# Appendix — Albemarle Paper Co. v. Moody > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0184%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1975 - **Citation:** 422 U.S. 405 ## Text VOLUME I (In two volumes) Pages |-Bupreme Court, U. S. kiLED FEB 13 1975 APPENDIX | MICHAEL ROWAK, JR., C! ERK | Jn the Supreme Court of the United States OctToBER TERM 1974 No. 74-389 No. 74-428 ALBERMARLE PAPER Co., Petitioner Vv. JoserH P. Moopy, ET AL. HALIFAX LocAL 425, PAPERMAKERS AND PAPERWORKERS, Petitioner V. JosepH P. Moopy, ET AL. ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PETITIONS FOR WRITS OF CERTIORARI FILED OCTOBER 7, 1974 AND OCTOBER 15, 1974 CERTIORARI GRANTED DECEMBER 16, 1974 In The SUPREME COURT OF THE UNITED STATES OctToBer TERM 1974 No. 74-389 No. 74-428 ALBERMARLE PAPER Co., Petitioner v. JoserpH P. Moopy, ET AL., Respondents HA viFaAx Loca 425, PAPERMAKERS AND PAPERWORKERS, Petitioner v. JoserH P. Moopy, Et AL., Respondents ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT INDEX App. Page I areata 1 Complaint Filed August 25, 1966 | .......0.0..0.0..00.-.. Be ed A Ae ce 6 Plaintiffs’ Memorandum in Opposition to Motion for Summary Judgment, filed November 22, 1966 ...0.....22......-2-c.ccccceeceeeeeeeees 11 Memorandum Opinion and Order, filed July 6, 1967 —............ 16 App. Page Answer, Albemarle Paper Company ensctusorle filed July 26, EEE ccntencdsnneeunntcihishnsadibccsieneiaiaiibeagitats 21 Answer, Halifax Local No. 425, filed July 28, 1967 ..................... 25 Letter from Francis V. Lowden, Jr. to The Honorable John D. Larkins, Judge, filed Jume 12, 1970 ...............-....-ceccessseesenensesees 28 Opinion and Order on Motion to Add or Join, filed September ne 30 Amended Order, filed October 15, 1970 202............cccceeceecceeseeeeeeseeees 40 Answer and Cross-Claim, Ethyl Corporation, filed December 28, STD axcssscecsiecenssnopesatatagecentcieesmitainaticisinamneiiaiaiadanitiniahitaiiamniiansiiis 41 Order on Supplemental Interrogatory, filed May 28, 1971 ............ 44 Order on Supplemental Interrogatory and Designation of the 0 45 Order on Communications with Class Members, filed June 18, BG cccessincninnssrieieenantninntiicamnnsinnmatnnsinanmnnnpimneamttes 48 Order on Notice to the Class, filed July 8, 1971 -...............--.---.-.--. 50 Notice to Class Members (Exhibit A to Order of July 8, 1971) .. 53 Motion for Leave of Counsel of Plaintiffs to Communicate with Class Members, filed July 14, 1971 ..............-.cc.ccecceccescesesseneeens 57 Motion for Clarification, filed July 14, 1971 -.20.....--...-..-ce-ececeeeeee 64 Motion for Severance and the Appointment of a Master, filed Jey 246, BGP nana nncacnnnnncecrncecseseeeecensnsecessssnecsennsnensecenensnanaceosneees 68 Proofs of Claims, filed July 15, 19, 21, 23, and 26, —— 70 ~ "°°. —2""* ever eer rR a fe eg em App. Page Stipulation of Facts, filed July 26, 1971 ............... 86 Trial of the Action held before the Hon. F. T. Dupree, U.S. District Judge for the Eastern District of North Carolina, Wilson Division Commencing on July 26, 1971 at Raleigh, North Carolina : I sisccanilicccapnietcbceressctsttitancicaitiinintppimaatitiitcmemmenians. “113 Colloquy between the Court and Counsel [Tr. 11] ................ 114 Testimony of James Alfred Jones I I bitin hia Abi inhi ataaicaesii pineal cteaseamiasinalode 119 Cross, Defendant Employer (DE) [169] .........000...0000.000..... 125 Testimony of Ethoria Jones I MINE ecclsistciieliincellhcescibesiecdecstia i bihilabaliaddaierhieiiiahi 126 I 127 Cross, Defendant Union, (DU) [202] -..0...0.0.0000eccecceseeee 127 Transcript of Proceedings Held Before the Hon. F. T. Dupree, Jr., U.S. District Judge for the Eastern District of North Carolina, on July 27, 1971: IIIT: ss ntbsssctiiniasedineseescesessesihecsithinichatneaitanitinidiiainiiiaabnnieniosabbicl 128 Testimony of Philmore Taylor a 128 Testimony of Mack Coy Boone SUTNTEE TPPUEE cstceicsinedennpensictinneieeiibentnesinnesnnstdsssskenassenennsstsieteeessuns 129 UI HINTED IIIT -adsricettiddibinshdciemnasinnittcanenitnipiatteibiniatiisiadttateeneee 129 Testimony of David Harding SRE, CITT osedhictnsccesnstnccienscnsntsinicntsntiiiisntenssaseneiemnenssanssanineensits 129 BY I CREED eeceeiseiscivcitencnnceianiestibninindestincemateretnsinnsiennin 130 Testimony of Johnny Easter IE IED sitieidithanttncncnncintileiditinnsensisuistiiciignasactincstiinemeetniagnitiit 130 Re a 130 App. Page Transcript of Proceedings Held Before the Hon. F. T. Dupree. Jr., U.S. District Judge for the Eastern District of North Carolina, on July 28, 1971: RGROUTEIED cxscecrccsisiersemsvecssstinoniammninnnnamti .. 132 Testimony of David Mills (upon oral deposition) [389] ........ 132 Testimony of Arnold Brown (upon oral deposition) [463] .... 142 Testimony of Curtis V. Bullock (upon oral ence ee eee Le 148 Testimony of John E. Bryan, Jr. (upon oral deposition) FTG acxceevsceosesecsioencunnsieesssemneinssessbtnietininsssshaiennsinaninsinniaiannn 148 Transcript of Proceedings Held Before the Hon. F. T. Dupree, U.S. District Judge for the Eastern District of North Carolina on July 29, 1971: AGBEEIETIIED cciccrcrnsvininiinsinmintaie . 150 Testimony of Ernest Garner Cope, TORE BERTIE cccccncerccscsscsstnsdsctnsiasatescshinaibedanassitainel . 150 | ee eee . 151 Testimony of Willie H. Mason SUROEE BEIGE ceeseisccscnnnisrseseepnicnesineeeesineannaanaaaads 152 Coen, TORE FTE ccccesssscssenessstsiticensvchinionstiainsiinieaiamaiiiel 152 Cran, TIE) FEI oncccsccccssisnsstsctsisninionestissivensnninnsanaimaaaniaiatn 153 Testimony of Theodore Daniels (upon oral deposition) BT) oaxcesencescesesocqnesetenssinsesesiiedesnnmnseaiasaianmiiaaaannn 154 Testimony of Henry Hill (upon oral deposition) [708] ........ 155 Testimony of Arthur Mitchell (upon oral deposition) [717] . 156 Testimony of Clarence High EIRIOES FFGEE 8 .-..-..csvesrsessntsiniininsnscestenaianersaiedmaae 157 Testimony of Nicholas C. Vrataric (upon oral deposition) FERIA | ..conscnsctesnussevenvesseneneieesennapenteieiseninienssienelenieninsaaannnnannnnn 157 App. Page Transcript of Procedings Held Before the Hon. F. T. Dupree, U.S. District Judge for the Eastern District of North Carolina on July 30, 1971: IT cde ctaineemanencignneevgneenenesmansenesarenesenssentes 160 Testimony of Dr. Joseph Tiffin I caida crreregtaibtemmenensenccnanencnmeanvemnensanesanen 160 EE ee 173 Testimony of Edward C. Moore, Jr. (recalled) ES 185 i ta catgetpeeemenmnntapeivensasinemmenenmeem 188 Testimony of John E. Bryan, Jr. a 192 Testimony of Dr. Richard Barrett ee nee 196 TT ee 207 Testimony of Dr. Joseph Tiffin (recalled) IT ITI ccrsitsitnseatmepenccnonmcanmepescessahecsnsansescssaeseneets 208 Testimony of John E. Bryan, Jr. (recalled) I STII "os ncesirecensasctbenenesmientnnsedassetuanesnesenasnmsenvocnseents 211 Ng 235 Transcript of Proceedings Held Before the Hon, F. T. Dupree, Jr., U.S. District Judge for the Eastern District of North Carolina on August 3, 1971: DATED cece qecceccccecesessvesecscccscossccczcvensaqesenescocsssessncenesesereeseeeee 243 Testimony of Edward C. Moore, Jr. (recalled) UIE TIED TIEN - cscnssninesenssensensenmnssnqssasensesnntassosescenstessueneoes 243 Eg ee 245 ee -_ ... 248 App. Page Testimony of John E. Bryan, Jr. (upon oral deposition) MTEL: Sessishbasinedistdvngpetasmnmnensnansicisidateesienndeeiadinianndiateliaitiagianiaiaiinath 249 Testimony of David Mills SUE: SUEY (TUTTE sscunvicsintsentibbanatisciubiialitencesinidianibembbucbsiadantn 253 Sn ter UII ‘sincstcihciceierinisnesepcnniieannigsleheatibiiigeédielinaddtamlatatdade 267 SEIT SUITED rsseciesipirnduseeeenenbietietiestnetamnsaibadsiaiaaabiaaaiaaaiic 268 Transcript of Proceedings Held Before the Hon. F. T. Dupree, Jr., U.S. District Judge for the Eastern District of North Carolina on August 4, 1971: SUID eccienisscrtratncctiounseneiitarenteinescsesninanceensemeanummntaticaniitin 270 Testimony of Warren Davis I NP I cenit cnadacea eee 270 Plaintiffs’ Exhibits : PPT saciniesiunipp timecode ahaa tater tc 273 PIP cesnisnisemnrnsdiinitusieinanentesionentianiiiaiteattabstiesinipa he iibcscenianias haltaet onli amie 283 eR EN I RI RE TD 286 SPIED \sncinvnenicnmiinanitignssansenetatiansiiciatiitinesuatebde tibienler i eee ae ane 291 PE seneasenianeatteresietnseniatiigsiiicichinaiaeieinniiitlal aati aie aaa eS eee 297 FAUT sencccieemnenenenanesmnsessnisiianciitiiliaiiicipiiisiiaaaln iia iii eae eats 301 SPURTE. f App. 49 to this court in writing with a designation of or description of all addressees and with a motion and proposed order for prior approval by this court of the proposed communication. The communications forbidden include, but are not limited to, (a) solicitation directly or indirectly of legal representa- tion of potential and actual class members who are not formal parties to the class action; (b) solicitation of fees and expenses and agreements to pay fees and expenses from potential and actual class members who are not formal parties to the class action; (c) solicitation by formal parties to the class action of requests by class members to opt out of the action under subparagraph (b)(3) of Rule 23; and (d) communications from counsel or a party which may tend to misrepresent the status, pur- poses and effects of this class action, and of any actual or potential orders herein which may create impressions tend- ing, without cause, to reflect adversely on any party, the counsel, the courts, or the administration of justice. The obligations and prohibitions of this order are not exclusive, and all other ethical, legal and equitable obligations remain unaffected by the order. Neither does the order forbid com- munications between any attorney and his client, or a pros- pective client, who has on the initiative of the client or prospective client consulted with, employed or proposed to employ the attorney. This June 18, 1971. /s/ F. T. Dupree, Jr. United States District Judge App. 50 In The UNITED STATES DISTRICT COURT FOR THE Eastern District of North Carolina Wilson Division [ Title Omitted In Printing] (Civil Action No. 989) ORDER [Filed July 8, 1971] Upon Consideration of the suggested forms of notice submitted to the court by counsel pursuant to the order of June 15, 1971, and other matters presently requiring the court’s attention, it is now ORDERED: 1. Notice (a) The notice to be given to the class affected by this action shall be in the form attached hereto and marked Ex- hibit A. (b) A copy of the notice shall be mailed by first class mail in the official envelopes of the Clerk of this court to each Negro employed at the Roanoke Rapids plant of Albe- marle Paper Company as of June 30, 1967, and to all Negroes employed at said plant after that date except those whose initial permanent positions were not job classi- fications limited to or predominantly staffed by Negroes. (c) The notice shall be published in the Daily Herald, a newspaper published in Roanoke Rapids, North Carolina, in its editions of July 8, July 12, July 15 and July 19, 1971. i App. 51 (d) Albemarle Paper Company shall post a copy of the notice on each of its bulletin boards in its Roanoke Rapids plant and keep the same posted for thirty days from the date of this order. (e) The cost of mailing and publishing the notices shall be paid by the plaintiffs but shall be taxable as costs against the losing party in the case. (f) Notwithstanding the provisions of the notice re- quiring filing of proofs of claim by July 22, 1971, the court will on or before August 6, 1971, entertain a motion by any interested member of the class for an extension of time in which to file claim upon a showing that the failure to file the claim timely was due to circumstances beyond the class member’s control. 2. Damages (a) In view of the ruling of the Court of Appeals for the Fourth Circuit in the case of Robinson y. Lorillard Corporation, No. 15,098, and related cases decided July 1, 1971, this court now rules that damages may be recovered in this action if the plaintiffs prevail. (b) It is hoped that the damage claims, if found to be allowable, may be heard and determined at the trial, but if such claims become too numerous or complicated, this phase of the case may be referred toa special master. 3. Attorney’s Fees (a) In the event plaintiffs prevail, it would appear from the Robinson case cited above that notwithstanding the language of 42 U.S.C. § 2000e-5(k), plaintiffs will be en- App. 52 titled to counsel fees as a matter of right absent a showing of such special circumstances as would render an award of counsel fees unjust. Counsel are directed to brief this ques- tion and be prepared to argue the same at the time of the trial. (b) In the event attorney’s fees are claimed, counsel for plaintiffs are directed to file with the court at the time of the trial upon the court’s request the details of any fee ar- rangement which they have with plaintiffs or anyone act- ing on their behalf, an itemized statement of their time and expenses incurred and the amount, if any, received on account to date and the source of same. 4. Stipulations (a) Counsel are directed to file with the court on or be- fore July 16, 1971, the stipulation of facts amd a pretrial order incorporating all matters referred to in paragraph 7 of the court’s memorandum of the conference of May 17, 1971. 5. Trial Briefs (a) Counsel are directed to file with the court trial briefs covering all anticipated questions of substantive, procedural and evidence law on or before July 16, 1971. This July 6, 1971. /s/ F. T. Dupree, Jr. United States District Judge App. 53 In The UNITED STATES DISTRICT COURT FOR THE Eastern District of North Carolina Wilson Division [ Title Omitted in Printing] (Civil Action No. 989) NOTICE OF PENDENCY OF CLASS ACTION [Filed July 8, 1971] (Exhibit A to Order of July 8, 1971) To: All Black Employees Of Albemarle Paper Company At Its Roanoke Rapids Plant In Roanoke Rapids, North Carolina, And All Members Of The Class As Herein Defined : Notice Is Hereby Given That: On August 25, 1966, a civil action was filed in the United States District Court for the Eastern District of North Carolina by Joseph P. Moody, Theodore Daniels, Henry Hill and Arthur Mitchell as plaintiffs seeing relief under Title VII of the Civil Rights Act of 1964. This law pro- hibits discrimination in employment on the ground of race, color, religion, sex or national origin. The defendants in the case are Albemarle Paper Company, a Virginia corpo- ration, Albemarle Paper Company, a Delaware corporation, App. 54 Ethyl Corporation, Hoerner-Waldorf and Halifax Local No. 425, United Papermakers and Paperworkers, AFL- CIO. On June 15, 1971, the court entered an order allowing the action to be prosecuted as a class action under Rule 23 of the Federal Rules of Civil Procedure, and the class was defined as (1) all Negroes employed at the Roanoke Rapids plant of Albemarle Paper Company as of June 30, 1967; (2) all Negroes employed at said plant after June 30, 1967, except those whose initial permanent positions were not job classifications limited to or predominantly staffed by Negroes; and (3) all Negroes who may hereafter apply for or be employed at said Roanoke Rapids plant who may be affected by the alleged racially discriminatory employ- ment practices of the defendants. Plaintiffs’ complaint seeks relief from alleged racially discriminatory practices and policies against black em- ployees and potential black employees who are, have been or may be employed at the Roanoke Rapids plant of Albe- marle Paper Company; relief in the form of back pay for any black employees who may be found to have been dis- criminated against because of race since July 2, 1965; an injunction against the use of or reliance on any tests and/or educational requirements not shown to be lawful in deter- mining qualifications for the employment and promotions of black employees at the Roanoke Rapids plant; and to have the court require the institution of a plant seniority system for filling job vacancies. The defendants have denied the material allegations of plaintiffs’ complaint and deny all liability. This notice in no way indicates any view of the court as to the merits of the action but is merely to advise you of the pendency of the suit and of your rights under it. App. 55 The case is set for trial in Courtroom No. 1, United States Courthouse, 310 New Bern Avenue, Raleigh, North Carolina, beginning at 10 o’clock a.m., July 26, 1971. Your rights may be affected by this action, and if you believe that you have been discriminated against by any of the defendants in employment opportunities at Albemarle Paper Company on account of race and have a lawful claim against any defendant by reason thereof: (a) the court will exclude you from the class repre- sented by the attorneys for the plaintiffs if you request exclusion in writing addressed to the Clerk of the United States District Court, Eastern District of North Carolina, P. O. Box 25670, Raleigh, North Carolina, 27611, and postmarked not later than July 22, 1971. If you elect to be excluded from the class, you will be free to pursue on your own behalf whatever legal rights you may have. (b) if you do not request exclusion from the class by July 22, 1971, you will be included in such class and any judgment, whether favorable or not, including any judgment approving any settlement of this action, will be binding upon you. (c) if you do not request exclusion from the class but prefer in connection with your individual claim to be represented by your own attorney rather than by the attorneys for the plaintiffs herein, you may enter an appearance through your attorney but not later than July 22, 1971. (d) in the event you are claiming damages of any of the defendants by reason of any alleged racially dis- criminatory practice, you must file your written proof of claim under oath with the Clerk of the U. S. Dis- App. 56 trict Court at the address shown herein stating the details of such alleged discrimination and the amount of damages you are claiming. Such claim must be mailed not later than July 22, 1971, or it will be for- ever barred. If you have any questions concerning this notice, you may write or call the Office of the Clerk of the United States District Court, P. O. Box 25670, Raleigh, North Carolina, 27611, Telephone No. (919) 755-4370. This July 6, 1971. /s/ F. T. Dupree, Jr. United States District Judge App. 57 In The UNITED STATES DISTRICT COURT FOR THE Eastern District of North Carolina Wilson Division [ Title Omitted in Printing] ( Civil Action No. 989) MOTION FOR LEAVE OF COUNSEL FOR PLAINTIFFS TO COMMUNICATE WITH CLASS MEMBERS FOR PURPOSES OF TRIAL PREPARATION [ Filed July 14, 1971] Plaintiffs move the Court, pursuant to its order entered on June 18, 1971, for entry of an order granting counsel for plaintiffs leave to contact, communicate, and discuss with actual and potential members of the class, for the pur- pose of adequately preparing plaintiffs’ case for trial. Communication with actual and potential class members is necessary to enable counsel for plaintiffs to discuss with class members the nature of their testimony at trial; to obtain and review testimony which may be helpful in pre- paring plaintiffs’ rebuttal testimony; to explain and dis- cuss on a continuing basis the status of the proceedings; to assist counsel for plaintiffs in reviewing evidence which may be helpful in the cross-examination of the defendants’ witnesses ; and to discuss back pay claims. As grounds for this motion, plaintiffs show the Court as follows: App. 58 1. On August 25, 1966, the complaint was filed in the instant case under Title VII of the Civil Rights Act of 1964 and the plaintiffs designated the action as a class ac- tion pursuant to Rule 23 of the Federal Rules of Civil Procedure. 2. The then defendants challenged the right of plaintiffs to prosecute this action as a class action. After several hear- ings in the matter, the Court in its July 6, 1967 Memo- randum, Opinion and Order allowed the class action. 3. On or about September 24, 1968 plaintiffs, pursuant to the September 18, 1968 Order of the Court, submitted their statement of the designation of class. 4. Since the institution of this action, counsel for the plaintiffs have met periodically with the named plaintiffs in this case as well as other black employees of Albemarle Paper Company. These meetings have taken place in the office of counsel for the plaintiffs, in Raleigh, North Caro- lina and in Roanoke Rapids, North Carolina. The purpose of these meetings has been to advise plaintiffs and other black employees of Albemarle Paper Company of the prog- ress and status of the case and to obtain information which might be useful in the presentation of their claims. No at- tempt was made by counsel to record the names and ad- dresses of all the black employees who attended the various meetings. Plaintiffs will show to the Court that in addition to the named plaintiffs and those persons listed below, Her- man Johnson, Carlton Belfield, John Jarrell, Jake Alston, Joe Bradley, Joe Rook, Mack Johnson and Marvin Harri- son have attended meetings on occasion. 5. In addition to the named plaintiffs, the following em- ployees or former employees have formally retained counsel for the plaintiffs to represent them in this matter: Arthur App. 59 T. Kearney, Route 1, Box 127, Roanoke Rapids, North Carolina; Eulis K. Lawson, 124 Matthews, Roanoke Rapids, North Carolina; William Townes, Route 2, Box 216, Roa- noke Rapids, North Carolina; James Mallory, 109 Prospect Street, Weldon, North Carolina; Frank Mayo, Route 2, Box 381-M, Roanoke Rapids, North Carolina; W. H. Mason, Street Route, Box 87B, Roanoke Rapids, North Carolina; E. R. Hardy, 334 E. Littleton Road, Roanoke Rapids, North Carolina; Philmore Taylor, 1940-A Carter Street, Roanoke Rapids, North Carolina; Lonnie Lee, Box 132, Gaston, North Carolina; Julius Love, Valentine, Vir- ginia; Moses Vincent, Garysburg, North Carolina; M. C. Boone, Post Office Box 38, Garysburg, North Carolina; James Alfred Jones, 118 Lincoln Avenue, Roanoke Rapids, North Carolina; Ernest Garner, 1929 Glover Street, Roa- noke Rapids, North Carolina; Ernest Hawkins, 1901 Glov- er Street, Roanoke Rapids, North Carolina; Johnnie E. Roberts, Post Office Box 453, Gaston, North Carolina; Clarence High, Route 2, Box 381], Roa .oke Rapids, North Carolina; Julian Peebles, Route 2, Box 279. Halifax, North Carolina; Marvin Harrison, 154 Carver Street, Roanoke Rapids, North Carolina; Charlie D. King, Star Route, Box 145, Emporia, Virginia; Eugene Neville, 130 Lincoln Ave- nue, Roanoke Rapids, North Carolina; Wiliie Ashe, Route 2, Box 278, Littleton, North Carolina; W. M. Martin, Route 1, Box 431, Roanoke Rapids, North Carolina; Perry M. Cowan, 524 First Street. Weldon, North Carolina; William Garris, Route 1, Box 249 Roanoke Rapids, North Carolina; Jesse Mallory, Garysburg, North Carolina; Al- phonso Owens, Roanoke Rapids, North Carolina; William T. Vassor, Garysburg, North Carolina; A. N. Johnson, Route 1, Box 213, Jackson, North Carolina. App. 60 6. Counsel for the plaintiffs have assumed that since the initiation of this action they have represented other black employees of Albemarle Paper Company in addition to the named plaintiffs and this is particularly true since the order of the Court of August 6, 1967. Furthermore, it is apparent that many of the black employees of Albemarle Paper Company have relied on the representation of counsel for the plaintiffs to protect their interest in this action be- cause from time to time counsel for the plaintiffs have re- ceived communications from black employees of Albemarle other than the named plaintiffs to discuss the status of the case and/or to request advice from counsel on what action should or should not be taken with respect to their status as employees of Albemarle Paper Company. 7. Plaintiffs recognize that an individual has a right to select his own counsel to prosecute any of his claims and that his choice of counsel should be unfettered. Plaintiffs submit that the willingness of a number of the black em- ployees of Albemarle Paper Company to rely on and con- sult with present counsel in assisting in the preparation of this claim establishes a prima facie showing that the repre- sentation of present counsel is adequate. 8. The notice of July 6, 1971 to some class members provides in one part that if a member does not indicate to the Court by July 22, 1971 that he chooses not be repre- sented by present counsel, then any judgment favorable or unfavorable will be binding upon him. The notice in an- other part requires members to submit a statement to the Court in writing, under oath, of the amount of back pay he has suffered if unlawful discrimination is found and pro- vides that his claim for back pay, if not noted by July 22, 1971, will be forever barred. Counsel cannot affectively represent the interest of a class member if he is prohibited App. 61 from discussing all relief to which that member is entitled if a violation is established. Plaintiffs submit that the terms of the present order affectively prohibits counsel for plain- tiffs from discussing a member’s or a potential member’s claim freely and advising him of all relief to which he may be entitled. 9. Plaintiffs submit that the ruling of the Court limiting communication between counsel and plaintiffs and actual and potential members of their class, particularly at this stage of the proceedings, raises serious questions under the First Amendment to the Constitution of the United States guaranteeing the right to free speech and association and decision of the Supreme Court of the United States in NAACP v. Button, 371 U.S. 415 (1963). See also United _ Transportation Union, Petitioner v. The State Board of Michigan, 39 U.S.L.W. 4428 (1970) and Brotherhood of Railroad Trainmen v. Virginia State Bar, 377 U.S. 1 (1964). Since the mailing of the notice by the Court, black em- ployees of Albemarle Paper Company have contacted the named members in this action requesting advice and ex- planation of the notice and requesting that Joe P. Moody contact present counsel for advice. The only advice allow- able under the present orders is that contact be madg with the Clerk of the Court. Counsel for plaintiffs have so ad- vised the named plaintiffs that this could be the only ex- tent to which they could discuss the present status of the case. Attached herewith in support of this motion is the Affi- davit of Joe P. Moody. Wherefore, for the reasons stated above, plaintiffs re- spectfully request the Court to enter an order granting App. 62 leave to counsel for plaintiffs to communicate with actual and potential class members for the purposes stated above. This 13th day of July, 1971. Respectfully submitted, Robert Belton J. LeVonne Chambers Chambers, Stein, Ferguson & Lanning 237 West Trade Street Charlotte, North Carolina T. T. Clayton 307 West Franklin Street Warrenton, North Carolina Conrad O. Pearson 203% East Chapel Hill Street Durham, North Carolina Jack Greenberg William Robinson 10 Columbus Circle New York, New York 10019 Attorneys for Plaintiffs App. 63 State Of North Carolina ) ‘ Mecklenburg County ) Atidavit Joe P. Moody first being duly sworn deposes and says : 1. My name is Joe P. Moody and I reside at Route 1 Box 128, Roanoke Rapids, North Carolina. I am a plaintiff in the case styled Joe P. Moody, et al., v. Albemarle Paper Company, et al., C.A. No. 989, pending in the United States District Court for the Eastern District of North Carolina. 2. After receiving notice from the Clerk for the United States District Court advising of the pendency of the law- suit, I was approached by several black persons who were employees or former employees of Albemarle Paper Com- pany requesting some explanation of the notice. 3. 1am of the opinion that many of the persons who have received notices from the Clerk do not completely under- stand the content of the notice nor what they are obligated to do pursuant to the Notice. The foregoing has been read to me and is fully under- stood by me to be accurate and true. /s/ Joe P. Moody Joe P. Moody [ Jurat Omitted in Printing] App. 64 In The UNITED STATES DISTRICT COURT FOR THE Eastern District of North Carolina Wilson Division [ Title Omitted in Printing] (Civil Action No. 989) MOTION FOR CLARIFICATION [Filed July 14, 1971] Plaintiffs move the Court, by their undersigned at- torney, for clarification of the Notice, dated July 6, 1971, directed to all black employees of Albemarle Paper Com- pany at its Roanoke Rapids plant Roanoke Rapids, North Carolina and all members of the class as designated in the Order of June 15, 1971. The basis for this motion is as follows: 1. Paragraph (b) on page 2 of the Notice provides, “if you do not request exclusion from the class by July 22, 1971, you will be included in such class and any judgment, whether favorable or not, including any judgment approv- ing any settlement of the action, will be binding upon you.” Paragraph (d) on page 2 of the Notice provides, “in the event you are claiming damages of any of the de- fendants by reason v? any alleged racially discriminatory practice, you must filk your written proof of claim under App. 65 oath with the Clerk of the U.S. District Court at the ad- dress shown herein stating the details of such alleged dis- crimination and the amount of damages you are claiming. Such claim must be mailed not later than July 22, 1971, or it will be forever barred.” 2. According to paragraph (b) referred to above, failure of a class member to request exclusion results in a binding judgment on that member whether favorable or unfavor- able. Further, failure to request exclusion means that pres- ent counsel must represent that member in the trial of this matter. On the other hand, failure to request exclusion and failure to file proof of damages under oath by July 22, 1971, results in the barring of the damage claim of that member notwithstanding the fact that he is represented by counsel and counsel have been ordered not to discuss the case with members who are not formal parties to the action unless permission is received from the Court. Plaintiffs sub- mit that this posture of the case seriously diminishes the opportunity for counsel to advise class members. 3. Paragraph (b) speaks in terms of “judgment” and “settlement.” We submit that reference to judgment in paragraph (b) in the Notice encompasses all the relief to which the class members may be entitled after trial or any settlement, including damages. Plaintiffs contend that back pay is not a separate and distinct kind of relief which should not be included in the judgment; the effect of para- graph (b) is to make this distinction. See Robinson v. Lorillard, Slip Op., pp. 25-28, No. 15, 098 (4th Cir. July 1, 1971). 4. Plaintiffs submit that the law is unclear on the method by which back pay, if allowed, should be computed. Plain- tiifs have submitted a suggested method of computation in App. 66 their Further Answers to Interrogatories filed on July 10, 1971. While plaintiffs may urge the court to adopt the method of computation as suggested in Further Answers, the court has not yet decided that this will be the method of computation. This raises a question of how actual or potential members of the class are to compute the damages by July 22, 1971. 5. The Notice provides that if any of the actual or po- tential class members have questions concerning the Notice, then he may write or call the office of the clerk of the U.S. District Court. Is the clerk authorized to advise those per- sons who may call how their damages are to be computed when the court itself has not made such a determination? If the clerk is not authorized to so advise, is the clerk authorized to refer him to, or appoint, an attorney to assist him in computing his back pay claim if the member ques- tions the adequacy of present counsel? See 706(e) of Title VII. 6. Assuming that a persons does not contact the clerk of Court plaintiffs’ counsel, under the Notice, will represent him, but is plaintiffs’ counsel barred from making a claim for damages for back pay on the part of that person after July 22, 1971? 7. Counsel for the plaintiffs were aided in responding to the requirement that plaintiffs specify the amount of back pay that each member claims to have suffered by records copied pursuant to an Order of the court; these records were incomplete. These records have not been made available to actual or potential members of the class. To re- quire the class members to specify the amount of damages without the aid of such records and more particularly without the aid of an attorney, is to requize class mem- bers to do without necessary assistance. App. 67 Wherefore, plaintiffs respectfully pray the Court to clarify its Notice of July 6, 1971. This 13th day of July, 1971. Respectfully submitted, Robert Belton J. LeVonne Chambers Chambers, Stein, Ferguson & Lanning 237 West Trade Street Charlotte, North Carolina T. T. Clayton 307 West Franklin Street Warrenton, North Carolina Conrad O. Pearson 203% East Chapel Hill Street Durham, North Carolina Jock Greenberg William Robinson 10 Columbus Circle New York, New York 10019 Attorneys for Plaintiffs App. 68 In The UNITED STATES DISTRICT COURT FOR THE Eastern District of North Carolina [ Title Omitted In Printing] ( Civil Action No. 989) MOTION FOR SEVERANCE AND THE APPOINTMENT OF A MASTER [Filed July 14, 1971] Plaintiffs move, by the undersign attorney, for entry of an order by the court that the issue of the determination of the amount of back pay be the subject of a special proceeding separate and apart from the determination of the issue of liability. Plaintiffs further move the court to refer matter of the determination of the amount of back pay to a special master, pursuant tu Rule 53 of the Federal Rules of Civil Procedure, should the court find that the plaintiffs or any of their class have suffered an economic loss as a result of the complanied of racially discriminatory employment practices by any or all of the defendants. As grounds for this Motion, Plaintiffs show the court as follows: 1. The severance of the determination of the amount of back pay from the determination of liability would expedite the final determination of this matter. The court may make a finding on evidence introduced to establish a violation of Title VII, that plaintiffs have not made out their claim and therefore the Court would not have to reach the issue of back pay or determination of the amount. 2. Plaintiffs submit that the determination of the amount of back pay, should the Court decide that back pay is ap- . App. 69 propriate, will involve the examination of employees’ rec- ords, qualifications of employees and mathematical compu- tation of claims. These are matters which should be re- ferred to a special master. 3. In this connection we call the Court’s attention to Robinson v. Lorillard, No. 15,098 (4th Cir. July 1, 1971) and Sprogis v. United Air Lines, ...... , 3 EPD Para. 8239 (No. 18481, June 16, 1971). This 13th day of July 1971. Respectfully submitted, Robert Belton J. LeVonne Chambers Chambers, Stein, Ferguson & Lanning 237 West Trade Street Charlotte, North Carolina T. T. Clayton 307 West Franklin Street Warrenton, North Carolina Conrad O. Pearson 203% East Chapel Hill Street Durham, North Carolina App. 70 In The UNITED STATES DISTRICT COURT FOR THE Eastern District of North Carolina Wilson Division [ Title Omitted In Printing] PROOF OF CLAIM [Filed July 15, 1971] 124 Matthew Street Roanoke Rapids, N. C. July 14, 1971 To whom it may concern: I have been employed at Albemarle Paper Mill since 1950. I have worked on a regular job there for 13 years. During that time I have worked on different jobs. During that time my seniority was taken from me and I had to work under the authority of men who had not been working there even as much as half the time that I have. Also, I was told that the only time that I would have a job was when someone went on vacation or if someone was sick. Furtherrnore, they made it necessary for me to install a phone. I have had to sit at home many times in order to wait for a call. If I missed three calls I was not even allowed to get a slip to the employment office so that I could draw un- employment. They have hired quite a number of men since then, but I am still on the board filling out vacation and sick calls. App. 71 I cannot give any figures on what they owe me, but I do want my backpay and to 40 hours a week. Also I would like to have my seniority back and to be placed where I should be. I’m afraid I don’t know where that should be, but my regular job was unloading salt cake. I am a part of a discriminated group. I want my rights and a regular job back. Thank you for what you have tried to do. Yours truly, /s/ Mr. Eulis K. Lawson App. 72 In The UNITED STATES DISTRICT COURT FOR THE Eastern District of North Carolina Wilson Division [ Title Omitted In Printing] PROOF OF CLAIM [Filed July 19, 1971] Star Route, Box 88-A Roanoke Rapids, North Carolina 27870 July 17, 1971 Clerk of the United States District Court Post Office Box 25670 Raleigh, North Carolina 27611 Dear Sir: It is my concern to remain with Joseph P. Moody, et al., Plaintiffs vs. Albemarle Paper Company, et al., Defendants —Civil No. 989. In reply to the notice filed with the United States District Court for the Eastern District of North Carolina Wilson Division on August 25, 1966, by Plaintiffs, I have been employed with the Albemarle Paper Company, Roanoke Rapids, North Carolina, since 1947. I am in no position to determine an unpaid amount in salary up to date in ac- cordance to my position of employment. Yours truly, /s/ Johnie Easter — App. 73 In The UNITED STATES DISTRICT COURT FOR THE Eastern District of North Carolina Wilson Division [ Title Omitted In Printing] PROOF OF CLAIM [Filed July 19, 1971] Clerk of the United States District Court Eastern District of North Carolina P. O. Box 25670 Raleigh, North Carolina 27611 Re; Joseph P. Moody et al., vs. Albemarle Paper Company Civil No. 989 Dear Sirs: I wish to be a part of the above named Civil Action, I accepted employment with Albemarle Paper Company, Roa- noke Rapids Plant on, December 1950. I was forced to seek employment elsewhere on, January 1966, due to the dis- criminatory practices of this employer. I wish to claim back pay, but due to the inability to state where I would be on present seniority list, due to the discriminatory practices of the above named employer, I ask that after all, factors are settled which pertain to seniority, that I be awarded back pay in line with my employment date with this com- pany. App. 74 The above named employer discriminated against me in the form of testing by stating that I did not have the ability to hold positions, as the results of this testing. I am now a resident of the state of New Jersey, have passed the re- quirements of this state as a Shift Engineer, Power Plant Operator. I request that the present Attorneys for the Plaintiffs, also be considered as my Attorneys, My present address is as follows. Theodore Roosevelt Brown, 138 North 14th Street, East Orange New Jersey, I enter this claim as a Class Action, because of race, under the Civil Rights Act of 1964. I Theodore Roosevelt Borwn [sic], here by state under oath, that I have read the above and, sign the above under my own will. /s/ Theodore Roosevelt Brown { Jurat Omitting In Printing] App. 75 In The UNITED STATES DISTRICT COURT FOR THE Eastern District of North Carolina Wilson Division [ Title Omitted In Printing] PROOF OF CLAIM [Filed July 21, 1971] Ethoria Jones 133 Lincoln Ave. Roanoke Rapids, N. C. 27870 Dear Sirs: I have filed a Claim with Mr. Joseph P. Moody attorney for damages. i was on Lay off for Over a year, and i Was Put on Call Board for Over 3 years. When the younger White Men was working. On some Jobs that i Now Opprate, But Before i Was not given the chance. iam still on Call Board and these same White men are still working. Some of the Jobs the Black Man is working, i did have the chance to work until the last past year. Now the dates and the times i can not send you to day. for Mr. Joseph P. Moody attorney have that information. the Amount of Damages i Cant say. Because for years this have went on. Over me. And all Other Black men at the Plant. Yours truly /s/ Ethoria Jones 133 Lincoln Ave. Roanoke Rapids, N. C. phone—537-9990,. 27870 App. 76 In The UNITED STATES DISTRICT COURT FOR THE Eastern District of North Carolina Wilson Division [ Title Omitted In Printing] PROOF OF CLAIM [ Filed July 23, 1971] Clerk of the United States District Court Eastern District of North Carolina P.O. Box 25670 Raleigh, North Carolina 27611 Re; Joseph P. Moody et al, vs Albemarle Paper Company Civil No. 989 Dear Sirs: I wish to be a part of the above named Civil Action: I accepted employment with Albemarle Paper Company, Roanoke Rapids Plant at Roanoke Rapids, North Carolina. Due to discriminatory practices of this employer, some were forced to seek employment elsewhere. I wish to claim back pay, but due to the inability to state where I would be on the present seniority list; due to the discriminatory practices of the above named employer, I ask that after all fectors are settled which pertain to seniority, that I be awarded back pay in line with my employment date with this com- pany. The above named employer discriminated against me in the form of testing, by stating that I did not have the ability to hold positions, as the results of this testing. App. 77 I request that the present Attorneys for the Plaintiffs, also be considered as my Attorneys. My present address and name is attached. I enter this claim as a Class Action; because of race, under the Civil Rights Act of 1964. I have read the above, and sign the above under my own will. Name/Address Thomas Kearsey, Rba, Box 127 R.R. Leroy Jordan, 515 West First St., Weldon, N. C. William Thomas Vasser, Box 187, Garysburg, N. C. Willie Joseph Bradley, 112 Prospect Ave., Weldon, N. C. Jack Norton, P. O. Box 165, Garysburg, N. C. Alexander Sledge, 706 W. F St., Weldon, N. C. Reny Cowan, 524 W. First St., Weldon, N. C. Leon Quick, P. O. Box 441, Roanoke Rapids, N. C. Clarence Daniel, Roanoke Rapids, N. C. Elizah Daniel, Roanoke Rapids, N. C. Cecil M. Pierce, Rte. 2, Box 487, ( Deceased) East Hawkins, 1903 Glover St., Roanoke Rapids, N. C. ( Deceased ) W. M. Martin, Rte. 1, Box 431, Roanoke Rapids, N. C. Asa Roone, R 2, Box 50B, Roanoke Rapids, N. C. William Garris, R. 1, Box 29, Garysburg, N. C. Moses L. Garner, Route 1, Box 129A, Roanoke Rapids, N. C. App. 78 Name/Address Hosea Roberts, 605 West Ist St., Weldon, N. C. Robert McNair, Jr., 407 County Rd. ( Deceased ) Paul C. Ingram, 1214 Snead Willie H. Mason, Star Rt. Box 87 Jimmy V. Love, Route 626, Box 52, Valentine, Va. Andrew M. Johnson, Rte. 1, Box 213, Jackson, N. C. Otis Jones, Route 1, Box 107, Roanoke Rapids, N. C. Eugene Neville, 130 Ligon St., Roanoke Rapids, N. C. Willard Bufield, Box 30, Rt. 1, Garysburg, N. C. F. B. Hardy, 334 E. Littleton Rd., Roanoke Rapids, N. C. Richard Squire, 1914 Glover St., Roanoke Rapids, N. C. Robie Masor, Star Rt., Box 134B, Emporia, Va. Isaac M. Weaver, Rt. 2, Box 52, Lawrenceville, Va. Eugene Vincent, Box 53, Henrico, N. C. (Deceased) Mack Coy Boone, P. O. Box 38, Garysburg, N. C. Sandy L. Johnson, 127 Poplar St., Roanoke Rapids, N. C. William Town, RFD 216, Roanoke Rapids, N. C. Ernest Gardner, 1929 Glover St., Roanoke Rapids, N. C. James Mallory, 109 Prospect Ave., Weldon, N. C. James Alfred Jones, 118 Lincoln Ave., Roanoke Rapids, N.C. App. 79 Name/Address Jeremiah Webb, 307 Holm Dr., Weldon, N. C. Frank Mayo, Rt. 2, Box 381M, Roanoke Rapids, N. C. Charlie D. King, Star Route, Box 145, Emporia, Va. Johnie E. Roberts, P. O. Box 453, Gaston, N. C. Nonnie King, Star Route, Box 34, Roanoke Rapids, N. C. Johnie Easter, Star Route, Box 88-A, Roanoke Rapids, N.C. Julian Peebles, Rte 2, Box 279, Halifax, N. C. Wirapqure, Devades. Balers Start TRCHNICAL SERVICE Milt TP ABORATORY MEAL Steett Pewter Cionwral Lab Teo Sangha 1 taerm + SERVICE DEPART WENT Pas be cache ? is Pricer pte € he ’ “ ) teh © ’ ool “ddy Roanosze Rapids Division Halifax Local No. 425 Albemarle Paper Manutactunng Company inc and United Papermakers and Paperworkers (AFL-CIO) WOOD YARD DEPARTMENT PULP MILL DEPARTMENT Digester C E Recovery Caustx Operetor Bower Operator Operstor rvice Crew ow , Lime Kun j Yard Crew — Se — "No 4 Recovery Operetor ne per pero No 2 Dempster Dumpeter Operator “we Large ” ‘ Operator oe so 6 s . ‘ Stock Room . nial , . vhipper eT > lst Helper . Long Log Operator a Winch Truck Operator + *Eveporetor ‘ ‘ + Kamyr Operator Leg Stacker Operator - ~ . Truck Operator Cyscctes , ‘ Tractor Operctor ry + ist Helper NoS Se.ali Equipment ¢ Winca Truck -)"- = + Operator Chip Bin Operctor Opercto: He per Bart Burner ry ‘ + Operator Bu 4 oon | nate Laborer | ¢ Note Bark Boller Ope- — Stor Start and Helper retors who have not been — By-Products t promoted to thet job j Operat t L Nowy 1 Should we be oe eeretae cl oe entowamuty te + - 2s —- — — . » +> ~~ - es Wees sen & ~oder oweed previously mm Moving up the ine Leeder ‘Start s x : The Kau fe Grinder son the We mod o : , “* eT « Opes ’ M se oo > A PAPER MILL DEPARTMENT t apes Stushine Beater Room When Used Dead End Job—Jenitor r°sewn Lome of Progression Ma-hune Tender N - wa aon es B PAPER MILL DEPARTMENT achune Tender N “— ot Meipe Paper Machine Stock Room Back Tender N Star Line of Progresmon Line of Progresmon — 7 No 2 Machine Tender Stoci Room Operator ‘ - ’ Back Tender Stock Room ist Helper . be . 4 \ - uf % — we Stocs Room 2nd Heipe: + Fourtn Hand Hand No 2 ; a Power Plant Dept. ; gee N To . . Power “—_ Operstor Boa & Pluager N Br oseme- Sisth Mond ot He } per Back P Te No 7 ! | m ¢ ‘ Stert Start Severn Hand ind Helper ? ‘ Dead End Job—Jan:tor Spare Hani No 4 Unity Men ] Start Star PRODUCT DEPARTMENT 8 MILL Finishing Crew Shipping Crew BOILER ROOM DEPARTMENT Rew te wer Shee'er Oper ctor er (ore na. ‘ 4 Bowler Opercio: Fire Fireman , She vter Operator ‘ ™ 4 > a Helper —— Sara Burner Operator Second Fireman = Heiner Large ren (Prom Pulp Mul Sectwn) pa ‘ t + Laborer _ Rew -der RS | | . , nen Stan = Sma i ‘es _— _ ‘ aa + ee. Wroepper Tier Copper a eros TECHNICAL SERVICE DEPARTMENT — Plugger sanebens Lane of Progresmon Lane of Progresmon t Mill Laboratory le perere Start B Mil! Shit Testman Genera! Leb Testman , 4 A Mill Shut Testman Genera! Lab Assistant . FINISHING ROOM DEPT. A MILL ne tea tene Lab Trine Lesd Leads: Deed End job Lab Assistant Litt Truck Operator Leo Ter end Wrapper Limes of Progression for Mautenance Department Employees wl be fownd mm the Labor Agreement booklet Wrepper Leeder Laborer Start Revart | Appendis F to Ag dated September |§ | 965 Roanoke Rapides Div tetoe Albemerie Paper Masutoctuneg Company linc. Halifax Lecal No. 425 and United Papermakers and Paperworkers (AFL-CIO) WOOD YARD DEPARTMENT Yard Crew Service Crew Chipper Large (Trane Feeder No. 2 Winch Truck Operator ’ Driver f Chipper Smali & vprm ot Feeder No 1 Truck Driver Operator + Bulldoser Tractor Driver t Operator + Winch Truck Helper ry Chip Don Man 4 [Taber Laborers Ouler Start Start Nete 1 Should the bulldozer «peretor sob Chip Unloader bh ducontinued the employee may move hw down the Une of progres on accord ? ot W semorty only in cobs he actually i *eorced previously m moving up the line ) Cha Note 2 The Knife Grinder in the Word 7: yd Yard te parta@ent, but not in a line of pro eresmon | A PAPER MILL DEPARTMENT Paper Machine Beater Room Lune of Progrcsswn Lime of Progresswn No e ' 1 — Tender — No 2 Mache Tender + First !per No. 1 Back Tender (Start) 4 No 2 Back Tende: + No 1 Third Hand + No 2 Third Hand + No. 1 Fourth Hand 4 No. 2 Fourth Hand ‘ N. 1 Front Plugger , me. 8 or | Piugger Brokeman No 2 Rack Plugger Labore Sta ¢ a t _ (Start) Dead End Job Janitor PULP MILL DEPARTMENT Digester Recovery Caustic Operator Rovier Operator Operator Operator , Lum. Kiin Stock Reon *No 4 overy Uper ator Uperater Operator Mack Room No 6 Recovery or Ist Helper ' ist Helper + 4 *Pvapors Kamyr Operator Oper oter + 7 > Recover Stk Re 1 ler - Operator + | wooler ™ ms oa Nu Bark Boler Op at sno Rave mot te Prometed te that jp vu from Re over Me lper wil) not have wmiority fo any other job Pay ader Fork L.ft Driver Salt Cake Man (Lancer -when used) Labeorc;s *When Used Deed End Job Janitor 8 PAPER MILL DEPARTMENT Paper Machine Stock Room Lime of Progresswn Lome of Progreamon Machine Tender Stock Room Operator Back Tender Sock Roum Ist Helper Third Hand Stock Room 2nd Helper Fourth Hand Fifth Hand Sixth Hand Spare Hand (Start) PRODUCT DEPARTMENT B MILL Finishing Crew Shipping Crew Large Rewinder Sheeter Operator Seale Clerk tor o + Sheeter Helper Lift Truck Operator Large Rewinder 4 Helper Bander. Steneiller, Weigher Smal! lu winder @ Operator Elevator Operator Qos 4 Utshty Man Wrapper, Tier. Capper o Laborer Plugcers Corecutter = Laborers (Start) BOILER ROOM DEPARTMENT Boiler Operator First Fireman Bark Boiler Operator Second — (Prom Pulp Mul Sectwn) Laborers (Start) FINISHING ROOM DEPT. A MILL Lea’ Loader + Laft Truck Driver Le 4d Wrapper, Lead Tier 4 Wrapper. Loader, Laborers (Start) TECHNICAL SERVICE DEPARTMENT Lane of Progrcsmon Line of Progression Milil Laboratory No 3 Shift Testman General Lab Tes.man + No 1 Shift Testman General tab Assistant ¢ ? Shift Testman Trainee lob Testman Trainee Dead Fal Job Lab Assistant === = = -— = = Lancs of Progression for Mo ntenance Departm nt Employres wll be found wn the Labor Agrecme at booklet PS 1200 Rh ot 8/83 Appendix F fo Agreoment dated September 23, 1963 . ‘ Lit “ddy HALIFAX PAPER COMPANY. Inc. WOOD YARD SECTION Yard Crew Bull Gang Large Crane Chipper Feeder Winch Truck Operator Driver i Tractor Driver Smal) Crane Truck Driver Operat ' t Bu! dozer Chip Bin Man Operator t Wiech Truck Helper —_— 1 moter Sat Laborers “= Start | N.¢ Sie the & pete » Chi. Uni n ne np " " * wr t of n a ’ ' wi'y in . a : | » + previously in Moving up the line Chain Oye trator Note 2) Tre Rate Grom? ~~ “es Start y Set but mot a ime Af 4 4 NO. 1 PAPER MILL SECTION Paper Machine Unit Beater Room Unit No. 1 Machine Tender ‘ Beaterman No chine Tende 2 Ma - Tender First Jelper No 1 Back Tender (Start) 4 Nu 2 Back Tender No 1 Third Hand 4 Nv. 2 Thiret Hand : ¢ No. 1 Fourth Hand + No. 2 Fourth Hand + No. 1 Front Plugger N ck Plug » 1 Be Plugger Broke Nu 2 Buck Plugger (Stert) - Laborer (Start) lead End Job Janitor Digester Recovery Caustic Operator Bouler Operator Operator ¢ Operator ‘ = t Stock Roorn *No 4 overy ; ——_ Stx—Janitor NO. 3 PAPER MILL SECTION Paper Machine Unit Stock Room Unit Machine Tender Stock Room Operator Back Tender Stock Room Lat Helper Third Hand Stock Room 2nd Helper Fourth Hand Fifth Hand Siath Hand Spare Hand (Start) PRODUCT UNIT, NO. 3 MILL Finishing Crew Shipping Crew later Rewinder Sheeter Operator Seale Clerk Operator SI Sheeter Me lx Lift Truck Operator Lares Kewinder Helper Bander Stenciller Woigher “mall Kev inder Oyerator Elevator Operator FINISHING ROOM UNIT NO. 1 MILL Lead loader ¢ Lift Truck Driver Lend Wrapper, Lead Tur Wrapper, Lauder Laborors ostarts = 4 Utility Man Wraprer. Tier, Capper Laborer Plax, ots Crecutter Laborer (Starts = eS See = BOILER ROOM SECTION Boiler Operator First F reman Rat k Boiler Operator Second Fireman (Prom Pulp Mill Sect) Laborers (Start) TECH Mill Unit No 3 Shift Testman NICAL SERVICE SECTION Laboratory Unit General Lab Testman ‘ t No 1 Shift Teatmman General Lab Assistant ¢ Sh(t Testman Trainee Lah Testman Trainee Dead End Job-lab Assistant (Female) eS = == == Linca of Proagreetea for Maumtenance Departm: at Employees wil be found va the Labor Agi cement bookict Zit “ddy App. 113 IN THE UNITED STATEs District CourRT FOR THE EASTERN District oF NortTH CAROLINA WILSON Division Civil Action No. 989 JosepH P. Moopy, ET AL., Plaintiffs, vs. ALBEMARLE PAPER CoMPANY, ET AL., Defendants. Proceedings before the Honorasie F. T. Dupree, Jr., Judge, Presiding, United States District Court for the East- ern District of North Carolina, Wilson Division, Courtroom No. 1, Raleigh, North Carolina commencing at or about the hour of 9:00 o’clock a.m., Monday, July 26, 1971. APPEARANCES: J. LeVonne CHaAmbers, Attorney at Law, Chambers, Stein, Ferguson & Lanning, Charlotte, North Carolina, and; Rosert Betton, Attorney at Law, Chambers, Stein, Ferguson & Lanning, Charlotte, North Carolina, and; T. T. CLayton, Attorney at Law, Clayton and Bal- lance, Warrenton, North Carolina, appearing on behalf of Plaintiffs. Francis V. Lowpen, Jr., Attorney at Law, Hunton, Williams, Gay, Powell & Gibson, Richmond, Virginia, and; Paut M. THompson, Attorney at Law, Hunton, Wil- liams, Gay, Powell & Gibson, Richmond, Virginia, and; App. 114 Juuian R. ALissroox, Attorney at Law, Allsbrook, Benton, Knott, Allsbrook & Cranford, Roanoke Rapids, North Carolina, and; Gorpon G, Buspicker, Attorney at Law, Faegre and Benson, Minneapolis, Minnesota, and; Cuartes F. BLANCHARD, Attorney at Law, Blanchard, Tucker, Denson & Cline, Raleigh, North Carolina, and; Warren W. Woops, Attorney at Law, Wilson, Woods & Villalon, Washington, D.C., and; James B. Leprorp, Attorney at Law, Charlotte, North Carolina, appearing on behalf of Defendants. Wuerevpon, the following proceedings were had, to wit: CoLLoouy Between THe Court ANp CouNSEL (1 1} * * * The Court: All right, sir. Mr. Lowden? Mr. Lowden: If the Court please, I think there are four issues here and I will address myself to them very briefly. First, the injunctive relief. The defendants believe that no injunction is warranted in this case. We believe that what- ever relief they may have been entitled to some years ago we took care of in 1968, and that under the circumstances we would fight very hard not be enjoined. However, without admitting any violation of Title VII, we have concluded to say to your Honor this morning that insofar as an injunction to provide plant seniority for these people along the lines of the system that we set forth in [12] the proposed consent agreement, a copy of which I have left on your desk, we would not burden the Court today with all the evidence that we think bears on that issue. I think it’s all in the depositions. And without admitting any guilt on our part, we can elimi- App. 115 nate that part of the case because we would not object to an order along those lines. Now, with respect to the educational and testing require- ments, our position is quite different. We do not believe that the Griggs case applies here or controls here. We think that this is an entirely different case. We think that if we have not already shown in the depositions that we will show during the trial that our testing and educational programs were instituted in an entirely different setting. We think we are going to show to the satisfaction of the Court that they were job related and are job related and that they have been [13] validated in accordance with the guidelines that are currently in effect. There is one other point. I think we have a brief in our pre-trial memorandum, and that is with respect to the Beta test. I don’t think that we can assume here that the Beta test is discriminatory. I think the theory of testing is that where a test discriminates against people because of their illiteracy or their background and then is not job related, that it violates Title VII, that’s the argu- ment. In our case, the principal test used was the Beta exami- nation. It was developed in World War I for the purpose of determining the intelligence of illiterate people. There is no evidence, whether it is job related or not, that it discrimi- nates against anybody because of their races or background, but only discriminates against them because of their intel- ligence. We feel that our tests are valid [14] and that at no time have they been in violation of the Civil Rights Act of 1964. With respect to back pay, here again, we do not feel that there should be any back pay. We have several reasons for stating that; I think we have them briefed in the pre-trial memorandum and I won’t burden you with repeating all of those arguments now. App. 116 I would like to make a special note with respect to the issue of attorney fees. We feel that the time spent on this case, the voluminous papers that we have here, we feel that was all unnecessary. We believe that the principal facts and the operative facts that your Honor is going to take into consideration and determine in this case could have been stipulated in a matter of just a few minutes; that all of this rigamarole we’ve been through primarily has been just an exercise in futility, as far as I’m concerned, and we [15] don’t believe that the prevailing party ought to be rewarded for that sort of activity. The Court: [26] * * * Perhaps we ought to discuss some ground rules, in the conduct of the trial. The plaintiffs, I take it, will have wit- nesses; how many? Mr. Belton: That is correct, your Honor. I want to raise this question because it is the same question I raised before, and that is, where do we now stand in terms of representing the people in light of the fact that July 22 has come and gone? I understand that statements were sent to the Court, we got a copy I think just this past Saturday. Also, in our further answer filed on July 10, we indicated there that there were approximately a hundred twenty-eight people who might be identified as members of the class. And it raises the question at this time, [27] where do we as counsel for the class, stand, and who are they? The Court: Well, I think you represent the class except as to those who asked to be excused and there were very few of those. Then with respect to back pay, you also repre- sent those who filed proper claims, and in one way or the > = App. 117 other there have been some eighty people who have re- sponded to the notice, I think. So with respect to back pay, I think you represent them, too. I think they have specifi- cally asked that you do so. So you represent the class with respect to the injunctive relief, the entire class; and such members of the class who have indicated a desire to file claims for back pay, you also represent them. Mr. Belton: May I ask the Court another question: how does the Court propose to treat the statements contained in the further answer filed on July 10 in terms at least of the statements now appearing in that [28] document? I know that it was signed by one, only one of the named plaintiffs, Mr. Joe Moody, but we think that might be sufficient to conform with the Court’s order that they be made under oath. The Court: You are speaking in terms of a further answer that you filed? Mr. Belton: Yes, your honor. What happened is that it’s the answer that we filed with the Court in response to the Court’s order that we give the specifics, and that type of thing. The Court: Not a pleading but an answer to an interroga- tory? Mr. Belton: That is correct, your Honor. The Court: And you want to know whether the verifica- tion of one of the parties satisfies the Court’s requirement that they all sign? Mr. Belton: Yes, sir. The Court: I’m going to accept that verification for all. [29] Mr. Belton: In the trial of the case, your Honor, to respond to your question, we do plan to call as many of the App. 118 seventy-eight people, or seventy-five people, that have claims as to back pay, as possible. We have asked some of them to come over and stay. Hopefully we can get to them tomorrow. In addition to these, your Honor, we do have a problem relating to several documents we’d like to intro- duce, those which have been identified as 9-A, 9-B and 10. We propose to put on some witnesses to testify with respect to those documents. We have, I think right now, about four of those. So we are talking roughly in the neighborhood of approximately eighty people. The Court: Are you in position to give me your best esti- mate as to the time it will require you to develop your case? Mr. Belton: We have been in a quandary because the Court did ask us to submit to the Court an estimate of the trial and it [30] would depend, your Honor, I think on how the Court is going to treat the severance issue and the sever- ance motion. I think if the Court were to sever, we might be able to put our case on in two days, or within two days, I should say. If we are going into damages, I think we might be talking in the neighborhood of seven days. The Court: And Mr. Lowden? Mr. Lowden: If your Honer please, I would like to ad- dress myself to two points; I’m not sure I followed exactly what this group of some eighty people who signed a petition for back pay, we assume, your Honor is going to accept that, but we would like to note that several of the people who signed a petition for back pay, we assume, your Honor is going to accept that, but we would like to note that several of the people who signed that are deceased and we are just a little curious as to how they did that. The Court: I’d be a little curious to see the signatures but I only meant to say, Mr. Lowden, that I would not require App. 119 these [31] seventy-three people, that I wouldn’t require all to verify the claim under oath, that I would accept the veri- fication of one of the named plaintiffs. . * * [153] James ALrrep Jones, having been first duly sworn to tell the truth, testified as follows: Direct Examination Mr. Belton: * ~ * Q Are you present employed, Mr. Jones? A Part time employed. Q And where are you employed? A Albemarle. Q Is that the Albemarle Paper Company? A_ Albe- marle Paper Company. Q How long have you been employed by Albemarle Paper Company? A Employed August 11, 1952. Q And in what position did you start in? A_ I went in as a laborer in the Kamyr [154! Department. Q Could you briefly describe for the Court, Mr. Jones, the various jobs you’ve held at Albemarle since your initial employment, since you were first employed? A Well, I worked in the Kamyr thirteen years. The Kamyr produced pulp and we loaded it in box cars for shipment to Richmond or somewhere, they cidn’t sell it, I presume, it was shipped. And I worked there until the Kamyr shut down. From there they put me on the call roll and I worked in different places since then. On the digester, I've worked up there. And I’ve worked on the number five recovery, number five and six recovery, lancing flues. And from there I would go different places where they App. 120 would send me whenever I was called in. Such as the paint crew, the maintenance, and also the service crew. Q When you say that you presently work part [155] time now, what do you mean by that? A Well, just when- ever they call me to work. If they call me to work today, if they see fit that they don’t need me tomorrow they put me back on the board. They call whoever they want, if they would happen to call me and I’m not at home they call whoever they want the next time, which is the next man they can reach, and I might not get another call in a week or two weeks. Q Now, I think you testified you worked in the Kamyr Department for approximately thirteen years? A_ Yes, sir. Q Do you know the approximate year when that depart- ment was shut down, I think you testified? A Well, I was put on the board 1966 and they hadn’t moved the machinery out at that time. We would go in there sometimes and run it, maybe one day this week, maybe two days the next week, and that would be it. It was on the way out. [156] Q What was the race of the employees in the Kamyr Department? A You mean the people that worked in there? Q Yes, were they white and black or just black? A All black but one, that was the operator, until they changed it to let some black operators in there; when it was almost going out they let the blacks come in and start operating it. Q While you were in the Kamyr Department, did you ever perform any of the duties that the white operator per- formed? A No, I did not. I was just, whenever they would have some baling to do I would bale or maybe drive a fork lift at times, get two cents more in the hour. App. 121 Q When you were on the call board, how are you in- formed that you’re being called to work? A When they put me on the board I wasn’t [157] I was supposed to be at home, supposed to sit there and wait for a call. Q Would they write you or telephone you or what? A Telephone me. Q What is your educational background, Mr. Jones? A I completed the seventh grade and for the last two years I’ve been going to night school. Q What school have you been going to? A Halifax Tech. Q And what were you studying—any particular course? A Well, I’m studying reading which is American History, math and English, 2200. Q Can you read and writenow? A Yes, sir. Q Did you ever have to do any reading and writing in the course of your work im the Kamyr Department? A_ No, sir. [158] Q Have you had to do any reading and writing in the jobs that you performed while working off the call board? A No, no reading. Now, I have went to the sup- ply room once or twice and checked out some oxygen and stuff like that. I think I did it twice. Q What do you mean by checking out oxygen? A Well, you’ve got to go down there and fill out the—in other words, whoever you’re working with gives you the charge number and you’ve got to go down there and fill out the slip and sign it in order to check it out, The record goes to the office, I reckon. Q Mr. Jones, would you tell the Court whether there were jobs at Albemarle that you thought you were capable App. 122 of doing other than the job performed in the Kamyr De- partment where you worked and working on the call board? A Well, when the Kamyr was running some time they said they would have, the production [159] would be low, well, they would send me on the digester to work, to fill in, that was when it was hot before they put those evaporators up where makes those chips come down, we had to rod them down then, it as hot; and after the weather would get cool they'd send me over to number five to lance those flues when the Kamyr was down to let us make our time, to make up some time sometimes. I could have worked on the digester or either over there on number five or six or either in the maintenance where I worked off and on for the last year. Q For the record, Mr. Jones, would you tell the Court what you mean when you refer to number four and five? A Well, that’s a place, it’s a large boiler. They get a certain portion of steam from that boiler and it makes a liquid that cooks the chips that’s produced into paper, and that boiler, it’s a big boiler that [160] makes liquid and steam, liquor and steam. Q Have you ever requested a transfer or promotion to a job other than the Kamyr Department or off the call board since you've been there, in the last five years? A Twice. When they put me on the call board I went up there and filled out an application and I talked to Mr. Moore and I told him I wanted to fill out an application for a job, any job that come open that was regular. I didn’t want the call board because I didn’t think I could make it on the call board, And he said he would consider it. And later I went back and did the same thing and nothing never happened. Q You say you put in a written transfer? A That’s right. Not a transfer. I put in for, filled out an application App. 123 for a job because when they put me on the board I didn't have no job. The Court: You just wanted some regular work rather than working on the call board? [161] A That’s right. The Court: You’d take anything if they had it? A (no answer ) Mr. Belton: Q Now, do you see Mr. Moore in court today? A Yes, sir. Q And he is the same man you talked to on these two occasions? That you referred to? A Yes, sir. Q Mr. Jones, did you receive notice of the vacancies that existed in the various departments at Albemarle? A No, I did not. No, sir. Q Did you know of any vacancies that occurred say for the last five years at Albemarle? A Not but two at the time, they were in the service crew. Q And how did you learn of these? A Well, I hap- pened to be working out there at the time Ed Lee retired, at the particular time. That’s how I know of the vacancy [162] out there. And then I was working out there also when Clarence Powers retired and I knew there was a vacancy out there. QO Directing your attention to the work you were doing in the paint crew, what did that job consist of? A Well, just painting. If you’ve got to chip down something, the paint, before you put the finishing cover on it, you just use a chipping hammer and a wire brush and clean it up before you prime it and then you go back later at a later date and paint it. App. 124 Q_ Have you ever seen whites perform this job? A Yes, that’s the most that’s in it is whites. Q Now, do you know the department the paint crew come under? A No, sir, I really don’t. Q_ What kind of training have you had or did you have when you were assigned to work with the paint crew? A None whatsoever. I worked out there about, [163] I think it was three weeks, more or less, and I painted just like the rest of them. You couldn’t tell my painting from nobody else’s out there. It was a great big building and if anybody’d go by there and look at it if you can tell any difference you can beat me. Q Did you ever receive any reprimands for defective work? A No, sir. Q Now, you say that being on the call board you are subject to working on various jobs, is that correct? A Yes, sir. Q Do you receive the same salary for the different jobs you work? A_ Everything except I worked in the boiler room one time unloading oil and my pay was different. That’s the only time it’s been different. The rest of the time it was plain laborer’s pay. Q_ I think you have indicated that you have [164] been on the call board since 1966, is that correct? A That’s correct. Q The one time that you worked in the boiler room— A What time, - it? Q I'm directing your attention to the time you said you worked in the boiler room, was your rate of pay higher or lower? A_ It wasa little higher because I drew a little more App. 125 for the week, the three days I worked than I usually draw for three days. Q Do you have an approximation, Mr. Jones, of how often you worked while you were on the call board? A How often I worked? Q Yes, you said you worked part times, is it two days a week, three days a week or— A Up until 1970 I worked sometimes now a day a week but the year of 1970 I worked pretty good. Q The year of 1970? [165] A Yes, sir. Q And before that time you worked how often? A Some days one a week, some days, none a weeh, get holiday pay if I have a day coming up that I’m available for a call, if they call me on a holiday but if I wasn’t available to come I wouldn’: get it then, if I missed the call. Q How did your income compare prior to 1966 on a yearly basis with your income between 1966 and 1970? A About $2500 difference in the year, maybe more. Q Approximately $2500 less? A That's right. * * * Cross-Examination Mr. Lowden: * * * [169] Q_ Is it not true, Mr. Jones, that in the year 1970, those were the highest earnings you ever had at Albe- marle Paper Company? A Year 1970? | Q Yes. A That’s right. * * * App. 126 [173] Ersorta Jones, having been first duly sworn to tell the truth, testified as follows: Direct Examination Mr. Belton: [180] * * #* Q Would you give me your educational background? A I complete the eighth grade. [183] * * * Q Now, what position did this Mr. Mills hold with the Union? A_ He was President of the union at the time. Q When you say union are you talking about the Halifax Local 425? A Yes, sir. OQ Do you see Mr. Mills in the courtroom today? A Yes, I see him. Q After your conversation with Mr. Bryan, did you ask Mr. Mills to assist you in trying [1841 to get these two letters clarified? A _ Yes, sir. Q Did you have any conversation with Mr. Mills about | the two letters on more than one occasion? A Yes, sir. The first time he said that, “you didn’t take the test, they say you didn’t take the test.” The second time he said, “Can you give me any information as to what was on the test,” said, “I might be able to check it for you.” And then the next time we went into the office and he came in and they said, Mr. Bryan said, “well, we just don’t have no record, I don’t know how you got this notice.” And that was the end of it. I didn’t bother with it any more. * * * e App. 127 [187] Mr. Thompson: Cross Examination * * * [188} Q And was it a black man who took your job back in 1966 then? A Yes, he was a black man. [202] * * * Mr. Woods: Cross-Examination Q Mr. Jones, when you went to Mr. Mills and asked his help in clarifying the meaning of these two letters, I believe you said Mr. Mills told you that he talked to the company about it and they reported to him that they had no record of your having taken the test at all, is that correct? A That’s right. Q And when you went to Mr. Mills you didn’t [203] have the letters with you, did you? A No, I didn’t have the letters with me. Q You told Mr. Mills that you had them at home, didn’t you? A_ I got the letter that he asked me for. Q My question really is, Mr. Jones, did you ever show Mr. Mills the letter? A No, Mr. Bryan had it. Q Mr. who? A_ Brown or Brain or whatever his name is. Q Only to the company, you never showed it to Mr. Mills? A No, sir. 7 * * App. 128 In THE UNrrTep STATES District CoURT FOR THE EASTERN District oF NortTH CAROLINA WILson Division Civil Action No. 989 Joseru P. Moopy, ET AL., - Plaintiffs, ALBEMARLE Paper CoMPANY, ET AL., Defendants. Proceedings before the Honorasie F, T. Dupree, Jr., Judge, Presiding, United States District Court for the East- ern District of North Carolina, Wilson Division, Courtroom No. 1, Raleigh, North Carolina commencing at or about the hour of 9:00 o’clock a.m., July 27, 1971. APPEARANCES : (As heretofore noted ) * * * [293] Pxuimmore Taytor, having duly affirmed to tell the truth, testified as follows: [305] * * * Cross-Examination Mr. Woods: Q Mr. Taylor, you mentioned a school up at the hall— A Yes, sir. App. 129 [306] Q Was that a school for learning how to read and write or to improve your ability in reading and writing? A That’s right. Q Did you attend the school? A That’s right. Q And was that at the union hall? A Yes, at the hall. Q Local 425 Union Hall? A Yes, sir. * * * [314] Mack Coy Boone, having been first duly sworn to tell the truth, testified as follows: Direct Examination Mr. Chambers: Q Would you state your name, please? A Mack Coy Boone. [332] * * Cross-Examination Mr. Woods: © Just a couple of questions, Mr. Boone. Workers on the call board are both black and white, are they not? A That’s right. * ~ * [334] Davin Harprne, having been first duly sworn to tell the truth, testified as follows: Direct Examination Mr. Belton: © Would you state your name, please? A My namz is David Harding. App. 130 {344} * * * Examination by the Court The Court: Do you have the job now that you applied for or one just as good as the one you got when you first went there? A_ I have one just as good as when I went there. The Court: Are you satisfied with the job you have now? A Yes, I am, if it was regular, I would. [345] Th Court: Do you feel like these people have ever discriminated against you because you’re black? Mr. Chambers: Your Honor, with all deference, we'd like to interpose an objection. The Court: All right. Overruled A No, I don’t think so. The Court: You don’t think so? A No. [361] Jornny Easter, having been first duly sworn to tell the truth, testified as follows: Direct Examination Mr. Clayton: Q What is yourname, please. A Johnny Easter. * * * [367] Mr. Lowden: App. 131 Cross Examination * 7 * [368] Q Now, you were given a chance to go to first helper in the beater room in 1968, were you not? A Yes, sir. Q That was a promotion, wasn’t it, for you, or would have been for you? A Yes. [369]} Q And you said you didn’t want to do that, didn’t you? A_ I just wasn’t available for that. Q You couldn’t do the job and you said you wanted to go back to your old job, didn’t you, as brokeman? Isn’t that right? A Yes, sir. + * * [370] Q_ Tell the Court how much education you have, Mr. Easter. A Second grade, not any. * * * App. 132 In THE Unrtep States District Court FOR THE EASTERN District oF NortH CAROLINA Witson Division Civil Action No. 989 Joseru P. Moepy, ET AL., Plaintiffs, ALBEMARLE PAPER COMPANY, ET AL., Defendants. Proceedings before the Honorasie F. T. Dupree, Jr., Judge, Presiding, United States District Court for the East- ern District of North Carolina, Wilson Division, Courtroom No. 1, Raleigh, North Carolina commencing at or about the hour of 9:00 o’clock a.m., July 28, 1971. APPEARANCES: (As heretofore noted ) [389] * * * [389] Mr. Belton: The next deposition, your Honor, is that of Mr. David Mills, identified as Plaintiffs’ Exhibit No. 37. Mr. Mills was President of Halifax Local No. 425 when his deposition was taken on December 1967. (Deposition of David Mills identified as Plaintiffs’ Exhibit No. 37, admitted in evidence. ) * x x (Mr. Belton reading from the deposition of David Mills] App. 133 [394] * - * “Q Is it true that the union has refused to request the company that these two lines of progression be merged? “A that is not true. “Q Now is it true that you, during [395] “negotiations of ’65, did not seek to have these lines of progression merged? “A That is not true, we did seek to have them merged. “Q In 1965? “A In 1965. “Q Would you state the consequence of your effort? “A We weren't able to get what we were asking for. “Q Now would you state specifically what you were asking for? “A Well, we were asking that promotions be made first by department seniority and then by plant seni- ority which would have automatically done away with these two lines of progression. “Q So that everybody in a particular department would be advanced according to seniority? “A That’s right. Item number 8, union’s [396] “agenda, 1965.” “Q Was this voted upon by the local? “A What do you mean, was it voted upon? Each individual item voted upon? “Q You indicated that item number 8 in the union’s proposals? “A That’s right. “Q Was submitted to the company? “A _ It was sub- mitted to the company. “Q Which requested that employees be advanced ac- cording to seniority and department? “A Seniority first by the department, and secondly by the plant. App. 134 “Q And my question is, was this particular proposal voted upon by the local union at one of its union meetings? “A No one particular proposal was voted upon. “QO Was the overall thing voted upon? “A The overall contract was, the overall agenda, the overall contract, the [397] “package that we came out with had to be voted on in order to ratify the contract. Mr. Belton: And Mr. Mills, continuing his explanation: “The agenda was read to the body before it, before we went into the negotiating. It was approved by the body and then after negotiation when we figured we got the best pack- age we could get, it was again presented to the body and ratified by the membership. & * * “Q Now, you indicated that you presented this proposal to the company and that it was rejected? “A That’s right. [398] * * # “Q Now would you state why you determined not to go into it any further in trying to obtain this kind of promo- tion policy? “A We, as I stated before, came out with what we thought was the best possible settlement we could get short of strike, presented this, what we had come up with to the body, the union membership voted to [399] “accept it rather than to strike, and in those cases the union officers have no say-so, it is put to a vote and a majority rules. [403 } * * * “Q Now, what did the union do to see that the em- ployees affected by the installation of the power plant were App. 135 accorded the same kind of rights? “A To the best of my knowledge they were accorded the same kind of rights. ” * * (414) “Q_ Did the union ever seek to get the company to allow the Negro employees who had the same seniority - as white employees to develop education to transfer to those particular positions or lines of progression? “A_ I believe I stated before, I had made on our agenda that we try to elimi- nate the particular lines of progression and make promotions - departmental first and secondly—” Mr. Belton: “. . . by plant,” it should be, and continuing the answer : “A... which would be in effect what you’re saying. * “Q Are you stating that this would have eliminated the use of tests? “A Yes, it would.” x x : x (Mr. Woods: reading from the deposition of David Mills] [416] “Q Now, with respect to transferring from the general call board, was-it that he was just hired from the general call board or that he, how would he transfer from the general call board? “A That-is something that I’m not, information that I don’t have, that is handled entirely through the Personnel Department of the mill, and the union has absolutely nothing te do with this.” Mr. Woods: Being transferred from the general call board. On page 106 through 124, he is examined extensively about the union’s job steward system and he points out that there is usually a job steward from each department sc- lected by the employees in that department. On some oc- casions when there is no individual who wants to be job App. 136 steward in the department the general officers of the union will act [417] as steward for that department. There are Negro job stewards. In his reading from page 146, counsel for plaintiffs omit- ted the balance of an answer beginning at line 7 on page transcript 146. The line of question dealt with what does the union do to see that the employees affected by the in- stallation of the power plant were afforded the same kind of rights. His first answer was: “A To the best of my knowledge they were accorded the same kind of rights. “Q Would vou state how you formed that opinion?” Mr. Woods: Mr. Belton read this part of the answer, but not the remainder of it: “A They were reduced in force. There was no place for them, they had bumped down as low as they could go, and they were in turn put back on the call board. The same thing happened in these other lines of [418] “progression. If there was a man, the difference there being that in the power plant the lower jobs were eliminated; in the shipping department by the installation of machinery will replace the people in a higher position in the line of progression and these people had a right to bump the guys out below them, the bottom man went back on the call board or quit, as you have two of them.” The Court: He said that was true with respect to the other lines other than just the power plant? Mr. Woods: Yes, Whenever a cut-back or curtailment occurred. In any line of progression. Counsel also skipped pages 150 to 159. I call attention particularly to transcript page 154, line 24, dealing with the call board operation: aie Exe - App. 137 “Q_ Now, while he is on the general call board, if there are temporary [419] “positions available, is he recalled according to seniority? “A Not according to seniority, no. “Q How is that determined? “A That is determined by the company, following his qualifications or his exper- ience on other jobs. “Q What if a temporary position opens up in the posi- tion he just left? “A Then the job is his. “Q Temporarily? “A Temporarily, as long as the job runs. “Q That is the contract that you operate under? “A Yes. “QO And if a temporary position opens in another de- partment? “A He can fill that position in another depart- ment and still maintain his rehiring rights on the job that he left, and that he was demoted from. “Q Would he be recalled though to that [420] “partic- ular department according to seniority? “A Yes, he would.” Mr. Woods: Now, counsel omitted transcript 169, begin- ning with line 15: “Q Have you ever processed to arbitration the com- plaint or grievance of a Negro employee other than the plaintiff, Moody? “A Yes. “Q Would you state the name of this employee? “A James Alfred Jones.” Mr. Woods: He was one of the witnesses here today. “Q When was that? “A The last one that went to arbitration. I don’t know exactly how long it’s been. It’s been some time this year. App. 138 “Q Wasthat inthis year? “A Yes. “Q You have records of that? “A Yes. [421] “Q What was the disagreement? “A It wasa dispute between him, it was a dispute between Jones and a watchman over a telephone conversation. He was given time off for not reporting as instructed and we filed a griev- ance on it as he was unjustly suspended. “Q_ Do you know of another Negro whose complaint or grievance was processed to arbitration? “A This year. “Q At anytime. “A At any time, not that I recall, but I would like to add this, that neither has there been any white person who has gone to arbitration this year. “Q But you have had them in years prior? “A In years prior to this time, yes. Since I have been in office, I’d say percentage-wise, most of them have been Negroes.” Mr. Woods: Counsel read most of page 180, [422] except for the bottom part. This deals with the subject of merging or eliminating lines of progression, line 7: “Q Did the union ever seek to get the company to al- low the Negro employees who had the same seniority as the white employees to develop education to transfer to those particular positions or lines of progression? “A_ I believe I stated before, I had made on our agenda that we’d try to eliminate the particular lines of progression and make the promotions departmental first and secondly by plant—” Mr. Woods: I think he means by plant. And continuing: “A... which would be in effect what you’re saying. “Q Are you stating that this would have eliminated the use of tests? “A Yes, it would.” " are hall App. 139 [423] Mr. Woods: And this is the omitted portion I’m reading now: “QO As conditions— The Court: Mr. Belton did read that. Mr. Woods: Yes, sir, but I’m now reading what he didn’t read. The Court: All right. Mr. Woods: “Q_ As conditions for employment? “A Not for conditions; we didn’t have to ask for conditions for employment. We asked only for the incumbent employees . . “Q The proposal you submitted then would have af- fected only those employees then in the mill at that time? “A That is true, because the union has no jurisdiction over new employees and has no say-so on who the company hires.” Mr. Woods: Mr. Belton summarized pages 181 and 182, dealing with Ethoria Jones’ complaints about testing. I would like to read the [424] significant answers there; page 181, line 6: “Q Has the local processed any grievance about the particular tests that are now used by the company? “A No, we haven't. “Q Has the local investigated the particular tests now being used? “A We've investigated several claims about the tests. “Q What were those claims relating to? “A Well, some, Joe, your client there, —” Mr. Woods: Meaning your client, Joe Moody. App. 140 “A... is very well familiar with one of them and I could relate to you Ethoria Jones on the wood yard, in the wood yard department. He claimed that he took the test and passed it and that he was told that he took the test and passed it he would have to go back on the call board and lose all his seniority in his line of progression he was in to later get on another job.” [425] Mr. Woods: Page 182, beginning line 10, Mr. Mills, continuing: “Jones told me that he took the test and passed it and that he was told by Mr. Jordan that in order to get into another line of progression that he would have to ge back and on the call board and lose his seniority in the line of progression that he was in and that was the reason that he didn’t want to go—that h> wouldn’t accept a job in another line of progres- sion. This I investigated extensively. In fact, your client, Mr. Moody, was in the meeting with Mr. K. D. Running, Mr. Jim Palmer, Bob Herndon, and I don’t believe I brought that out, and this subject was brought up, it was brought to the company’s attention that we were under the impres- sion that if an employee took the test that he could stay on his present job and [426] “maintain his seniority in that job until a job in the another line of progression came open and then he could transfer without being put back on the call board and the company agreed that this was right, so it was his right to do this. “Q_ Did you ever determine whether Mr. Jones had the tests? “A We determined that he didn’t ever take it. “Q_ Did you ever check any correspondence you re- ceived in that respect? “A _ I have never seen any corres- pondence he received in reference to it, I, therefore could not have checked it. SS Lt see App. 141 “QO Did you talk with anyone who might have taken the test with him? “A Yes, I talked to one of the people who he said he took the test with. “Q And who did you talk to? “A That was one of the Hardings, I’ve [427] “forgotten. C. I., I believe it is, his initials, C. I. Harding. C. I. I believe is his name. Now, Jones told me he took the test at the same time Harding did and Harding said he didn’t.” Mr. Woods: That is all, your Honor. The Court: All right, sir. Do the company attorneys de- sire to call attention to any further excerpts from Mr. Mills’ testimony? Mr. Lowden: I would just like to continue on a little with the Ethoria Jones matter. And beginning at the bottom of page 184, line 24: “Q Now, how did you determine that Mr. Jones never took the test? “A Well, you referred a minute ago, you cut me off real quick about this correspondence. Mr. Jones told me that he took the test and passed it, and then he told me later that he went, that the company notified him that he took the wrong test and he would have to take it over. I talked to [428] “the Personnel Manager and he said no, that wasn’t true, and so I reported this back to Joe, to Ethoria and to Jeremiah Webb. Jeremiah was the one who came to me with it for Ethoria. I checked it out and he came back later and told me that he had a letter from the company stating that he did take the test, that he did pass and my very words that I sent back to him was, “you bring me the letter and Ill clean that Personnel Department out.” So, as of today, I have never seen the letter. I assume that he did not have the letter.” App. 142 [430] * * * The Court: All right, sir. Mr. Woods, what do you say in summary you would want the Court to find from your client’s deposition? Mr. Woods: I believe Mr. Mills’ testimony establishes that the union bargained as strongly as it could to improve the system and to change the seniority system; that despite its efforts to change the departmental, the job seniority sys- tem, and provide greater protection to the more senior em- ployees, black and white, the union body refused to make this a strike issue and consequently was unable in 1965 to make the changes that subsequently were made in 1968. [431] I think the testimony of Mr. Mills also shows that the union investigated, sympathetically listened to and at- tempted to do something about all formal grievances brought to its attention whether by black or white em- ployees. * * * [463] Mr. Chambers: Exhibit 41, beginning on page 95 of the deposition of Mr. Arnold B. Brown, he states that he is the representative of the Union, the International, with headquarters in Richmond, Virginia, and that he is Vice President and Legal Director or was Vice President and Legal Director; * 7” * [Mr. Woods: reading from the deposition of Arnold Brown] [467] * * #* Mr. Woods: At transcript page 109, line 18: App. 143 “Q What was the union’s position with reference to the Wonderlic test? “A We were opposing any testing at the time. “Q Why were you opposed to any test? “A Well, we felt that what we had agreed upon under the four-year pro- gram was adequate—” Mr. Woods: Four year program for apprentices. “A ...on the basis of the early agreement by someone else that had been there ahead of me. “Q Was the test requirement instituted by the com- puny? “A Yes.” [468] Mr. Woods: At transcript page 159, the bottom of the page, cross-examination by Mr. Lowden: “Q Mr. Brown, looking at the lines of progression chart, during the time you were there as the International representative, during those years, does the union have any- thing whatever to do with who begins his employment in the classifications, chain operator, for instance, in the wood yard crew? “A Do we have anything to do with who gets the job? “OQ Yes, in the first instance? “A No, sir. “Q Do you have anything to do with who gets the job of laborer there, to see who is first employed in that job? “A No, sir. “Q Do you have anything to do with who gets the job in the bottom classification [469] “in any of these lines of progression? “A No, sir. “Q Did you at any time while you were the Interna- tional representative servicing this local and this contract, App. 144 either expressed or impliedly, make an agreement that any person, white or black, would get any of these starting jobs; did you agree for instance that whoever got the job of crane operator in the wood yard, either expressed or implied, would be either white or colored? “A No, sir. “Q_ Did you do that for any of the starting jobs, ex- pressed or implied? “A No, sir. Unless some employee filed a request for transfer and we felt that an employee was qualified and you have given it saw to a new [470] “hiree from outside, then we might complaint. “Q But you would complain if you thought he was qualified, whether or not he was white or colored? “A Yes, sir. “Q And regardless of which line of progression it was? “A That is correct. “Q Have you ever heard of any agreement either ex- pressed or implied, between the International, the local union down there, any agreement between them and the company that all employees say in the paper machine line of pro- gression in the B paper mill will be white people? “A No, 2» 9D Sir. Mr. Woods: Skipping then to page 165, cross-examina- tion by Mr. Ledford: 7 Mr. Brown, you have testified that you are Vice- y President—” [471] Mr. Woods: And skipping to line 14, page 166: “QO Now, I will ask you did Mr. Irby as International representative have the authority to require the members of local 425 either to ratify or disapprove of this particular contract? “A None at all. App. 145 “Q Do you as the Regional Director have the authority to require the members of local 425 to approve or disap- prove of any particular contract? “A None at all. “QO Is there any officer to your knowledge in the Union International that has the authority to require the member- ship of any local, particularly local 425, to approve or dis- approve any particular contract? “A None that I know of. “QO Do you as Vice President and Regional [472] “Di- rector of Region No. 4 have any rights or authority to re- quire or forbid the defendant company to establish any standards of competence or qualification in the employment of any person? “A None at all. You are talking about new employees? “OQ Yes,new employees. “A None at all. “Q Does any member of local 425 have any such au- thority? “A No, they don’t. “QO Are you aware of the so-called ‘right to work’ laws in North Carolina? “A Yes. “Q Do you know how long an employee is on probation without Albemarle Paper Company before they are entitled to any of the protective provisions of a contract against this charge? [473] “A_ It’s spelled out in the labor agree- ment. I don’t know exactly what it says but it may have been reduced or increased since I last serviced the local union. There is a period, either forty-five, sixty or ninety days —” Mr. Woods: That is probationary period before the union can do anything with reference to that. “QO And under which a company can discharge an em- App. 146 ployee without the union having any rights to file a griev- ance for such discharge? “A That is correct.” Mr. Woods: There is some further re-direct examination by Mr. Chambers and pick up again, Mr. Ledford examin- ing on cross at page 177, line 5: “QI direct your attention again to Sec. 8 of the con- tract heretofore introduced by the plaintiffs, [474] “wherein management has reserved unto itself certain rights. Does the union have any way of reducing these rights reserved by the company except by striking? “A Only through striking and collective bargaining. “QO If collective bargaining is not successful, would they have any alternative except to strike, 1 mean as a way of reducing those rights reserved by management? “A That would be the only alternative. “QO Would you as Vice President and Director of Re- gion 4 have the authority to direct the members of local 425 to engage in strike activities without their consent? “A No, the Constitution provides that they must vote by a secret ballot, two-thirds of the majority, before they can go on strike, and before they can go on strike they must [475] “secure the agreement of the Executive Board of which I am a member. “Q No matter how the Executive Board might feel, it couldn’t direct a strike unless and until two-thirds of the membership voted to go on a strike? “A That is correct. “Q Is there any officer of local 425 to your knowledge who could direct that a strike be conducted unless and until two-thirds of the local membership voted to engage in such strike? “A No local officer has any union authority to direct anyone to go on strike without secret ballot of the ae - — App. 147 majority of those voting for a meeting called for that pur- pose.” Mr. Woods: And that concludes, your Honor, the ex- cerpts from Mr. Brown’s testimony, on the [476] basis of which I would ask your Honor to find in substance that the union exerts and has no authority to exert any control over the hiring of employees in the first instance, by the em- ployer, or of the testing qualification procedures used by the employer in hiring employees, and that the only way the union has to change contract procedures or achieve con- cessions from management is through the device of collec- tive bargaining or, in the final alternative, striking, and that a strike cannot be voted under the union’s Constitution by any one except a two-thirds majority of the members of the local union by secret ballot. as * . [Mr. Lowden: Reading from the deposition of Arnold Brown] [478] * * * “QO Is it your testimony that some Negroes were ques- tioned by the union as to their qualifications? “A Well, their argument was taken into consideration by the union in an effort to get the company to agree to assign them to some of these jobs in the new power plant. I don’t know that we got to the point of saying to the company that “x”’ num- ber of colored employees should be transferred to the new power plant because we didn’t use colored versus white. But I do know that we discussed with these people their qualifi- cations and with my experience in a paper mill, [479] “the people that I talked to, the colored employees were certainly App. 148 obviously not qualified to take one of these jobs in the power plant.” (503) * * * (Deposition of Curtis V. Bullock, identified as Plaintiffs’ Exhibit No. 40, admitted in evidence. ) [506] ” * * Mr. Woods: No, just to point out that Mr. Bullock ceased to be connected with the Local union in the year 1965, your Honor. [534] * * * Mr. Belton: At this time 1 would like to have marked for identification and tender Plaintiffs’ Exhibit No. 32, which is the deposition of Mr. John E. Bryan, Jr., who was the In- dustrial Relations Manager at the plant since 1963, I be- lieve; at the time this deposition was taken in 1967. * * * {Mr. Belton: Reading from the deposition of John E. Bryan, Jr.] [555] * * “OQ You do not have a written job description at Albe- marle, is that correct? “A Not for the bargaining unit at Roanoke Rapids. “Q Do you know whether while you were at or might have been with the company, whether there had been a job study done of the bargaining [556] “unit of jobs? “A What do you mean by job study? ._ — a App. 149 “Q To determine job contents. “A I don’t know that I understand your question. I don’t think they have, in fact, I’m sure there hasn’t been anybody studying the contents of the jobs with a view toward writing a job description or anything like that, there have been studies of what people do in terms of, by Industrial Engineers, to see whether we should install this piece of equipment or that and better improve the performance of the plant, or something like that. * * * {[Mr. Thompson: reading from the deposition of John E. Bryan, Jr.| [561] * * * “Q Since the Wonderlic has been instituted, have you compared the performance of those persons in the lines, skilled lines of progression, who have not taken the Beta and the Wonderlic and do not have a high school education? “A Not in a formal study sort of way but as I said, all the reports that we [562] “get show that we are getting good people which we feel that we have a right to get in view of the fact that we are paying by far the highest wages in the area, much over and above what we would have to pay in a free, competitive labor market. Our average wage, in fact, our starting wage, is well above, I mean well above the average, probably, of this whole community.” The Court: Mr. Woods, your people are doing a good job over there, apparently. Mr. Woods: We think we are, your Honor, for everybody. * * * App. 150 In THE UNITED States District Court FOR THE EASTERN District or NortH CAROLINA Witson Division Civil Action No. 989 Joseru P. Moopy, eT AL., Plaintiffs, v. ALBEMARLE Paper COMPANY, ET AL., Defendants. Proceedings before the Honorasie F. T. Dupres, Jr., Judge, Presiding, United States District Court for the East- ern District of North Carolina, Wilson Division, Courtroom No. 1, Raleigh, North Carolina commencing at or about the hour of 9:00 o’clock a.m., July 29, 1971. APPEARANCES: (As heretofore noted ) * * * (610) Ernest Garner, having been first duly sworn to tell the truth, testified as follows: * * * Cross-Examination [618] Mr. Lowden: Q Mr. Garner, how far along in school did you get? [619] A About the second grade. * * * ——. So we took these groups, the first ones I think were the caustic operators and the lye kiln opera- tors, and they were rated by their supervisors; two ratings for each man, incidentally, average of two ratings as a meas- ure of job performance. © You say two ratings, would that be Carey versus Bob and Bob versus Jim? A No, there are two different raters, two different supervisors. Q All right, go ahead and explain how you grouped the jobs. A Then the next group we took was the pulp mill department, recovery operator, [867] first helper; those were considered to be jobs of about the same skill level. Q Now, I notice, Dr. Tiffin, on Company Exhibit 3, the validation study, you took some of these jobs from the top of the lines, would you explain why you did that? A What's that again, sir? App. 167 Q I notice in your study that some of the jobs which you ran the study on were toward top of the line of progres- sion, would you explain why you did that? A _ Because those are the jobs to which these men will go if they stay in the progression line long enough, and both the EEOC guide- lines and the OFCC guidelines make a test not against entry jobs but against jobs above the entry level, assuming that within a reasonable period of time the men will move into these jobs. Q Now, did you have a meeting then with Mr. Moore to decide how you were going to proceed? [868] A_ I did, sir. Q And would you tell the Court what you told Mr. Moore to do in conducting these tests? A_ I asked him to spot a group of men in each of these progression lines and have them rated by their supervisors and send me those ratings. Q Were those ratings sent to you? A They were, sir. Q And where were they sent? A At Purdue Univer- QO Were test scores also sent to you? A Yes, sir. OQ Where were they sent? A Same place. Q Do you know, Dr. Tiffin, whether some of these peo- ple had to be tested for the first time? A I think a few of them had been, they were calling for overtime to help us test the test. Q Now, when you received the test scores [869] and the ratings at Purdue University, would you tell us what you did then? A_ I ran a correlation between the test scores of the men and the job performance rating for the men in each group. App. 168 Q And was this a mathematical formula that you used? A_ Yes, we used what’s called P co-efficient. Q What is the P co-efficient? A It gives an index or measure of the relationship between two variables, in this case the test score was one variable and job performance rat- ing was the other variable. Q Now, is Company Exhibit No. 3 the written report that you prepared after you had done this? A _ It is, sir. Q Is this an accurate report based upon the information that you have? A Yes, it is, sir. Q Now, Id like you to look at page one of [870] Com- pany Exhibit No. 3. Does the Court have a copy? The Court: Yes, I think so. A_ I forgot to date it. July 16th is the date. I had to write it in ink. Mr. Thompson: Q July 16th is the date? A Yes. Q Do you have a copy of the report? A The judge has it now. | Q Looking at page 1 of Company Exhibit No. 3, I notice you have certain asterisks there, one and two, would you ex- plain what these asterisks mean? A Well, when a correla- tion is computed between twu variables, it could happen by chance; if the correlation could occur by chance alone only one time in a hundred, I have two asterisks; if five times in a hundred, one time in twenty, one asterisk, and one chance in twenty, it couldn’t have occurred by chance alone. [871] Q Proceeding to page 2 of your report, looking at the column on the right, you have the letter “N’’ at the top of the page, would you explain what that column means? A Page 2? App. 169 Q Page 2 of your report, looking at the top of the page on the right hand side, the capital letter ““N”’, what do those numbers underneath mean? A_ I don’t see that, sir. The Court: The column heading on page 2, the first one following the job group. A Yes, “N’’ means the number of employees in the test. Mr. Thompson: Q That is the number of employees that were in that sample? A_ In that sample, yes. Q Going to the next column, you have the word “Beta.” A Yes. Q Does that stand for Beta test? [872] A That’s cor- rect. Q And Wonderlic A and the next one is Wonderlic B? A Right. Q There are ten groupings on page 2? A That’s right. Q Did you find a positive correlation for all the group- ings or how many did you find? A All but one, nine out of ten. Q Which group did you not find a positive correlation? A The “B” paper mill, stockroom operator, stockroom first helper; none of the tests corre‘ated significantly to test the people in those jobs. That’s the unly one that failed. Q Now, going to page 3 of your report, Dr. Tiffin, you have a chart there, and the first one pertains to the Wonder- lic A, I believe, job group number one, Test Wonderlic A? A That’s right. [873] Q Looking at the chart, going over to the left hand side, twenty-three or above and then on the right hand App. 170 side it has 100, would you explain what that means in that chart? A Well, I followed the advice in the guidelines to present the result in statistical and also graphic form. These charts are the graphic form of the result. That is known as an expectancy chart. This chart shows that for men in the caustic operator and lye kiln operator, the man who has a score of 23 or above, 100 percent were superior; those scor- ing 21 to 22—ninety-nine percent superior; those scoring only 8 to 15, only one percent were superior. This is a graphic representation of what that correlation means. Q_ Going to pages 4, 5, 6, and 7, you have similar charts? A That’s right. Q Would the explanation you just made apply [874] to those charts? A_ Exactly. Q_ Dr. Tiffin, I would like for you to turn to page 8 of the validation study. I notice on page 8 of the study you say that you recommend a score of 103 on the Beta, would you explain that recommendation? A We look back now to page 4, the chart for recovery operator, first helper and we note that the score 106 or above, 106 to 109, 76 percent is superior. If the score is below 106 a smaller percent is su- perior. So it seemed reasonable in the light of that chart to say that 103 in the Beta is a very minimal score. Let’s look at the middle third of that test. Those who scored 103 to 105, sixty percent is superior. And I felt that 103 was a very reasonable minimum score to require of that test, for that operator. Q Allright. Dr. Tiffin, looking at page 8 of your report again, I notice that you [875] recommended a minimum score of 17 on the Wonderlic A? A_ Correct. Q Would you explain that recommendation, please, to the Court. A Well, if we glance here at the chart for CAS ae de ee Saeco ee 2 8 as oe ee ree a. «. - ‘a yee wt. App. 171 Wonderlic A, it’s graphed out, we find that 17 is about as far as you could reasonably go and still expect a reasonable number of superior people. That is an overall generalization of all the charts of the Wonderlic A. Q Dr. Tiffin, I notice that your summary here on page 8 of your report says nothing about the Wonderlic B, would you explain why nothing is said about the Wonderlic B in your general summary? A_ Because the Wonderlic A came through just a little better on average than the Wonderlic B, it’s the same kind of test and I felt the Wonderlic A would be all you’d need. We don’t need the Wonderlic B. [876] Q Looking again, Dr. Tiffin, at page 2 of your report, I notice you have the three tests, the Beta, the Won- derlic A and the Wonderlic B; I notice that not every test is validated for every job group. A That’s right. Q Would you explain why that occurs? A Well, no test or no set of tests will validate for all jobs. In this case we are very fortunate to find that one or more of these tests validated for nine of the ten job groups. But one group failed. Group 6, “B” paper mill, stockroom operator and stockroom first helper. No one of the tests validated for that group of jobs. So there is no chart for that group. Q Now, based upon your study, Dr. Tiffin, did you rec- ommend that the company utilize these tests for its initial hiring? A_ I did, sir. Q And why did you make that recommendation? [877] A Because as the men are hired, in the labor pool or what- ever it is, then they are finally put in a progression line, and if they make scores of 103 or better on the Beta test, and 17 or higher on the Wonderlic A, they can go to any of these progression lines and get along pretty well, if they don’t, they can’t. App. 172 Q Dr. Tiffin, are you familiar with the standard for edu- cational and psychological testing manual? A _ Yes, I am, sir. Q And what is that manual, Dr. Tiffin? A That man- ual gives the details of how to go about validating tests and using tests, it is a very comprehensive document. Q Is that a classic in the industry, so to speak? A In the psychology profession, yes, it is. Q_ Did your study which you conducted for Albemarle Paper Company, did you follow the principles set forth in that manual? [878] A A hundred percent, I did. I wouldn’t dare not to, wouldn’t want to. Q Dr. Tiffin, with respect to the Wonderlic A and B and the Beta, I'd like to ask you one question and that is the origin of these tests themselves, in your professional opinion are they profesionally developed tests? A They are, sir. * * * [881] Q Dr. Tiffin, in your professional opinion is the Beta a professionally developed test? A Yes, sir. Q_ Is the Wonderlic, A and B, a professionally developed test? A They are, sir. {882} Mr. Thompson: Your Honor, at this time, I would like to offer Company Exhibit No. 3 for identification which is the validation study of Dr. Tiffin into evidence as Company Exhibit No. 3. Mr. Belton: We object, your Honor, until we have op- portunity to cross-examine the witness. The Court: I will receive it at this time and if you are able to modify or destroy it by way of cross-examination, of course, that will be given effect, too. App. 173 (Validation Study, Defendant Company Exhibit No. 3, admitted in evidence. ) Mr. Thompson: Q Dr. Tiffin, I believe you also stated you were familiar with the EEOC guidelines? A Yes, sir. Q Are these tests which we just mentioned profession- ally developed in your professional opinion — Objection: [883] Q —within the meaning of those guidelines? Objection: Overruled A Yes. Q Dr. Tiffin, have you ever been through any paper mills? A Yes, I have, sir. Q Have you ever been through the mill at Roanoke Rapids? A Yes, sir. Q And you have been through some other mills as well? A Many other paper mills. Q Did you have occasion to go through the mill down at Roanoke Rapids within the last few months? A I have, sir. [892] Mr. Belton: Cross-Examination Q Dr. Tiffin, could we get the names of the persons who worked with you in the studies that have been identified as Exhibit No.3? A What is that again, sir? Q_ The names of the persons who worked with you in the study identified as Exhibit No. 3, the validation study? A Mr. Moore. App. 174 Q Washe the only person? A Yes. Q Would you tell us how long you spent at the plan when you visited the plant in Roanoke Rapids? A Abou a half day. Q_ In preparing your study did you have written jot descriptions? A No. Q May I ask you, Dr. Tiffin, you have before you | think the lines of progression? A_ I do, sir. (893! Q Could you tell us how you got the descrip- tion of the work performed for the various jobs that you dic do the study on? A_ Well, we took the jobs more or les: adjacent in each progression line so that the skills were pretty similar, one to another. Put men on those jobs for the course of each study. Q_ Turning to page 2 of the study, the ten jobs that you have listed there— A _ The ten groups of jobs. Q -— ten groups of jobs that you have listed there, were the only jobs that you considered in your study, is that cor- rect? A That is correct. Q I take it you took a tour of the plant while you were there at Roanoke Rapids? A Yes. Q_ Dr. Tiffin, I think there is a term used in your pro- fession called criterion, is that correct? A That’s correct. (894} Q Could you explain to the Court what that means? A That means measure of job performance. We avoid using the word where we can, but measure of job performance is more meaningful. Q Measure of job performance? A Measure of job performance, job success, job performance, how well is the man doing the job, that’s the criterion. App. 175 Q Could you tell us what measures of job performance you used in your studies? A Supervisory ratings of over- all job performance. Excluding a man’s attitude, just how well the guy can do the job when he’s feeling right. Q Did you talk to any supervisors while you were down there? A No, I didn’t. Q_ I think you referred to the fact that you had certain manuals used in various jobs, is that correct? [895] A That is correct. Q Now, could you tell us who selected those manuals for you? A Well, Mr. Moore gave me a great, big stack of the manuals. I just picked out a couple at random. Q While you were there on the visit? A Yes, that’s right. Q Referring to page 2 of the study, Dr. Tiffin, I note that you have eight people in the group, caustic operator, line kiln operator, A That’s right. Q Do you know, Dr. Tiffin, whether or not that in- cluded all of the people who were employees in these two categories? A I don’t know for sure but I think that prob- ably was all of them. © Aboutall? A Yes. Q Would that be true for each of the groupings that you have on page 2? A Well, not necessarily. Because thai is the [896] majority in each of those groups. Q Now, assuming that all in the group were not in- cluded, who made the selection of the individuals from the particular groups? A Mr. Moore. Q Do you know of your own information, Dr. Tiffin, the y App. 176 basis on which Mr. Moore made his selection of these indi- viduals to be tested? A I didn’t hear you, sir. Q Do you know of your own information the basis of the standards used by Mr. Moore in the selection of these. indi- viduals in the various groups if all were not selected to be tested? A No, I don’t know. The Court: Do you know if any of those selected had been previously tested? A I think a few of them had, your Honor. The Court: You said that before? A_ Yes, sir. [897] Mr. Belton: Q Do you know who administered the tests to the testees in the study? A Mr. Moore, I assume, or one of his employees. Q You don’t know of your own personal information who administered them? A No. Q Did you discuss with Mr. Moore the circumstances under which the tests should be administered? A_ I said to follow the manual of the test. The manual tells how to give a test, how long to allow, what equipment to have available, the manual of the test tells exactly how it is to be given. So that everybody gets exactly the same chance. I’m sure the tests were given under that standard of pro- cedure. Mr. Chambers: Move to strike that as an conclusion. The Court: Well, I don’t see how I could [898] consider it, he just says he’s sure it was but he has no way of knowing. Go ahead. —— App. 177 Mr. Belton: All right, your Honor. The Court: Wait a minute. Maybe you might have some way of knowing. Why do you say that? A I’m just assuming that Mr. Moore would follow the procedure in giving tests, part of his job. The Court: Well, Mr. Moore is going to come back on the stand. We'll find out about that. Mr. Belton: Q_ Dr. Tiffin, could you describe the precautions taken to avoid contamination of the measure of performance by knowledge of the information contained in the tests? A I’m sorry. Q I said will you tell the steps that were taken to avoid contamination of the criterion or measure of job perform- ance by knowledge of the job content, test content, I should [899] say? A Well, the rater had no idea about the test scores these men made. We never let a rater know what a test score is when he rates him. If you believe in the test you rate him high, if not you rate him low. As a funda- mental principle, never does a rater know a test score at all about the men they’re rating on job performance. I’m sure the men didn’t know the test scores. Q Do you know of your own personal knowledge whether or not they knew these test scores? A No, I didn’t go and watch over somebody’s shoulder. Q_ Dr. Tiffin, did you have information on the various testees such as age, race, sex? A_ I did, sir. © Do you know how many black persons were in- cluded in the study? A I don’t know. I know some, I don’t know how many. App. 178 [900] Q Were you sent information, I take it you were sent information as to these kinds of things, the names of the persons, his age, his race, sex— A Not his race, no. Q Were cut-off scores used by the company prior to your study? A_ (no ans [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0184%3A02. Public record. Not legal advice.