Stevenson v. International Paper Company Appellants' Reply Brief

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 73-1758

JESSIE STEVENSON, et al.,
Plaintiffs-Appellants,

vs.
INTERNATIONAL PAPER COMPANY, et al.,

Defendants-Appellees.

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

Southern Division

APPELLANTS' REPLY BRIEF

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

JACK GREENBERG 
MORRIS J. BALLER 
CHARLES S. RALSTON 

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



INDEX

1• IP's Approach To All The Issues in This Case Reflects Two Erroneous Themes Contrary ToBasic Title VII Law................. ... ............... 1

A. The Defenses Based On OFCC Approval Of
Defendants' Discriminatory Practices..............  2

B. The Defenses Based on the "Evolving"State of Title VII Law............................  5
11 * Appellees Offer No Persuasive Arguments To Support 

The District Court's Decision Holding That The 
1968 Jackson Memorandum Cured All Effects of Past Discrimination .......................................  7
A. Appellees Do Not Seriously Argue That the

1968 Jackson Memorandum Remedied Discrimi­nation Insofar As Possible........................  9
B. IP's Arguments Fail to Justify the unnecessary

Limitations of the Jackson Memorandum ............  12
111• The Company's Testing Battery Screens Out Blacks

From Maintenance Positions And Has Not Been Properlv Validated.......................... *-------------- - ^7
A. Evidence of Disparate Impact......................  17
B. Validation.................................  21

IV* IP's Brief Fails To Rebut Plaintiffs' Showing That 
It Unlawfully Excludes Blacks From Maintenance And Supervisory Positions..........     26
A. Maintenance Positions.............................  26
B. Supervisory Positions.............................  29

Under Recent Controlling Authority The Court MustAward Plaintiffs Class Back Pay........................ 31
VI• The Union's Argument That The District Court Did 

Not Erroneously Raise Prior Litigation In Bar To This Action Is Contrary To This Record And To The 
Union's Position In Related Litigation.........    33
A. The UPIU Argument Rests on Faulty

Characterizations and Assumptions.................  34
B. The upiu Position Here Contradicts Its

Position In Related Litigation....................  37

PAGE

x



PAGE
Conclusion 39

Table of Authorities
Alexander v. Gardner-Denver Co., 39 L.Ed.2d 147 (1974)..... 3,16
Baxter v. Savannah Sugar Refining Corp., __ F.2d

(5th Cir. No. 73-1039, June 6, 1974)...........  7,8,32,33,34nBoles v. Union Camp Corp., 57 F.R.D. 46
(S.D. Ga. 1972).........................................  3

Buckner v. Goodyear Tire & Rubber Co., 339 F. Supp. 1108
(N.D. Ala. 1972) aff'd 476 F.2d 1287 (5th Cir. 1973).... 28

Duhon v. Goodyear Tire & Rubber Co., 494 F.2d 817
(5th Cir. 1974).........................................  32

Franks v. Bowman Transportation Co., __ F.2d
(5th Cir. No. 72-3239, June 3, 1974)...........  7,8, 29, 32,34n

Glover v. St. Louis-San Francisco Rwy. Co.,
393 U.S. 324 (1969).....................................  16

Griggs v. Duke Power Co., 401 U.S. 424 (1971)..............  18n
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364

(5th Cir. 1974)...........................  6,7,8,9,14,18n, 29,
31,32,33,3 4n,39Local 189, United Papermakers and Paperworkers

v. united States, 416 F.2d 980 (5th Cir. 1969),
cert, denied 397 U.S. 919 (1970)............. 3,4,8, 9n, lln, 12n

Miller v. Amusement Enterprises, Inc., 426 F.2d 534(5th Cir. 1970).........................................  6
Miller v. Continental Can Co., __ F. Supp. __,

5 EPD f8536 (S.D. Ga. 1973).............................  3
Moody v. Albemarle Paper Co., 474 F.2d 134 (4th Cir.

1973), pending on rehearing en banc...................  18n,21
NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974)...............  8
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211

(5th Cir. 1974)..............  4,6, 7,8,9, lln, I2n, 13,14,15n, 16,
28,31,32,32n,33,34nRobinson v. Lorillard Corp., 444 F.2d 791(4th Cir. 1971).........................................  4

Rogers v. International Paper Co. (W.D. Ark.
No. PB-C-71-47).....................................  37,38,39Rowe v. General Motors Corp., 457 F.2d 348
(5th Cir. 1972) ........................................  30

United States v. Georgia Power Co., 474 F.2d 906
(5th Cir. 1973).................  7,8,9,18n, 19, 23,24, 26,31, 33nUnited States v. Hayes International Corp.,
456 F. 2d 112 (5th Cir. 1972)............................  27

ii



PAGE
United States v. Jacksonville Terminal Co.,

451 F.2d 418 (5th Cir. 1971) cert, denied
406 U.S. 906 (1972)..................................  14, 18nUnited States v. Operating Engineers, Local 3,
__ F. Supp. __, 4 EPD 1(7944 (N.D. Cal. 1972)........... . . 4

Williamson v. Bethlehem Steel Corp., 468 F.2d 1201
(2d Cir. 1972), cert, denied 411 U.S. 931 (1973).........  4

Other Authorities
42 U.S.C. § 2000e-12(b) ..................................... 4
EEOC Guidelines on Employee Selection Procedures,

29 C.F.R. § 1607.3 (b) ...................................  26
EEOC Guidelines, 29 C.F.R. § 1607.4(c)(1) ..................  23

i n



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

)

NO. 73-1758

JESSIE STEVENSON, et al.,
Plaintiffs-Appellants, 

vs.
INTERNATIONAL PAPER COMPANY, et al.,

Defendants-Appellees.

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

Southern Division

APPELLANTS’ REPLY BRIEF

Plaintiffs-appellants hereby reply to the briefs filed on 
behalf of defendants-appellees international Paper Company (IP) on 
June 4, 1974 and United Paperworkers International union (UPIU) on 
May 20, 1974. Plaintiffs first address two recurrent themes of the 
IP brief which pervade its treatment of all the issues; then plain­
tiffs respond with regard to the specific issues raised by this 
appeal.

I. IP's Approach To All The issues In This Case Reflects 
Two Erroneous Themes Contrary To Basic Title VII Law.

IP's entire brief is shot through with two recurrent themes: 
that the federal courts cannot hold IP liable for practices condoned



by a federal administrative agency (OFCC), nor for practices made 
illegal by Title VII which had not explicitly been judicially 
condemned at the time ip maintained them. Each of these themes 
reflects a fundamental misconception of the nature of Title VII 
law.

A. The Defenses Based On OFCC Approval Of Defendants* Discriminatory Practices.
Again and again, in support of practices now conceded to be 

discriminatory or remedially inadequate, IP interposes the defense 
that the OFCC had approved them or failed to recognize the practices 
as unlawful.

Thus, IP relies on OFCC approval of the 1968 Jackson Memoran­
dum (Br. 11, A. 1527a) and the McCreedy letter policy (Br. 12-14, 
54-55). It relies on OFCC*s alleged failure at the Jackson Confer­
ence to notice the absolute exclusion of blacks from maintenance 
jobs (Br. 29). it notes extensively how pleased OFCC has been with
IP's partial and reluctant reforms (Br. 37 and n.27). It falls back

2/on OFCC's abandonment of its earlier judgment that job skipping was 
necessary (Br. 48-49, n.39), and defends the failure to generate 
scores permitting validation of its testing program as it was used, 
in battery form, on the ground that OFCC had not requested it (Br. 85). 
Finally, IP falls back on "authoritative administrative (not judicial] 
determinations" of OFCC "under the law" [Executive Order 11246, not 
Title VII] as a barrier to back pay (Br. 95-96).

By these arguments, IP in effect urges the judiciary to abdi­
cate its Congressionally assigned functions under Title VII. Congress
—^ The "Twelve Points" which OFCC initially demanded that defendants 
satisfy at the Jackson Conference included a job skipping provision 
(A. 1422a). OFCC may have relied on the promise in the Jackson Memo­
randum, never fulfilled, that defendants would establish job skipping and advanced level entry by subsequent negotiations (A. 1522a).

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did not intend federal judges to be mere handmaidens to the admini-
strative officers of the OFCC, or any agency of the executive branch. 
On the contrary, as the Supreme Court recently held:

1

. . . final responsibility for enforcement of Title VII
is vested with federal courts .... Courts retain these 
broad remedial powers [of 42 U.S.C. § 2000e-5 (g)] despite 
a [EEOC] Commission finding of no reasonable cause to 
believe that the Act has been violated. McDonnell- 
Douglas Corp. v. Green, supra, 411 U.S., at 798-799.Taken together, these provisions make plain that federal 
courts have been assigned plenary powers to secure com­pliance with Title VII.

*  *  *

The purpose and procedures of Title VII indicate that 
Congress intended federal courts to exercise final 
responsibility for enforcement of Title VII.

Alexander v. Gardner-Denver Co., 39 L.Ed.2d 147, 156 (1974).
Employers in this and other industries have frequently raised

OFCC approval as a defense to Title VII proceedings, and the federal
courts have uniformly rejected this defense. in the leading paper
industry case of Local 189, United Papermakers and Paperworkers v.
United States, 416 F.2d 980 (5th Cir. 1969), cert, denied 397 U.S. 919
(1970), the lower court rejected an OFCC-sponsored "A / B" seniority
remedy as legally inadequate, 416 F.2d at 985, and this Court affirmed.
In Boles v. Union Camp Corp., 57 F.R.D. 46 (S.D. Ga. 1972), the court
held that the defendant paper company was not insulated from attack
under Title VII by an OFCC-approved affirmative action plan settlement
similar to the Jackson Memorandum. Accord, Miller v. Continental Can
Co., ___ F. Supp. ___, 5 EPD f8536 (S.D. Ga. 1973). Most recently,

IT- Indeed, OFCC has no function whatever under Title VII, and only meekly administers the far more limited E.O. 11246. For the judiciary 
to relegate Title VII enforcement to administrative proceedings under 
different authority would in effect repeal Title VII wherever the 
Department of Labor acts first.

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in Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir.
1974), this Court had no difficulty finding the company's testing 
program unlawful even though the responsible OFCC review official 
had approved and highly praised the program, 494 F.2d at 219, 221, 
n. 21.

The rule that federal administrative determinations do not 
bar judicial findings of Title VII liability applies with particular 
force to private suits. Even where a federal court has previously 
granted partial relief in a Title VII action brought by the Attorney 
General, private plaintiffs are not thereby precluded from obtaining 
further relief where necessary to vindicate their rights. Williamson 
v. Bethlehem Steel Corp., 468 F.2d 1201, 1203-1204 (2nd Cir. 1972), 
cert, denied 411 U.S. 931 (1973); United States v. Operating Engineers,
Local 3, ___ F. Supp. ___, 4 EPD f7944 (N.D. Cal. 1972). Ipso facto,
private plaintiffs can seek more complete relief than that obtained 
by a non-judicial federal agency like OFCC.

Section 713 (b) of Title VII does provide a mechanism for 
employers subject to the Act to seek administrative interpretations 
on which they may rely, 42 U.S.C. § 2000e-12 (b). That procedure is 
committed by statute to EEOC, not OFCC, and is narrowly restricted by 
appropriate precautions, see Local 189, etc, v. United States, supra, 
at 997; Robinson v. Lorillard Corp., 444 F.2d 791, 801 (4th Cir. 1971). 
The whole purpose of the narrow and specific statutory provisions is 
to preclude the kind of whitewash of discrimination that IP has 
attempted to purchase by placating the undemanding minions of the 
Department of Labor.

OFCC's failure to seek or require full relief from defendants' 
discrimination cannot diminish the court's duty to assure plaintiffs

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their complete remedy,
B. The Defenses Based on the "Evolving" State of Title VII Law.
Apparently conceding that many of its post-1965 practices fall 

short of what clear law holds Title VII to require, IP stresses the 
"evolutionary nature" of this law (Br. 41-42) as a defense to its 
illegal practices. Thus, IP asserts that the 1968 Jackson Memorandum 
paralleled then-current remedial decisions (Br. 42-43); that the case- 
law which conclusively condemns the inadequate 1968 Memorandum was 
not crystallized until after 1971 (Br. 44-46); that whatever the inade­
quacies of the $3.00 red circle ceiling and the lack of job skipping, 
the state of the law was not clear as to such remedies in 1968-1969 
(Br. 47-49); that the principal authorities supporting plaintiffs' 
testing argument were decided following trial in this case (Br. 78-79 
and n.77); and that it had no way to know that OFCC's advice would 
leave IP exposed to back pay liability (Br. 95-96).

These points amount to no more than an artful recasting of the
now-discredited proposition that good faith operates as a defense to

2/
Title VII liability. While judicial decisions clarifying the remedial 
requirements of Title VII have certainly crystallized, there has been 
no change in pertinent statutory language embodying the original 
Congressional intent or in the underlying judicial standards of com­
pliance. Title VII today says and means exactly what it has since 
July 2, 1965 (insofar as the issues presented here are concerned).

The basis for IP's "judicial evolution" defense is a mistaken 
notion that a Congressional enactment becomes meaningful not on its

See cases cited in part V, infra.V
-5-



effective date but only when the federal courts have given it
authoritative interpretation. The law is contrary. As this Court
held with regard to Title II of the 1964 Civil Rights Act,

... the [discriminatory] actions ... became subject to the prescribed judicial relief not because the Court 
said so, but rather because the Court said —  even 
perhaps for the very first time —  that the Congress 
said so.

Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 536 (5th Cir. 
1970).

This Court has rejected a similar defense in the context of 
the class back pay issue, in the strongest possible terms, Johnson

1 7v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974). More­
over, the "unsettled law" theory makes even less sense as a defense 
to a finding of discrimination and a right to complete injunctive 
relief than it does as a back pay bar. In Pettway, supra, this Court 
held a testing program validation illegal under Griggs and Georgia 
Power even though it long antedated those decisions, 494 F.2d at 221,

W  There Goodyear had contended that "it had proceeded at all times subsequent to the Act to remedy its past discriminatory practices," 
491 F.2d at 1376. The Court of Appeals found the contention "totally 
irrelevant" as it amounts to nothing but a plea of benign motivation, 
id. It concluded,

In sum, we feel that an employer's alleged reliance on 
the unsettled character of employment discrimination law 
as a defense to back pay is unpersuasive. At least since 
July 2, 1965, the effective date of Title VII, the 
employers of this nation have been on notice that employment 
discrimination based on race, whether overt, covert, simple 
or complex, is illegal. In this case, the employer has 
been violating the Act as to some employees since that date.
If we were to accept the employer's position the effective 
date would be advanced at least to the date of the Griggs 
opinion. This result would be untenable and completely at odds with the Congressional purpose evidenced by enacting 
Title vil. Title VII is strong medicine and we refuse to 
vitiate its potency by glossing it with judicial limita­
tions unwarranted by the strong remedial spirit of the 
act. 491 F.2d at 1377.

-6-



n.21, and granted back pay as a remedy for the testing discrimination. 
Repeating Johnson succinctly, the Court in Pettway held that M[t]he 
specific prohibitions of Title VII were adequate notice to employers 
post July 2, 1965," ib. at 255. It makes no difference that many of 
the judicial clarifications crucial to this case involve the nature 
of appropriate remedies. Any employment system that fails to open 
up opportunities to blacks formerly barred from them to the greatest 
extent practicable, unnecessarily perpetuates past discrimination and 
is, therefore, itself discriminatory. (See main Br. at 41-42).

Even if we could accept at face value IP's insistence that it 
kept pace with administrative and judicial precedent —  and the record 
will not support any such assumption —  IP's defense would still fail. 
Its duty was to cease discrimination and eradicate its lingering 
effects —  not to imitate any particular directive. ip failed to meet 
that basic obligation.

II. Appellees Offer No Persuasive Arguments To Support 
The District Court's Decision Holding That The 1968 
Jackson Memorandum Cured All Effects of Past Discrim­ination.

The inconsistent, often contradictory arguments presented by 
appellees in the sections of their briefs that defend the 1968 Jackson 
Memorandum result from their desperate attempt to avoid the applica­
tion of recent on-point caselaw to this action. This Court's recent 
landmark Title VII decisions, handed down since trial below, are 
dispositive of this issue on appeal. Pettway v. ACIPCO, supra;
Johnson v. Goodyear Tire & Rubber Co., supra; Franks v. Bowman Trans­
portation Co., ___ F.2d ___ (5th Cir. No. 72-3239, June 3, 1974);
Baxter v. Savannah Sugar Refining Corp., ___ F.2d ___ (5th Cir. No.
73-1039, June 6, 1974); United States v. Georgia Power Co., 474 F.2d

-7-



906 (5th Cir. 1973). In every one of those cases, this Court reit­
erated in strong terms its previous commitment to the governing 
principles of the Local 189 line of cases. Simply stated, the Court 
insists that in a Title VII industrial case all the effects of past 
discrimination against black employees must be eliminated insofar as 
possible by granting them full seniority, transfer, and promotion 
rights. Pettway, Johnson, and Baxter each involved employers who had 
made substantial changes in their discriminatory practices and who 
argued these modifications in defense of their cdse. in each instance 
this Court, looking to the defendants' failure actually to cure the 
continuing racial stratification of their plants, rejected the defense. 
See, e.g., Pettway, supra, 494 F.2d at 222-230? Johnson, supra at
1370-1377? Baxter, supra, Slip Op. at 4377-4380.1/IP's brief attempts to distinguish this case from such control­
ling authorities on the ground that these defendants instituted a 
rudimentary mill seniority system in 1968 (IP Br. 1-4). It would 
apparently have this Court hold that its sweeping decisions in Georgia 
Power, Pettway, Johnson, and Franks only apply to companies with 
departmental seniority systems at time of trial. This approach mis­
reads the underlying thrust of Georgia Power and its progeny: we are 
confident that this Court intended to put broader handwriting on the 
wall for all practitioners of employment discrimination, of whatever 
form, in this Circuit. Johnson, supra at 1377? cf. Baxter, supra, and 
NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974), cases not involving any 
seniority system to which the Court has applied a similar remedial

J7~ We deal in reply only with IP's brief on this issue since the 
UPIU merely adopts and summarizes the IP's position in conclusory 
terms (UPIU Br. 35-41).

-8-



analysis.
In light of the principles of the cases cited above, the 1968 

Jackson Memorandum cannot serve as a whitewash of the stains of all 
defendants' past discrimination.

A. Appellees Do Not Seriously Argue That the 1968 Jackson 
Memorandum Remedied Discrimination Insofar As Possible.

Although IP goes through the motions of defending the suffi­
ciency of the 1968 Jackson Memorandum on its merits, its primary 
response is a twofold legal smokescreen. IP misses the point when it 
argues that defendants' actions and inactions can be justified first 
by their alleged good faith reliance on governmental approval, and 
additionally by their alleged adherence to developing judicial pre­
cedents. See part I, supra. Neither of these defenses goes to the 
heart of the question: did the 1968 Jackson Memorandum fail to 
eliminate the effects of discrimination insofar as possible?

The "relevant legal standards" (IP Br. 39) by which this 
question must be answered are, of course, those now controlling in
this Circuit - the progeny of Georgia Power and most particularlv

1/Pettway.
Thus, while this appeal is obviously not in every factual respect 

identical to Johnson or Pettway, it is governed by the same well- 
established legal precedents. Plaintiffs here seek no "new standard 
for review" (IP Br. 39). Instead, we have merely restated the 
settled rule that continued racial segregation and stratification 
places upon Title VII defendants the burden of proving that all lin­
gering impediments to discriminatees' advancement are required by
IT" There has in truth been no change in Title VII law in this Circuit 
since Local 189, but only a progressive clarification of its holding and rationale.

-9-



business necessity (main Br. 44). ip addresses this precise burden 
almost parenthetically and with more rhetoric than proof.

Although IP quibbles with the accuracy of plaintiffs' statis­
tical proof, it has not denied the continuing racial stratification 
of its production LOPs. Rather, IP merely attempts to explain these

a e Ccaufe1ofnS r f o n o S f “ “  trial and int«rogatory exhibits reveals 
° ° f  t h e  f o l l o W i n g  apparent discrepancies cited in IP's brief (page citations are to the ip brief) ; onet

omitted^from *our"n pa?!!f ”achine department "laborers" were
s e n i S t y S L S  inlx ' f ? Pp6ar Separate1^ the

the name implies (A. 12813-12893®! nGS' Whlle cleanuP do what

Ki-H srSlsSrSS
i S ) ip^sidatrStainSfinf°rniation c o n ^ i l ^ a s ^ f ^ c i n ^ r .  'Illl'
as of JU!y 1. 1972. There Is S'iiconsist^cy in s ^ t ^ i s M n e
-  :jt s " c i n e ??-
wage" rate S i  5 i  *  «
Power plant^LOP IrS c?nFernin9 the number of Acs in the

enabled Z T o l e  Inti thJt^Tne?7 Claim ^  GVen 3 AC Was
T/fTr̂ PflCOritê S b^ab aPPeH-ants ' statistical comparisons of the rela- lve economic situations of white and black employees are "meanincrless as a device for exploring the relative opportunitj for blacks ?o 
advance,'• because they include blacks who have "signed out" for nr«m« 
tions and are based on the permanent job wage raJefof ?£e employes 
not actual earnings which take into account temporary setup (Br Y16-'
on!' ,b l f e„ T ^  admits that whites as well as blac^hive'signed out (Br. 19, n. 9) and, of course, whites also frecuentlv i-aVp
raJYinG!UPS above their permanent job classifications pi ex 9Pand
“  « “  = L ra ^ ? a | r farS  ̂

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hard facts away. IP does not seriously contend that the deficien­
cies of the 1968 Jackson Memorandum, under which the stratification 
persists, can be justified by the standard of business necessity. 
Instead, IP admits that it subsequently agreed to provide residency 
requirements, job skipping, a higher red circle ceiling, and the 
subordination of recall rights through the 1972 Jackson Memorandum
(Br. 45-46), and argues only that by 1972 defendants "have gone as

8/far as business necessity permits" (Br. 36).
Whatever the substance and results of the 1972 Jackson Memoran­

dum - and this Court cannot pass on that issue before supplementation

77 cont'demployees due to temporary setup is discernible - in fact, the con­
verse is more apparent. This indicates that inclusion of temporary 
rate data would not change the comparative standing of the two racial groups.

In any event, IP was in sole possession of the (putative) informa­
tion required to discredit the value of plaintiffs' statistics, but declined to produce it. As this Court held in Pettway, supra, the 
variables suggested by the company "do not ... weigh heavily enough to 
lessen the appellants' empirical conclusions." 494 F.2d at 231. 
"Without information on the percentage of white employees refusing 
promotions and the types of promotions offered white employees, we 
think the [statistic on blacks' promotion refusals] inconclusive."Id. 494 F.2d at 231, n.46.

We note that plaintiffs' data here in Pi.Ex. 1, 9, and 10 is simi­
lar in form and content to the statistical proof relied on in the 
Pettway decision, 494 F.2d at 227-230.
8/ Apart from the legal insufficiency of its argument, IP is factually 
in error when it contends "that the 1968 Jackson Memorandum met and 
exceeded the requirements of appellate court decisions through early
1971 ---" (IP Br. 44). Local 189 v. United States, 416 F.2d 980,
988-89 (5th Cir. 1969) made it plain that "all 'but-for' consequences 
of pre-Act racial classification warrant relief under Title VII ... 
unless there is an overriding, legitimate, non-racial business 
purpose." This Court in Local 189 approved the very same residency 
and job-skipping remedies that the defendants here failed to imple­
ment under the 1968 Jackson Memorandum, 416 F.2d at 986 n.6, 990.

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of the record - nothing in defendants' briefs gives any basis for 
denying plaintiffs a decision that, at least until 1972, defendants 
had failed to provide adequate remedy for their past discrimination.

B. IP's Arguments Fail to Justify the Unnecessary 
Limitations of the Jackson Memorandum.

IP's attempts to justify the shortcomings of the 1968 Jackson 
Memorandum fail on every count.

1. Red Circling Limitations
IP asserts no business justification for any of its red circle 

limitations. Instead, it terms the $3.00 ceiling of 1968 "reasonable" 
(Br. 47). But the authorities teach that as a matter of law the red
circle protection must be not "reasonable," but sufficient to assure
. 9/that no AC is penalized for moving away from segregated black LOPs.
The company seeks to minimize the impact of this artificial ceiling 
by pointing out that "only 24 out of 324 ACs were at or above $3.00 
in 1968" (Br. 47, n.37). But IP doesn't deny that shortly thereafter 
in 1969, due to general wage increases, many more ACs earned more 
than $3.00 in their permanent, traditionally black jobs; nor that 
many more who regularly enjoyed temporary setups above their perma­
nent job level were in fact not fully protected.

2. Job Skipping and Residency
The company's position on job skipping and residency is at 

best ambivalent. It admits the importance of these remedies and 
states that they will be negotiated as part of the 1972 Jackson Memo-

•2/ See main Br. 45, and see Pettway, supra, 494 F.2d at 248, prohibi­
ting the imposition of any pay cut, even temporarily, upon ACs moving 
into formerly all-white lines. Contrary to the inference on page 47 
of IP's Brief, there is no indication in Judge Heebe's Local 189 opin­
ion, 301 F. Supp. at 918, 923, that the $3.00 limit he approved was at that time below the highest paid traditionally black job.

-12-



randum (Br. 22). Yet it argues that even without them the district 
court properly found that IP had fully complied with the relevant 
legal standards for demonstrating seniority practices which are with­
out present or continuing discriminatory effect" (Br. 39) (emphasis 
added). Patently, these two assertions are irreconcilable under 
correct legal standards.

IP attempts to confuse the issue by presenting job skipping,
advanced level entry, and minimum residency periods as merely lawyers'
concepts, not shown helpful to AC advancement (Br. 48-49, 57-58, cf.

10/  ' *UPIU Br. 39-40). Nothing could be further from the truth. IP admits 
that limited availability of vacancies may retard AC movement (Br. 38). 
As a corollary, if vacancies in long LOPs like the Pulp Mill (with 
over 20 job levels to traverse) are infrequent, the "plugging effect" 
described by IP (Br. 60—61 n.51) will make it impossible for signifi­
cant members of ACs ever to reach their rightful places unless they
can bypass jobs not needed for training or remain for only necessarv

11/training periods m  other jobs.
In Pettway, supra, this Court reaffirmed the importance of 

advanced level entry and minimum residency periods as indispensable 
parts of a complete remedy. The Court there notes, in language 
equally applicable to a mill seniority system shackled by an unneces­
sary step-by-step progression requirement,

1^/ Had appellees in 1968 met their legal obligation to designate those LOP jobs which could be skipped and to formulate minimum resi­
dency periods for the others, the problem that produced the McCreedy Letter would never have arisen.
11/ The deterrent effect on ACs faced with the renewed prospect of step-by-step progress through lengthy job ladders after years climbing their old ones is obvious.

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... a departmental seniority system is effective and 
efficient as an instruction program only as to those positions in a line of progression where the jobs below them on the ladder serve as pre-pequisite 
training steps. Thus, in a departmental line of pro­
gression where the positions do not require specific 
training or where on-the-job experience in another 
department qualifies an employee, a departmental 
seniority system is not efficient and is certainly not the best training method.

Pettway, supra, 494 F.2d at 246 (footnotes omitted). In providing 
a remedy for such a system, the court required advanced entry (or 
skipping) where feasible and establishment of minimum residency periods 
for jobs necessary for training purposes, 494 F.2d at 248-249 and n. 
106; cf. Johnson v. Goodyear Tire & Rubber Co., supra, at 1374, n.28.

IP has "failed to demonstrate that every position at the plant 
is so complex or specialized as to require, without exception, step- 
by-step job progression within each department." Pettway, supra,
494 F.2d at 246. Indeed, IP has not proved the business necessity 
of any of its LOP jobs. Rather it advanced at trial much the same 
argument firmly rejected by this Court in Pettway and United States 
v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971), cert. 
denied 406 U.S. 906 (1972) (see Pettway, supra, 494 F.2d at 245-247)
of "necessity" based only on the general theory that LOPs are a good

12/idea in an industrial situation.
±4/ IP incorrectly contends that the district court found "that each 
job in the [LOPs] provides training and experience necessary to 
develop the skills required to perform higher jobs in the LOP" (Br. 6) . 
Actually, the court said only that "in the main ... jobs within a line 
are functionally related to each other" (A. 126a, n.5), and "the evi­
dence shows that with each advance the jobs affected tend to become 
more complex and place demand for greater ... skill on the employees" 
(A. 127a, n.6). These findings were taken verbatim from IP's post­
trial Proposed Findings of Fact and Conclusions of Law, pp. 9-10, 
except that Judge Hand omitted the proposed language that the LOPs 
"meet the needs of business necessity," and "the court finds the same 
considerations of business necessity have been served by [the require­
ment of step by step advancement]."

-14-
[fn cont'd]



3. Discriminatory Implementation of the 1968 Jackson Memorandum. 13/
Understandably, IP argues that the Jackson Memorandum's success 

should not be measured by its results in terms of AC advancement (Br. 
60-61). By this standard, as UPIU recognizes, it was a "flop" (UPIU 
Br. 38).

The problem of implementation is shown crucial by the stagger­
ing statistic that almost 75% of all remaining ACs had, as of trial, 
"signed out" (refused further promotion). Plaintiffs do not seek to 
conceal this fact, as defendants suggest (main Br. 53, cf. IP Br. 61, 
UPIU Br. 38); rather we deem it central.

IP attributes the sign-out phenomenon exclusively to the ACs' 
own purported shortcomings and denies that its admittedly compromised 
mill seniority system had any part in the problem (Br. 62-64). The 
district court adopted IP's position unquestioningly. It agreed that 
defendants fulfilled their duty when, under OFCC pressure, they nego­
tiated a mill seniority system, cursorily published this change, and 
then let nature take its course.

IP makes no apology for its failure to investigate or follow 
up, even once, the massive promotion and transfer waivers among the 
affected class, in spite of the harassment, intimidation and difficulty
H7~ cont' d

The Court's findings were based entirely on the trial judge's brief 
tour of the mill and the general and conclusory testimony of IP Engi­
neer Williamson (A. 124a, n.3). The company has never conducted a 
technical job-by-job analysis of its lines (see A. 1144a-1145a). To 
rebut these patently overbroad generalities, plaintiffs presented the 
same kind of expert testimony found persuasive by this Court in Pett­way, supra, 494 F.2d at 247 n.97. See main Br. 49-50.
13/ The portion of the pre-trial order set out on p.60 of IP's brief 
plainly exonerates defendants only from failing correctly to apply 
"the mill seniority provisions" of the 1968 Jackson Memorandum." Else­
where in the pre-trial order plaintiffs set out in detail their com­
plaints about harassment, intimidation, lack of training, and other 
failures in implementation of the Memorandum (A. 87a-88a).

-15-



in obtaining training about which ACs complained at trial (main Br.
14/

54-56) .
On these facts, failures of implementation are indicated, and 

the root cause is not hard to find. The law cannot turn a blind eye 
to the fact that the "rightful place" remedy for prior racial segre­
gation commits hopeful black employees to the tender mercies of the 
same parties who, before the federal government intervened, devised 
and operated a system of overt discrimination. <3f. Alexander v. 
Gardner-Denver Co., 39 L.Ed.2d 147, 164, n.19 (1974); Glover v. St. 
Louis-San Francisco Rwy. Co., 393 U.S. 324, 330-331 (1969) (employees
complaining of racial discrimination need not exhaust or be exclusively 
bound to grievance/arbitration procedures controlled by discriminators). 
The Jackson Memoranda provide no alternative to these unsatisfactory 
channels for resolution of black employees' problems. A "necessary" 
element of complete affected class relief is "a complaint procedure 
by which a member of the class may question the interpretation or 
implementation of the district court's decree," Pettway, supra, 494 
F.2d at 263, 266-267, or likewise question the implementation of the 
mill seniority system. Notwithstanding the district judge's opinion 
that it will constitute "pampering" and "paternalism" (A. 123a), this 
Court should remand with specific instructions to establish such a 
procedure as part of the affirmative relief to which plaintiffs are 
entitled.

n r  IP incorrectly states that the issue of AC intimidation by white 
employees and lower level supervisors was found to be "without merit" 
by Judge Pittman in Herron-Fluker. That court did not discredit George 
Herron's allegations of harassment and lack of training, but held only that the union (IP, of course, was not a party) was not guilty of 
failing to represent Mr. Herron, because he had not filed a formal 
grievance over these matters (A. 1939a, 1942a) .

-16-



Ill. The Company's Testing Battery Screens Out Blacks From 
Maintenance Positions And Has Not Been Properly 
Validated.

The company's brief in defense of its testing program does not 
dispute plaintiffs' analysis of the applicable legal standards or 
case law in any consequential respect. Rather, it tries to lift the 
program out of the analytical context of those authorities by asserting 
certain factual distinctions purportedly present in this case.
Because the company's argument rests primarily on a partisan view of
the facts, this reply will focus on the factual disputes indicated by

►

the parties' initial briefs.
15/A. Evidence of Disparate impact

Except in two very minor details (see infra), IP makes no sub­
stantive reply to any of the plaintiffs' evidence of the tests' adverse 
impact on blacks other than its lengthy, harsh, and somewhat misleading 
attack on the weight of Pi.Ex. 6 (IP Br. 29, 70-75). While Pi.Ex. 6 
(A. 1402a) is in fact a significant indicator of disparate impact when 
fairly reviewed (see infra), we initially note that plaintiffs pre­
sented a variety of other proof, all of recognized value, and IP has 
not rebutted the substantive accuracy of any of that proof. (See main 
Br. 24-26, 60-61; cf. IP Br. 70-77).

Instead, IP remonstrates that no experience other than specific 
results at IP's own mills can have probative relevance to the issue 
(Br. 76-77). This ostrich-like attitude, of course, runs contrary to 
the federal courts' duty and practice of seeking out the truth from

n r  We note initially but in passing that IP nowhere cites, and appar­
ently refrains from defending, the district court's erroneous finding that "no evidence was offered concerning the impact of the testing 
program on the ability of blacks to obtain employment at the Mobile 
Mill" (A. 145a).

-17-



whatever sources available, subject to the rules of evidence. That
practice has been repeatedly endorsed by the courts in dealing with
this very question which is by its nature a relatively novel and16/
complicated one. IP's approach is not just unwise and unwarranted.
It sits particularly uncomfortably on this record because ip itself 
has done everything possible to avoid the introduction of exactly 
the kind of comprehensive, specific testing results which it now 
claims alone will suffice. See, e.g., ip Br. 71, n.64 (ip refused 
discovery of test scores of all applicants or employees), main Br. 61 
and n.78 (IP objects to Personnel Manager, who knows, giving his best 
impression of passing rates at Mobile Mill).

In two minor points that quickly crumble under analysis, IP does 
contest the plaintiffs' evidence aside from Pi.Ex. 6.

(1) IP seeks to diminish the force of proof showing the over­
whelmingly white composition (3 blacks out of 324, or 7 of 362) of its 
maintenance force by generally asserting that "opportunities for 
movement into these positions have been few" (Br. 76). Plaintiffs 
can only guess what IP means by "few" since ajt least 97 craft job
vacancies occurred between July 2, 1965 and December 31, 1971 as

12/follows:

1§/ Griggs v. Duke Power Co.. 401 U.S. 424, 430, n.6 (1971); Moody v. 
Albemarle paper Co., 474 F.2d 134, 138, n.1 (4th Cir. 1973), pending 
on rehearing en banc; united States v. Jacksonville Terminal Co., 
supra at 456; cf_. Johnson v. Goodyear Tire & Rubber Co., supra at 
1371, nn.8-10; and United States v. Georgia Power Co., 474 F.2d 906,918 (5th Cir. 1973) (high school education requirements).
17/ Source: Seniority lists, Ex. K to IP's Answers to Plaintiffs'
First Interrogatories (A. 1859a-1863a, 1868a-1869a). A vacancy was 
presumed to have existed in each case where an employee on the list 
carries a departmental seniority date after July 2, 1965. This tabu­
lation does not, of course, include person who filled vacancies after 
1965 but were no longer on the lists as of 1971. Of the 97 individuals 
counted, five were blacks —  two Oilers, two Instrument Man Apprentices,

-18-



Shift Electrician and 
Repairman —  2 5
Repairman Apprentice —  6
Shift Instrument Man —  7
Instrument Man —  2
Shift Electrician —  1Millwright Apprentice —  25

(2) IP also claims that the

Pipefitter Apprentice —  13
Steel Worker —  5 
Sheet Metal Worker —  2 Welder —  7 
Machinist —  4 
Machinist Apprentice —  4 
Oilers —  10

Minnesota Paper Form Board
Test, which is one-third of its maintenance test battery (A. 1463a),
was not involved in Georgia Power (Br. 70, n.62, 76, n.73). This is 
incorrect. While the Court did not explicitly discuss the Minnesota
test there, it was a part of Georgia Power Company's testing program 
which the Court found had disparate impact and had not been validated.
See, e.g., 5th Cir. No. 71-3447,

18/
Georgia Power Co. Ex. 1(b), Appendix,

Exhibit Volume pp. 21-44.
The most direct answer to IP's brief is that Pi.Ex. 6 is sound 

evidence which, together with plaintiffs' other evidence including 
the near-total absence of blacks from maintenance jobs, proves 
adverse impact. IP's attack on the exhibit distorts its figures and 
then extrapolates to draw conclusions based on the modified data.

PI.Ex. 6 only records the pass/fail rates of 57 whites and 6 
blacks who applied for apprenticeship positions in 1970-1971 and who 
were accepted or rejected by December 31, 1971. It does not, and 
could not, include those 11 whites and 2 blacks whose applications

17/ cont'd
and one Millwright Apprentice. While many of the 97 vacancies were in 
journeyman slots, 63 of them (including the lesser-skilled Oilers) 
were not.

If the count had included persons who entered their craft depart­
ment after September 1, 1962 - the date IP claims to have opened main­
tenance jobs to blacks - the total number would be considerably higher (but the number of blacks would remain at five).
18/ Georgia Power used the Minnesota test to screen for the jobs of 
draftsman, field estimator, and instrument man with a passing score of 
40. (IP requires a score of 45, A. 1463a).

-19-



had not been acted upon when IP provided plaintiffs with Ex. Q (A. 
1876a-1879a), of which Pi.Ex. 6 is a summary: Ex. Q does not indicate 
test success or failure except as a comment on whether and/or why an 
applicant obtained an apprentice position in 1970-1971.

IP has juggled the numbers on PI.Ex. 6 by adding in the two 
blacks whose applications were accepted after service of Ex. Q but 
before trial (IP Br. 72-73). Simultaneously and without record evi­
dence that this actually occurred, IP lumps in all 11 whites listed 
on Pi-Ex. 6 as "no action" with the other 35 who are shown on Pi.Ex.
6 as not accepted, treating all 46 as "failed to be accepted" (Br. 73) 
The record does not show whether some or all of these 11 whites may 
have been rejected - or accepted - by the time of trial, or for what 
reason. Nor does the record show how many other whites, apart from 
the 68 on Pi.Ex. 6, may have applied, passed the tests, and been 
accepted for apprenticeship between January 1, 1972 and the date of 
trial. For all these reasons, the Court must regard Pi.Ex. 6 as what 
it is - a survey of limited but relevant information (all that IP 
would produce) over a specific period of time. As such, it is proba- 
tive of disparate impact notwithstanding IP's selective use (and

19/selective withholding) of further information to undercut its value.

19/ “IP further diverts attention from the true meaning of Pi.Ex. 6 
by its clever statistical analysis of acceptance rates (Br. 74-75)
But the issue here is not acceptance rates (which reflect a variety 
of factors, c_f. Pi. Ex. 6) - but rates of passing the tests. Pi. Ex.
6 shows that, excluding the "no action" group, only 16.7% (1 of 6) of 
blacks passed, compared to 47.8% (22 of 46) of whites passed. (Pi.Ex. 
6 and Ex. Q contain no test-success information about the 11 whites rejected for reasons other than test failure.) Addition of the two 
subsequently successful blacks brings the black figures to 37.5% (3 
of 8), thus reducing but not eliminating the disparate passing rates. One can only wonder what the final score would have been had IP chosen 
at trial to include the 11 whites from the "no action" list.

20-



Plaintiffs have thoroughly proved that IP's testing battery 
disproportionately excludes black employees from maintenance positions. 
IP's response fails to show otherwise and succeeds only in muddying 
the waters.

B. Validation
Plaintiffs' attack on the Tiffin-Scott validation study is not 

a series of super-technical quibbles as IP suggests (Br. 78-79), but 
a broad challenge rooted in plain common sense as well as professional 
and legal standards.

1. Ihe narrowness of the data base for the Tiffin-Scott study
Plaintiffs have shown that the total number of employees studied 

in the Tiffin-Scott validation survey was but a tiny fraction (2%-3%) 
of those in jobs for which the tests were thereby purportedly validated 
(main Br. 64-65). The percentage of the total number of jobs in the 
Southern Kraft Division that was actually studied is not much higher (id.). 
IP does not dispute this striking fact, although it attempts to 
obscure it (see infra). Thus, it remains uncontested that the company 
seeks judicial approval for a sweepingly broad testing program, but 
has given the courts only a minuscule sample on which to base that 
approval. Under proper standards, IP cannot buy so much for so little. 
See, Moody v. Albemarle Paper Co., supra at 138-140.

Nowhere is IP's tactic more clearly visible than in the group 
of jobs most pertinent here - maintenance positions at Mobile Mill.
IP attempts to obscure the narrowness of its survey by a chart (Br.
87-88, n.86) which combines "apples and oranges" - a listing of the 
number of craft job incumbents a_t Mobile coupled with a listing of 
significant correlations anywhere in the Southern Kraft Division. A 
more accurate depiction of the actual scope of validation would either

-21-



show only those jobs and tests for which correlations were found at 
20/

Mobile or would indicate the sparsity of the correlation data viewed
21/on a Division-wide basis.

IP's weak argument that a broader data base was not necessary 
is without support in its brief. ip cites plaintiffs' expert as con­
ceding that not every job need be studied (Br. 86 and n.85); this is
a far cry from agreeing that a 2%-3% sample of affected employees is
-̂ 2/ Such a chart would show correlations as follows (Source: D.ExA. 1466a-1470a) :

Wonderlic Bennett Minnesota
Electrician X None NoneInstrument Man X None NoneMillwright, Pipefitter, )
Steelworker, Sheet Metal )
Worker, Welder, Machinist,)i None None NoneInsulator, Auto Mechanic, )Carpenter )

All crafts 2 0 0
This, of course, looks quite different from IP’s chart in n.86.

21/ Such a chart would indicate the following (Source: D.Ex. 6):
Wonderlic Bennett Minnesota

Millwright (10 mills) X (3 mills) X (3 mills) X (1 mill)Pipefitter (10 mills) X (2 mills) X (1 mill)Steelworker (10 mills)
Sheet Mtl. Wrkr. (10 mills) X (1 mill)Welder (10 mills) X (2 mills) X (1 mill)Machinist (10 mills) X (3 mills) X (2 mills) X (1 mill)Insulator (10 mills) X (3 mills)Auto Mech. (10 mills) X (1 mill) X (1 mill)Carpenter (10 mills) X (3 mills)Instr. Man (10 mills) X (2 mills)Electrician (10 mills) X (1 mill) X (2 mills)
All crafts (11 crafts 7 crafts, 8 crafts, 3 crafts,each in 10 mills) = 110 14 valida- 16 valida- 3 valida-possible validations tions tions tionsfor each test. total total total
Once again, this chart tells a much different - and more accurate -story than IP's n.86.

-22-



sufficient. IP also cites to the EEOC Guidelines, 29 C.F.R. § 1607.4 
(c)(1) (id.); however that subsection obviously contemplates partial 
sampling in the context of lengthy production LOPs and is not appli­
cable to craft jobs which have either no progression or a one-step 
progression, e.g., apprentice to journeyman.

2. Battery test usage vs. individual test validation
IP does not answer plaintiffs' argument, anchored on Georgia 

Power, supra at 916, that where tests are used in a battery they must 
be validated as a battery (main Br. 67-68). Although IP has some 
ready excuses (in part involving, once again, what OFCC requested)
(Br. 85-86), the company in effect concedes that it made no valida­
tion studies of the battery. For example, even if one sets aside the 
point made in (1) above and deems validation of a test at any mill 
sufficient to show validity at Mobile, IP's maintenance battery is 
validated for only two of the eleven crafts (millwright and machinist) 
shown in its chart (Br. 87 n.86). Yet nobody can get into an appren­
ticeship program at Mobile by passing only two of the three tests.

3. Accuracy and reliability of validation survey
IP tries to hedge on the unprofessional practice (cf. A. 799a) 

of the responsible person who deleted all the "unsuccessful" results 
from the purported survey of validation results (Br. 27 n.19, 85).
The pertinent testimony (quoted only in part by IP) will resolve this 
dispute:

Q. Did you just testify that O.F.C.C. did ask for the negative data?
A. [Dr. Scott] As I recall, they did. In any event, 

we submitted it to them.
Q. When was that?
A. Well, my memory is vague. i prefer that that question 

be directed to somebody who did for certain.
-23-



(A. 746a-747a). That "somebody" was Mr. Oliphant (A. 583a). He 
testified (A. 662a):

Q. Did O.F.C.C. direct you to report summaries of all 
or only of those studies which showed a significant correlation?

A. They directed that we report to them, studies that showed evidence of validity.
Q. And you interpret that as requiring - not requiring 

to report evidence which does not show that validity?
A. I interpreted it as they said. , They said, "what 

evidences did you have of validity?"
Likewise, in response to plaintiffs' interrogatory concerning

validation studies (Pi. First Int. to IP No. 65, 66) and on direct
examination IP discussed only its "good" results (A. 592a). That
there were others only appeared through cross-examination. Together
with other indicated omissions (main Br. 66), such practices cast
doubt on the whole study.

4. Differential validation
In light of Georgia Power, IP has now fallen back to reliance

on its argument that differential validation, even if a good idea,
was not feasible (Br. 82-84). IP bases that position on the fact that
there were only a handful of blacks in maintenance jobs (id. 83—84).
If by taking this position, IP wishes to concede that the purported
validation of Wonderlic and Bennett for a number of production jobs

22/is not material to the narrow issue in this appeal, we would 
heartily endorse that suggestion and proceed to a closer examination 
of the validations for maintenance jobs alone.
^~/ if it is material, of course, then the Court must accept plain­
tiffs' unanswered suggestion that IP could have separately tested 
black production workers (main Br. 68-69). It then follows that IP defaulted on its legal burden.

-24



5. Does the maintenance test battery predict success in maintenance jobs?
After reviewing all of IP's arguments, the Court must clearly 

answer this question in the negative. Most obviously, the Minnesota 
test has not been shown predictive of anything (main Br. 67), and it 
forms an integral part of the battery. As to Wonderlic, a 12-minute, 
50-question speed test of verbal and language skills, the somewhat 
spotty results (A. 1466a-1467a) inevitably focus attention on the 
Bennett.

One common-sense commentary on the Bennett test requirement 
emerges from an analysis of the "expectancy charts" attached to Dr. 
Tiffin's validation survey (A. 1471a-1508a). (See explanation at 
A. 752a-754a). According to IP's own data on this concurrent valida­
tion study (testing employees who already hold the jobs), one can 
determine how many of the incumbents in the sample would pass the 
test now required for their own jobs. For the Bennett test, in seven 
of the nine maintenance samples studied, roughly half or more of the
incumbent journeymen could not now qualify for the apprenticeship23/
program. Since there is no suggestion that half or more of IP's 
craft workers are incapable of performing their jobs adequately, the
±A/ The following table summarizes these data, showing the percentage of incumbent maintenance workers whose Bennett scores fall below theminimum scores of 45 (Form AA) or 37 (Form BB) (A. 1463a):

Mill Job (s) # in Sample % Failing
Springhill Electrician 20 40-60 %Springhill Millwright 21 60-80 %Georgetown Machinist, etc • 21 40-60 %Camden Welder, etc. 23 40-60 %Panama City Carpenter, etc • 5 40-60 %Springhill Carpenter, etc • 16 80 %Natchez Carpenter, etc • 18 40-60 %
Source: A. 1490a, 1492a-1497a ; see A . 754a-765a. These incumbentsapparently originally entered their jobs without having to pass theBennett, with its present high passing score.

-25-



Bennett test is manifestly not a necessary screening device. cf.
EEOC Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.3(b).

6. The company has failed to prove its tests valid
Perhaps sensing that the present record will not support a find­

ing of test battery validation, IP refers to the Georgia Power 
decision, in which this Court remanded in effect to give the company 
a second chance under the newly-articulated standards, 474 F.2d at 
917-918. Plaintiffs note the history of that testing program on 
remand. On April 1, 1973, Georgia Power Company suspended all test­
ing, and on January 31, 1974, the district court entered a final 
decree permanently enjoining the use of any testing program not first 
validated in accordance with the EEOC Guidelines and this Court's 
decision. 7 EPD ^9167.

Plaintiffs urge a similar result here without delay. This Court 
should direct IP to suspend all testing unless and until it can 
shoulder the burden of validation under proper standards which it has 
not yet even approached.

IV. IP's Brief Fails To Rebut Plaintiffs' Showing That It 
Unlawfully Excludes Blacks From Maintenance And Super­visory Positions.

A. Maintenance Positions
IP's brief makes no direct attempt to refute plaintiffs' argu­

ments that they proved discriminatory exclusion of blacks from main­
tenance craft positions. IP does not dispute plaintiffs' showing of 
historical and statistical patterns of racial exclusion (main Br. 20- 
21; cf. IP Br. 27-31). It does not dispute the existence of the 29 
year age limit which, standing alone, effectively locks out ACs from 
the crafts (ib.) . It quibbles confusingly and inaccurately about 
the education requirement (IP Br. 28 n.21, see infra), and with

-26-



certain details of the testimony of the AC witnesses who testified
about their efforts to obtain maintenance positions (main Br. 21-22,24/
cf. IP Br. 29-31). It stresses the immaterial fact that at the 
Jackson conference OFCC blindly failed to see any discrimination in 
maintenance jobs (IP Br. 29, main Br. 71, n.92) see part 1(A), supra.
In fact, IP offers no substantive defense to its practices in regard 
to craft jobs except that the maintenance test battery was non-dis- 
criminatory. IP's defense does not even begin to address the burden 
assigned in such cases by the court's opinion in United States v. Hayes 
International Corp., 456 F.2d 112, 120 (5th Cir. 1972), to show that 
qualified blacks are unavailable.

We argue elsewhere that the maintenance test battery violates 
the Title VII rights of the plaintiff class. Here, we note only two 
points about the tests. First, it is strange indeed that IP should 
contest the fact that the test battery has a disparate adverse impact 
on blacks, while not disputing the facts showing their near-total 
absence from craft jobs and not explaining that absence on the basis 
of any requirement other than the tests. Second, this Court can and
must reach the non-test issues presented by the maintenance problem,

/whatever its ruling on the tests. Not to reach those issues would 
leave intact several discriminatory devices that, wholly apart from 
the tests, would severely handicap blacks seeking to enter maintenance
jobs.
24/ ip~s points fail to meet the thrust of the testimony. Although 
Louis Robinson was no longer interested in becoming a welder at the 
time of trial (A. 938a), he certainly was an active candidate when IP 
rejected him in 1968 (A. 935a-936a). (Cf. IP Br. 30). While IP takes 
Dave Houston to task for failing to exercise Jackson Memorandum rights 
to transfer to a mechanical job (IP Br. 31), it fails to note that the 
1968 Jackson Memorandum did not give ACs any rights whatever for craft 
positions (main Br. 20 and n.34). Griffin Williams' testimony does show 
that he was excluded from maintenance jobs because, although he passed 
the Wonderlie and Bennett tests, he failed the Minnesota Test (A. 1017a- 
1018a). It also shows that IP would not in any event consider him because he was over 29 years old (A. 1335a).

-27-



IP's assertion that a high school education is not a requirement
for maintenance jobs (Br. 28 n.21) contradicts its own prior sworn 
statement to the contrary (IP Answers to Plaintiffs' First Interroga­
tories, Ex. H) . The cited testimony (A. 1141a-1142a) states that the 
apprenticeship standards do require a high school education, but pass­
age of the tests would be deemed acceptable in lieu of the educational 
requirement. If the tests are modified or struck down, the educational
requirement would remain. Likewise, this Court must also deal with

25/an age requirement that serves to screen out 100% of the ACs.
This Court has recently struck down both a high school education 

requirement and an age limit of 25 or 29 years as restrictions on entry 
into apprenticeship programs, on a record substantially identical to 
that presented here. Pettway v. ACIPCO, supra at 238-239, 245, 250. 
There the court held, with respect to ACIPCO's apprenticeship program, 
494 F.2d at 239,

The historical formal exclusion and the statistical and 
testimonial evidence demonstrating disproportionate 
exclusion of blacks by the testing and educational re­
quirements, when combined with the continuing use of 
the high school education or its equivalent standard 
and the present age requirement and lengthy apprentice­
ship term, constitutes not merely a prima facie case, 
but conclusive proof of present effect from past dis­
crimination. (footnotes omitted)

The Court has by now become familiar with the pattern prevalent 
throughout this Circuit of industrial employers who reserve maintenance 
and mechanic positions for whites only. See, e.g., Pettway v. ACIPCO, 
supra; Buckner v. Goodyear Tire & Rubber Co., 339 F. Supp. 1108 (N.D.
£2/ The age requirement was shown to bar ACs from maintenance jobs. 
Pi.Ex. 6 (A. 1402a) indicating that 8 whites but no blacks were 
rejected in 1970-1971 because of age (see IP Br. 75 n.70), does not 
prove the contrary. A number of black witnesses were prevented from 
competing for vacancies when Personnel officials eliminated them because of their age (main Br. 22 and n.37).

-28-



Ala. 1972) , a f f1 d 476 F.2d 1287 (5th Cir. 1973) ; Johnson v. Goodyear 
Tire & Rubber Co., supra; Franks v. Bowman Transportation Co., supra.
IP has clung to this traditional pattern with unusual tenacity. The 
time has now come to declare that employers in this Circuit, as exem­
plified by IP, must open these highly sought after jobs to blacks on 
an equal basis. This Court should order IP to take down its discrimi­
natory barriers and take other appropriate affirmative action including 
a specific requirement for promotion and hiring of a representative 
number of black craft workers within a specified time period.

B. Supervisory Positions
IP's argumentative technique on the supervisory job issue seems 

to be to confuse and obscure the facts as much as possible. Thus, 
it claims there are two straw bosses and one supervisor who are black 
(IP Br. 33), when in fact, as IP well knows, straw bosses are not 
supervisors but hourly paid union members, and the single supervisor 
is only a part-time relief man on that job, as IP elsewhere admits 
(A. 373a-374a, IP Br. 90-91). Again, IP calls the cited record "barren 
of any testimony whatever to support plaintiffs' contention that the 
company had no intention of considering blacks for promotion to super­
visor in the future." in fact, the cited record reads as follows:

Q. Are any black employees presently being considered for supervisory material?
A. [Mr. Carrie] Not to my knowledge.

(A. 375a, 376a). Mr. Carrie was then Personnel Director of Mobile Mill.
At its most obfuscatory, IP argues that there has been no proof 

of any vacancies in line (non-professional) supervisory positions since 
1965 (Br. 33, 88-91). IP implies, but with considerable art does not 
state, that there were in fact no such vacancies. In fact, the record 
makes clear that such vacancies must have been numerous.

-29-



Pi.Ex. 2 (A. 1389a), on which IP's discussion is based, shows
IP's supervisory staff only by date of original hire. That exhibit 
does not purport to show when persons who were hired as production 
employees and later promoted to management first reached the super­
visory rank. Since IP's practice, as to such persons, is to require 
that they spend a substantial period in hourly positions before pro­
moting (Br. 90) , it is not surprising that no one hired as an hourly 
worker since 1965 had by 1972 become a supervisor. It does not, how­
ever, follow that there were no promotions of any hourly paid employees 
to supervisory levels since 1965.

All the evidence points to a contrary conclusion. Exhibit E-4 of
IP's Answers to Plaintiffs' First Interrogatories shows a total of 55
exempt salaried employees who are line supervisors in the production
departments and whose initial salaried job was first line production

26/supervisor or supervisor trainee. These men promoted from hourly ranks 
- the exhibit does not show when. It strains credulity to imply, as 
IP does (without so stating), that none reached management ranks after 
July 2, 1965. Once again IP, with full possession of all the facts 
in its records, has chosen not to reveal all the pertinent information 
while arguing that plaintiffs' partial - and strongly suggestive - data 
does not really mean what it plainly indicates.

IP offers no defense to plaintiffs' argument that its system for 
selecting line supervisors is a classic model of discrimination (Br.
26-27, 77-78; Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972)). 
Instead of showing any business necessity or even any legitimate ratio­
nale for that system, IP relies on a "common knowledge" not reflected

Maintenance supervisors are not included in this figure.
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in the record (Br. 90) . it is not within plaintiffs' "common knowl­
edge to divine why IP has never had a full time black supervisor at 
Mobile Mill, unless the knowledge referred to is awareness of the 
caste structure of employment at the International Paper Company.
And in this Court, such "common knowledge" cannot substitute for 
record evidence.

In Pettway v. ACIPCO, supra at 241—243, this Court reiterated 
the principles it first enunciated in Rowe, condemning a subjective 
system for supervisory promotions. The Court remanded the issue in 
Pettway only because of evidence that ACIPCO had recently begun to 
strive to promote blacks to supervisory ranks (id. at 242-243 and n.81) 
and because it was possible that illegal testing (since discontinued) 
had been the sole cause of the exclusion of blacks (id. at 243). The 
record here presents no such problems. IP had no intention of 
changing its ways, see p. 29, supra, and the supervisory test had no 
precise application and no specifiable effect (A. 371a-372a).

The question here is why, among IP's hundreds of loyal and long­
time black production workers, none has reached supervisory positions. 
The answer can only be race. The remedy must include a mandatory 
injunction and affirmative remedial measures to assure the promotion 
of qualified affected class members to supervisory positions.

v- Under Recent Controlling Authority the Court Must Award Plaintiffs Class Back Pay.
Since the submission of appellants' main brief, this Court has 

entered a series of landmark decisions clarifying its conviction, 
previously announced in United States v. Georgia Power Co., supra, that 
class back pay is an appropriate and necessary component of Title VII 
relief. Johnson v. Goodyear Tire & Rubber Co., supra; Pettway v.

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ACIPCO, supra; Duhon v. Goodyear Tire & Rubber Co., 494 F.2d 817
(5th Cir. 1974); Franks v. Bowman Transportation Co., supra; Baxter
v. Savannah Sugar Refining Corp., supra. The standard in this Circuit
is now clearly the same as that cited in our main brief (at 80-81) and

27/previously articulated by the Fourth and Sixth Circuits.
This Court's recent decisions specifically refute each of IP's 

feeble arguments against a back pay award. Neither the subjective 
reasons why IP continued to discriminate nor the purportedly unsettled 
state of the law can provide any defense to back pay.

Whether an employer is beneficent or malevolent in 
implementing its employment practices, the same pro­
hibited result adheres if they are discriminatory; 
economic loss for the class of discriminatees. In 
Title VII litigation, neither benign neglect nor 
activism will be judicially tolerated if the outcome 
of such practices is racially discriminatory and 
results in monetary loss.

Baxter, supra. Slip Op. at 4382. See also, Johnson, supra, at 1377; 
Pettway, supra, at 255-256. IP cannot defeat liability by alleging
good-faith reliance on OFCC determinations (IP Br. 95), see part I(A),28/
supra. IP's attempt to elevate the weak and erroneous administrative 
advice of OFCC —  not the Title Vll-designated agency, EEOC —  to the 
level of state law, as a "special circumstance" justifying denial of 
back pay (Br. 97), does not even merit further argument in light of
/// "... [W]here employment discrimination has been clearly demonstra­
ted, employees who have been victims of that discrimination must be 
compensated if financial loss can be established." Johnson, supra, at 1375.

"Once a court has determined that a plaintiff or complaining class 
has sustained economic loss from a discriminatory employment practice, 
back pay should normally be awarded unless special circumstances are present." Pettway, supra, at 252-253.
28/ In Pettway, the company unsuccessfully argued that it should not 
be held to back pay liability resulting from OFCC-approved testing 
practices, both in its initial brief and in its rehearing petition, which was denied (494 F.2d 1296).

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the "special circums tances" discussion of Johnson (491 F.2d at 1377)
and Pettway (494 F.2d at 253-254).

Johnson, Pettway, and Baxter establish detailed guidelines for
the further proceedings necessary here to determine the scope and

2 9/
amount of appellees' back pay liability. The district court should be 
directed to adhere to these standards. At least one separate, bifur­
cated proceeding will be necessary, £f. Baxter, supra, at 4382. In 
that proceeding, the district court must follow the procedures with 
regard to allocation of burdens of proof, elements forming the basis 
for any award, and resolution of uncertainties, adopted in Johnson,
Pettway, and Baxter. This Court should instruct the court below to30/ 
do so.

VI. The Union's Argument That The District Court Did Not 
Erroneously Raise Prior Litigation In Bar To This 
Action Is Contrary To This Record And To The Union's Position In Related Litigation.

Defendant UPIU has chosen for its major thrust to exhort this
Court not to reach the substantive merits of plaintiffs' claims, by
strenuously supporting the district court's application in bar of the

31/
Herron-Fluker litigation (UPIU Br. 12-35). Defendant IP, evidently
2.9/ Of course, as noted in Johnson, supra, 491 F.2d at 1381-1382, the 
union appellees must share in this liability since they participated in perpetuating the discrimination.
30/ Perhaps sensing the weakness of its back pay argument, IP has pre­
maturely raised issues as to the statute of limitations (Br. 92n.89).
If this Court chooses to rule on that question, we submit that the 
correct limitations period is obviously the two (2) year period prior 
to the filing of EEOC charges, as explicitly stated in Section 706(g) 
of the Act, 42 U.S.C. § 2000e-5(g). To the extent that Georgia Power 
may imply a shorter period, it is inapplicable because it was initially 
decided prior to the 1972 amendments to Title VII which added the two 
year statute to § 706(g). As all the cases hold, the applicable period 
is tolled under both statutes by the filing of EEOC charges.
31/ The remainder of the UPIU brief is a perfunctory seniority argument, 
based entirely upon unsubstantiated generalities (Br. 3 5-41) , in which even UPIU apparently does not seriously believe, see part B, infra.

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more cognizant of this Court's insistence on painstaking factual
32/review of records of industrial discrimination, merely nods toward 

the union's Herron-Fluker argument but does not press it at any length 
(Br. 40).

A. The UPIU Argument Rests on Faulty Characterizations 
and Assumptions

The union's res judicata argument rests on serious factual dis­
tortions relating to both appellants' position and the Herron-Fluker 
record and fails completely to address the bulwark of plaintiffs' 
legal argument.

UPIU has attempted to confuse and distort the facts concerning 
what Herron-Fluker did and did not decide. The defendant pulls iso­
lated lines, fragmented findings, and particular statements - all out 
of context - from a lengthy record. UPIU would have this Court attri­
bute talismanic significance to those few words. But reality dashes 
UPIU's hopes: a review of the basic documents from Herron-Fluker (set
out at A. 1881a-1948a) clearly demonstrates that UPIU's carefully

3 3/edited selections are more artful than meaningful. Compare, e.g.,
UPIU Br. 22-24 setting forth a few of the Herron-Fluker plaintiffs'
32/ cf. Johnson v. Goodyear Tire & Rubber Co., supra; Pettway v. 
ACIPCO, supra; Franks v. Bowman Transportation Co., supra; Baxter v. 
Savannah Sugar Refining Corp., supra.
33/ Plaintiffs do not contend, and never have contended, that no word 
was breathed in Herron-Fluker about the underlying IP-UPP practices 
of employment discrimination. Rather, we pointed out that such dis­
cussion was necessary background to the real subject matter of that 
suit - union-representation discrimination (Br. 35).

At the heart of the matter, the Jackson Memorandum's factual and 
legal sufficiency was not in issue in Herron-Fluker (see colloquy set 
out at UPIU Br. 19), but Stevenson centers on that question. Thus, 
in comparing the Jackson Memorandum to the Local 189 principle, the 
Herron-Fluker plaintiffs' counsel obviously did not and could not 
maintain that such a solution necessarily ends all of the discrimina­
tion's effects. See appellants' main Br. 43-44.

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proposed fact findings, which mention the "Jackson Agreement" and
related seniority provisions, with those plaintiffs' proposed legal
conclusions and post-trial prayer for relief, which concern only
union-representation issues (A. 1927a-1929a). UPIU has conveniently
omitted any mention of the latter.

A full review of what plaintiffs actually sought to litigate or
could have litigated in Herron-Fluker (see main Br. 32-36) - as opposed
to what UPIU says they did - will strongly confirm that this case is
correctly characterized as "a completely different cause of action"
from Herron-Fluker (id. 37). Nor is this characterization any product
of tardy or result-oriented reformulation. Even in their prayer for
limited relief in Herron-Fluker, the plaintiffs expressly noted to
Judge Pittman the pendency of Stevenson, "in which a broadened class
of plaintiffs challenges the alleged unlawful employment practices of
the company and the union throughout the Mobile plant" (A. 1928a, n.1).

This Court should not be misled by UPIU's attempts to confuse
34/the record as to plaintiffs' positions here and in Herron-Fluker.

Nor can it fail to pierce through UPIU's argumentative technique, in
characterizing the Herron-Fluker decision, of lumping what is obvious

35/and uncontested together with what is wholly unsubstantiated.
*2/ UPIU's effort to infer that present counsel did not know what 
Herron-Fluker involved (UPIU Br. 13-16) is utterly unfounded. Colloquy cited infra indicates that counsel had carefully reviewed the Herron- 
Fluker record, except for the transcript which had been unavailable 
to them (A. 282a-283a). After they had read the transcript, it only 
reaffirmed their position and their prior understandings.
35/ E.g., UPIU asserts,

"the Herron-Fluker decision is clearly res judicata as 
to the issues of fl] union merger, [2] processing of grievances, [3] promotion, and [4] seniority, as well 
as [5] any individual claims of black employees who 
worked within the former Papermaker jurisdiction."

[fn cont'd]
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Finally, this Court must reject UPIU's facile assertion that 
Judge Hand did not really take Herron-Fluker to bar plaintiffs' case 
(UPIU Br. 12, 16-18). in fact, the court below allowed plaintiffs to 
put on most of their evidence only after long and often heated collo­
quy (see, for example, A. 182a-185a, 218a-225a, 349a-365a, 506a-509a). 
It refused to allow some evidence into the record and refused to 
accept proffers pursuant to Rule 43(c), F.R.C.P. It indicated that 
in allowing such evidence it was only permitting plaintiffs to make 
their record and repeatedly interjected its viewpoint that Herron- 
Fluker barred consideration of numerous issues (see A. 218a, 349a-351a, 
506a—509a, 526a—527a). UPIU's characterization of these proceedings, 
wherein it states,

It was only after the trial that the issue of res 
judicata was resurrected when Judge Hand realized 
that his initial reaction was the correct one and 
that he could have granted the summary judgment motions before the trial (Br. 17)

seriously understates the degree to which the district court's treat- 
of the res j udicata issue blocked a full consideration of the 

merits of appellants' claims.
Wholly apart from its factual and argumentative distortions,

UPIU's res judicata argument completely misses the point of plaintiffs' 
legal position. UPIU assumes that Herron-Fluker presented the same 
cause of action as this case. its statement in support of that assump­
tion is vague and generalized (UPIU Br. 30-31). if that assumption 
fails, as we urge it must (Br. 35—37), then all the authorities cited 
35/ cont'd
(UPIU Br. 32; bracketed numbering added.) This distorts matters: 
plaintiffs have never disagreed as to [1] and [2], but the sweepingly 

items [3] , [4] , and [5] are without substantial record evidence.Such an unfounded melange scores no points. Similarly, see upiu Br.
35 (item (1) was obviously disposed of by Herron-Fluker; item (7). 
understood broadly as UPIU intends, equally obviously was not).

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by UPIU in its Brief (at 26-30) are inapplicable or, indeed, support
plaintiffs' position. We need not reiterate our argument on this
point, since our original brief still stands untouched as a reply to
the ill-founded UPIU argument (see main Br. 37-40).

B. The UPIU Position Here Contradicts Its Position In Related Litigation
The UPIU position on Herron-Fluker and the merits is all the 

more surprising because it flatly contradicts the position recently 
taken by UPIU in a similar case now pending before the Eighth Circuit, 
both in letter and in spirit.

In that case, Rogers v. International Paper Co., et al., (W.D.
Ark. No. PB-C-71-47), UPIU also found itself defending an across-the-
board Title VII action along with co-defendant local unions and IP.
The same seniority system, embodied in the same collective bargaining

36/agreements, and the same 1968 Jackson Memorandum were at issue. in
Rogers, however, UPIU conceded that the seniority system (as well as
other company practices including hiring, testing, etc.) were dis-

37/criminatory as of March, 1972, the time of trial. See UPIU brief on 
appeal, 8th Cir. No. 74-1115, filed May 21, 1974 (by other counsel), 
pp. 3-6.

In its brief to the Eighth Circuit, UPIU reviews at length its
. . . 38/admissions as to continuing discrimination and necessary remedies.

-5̂ / IP's Pine Bluff Mill, the situs of that litigation, is, like Mobile 
Mill, part of the Southern Kraft Division and controlled by Division­wide policies (A. 186a).
37/ UPIU agreed to settle Rogers with the plaintiffs on that basis, 
with plaintiffs making some concessions in the nature of relief sought 
from the UPIU unions. When the trial court rejected this agreement, 
and following trial entered an award of attorneys' fees against UPIU, the union appealed.
38/ UPIU agreed, on March 22, 1972, that:

2. The parties to this Settlement Agreement recognize 
that some provisions of the current and past collective

-37-



UPIU then argues to the Eighth Circuit that its candor and coopera­
tiveness in going to the merits of plaintiffs' claims, admitting 
their justness, and working together with plaintiffs to reduce ongoing 
discrimination, should mitigate against the monetary liability of UPIU. 
The union there notes,

Surely there is legal, moral and practical value to an 
agreement by a civil plaintiff and defendant that the 
law has been violated and that certain remedial measures 
are necessary. The agreement, as contrasted with contin­ued obstinance, must entitle such defendant to some con­
sideration in the cost of that remedy.

★ ★ ★

The conduct of UPIU here has been dramatically prefer­
able to that of the unions in other cases in which courts 
reduced or eliminated their monetary responsibilities.Here this appellant, sharing responsibility for the past 
discrimination in only the most general sense, neverthe­
less recognized and assumed its duty to remedy that 
discrimination.

UPIU Rogers Br. 13, 15.
The inconsistency of UPIU's position before the Eighth Circuit 

with Part II of its argument here (Br. 35-41), wherein UPIU urges that 
this Court find nothing wrong with the post-1968 seniority system or 
38/ cont'd

bargaining agreements as well as some practices which 
have arisen from the collective bargaining relationship 
between the defendant employer and [UPIU] are of a kind 
which courts have found to violate the obligations of 
Title VII of the Civil Rights Act of 1974 [sic], inclu­
ding but not limited to testing requirements, age 
requirements, discrimination in accessibility to appren­
ticeship programs, hiring and promotion practices based 
initially on race and locked in by the effects of a 
seniority system, and failure to enforce an objective 
system of job opportunity. [emphasis added]

UPIU Rogers brief at 4. As a remedy, UPIU agreed to seek, through 
collective bargaining, a promotion/transfer system giving far greater 
opportunities to black employees, including, inter alia, plant-wide 
posting of job vacancies; the counting of temporary or permanent time 
spent on a job toward satisfaction of requirements on all functionally 
related jobs (cf. the McCreedy Letter); job skipping where feasible; 
and minimizing of training periods, id_. at 4-5.

-38-



the Jackson Memorandum, is troubling on two counts. First and most 
simply, it undercuts UPIU's position on the merits here. But perhaps 
more significantly, the Eighth Circuit brief illuminates the union's 
Herron-Fluker argument. it appears that in the later-tried Mobile 
case, having previously recognized the illegality of its practices,
UPIU decided to seek desperately to stop the courts short of a decision 
on the merits. Thus, it chose below to "fight to the judicial death" 
(UPIU Rogers Br. 15) by forcing plaintiffs and the courts to expend 
"useless effort on discredited defenses" (UPIU Rogers Br. 13). it 
continues here to try to block judgment on the merits by asserting 
Herron-Fluker as a procedural bar.

In this situation, the Court must approach UPIU's res judicata 
argument with considerable skepticism. it is at best an insubstantial 
procedural barrier thrown up to avoid the merits, and at worst, per­
haps, an unfortunate attempt to hide from judicial review a job system 
perceived and acknowledged to be contrary to law.

Conclusion
This Court knows how to cut through the detailed and technical 

controversies presented by cases like this one to arrive at the heart 
of the matter. Only recently it held,

We refuse to engage in a futile discussion of de facto 
or de jure schisms which now range in the public domain.
Our concern is with the results of an employer's actions and relief which effectively eradicates those results if 
they are discriminatory. It is apparent that regardless 
of the motive or intent of an employer in implementing 
his employment practices, Title VII looks to the conse­quences of his acts.

Johnson, supra, 491 F.2d at 1376-1377 (footnotes omitted). This Court 
must not let the highly complex and technical factual controversies 
that rage through the parties' briefs to obscure the cardinal point.

-39-



The employment conditions of most class members at Mobile Mill 
have not significantly improved. The defendants and the district 
court have failed to rectify that result. This Court must at last 
assure plaintiffs their remedy.

Respectfully submitted,

JACK GREENBERG 
MORRIS J. BALLER 
CHARLES S. RALSTON 10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants

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CERTIFICATE OF SERVICE

I hereby certify that on this 11th day of July_____,
1974, I served a copy of the foregoing for appellants upon the 
following counsel for appellees by mailing same to them at 
their addresses via United States Mail, postage prepaid:

R. F. Adams, Esq.
Brock B. Gordon, Esq. 
P. 0. Box 1988 Mobile, Alabama 36601

Ms. Margaret Poles EEOC General Counsel Office 
1800 G Street, N.W. 
Washington, D. C. 20006

Benjamin Erdreich, Esq. 
John C. Falkenberry, Esq. 
409 North 21st Street 
Birmingham, Alabama 35203

James D. Hutchinson, Esq.1250 Connecticut Avenue, N.W. 
Washington, D. C. 20036

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