted at the top of the LOP by the 
1966 merger (PI. Ex. 1). Blacks remained almost entirely absent from
the traditionally white LOPs, such as the Paper Machines, Technical

27/
Department and Storeroom. LOPs integrated through mergers, e^. , the

20 /- ' Pl. Ex. 15, IP's answer to a written grievance, describes how 
immediately after the McCreedy Letter was implemented, AC Griffin 
Williams lost a permanent promotion to the entry job in the Pulp Mill 
LOP because a white with less mill seniority had recall rights to the job (R. 1946, 2058-2060).
21_/ The number and position of blacks was on 12/31/71 (pi. e x . 1) :

LOP # w # B
Paper Machine 1&2 62 2Paper Machine 3 28 0Paper Machine 4 23 1Paper Machine 5 28 0Paper Machine 6 32 0Technical 84 7Storeroom 16 1

Position of Blacks 
next to bottom job 

bottom job

only 4 above laborer 
laborer

-16



Pulp Mill, Groundwood Mill and Finishing and Shipping lines, continued
28/

to have virtually no blacks in their top halves. Over 86% of all black 
employees at the Mobile Mill were still working in only ten LOPs con­
taining collectively only 29.2% of all hourly wage employees at the mill 
(Pi. Ex. 29) .

Average pay rate data shows no less clearly that blacks were 
trapped in the lowest positions. As of December 31, 1971, an average 
pay comparison of white and black workers according to year of hire 
(mill seniority) reveals that, for 34 of 35 year-of-hire groupings, 
whites earned more than their black contemporaries (Pi. Ex. 12). In 
14 such cases, the disparity averaged over $1.00 per hour; in 25, over 
$0.50 (id.). Another comparison, contrasting all whites and blacks in 
each LOP regardless of their seniority, shows that in all but one LOP 
whites averaged more than blacks, usually by more than $0.60 per hour 
(PI. Ex. 3) .

IP's own statistical evidence shows how few affected class members
had actually transferred into new LOPs, particularly the more desirable

29/
white lines, by the time of trial. Moreover, of the 145 ACs in base 
rated jobs in August, 1968, 59 had not advanced beyond the base rate 
by August, 1972. An examination of the most recent seniority lists 
shows that as of the dates of those lists (ranging from June to 
December, 1971), only 8 of the approximately 300 ACs still employed had

2§/ The highest black in the Pulp Mill as of 12/31/71 was 17 levels 
from the top job. Blacks had reached only the bottom three of six 
Groundwood Mill jobs. No blacks held the top 7 jobs in Sheet Finishing 
& Shipping (F&S) 1, or the top 7 jobs in Roll F&S 1-4 (Pi. Ex. 1).
29/ E.g., there was a net loss of one AC in the Woodyard and a net gain 
of one in the Finishing and Shipping Departments. The Paper Machines, 
Technical and Storeroom lines had no ACs, while only two or three ACs 
had transferred to the Power Plant and Laboratory lines (D. Ex. 27).

-17-



reached their rightful places, according to mill seniority, in the
30/

formerly all-white LOPs. All other ACs continued to suffer from the 
legacy of the past.

In 1972, almost a year after this lawsuit had commenced, the OFCC 
recognized the inadequacy of the 1968 Jackson Memorandum/McCreedy 
Letter system, and suggested a new Jackson Conference to negotiate an 
improved Memorandum (R. 1843-1844, 1869-1871). Representatives of the 
defendants met at Jackson in May or June of 1972 and, under the third 
party direction of OFCC representatives, tentatively agreed to a 
Revised Memorandum of Understanding (hereinafter the ”1972 Jackson 
Memorandum") (R. 1844, D. Ex. 18).

The 1972 Jackson Memorandum expanded the rights of ACs in several 
respects: (i) The scope of the affected class was broadened to include
general service technicians, porters, and janitors (D. Ex. 18 § I.C(5), 
R. 1848). (ii) ip was to re-interview all ACs to determine their 
interest in promotion or advancement in the LOPs (§ I.C.(l), R. 1848). 
(iii) The red-circle ceiling was raised from $3.00 to $3.86 per hour 
(§ I.C(4), R. 1849). (iv) Residency requirements were adopted to 
replace the McCreedy Letter promotion policy (§ II, d . Ex. 20, R. 184917 
(v) Local negotiations to provide for job-skipping and advanced level

—  Those eight were: Simon Tricksy (Core Dept.); W. C. Lewis, C. H. 
Simmons, and Henry Horn (Technical Dept.); Kiah Edwards, Lewis Robinson 
and Robert Chapman (Maint. & Gen. Yard Dept.); and Horace Gill (Pulo Mill). (Ex. I). ^
21/ This would allow ACs to earn residency status on jobs in their LOPs 
whether they were working in the jobs on a temporary or permanent basis. 
They would then be eligible to compete for permanent as well as tempo- 
rary promotions to jobs above those on which they had satisfied the 
residency requirements, regardless of their permanent classifications. 
The exact length of residency periods for each job was to be negotiated 
by the Company and local unions within thirty days after the effective 
date of the 1972 Memorandum.

18-



entry opportunities for the affected class were required to take place
32/

within thirty days (§ IV, R. 1845-1846). (vi) The McCreedy Letter 
recall policy was revoked (see D. Ex. 20) and non-ACs with recall rights 
to an entry job in an LOP were required to compete with affected class 
members on the basis of mill seniority (§ V, R. 1850).

Whether the 1972 Jackson Memorandum would effectively promote AC 
advancement is not, of course, determinable on this record. But four 
years' experience under the 1968 Memorandum shows beyond cavil that the 
earlier version granted ACs far more limited opportunities than it 
could have and far less than was needed to have any significant practi­
cal effect.

C. Maintenance Jobs
At Mobile Mill, the best, most prestigious,, and highest-paying 

large group of hourly paid jobs is the maintenance craft positions 
(Pi. Ex. 4). The maintenance crafts encompass millwrights, pipefitters, 
machinists, welders, and carpenters in the Mechanical Department; elec­
tricians and repairmen in the Electrical Department; and instrument men 
in the Instrument Department (R. 584, Pi. Ex. 1). ip hires a few main­
tenance employees as finished journeymen —  fully qualified experienced 
maintenance workers (R. 644-645). But most of IP's maintenance 
personnel learn their crafts by working at the mill, as "apprentices." 
Despite the nomenclature, the majority of IP's training programs are 
not formal apprenticeships including classroom work. Rather, they are 
informal "helper" programs in which the learner accompanies and assists 
32/ ~~~—  .Air the tinie of the trial, the 1972 Jackson Memorandum had not been 
ratified or implemented. Consequently, the residency periods and jobs 
that could be skipped, as they may have been subsequently adopted by 
the defendants, are not in the record.

-19-



a journeyman at his tasks, thereby learning them (R. 643-645). Entry 
into the training programs requires passing a battery of written aptitude 
tests (see p. 24, infra) and satisfactory completion of a physical 
examination, reference check, and personal interviews (R. 647-650) . 
Applicants to enter apprenticeship programs may not be over 29 years 
of age (R. 2047). IP selects all entrants (R. 655, 775).

Nothing in the 1968 Jackson Memorandum changed these procedures. 
Indeed, the entire 1968 Jackson Conference was addressed only to pro-

34/
duction line of progression jobs (D. Ex. 13, R. 799, 2063, Pi. Ex. 32).

Virtually all maintenance craft journeymen and apprentices are
white; until the past few years they were indeed 100% white. As of
December 31, 1971 there were 324 whites and only three blacks —  less

35/
than 1% —  in the true craft jobs (Pi. Ex. 13). All three of the blacks 
were apprentices; none was a journeyman (id_.) . The lily-white compo-

33/—  The only two crafts with formal apprenticeship programs at Mobile 
Mill are instrument man and pipefitter-plumber (R. 644, 651-652) . The 
training programs for machinists, millwrights, welders, auto mechanics, 
sheet metal workers, blacksmiths, steel workers, carpenters, insulators, 
electrical repairmen, etc., are informal (id.).
34/ The 1972 Jackson Conference, in contrast, produced a Supplemental 
Agreement (D. Ex. 19) which at least purports to address the mainte­
nance problem. It allows ACs to move into maintenance jobs for a six- 
month probationary period during which the AC may return to production 
with no loss of seniority. IP recognized that the absence of such a 
provision previously constituted a deterrent to ACs' transfer to main­
tenance (R. 1851-1852). But nothing in the 1972 Supplemental Agreement 
in any way changed the basic entrance requirements for maintenance jobs 
(R. 1886).
35/ By "true" crafts, we mean those for which the Minnesota Paper Form 
Board Test was required. A few lesser skilled and lower paying main­
tenance positions are outside this category, but even these jobs are 
virtually all white. E.g., as of December 31, 1971 there were 17 
painters of whom 2 were black; and 21 oilers of whom 2 were black (Pi. 
Ex. 1). The first of these black painters and oilers appears between 
September, 1969 and February, 1970 (jlc3. ) . Even with the inclusion of 
these blacks in the maintenance craft totals, blacks held only seven — 
less than 2% — of all maintenance jobs.

-20-



sition of the main craft positions is summarized in the following table

- # Blacks
0 
1 
0 
0 
0 
0 
0 
0 
0 
0 
0

Before the 1968 Jackson Memorandum, there were no blacks at all in the*
maintenance departments (r . 652-653). As of the date of trial, none 
of the 324 black affected class members had ever transferred into a 
maintenance job (d . Ex . 27, R. 2063).

Position # Whi
Millwright 55Millwright apprentice 25Pipefitter 43Pipefitter apprentice 13Machinist 20Welder 34Carpenter 19Steel Worker 12Repairman Electrician 25Shift Electrician 18Instrument Man 11

The near total absence of blacks from maintenance positions is 
attributable to several systemic factors. IP's testing battery took a 
heavy toll, see pp. 24-26 ; infra. ip also requires a high school 
education as a prerequisite to entry into maintenance departments (Ex. 
H). A high school education standard manifestly excludes many affected 
class members. And even ACs who could meet the testing and educational 
requirements were excluded by the 29 year age limit.

Beyond these systemic practices, IP simply did not employ black 
maintenance craft workers, as shown by testimony of a number of wit­
nesses, all ACs. Griffin Williams, an AC, completed a two year course 
at Tuskegee institute and was certified as a machinist and welder (R. 
1666-1668). Following graduation in 1952, he worked at Tuskegee for

IP considered passageof the test battery as a substitute for a 
X r  1804-1805). But since the testsXre thenselv^ dfscrLi-
M gh sihoSl degrees pr°Vldes llttle to class sobers without

-21-



■%

four years as a power plant shift engineer (R. 1669). When he applied 
to become a maintenance worker at ip in 1957, presenting documents
proving his qualifications (id.). Mr. Williams testified, his inter­
viewer

... informed me —  and he was very nice I must say 
this —  that no black person at this time would be 
able to get a job there in this particular field (R. 1670).

Hired as a laborer, Mr. Williams persisted in seeking a maintenance 
job, taking and failing the test battery several times after 1962 before 
finally passing it (R. 1671-1672), but was never offered a maintenance 
position. IP now refuses to consider Mr. Williams because he is too 
old to meet the 29 year age limit (R. 2047) .

Louis Robinson, another AC and a certified welder who trained 
during the Second World War with Alabama Shipbuilding Company, applied 
at ip for a welder position in 1946 (R. 1583-1585). His interviewer 
informed him that IP "didn't use colored welders." Robinson then 
"accepted what they had" —  labor (R. 1585). After the 1968 Jackson
Memorandum, on his own initiative, he filed three transfer requests 
for craft positions and showed his certificate to his interviewer 
(R. 1586-1588). This interviewer promised to call Robinson back to take 
the tests when a vacancy occurred, but never did (R. 1589-1591). Other
witness testimony confirms that IP's historical policies of exclusion

37/continued in effect long after 1965.

22/ Ernest Allen testified that as a laborer he had worked for many 
years helping millwrights just as millwright helpers did (R. 1596—1597) 
He has repeatedly asked ip personnel managers about millwright or insu-" 
lator work, only to be told each time that he was too old (R. 1601-1603) 
Another witness with some mechanical background, Dave Houston aqe 38 
also requested work as a mechanic only to be told that he was'too old' 
for the apprenticeship program (R. 1616-1622). One of the three black 
apprentices, Leonard Burgess (not an AC), told how after having passed

22-



D. Testing Practices

IP has, since 1962, utilized a battery of written employment apti­
tude tests to screen applicants for both production and maintenance

38/
jobs (D. Ex. 5, R. 1141-1149). ip requires successful performance on 
these tests as a prerequisite to hiring new employees into any bargain­
ing-unit jobs at Mobile Mill, and further requires test qualification 
of production employees who desire to transfer between different LOPs 
or (most important here) into maintenance positions (R. 676, 680, D. Ex. 
5). in May, 1968, IP made a limited exception to the testing require­
ments for AC employees, permitting them thereafter to transfer between 
production lines without passing the tests; however, testing remained 
a prerequisite for transfer to maintenance jobs (R. 1150, 1837). At
the same time, the required test scores for production jobs only were 
lowered (R. 1149).

The tests m  use since 1962 and required scores are shown on D.
Ex. 5. For production jobs, applicants must score at least 15 on the 
Wonderlic Personnel Test and also achieve a score of either 20 (on Form
AA) or 12 (on Form BB) on the Bennett Test of Mechanical Comprehension3 9/
(D. Ex. 5, R. 1143). For maintenance positions ip requires scores of

37/ cont’d
ai* 1 * * *̂ he tests on his second try, he was at first rejected by the head
Siew 2091-5o9?feParrtr nt ^  ^  baSiS °f 3 non-3ob related inter- • +- • 2092\ • Later, accepted as an apprentice after being
interviewed by a different man, he was nevertheless placed behind a
that0" ! ^ ^ 6^ 13̂ 611̂ 1^6 in seniority rank and, when he protested, toldI should be glad I got the job, period." (r . 2092-2093).
H ^ / L be?:n/ r tiS9;S; r eni"9 °f new applicants for maintenance jobsearlier, in the mid-fifties (R. 1778-1781). The full testina Droanm
was instituted on September 1, 1962, the same date that IP announced
(R ?78?r V a S / ? 9 :hf„White production lines to black employees
accidental (R 677K Imposition of these events was not
3_9/ Prior to May, 1968, ip required Bennett 
30 (Form BB) for production jobs (R. 1149). scores of 38 (Form AA) or

-23-



18 on the Wonderlic, 45 (Form AA) or 37 (Form BB) on the Bennett, and 
45 on a third test, the Revised Minnesota Paper Form Board Test (id.).

The rates of success on these tests for whites and blacks is a 
disputed issue in this case. This issue centers primarily on the
ability of black production workers to satisfy the test-score require-

40/
ments for transfer into maintenance positions.

The evidence as to the passing rates of whites and blacks on the
tests required for the maintenance craft jobs was not comprehensive.
No thorough survey of actual results of all testing at Mobile Mill

41/
was introduced by either party. Yet there is a considerable body of 
evidence in the record showing that blacks fared much worse on the tests 
than whites.

The only direct and specific statistical evidence in the record 
shows that, of the employee-applicants for transfer to maintenance 
craft jobs in 1970-71, 83.3% of the blacks (5 of 6) but only 42.1%
(24 of 57) of the whites failed the test battery (Pi. Ex. 6, R. 866- 
867). The indirect and general evidence all points to the same pattern. 
In the maintenance craft jobs for which the test battery has long been

— ' Although plaintiffs' complaint sought to raise the testing issue as 
it affected new black applicants, the court below excluded job appli­
cants from plaintiffs' class and limited it to incumbent employees in 
an order dated April 7, 1972 (R. 345). This ruling left plaintiffs the 
testing issue only as it presently affects AC employees. Because AC 
employees are not now tested as a requirement for transfer between 
production LOPs, the principal remaining testing issues relate to the 
requirements for transfer to maintenance jobs. Plaintiffs limited 
their proof accordingly.
41/ Plaintiffs were unable to secure discovery of comprehensive test 
score data and, therefore, relied on partial data. IP witnesses, while 
strenuously protesting that the Company had made no systematic statis­
tical study of passing rates —  although the Company was obviously in 
a position to do so —  nevertheless indicated, to the extent they were 
not silenced by their own counsel and the court below, that they had an 
impression of what the relative rates were (R. 687-689, 1168-1169).

-24-



the primary qualifying criterion, blacks held only 3 out of 345 jobs — 
less than 1% —  as of December 31, 1971 (Pi. Ex. 13). Dr. Richard 
Barrett, the plaintiffs' expert testing witness, gave unrebutted testi­
mony that blacks generally score lower on written aptitude tests than 
do whites, that he has personally observed this consistent pattern 
with respect to the Wonderlic and Bennett tests, and that in general 
the average white score on these tests is equal to or higher than 65% - 
85% of blacks' scores (R. 1350-1351). Dr. Barrett's testimony is con­
firmed, in the case of the Wonderlic test, by an exhaustive statistical 
study of scoring patterns by race, "Negro Norms" (Pi. Ex. 34). This
document, prepared by the Wonderlic's publishers, shows large and con-

42/
sistent disparities in the scores of whites and blacks. Blacks average 
less than 16, whites over 23; half of all whites score above 23 but 
only 15% of blacks do that well (ic3. , pp. 11, 13, R. 1352). To focus 
on 18, the passing score for the maintenance battery, 74% of whites 
achieve this score compared to only 34% of blacks (Pi. Ex. 34,pp. 11, 
13, R. 1353).

The testimony of black workers confirms that they had difficulty 
in passing the tests. Plaintiffs' witness Griffin Williams, who was 
already highly qualified for maintenance work (see pp. 21-22, supra) 
failed the tests several times before he passed and testified that of 
"quite a few" black test-takers after 1962, only very few passed (R. 
1670-1672). Ernest Allen testified that he took the tests with a 
"bunch" of (black) general yard laborers in 1962; he failed and the

— -/ This study was cited by the court in Moody v. Albemarle Paper Co., 
supra, 474 F.2d at 138, as partial support for its determination of 
discriminatory impact of this same test in another paper mill.

-25-



evidence indicates that all of the others did also (R. 1604-1605)
Horace Gill, a named plaintiff, could recall only five black employees 
who had passed the tests before 1968, even at the lower level required
for production jobs, although many others were unsuccessful (R. 960- 
963) .

Defendant ip introduced no evidence whatever about the relative 
pass rates of whites and blacks and indeed resisted every attempt to 
obtain testimony on those rates.

E- Supervisory Positions
Line supervisors and foremen occupy a crucial position at Mobile 

Mill. On their recommendations and daily decisions depend the oppor­
tunities for advancement of hourly-paid workers, including ACs.
Salaried supervisory jobs are also, of course, more responsible and 
higher paying than wage rate positions. The fact that IP maintains 
an all-white supervisory staff, therefore, takes on double significance.

All supervisors in production and maintenance departments are 
salaried employees outside the union jurisdictions, except for a few 
hourly-wage "straw bosses" in the Maintenance and General Yard Depart­
ment, who are in the Joint Bargaining Group unit (R. 585-586, 759).

Most lower-level supervisors and foremen are former hourly-paid 
employees who promoted up from the ranks (R. 753). They are selected 
by management; the mill manager is ultimately responsible for all 
supervisory appointments and he acts on the recommendation of depart­
mental managers and lower level supervisors who have observed the hourly 
employees' work (R. 753-754). Nominations of candidates are made by 
the employees' immediate supervisors (R. 756). Standards for nomina­
tion and selection for supervisory ranks are indefinite. in addition

-26-



to a vaguely identified supervisor's test which has no fixed cut-off 
score (R. 755-756), promotions are based on such evanescent qualities 
as leadership ability," "loyalty, reliability, honesty," and "various 
and normal things that you are looking for when you are looking for 
supervisors" (id.). in addition, candidates must pass the Wonderlic 
test with a score higher than that required for production jobs; this 
usage of the Wonderlic has never been validated (R. 757). Supervisory 
vacancies are not announced or posted and there is no procedure for 
employees to bid or apply for promotion to supervisory levels (R. 756- 
757) .

The statistical evidence shows that, as of December 31, 1971, ip 
had 193 supervisors, of whom only one was black (Pi. Ex. 2). Of the 
white supervisors, nine were initially hired at Mobile Mill in 1970,
33 in 1965 or later, 57 in 1960 or later (id.). ip has never employed 
more than that single black supervisor at Mobile and he is only an 
hourly-paid "straw boss" who is eligible for temporary set-up to regular 
salaried supervisory positions (R. 757-758). IP has not even considered 
any other black for promotion to management at Mobile Mill and candidly 
admitted at trial that it had no intention of doing so in the future 
(R. 759-760).

IP's system for selecting supervisors is tailor-made for racially 

motivated abuse and has been consistently used to exclude blacks from 
lower-level management jobs.

The testimony of the lead plaintiff in this lawsuit, Jessie 
Stevenson, aptly illustrates the pervasive discrimination that has 
kept black employees out of supervisory ranks. Mr. Stevenson already 
had railroad experience doing track work when hired by IP in 1941 in

-27-



the general yard (R. 1627-1629). For many years thereafter, Mr. 
Stevenson worked directly under a series of white yard foremen assigned 
to supervise track work. Each time one foreman died or retired, 
another elderly white gentleman was brought in to replace him (R. 1629- 
1636). At times Mr. Stevenson in fact performed the foreman's duties; 
several of the whites had no knowledge of track work and one was 
illiterate (R. 1633-1637, 1641). in about 1957, after the death of 
another white foreman, Mr. Stevenson continued to perform his super­
visory duties for several months (while receiving laborer's pay) (R. 
1638-1639). When Mr. Stevenson then asked to receive the pay for the
foreman job, his head foreman stated, according to the plaintiff, "the

43/
company don't hire no damn nigger bosses" (R. 1639). Another white
got the track straw boss job. For the remainder of his career, Mr.
Stevenson continued to seek official promotion to the straw boss job
he had long performed. He never achieved that goal, despite strenuous

44/
and often vocal attempts both before and after 1965, and retired in 
September, 1971 shortly after filing this lawsuit (R. 1641-1642, 1644- 
1646, 1626). 43

43 /-- The trial judge sustained an objection to some or all of this
response and ordered it stricken from the record (R. 1640). The 
record does not clearly show whether the court's ruling went to the 
whole answer or only the racial epithet. The court may have incor­
rectly regarded the remark, which was obviously not offered to prove 
the fact stated, as hearsay. Or, it may simply have wanted to "keep 
out such remarks as that" (R. 1639).
44/ in 1965, Mr. Stevenson filed a formal grievance over the issue 
of his laborer's pay for his supervisory work (R. 1641-1643). in 
1968, he requested the track boss job unsuccessfully in a meeting with 
the personnel director (R. 1644).

-28-



argument

Introduction and Summary

Like all other employers and unions in their industry and 

region, the defendants in the past maintained and enforced a strict 

pattern of racial discrimination: black jobs and white jobs, with

all the best opportunities reserved for whites. Defendants do not 

even contend that they did anything to change this until at least 

1962. Like other employers and unions, the defendants have, since 

1962, taken some halting steps to alleviate the traditional dis­

crimination. But, as shown in the Statement of Facts, defendants 

made no changes of any practical significance until 1968, and those 

changes have succeeded to a very limited degree— in some areas, not 

at all in altering the traditional patterns of segregation. Where 

past discrimination and its continuing effects are as clear and 

tenacious as here, the courts require the discriminators to take 

effective remedial action. In this factual and legal context, this 

Court must decide on appeal whether, under the doctrine of Rowe v. 

General Motors Corp., 457 F.2d 348, 355 (5th Cir. 1972), the

defendants have done enough to eliminate the effects of their past 
discrimination.

The court below, by granting defendants summary judgment on the 

most significant issues, would deny plaintiffs even their right to 

a proper adjudication of the adequacy of defendants1 efforts. This 

Court must reverse that ruling and pass on the merits of the claim



(I, pp. 31-40 )• The 1968 Jackson Memorandum opened some oppor­

tunities to blacks in basic production jobs, but further significant 

opportunities were unnecessarily withheld, and as a result the 

Jackson Memorandum failed to overcome the legacy of past discrimination. 

The 1968 changes did not, therefore, satisfy defendants' remedial 

obligations (II, pp. 40-59) . Written aptitude tests which blacks 

fail more frequently than whites screen out black workers from the 

best jobs recently opened to them in theory (IIIA, pp. 59-63) .

Defendants' attempted validation of these widely discredited tests 

fails to show that the tests are job related, as the law requires 

(IHB, pp. 59-70). Exclusion of blacks from maintenance craft jobs, 

formerly overt but now accomplished by a series of facially neutral 

devices, has kept these jobs an all-white preserve (IV, pp. 71—75).

The restriction of supervisory jobs to whites, by means of the 

discriminatory application of arbitrary and standardless selection 

procedures, complements the racial stratification of unionized jobs 

(V, pp. 75-78). The court below took no action to enjoin any of 

these practices, finding them uniformly non-discriminatory. This 

Court should require that, in addition to appropriate injunctive 

relief, compensatory back pay and attorneys' fees be awarded to 

plaintiffs (VI, pp. 78-82).

-30-



I. The District Court Erred In Ruling That Plaintiffs 
Were Precluded From Litigating Certain Issues In 
This Action By The Doctrine Of Res Judicata .

The district court held that plaintiffs were barred from raising

a number of the principal substantive issues in this case by operation
45/

of the doctrine of res judicata (R. 533). in the district court's

view, those issues were barred because some of the plaintiffs and 

their attorneys had previously litigated in the same court the civil 

actions styled Herron, et al. v. United Papermakers and Paperworkers. 

AFL—CIO,_et al., C.A. No. 5665-69-P, and Fluker, et al. v. Locals 265

and 940, United Papermakers and Paperworkers, AFL-CIO, et al.,
46/ 47/

C.A. No. 5839-70-P (icl. ) . This ruling was in error.

45/ The court concluded: "The decision of the Court in Herron-Fluker,
supra, is res judicata as to any issues concerning former Papermaker 
Local Unions 265, 265-A, and 940, including union merger, processing 
of grievances for black members, promotion and seniority. . . 
Defendants' motions for summary judgment are granted as to all issues 
raised relating to the former Papermaker jurisdiction" (R. 533) 
(emphasis added). Of course, since the Sulphite Workers jurisdiction 
employees promotion, transfer and seniority rights were governed by 
the same joint bargaining unit contract as the Papermakers, this 
prohibition effectively included the entire scope of this action's 
major issue.

4_6/ The pertinent pleadings from these actions are included in a 
sePar'ate appendix (A II) . The two cases were consolidated for trial 
and decided together ( ). They will hereafter be referred to,
as they were below, as Herron-Fluker.

47/ The ruling came in the form of a post-trial grant of the motions 
for summary judgment filed by all defendants between August 17 and 
August 21, 1972 (R. 432, 436, 440).

-31-



A - The Herron-Fluker Litigation Presented a Cause of 
Action Different From This Case

In order to present the issue on appeal, we must briefly review 

the nature of the Herron-Fluker litigation.

Both Herron and Fluker were strictly limited to certain union- 

discrimination issues. They arose out of the allegedly discriminatory 

revocation of the charter of the black Papermakers Local 406 and 

the merging of its membership into that of the predominantly white 

Papermakers Locals 265 and 940 in 1968 (see pp. 5, 14, supra). Both 

the Herron complaint (All ) and the Fluker complaint (All

) are clearly directed at union discrimination alone. Both sought 

only two limited forms of relief: (i) provisions for the representation

of black former 406 members during the period of transition into 

integrated locals; and (ii) redress from alleged failures by the

white locals to represent their new black members' interests fairlv
48/

and adequately. in the pre-trial order in Herron-Fluker

(denominated Joint Document, All ) plaintiffs set forth the

substance of their claim in language dealing only with the transi­

tional representation and adequate representation issues (All

). The statement of contested issues in that order lists only

48/ See Hgrron complaint, prayer Hl-3 (All ); Fluker complaint, 
prayer 2, 3 (All

-32-



two substantive issues; they are the same narrow ones specified

above (issues "c" and "d", All

In deciding Herron-Fluker, Judge Pittman recognized that the

cases presented only limited issues confined to the Papermakers
49/

locals' treatment of their new black members (All ).

The Judge clearly understood that the case did not present the

broader underlying issues of discriminatory employment practices by
50 /

defendant IP or by the company and unions jointly for adjudication.

49/ Introducing the case, Judge Pittman stated,

Specifically, plaintiffs allege discrimination 
on the part of the union in the following respects:

1. The former members of the all black union 
were not afforded protection in the transi­
tional period between segregated and inte­
grated unions.

2. The black employees of the International [UPP] 
are denied their seniority rights; and the 
predominantly white unions to which they 
belong do not protect their rights.

(All )• In the opinion, Judge Pittman ruled in part in
plaintiffs' favor on the first issue, and against plaintiffs on the 
second issue. He did not rule on any other questions.

50/ The Judge noted in his opinion (All

Pursuant to the Jackson Memorandum the company 
and union met and devised a method of merging the lines 
of progression. The plaintiffs do not complain about 
the terms upon which the lines were merged.-^/

Plaintiffs do have complaints, however, arising 
directly or indirectly from the merger of the black 
and white locals. . . .

-33-



In granting summary judgment, Judge Hand completely misconstrued

the actual or possible scope of the issues litigated in Herron-Fluker.

as is repeatedly shown by his colloquy with counsel at the outset

of trial (R. 561-566, 602-624, 733-747). Judge Hand erroneously

concluded that Herron-Fluker was, or could have been, a broad

action attacking all the forms of employment discrimination practiced
11/at IP's Mobile Mill in the Papermakers jurisdiction (R. 513-514).

He assumed, again erroneously, that Stevenson advances the same 

cause of action as did Herron-Fluker. The court then granted 

defendants' motions for summary judgment, based on these twin 

misconceptions and the authority of Wasoff v. American Automobile 

Insurance Co.. 451 F.2d 765 (5th Cir. 1971) (R. 508, 533).

As the Herron-Fluker materials plainly show, that case did not 

and could not raise the broad issues plaintiffs presented for 

adjudication in the case at bar (R. 482-483). There can be no 

question of "relitigation" in this case, where the issues of 

systemic discrimination in employment opportunities--not just union

50/ (Cont'd)

The plaintiffs object to simply transferring the 
blacks into the white unions without some transi­
tional protection. The result, they allege is that 
they were stripped of the power they had when they 
had their own union. Also, since the merger, they 
allege, the predominantly white unions, have not 
represented their interests....

2/ This is not an issue in the case. See pretrial 
order entered March 3, 1971.

51/ Judge Hand had formulated this view by the start of trial, when 
he stated, that Herron-Fluker "raised everything that could possibly be 
raised under 2000E [Title VII]. It really did." (R. 608.)

-34-



membership— are raised for the first time. in holding that Herron- 

Fluker bars plaintiffs here, the district court effectively denied

them their one day in court on many of their serious federal claims.

Herron-Fluker did not even raise, much less settle, the 

principal issues at stake here— seniority, promotion and transfer 

rights (and the legal sufficiency of the Jackson Memorandum), 

testing practices, maintenance and supervisory opportunities. Counsel 

and witnesses in Herron-Fluker only adverted to those topics as 

necessary background to the claim that the Papermakers unions failed 

to represent black members fairly and adequately. That claim could 

not be presented to Judge Pittman without a brief description of 

the substance of the discriminatory practices. But the lawfulness

of the practices themselves raised different issues, untouched in
53/

Herron-Fluker.

52/ The point may be taken quite literally. For example, the 
district court went so far as to refuse to allow Charles James, 
a named plaintiff herein, to testify in his own case, on the ground 
that he had previously testified in Herron-Fluker (R. 1111-1112).

5// A major example will illustrate the point. Following the Jackson 
Memorandum in 1968, a dispute arose as to the meaning of the 
thirty—day clause, Art. IV(B)(1) of the union contract, when read 
in conjunction with the promotions provisions of the Jackson 
Memorandum. The Herron-Fluker plaintiffs alleged that the unions 
had violated their duty of fair representation to black members 
in acceding to an unfavorable interpretation of the clause (All 

). Judge Pittman held against them, finding that the unions had 
vigorously pressed the plaintiffs' contractual grievance to an 
unsuccessful arbitration (All ). Nowhere did Judge Pittman
consider the lawfulness of the Jackson Memorandum or the thirty day 
clause itself. Nor was he asked to do so. The court below evidently 
failed to grasp this distinction, see colloquy at R. 623-624.

52/

-35-



Plaintiffs could not have raised the broad underlying issues 

of discrimination in Herron-Fluker even if they had wanted to. The 

Company, solely responsible for the testing program and some transfer 

practices, and jointly responsible (with the unions) for seniority, 

promotion, and the Jackson Memorandum, was not a party to Herron- 

Fluker. Nor were the Pulp Sulphite Workers or its locals joined.

IP and the Pulp Sulphite Workers would obviously have been indis­

pensable parties to a litigation raising the substantive issues 

present in Stevenson, Rule 19, Fed. R. Civ. P. Judge Pittman's 

pre-trial order clearly limits the triable issues to union 

representation issues, and that order defined the scope of per­

missible litigation. Rule 16, Fed. R. Civ. P. The EEOC charges 

on which Herron-Fluker was brought— narrow charges alleging failure

of the Papermakers unions to represent plaintiffs fairly following
*

the locals' merger, All — would not support the broad scope

of the Stevenson litigation, even under the liberal standards 

prevalent in this Circuit. See Sanchez v. Standard Brands. 431 F.2d 

455, 466 (5th Cir. 1970).

53/ (Cont'd)

Similarly, as to testing, Judge Pittman held, "This is not an 
issue as defined in the pretrial order in this case. . . (All
Judge Hand, however, believed that Herron-Fluker disposed of testing 
(R. 562).

-36-



Stevenson is a completely different cause of action from 

Herron-Fluker.

B. The Herron-Fluker Litigation Is No Bar to 
This Action

It is hornbook law that, in the circumstances presented here, 

res judicata does not bar the litigation of the broader, non-union 

issues raised in the instant case. See IB Moore's Federal Practice, 

f0.405[3] at p. 633, J0.443[3] at pp. 3909-3910 (2nd ed. 1965).

A leading Supreme Court case is controlling:

The effect of a judgment or decree as 
res judicata depends upon whether the second 
action or suit is upon the same or a different 
cause of action. . . . But if the second case 
be upon a different cause of action, the prior 
judgment or decree operates as an estoppel only 
as to matters actually in issue or points 
controverted, upon the determination of which 
the judgment or decree was rendered.

Baltimore S.S. Co. v. Phillips. 274 U.S. 316, 319 (1927). Accord:

Wasoff v. American Automobile Ins. Co., supra, at 769.

The crucial test for res judicata purposes is therefore whether 

the second case presents the same cause of action as the first, 

or a different one. The applicable definition is clear: "A cause

of action does not consist of facts, but of the unlawful violation 

of a right which the facts show. . . [It is] the violation of but 

one right by a single legal wrong." Baltimore S.S. Co. v. Phillips. 

supra, at 320. Accord: Seaboard Coast Line R. Co. v. Gulf Oil

-37-



Corp.. 409 F.2d 879, 881 (5th Cir. 1969). See also, Acreev.

Air Line Pilots Ass'n.. 390 F.2d 199, 201 (5th Cir. 1968), cert
54/denied 393 U.S. 852 (1968).

Under these principles, Stevenson meets the test of a cause 

of action different from Herron-Fluker. The right asserted in

Fluker was the right to receive fair and adequate representation 

by the Papermakers locals with regard to union offices, the thirty- 

day clause interpretation dispute, and employee grievances. The 

wrong alleged there was the failure of the Papermakers locals 

to provide fair representation as to these issues. in Stevenson, 

the wrong is a broad pattern of discriminatory employment practices, 

chiefly including seniority, transfer and promotion practices, 

testing, and job segregation, all perpetuated by IP with the general 

concurrence of the unions.

The district court's opinion is vague and ambiguous as to 

whether it believed, erroneously, that Herron-Fluker had actually 

litigated the Stevenson issues, or only could have presented them 

(compare R. 509, 513 to R. 514). While its holding cited only res

54/ The tests are: "Is the same right infringed by the same
wrong? Would a different judgment obtained in the second action 
impair rights under the first judgment? Would the same evidence 
sustain both judgments?" 390 F.2d at 201.

-38-



judicata grounds, its language reflects collateral estoppel concerns. 

Even as a collateral estoppel holding, however, the court’s decision 

is equally erroneous under a proper analysis.

The governing principles are stated in Commissioner v. Sunnen, 

333 U.S. 591, 597-598 (1948).

But where the second cause of action between 
the same parties is upon a different cause or 
demand, the principle of res judicata is applied 
more narrowly. In this situation, the judgment 
in the prior action operates as an estoppel, 
not as to matters which might have been litigated 
and determined, but "only as to those matters in 
issue or points controverted, upon the deter­
mination of which the finding or verdict was 
rendered." Cromwell v. Sac County, supra 
[94 U.S. 353].

Cromwell had held:

In all cases, therefore, where it is sought 
to apply the estoppel of a judgment rendered 
upon one cause of action to matters arising 
in a suit upon a different cause of action, 
the inquiry must always be as to the point or 
question actually litigated and determined in 
the original action, not what might have been 
thus litigated and determined. Only upon 
such matters is the judgment conclusive in 
another action. 94 U.S. at 352-353.

Since as shown above, Stevenson is brought on a cause of action

different from Herron-Fluker, even issues that could have been

litigated in Herron-Fluker, but were not, would not be barred here.

Furthermore, the Stevenson issues could not have been litigated in

Herron-Fluker, see p. 36, supra). For these reasons, the district

-39-



court's reliance on the Wasoff case is wholly misplaced; there, the
two causes of action were in every respect identical, see 451 F.2d at 
769.

The district court's res judicata holding is based on a thorough 
misunderstanding both of what was litigated and what could have been 
litigated in Herron-Fluker and of the applicable principles of law.
Its grant of summary judgment in favor of all the defendants on this 
ground was, therefore, error and must be reversed by this Court.

* — .̂e—District Court Erred in Concludina That The
Jackson Memorandum Fully Remedied npfPnHanfei--
£5iof ^ scri-mination In Production Jobs. Tn mhat-

Jackson Memorandum Unnecessarily Restricted 
Black Employees' Advancement Opportunities.

A * The District Court's Holding 
Although the district court's grant of summary judgment for the 

defendants disposed of all the issues relating to the production areas 
(R. 533), it proceeded to consider these claims on their merits. As 
set forth below, the court erred on the merits as well as on the 
summary judgment. But plaintiffs respectfully submit that, apart from 
the substance of the adjudication, the granting of summary judgment 
fatally infects the district court's ruling on the merits. The court 
below had decided to grant summary judgment even before hearing the 
evidence at trial. See colloquy at R. 555-562. Starting with an 
erroneous orientation based on an evident misunderstanding of both 
Herron-Fluker's scope and its relationship to Stevenson, the court could 
not have properly evaluated plaintiffs' evidence on the Jackson Memo­
randum issues. (See, e.g., colloquy at R. 561, 602, 608, 647-648).

-40-



This case should, at a minimum, be remanded for- reconsideration under 
proper standards on this basis alone.

Upon consideration of the merits of the production-job issues, 
the district court rejected all of plaintiffs' allegations. it held

defendants had made "a good faith effort" to remedy the continuing 
effects of prior racial segregation (R. 534), that the 1968 Jackson 
Memorandum had given affected class members an adequate opportunity to 
reach their rightful places (id.). and that "defendants" procedures 
are both fair in form and fair in fact" (R. 535). These conclusions 
had no basis in the evidence adduced at trial and were reached under 
erroneous standards of law.

B. The District Court Failed To Recognize And Apply 
The Correct Legal Standards Requiring That All 
Feasible Remedial Steps Be Taken

Settled principles of Title VII law condemn, under 42 U.S.C.
§ 2000e-2(a), (c), any facially neutral post-1965 transfer or promotion
system which perpetuates the effects of prior overt job segregation
such as that admittedly engaged in by defendants until at least
September, 1962. Local 189, United Papermakers and Paperworkers v.
United States, 416 F.2d 980 (5th cir. 1969), cert, denied 397 U.S. 919
(197°)* Long v. Georgia Kraft Co.. 450 F.2d 557 (5th Cir. 1971); united
States v. Jacksonville Terminal Co., 451 F.2d 418, 453 (5th Cir. 1971),
cert, denied 406 U.S. 906 (1972); Moody v. Albemarle Paper Co.. 474
F.2d 134 (4th Cir. 1973). Indeed, any employment practice that has
the effect of perpetuating prior discrimination is unlawful unless the
employer can affirmatively prove it required for the safety and
efficiency of operations as a matter of "business necessity." Griggs
v^.Duke Power Co., 401 U.S. 424, 431 (1971); United States v. Jackson­

-41-



ville Terminal Co., supra at 453; Local 189, etc, v. United States. 
supra at 989.

This "business necessity" test applies not only to the initial
determination of whether a contested practice is lawful, but also _
following a finding that the practice violates the law —  to the deter
mination of appropriate remedies. Long v. Georgia Kraft Co., supra at
5627 Rock v. Norfolk and Western Rwy Co.. 473 F.2d 1344, 1348 (4th Cir
1973), cert, denied 37 L.Ed.2d 161 (1973). In this context, the
uniformly narrow judicial definition of the leeway left discriminatory
employers by the business necessity rule, such as the Second Circuit's
statement endorsed by this Court in United States v. Jacksonville

55/ --------
Terminal Co. , supra, at 453, takes on particular importance. To
justify any partial remedy such as the 1968 Jackson Memorandum, defen­
dants must, under the doctrine of Long, show that more effective 
measures were "forbidden by considerations of safety and efficiency," 
450 F.2d at 562 (emphasis supplied).

In 1968 notwithstanding the prior minor changes which as the
court below recognized were completely ineffectual (R. 517) _ the
plight of black workers at Mobile Mill remained just what it always 
had been; subjection to a comprehensive pattern of segregation. In 
this situation, defendants had a legal obligation to take appropriate 
affirmative steps which would, insofar as possible, eliminate the
continuing effects of past discrimination. Louisiana v. United States

^5/ "Necessity connotes an irresistible demand ___ if the legitimate
ends of safety and efficiency can be served by a reasonably available 
alternative system with less discriminatory effects, then the present 

not be continued." United States v. Bethlehem Steel Core 
--- (2nd cir* 1971). Accord: Robinson v. Lorillard Corn 444 F.2d 791, 798 (4th Cir. 1971); Head v. Timken Roller Bearing Co 

486 F.2d 870, 879 (6th Cir. 1973); united States v. N.L. Tndnst^ ' ' 
Inc., 479 F.2d 354, 364-365 (8th Cir. 1973). " ~

-42-



380 U.S. 145, 154 (1965); Rowe v. General Motors Corp., 457 F.2d 348, 
355 (5th Cir. 1972); Local 53, Asbestos Workers v. Vogler, 407 F.2d 
1047, 1052-53 (5th Cir. 1969). The 1968 Jackson Memorandum was their 
feeble and inadequate response to this obligation.

This Court has previously scrutinized pulp-and-paper industry
defendants who, likewise, fail to meet their affirmative obligations
fully, and has held that it then becomes "the duty of the district
court, so far as possible, to eliminate the present effects of past
discrimination." Long v. Georgia Kraft Co., supra, at 561; accord.
Local 189, etc, v. United States, supra, at 990-991. Although this
requirement of effective remedial action is no longer open to dispute,
the court below paid it only abbreviated lip-service (r . 535) and
failed totally to apply the requisite analysis to the facts of this
record. The court's opinion reflects an apparent belief that by the
mere act of adopting a facsimile of the Local 189 mill seniority
formula, defendants had with a stroke of the pen done all that the

56/
law requires (R. 534-535).

A particular, limited change on paper is not all, or even the 
minimum, that the law requires. The courts' basic duty is to eradicate

— / Of course, the relief approved by this Court in Local 189, origi­
nally decreed by the district court, see 301 F. Supp. 906, 919-930 
(E.D. La. 1969), extended far beyond a simple grant of mill seniority. 
But only the basic mill seniority principle itself was attacked on 
appeal there and the court below took Local 189 to stand for nothing 
more. On this view, the district court concluded that the 1968 
Jackson Memorandum, as incorrectly construed by the court (see R. 524, 
n. 15), exceeded the requirements of Local 189.

The district court's focus on the Memorandum, rather than its 
results, is reflected in its assumption that all ACs who had not 
advanced to their rightful places were ipso facto unqualified (R. 524, 
n. 18 and f 6), despite the fact that IP adduced absolutely no evidence 
(with the single exception of James Gibson) to show that any AC was 
unqualified for higher jobs, and contrary to the burden cast upon 
defendants under the doctrine of Long, supra at 562. See R. 1047-1049.

43-



the effects of past discrimination by whatever lawful means feasible
577 '

"to make sure that Title VII works."
The proof of continuing racial segregation and stratification 

after this suit was filed, see pp. 16-17 , supra, if it does not make 
out a prima facie case of noncompliance with Title VII, at least places 
on defendants a burden of rebutting the clear inference that all 
present effects of past discrimination have not been eliminated insofar 
as possible. Rowe v. General Motors Corp.. supra, at 358; Brown v. 
Gaston County Dyeing Machine Co.. 457 F.2d 1377, 1382 (4th Cir. 1972), 
_cert. denied 93 S.Ct. 319 (1972). And a careful examination of the 
evidence confirms, rather than rebuts, what the statistics imply; the 
1968 Jackson Memorandum was seriously deficient in fact and in law as 
a full remedy for past discrimination.

C. The 1968 Jackson Memorandum Left Substantial 
Unnecessary Impediments To Affected Class 
Members * Advancement Toward Their Rightful 
Places

Despite the manifest failure of the 1968 Jackson Memorandum to 
accomplish movement of the previously segregated black employees out 
of their inferior jobs, defendants keyed their defense to that document. 
Their reliance is misplaced. The 1968 Jackson Memorandum is factually 
and legally flawed in a number of critical respects, 'its own defi­
ciencies and its restrictive implementation by IP account for the 
Memorandum's failure in fact and render it ineffective as a remedy 
sufficient in law. These limitations, which blocked or retarded Acs'

^2/ Johnson v. Georgia Highway Express. Inc.. 417 F.2d 1122 (5th Cir.
No. 72—3294, January 21, 1974), slip op. at p. 456, quoting Culpepper 
v. Reynolds Metals Co.. 421 F.2d 888, 891, n. 3 (5th Cir. 1970).

-44-



movement to their "rightful places," were not and clearly cannot be 
shown necessary for safety and efficiency.

1. "Red-circling" limitations.
Under established principles, defendants were required, as part 

of any remedial promotion/transfer scheme, to remove all factors 
that would force ACs seeking to achieve their rightful places "to pay 
a price for those opportunities." Long v. Georgia Kraft Co., supra, at 
560. To require ACs to accept a pay cut, even temporarily, would 
discourage or deter discrimination's victims for monetary reasons from 
moving into jobs formerly closed to them for racial reasons. united 
States v. Bethlehem Steel Corp.. 446 F.2d 652, 661 (2nd Cir. 1971); 
United States v. N.L. Industries. Inc.. 479 F.2d 354, 375-376 (8th Cir. 
1973). to avoid that result, the courts have routinely mandated "red- 
circle rates which give transferring affected class employees wage 
rate protection when they work in lower-paying jobs on the way up to 
their rightful place positions. Local 189, etc, v. united States. 301 
F. Supp. 906, 918, 923 (E.D. La. 1969); Hicks v. Crown-Zellerbach Corp.. 
319 F. Supp. 314, 324-325 (E.D. La. 1970); Robinson v. Lorillard Corp.. 
319 F. Supp. 835, 842 (M.D. N.C. 1970), aff'd 444 F.2d 791 (4th Cir. 
1971); Clark v. American Marine Corp.. 304 F. Supp. 603, 608 (E.D. La. 
1969) .

The 1968 Jackson Memorandum recognized the theoretical need for 
red-circling provisions by including one (D. Ex. 13 § I.C.(3)) Yet in 
fact that provision did not offer most ACs any protection at all. its 
$3.00 wage rate ceiling immediately rendered red-circling useless to the 
many ACs already earning more than that in August, 1968 (see p. 13,
-s.up.r.a. and R- 1858) . Moreover, ACs could invoke red-circle protection

-45-



only if they applied for transfer before February 2, 1969 (D. Ex. 13 
§ I.C.(3)(b)).

In the 1972 Jackson Memorandum,
the inadequacy of the $3.00 ceiling 

58/
18 § I.C. (4)).

defendants in effect recognized 
by increasing it to $3.86 (D. Ex.

The defendants offered no justification for this limitation on AC 
transfer rights, and there can be none. The $3.00 rate protection 
ceiling was a compromise based at best on convenience not necessity.
Yet the court below, in noting the red-circle rate (R. 520, n. 10) and 
holding the Jackson Memorandum a fully adequate remedial instrument 
(R. 534), omitted any reference to these restrictions in rate protection. 
This oversight cannot mask the obvious fact that workers, particularly 
older employees like most higher-paid ACs, are highly sensitive to 
immediate wage adjustments and govern their movement between jobs 
accordingly. (See, e^g., R. 2075, 1586-1592; cf. Robinson v. Lorillard 
Corp., supra. 444 F.2d at 796.).

2. Shortening of LOPs, Advance Level Entry, and Job 
Skipping.

Consistent with the principle of requiring removal of unnecessary 
structural impediments to the advancement of previously segregated 
black employees, this Court has squarely held that LOP restructuring 
and special job skipping and advanced level entry rights must, where 
feasible, be provided for the affected class.

5Q / ---------
• However, the 1972 Memorandum pegs ACs' red circle rights to the jobs 

they held on the effective date of the 1968 Jackson Memorandum (id. §
I.C.4(a)). Furthermore, the 1972 revision retains the time limitations 
on exercise of the "right" to protection, reduced now to four months 
after implementation of the 1972 Memorandum (id.).

-46-



Negroes in the class discriminated against are 
entitled to compete for jobs on the basis of their 
competence and mill seniority, and thus may skip 
such jobs in the lines of progression which do not 
provide training and experience necessary to the 
performance of the job for which they are competing.

For the same reasons Negroes in the class dis­
criminated against are entitled to compete for jobs 
in lines of progression on the basis of their compe­
tence and mill seniority above the entry level in 
those lines where the present entry level job does 
not provide training and experience which are necessary 
to the performance of higher positions in the lines 
of progression.

Long v. Georgia Kraft Co., supra at 560, quoting United States v. Local
597

189, etc., 301 F. Supp. 906, 917, 918 (E.D. La. 1969).
The court below rejected plaintiffs' suggestions that ACs be 

enabled to transfer and promote with these advantages, where feasible, 
to gain their rightful places (R. 507-510). Its ruling on this point 
clearly reflects many of the same concerns that this Court found had 
erroneously guided the district court in Long. The district judge here 
noted that LOP structure had been developed through years of "trial 
and error and labor-management negotiations," and feared "disasterous 
[sic] side effects," "should the Court attempt to interfere by substi­
tuting its judgment for that of management," citing IP's $200,000,000 
capital investment, the conceivable loss of 1800 jobs, and the observed 
complexity of mill operations (R. 507-508). In Long, the trial judge, 
who had likewise viewed and noted the similar complexity of operations 
and who expressed a similar deference to collective bargaining, had * 301

22/ The district court's Local 189 decision, following its prior order 
which was affirmed in this Court's landmark opinion, provided for 
extensive line shortening, job skipping, and advanced level entry. See
301 F. Supp. at 920-922. Numerous other courts have decreed similar 
affirmative remedies in other paper mill cases. See n. 64, infra.

-47-



Negroes in the class discriminated against are 
entitled to compete for jobs on the basis of their 
competence and mill seniority, and thus may skip 
such jobs in the lines of progression which do not 
provide training and experience necessary to the 
performance of the job for which they are competing.

For the same reasons Negroes in the class dis­
criminated against are entitled to compete for jobs 
in lines of progression on the basis of their compe­
tence and mill seniority above the entry level in 
those lines where the present entry level job does 
not provide training and experience which are necessary 
to the performance of higher positions in the lines 
of progression.

Long v. Georgia Kraft Co., supra at 560, quoting United States v. Local
597

189, etc., 301 F. Supp. 906, 917, 918 (E.D. La. 1969).
The court below rejected plaintiffs' suggestions that ACs be 

enabled to transfer and promote with these advantages, where feasible, 
to gain their rightful places (R. 507-510). Its ruling on this point 
clearly reflects many of the same concerns that this Court found had 
erroneously guided the district court in Long. The district judge here 
noted that LOP structure had been developed through years of "trial 
and error and labor-management negotiations," and feared "disasterous 
[sic] side effects," "should the Court attempt to interfere by substi­
tuting its judgment for that of management," citing IP's $200,000,000 
capital investment, the conceivable loss of 1800 jobs, and the observed 
complexity of mill operations (R. 507-508). In Long, the trial judge, 
who had likewise viewed and noted the similar complexity of operations 
and who expressed a similar deference to collective bargaining, had 301

The district court's Local 189 decision, following its prior order 
which was affirmed in this Court's landmark opinion, provided for 
extensive line shortening, job skipping, and advanced level entry. See
301 F. Supp. at 920-922. Numerous other courts have decreed similar 
affirmative remedies in other paper mill cases. See n. 64, infra.

-47-



feared danger to a $100,000,000 capital investment and 800 jobs, 450 
F.2d at 559. In reversing and ordering consideration of the affirmative 
remedies sought in Long under proper standards, this Court responded to 
such concerns:

We share the district court's preference that the 
parties who are most familiar with the problem 
should reach an understanding either under the 
auspices of the EEOC as was attempted or through 
ordinary collective bargaining processes. However, 
failure or refusal of some of the parties to reach 
such an understanding cannot operate to relieve 
the district court of its duty under Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., 
to eradicate past discrimination effects to the 
extent not forbidden by considerations of safety 
and efficiency.

450 F.2d at 561-562. This is precisely the remedy plaintiffs unsuccess­
fully sought from the district court in the instant case (e.g., R. 1501- 
1505).

Defendants failed to meet their burden of showing that business
necessity reasons precluded the adoption of specific LOP shortening,

60/
advanced level entry, or job skipping remedies. And, as in Long, the
district court here made no specific findings of fact or conclusions
of law concerning whether such remedies were forbidden by business 

61/
necessity.

The 1968 Jackson Memorandum directed defendants to negotiate such 
remedies, but at Mobile Mill no results were achieved or, in some 
respects, even attempted. See p. 14, supra. The court below commended 
this fruitless and perfunctory "negotiation" as one of "three major 
changes" provided by the Memorandum (R. 520).
61/ Based on the testimony, primarily that of plaintiffs' expert 
industrial engineer and IP engineer Williamson (R. 507, n. 3), and his 
own tour of the Mobile Mill, the district judge found that, although 
the LOPs might not be structured for greatest efficiency (R. 507), "in 
the main, the jobs were functionally related to each other and to the 
department which they serve" (R. 509, n. 5).

-48-



Testimony of IP's own officials and subsequent company actions
clearly demonstrate that numerous possibilities for line restructuring
and job skipping exist throughout the production departments. The
Manager of Industrial Relations for the Southern Kraft Division
emphasized that historically the structure of the production LOPs was

62/
developed by the unions, not the Company. IP cannot now credibly 
contend that the lines had been designed on the basis of engineering 
considerations. Moreover, the Mobile Mill Personnel Director testified 
that in post-Jackson Memorandum negotiations the Company had proposed 
numerous types or methods of shortening lines of progression" (R. 728) 
The Assistant Manager for the Southern Kraft Division and former Mobile 
Will Assistant Manager admitted that the LOPs could be structured in 
other ways and that there were jobs in the LOPs that could be skipped 
(R* 1736, 1759—1760). Finally, under the 1972 Jackson Memorandum, the 
defendants actually agreed to reopen negotiations and identify those 
jobs which could be skipped by affected class members entering or 
advancing within the LOPs (D. Ex. 18 § IV).

Professor James Rigassio, plaintiffs' expert witness on the subjects 
of job evaluation analysis, personnel matters related to industrial 
organization, and the collective bargaining process (R. 1413, 1446-1447), 
agreed that numerous opportunities existed at Mobile Mill for shortening 
LOPs (particularly the Pulp Mill LOP, R. 1494-1495) and for skipping 
jobs upon transfer into and during promotion within the production lines. 
He gave several general examples of how some of these changes might

See p. 8, n. 12 , supra; and R. 1764, 1767, 1805-1808.62/

-49-



reasonably be accomplished (R. 1483-1495, 1506-1508).
None of the defendants effectively disputed plaintiffs' allegations 

and evidence that a wide variety of line restructuring, job skipping 
and advanced level entry opportunities was feasible and practical.
The failure to provide them to the affected class under these circum­
stances was not based on reasons of business necessity and, therefore,

64/
withheld from ACs their full remedial rights.

The district court, therefore, erred in holding that none of these 
remedies were required in the 1968 Jackson Memorandum, although such 
remedies were feasible and although defendants committed themselves 
to instituting them in the 1972 Memorandum. If based on a "business
necessity" analysis, the court's decision is without basis. If other-

65/
wise founded, it is wrong in principle and unexplained in the opinion. 
This Court should remand with instructions that all appropriate and 
feasible remedies be implemented.

63/

b3/ Mr. Rigassio emphasized that these examples involving the Paper 
Machine, Core Department, Polythylene Department, Roll Finishing and 
Shipping, Sheet Finishing and Shipping, Pulp Mill, and Maintenance and 
General Yard LOPs were only samples and that numerous other proposals 
could doubtless be made (R. 1538).
64/ Any other finding on this issue would clash sharply with decisions 
and agreements in numerous other Southern pulp-and-paper mill cases 
involving similar jobs and remedies. E.g., United States v. Local 189, 
etc., 301 F. Supp. 906 (E.D. La. 1969); Long v. Georgia Kraft, 4 EPD
f 7815 (N.D. Ga. 1972)(issuing decree on remand); United States v. Con­
tinental Can Co., 319 F. Supp. 161 (E.D. Va. 1970); Roberts v. St. Regis 
Co. (M.D. Fla. No. 70-292-Civ.-J, January 28, 1972) (consent decree).
65/ The district judge at trial seemed to be more concerned with "white 
backlash" among IP's employees than with business necessity, as shown 
by the following exchange with plaintiffs' expert witness:

THE COURT: Mr. Rigassio, based on your professional
expertise, if this Court is called upon to write a 
union contract, or rewrite a contract between union 
and management, incorporating the matters and things 
that we have been discussing, that had the net effect 
of destroying the operation of that mill because 
nobody would work there any more, would that be a 
desirable result?

-50-



3. Additional Limitations Imposed by the McCreedy Letter.
Flawed as it was, the 1968 Jackson Memorandum as initially inter­

preted represented a high-water mark in defendants' progress prior to 
trial. For soon after its implementation, the two regressive modifica­
tions authorized by the McCreedy Letter of May, 1969 (D. Ex. 15) rolled 
back even the modest gains of 1968. These modifications were adopted 
pursuant to complaints of the defendant unions that ACs using their 
mill seniority were receiving jobs or promotions to which white employees 
would otherwise be entitled (R. 1824-1825, 1862-1863). As a result of 
this union pressure, ip sought and received OFCC approval (the McCreedy 
Letter) to withdraw two of the most significant uses of mill seniority 
which had been accorded ACs in 1968: the right of qualified ACs to
obtain promotion, based on mill seniority, from a job in which they 
were temporarily (not permanently) assigned; and the right to compete 
by mill seniority for recall from layoff (R. 1825-1826, 1863, 1866).

No argument was advanced to justify either of these McCreedy Letter 
changes as a matter of business necessity. Defendants made no complaint

65/ cont'd
A: Certainly not.
THE COURT: Sort of a ridiculous question, isn't it?
A: I have never advocated destruction or even reduction of efficiency.
THE COURT: Not efficiency. I am talking about if the

attempt to incorporate the things that we have been 
discussing were so objectionable to labor, for instance 
that they refused to perform, that would have an 
effect of destroying the operation, wouldn't it?
(R. 1513-1514) (emphasis added)

To the extent that such considerations may have played a part in 
the decision, they are of course impermissible here, Robinson v. Lori- 
llard Corp. , supra, at 800, cf_. Cooper v. Aaron. 358 U.S. 1, 16-17 
(1958), as well as utterly without factual basis in the record.

51-



that ACs were promoting to jobs for which they were unqualified; 
indeed, the Company admitted that from August, 1968 to May, 1969 it 
apparently experienced no difficulty in permitting ACs to advance from 
temporary positions to higher jobs for which they qualified (R. 1862- 
1863). IP elected to ignore the OFCC-approved alternative of allowing 
AC promotions from temporary setups subject to reasonable residency 
requirements, and instead determined not to allow such promotions on 
any conditions, simply as a matter of convenience. IP decided not to 
choose the less discriminatory alternative mainly in order to avoid 
having another union negotiation (R. 1864). With regard to the other 
prong of the McCreedy Letter, the nullification of the mill-seniority 
principle in recall situations, no business justification was or could 
be suggested by defendants.

The 1972 Jackson Memorandum repudiates both of the restrictions 
adopted pursuant to the McCreedy Letter (D. Ex. 18, R. 1845-1846, 1850). 
Defendants' acceptance of that reversal of position clearly indicates 
their awareness that the McCreedy Letter limitations were not matters of 
necessity, but were needless impediments to full application of the mill 
seniority principle.

The McCreedy Letter's recognition of recall rights gained through 
past discrimination is in every way equivalent to the discriminatory 
recognition of "remanning rights" struck down by this Court in united 
States v. Hayes International Corp., supra, at 118. See also, Watkins
v. United Steel Workers of America, Local 2369, ___ F. Supp. ___, 7 EPD
H 9130 (E.D. La. 1974). The McCreedy Letter limitation on promotional 
rights violates the most basic holding of Local 189. In the implemen­
tation of both aspects of the McCreedy Letter, defendants violated the

-52-



requirements of law.

4. Discrimination In Implementation of the 1968 
Jackson Memorandum.

IP's own exhibit summarizing the current job status of ACs (D. Ex.
28) is the best proof that the 1968 Jackson Memorandum failed to
achieve its purported goals. It shows that, of the 277 ACs still
employed at the Mill, only 75 were still advancing at all —  and ten
of these still held base-rated permanent jobs (D. Ex. 28). The other

66/202 ACs had "signed out," remaining frozen in their jobs. Furthermore, 
only 58 current ACs had permanently transferred from their black jobs 
to other LOPs, and 27 of these had subsequently signed out in their 
new lines (D. Ex. 28).

IP presented no satisfactory explanation for these large-scale 
waivers at trial. The Assistant Personnel Director who had responsi­
bility for administering the 1968 Jackson Memorandum never even attempted 
to investigate the reasons for many ACs' failure to take advantage of 
their purported rights (R. 1891, 2063-2066). Nor had the responsible 
officials of the Southern Kraft Division office (located adjacent to 
Mobile Mill) made any effort to monitor the progress of ACs —  or lack 
of it (R. 1798). Such clearly demonstrated unconcern with the actual 
results of the 1968 Jackson Memorandum confirms that IP regarded it 
merely as a paper document necessary to appease the demands of OFCC.

The court below made no adequate finding to explain many ACs' 
failure to progress. It assumed, upon IP's suggestion rather than on 
proof, that ACs generally were unqualified or incapable of being

H Z See p. 9, n. 14, supra.
-53-



trained for promotions (R. 522), and speculated that black employees
might well be content to earn the base rate paid laborers (R. 525
But neither of these factors can offer any proper across-the-board
explanation for the non—promotion of particular ACs.

Plaintiffs presented a more compelling explanation for the "sign-
out" phenomenon, and one more consistent with the facts of this case.
By largely unrebutted testimony, they showed that IP took little or no
action to assure that the 1968 Jackson Memorandum worked at the day-to-

68 /daY level, rather than as a mere declaration of rights on paper.
IP carried out its obligation to interview ACs concerning their

desire to transfer and promote (d . Ex . 13 § I.C.(l)) in a minimal
fashion. Interviewers did not explain the Memorandum's terms to ACs
(R. 2024-2025), or give them copies; the red-circle rate protection was
not initially or in most cases mentioned to the interviewed (R. 2026—69/
2027). Ihe efforts of ACs who had entered formerly white LOPs by merger 
or transfer to promote through the line were hampered by numerous

^1/ The Company also stressed the generosity of its lowest pav rates (R. 1790-1791).

68/ IP's posture in this regard is consistent with the explanation for 
each of its reluctant steps toward equal opportunities. The 1962 policy 
announcement, the 1966 LOP mergers, the 1968 and 1972 Jackson Memoranda 
were all initiated by federal compliance agencies (principally OFCC) and 
were imposed on IP as a condition of keeping its government contracts 
(R. 1768-1769, 1812—1815, 1843—1844, 450). Without mentioning the 
governmental pressure, the court below paid tribute to IP's "desire and 
zeal to comply with present law, and even more so, the improvement 
of race relations at its mill, both from a sociological standpoint and 
from an appreciation of the business advantages to be gained from the 
expanding of a qualified labor source" (r . 505). With deference, we 
think the record shows that IP's zeal was rather not to lose its government contracts.

69/ These interviews were so perfunctory that many ACs did not even 
recall being interviewed (R. 1586, 1684-1685, 2071).

-54-



instances of harassment, uncooperativeness, and intimidation on the
70/p̂ irt of white employees and lower—level supervisors.

The most frequently mentioned problem involved training. To be
eligible for promotion, a production worker must train and qualify on
the higher job with the mmployee already working the job (R. 665-666).
Where a mill—senior AC is to be trained by a white employee who stands
to be bypassed by the AC once he qualifies —  the typical case under
the 1968 Jackson Memorandum —  the potential friction is obvious, and

71/the result complained of is not surprising (R. 1057-1058).
The question of training touches on the familiar ground discussed 

by this Court in Rowe v. General Motors Corp., supra. There, the Court 
noted the existence of unfamiliarity and potential prejudice on the 
part of whites who held the key to blacks' promotional opportunities,
457 F.2d at 359. Here too, the potential for exercise of such a "ready

3Sl/ AC witnesses who testified to such incidents include: Roosevelt
Hurst (Roll Finishing & Shipping, R. 1117-1127); John Taylor (Power 
Plant, R. 1558-1561; Groundwood Mill, R. 1561-1568); plaintiff Horace 

(Pulp Mill, R. 1025, 1081-1083); plaintiff Charles James (Sheet 
Finishing & Shipping, proffer of testimony, see R. 1111-1112, n. 52 supra). '

Plaintiffs Gill and James, as former union officials and leaders, 
also received numerous complaints of similar nature from black workers 
in their areas (Gill: Pulp Mill, R. 1049; Groundwood Mill, R. 1058-1062* 
Maintenance and General yard, R. 1062-1063; James: Sheet Finishing & 
Shipping, by proffer). These complaints primarily involved the reluc­
tance of white supervisors to train and set up ACs in formerly white- only jobs.
7JL/ As IP's Assistant Manager of the Southern Kraft Division conceded,

But if you look overall I think that the employees feel 
that [their] ĵob seniority is a sacred thing, and of 
course, [their] line of progression, they are expecting 
to move up. They don't want other people from other 
areas of the plant coming in and intruding, so to speak.
(R. 1740) (emphasis added).



mechanism for discrimination" casts an affirmative burden on IP to take
steps to prevent racially motivated abuses by its lower-level employees.
The Company clearly failed to do this; and the passivity of IP's role is
no defense to what actually occurred, since it established the system 
t . 72/that made discrimination possible.

IP's reluctance to give much effect to the theoretical benefits of
the 1968 Jackson Memorandum is illustrated by the continuing exclusion
of black ACs from the high-paying and prestigious (R. 2009) and still
nearly all-white paper machine department (See p. 16, n. 27, supra).
After 1968, all the black clean-up men who had worked for years in the
paper machine area, without possibility of advancement into the machine
LOPs, were adjudged ineligible for promotion because of their acre _

73/
over 30 (R. 2007—2008). No justification, much less necessity, was 
shown for this limitation; it had just "always [been] a practice"

12J The court apparently recognized that discriminatory incidents had 
occurred, but refused to hold defendants responsible.

The court is not to be understood to say that 
evidence in this case does not reflect occasional 
individual instances of discrimination, nor that 
there may not be such future occurrences at this 
plant, from both the white and the black side, but 
it is to be understood to say that such evidence 
reflected that these proven instances were on an 
individual basis, not a company or union instigated 
basis. After all, we are dealing with human beings 
and every human being has his share of biases and 
prejudices and we have not yet reached the millenium (R. 505).

73/ All ACs who expressed interest in transfer to the paper machines in 
1968-1971 were told they could not be considered for this reason (R. 
2006-2007). AC Ira Burks, who testified, was one (R. 2072-2074 D Ex 
43). As a result, according to IP's statistical compilation, from* 
August, 1968 to May, 1972, 63 whites applied for and 62 received 
transfer to the paper machine LOPs; but no blacks were allowed to apply.

-56-



(R. 2007), and one that was suddenly reversed in May, 1972 when OFCC 
again appeared on the scene (r . 2004-2005). On that late date, IP 
suddenly offered promotion to 18 blacks in the department; most then 
declined (id_.) . For Ira Burks, the entry paper machine job would then
have meant a pay cut, and of course the red-circle provisions had long

74/
since expired (R. 2075).

By a variety of actions and inactions, IP implemented the Jackson 
Memorandum in a manner that assured it would not result in upward 
movement of large numbers of Acs who would fairly compete with whites 
for their rightful places. This result was not unforeseeable. The 
Local 189 formula is admittedly a compromise "between a complete purge 
of 'but for' effects [and] maintenance of the status quo," Local 189. 
etc, y. united States, supra, 416 F.2d at 988. The 1968 Jackson Memoran­
dum's terms further compromised this relief and, just as significantly, 
confided plenary control over implementation of the partial remedy to 
the same parties whose practices had historically been founded on 
racial discrimination. No judicial review of implementation was pro­
vided, and OFCC's enforcement consisted mainly of backing off remedial 
provisions upon request.

In these circumstances, the district court misconstrued its duty 
to go "as far as possible" in eradicating lingering discrimination,
Lon£, supra at 561. its blanket approval and endorsement of all defen­
dants' actions in implementation of the 1968 Jackson Memorandum, in the

2^/ As a further example of the continuing hollowness of IP's commit- 
ment to true affirmative steps and its satisfaction with highly visible 
but illusory half-steps, see testimony of Assistant Personnel Director 
Jerkins regarding continued disparate assignment of whites and blacks in the paper machine department (R. 1993-2001).

-57-



face of undisputed evidence that it failed to bring about the desired 
results, makes a mockery of the directive that the federal court has 
a duty "to make sure that the Act [Title VII] works," Culpepper v. 
Reynolds Metals Co., supra, at 891. while the court below apparently 
felt that such an exercise of its power would amount to "pampering" 
ACs and "paternalism" (r . 506), we submit that it is, rather, the 
minimum duty that Congress has imposed upon the federal courtsT^

5. The 1972 Jackson Memorandum and The Remedy.
Sensing that its blanket approval of the 1968 Jackson Memorandum

was erroneous, the court below in addition approved the 1972 revision
76/

as a complete fail-back defense. The court had before it, of course, 
only the new Memorandum's promises on paper: whatever implementation 
may have occurred, took place after trial. On this record, the 1972 
revision stands for nothing but theoretical rights and potential 
benefits. How (and if) it actually worked is not shown, but the district 
court, consistent with its erroneous approach to the entire Jackson 
Memorandum issue, see p. 43, supra, apparently did not consider that 
question relevant to its determination that the 1972 document purges 

lingering effects of past discrimination.
This Court should squarely hold that, as written and implemented,

the 1968 Jackson Memorandum did not satisfy the requirements of law.
(The 1972 revision on its face proves this much.) it should direct the

Z V  The court felt that ACs should preferably be consigned to their 
/p the grievance machinery jointly controlled by defendants
(R. 506). Its preference is without basis in law, as the Supreme Court

h^ld in sweeping language, Alexander v. Gardner-Denver Co 42 LW 4214 (February 19, 1974). ---------------- ----  *
W .  The noted: "Even though the court might be in error in con-

T S  Jac5SOn «e"'°randum sufficient to comply with law? the 72 amendment thereof goes will beyond the requirements of the law and 
clearly reflects the attitude of the company and the unions in their

-58-



entry of an injunction barring continuation or resumption of practices 
that incorporate the defects of the defendants' policies prior to the 
1972 revision. This Court should further hold that, in the absence 
of any proof that the 1972 Jackson Memorandum had in fact eliminated 
the deficiencies of the earlier system and achieved significant affected 
class movement, the court erred in accepting it as fulfillment of 
defendants' obligations with regard to production jobs. Further 
proceedings to examine the implementation of the 1972 revision are 
appropriate and necessary to determine what further injunctive relief 
of this nature may be required.

International Paper Company's Use of Written 
Employment Aptitude Tests Discriminai-Pc 
Slack Employees And is Not Job-Related

Plaintiffs attacked IP's use of the Wonderlic, Bennett, and
Minnesota Paper Form Board tests as selection devices (see pp. 23-24, supra)

The district judge recognized that the testing issue is controlled
by the rule of Griggs v. Duke Power Co.. 401 U.S. 424, 431, 432 (1971);

If an employment practice which operates to exclude 
Negroes cannot be shown to be related to job perform­
ance, the practice is prohibited ___

... Congress has placed on the employer the burden 
of showing that any given [exclusionary] requirement 
must have a manifest relationship to the employment in question.

767 cont'd
desire to resolve these issues both 
standpoint" (R. 534, n. 17). from a business and a sociological

-59-



Nevertheless, the district court, adopting verbatim the proposed
. . 2Vfindings and conclusions filed by IP in its post-trial brief, found 

against plaintiffs on each aspect of the testing issue. it first held 
that plaintiffs had not offered any evidence showing that blacks were 
disproportionately screened out by the tests, and then concluded that 
in any event IP had proved the tests job-related (R. 528, 532, 536). 
The court below erred on both holdings.

A . The Testing Program Has A Disproportionate Adverse 
Impact On Black Employees Seeking Maintenance Jobs

Plaintiffs introduced unrebutted evidence from a variety of sources 
showing the discriminatory impact of IP's use of the Wonderlic, Bennett, 
and Minnesota tests on black employees and applicants for maintenance 
jobs. Blacks comprise less than 1% of all employees in jobs for which 
the full testing battery is required; and over a two-year period failed 
in attempting to enter those jobs at twice as high a rate as did whites. 
Plaintiffs' expert witness testified that the Wonderlic and Bennett 
tests invariably have a severe screen-out effect and the Wonderlic's 
own publisher has exhaustively documented this impact. Black employees 
confirmed that these tests serve as serious barriers. See pp. 24-25, 
supra.

— / Findings 11-23 (R. 527-532) and Conclusion 11 (R. 536) are taken 
unaltered from the Company's post-trial pleadings (see "Opinion and 
Order" filed by IP on October 24, 1972, ff 43-50, at pp. 23-31). As 
several courts have noted, this practice is frowned upon, in that it 
may indicate a lack of the "badge of personal analysis" by the court. 
Louis Dreyfus & Cie. v. Panama Canal Co., 298 F.2d 733, 737-739 (5th 
Cir. 1962); Rooted Hair, Inc, v. Ideal Toy Corp., 329 F.2d 761, 769 
(2nd Cir. 1964) (Medina, J., concurring); Roberts v. Ross, 344 F.2d 
747, 752 (3rd Cir. 1965).

-60-



Even IP's own witness testimony and corporate actions lend support
to this conclusion. Before being silenced by his counsel's successful
objections, the IP Personnel Manager stated that he had observed "there

78/
were less black than white qualified on the tests" (R. 684). IP concedes 
£hat its reason for lowering test scores in May 1968 was "to attract 
and be in a position to employ more blacks" (R. 692), and that this 
action in conjunction with the Jackson Memorandum was part of its 
"affirmative action" efforts to appease OFCC (R. 1170-1171). Signifi­
cantly, no IP witness testified that the tests did not have a disparate 
impact on blacks.

These same tests and others very similar to them have been widely
recognized in the federal courts to screen out blacks, who generally

79/
perform less well on them than do whites.

In the face of this record, the district court held that these

— ‘ The court did not allow plaintiffs' counsel to pursue a more 
specific answer; but plaintiffs proffered (based on the witness's 
prior deposition) that his testimony would support a finding of disparate 
impact (R. 690-691).
79/ See, e.g., Griggs v. Duke Power Company, supra, 401 U.S. at 430, 
n. 6 (Wonderlic and Bennett); United States v. Georgia Power Co., 474 
F.2d 906, 911, n. 3, 912, n. 5 (5th Cir. 1973) (Bennett and Minnesota); 
Moody v. Albemarle Paper Co.. 474 F.2d 134, 138 (4th Cir. 1973) (Wonder­
lic); Duhon v, Goodyear Tire & Rubber Co., ___ F. Supp. ___ (E.D. Tex.
1972), on appeal, No. 73-1296 (Wonderlic and Bennett); Stamps v.
Detroit Edison Co.. 365 F. Supp. 87 (E.D. Mich. 1973); Johnson v. Good- 
year Tire & Rubber Co.. 349 F. Supp. 3 (S.D. Tex. 1972), on appeal, No. 
73-1712; Pettway v. American Cast Iron Pipe Co.. F. Supp.
(N.D. Ala. 1972), on appeal, No. 73-1163; Brito v. Zia Co.. 478 F.2d 
1200 (10th cir. 1973); Cooper v. Allen, 467 F.2d 836, 838-839 (5th 
Cir. 1972).

Contra: Watkins v. Scott Paper Co.. 6 EPD f 8912 (S.D. Ala. 1973)
(Hand, J.), on appeal, No. 74-1001; Rogers v. International Paper Co.,
___ F. Supp. ___ (E.D. Ark. 1973), on appeal to Eighth Circuit.

-61-



tests do not exclude blacks. while not dealing directly with plain­
tiffs' evidence showing test impact on employees, the court relied
heavily on the absence of evidence going to the applicant hiring issue

81/which it had previously cut out of plaintiffs' case~

80/

The court's decision accepting the Company's unsubstantiated
general denials of the plain truth was erroneous. it contradicts all 
the pertinent witness testimony which went unrebutted. Furthermore, 
the court failed to attribute an^ weight to the statistical evidence of
disparate impact and the absence of blacks from the maintenance jobs82/
tested for. This failure requires reversal, since

These lopsided ratios are not conclusive proof of 
past or present discriminatory hiring practices; how­
ever they do present a prima-facie case. The onus of 
going forward with the evidence and the burden of 
persuasion is thus on [the employer].

United States v. Hayes International Corp.. supra, at 120. in drawing
its inferences as to a contested fact, the court, therefore, erred in
rejecting the only inference supported by any evidence and instead 
807 ~ " " ■ — -----
—  The court below found that "plaintiffs did not introduce evidence 
as to the total number of black and white applicants who had taken the 
test batteries in any identifiable period of time, how many had met 
t e qualifying scores on the batteries, or the comparative qualifying 
rate of black and white applicants on the Company's test batteries. 
Therefore, no evidence was offered concerning the impact of the Companv' 
testing program on the ability of blacks to obtain employment at the 
Mobile Mill. (R. 528) (emphasis supplied). Each of these assertions is wrong. See pp. 24 — 26 , supra.
£1/ The court's reliance on recent and current hiring of new black appld 
cants to show absence of a disparate test impact (R. 505, n. 2) is

The COUrt had excluded the hiring issue from the ,  ̂ ' * H  ls cjuite possible and even probable, for example
that the applicant flow was more heavily black than the hiring rate' and 
that test score disparities explain the difference.

 ̂Moreover the battery for production hiring is not the same as that
. ̂ ?r ma^nt<rnanCe transfers/ und the scores necessary for hiring are significantly lower than those for transfer to maintenance (pi. e x . 5).

82/ See pp. 2 4 - 2 5  , supra.

-62-



adopting the opposite, wholly conclusory and unsubstantiated inference. 
This Court should correct the error by holding that IP's tests dispro­
portionately screen out black employees from maintenance jobs.

The Testing Program Was Not Shown To Be Related To Job P e r f o r m a n c e —  - ~ --------
The rule of Griggs, supra, as refined by this Court and other 

federal courts, requires that where adverse impact of a job requirement 
is shown, the employer must demonstrate, through professionally compe­
tent evidence, that the requirement or test has validity in measuring 
the applicant or employee's ability to do the job. This proof may not 
be mere supposition, but "positive empirical evidence of the relationship 
between test scores and job performance." United States v. Jacksonville 
Terminal Co.. supra at 456.

This case represents what may be called a "second generation"
employment testing case. Several of a similar nature have been decided
since the trial and decision herein. Unlike Griggs and Jacksonville 
Terminal, where the employers essentially relied on an unproven assump­
tion of validity, here, as in United States v. Georgia Power Co.. 474 
F.2d 906 (5th Cir. 1973), and other such cases, defendants have offered
evidence/Of validity both statistically and through the opinions of an 
expert. The issue here is whether this evidence carries the defendant's
83/ T -----------
_ In g_eor9ia Power, the Court noted the two generally accepted methods 

of empirical-test validation. in the first, "predictive validation " 
all applicants are tested, but are then hired without reference to scores
wf ^ r^ . appropriate period' ratings of their performance are compared h their test scores. in the second, "concurrent validation " current 
employees are tested and rated at about the same time and the too meas­
ures compared . 474 F.2d at 912. In either case, if there is Thiah 

°f "correlation" between the scores and ratings, as determined 
, . ?rfinp to reco<?n;Lzed statistical procedures (R. 1252-1257) e.g. if high test scorers are generally the better performers the test^Ras* 
pre.Uctwe vnUcUty. If there is no such rSl.ti£ . h &  £  ^ s  nS fclid-

-63-



burden of proof.
IP's validation study was directed by Dr. Joseph Tiffin of Purdue 

University; it extended over several years beginning in about 1966 in 
response to an OFCC demand for proof of test validity (R. 1180-1182).
Dr. Tiffin's validation report (D. Ex. 6) and opinion letter (D. Ex. 7) 
are the basis for IP's defense; however, Dr. Tiffin did not appear to 
testify at trial. Dr. William Scott, formerly Tiffin's student and 
now his colleague, assisted Dr. Tiffin after the early stages of his 
validation study (R. 1247-1249) and testified in support of IP's testing 
program. Dr. Scott's testimony endorsed all of Dr. Tiffin's written 
conclusions (R. 1262-1263).

The proof on both sides, as a result of the lower court's pre-trial 
orders, focused on the use of testing for entry into the maintenance
jobs which required the achievement of a minimum score on three separate 
tests (see p. 24, supra). IP's validation study is considerably broader 
than this, however, and attempts to infer test validity for maintenance 
jobs in part from purported validity for production jobs. This valida­
tion study is riddled with technical deficiencies and common-sense 
failings. It does not, we submit, suffice to demonstrate the tests job- 
related under standards of proof required by the law of similar "second 
generation" testing cases.

(1) IP's validation defense stands on a perilously narrow data 
base. The Tiffin validation study was not conducted solely or even in 
large part on Mobile Mill jobs. Various job groupings and jobs were 
selected from nine of the ten Southern Kraft Division mills (D. Ex. 6,
R. 1155-1156). Even so, Dr. Tiffin reported Wonderlic correlations for 
only 13 production groupings (each at one mill only), with 42 jobs and

-64-



160 employees, and for only six maintenance groupings with 16 jobs and 
108 employees (D. Ex. 6). He reported Bennett correlations for only 
ten production job groupings with 34 jobs and 151 employees, and nine 
maintenance groupings with 19 jobs and 141 employees (id_.) . Most 
surprising of all. Dr. Tiffin reported Minnesota test results for only 
one sample consisting of three maintenance jobs with 19 workers (id.).

Only a tiny minority of these samples involve employees at Mobile84/
Mill. No more significant number of samples was drawn from any other 
mill. Since total employment of the Southern Kraft Division is more 
than eight times greater than employment at Mobile Mill (R. 201), it is 
also possible to make a reliable estimate of the extent of Dr. Tiffin's 
samplings on a division-wide basis. The validation studies included 
approximately a 2%-3% overall sample of the workers in jobs for which 
testing is required.

In Moody v. Albemarle Paper Co.. 474 F.2d 134 (4th Cir. 1973), 
rehearing en banc granted June 25, 1973, the court rejected a validation 
study (of Wonderlic) that covered eight of 14 LOPs and 30% of

jobs in a single paper mill. The court held that study based on 
too narrow a sample, 474 F.2d at 138, 140. The far smaller coverage of 
the ip validation study makes it even more clearly deficient.

84/ Mobile Mill samples were as follows (N ) :
Production Maintenance

Wonderlic 2 groups, 8 jobs, 29 employees 2 groups, 2 jobs, 50 employee 
Bennett 5 groups, 20 jobs, 74 employees none
Minnesota n.a. none

Source: D. Ex. 6. In striking contrast, Mobile Mill had over 200 pro­
duction jobs with over 1000 employees; and over 30 maintenance jobs with 
367 employees (Pi. Ex. 1, 3). Survey coverage at Mobile, therefore, 
varied from 0% to about 1% of employees in the various categories.

-65-



(2) One reason for the paucity of reported results of the valida­
tion study, as IP's witnesses conceded, is that IP concealed and failed 
to report results for much of the data gathered. D. Ex. 6 only reports 
purportedly successful validation correlations; unsuccessful corre­
lations not showing validity were deliberately omitted from D. Ex. 6, 
the supposed "Summary of Test Validation Studies" (R. 1202-1206, 1209, 
1229-1230). IP explained this deceptive and professionally unsound 
reporting technique (cf. R. 1366) by asserting that OFCC (for which 
the studies were prepared) had asked only for evidence of test validity 
—  so that evidence of test invalidity need not have been included

85/
(R. 1229-1230). IP's witnesses admitted the existence of a number of 
correlation studies showing no significant validity which were not 
reported three employee samples for the Minnesota test (R. 1206-
1208), and at least several other samples on the Wonderlic and Bennett 
tests (R. 1203-1205).

Studies were conducted and results reported as to most jobs for 
only the Wonderlic or the Bennett tests, but not both (R. 1201)1 ^ 
Although IP claimed that this discrepancy resulted from the unavail­
ability of certain test scores (R. 1210-1219), cross-examination showed 
at least one unreported instance at Mobile Mill in which sufficient 
test scores must have been available (r . 1224-1227); and it seems 
certain that in other instances employees who took one test must also 
have taken the other as part of a battery.

^ Dr~* Scott took pains to dissociate himself from the decision to 
report only partial data to OFCC (R. 1314) but still supported his 
mentor s conclusion of general validity (R. 1316-1317)
86/ See text paragraph (3), infra.

-66-



Dr. Tiffin's manipulation of the Minnesota test results is the
paradigm case. He studied the test's relationship to four job groups;
found it not significantly related to three of them; reported the
fourth result, based on 19 employees at one mill, only; and concluded
that IP was justified in using the test to screen applicants for some

87/3,000 maintenance jobs in ten mills (R. 1221, D. Ex. 7, p. 6). This 
mistreatment of data is illustrative of the dubious techniques which, 
in part, led appellate courts to reject similar studies in Georgia Power 
and Moody, supra.

(3) IP requires passage of a three-test battery for maintenance 
jobs and two tests for production; yet it has not validated any battery, 
only individual tests. Its purported validation study does not report 
significant correlations on all three tests for a single job (D. Ex. 6). 
It reports correlations for both the Wonderlic and Bennett tests for 
only four production samples and three maintenance samples; for the 
other nine production and seven maintenance samples, results are shown 
for only one test —  not the combination (ic3.) . But a man cannot get 
a job at IP by passing just one of the tests.

IP's actual test usage, therefore, differs dramatically from the 
usage that Dr. Tiffin validated.

This procedure —  studying only one of several tests on only some 
of the jobs for which they are required —  was condemned by the court in

— ' Further doubt on the merit of the validation study is raised by 
the presence of at least five "perfect" correlations in the report 
represented by co-efficients of 1.00 (D. Ex. 6). If accurate, these 
would mean that the test is a perfect predictor of job performance. 
Even defendants' expert acknowledged that such results are extremely 
rare (R. 1333-1336). Plaintiffs' expert agreed and indicated that the 
presence of so many here would cause him to question the whole study 
(R. 1369-1370).

-67-



Moody v. Albemarle Paper Co., supra, at 139-140. in Georgia Power, this 
Court characterized a similarly irrelevant validation effort as "like 
comparing apples to oranges," 474 F.2d at 916. IP's validation is no 
more justifiable than those others.

(4) ip did not attempt a differential validation study —  a study
that would reveal whether correlation patterns differ for blacks and

89/
whites. The EEOC Guidelines require differential validation studies 
unless they are not technically feasible, 29 C.F.R. §§ 1607.4(b), -.5 
(b)(5), and this Court has strongly endorsed that requirement, United 
States v. ̂ Georgia Power Co., supra, at 913-915. IP, through its expert, 
argued strongly at trial that differential validity was not a legitimate 
hypothesis and should not be required; plaintiffs' expert expressed a 
contrary opinion (R. 1267-1272; cf. R. 1370-1373). Georgia Power would 
appear to foreclose that argument to defendants here.

IP also argued that differential validation could not be accom­
plished because there were not enough job groupings with a sufficient 
number of blacks who had test scores (R. 1187-1190). But IP made no 
effort to have blacks who were concentrated in related jobs suitable
for validation grouping, such as Woodyard positions, take the tests

90/
solely for validation purposes (R. 1190-1191). The ip official who 
decided that there were no sufficient concentrations of tested black

88/ „ 7I7~— ^ ... [I]t was error to approve requiring applicants to pass two 
tests for positions where only one test was validated," id.
89/ EEOC Guidelines on Employment Selection Procedures, 29 C F R s 1 fi07 1 
et se^. (1970). The Supreme Court and this Court have both held’that 
these Guidelines are entitled to great deference. Griggs v. Duke Power 
Co., supra, at 434; United States v. Georgia Power Co., supra, at 913.
|0/ Both the Guidelines, 29 C.F.R. § 1607.5(b)(1), (b)(5), and the
f^2i|_Power opinion 474 F.2d at 914, n.10, 916, n.12, strongly imply 

t differential validity data should be generated by this means.
-68-



employees stated that the minimum sample size for reliable correlation 
studies was ten or twelve (R. 1189). Yet, Drs. Tiffin and Scott based 
their professional recommendations on a study that included two samples 
of five employees, two of six, and two of seven (D. Ex. 6, R. 1189-1190) . 
It is, of course, incredible that in the Southern Kraft Division, which 
has 2,209 black employees (R. 201), there were no available samples 
of black employees of at least this size, from which differential 
validation data could have been generated.

The simpler explanation is that IP chose not to attempt differential 
validation. This failure brings it within the rule of this Circuit, 
established in United States v. Jacksonville Terminal Co., supra, at 456, 
and strengthened in Georgia Power, that unjustified failure to perform 
differential validation renders a validation study inadequate as a 
matter of law.

(5) The Fourth Circuit in Moody, citing this Court's decision in 
Rowe v. General Motors Corp., supra, at 352, also found of doubtful 
reliability the use in a validity study of "possibly subjective ratings 
of supervisors who were given a vague standard by which to judge job 
performance." 474 F.2d at 139. Further, the failure of the psycholo­
gists who developed the validity study to exercise control over the 
rating processes or the data gathering casts great doubt on the reli­
ability of the results (R. 1355-1358). Compounding this factor of 
rating uncertainty, here as in Moody, 474 F.2d at 139, no job analyses
were made to determine the relevant nature of the jobs being tested for

11/and the qualities need to do it well (R. 1284).

H 7 ~  These and other parallels to Moody are hardly surprising, since the 
same psychologist supervised the validation studies in Moody and the 
instant case. See p. 2 of Vita of Joseph Tiffin, attached to D. Ex. 7.

-69-



In summary, we submit that under the standards of Griggs, as inter­
preted in the "second generation" cases, IP did not prove its testing 
program job related, and the district court should be directed to 
enjoin the use of the present or any other test requirements for entry 
into maintenance jobs unless their validity under the proper standards 
can be shown. Those members of the class denied maintenance jobs 
because of their test results should further be granted appropriate 
injunctive and monetary remedies for this discrimination.

-70-



IV. IP Discriminatorily Excludes Affected Class 
Members and Other Blacks From Maintenance 
Craft Positions

IP had no blacks in any of the several hundred maintenance craft 

positions until several years after the enactment of Title VII, and 

still had less than 2% blacks in those jobs at time of trial. See 

pp. 20-21 , supra. The most desirable craft jobs remain the most 

uniformly white, id̂. Plaintiffs sought to prove that these striking 

disparities reflect racially exclusionary practices.

The district court, however, in the face of the facts summarized
92/

at pp. 19-22, supra, found no discrimination in this regard. This

92/ The court below held:

Plaintiffs in this case have not shown any actual 
discrimination in the maintenance departments and 
must, therefore, base their proof of discrimination 
against blacks in this department on statistics.
IP has countered by showing that it has not engaged 
in overt discrimination in its maintenance depart­
ments, and that blacks are not excluded therefrom 
because of any unlawful educational or age require­
ments. On the contrary, IP has shown that it 
affirmatively seeks out qualified black mechanics 
both from within and without the mill. . . .

(R. 526). In support of this conclusion, the court recited that,
"The testimony was that the OFCC found no evidence of discrimination 
against blacks as a class as to maintenance workers even prior to 
1962. . . ." (id.). The testimony to which the court refers is, in its
entirety, as follows:

A. [by Mr. Carrie] As I recall, Mr. Bherman [sic]
[OFCC representative at the 1968 Jackson Con­
ference] found no evidence as to discrimination 
at all with respect to maintenance even prior to 
'62, and therefore, they were making no demands in 
that area.

-71-



conclusory finding, which simply overlooks all the pertinent evidence, 

reflects the court's serious misapprehension of the standards of proof 

and rebuttal in Title VII cases, as set forth by this Court.

The district court did not discredit, or even mention, any of 

plaintiffs' statistical or testimonial evidence. It simply failed to 

draw the obvious conclusion that IP had practiced discrimination.

The district court’s cavalier disregard of the overwhelming statis­

tical evidence showing no black maintenance personnel until 1968 or 93y/
later, and only 1% - 2% at time of trial, is impermissible under the 

law of this circuit. United States v. Hayes International Corp.. 456 F.2d 
112, 120 (5th Cir. 1972) held:

These lopsided ratios are not conclusive proof 
of past or present discriminatory hiring practices; 
however they do present a prima facie case. The onus 
of going forward with the evidence and the burden of 
persuasion is thus on Hayes [the employer]. . . .

92/ (Cont'd)

Q. In spite of the fact that there were absolutely 
no [black] employees in the journeyman jobs and 
maintenance?

A. i don't know there were none, sir (R. ).

If indeed OFCC did have such a gross misunderstanding, it contradicts 
the defendants' admission that all jobs were strictly segregated prior 
to 1962 (R. 446, 448), as the court elsewhere found (R. 504-505, 518). 
Simply because OFCC is reported to have been blind or simply unconcerned 
with craft positions is no excuse for the court to put on blinders to 
the obvious truth.

93/ As this Court has noted, "Nothing is as emphatic as zero,"
.States v.— Hinds County Board of Education, 417 F.2d 852, 858

(1969). Nevertheless, the district court made no finding on plaintiffs' statistical proof.

-72-



. . . [T]he burden of . . . showing a lack of
qualified negroes was upon Hayes. This burden is 
not met by Hayes' attempts to parry specific alle­
gations of alleged discrimination . . . . or by 
company officials stating in general terms that no 
one was refused employment solely because of their 
race.

Hayes is merely the most explicit in a long line of cases emphasizing
94/

the weight of statistical proof in race discrimination cases.

IP made no serious attempt to discredit the witness testimony of 

members of the class as to historical practices of exclusion from 

maintenance jobs, nor did it dispute the accuracy of the statistical 

showing. Instead, the Company, beyond doggedly insisting that no jobs 

closed to blacks after 1962, merely asserted in the most general 

terms that it had tried to recruit qualified blacks for maintenance jobs, 

had placed six over a five-year period, and had difficulty in finding 

more (R. 2039). When challenged to specify its efforts to find qualified 

black craft workers before 1969, the IP manager then in charge could not 
recall any specific steps (R. 1751-1752).

IP's rebuttal evidence was exactly what this Court held insufficient 

in Hayes• More was required as a matter of law— a specific showing of 

non-availability of blacks qualified for the job. Since, as IP’s own

94/ See, e.q. , Rowe v. General Motors Corp., supra at 357-358; Bing v. 
Roadway Express, Inc., 444 F.2d 687, 689 (5th Cir. 1971); Turner v.
Fouchê , 396 U.S. 346, 360-361 (1970) ; United States v. Alabama, 304 F . 2d 
583, 586 (5th Cir. 1962), aff'd 371 U.S. 37 (1962); Parham v. Southwestern
Bell Tel. Co., 433 F.2d 421, 426 (8th Cir. 1970).

-73-



witness on engineering matters testified, the apprenticeships are 

simply learner positions presuming no prior experience (R. 1752-1753), 

it is hard to imagine that such a defense could be mounted. in any event, 

IP did not try, and the court below erred in accepting its vague and 

weak explanations at face value (R. 526).

Additionally, the district court erred specifically in failing 

to find IP's 29 year age limit unlawful as it applies to members of 

the affected class. On a record showing that no black person ever 

held a maintenance job before 1968, it is self-evident that no black 

who passed the age of 29 before 1968 ever had an opportunity to work in
95/

a craft position. Griffin Williams provides a vivid example; all

other members of the class are now likewise excluded from consideration 
by the age requirement.

IP made no contention that its age limit reflects any legitimate 

business need. There obviously can be no such need to refuse to 

consider any 30 or 35 or 40 year old as a matter of inflexible rule.

Cf.- Cleveland Board of Education v. LaFleur. 41 LW 4186, 4190-4191 

(January 21, 1974). Such a requirement, as applied to the class members 

here, runs head on into the "business necessity" rule. Absent the
96/

requisite showing of necessity, the IP age limitation violates the law.

95/ Rven if IP were taken at its word that overt exclusion of blacks 
from maintenance ended in 1962, the age limit would have discriminated 
against all class members who passed the age of 29 before that time. *

96/ A facially neutral age limitation against the background of his­
torical practices of exclusion operates exactly like a "grandfather clause" 
to prevent consideration of qualified blacks. Similar limitations have

-74-



IP's high school education requirement for maintenance jobs 

suffers from the same infirmity as its age limit. IP did not even 

attempt to show the requirement job-related or justified as a matter of 

business necessity. Such a screening device cannot stand the test of 

applicable law. Griggs v. Duke Power Co., supra; United States v.

Georgia Power Co., supra, at 918.

In summary, the district court passed over an important area of 

blatant discrimination, finding nothing worng. It falls therefore to 

this Court to remand with specific instructions that a strong affirmative 

remedy is necessary to redress the effects of past exclusion of blacks 
from maintenance jobs.

V . IP Denies Black Employees Opportunity to 
Advance Into Supervisory Jobs

Plaintiffs attacked the near-total exclusion of black employees 

from promotion to line supervisory positions as the product of unlawful 

practices. The district court, brushing off what it rather delicately 

characterized as statistics which fail to reveal a significant number 

of blacks in supervisory jobs" (R. 532), again found no discrimination.

96/ (Cont'd)

been held unlawful in United States v. Sheet Metal Workers Int'1. Assn., 
LocaJL_36, 416 F.2d 123~ 131, 133 (8th Cir. 1969) ; Sims v. Sheet Metal
Workers Int'l, Assn., Local 65, ____ F.2d ____, 6 EPD 1(9035 (6th Cir.
1973) at p. 6340; and Local 53, Asbestos Workers v, Vogler. 407 F 2d 
1047, 1053-1054 (5th Cir. 1969).

We question also the lawfulness of the IP age requirement under the 
Age Discrimination Act of 1968, 29 U.S.C. §§ 621 et sej. (1968).

-75-



It based this conclusion on a "rational basis" explanation of "what

might otherwise be considered a disparity in advancement opportunities

for blacks as compared to whites" (R. 533), namely that (due to past

discrimination) black employees had not been in the merged LOPs long

enough to acquire the necessary experience to qualify for promotion

to supervisory ranks (id.). The court's reasoning is contrary to the 
_97/

facts of record as well as to the law.

The district court uncritically accepted IP's "rational" explanation 

for the absence of black supervisors. it failed to dwell on several 

contradictions in the factual record which destroy the Company's 

defense. IP did not attempt to show any business necessity for long- 

tenured blacks to have occupied every job in a white LOP, including the 

top jobs historically closed to them on a racial basis, as a prerequisite 

to becoming supervisors. The existence of any such requirement is 

rendered extremely dubious by the showing that large numbers of whites 

became supervisors within a few short years after their initial employ­

ment at Mobile Mill (PI. Ex. 2). IP's explanation also fails totally 

to account for the absence of black supervisors in such traditionally 

black areas as the woodyard, the groundwood mill, and the general main­

tenance and yard crews. indeed, if ip truly followed any such "rational"

^  mdeed there is n£ testimony or evidence in the record to support
1S riC court s findings" in paragraph 24 of its opinion (R. 532-533) 

So far as we can tell, the only "evidence" to this effect is the assertion 
contained in IP's post-trial brief, which the court beiow adopted 
verbatim (see ^58 at p. 32 of that brief)

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system, it could not have brought white supervisors into those depart­

ments who had never worked most or any of the black jobs consigned to 

their supervision.

The court's ruling is erroneous in law as in fact. Plaintiff's 

powerful statistical showing— one black out of 193 supervisors (Pi.

Ex. 2)— creates a prima facie case of racial discrimination which demands 

explanation far more convincing than a "rational basis" theory. United 

States v. International Corp., supra at 120; Rowe v. General Motors 

Corp., supra at 357-358.

Far from sufficing to overcome plaintiffs' prima facie case, 

testimony by IP management officials reinforces the inference of 

discrimination. The procedure for nominating and selecting salaried 

supervisors, without opportunity to apply or notice of vacancies, based 

on loosely defined subjective standards to be administered by an all-white

force of lower-echelon supervisory personnel, strikingly parallels
9^/

practices that this Court held unlawful in Rowe. There the Court

noted that "promotion/transfer procedures which depend almost entirely 

upon the subjective evaluation and favorable recommendation of the 

immediate foreman are a ready mechanism for discrimination against Blacks," 

457 F.2d at 359. See also Marguez v. Omaha District Sales Office.

98/ This Court in Rowe dealt with procedures for promotion of hourly 
employees to salaried jobs, 457 F.2d at 351. It enumerated five factors 
in the selection process which, together with the statistics, pointed to 
discrimination. All five are present here, cf. 457 F.2d at 358-359, 
and pp. 26-27, supra.

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440 F.2d 1157 (8th Cir. 1971). These Title VII holdings are echoed in 

the jury discrimination context, where the subjective evaluation of 

prospective jurors presents similar issues. There, too, a statistical 

imbalance complemented by use of "subjective judgment rather than objec­

tive criteria signals racial discrimination, Turner v. Fouche, 396 U.S 

346, 354, 360 (1970); and this Court has recognized that such procedures 

create "great potential for covert discrimination," Broadway y. Culpepper. 
439 F.2d 1253, 1258 (5th Cir. 1971).

In effect, IP places standardless discretion to select supervisors 

in an all-white management staff that has risen through and presided 

over a comprehensive system of race discrimination. The results are 

as plain as the numbers. On this record, the court below clearly 

erred in finding no discrimination with regard to supervisory positions.

In remanding, this Court should instruct the district court to require 

appropriate affirmative measures for the immediate promotion of qualified 
black employees to supervisory jobs.

* The District Court Erred In Denying the Plaintiff 
Class an Award of Back Pay and Reasonable Attorney..
Fees ------

A . Back Pay

The evidence irrefutably shows that black employees earned far less 

than similarly situated white employees. The traditionally black jobs 

paid less than traditionally white jobs (R. 446-449, 518). Statistical 

tables show that in nearly every LOP, almost all blacks earned less than

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most whites, often despite relative seniority (Pi. Ex. 1, 3, 4, 12).

See p.17, supra. The class suffered severe economic loss due to 

defendants' discriminatory practices. Under the district court’s ruling, 

class members would have to bear this loss.

The district court denied a back pay award on the grounds that it 

had found no discrimination of any kind, and that the defendants had 

made a "sincere effort" and had endured high training costs (R. 536).

None of these reasons properly supports the back pay denial. As we argue 

in parts II-V of this Argument, the court erred in finding no dis­

crimination. This fundamental error obviously distorted the court's view 
* 99/
as to defendants' efforts at self-reform, and likewise its treatment

of the back pay and attorney's fees issues as a whole. The court's 

reliance on defendants' purported "sincere efforts" is misplaced. Like 

motivation, mere efforts are not dispositive or even highly relevant, 

Robinson v. Lorillard Corp., supra at 804; Title VII is directed at 

the conseguences of such efforts, Griggs v. Duke Power Co., supra at 

432, and here the results show that defendants' reluctant efforts failed 

miserably. With regard to defendants' training costs, the fact that 

necessary remedies for Title VII discrimination (including back pay) 

are costly gives no reason for denying or compromising them, Robinson, supra 

at 800.

99/ In fact, as discussed more fully at pp. 12-19, 54, supra, the 
Company has made no reforms that were not absolutely required by agencies 
of the federal government.

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The court below opined that a back pay award is "discretionary"

(R. 536). It failed to note, however, that a court's discretion in

such matters must be exercised in conformity with the remedial purposes

of Title VII, which make back pay

'[a]n inextricable part of the restoration to prior 
[or lawful] status'. . . [not] a mere adjunct 
of some more basic equity . . . [but] an integral
part of the whole of relief which seeks not to 
punish the respondent but to compensate the victim.

United States v. Georgia Power Co., supra, 474 F.2d at 921. See also,

Wirtz v. B. B. Saxon Co., 365 F.2d 457 (5th Cir. 1966); and Moody v.

Albemarle Paper Co., supra at 142.

Georgia Power and Moody both emphasize the dual function of back 

pay awards in Title VII cases: to make discrimination's victims whole

and to promote compliance with the statute's prohibition of employment 

discrimination. Accord: Robinson v. Lorillard Corp.. supra at 802;

Bowe v. Colgate-Palmolive Co.. 416 F.2d 711, 720 (7th Cir. 1969). The 

district court here took no notice of either of these statutory purposes 

in denying back pay. The court's exercise of "discretion", based on 

an erroneous finding of no discrimination, was evidently based on 

erroneous legal and factual assumptions. This Court must, therefore, 

remand for reconsideration under proper legal standards. United States 
v. Georgia Power Co., supra at 921.

In guiding the district court's exercise of discretion on remand, 

this Court should call attention, in addition to its own extensive 

discussion of the governing factors in United States v. Georgia Power

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Co., supra at 922, to the standards established by the Fourth Circuit in

Moody v. Albemarle Paper Co., supra, and the Sixth Circuit in Head v.
100 /

Timken Roller Bearing Co., 486 F.2d 870 (6th Cir. 1973). This Court

should order the district court to provide for further proceedings in

which the standards, methods of computation, eligibility of class members,
101 /

and other pertinent issues would be decided. A back pay award is

an appropriate and necessary aspect of relief in this case.

B. Attorney's Fees

The district court's denial of attorney's fees must similarly fall 

along with its findings of no discrimination. A prevailing plaintiff is 

entitled to an award of reasonable fees, Johnson v. Georgia Highway 

Express, Inc., 417 F.2d 1122 (5th Cir. No. 72-3294, January 21, 1974).

the court in Head v. Timken Roller Bearing Co., supra, recognized in 

remanding for reconsideration of a denial of attorney's fees in that case, 

a prevailing plaintiff is in a considerably different posture on this 

issue from a losing plaintiff, 486 F.2d at 880. This Court should direct

100/ These cases hold that, where discrimination and resultant economic 
loss are proved, class back pay should be awarded unless "special" or 
"exceptional" circumstances are present. We note also the pendency in 
this Court of a number of cases fully briefed and argued on the class 
back pay issue. E.g_. , Franks v. Bowman Transportation Co.. No. 72-3239; 
Johnson v. Goodyear Tire and Rubber Co.. No. 73-1712; Duhon v. Goodyear 
Tire and Rubber Co., No. 73-1296; Pettway v. American Cast Iron Pipe Co., 
No. 73-1163; Baxter v. Savannah Sugar Refining Co.. No. 72-1039. The 
instant case is much like those cases on the back pay issue.

i0_l/ In its pre-trial order, the court reserved these issues, as well as 
the amount of reasonable attorney's fees, to such further proceedings, 
if Title VII violations were found (R. 486).

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that, on remand, the district court provide for proceedings to determine 

and award to plaintiffs a reasonable attorney's fee.

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CONCLUSION
This important appeal presents questions that are becoming more 

typical and more crucial as Title VII law completes its first decade.
The practices involved are often subtle; the underlying facts are often 
complicated. Defendants claim to have renounced the unlawful practices 
of their recent past and to have taken "voluntary" remedial action.
Yet, the plain result of all this activity is that most black workers 
whose careers originated in the segregationist past, remain in the 
same limited-opportunity positions that they previously occupied.

Appellants ask this Court to reaffirm that fruitless paper changes 
are not enough to remedy severe past discrimination. Changes that 
actually benefit the class of discriminatees must be required. The 
test is: are blacks now in fact enjoying those opportunities and working 
those jobs formerly closed to them?

Here, black class members have still not secured their full oppor­
tunities or received their full rights. The court below, in dismissing 
their action, has condemned them to a future without hope of further 
relief. This Court must correct that ruling, to assure that each member 
of this class "can advance as far as his talents and his merit will 
carry him," Miller v. International Paper Co., 408 F.2d 283, 294 (5th 
Cir. 1968).

Appellants respectfully request that the Court: (1) Vacate the
district court's order granting appellees summary judgment as to issues 
that the district court erroneously found were litigated or could have 
been litigated in Herron-Fluker. (2) Hold that appellees' seniority,
promotion and transfer policies continued to discriminate against class 
members up to the time of trial and that the 1968 Jackson Memorandum

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did not effectively remedy the effects of defendants' prior discrimina­
tory practices. (3) Require that on remand the district court grant 
appellants all remedial changes in the appellees' seniority, promotion 
and transfer practices of which are not forbidden by legitimate con­
siderations of safety and efficiency. (4) Reverse the district court's 
findings that IP's test battery did not disproportionately screen out 
black employees and that the battery was demonstrated to be job-related, 
and direct entry of an order enjoining IP from requiring, as a qualifi­
cation for class members to transfer into maintenance craft jobs, 
passage of the present test battery or any other test battery not vali- 
dated in accordance with appropriate legal standards. (5) Reverse the 
district court's finding of no discrimination in the maintenance 
departments and require the district court on remand to provide specific 
affirmative relief to assure that craft jobs are made available to black 
employees. (6) Reverse the finding of the district court that IP had 
not discriminated against black employees in the promotion of workers 
to supervisory positions, and direct the entry of appropriate affirma­
tive relief on remand. (7) Vacate the district court's denial of a back 
pay award to the plaintiff class, and require the district court on 
remand to hold further proceedings to determine the amounts and distri­
bution of back pay to class members under appropriate guidelines. (8) 
Direct the district court to award appellants their costs in this matter, 
including reasonable attorney's fees.

Respectfully submitted,Jkiyr . fU)tL-
J. u B I ACKS^I P R
Crawford & Blacksher 
1407 Davis Avenue 
Mobile, Alabama 36603

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JACK GREENBERG 
CHARLES S. RALSTON 
MORRIS J. BALLER 
JEFFRY A. MINTZ

10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiffs- 
Appellants

CERTIFICATE OF SERVICE

I hereby certify that on this uay Qf March  ̂ 1974, i
served two copies of the foregoing Brief for Plaintiffs-Appellants 
on appeal upon the following counsel of record by depositing same in 
the United States Mail, postage prepaid.

R. F. Adams, Esq.
Brock B. Gordon, Esq.
P. 0. Box 1988 
Mobile, Alabama 36601
Benjamin Erdreich, Esq. 
John C. Falkenberry, Esq. 
409 North 21st Street 
Birmingham, Alabama 35203

Ms. Margaret Poles 
A ttorney-a t-Law 
EEOC General Counsel Office 
1800 G Street, N.W. 
Washington, D. C. 20006
James D. Hutchinson, Esq.
1250 Connecticut Avenue, N.W. 
Washington, D. C. 20036

____/1lorrkl. —
Attorney for/ Plaintiffs- 
Appe Hants's/

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