Appendix — Griggs v. Duke Power Co.

Supreme Court brief1971

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INDEX :

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IIR wiccassnseatrsincsisaanstiitansncencnmephbastsianniansbnmanbasobionnelanntac 3a

PRI ccecisstinictapientsisds aipbcskas aa hakheaasthaenide igedanauiciabe iactndoesien 10a

Plaintiffs’ Motion for Leave to Amend Complaint ...... l2a

Order Allowing Amendment to Complaint ......0.0......... . Ida

Answer to Amended Complaint ......00.000000000.00 l5a

Plaintiffs’ Motion for Leave to Amend Complaint ... 16a |

Order Allowing Amendment to Complaint .0..000000....... l7a |

Answer to Amended Complaint ....0.000..0.00.0.00000.ceeeceeces ee 18a

Order Allowing Class Action ......0.........c..cccccccceccccceeeeeee 19a |

Motion to Dismiss as a Class Action 20.0.0.0.0.00.0cce0---. 21a |

BP OIE ic rs IIE paises cccsciscaainsenememennmnncbnn 22a |

DENIC Ac ar 24a |

Memorandum Opinion by Gordon, Did. 0000... 26a |

I tte coi See a ee ee eae 43a |

Notice of Appeal ....0.00......... FREE CRY CRE ROLLY 44a |

Transcript of Hearing February 6, 9, 1968 00000... 45a |

I RU er ek 204a |

Opinion by the United States Court of Appeals for the |

Fourth Circuit, January 9, 1970 200. 206a

Order Allowing Certiorari, June 29, 1970 0000000000000... 25la

ii i:

TESTIMONY

PAGE

Plaintiffs’ Witness:

Richard S. Barrett—

MIE = ccccliticaschicaiaadasnans F adiiasiikanaaeisadaaih 117a; 189a

ab Rae rs a eRe eRe IS ABT 124a

RSet Pe eee Oe RD RC RE EE 148a

IN AR EEL En Lat A rer r 125a, 191la

Defendant’s Witnesses:

A. C. Thies—

tie ln Dae at Be nee ara PA oats AR ED EY AED 54a

te i ena 94a, 195a

Dr. Dannie Moffie—

a ee 162a

RTE TEAS SY IE SAS HO SIS RCS AE: Pe 175a

EXHIBIT VOLUME

PuaInTIFF’s ExHIBITS

Exhibit: PAGE

1—Charge of Discrimination ......................-.....000---- 1b

9—Decision of Equal Opportunity Commission .... 2b

10—Letter dated September 9, 1966 ~...........0............. 5b

ats EC BOE ONO 6b

Answers to Interrogatories ........................ 16b

Additional Answers to Interrogatories ..... 26b

pS Ge ene 29b, 31b

Certificate of Service ..........................0.00+-- 30b, 32b

Employer Information Report EEO-1 .............. 33b

iii

PAGE

14—Excerpts from Deposition of Kenneth Austin 110b

15—Excerpts from Deposition of A. C. Thies 118b

16—Excerpts from Deposition of J. D. Knight ... 124b

30—Excerpts from Deposition of C. R. Rollins _ 125b

31—Dan River Employees’ Qualifications... 126b

32—Excerpts from Deposition of Lewis Hairston,

Robert A. Jumper, C. E. Purcell and H. E.

SRN Niger Aira Ne, 128h

33—Guidelines on Employment Testing Proce-

een ee Ee aA Oe ale 129b

Derenvant’s Exutsits

Exhibit:

1—Personnel Promotion eg, CO 137b

3—Minimum Occupational ‘aeties, S 138b

4—Test of Mechanical Comprehension (Form

ce ee RO ee A 139b

S—Extracts from EEOC Digest of Legal Inter-

pretations ..... pA Selaiksitdicdatorghemdeina iti alt oso 147b

wen mG ~

se LA EEO OI OLED LE LIMO ASS OIE)

; ee eee EIA SIO ATR AA COB

Relevant Docket Entries

Part I j

Complaint filed 20 October 1966.

Answer filed 14 November 1966.

Plaintiffs’ Motion to Amend Complaint filed 7 April 1967.

Order of the Court allowing amendment to complaint filed

12 April 1967. §

Defendant’s Answer to Amended Complaint filed 14 April ;

1967.

Plaintiffs’ Motion to Amend Complaint filed 13 June 1967.

Order of the Court allowing amendment to complaint filed H

21 June 1967. i

Defendant’s Answer to Amended Complaint filed 6 July é

1967. é

Plaintiffs’ Interrogatories Numbered 1 through 39 filed ;

18 January 1967. i

Defendant’s Answers to Interrogatories Numbered 1 f

through 39 with exception of those previously objected :

to filed 1 March 1967 (Also Plaintiffs’ Exhibit Num- ‘

ber 11). :

Defendant’s Additional Answers to Interrogatories Num- :

bered 8, 13, 14, 17, 20, 21 and 35 filed 20 March 1967

(Also Plaintiffs’ Exhibit Number 11).

Order of the Court maintaining action as a class action

filed 19 June 1967.

Defendant’s Motion to Dismiss as a Class Action filed

15 May 1968.

Defendant’s Motion to Dismiss filed 15 May 1968.

SN LEE ORR PI CFI ORI I ATE ETS FE RIS

a SE TIN cron re apg

Relevant Docket Entries

Memorandum Opinion of the Court filed 30 September 1968.

Judgment of the Court filed 9 October 1968.

Notice of Appeal filed 18 October 1968.

Part II

Plaintiffs’ Exhibits Numbered 1 through 34 with the ex-

ception of exhibit number 11 which may be found in

Part I of the Record on Appeal.

Defendant’s Exhibits Numbered 1 through 5.

Part III

Court Reporter’s Transcript of Testimony in 2 Volumes.

Complaint

(Filed October 20, 1966)

IN THE

Unitep States District Court

For THE

Mipvie District or Nortu CAROLINA

GREENSBORO Division

Civit Action

No. C-210-G-66

Winuiz S. Gricus; James S. Tucker; Herman E. Martin;

Wituuam C. PurceL_; CLareNcE M. Jackson; Rosert A.

JumPer; Lewis H. Hairston, Jr; Wie R. Boyp;

JUNIOR Buackstock; Joun D. Hatcuett; Cuarence C.

Purceii; Envi GaLLoway; and Eppie W. Broapnax,

Plaintiff's,

Duke Power Company a corporation

’ >]

Defendant.

Jurisdiction of this Court is invoked pursuant to 28

U.S. C. §1343 (4) and 42 U.S. ©. §2000e-5(f). This is a

suit in equity authorized and instituted pursuant to Title

VII of the Civil Rights Act of 1964, 42 U. S. C. §§2000¢

et seq. Jurisdiction of this Court is invoked to secure

the protection of and redress the deprivation of rights

secured by 42 U.S. C. §§2000e et seq., providing for in-

Se SURES 6 hay SP gre haar

POTS SS SEE ERAN ihe EET RAI RHEE g

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Complaint

junctive and other relief against racial discrimination in

employment.

Il.

Plaintiffs bring this action on their own behalf and on

behalf of other persons similarly situated who are em-

ployed by defendant Duke Power Company at its Draper,

North Carolina plant, pursuant to Rule 23(a) and (b)

of the Federal Rules of Civil Procedure. There are com-

mon questions of law and fact affecting the rights of other

Negroes of the class who are and have been limited, classi-

fied and discriminated against in ways which deprive and

which tend to deprive them of equal employment oppor-

tunities and otherwise affect their status as employees

because of race and color. These persons are so numerous

as to make it impracticable to bring them all before this

Court. A common relief is sought and the interests of

the class are adequately represented by plaintiffs.

Il.

This is a proceeding for injunctive relief, restraining

defendant from maintaining any policy, practice, custom

or usage of: discriminating against plaintiffs and others

of their class because of race with respect to compensations,

terms, conditions and privileges of employment and limit-

ing, segregating and classifying employees of defendant

in ways which deprive plaintiffs and other Negro persons

similarly situated of employment opportunities and other-

wise adversely affect their status as employees because of

race and color.

IV.

Plaintiffs Willie S. Griggs, James S. Tucker, Herman E.

Martin, William C. Purcell, Clarence M. Jackson, Robert

ataadidaceaniel

ln a mca

Complaint

A. Jumper, Lewis H. Hairston, Willie R. Boyd, Junior

Blackstock, John D. Hatchett, Clarence (. Purcell, Eddie

Galloway, and Eddie W. Broadnax are Negro citizens of

the United States, residing in Rockingham County, North

Carolina. Plaintiffs and the class they represent are

presently employed by defendant.

Defendant Duke Power Company is a corporation in-

corporated and doing business pursuant to the laws of the

State of North Carolina. The defendant operates and

maintains plants and other facilities located in Draper

and other cities of North Carolina. The defendant is an

employer within the meaning of 42 U.S. ©. §2000e-(b)

in that the Company is engaged in an industry affecting

commerce and employs more than 100 persons.

VI.

Defendant has pursued and is presently pursuing a

policy, practice, custom and usage of discriminating against

and limiting the employment and promotional opportunities

of plaintiffs and other Negro employees of defendant solely

because of race or color.

A. Defendant has followed and is presently following a

policy and practice of hiring and limiting its Negro em-

similar work.

B. All Negro employees are limited primarily to the

coal handling department and are classified as semi-skilled

or common laborers. .\s such, they are not allowed or

permitted, by Company rules, to bid on job openings in

ee RN ew ee LI A ER AS ND | Fe RRR A ROR WeoRe RE ee,

Complaint

or to be advanced to other job classifications carrying

better conditions, wages, terms and ,‘:vileges of empley-

ment. All other jobs, held only by white employees of

defendant, including that of watchmen, are classified above

the semi-skilled and common laborer titles and only white

employees are eligible for job-progression in these classi-

fications.

C. Defendant refuses its Negro employees the oppor-

tunity for overtime on the same basis as such opportunities

are provided for white employees.

D. Defendant maintains separate facilities, including

shower rooms, locker rooms, drinking fountains and other

facilities for its Negro and white employees.

VII.

The defendant has instituted a test requirement which

Negro employees must take and pass before they are

considered for job vacancies or classified in positions here-

tofore limited to white employees. Plaintiffs believe and

allege that the test is not professionally developed as re-

quired under 42 U. S. C. §2000e-2(h) and that the test,

the administration and action upon the results .re in-

tended to discriminate against “Negro employees because

of race and color.

VIII.

The defendant's discriminatory policies and practices

herein set forth were intended to and have and will have

the effect of discriminating against plaintiffs and others

of their class with respect to terms, wages, conditions,

advantages, and opportunities of employment solely be-

cause of their race and color in violation of their rights

to equal employment opportunities secured to them by

Title VII of the Civil Rights Act of 1964, 42 U. S. C.

§§2000(e) et seq.

aT ee Se

Complaint

—

IX.

Neither the State of North Carolina nor the County of

Rockingham nor the City of Draper has a law prohibiting

the unlawful practices alleged herein. On March 15, 1966,

plaintiffs filed a complaint with the Equal Employment

Opportunity Commission alleging violation by the defen-

dant of plaintiffs’ rights under Title VII of the Civil

Rights Act of 1964, 42 U.S. ©. §§2000(e) et seq. On or

about September 24, 1966, plaintiffs were advised that

the Commission found reasonable cause to believe that

violation of the Act had occurred and that the Commis-

sion had been unable to achieve voluntary compliance by 4

defendant through conciliations as provided by the Act.

Plaintiffs were further advised that they were entitled to i

initiate a civil action in the United States District Court

as provided by 42 U.S. C, §2000e-5(f) of the Act. :

Plaintiffs and the class they represent have no plain,

adequate or complete remedy at law to redress the wrongs

alleged herein and this suit for injunctive relief is their

) only means of securing adequate relief. Plaintiffs and

the class they represent are now suffering and will con-

tinue to suffer irreparable injuries from defendant’s poli-

cies, practices, customs and usage as set forth herein

’ unless and until enjoined by the Court.

sad

ee ee eaietiee ie ae

Oe ge gy

Wuererore, plaintiffs respectfully pray the Court ad-

vance this cause on the docket, order a speedy hearing at

Complaint

the earliest practicable date, cause this matter to be in

every way expedited and upon such hearing to:

(1) Grant plaintiffs and the class they represent, in-

junctive relief, enjoining the defendant, Duke Power Com-

pany, its agents, successors, employees, attorneys and

those acting in concert and participation with them and

at their direction, from continuing or maintaining any

policy, practice, custom or usage of denying, abridging,

withholding, conditioning, limiting or otherwise interfering

with the rights of plaintiffs and others of their class to

equal employment opportunities as secured by Title VIL

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

(2) Grant plaintiffs and the class they represent injunc-

tive relief enjoining the defendant, its agents, successors,

employees, attorneys and those acting in concert and

participation with them and at their direction, from main-

taining, sanctioning and authorizing a policy or practice

of hiring or limiting Negro employees to certain positions

and job classifications and maintaining separate lines or

job-prugressions of advancement or otherwise limiting the

rights of Negro employees to be advanced to other job

classifications and positions or imposing conditions for

such advancement upon Negro employees not required of

white employees similarly situated, solely because of race

or color.

(3) Grant plaintiffs and the class they represent in-

junctive relief enjoining the defendant, its agents, em-

ployees, successors, attorneys and those acting in concert

and participation with them and at their direction from

continuing or maintaining any policy, practice, custom or

usage of paying Negroes less wages than white employees

performing the same or similar work.

“SAGAN IEE AIRINGS TET GE — |

Complaint

(4) Grant plaintiffs and the class they represent in-

junctive relief enjoining the defendant, its agents, suc-

cessors, employees, attorneys and those acting in concert

and participation with them and at their direction from

continuing or maintaining racially segregated employee

facilities, including shower rooms, locker rooms, drinking

fountains and other facilities.

(5) Allow plaintiffs their cost herein, including reason-

able attorneys’ fees and such other additional relief as

may appear to the Court equitable and just.

et hee ee ee nen nt tara eee

10a

Defendant’s Answer

(Filed November 14, 1966)

{Caption Omitted]

Answering the allegations of the Complaint, the De-

fendant says:

1. The allegations of paragraph I are denied.

2. The allegations of paragraph II are denied.

3. Answering the allegations of paragraph III, the De-

fendant admits that this is a proceeding for injunctive

relief. The remainder of the allegations of paragraph III

are denied.

4. Answering the allegations of paragraph IV, it is

admitted that the named Plaintiffs are citizens of the

United States, that they reside in Rockingham County,

and that they are employed by Defendant. The other

allegations of paragraph IV are denied.

5. The allegations of paragraph V are admitted.

6. The allegations contained in paragraph VI and in

each subsection thereof are denied.

7. The allegations of paragraph VII are denied. The

Defendant alleges that any tests instituted at its Dan

River Station are equally applicable to all employees simi-

larly situated, regardless of race or color.

8. The allegations of paragraph VIII are denied.

9. Answering the allegations of paragraph IX, the De-

fendant admits that neither Rockingham County, the City

RETR A he Se

lla

Defendant’s Answer

of Draper, nor the State of North Carolina has a law

prohibiting the unlawful employment practices herein al-

leged, but denies that it is engaged in such practices. As

to the remainder of the allegations contained in paragraph

IX, the Defendant alleges that they are improper because

Section 706(a) of Title VII of the Civil Rights Act of

1964 provides that nothing said or done during and as a

part of conciliation endeavors by the Equal Employment

Opportunity Commission may be used as evidence in a

subsequent proceeding.

10. The Defendant denies the allegations of para-

graph X.

First Derense

The Complaint fails to state a claim against Defendant

upon which relief can be granted.

Seconp Derensg

The employment and promotion policies and practices

of the Defendant at its Dan River Steam Station which

are in conformity with, and which were adopted in good

faith and in reliance upon written interpretations of the

office of the General Counsel of the Equal Employment

Opportunity Commission, are and have been followed in

good faith by the Defendant.

Wuererore, Defendant prays that the relief sought by

Plaintiffs be denied; that this action be dismissed; and

for such other and furthere relief as the Court may deem

just and equitable.

eae Ope GS

DTS Re 7 aaa AC ge

pital tad on i

12a

Plaintiffs’ Motion for Leave to Amend Complaint

(Filed April 7, 1967)

[Caption Omitted]

Come now the plaintiffs, by their undersigned counsel,

and respectfully move the Court for leave to amend their

complaint in the above-styled cause, and, as grounds there-

for, show the following:

1. This cause was initially filed by plaintiffs on Octo-

ber 20, 1966, seeking injunctive and other relief against

further racially discriminatory practices by defendant

Duke Power Company, pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S. C. §§2000e et seq. Plaintiffs

seek relief by this action, for themselves, individually and

for members of their class, presently employed or who

might subsequently seek employment at defendant’s Draper,

North Carolina plant.

2. By its answer and subsequent pleadings, defendant

has challenged the right of plaintiffs to proceed as a class.

3. To more cleariy set forth the members of the class

on behalf of whom plaintiffs seek to maintain this action,

plaintiffs respectfully pray the Court for leave to amend

paragraph II of their complaint as follows:

Plaintiffs bring this action on their own behalf

and on behalf of other persons similarly situated who

are now employed or who may subsequently seek em-

ployment by defendant Duke Power Company at its

Draper, North Carolina plant pursuant to Rule 23(a)

and (b) of the Federal Rules of Civil Procedure.

There are common questions of law and fact affecting

WP ER? pe — 34s Sy RO anos - . =

RE TIS EI AE FRR 5 SO AH DE ITE IE RTS Re Bes _t

13a

Plaintiffs’ Motion for Leave to Amend Complaint

the rights of other Negroes of the class who are, have

been and may be limited, classified and discriminated

against in ways which deprive and which tend to de-

prive them of equal employment opportunities and

otherwise affect their status as employees because of

race and color. These persons are so numerous as to

make it impracticable to bring them all before this

Court. A common relief is sought and the interests

of the class are adequately represented by plaintiffs.

Wuererore, plaintiffs pray the Court that leave be

granted for them to amend their complaint as prayed

herein.

se pete lo PY ARLIMG sR SPEEA PAGS IL INN Ce REE NT YF

l4a

Order Allowing Amendment to Complaint

(Filed April 12, 1967)

[Caption Omitted]

This cause coming on to be heard before the undersigned

District Judge upon motion of plaintiffs for leave to

amend their complaint and it appearing to the Court that

there is good cause therefor ;

Ir Is, THEeREForE, Ordered, Adjudged and Decreed that

the plaintiffs be and they are hereby allowed to amend

paragraph II of their complaint as follows:

Plaintiffs bring this action on their own behalf and

on behalf of other persons similarly situated who are

now employed or who may subsequently seek em-

ployment by defendant Duke Power Company at its

Draper, North Carolina plant pursuant to Rule 23(a)

and (b) of the Federal Rules of Civil Procedure.

There are common questions of law and fact affecting

the rights of other Negroes of the class who are, have

been and may be limited, classified and discriminated

against in ways which deprive and which tend to

deprive them of equal employment opportunities and

otherwise affect their status as employees because

of race and color. These persons are so numerous as

to make it impracticable to bring them all before this

Court. A common relief is sought and the interests

of the class are adequately represented by plaintiffs.

It is further Ordered that the defendant shall file such

answer or other response as it desires within twenty (20)

days after service.

This 6th day of April, 1967.

/s/ Epvwin M. StTaney

Judge, United States District Court

REPEL ELAINE PME SAL RENTS TEN I Se SY NT SAREE BT

lida

Answer to Amended Complaint

(Filed April 14, 1967)

[Caption Omitted]

Upon motion of plaintiffs for leave to amend their com-

plaint, the Court on April 12, 1967, entered an order

allowing plaintiffs to amend paragraph II of their com-

plaint as follows:

“Plaintiffs bring this action on their own be’ alf

and on behalf of other persons similarly situated

who are now employed or who may subsequently seek

employment by defendant Duke Power Company at its

Draper, North Carolina plant pursuant to Rule 23(a)

and (b) of the Federal Rules of Civil Procedure.

There are common questions of law and fact affecting

the rights of other Negroes of the class who are,

have been and may be limited, classified and dis-

criminated against in ways which deprive and which

tend to deprive them of equal employment oppor-

tunities and otherwise affect their status as employees

PREETI

CRE

SES ROLLE LONGLEY

because of race and color. These persons are so &

numerous as to make it impracticable to bring them ;

all before this Court. A common relief is sought and F

the interests of the class are adequately represented :

by plaintiffs.” f

Answering the allegations of paragraph II of the com-

plaint as above amended, the defendant says:

“2. The allegations of paragraph II are denied.”

Wuererore, the defendant prays that the relief sought

by plaintiffs be denied; that this action be dismissed; and

for such other and further relief as the Court may deem

just and equitable.

SE FT EF Fee.

;

WR i 2 i ec eT |

EE TIER IEE UMM ok 9 6" TEP OTROS nea

AN RS Megrams: am

l6a

Plaintiffs’ Motion for Leave to Amend Complaint

(Filed June 13, 1967)

{Caption Omitted]

Come the plaintiffs, by their undersigned counsel, and

respectfully move the Court for leave to amend their com-

plaint to correctly set forth their job titles and positions

at defendant’s Dan River, Draper, North Carolina plant

as follows:

Amending paragraph VI(B) to read as follows:

All Negro employees are limited primarily to the

janitorial positions and are classified as semi-skilled

or common laborers. As such, they are not allowed

or permitted, by company rules, to bid on job openings

in or to be advanced to other job classifications car-

rying better conditions, wages, terms and privileges

of employment. All other jobs, held only by white

employees of defendant, including that of watchmen.

with the exception of one Negro employee recently

promoted to the coal-handling department are classi-

fied above the semi-skilled and common laborer titles

and only white employees are eligible for job-progres-

sion in these classifications.

PR nae ee am .

ites AMATI Rhee payment sar m sOmE er OTE rant Vdtimkickoe oat eee

PEELE DRENNAN PLE IGLOS EN EM ee Ra

—

17a y

Order Allowing Amendment to Complaint ;

(Filed June 21, 1967) i

[Caption Omitted] :

This cause coming on to be heard before the under- f

signed upon motion by plaintiffs for leave to amend their i

complaint and it appearing to the Court that there is ;

good cause to allow the amendment ;

Ir Is, THEREFORE, ORDERED, ADJUDGED and DECREED that the

plaintiffs be and they are hereby allowed to amend para-

graph VI(B) of their complaint so that the same will read;

PS are

All Negro employees are limited primarily to the

janitorial positions and are classified as semi-skilled

or common laborers. As such, they are not allowed

or permitted, by Company rules, to bid on job open-

ings in or to be advanced to other job classifications

carrying better conditions, wages, terms and privileges

of employment. All other jobs, held only by white k

employees of defendant, including that of watchmen, :

with the exception of one Negro employee recently

promoted to the coal-handling department, are classi-

fied above the semi-skilled and common laborer titles

and only white employees are eligible for job-progres-

sion in these classifications.

/8/ Evwin M. Stanuey

Chief Judge, United States District Court

POTN DAYS RE pHa Theor te NOMEN EMER TRIER SR ce |

ee ee ee ee ee ee “

18a

Answer to Amended Complaint

(Filed July 6, 1967)

[Caption Omitted]

Upon motion of Plaintiffs for leave to amend their com-

plaint, the Court on June 21, 1967, entered an order allow-

ing the Plaintiffs to amend paragraph VI (B) of their com-

piaint as follows:

“All Negro employees are limited primarily to the

janitorial positions and are classified as semi-skilled

or common laborers. As such, they are not allowed or

permitted, by Company rules, to bid on job openings in

or to be advanced to other job classifications carrying

better conditions, wages, terms and privileges of em-

ployment. All other jobs, held only by white employees

of defendant, including that of watchmen, with the ex-

ception of one Negro employee recently promoted to

the coal-handiing department, are classified above

the semi-skilled and common laborer titles and only

white employees are eligible for job-progression in

these classifications.”

Answering the allegations of paragraph VI(B) of the

complaint as above amended, the defendant says:

“6. It is admitted that thirteen Negroes employed at the

Defendant's Dan River Steam Station are now classified as

semi-skilled laborers and that one Negro is employed in the

coal-handling section of the Defendant's Dan River Steam

Station. As to the remainder of the allegations contained

in this paragraph VI(B), they and each of them are de-

nied.”

Wuenrerore, the Defendant prays that the relief sought

by plaintiffs be denied; that this action be dismissed; and

for such other and further relief as the Court may deem

just and equitable.

SESE LSS SR RTL LE TORRONE FUER RN —

19a

Order Allowing Class Action

(Filed June 19, 1967)

[Caption Omitted]

This matter was scheduled for conference with attorneys

on May 26, 1967, to determine whether this action is main-

tainable as a class action under Rule 23 of the Federal

Rules of Civil Procedure. After considering briefs and

oral arguments of counsel and being fully advised in the

premises, the Court was of the opinion that this action was

maintainable as a class action and defined the class repre-

sented by plaintiffs;

Ir IS THEREFORE, ORDERED:

(1) That this action is maintainable as a class action

only insofar as it seeks injunctive relief from the alleged

discriminatory practices existing at any time since the

effective date of Title VII of the Civil Rights Act of 1964,

and the class plaintiffs represent are those Negroes pres-

ently employed as well as those who may subsequently

be employed by defendant at its Dan River Steam Station,

Draper, North Carolina; and that plaintiffs also repre-

sent all Negroes who might hereafter seck employment at

defendant’s Dan River Steam Station, Draper, North

Carolina, provided that plaintiffs can show that at least one

Negro plaintiff of that class has sought and been denied

employment or limited in any way in seeking employment

solely because of his race or color since the effective date

of Title VII of the Civil Rights Act of 1964;

(2) That this action is not maintainable under Rule

23(b)(3) and, therefore, it is unnecessary to provide for

notice to members of the class represented by plaintiffs;

20a

Order Allowing Class Action

(3) That this order does not establish any rule of rele-

vancy or competency of evidence as to alleged discrimina-

tory acts or practices which existed prior or subsequent to

the effective date of Title VII of the Civil Rights Act of

1964, and the Court reserves judgment thereon until this

cause comes on to be heard on the merits; and

(4) That, pursuant to Rule 23(c)(1) of the Federal

Rules of Civil Procedure, this order is conditional and may

be altered or amened at any time prior to a decision on

the merits.

/s/ Evwin M. Stanuey

United States District Judge

6/19/67

ERTS —

2la

Motion to Dismiss as a Class Action

(Filed May 15, 1968)

(Caption Omitted]

Defendant moves to dismiss this action as a class action

on the following grounds:

(1) The class is not so numerous that joinder of all

members is impracticable; and

(2) There are no questions of law or fact common to the

class the plaintiffs seek to represent.

FON EIS NAS PO a ae A NEE NR eo NI De TNT HELIN ES, GTN NAS TOTS. —_,

22a

: ¥

Affidavit of A. C. Thies

A. C. Thies, being duly sworn, deposes and says:

(1) I am Vice President, Production and Operation, of

Duke Power Company and was such during all times herein

mentioned. I have personal knowledge of the matters

hereinafter referred to and make this affidavit in support of

defendant’s motion to dismiss this action as a class action.

(2) I am responsible for the personnel promotion policy

at Dan River Station. Since the trial of this action was

completed on February 9, 1968, the promotion and place-

ments for training hereinafter set out have occurred at the

Dan River Station.

(3) Jesse Martin is a Negro with a high school education

and classified as a helper in coal handling operations. He

is not one of the named plaintiffs. He was placed in train-

ing for utility operator on March 18, 1968, for promotion,

if found qualified, to fill an anticipated vacancy. At the

time Jesse Martin was placed in training for this position,

there were in addition to Martin nine white employees in

coal handling. Two of the white employees were high

school graduates and, therefore, qualified for consideration.

They declined to accept this transfer. Seven of the white

employees were not high school graduates and all had been

employed in coal handling at least ten years ago.

(4) On March 19, 1968, H. E. Martin, a Negro and one

of the named plaintiffs having a high school education,

began training for the position of watchman and was

promoted from semi-skilled laborer to watchman effective

April 1, 1968.

(5) R. A. Jumper is a Negro and one of the named

plaintiffs. He has a high school education and is classified

PECK Pete Laniins > " .

a wd. St TASTE Rate etgR REE Roe Erg cr cet eR Ayia) eae cry Tt _t

23a

Affidavit of A. C. Thies

as a watchman. On March 21, 1968, he began training to

fill a test assistant’s position. When he was unable to

qualify for this position, he was moved to the shop on May

7, 1968, to train in mechanical work. At the time Jumper

began this tour of training, there were in addition to

Jumper two white employees classified as watchmen, both

of whom had high school educations, and one white em-

ployee without a high school education who was employed

more than ten years ago, i.e., prior to the adoption of the

high school education requirement. Of those qualified,

Jumper has the greatest length of service with the Com-

pany.

A. C. Tues

A. C. Thies

aa tal aa

24a

Motion to Dismiss

(Filed May 15, 1968)

(Caption Omitted]

At the trial of this action, defendant made a Motion to

Dismiss on the ground that plaintiffs failed to shoulder

the burden of proving that the defendant intentionally en-

gaged in discriminatory and, therefore, unlawful employ-

ment practices as alleged in the complaint. (R. p. 246)

Defendant herein renews its Motion to Dismiss on the

ground that upon the facts and the law plaintiffs have

shown no right to relief. In support thereof, defendant

shows the following:

(A) The plaintiffs’ own evidence establishes that Negro

employees are not limited to menial and low-paying jobs,

are eligible for progression and have progressed into job

classifications above that of laborer. The plaintiffs’ evi-

dence further shows that no vacancies existed in classifica-

tions into which plaintiffs could be promoted from July 2,

1965, until August 8, 1966. On August 8, 1966, Jesse Martin,

the senior Negro with a high school education, was promoted

to learner in coal handling. Subsequently, R. A. Jumper,

the next senior Negro with a high school education was pro-

moted from laborer to watchman.

(B) The plaintiffs’ own evidence establishes that Negro

employees do not perform the same or similar work as white

employees and receive less wages therefor.

refused overtime opportunities and plaintiffs’ own evidence

shows that they are afforded opportunities for scheduled

overtime and emergency overtime on an equal basis with

white employees. In addition, the evidence (Answer to

25a

aa |

Motion to Dismiss

Interrogatory 34(a) and (b)) shows nearly equal allocation

of overtime among the departments.

(D) The plaintiffs’ expert testified he did not know the

meaning of the phrase “professionally developed ability

tests” as used in the Act. The plaintiffs’ evidence, therefore,

fails to make even a prima facie showing that the tests are

not “professionally developed ability tests” within the

meaning of Section 703(h) of the Act.

(E) The plaintiffs’ own evidence establishes that the

tests are equally applicable to white and Negro employees

similarly situated.

(F) Education is not one of the proscribed bases of dis-

crimination under Title VII of the Act. The plaintiffs’ own

evidence establishes that the high school education require-

ment is equally applicable to all employees similarly situ-

ated. The nondiscriminatory requirement is being applied

in a nondiscriminatory manner,

(G) Title VII of the Civil Rights Act of 1964 has pro-

spective effect. Plaintiffs have failed to show a single in-

stance wherein a Negro with a high school education was

denied a promotion into higher skilled classifications since ‘

July 2, 1965.

FO rn

ETL FTES Ot RT eA TR

EE ROUT OLLI Hi

presi OS TOTES

26a

Memorandum Opinion

(Filed September 30, 1968)

[Caption Omitted]

Gorpon, District Judge

Duke Power Company, the defendant in this action, is

a corporation engaged in the generation, transmission, and

distribution of electric power to the general public in North

Carolina and South Carolina. The thirteen named plain-

tiffs are all Negroes and contend that the defendant has

engaged in employment practices prohibited by Title Vil

of the 1964 Civil Rights Act, 20 U.S.C. § 2000 at its Dan

River Station located in Draper, North Carolina (recently

consolidated with the Towns of Leaksville and Spray and

named Eden) and ask that such discriminatory practices

be enjoined.

An order was entered on June 19, 1967, allowing the

action to be maintained as a class action under Rule 23 of

the Federal Rules of Civil Procedure. The class was defined

as those Negroes presently employed, and who subsequently

may be employed, at the Dan River Steam Station and all

Negroes who may hereafter seek employment at the Sta-

tion. The Court has found no reason to alter the June 19

Order.

The evidence in this case establishes that due to the re-

quirements for initial employment, Negroes who may sub-

sequently be employed by defendant would not be subject

to the restrictions on promotions which the named plaintiffs

contend are violative of the Act. A high school education

and satisfactory test scores are required for initial employ-

ment in all departments except labor. Plaintiffs certainly

cannot contend that employees without those requisites who

are hired for the labor department subsequent to the im-

plementation of the requisites should be allowed to transfer

27a

Memorandum Opinion

into other departments when they could not have been ini-

tially employed in those departments. This would be to

deny the defendant the right to establish different standards

for different types of employment. Further, the plaintiffs

do not contend that the defendant’s requirements for ini-

tial employment are discriminatory. Only fourteen Negroes

are presently employed by the defendant, thirteen of whom

are named plaintiffs.

The work force at Dan River is divided for operational

purposes into the following departments: (1) Operations;

(2) Maintenance; (3) Laboratory and Test; (4) Coal

Handling; and (5) Labor. The jobs of watchman, clerk,

and storekeeper are in a miscellaneous category.

Within each department specialized job classifications

exist. These classifications constitute a line of progression

? Answer to Interrogatory No. 11:

Power STATION OPERATORS LABOR

Control Operator Labor Foreman

Pump Operator Auxiliary Serviceman

Utility Operator Laborer (Semi-Skilled)

Learner Laborer (Common)

CoaL AND MaTeriaL HANDLING —MiscELLANEOUS

Coal Handling Foreman Watchman

Coal Equipment Operator Clerk

Coal Handling Operator Chief Clerk

Helper Storekeeper

Learner

MAINTENANCE SUPERVISORS

Machinist Superintendent

Electrician-Welder

Mechanic A

Mechanic B

Repairman

Learner

TEsT aiwD LABORATORY

Testman-Labman

Lab and Test Technician

Lab and Test Assistant

Assistant Superintendent

Plant Engineer

Assistant Plant Engineer

Chemist

Test Supervisor

Maintenance Supervisor

Assistant Maintenance

Supervisor

Shift Supervisor

Junior Engineer

PI Fe ey oe

eee ?

Ln NAS AEE ANNE Ly UP aE OS ON WR ait,

28a

Memorandum Opinion

for purposes of employee advancement. The term “line of

progression” is then synonymous with “department.”

Approximately ten years ago,’ the defendant initiated a

policy making a high school education or its equivalent a

prerequisite for employment in all departments except the

labor department. The effect of the policy was that no new

employees would be hired without a high school education

(except in the labor department) and no old employees

without a high school education could transfer to a depart-

ment other than the labor department. The high school re-

quirement was made applicable on a departmental level

only, and was not made the basis for firing or demoting a

person employed prior to its implementation.

In July of 1965 the defendant instituted a new policy for

initial employment at the Dan River Station. A satisfactory

score on the Revised Beta Test was the only requirement

for initial employment in the labor department. In all other

departments and classifications, applicants were required

to have a high school education and make satisfactory scores

on two tests, the E. F. Wonderlick Personnel Test and the

Bennett Mechanical Comprehension Test, Form AA. The

company’s promotional policy was unchanged and a high

school education remained the only prerequisite to a depart-

mental transfer.

In September, 1965, at the instigation of employees in the

coal-handling department, the defendant promulgated a

policy by which employees in the coal-handling and labor

departments and the watchman classification without a

high school education could become eligible for considera-

? At the trial of this case, objections by defendant to evidence

of activities prior to July 2, 1965, were sustained and the evidence

recorded. Upon a study of briefs subsequently submitted by the

parties, the Court has for purposes of this case only, considered

the evidence as competent and relevant.

29a

Memorandum Opinion

tion for transfer to another department by attaining a

satisfactory score on the two tests previously mentioned.

This procedure was made available only to persons em-

ployed prior to September 1, 1965.

Applicable Provisions of the Act

Sections 703(a)(1) and (2) of Title VII of the 1964 Civil

Rights Act provide:

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

“It shall be an unlawful employment practice for an

employer—

“(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any

individual with respect to his compensation, terms, :

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or national 4

origin; or

(2) to limit, segregate, or classify his employees in

any way which would deprive or tend to deprive any

individual of employment opportunities or otherwise

adversely affect his status as an employee, because of

such individual’s race, color, religion, sex, or national

origin.”

SOS eT eS

The mandates of those two sections is qualified by the fol-

lowing sections of the Act:

“Section 703(h), 42 U.S.C. § 2000e.2(h) :

“Notwithstanding any other provision of this title,

it shall not be an unlawful employment practice for an

employer to apply different standards of compensation,

LOLI OEE OE! TO NR te ih HI

Memorandum Opinion

or different terms, conditions, or privileges of employ-

ment pursuant to a bona fide seniority or merit system,

or a system which measures earnings by quantity or

quality of production or to employees who work in

different locations, provided that such differences are

not the result of an intention to discriminate because

of race, color, religion, sex, or national origin, nor

shall it be an unlawful employment practice for an

employer to give and to act upon the results of any

professionally developed ability test provided that such

test, its administration or action upon the results is not

designed, intended or used to discriminate because of

race, color, religion, sex or national origin. It shall not

be an unlawful employment practice under this title

for any employer to differentiate upon the basis of sex

in determining the amount of the wages or compensa-

tion paid or to be paid to employees of such employer

if such differentiation is authorized by the provisions

of section 6(d) of the Fair Labor Standards Act of

1938, as amended (29 U.S.C. 206(d)).”

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

“Nothing contained in this title shall be interpreted

to require any employer, employment agency, labor

organization, or joint labor-management committee

subject to this title to grant preferential treatment to

any individual or to any group because of the race,

color, religion, sex, or national origin of such individual

or group on account of an imbalance which may exist

with respect to the total number or percentage of per-

sons of any race, color, religion, sex, or national origin

employed by any employer, referred or classified for

employment by an employment agency or labor or-

3la

Memorandum Opinion

ganization, admitted to membership or classified by

any labor organization, or admitted to, or employed

in, any apprenticeship or other training program, in

comparison with the total number or percentage of

persons of such race, color, religion, sex, or national

origin in any community, State, section, or other area,

or in the available work force in any community, State,

section, or other area.”

Congress intended the Act to be given prospective ap-

plication only. Any discriminatory employment practices

occurring before the effective date of the Act, July 2, 1965,

are not remedial under the Act.’

The plaintiffs first contend that they are restricted to

the menial and low-paying jobs and are effectively denied

an equal opportunity to advance to the more remunerative

positions because of their race.

The evidence shows that there are approximately 95 em-

ployees at the Dan River Station, 14 of whom are Negroes.

As of July 2, 1965, the 14 Negroes held jobs in the labor

department which has a lower pay scale than any other

department. On August 8, 1966, three months prior to the

institution of this suit, Jesse Martin, the senior Negro

laborer with a high school education was promoted to

learner in the coal handling department. The 13 Negroes

remaining in the labor department are the plaintiffs in this

action. One of those, R. A. J umper, the next senior Negro

laborer with a high school education has since been pro-

moted to the watchman position. Only one other Negro has

a high school education. Actually, the high school and test-

* Actually, the evidence places the number of defendant's em-

ployees between 90 and 95. The Act was not made applicable to

employers with under i00 employees until July 2, 1966.

32a

Memorandum Opinion

ing requirements which plaintiffs allege are violative of the

Act affect only those plaintiffs without a high school educa-

tion.

The evidence shows that only three of the nine white em-

ployees in the coal handling department have a high school

education; only eight of the seventeen white employees in

the maintenance department have a high school education;

two white shift supervisors in the power plant have less

than a high school education; the two coal handling fore-

men have less than a high school education; and the labor

foreman has less than a high school education.

Although company officials testified that there has never

been a company policy of hiring only Negroes in the labor

department and only whites in the other departments, the

evidence is sufficient to conclude that at some time prior to

July 2, 1965, Negroes were relegated to the labor depart-

ment and prevented access to other departments by reason

of their race.

The plaintiffs contend that upon their initial employment

they were placed in the low paying labor department and

were denied access to the more desirable departments as a

result of the defendant's discriminatory hiring and pro-

motional policies. Since the discrimination occurred prior

to July 2, 1965, it is not remedial under the 1964 Civil Rights

Act. But the plaintiffs reason that in subsequently apply-

ing the high school education requirements on a depart-

mental basis only, the initial discrimination was carried

over and continues to the present. This result, they say, is

demonstrated by the fact that white employees without a

high school education are eligible for job openings in the

mcre lucrative departments while Negro employees with

the same or similar educational qualifications are restricted

to job classifications in the lower paying labor department.

£3 . GRR owrmerers 1 ppemtteeteees —

33a

Memorandum Opinion

Under plaintiffs’ theory, the departmental structure of

defendant’s work force is tainted by prior discriminatory

practices and therefore cannot serve as a basis for apply-

ing educational or general intelligence standards as pre-

requisites to promotion. Plaintiffs contend that the present

system continues the past discrimination and Violates the

Act.

The plaintiffs do not contend nor will the evidence sup-

port a finding that the division of defendant's work force

into departments is an unreasonable system of classifica-

tion. To the contrary, the evidence shows that jobs within

each department require skills which differ in degree and

kind from the skills required in the performance of jobs in

other departments. Also, each department has a different

function in the total operation of the plant.

The plaintiffs do not contend that discrimination on the

basis of education is proscribed by the Act. But they do

contend that a high school education requirement which of

itself continues the inequities of prior racial discrimination

is prohibited.

This theory brings into issue how Congress intended the

Act to be applied.

The legislative history of the Act is replete with evidence

of Congress’ intention that the Act be applied prospectively

and not retroactively, Clark-Case Memorandum, Bureau

of Nat'l Affairs Operations Manual, The Civil Rights Act

of 1964, p. 329; Justice Dept. Reply on Title VII, Bureau of

Nat'l Affairs Operations Manual, The Civil Rights Act of

1964, p. 326. -

In providing for prospective application only, Congress

faced the cold hard fact of past discrimination and the re-

sulting inequities. Congress also realized the practical im-

possibility of eradicating all the consequences of past dis-

Tere

POON OL OLIN 28 SR TCT Hate Re alll a

oe ad na

SE poy

TRL SEEN Ey Oe NET EAE RANE RR NR eT |

See a Vie

. 7 RRR EAE Ss “LITRE tengo OMAP OWN DNL

Memorandum Opinion

crimination. The 1964 Act has as its purpose the abolition

of the policies of discrimination which produced the in-

equities.

It is obvious that where discrimination existed in the

past, the effects of it will be carried over into the present.

But it is also clear that policies of discrimination which ex-

isted in the past cannot be continued into the present under

the 1964 Act. Plaintiffs do labor under the inequities re-

sulting from the past discriminatory promotional policies

of the defendant, but the defendant discontinued those dis-

criminatory practices. More than ten years ago it put into

effect a high school education requirement intended to

eventually upgrade the quality of its entire work force.

At least since July 2, 1965, the requirement has been fairly

and equally administered.

The requirement was made applicable to a department-

alized work force without any intention or design to dis-

criminate against Negro employees. The departments serve

as a reasonable system of classification with each depart-

ment having a different function and each department re-

quiring different skills. It is important to remember that

the departmental structure does not result in Negroes doing

the same or similar work as white employees but receiving

smaller wages. The past discrimination was in restricting

Negroes to the menial and low paying jobs in the labor

department. Had Negroes not been restricted in this fash-

ion prior to the institution of the high school education re-

quirement, there would be no question of the present

legality of defendant's policies.

If the relief requested by plaintiffs is granted, the de-

fendant will be denied the right to improve the general

quality of its work force or in the alternative will be re-

quired to abandon its departmental system of classification

28 TOI SAE RGA AO: De NNN,

en ee oy =

. é

; Memorandum Opinion 3

| t

and freeze every employee without a high school education :

in his present job without hope of advancement. And these

harsh results would be necessary, under plaintiffs’ theory,

because of discriminatory practices abandoned by the de-

fendant over ten years ago.

It is improbable that any system of classification used by

an employer who has discriminated prior to the effective

date of the Act could escape condemnation if this theory

prevailed, regardless of how fair and equal its present poli-

cies may be. This Court does not believe such application

of the Act to have been contemplated by Congress. Other-

wise, it would have been unnecessary to indicate an inten-

tion that the Act receive only prospective application.

The plaintiffs cite Quarels vy. Phillip Morris, Inc., an un-

reported decision in the Eastern District of Virginia. That

case held that restrictions on departmental transfers where

the departments had been organized on a racially segre-

gated basis were violative of the Act. Interdepartmental

transfers had been completely prohibited under the prior

discriminatory practices. Provisions of two collective bar-

gaining agreements negotiated in the fall of 1964 and ef-

fective over a three-year period from February 1, 1965,

modified the previous no-transfer policy only to the extent

that a limited number of employees from the previously

all-Negro departments would be allowed to transfer to the

previously all-white department, A “Memorandum of Un-

derstanding” executed on March 7, 1966, modified seniority

and transfer provisions only in degree. These provisions,

in effect, continued the old discriminatory no-transfer poli-

cies except that four Negroes were allowed to transfer every

six months without effect on their seniority rights. These

present practices retained the discriminatory flavor of the

past and were held violative of the Act.

— eae ee ee ee oe |

LTO tp Nam &

ES RRR RC EP ORT RIE SE

Memorandum Opinion

The restrictions on departmental transfers at Duke

Power’s Dan River Station are distinguishable from the

restrictions »f Phillip Morris, Inc., condemned in Quarles.

The restrictions on interdepartmental transfers at Duke

Power are based on education requirements whereas the

policy at Phillip Morris represented only a relaxation of

earlier restrictions based on race. Phillip Morris exhibited

no business purpose or reason for its transfer restrictions,

but as pointed out heretofore, Duke Power had legitimate

reasons for its educational and intelligence standards and

for applying those standards to its departmental structure.

If the decision in Quarles may be interpreted to hold that

present consequences of past discrimination are covered

by the Act, this Court holds otherwise. The text of the

legislation redounds with the term “unlawful employment

practice.” There is no reference in the Act to “present

consequences.” Moreover, under no definition of the words

therein can the terms “present consequences of past dis-

crimination” and “unlawful employment practice” be given

synonymous meanings.

This does not mean that a court cannot look beyond the

effective date of the Act to determine whether present prac-

tices are discriminatory. That, in fact, was what the court

did in the Quarles case.

Plaintiffs secondly contend that the defendant’s policy of

allowing passing marks on two general intelligence tests to

substitute for a high school education in determining eligi-

bility for departmental transfer is discriminatory and in

violation of the Act.

The application of defendant’s testing procedures on a

departmental basis is not in violation of the Act for the

same reasons expressed previously in the discussion of the

high school requirement.

OVP PSV tt a ee

37a

Memorandum Opinion

In light of this Court’s holding that the defendant’s policy

of making a high school education a prerequisite to de-

partmental transfers is non-discriminatory, it would appear

to be in derogation of the plaintiffs’ interests to abolish the

use of test scores as a substitute for the high school re-

quirement. But to the extent that the nature of the tests

may be discriminatory, their validity under the Act must be

examined.

Section 703(h), (42 U.S.C. § 2000-2(h)) of the Act pro-

vides that it shall not be

“[A]n unlawful employment practice for an em-

ployer to give and to act upon the results of any pro-

fessionally developed ability test provided that such

test, its administration or action upon the results is not

designed, intended or used to discriminate because of

race, color, religion, sex or national origin.”

The clause was inserted by an amendment introduced by

Sen. Tower (R. Tex.). It was designed to insure the em-

ployer’s right to utilize ability tests in hiring and promoting

employees which practice had been condemned by a hearing

examiner for the Illinois Fair Employment Practices Com-

mission.

The plaintiffs apparently read the section to allow tests

only when they are developed to predict a person’s ability

to perform a particular job or group of jobs. That is, if

the job requires only manual dexterity, then the Act re-

quires an employer to utilize only a test that measures

manual dexterity. Guidelines on employment testing pro-

cedures set out by the Equal Employment Opportunity

Commission serve to fortify that appraisal of the Act:

“The Commission accordingly interprets ‘profes-

sionally developed ability test’ to mean a test which

——— 7

38a

Memorandum Opinion

fairly measures the knowledge or skills required by

the particular job or class of jobs which the applicant

seeks, or which fairly affords the employer a chance

to measure the applicant’s ability to perform a particu-

lar job or class of jobs.”

This Court cannot agree to this interpretation of § 703(h).

Title VII of the 1964 Act has as its purpose the elimination

of discriminatory employment practices. It precludes the

use of ability tests which may be used to discriminate on

the basis of race, color, religion, sex, or national origin.

Nowhere does the Act require that employers may utilize

only those tests which accurately measure the ability and

skills required of a particular job or group of jobs. No-

where does the Act require the use of only one type of test

to the exclusion of other non-discriminatory tests. A test

which measures the level of general intelligence, but is un-

related to the job to be performed is just as reasonably a

prerequisite to hiring or promotion as is a high school

diploma. In fact, a general intelligence test is probably

more accurate and uniform in application than is the high

school education requirement.

The two tests used by ihe defendant were never intended

to accurately measure the ability of an employee to perform

the particular job available. Rather, they are intended to

indicate whether the employee has the general intelligence

and overall mechanical comprehension of the average high

school graduate, regardless of race, color, religion, sex, or

national origin. The evidence establishes that the tests were

professionally developed to perform this function and there-

fore are in compliance with the Act.

The Act does not deny an employer the right to deter-

mine the qualities, skills, and abilities required of his

EE RE ATT ARN RR ar CSE AMEN TS NTL ee tae

~ ahi

Leah el Meas

39a

Memorandum Opinion

employees. But the Act does restrict the employer to the

use of tests which are professionally developed to indicate

the existence of the desired qualities and which do not dis-

criminate on the basis of race, color, religion, sex, or na-

tional origin.

The defendant’s expert testified that the Wonderlic Test

was pivfessionally developed to measure general intelli-

gence, i.e., one’s ability to understand, to think, to use good

judgment. The Bennett Test was developed to measure

mechanical understanding of the operation of simple ma-

chines. These qualities are general in nature and are not

indicative of a person’s ability to perform a particular task.

Nevertheless, they are qualities which the defendant would

logically want to find in his employees. The Act does not

deprive him of the right to use a test which accurately, re-

liable, and validly measures the existence of those qualities

in an applicant for initial employment or for promotion.

Plaintiffs lastly contend that the defendant discriminates

on the basis of race in the allocation of overtime work at its

Dan River Station.

Overtime work at Dan River is referred to as “scheduled

overtime” or “emergency overtime.” Every employee at

the station is allotted eight hours of “scheduled overtime”

every four weeks. All other overtime is “emergency over-

time.”

Between July 2, 1965, and February, 1967, employees in

the coal-handling department worked approximately 10.39

per cent of their total working hours in overtime. The per-

centage of overtime worked by employees in other depart-

ments was as follows: maintenance, 7.84 per cent; opera-

tions, 5.39 per cent; labor, 5.22 per cent; and other, 5.19

per cent. The high percentage of overtime worked by em-

ployees in coal handling was due to erratic deliveries of

OE SID SDNY LTE I BOF ACRE Ue SS.

40a

Memorandum Opinion

coal and the difficulty in handling frozen coal during winter

months. As a general rule, overtime work is done by the

employees of the department which would ordinarily do the

work. But occasionally in coal handling, the work load be-

comes so great that employees from other departments are

called in to help. The gist of plaintiffs’ contention is that

Negroes are denied overtime work in coal-handling and so

are discriminated against in the allocation of overtime.

The evidence does not support this contention.

The percentages of overtime worked in each department,

with the exception of coal-handling, are very similar. The

higher percentage in the maintenance department appears

to have been due to overtime work in repairing equipment

and not to overtime in the coal-handling operations. Fur-

ther, the evidence is that Negroes in the labor department

assigned to work in coal-handling do not work the same

overtime as employees in the coal-handling department be-

cause of the danger involved in doing their work at night

while the coal-handling operations are going on.

It is concluded that the difference between allocation of

overtime to employees is not the result of discriminatory

practices and is not in violation of the Act.

Conclusions of Law

1. This Court has jurisdiction over the parties and sub-

ject matter of this action, pursuant to the provisions of

Section 706(f) of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-5(f).

2. By order of this Court dated June 19, 1967, this action

was permitted to be maintained as a class action, but the

order was made conditional in nature pursuant to the

Federal Rules of Civil Procedure 23(c)(1). The order de-

Fact e . ‘ — .

ro SERS ANTES RP SAR A re Eg as TERA I ters

4la

Memorandum Opinion

fined the class plaintiffs sought to represent as all Negroes

presently employed, all Negroes who may subsequently be

employed, and all Negroes who may hereafter seek employ-

ment at the defendant’s Dan River Steam Station in Draper,

North Carolina.

3. The Court is of the opinion, finds, and concludes that

the defendant’s high school education requirement does not

violate Title VII of the Act. It has a legitimate business

purpose and is equally applicable to both Negro and white

employees similarly situated.

4. The tests in use by the defendant at its Dan River

Station are professionally developed ability tests within

the meaning of Section 703(h) of the Act and are not ad-

ministered, scored, designed, intended, or used to discrimi-

nate because of race or color.

5. Title VII of the Civil Rights Act of 1964 became ef-

fective July 2, 1965. The legislative history of the Act

clearly slows that it is prospective and not retroactive in

effect. Since the effective date of the Act, the defendant

has not limited, classified, segregated, or discriminated

against its employees in any way which has deprived or

tended to deprive them of any employment opportunities

because of race or color.

6. The defendant has not discriminated in the allocation

of overtime on the basis of race or color and is not in viola-

tion of the Act.

7. The plaintiffs have failed to carry the burden of prov-

ing that the defendant has intentionally discriminated

against them on the basis of race or color. There are no

dee

PRIMO NLOWR SL EI AEN NEMS REIT ib 29

i " PER

MILIAN OEE LESLIE AIT MOREL OT ANNIE SES Rr ge Ra TS OE Neat BO

42a

Memorandum Opinion

legally established facts from which the Court could draw

an inference that the defendant has so discriminated.

Accordingly, no relief is appropriate, and a judgment

dismissing the complaint will be entered. Within ten (10)

days of this date, counsel for the defendant will submit a

proposed judgment, first submitting same to counsel for

the plaintiffs for approval as to form.

/s/ Eveene A. Gorpon

United States District Judge

September 30, 1968

ASS

43a

Judgment

(Filed October 9, 1968)

{Caption Omitted]

This action came on for trial on February 6, 1968, and

February 9, 1968, before the Honorable Eugene Gordon,

United States Judge, without a jury, and the evidence ad-

duced by the parties having been heard and the Court hav-

ing made its findings of fact and conclusions of law as set

forth in the Court’s Memorandum Opinion dated September

30, 1968, it is hereby

OrpErep, AbJUpGED AND Decrerp, that the plaintiffs, and

the class they represent, are not entitled to relief in this

action; that their complaint and this action is hereby dis-

missed on the merits; and that the defendant recover its

costs.

/s/ Evcenr A. Gorpon

United States Judge

bi Ones -

EE EEL ERN ST INC PERNT ELNISL SLOT LE LPUE ET TE RU RTE MICO ma ay

RNR

Se te ee ee Cs Oe ee a a

44a

Notice of Appeal

(Filed October 18, 1968)

[Caption Omitted]

Notice or APPEAL AND DESIGNATION OF REcORD ON APPEAL

Notice is hereby given that Willie S. Griggs, et al., plain-

tiffs above named, hereby appeal to the United States Court

of Appeals for the Fourth Circuit from the final judgment

and order entered in this action on the 9th of October, 1968

by the United States District Court for the Middle District

of North Carolina, Greensboro Division, pursuant to the

Memorandum Opinion of said Court on September 30, 1968.

DESIGNATION OF RecorpD oN APPEAL

Plaintiffs, by their undersigned attorney, pursuant to

Rule 10 of the Federal Rules of Appellate Procedure for

the United States Court of Appeals, hereby designate all

the original files and the complete transcript of the evidence

in the subject case for inclusion in the record on appeal, in-

cluding all pleadings, exhibits, affidavits, testimony, orders,

memorandum opinion, judgment, notice of appeal and this

designation.

Attorney for Plaintiffs

RW STR OC Fe es Ren. ~~

45a

Transcript of Hearing February 6, 9, 1968

Pursuant to notice, the above entitled case was heard in

the United States Courtroom, Federal Building, Greens-

boro, North Carolina, commencing at 9:30 a.m. on the 6th

day of February, 1968.

HonoraBte Evcene A. Gorpon, Presiding

APPEARANCES

For the Plaintiffs:

J. LeVonne Cuamaers, Esq.

Davw Danssy, Esq.

Rosert Betton, Esq.

For the Defendant:

Grorcr W. Fercuson, Esq.

WituiaM I. Warp, Jr., Esq.

GraHaM Eruacuer, Official Court Reporter

[8] a

Mr. Belton: First, we'd like to introduce and have marked

for identification, Plaintiffs’ Exhibit +1, which is the

charge filed with the Equal Employment Opportunity Com-

mission. I show Counsel for the Defendants a copy of the

charge, and ask if he will be willing to stipulate that, that

similar charges were filed by each of the named Plaintiffs

in the Case?

Mr. Ferguson: No, sir. May it please the Court? On

the 26th day of April, 1966, Mr. J. D. Knight, Superintend-

ent of the Dan River Steam Station, is receipted for service

of certain charges from the Equal Employment Opportunity

Commission, made by the Plaintiffs in this Case. Upon

examination of what Mr. Belton furnishes me and upon

46a

Colloquy

examination of the charges for which we receipted service,

I find a substantial difference, and moreover, we object to

anything introduced into this proceeding in connection with

the Equal [9] Opportunity Commission, relying on—in

Section 706A of the Statute, which says that “nothing said

or done during and as a part of such endeavor, referring to

the Conciliation Persuasion, and so forth, may be made

public by the Commission without the written consent of

the Parties or used as evidence in a subsequent proceeding.”

Mr. Belton: At this time, Your Honor, we'd like to in-

troduce into evidence copies which the Plaintiffs—a copy

of each of the charges filed with the Equal Employment

Opportunity Commission. These are the charges that the

Plaintiff filed and the ones that were given to us by the

Plaintiffs.

The Court: But vou say they were different from what

you received?

Mr. Ferguson: Yes, sir.

The Court: I don’t see why you couldn't resolve that

difference between you. You know,—it was a written docu-

ment, wasn’t it?

Mr. Ferguson: Yes, sir.

The Court: How on earth could there be a difference in

that? I don’t understand.

Mr. Ferguson: Your Honor, it’s in different type. The

charges are different. They both allege discrimination, but

regardless of the difference in the two [10] documents, we

would moreover object on the ground that it is not ad-

missible.

The Court: Get me—that’s 422USCA2000.

Mr. Ferguson: Yes, sir.

Mr. Belton: May it please the Court on the point of

whether the documents sought to be introduced, are admis-

DERI OR remem eS

47a

Colloquy

sible, Counsel for the Defendant points to a Section per-

taining to the confidentiality Section of the Statute. Plain-

tiffs contend that the correct reading of the Statute means

that nothing shall be introduced into evidence that was

talked about or discussed in the course of Conciliation,

which means that Conciliation takes place after a charge

has been filed,—after an investigation has been made, and

after the Commission has rendered a decision, and we think

a proper reading of the language in 706 shows that the

documents sought to be introduced by the Plaintiff, do

not come within the ambit of the purview of the confiden-

tiality of the provision of that section.

The Court: Let me take a look at it. Of course, you've

got to, before you have a right to bring this action, you have

to show that you have filed with the Commission something.

That's a condition preceding to this, isn’t it?

Mr. Ferguson; That's quite true, Your Honor, but [11]

we did not question jurisdiction of this matter.

Mr. Belton: The reason why we are seeking to introduce

this, Your Honor, is because it does go to the question of

one of the--for the prayer of relief on the complaints, to

show that each of the main Plaintiffs have pursued their

remedies for the—you see, since this is part of the Class

action—

The Court: What do you say about this discrepancy

about what they receipted for? What is your surmise of

the difference there?

Mr. Belton: The only thing that I can surmise, Your

Honor,—it would be just a—I guess, on my part is that

what may have happened is that after the charge had been

properly noted or after the copies which I have, had been

received by the Commission, the Commission may have

attempted to try to get the Parties to further explain the

POP IE. aCe

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a la a FOE,

;

‘

it SORRY RY Sara ROC sel

Colloquy

basis of their charge and may have taken statements for

them, in the course of their investigation. This is my sur-

mise, Your Honor.

The Court: You might disagree with this. Just in what

respects—have you seen what Mr. Ferguson has by way

of what he says was filed with them? Were they receipted

fort What I want to know, what is the essential difference?

Maybe you can tell me, Mr. Ferguson.

{12] Mr. Ferguson: Your Honor, in this particular

document, the one for which we gave a receipt, they talk

about discrimination based on tests—that it was necessary

to take a test to qualify for any job level different than the

one they are working in. That's all it says, except a gen-

eral broad allegation of discrimination.

The Court: Wasn't that in the one they filed?

Mr. Ferguson: No, sir. They had made a broad allega-

tion to the same effect, partially, except that in the one that

they now show me, it talks about maintenance of separate

facilities and discrimination in rates and scales of pay.

Nothing about tests at all, although their complaint alleges

discrimination based on tests.

The Court: Let me read this, for just a moment. Well,

I'm going to overrule the objection and let the record show

that the Defendant objects to the introduction into the evi-

dence of copies of the charges which Plaintiffs allege that

they filed with the EEOC on March 15th.

Mr. Ferguson: Your Honor, it please the Court, mine

says March the 15th, and this one says the 10th of August

of ’66. I don’t know what’s happened here. I raised this at

the Pre-Trial Conference or prior to [13] the Pre-Trial

Conference, when we were getting this Order together and

for that reason, reserve my right to object to it at this time,

and I pointed this out to them.

AR URRY — . * kp rer erat: —

PEEL ES LTS SSE TENET CELE EI ETM OL EARN

49a

OPN

Colloquy

eae!

The Court: Well, I do not understand. I will allow you,

if you desire, to introduce what you have there.

Mr. Ferguson: No, sir.

The Court: This is a non-jury matter.

Mr. Ferguson: Yes, sir.

The Court: The rules of evidence are, in my opinion, just

} as strict as they would be if it were a jury matter. How-

ever, the Courts have been rather liberal to us in assuming

that when we start writing our decision about it, that we

only consider that which is competent, and dismiss from our

minds when we look at that which is not competent. So,

having that rule in mind, I am a little more liberal with

getting whatever is done and said about the matter. If I

PP LP OTL EAE LIC NEE PIE) NG EIEN.

C. Pureell—P-u-r-c-e-l-|—William Purcell.

The Court: What was that last number, Mr, Vaughn?

_ haven't so protected the Defendant, let it show that they i

i object and except to the introduction of the copies into the :

| evidence in this case. :

( (Plaintiffs’ Exhibit #1 was received into evi- ;

| dence.) t

i Mr. Belton: At this time, I'd like to have marked [14] i

for identification Plaintiff's Exhibit #1, which is the charge :

of Clarence Jackson; Plaintiffs’ Exhibit #2, which is the "

| charge of James Tucker; Plaintiffs’ Exhibit #3, which is i

the charge of Jumper and Hairston, each—H-a-i-r-s-t-o-n; f

Plaintiffs’ Exhibit #4 is the charge of Clarence Purcell and 3

Willie Griggs; Plaintiffs’ Exhibit #9, which is charge of t

| Hatchett—H-a-t-c-h-e-t-t; Plaintiffs’ Exhibit #6, which is &

the charge of Herman Martin; Plaintiffs’ Exhibit +7, which ;

is the charge of Eddie Galloway and Junior Blackstock ; ;

| and Plaintiffs’ Exhibit #8, which is the charge of William i

;

ae STS ALE CEN sLOCANRRTEeene

PAS

Colloquy

Clerk Vaughn: #8.

(Plaintiffs’ Exhibit #1, #2, #3, #4, #5,

#6, #7, and #8 were marked for identifica-

tion.)

Mr. Belton: At this time, Plaintiffs would also like to

introduce into evidence the decision of the EEOC, which

accompanied the letter advising the named Plaintiffs of

their right to proceed in Court.

The Court: Any objection by the Defendant?

Mr. Ferguson: Same objection, Your Honor.

The Court: All right. Let the record show that the ob-

jection is overruled and that the Defendant excepts to this

ruling of the Court.

[16] es ee

Mr. Belton: We would like to introduce at this time,

Plaintiffs’ Exhibit #10, which is a copy of the letter sent

to each Plaintiff advising them of their right to proceed

in Court. At this time, 1 would like to ask if I could get a

stipulation fron: Counsel that each of the named Plaintiffs

received a copy of the letter, so that I won’t have to intro-

duce all of them?

Mr. Ferguson: As far as I am concerned, you may intro-

duce that as representative of what was received by all the

Plaintiffs.

The Court: All right.

(Plaintiffs’ Exhibit #10 was marked for identi-

fication.)

Mr. Belton: We introduce a letter of Willie Boyd, as

exemplifying the letter received by each of the named Plain-

tiffs. We'd also like to introduce at this time, Plaintiffs’ Ex-

hibit, and have marked for identification Plaintiffs’ Exhibit

Sete se . . .

dla

Colloquy

#11, which consists of answers to interrogatories, which

were the interrogatories propounded to them. These were

the answers [17] supplied in February of ’67 and March

of ‘67. I would like to ask the Court, since there is a copy

of the interrogatories on file, if we might have the originals

marked for an Exhibit, for the record?

The Court: You say, February and March of ’679

Mr. Belton: That’s correct, Your Honor.

The Court: Yes, that will be all right.

[21] eee

Mr. Belton: We would like at this time to have marked

for identification and introduced into evidence, the Wonder-

lic—a copy of the Wonderlic Personnel Manual.

[22] eee

The Court: All right, let the record show that the Ex-

hibit #13 is received into the evidence.

(Plaintiffs’ Exhibit +13 was marked for identi-

fiation, and received into evidence.)

Mr. Belton: We'd like to introduce at this time and have

marked for identification, the depositions in their entirety,

of Kenneth Austin, who is the Vice-President of Personnel

for the Company.

o e e & o

[26] (Plaintiffs’ Exhibit #14 was marked for

identification. )

Mr. Belton: We would like to have marked for identifi-

cation at this time and introduce into evidence the deposi-

tions of Mr. J. D. Knight, who is the Superintendent in

SP ONO aR TN TTT Se Ra ROE RE “SRNR NENT REO MANE,

52a

Colloquy

charge of the Dan River Steam Station, a facility of the

Company.

The Court: All right.

(Plaintiffs’ Exhibit #15 was marked for identifi-

cation.)

How about letting Mr. Belton go ahead with these depo-

sitions, and then you can, Mr. Ferguson, make whatever

objections you want to make.

Mr. Ferguson: All right.

Mr. Belton: We’d like to have marked for identification

and introduced at this time the deposition of Mr. Theis,

who is a Vice-President of Production Operation of the

Company.

(Plaintiffs’ Exhibit #16 was marked for identifi-

cation.)

Mr. Belton: We'd like to have marked for identification

and introduced into evidence the depositions in their en-

tirety of Mr. J. Dan Rhyne, who is the assistant to Mr.

Knight at the Dan River Steam Station.

(Plaintiffs Exhibit #17 was marked for identifi-

cation.)

[27] *ee

Mr. Belton: We'd like to have marked for identification

as Exhibit #18 and introduced into evidence, the deposi-

tion in the entirety of Mr. Richard K. Lemons, * * *

[31] eee

Mr. Belton: Those, Your Honor, are the depositions.

The Court: All right, Mr. Ferguson. On the depositions,

starting with Exhibit #14, what objection if any, do you

have to Exhibits #14 through #30?

MARTH

on SO nrg at Sok Si — - rp cones NBA We hare

EEO NS POSSI IE LIES,

53a

Colloquy

Mr. Ferguson: Your Honor, we would have the same

levity objection that we had to Mr. Kenneth Austin’s

[32] deposition, that I mentioned to you previously. I

don’t think there’s any necessity in repeating it. We

would—after we got a chance to look at the composite

picture and other evidence to overcome what we think are

inferences that are not properly drawn.

The Court: All right. To protect you on the record,

let’s state that you object to the introduction of Exhibits

#14 through #30, and the objection is overruled, and

Exhibits =14 through #30 are received into the evidence. :

Let the record show that actually, the Defendant only con-

tends as to the deposition—that it should be allowed to

amplify and explain some of the answers made in these

depositions, and if so allowed, really indicates no objection

to the deposition.

The Court had advised the Defendant that it would be

given opportunity to give such additional explanation of .

the answers contained in these depositions as the rules

of evidence allow. All right.

(Plaintiffs’ Exhibits +14 through #30 were re-

ceived into evidence.) :

Mr. Belton: May it please the Court? We would like to

have marked for identification and introduce into evidence

at this time, Plaintiffs’ Exhibit #31, which is the educa-

tional background of all employees of the Company as of [

April 29, 1966.

[33] The Court: Now, is that contained on just one

sheet?

Mr. Belton: It consists of two sheets, Your Honor.

The Court: All right. q

Mr. Ferguson: I am inquiring of Counsel if he repre-

sents that this is what I furnished him with my letter of

September 15, 19671

PPLE CH LOE OEE

BERR RAAT OTE NOE, iE TES BT RETIN BENE REO ND BO RARE NIA SO OE

S4a

A. C. Thies—for Defendant—Direct

Mr. Belton: That’s correct.

The Court: All right, let the record show that received

into the evidence is Plaintiffs’ Exhibit #31.

(Plaintiffs’ Exhibit +31 was marked for identi-

fication and received as evidence.)

[43] * ee

Mr. Ferguson: Come around, Mr. Thies.

Whereupon, A. C. Thies was duly sworn and testified as

follows:

Mr. Belton: Your Honor, before we get to the

testimony of this witness, I would like to ask the

Court to clarify for purposes of the record whether

or not the Exhibits have to be introduced—Exhibits

5 through 12, if you will?—sought to be introduced?

If you will receive in evidence, for clarification of

the record?

The Court: Let the record show that the Exhibits |

offered by the Plaintiffs, being Exhibits #1 through ~~

+32, were received into evidence of the Court, sub-

ject to the objections made by the Defendant, which

appear already on record. That takes them all, in

case you’ve overlooked any.

(Plaintiffs Exhibits #5 through #13 were re-

ceived into the evidence.)

Mr. Belton: Thank you.

{44] The Court: All right.

Direct Examination by Mr. Ferguson:

Q. For the record, please state your name. A. Austin ~

C. Thies. :

ee Songer Soe — . PGE PARE STIEME AON ea es

RE SE STE ME TLE: LS LLL DSN LT TE

2 LIK tin EO

PP a A BS ee

TREE NEL IOS ye OE CE ELE AE + A MP EY ING TPP EN it 0 Ds RATED PONE OHS TRE EY Wi

55a

A. C. Thies—for Defendant—Direct

Q. Mr. Thies, what’s your occupation? A. I’m Vicee-

President of Production and Operation for the Duke Power

Company.

Q. What is your educational background, Mr. Thies? A.

I have a BS Degree in Mechanical Engineering from

Georgia Institute of Technology.

Q. Are you responsible for the operations at the Dan

River Steam Station, subject to this proceeding? A. Yes,

I am.

Q. Would you describe, please, sir, in a general way the

operations that are conducted at the Dan River Station?

A. At Dan River, we are in the process of converting the

energy in coal into electrical energy for our customers, and

in order to do this, we receive large quantities of coal

from the mines. We weigh it; we sample it; we unload it:

we distribute it to storage of the bunkers. It is fed from

these bunkers through pulverizing mills into the boilers.

From the boilers, the energy that’s in the coal is turned

into heat energy by burning, and this heat energy forms

steam, and that steam is brought to the turbine generators

(45] where the heat energy and the steam is turned into

mechanical energy of the rotation of the machinery, and

the rotational energy and the mechanical energy and the

turbine drives of the generator, where that is changed into

electrical energy, and then that electrical energy is taken

out to the sub-station to step up the voltage for transmis-

sion over the power system. Now, this is an overall concept

of the operations at Dan River.

Q. Thank you. Are the operations at Dan River divided

departmentally? A. Yes, sir, they are.

Q. Would you name the departments, please, sir, and

the functions of each? A. Well, I suppose we can follow

the same general pattern that I followed in describing the

56a

A. C. Thies—for Defendant—Direct

functions of the station. The coal is received by the Coal

Handling Operations group, or Department, and these in-

dividuals are responsible for the weighing, the sampling,

the unloading, the transporting of the coal, the operation

of locomotors, the bulldozers, the crushers, the equipment

in the coal handling operations, and this is that depart-

ment’s function. The Operating Department takes over

next. They are responsible for safe and efficient and re-

liable operation of the equipment within the Power Sta-

tion, and the equipment comes under their control. They

operate the boilers, the turbines [46] and all of the auxil-

iaries and control equipment. They operate the electrical

sub-station,—the inner connections with the other Power

Companies, and the system. The Maintenance Department

is in the Power Station, and it is responsible for all me-

chanical and electrical maintenance, and such things as

welding and that sort of work. It’s mechanical maintenance

of all of the equipment—electrical maintenance of all of

the equipment.

The Court: What exactly did you say—the first

one you talked about—the handling of the coal? The

second one was the Operating Department, and the

third, Maintenance Department, and you said the

first was concerned with the coal. What did you call

that division?

The Witness: That is the Coal Handling Depart-

ment—coal handling operation.

The Court: All right. All right.

The Witness: Then, we have, these are the three

major divisions, I suppose, of the departments, of

the organization. We have certain service depart-

ments. We have a Laboratory Department where

A. C. Thies—for Defendant—Direct

laboratory technicians are responsible for the analy-

sis of boiler water to keep the boiler water pure

enough to be suitable for use without damaging the

boilers. They analyze the coal or BTU,—the ash

moisture heat affusion and that sort of thing. They

make chemical analysis of [47] various fluids and

liquids, in their connection with the operation of the

Power Station. They are responsible for making the

de-mineralized water that goes into the boiler Sys-

tem. Then we have the Test Department, and this

is the department that has technicians that are re-

sponsible for the performance of the Power Station,

as well as the eleetrical—the Electronie Maintenance,

on specialized control eqaipment,—the maintenance

of the accuracy of tle instruments and the gauges

and the control devices in the Power Station. They

are also responsible for testing the Power Station

equipment to be sure that it is performing as it is

designed to perform to give us the maximum effi-

ciency overall from the Power Station. They use the

results of the coal analysis to determine the overall

efficiency of the operation of the station. Then, we

have the Labor Department which is a service de-

partment of the station, really to all of the depart-

ments. In this group—this group is generally re-

sponsible for the janitorial services in the Plant.

They do a number of miscellaneous labor jobs around

the Plant. They will pick up the garbage with the

truck. They will occasionally mix mortar in a trough

with a hoe or they will help to put some boards up

for a form in a boiler when we have an outage. They

will clean bolts with a wire brush, when the turbine

is down for inspection. They will do a lot of labor-

PR Os

NTSes

Tera ae

58a

A. C. Thies—for Defendant—Direct

type work of this kind on special assignment, but

generally, [48] their work is of the janitorial type.

The other two groups that we have are the Security

Department—they are the watchmen—then, we have

a Clerical Group, and in the Superintendent’s office

is the Chief Clerk, or Clerical Supervisor, it is, and

an assistant. I think this pretty well covers the Sta-

tion organization.

By Mr. Ferguson:

Q. Mr. Thies, will you please state for us the Job Classi-

fications and the lines of progression in each of the depart-

ments that you have mentioned? A. Yes, sir. In the Coal

Handling Operation, a man would start out there as a

Learner. He would progress as he learned, to Helper, and

then if he was performing satisfactorily, he would be pro-

moted to Coal Handling Operator, and after he had pro-

gressed through the Coal Handling Operator Classification,

and if he was qualified to run every job in the Coal Han-

dling Operation competently, then he would be considered

for the Premium Pay Classification in Coal Handling,

which we call Coal Equipment Operator. If he qualified

for that and had progressed through the full range of the

Coal Handling Operator Classification, then he would be

promoted to the Coal Equipment Operator Classification.

Now that is the end of the normal progression in the Coal

Handling operation. In the Operating Department, a man

would start in as a Learner. If he progressed satisfac-

torily and could do the work, he would go to Utility Oper-

ator. He [49] would progress through that job to the

top of that classification. Now, he would not progress

beyond the Utility Operator unless there was an opening

ahead. There are a certain number of operators required

Os ELSES SE, LNB IA ete NITEM RAS MES SOS NUECES On ra

59a

A. C. Thies—for Defendant—Direct

to operate the Station. This is the only department that

has a certain number of men—minimum that is required.

Then, he is, if there is an opening above, he is promoted

to Pump Operator and progresses through that classifica-

tion. If there are openings in the Control Operator Classi-

fication that pertain, he is moved to the Control Operator

Classification. Now, this is the end of the normal progres-

sion through the Wage and Hour structure. Of course, we

do promote trom our Control Operator Classification into

our Shift Supervisor Classification, occasionally, when we

need a supervisor. This is the place that we would nor-

mally look for this man. This, I think, pretty well covers

the Operating Department. In the Maintenance Depart-

ment, a man would start out as a Learner; it would pro-

gress, if his work were satisfactory, from Repairman to

Mechanic B; from Mechanic B to Mechanic A; he could

branch out at that time to be either an Electrician, a Welder,

or a Machinist. These are the three top classifications in

the Maintenance Department, and in this department again,

when we have an opening for an Assistant Maintenance

Supervisor, we would normally look to the maintenance

force to find a man that was qualified to be that Assistant

Maintenance [50] Supervisor; so that would be a possible

further progression, for him in the future, if he were qual-

ified. In the Laboatory, a man would start out as a Lab

Assistant, a Lab Technician, a Lab Man. These are the

three progressive steps in the Laboratory. The same per-

tains in the Test Department. It is called Test Man, Test

Assistant, and Test Technician; instead of the word, “Lab-

oratory,” it is the same type of progression in these two

departments. The Clerk could normally progress only if

there was a vacancy as Clerical Supervisor and he were

qualified for that job. The Watchmen, if they had an in-

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60a

A. C. Thies—for Defendant—Direct

terest and were qualified, progress to either the Coal Han-

dling Operations or could progress to one of the depart-

ments in the Plant, if they had the educational background,

and the requirements. The Laborers in the Labor Depart-

ment progress from Labor to Labor Semi-skills, and if they

meet the qualifications, progress to either the Coal Han-

dling Operations and go on through those, or they can

progress into the Plant to feed various jobs in Maintenance

or Operation, or they could progress on up to the Watchman

Classification if there were an opening there, providing

they meet the qualifications.

Q. Mr. Thies, when you were talking about the Coal

Handling Operation Department, did you indicate that the

lowest—that the entering classification, as it were, was

Learner or Helper? [51] A. It’s Learner.

Q. And Learner progresses to Helper within that clas-

sification and then on up? Is that right? A. Yes. This

is the normal way it is done.

Q. Mr. Thies, are you familiar with the promotions that

have been made at Dan River since July the 2nd, 1965?

A. Yes, sir, in a general way.

Q. Would vou state whether or not there have been any

vacancies and promotions into those vacancies since July

the 2nd, 1965? A. Yes, sir, there have.

The Court: The date is July 2nd’

Mr. Ferguson: Yes, sir.

By Mr. Ferguson:

Q. You say, there have been? A. Yes, sir.

Q. Vacancies and promotions into those vacancies? A.

Yes, sir.

SSSSeSe[osS537°"™ Saas sot beatae

6la

A. C. Thies—for Defendant—Direct

Q. State whether or not every promotion creates a va-

eancy? A. No, sir.

Q. Explain that to us, if you would. A. There could be

vacancies created by promotions. In the Operating Group,

for instance, when you promote—-excuse me—when you pro-

mote a Control Operator to Shift Supervisor, that imme-

diately leaves an opening for a Control [52] Operator,

so that we must promote a man into that classification.

There is a vacancy created that we must fill in order prop-

erly to man the controls of the Power Station, so we will

promote a man, generally, from Pumper Operator to Con-

trol Operator to fill that vacancy. Now, that is a case where

a promotion is made and a vacancy is created. There can

also be a promotion made from Learner to Helper in the

Shop. This would create no vacancy because the man would

just be developing in his skills. I said, Learner to Helper; :

I meant Learner to Repairman, in the Shop, or if he were )

—

promoted from Repairman to Mechanic B, it wouldn’t nec-

essarily create a vacancy, because it may take only twenty :

or twenty-five men to do the full scale maintenance work

at Dan River. So, even though these men are progressing

in skills and are progressing up in the classification, it does

not necessarily per se create an opening at the bottom of '

the list. Now, this is the two types; I hope that I have ex-

plained that satisfactorily.

Q. Yes, sir. What is the minimum number of employees |

that you need to satisfactorily operate the Dan River Steam

Station? A. We have not determined a fixed minimum

number of employees that we need to operate. We have

determined that we needed certain operators in the Oper-

ating Department to satisfactorily operate the Station,

and we knew by general [53] practice that within our

Maintenance Group, we have about the right number of

62a

A. C. Thies—for Defendant—Direct

people to stay up with the maintenance work that is done 3

in the Pewer Station. I am sure that there is some flex- $

ibility there, that we could use an extra man or we could

do with one less in the maintenance, and it wouldn’t shut i

the Plant down. So there has not been a strict determina-

tion of the number in the maintenance number, for instance,

and the same thing would apply to the Cual Handling Op-

erations. We know generally that we need so many men 4

to do the job, and if the foreman comes in and says the

coal deliveries have been such—have been erratic, or we've :

had a lot of frozen coal, we really need another, and we =~

really need another man, then I think it would be up to 4

the Superintendent to discuss that with the foreman and =~

they would come to some decision as to whether they needed :

to employ another man. It’s determined really by the work ;

situation, is what I’m saying. y

The Court: In other words, this flexibility also,

with what you are saying, would mean that a pro- ;

motion by reason of the fact that you make provi- :

sion, so that you are flexible and therefore, by reason

of that fact, when you promote a person doesn't

necessarily mean that you have a vacancy, because

often you have more men than you need? Is that it? :

The Witness: Yes, sir. And after the promotion

[54] to a higher classification the man may be doing

exactly the same work every day. He is just gaining

skill, and he is paid more money because he is gain- ;

ing skill, and he’s classified higher, but he is doing ;

the same kind of jobs that he was doing before.

The Court: All right. .

The Witness: He can maybe be entrusted to some

additional jobs or maybe take two of three men with

Cae awe a ae

63a t—Direct

A. C. Thies—for Defuse he has a higher

him, as sort of a lead mar

classification.

By Mr. Ferguson: ; ease have offered

Q. Mr. Thies, the Plaintiffs j into evidence, cer-

into evidence, and it has been re Defendant supplied

tain answers to interrogatories tharch of 1967. Who

to the Plaintiffs in February aed them.

signed those interrogatories? A.0T a document con-

Q. Mr. Thies, this is an instrut’s marked 19-A Job

taining several columnar tabulatidate of Initial Em-

Vacancy. It has Date, Name, Ri. Is this what you

ployment, and Prior Job Classifit19?

submitted as answer to interroga’ you a copy, if you

If it please the Court, I will fi

would like to see it at this time.

The Cour:: I would. ks like it. It looks

Te Witness: Yes, sir. |

like a Xerox copy of it.

(55] The Court: It mig

terrogatory.

Mr. Ferguson: It is. If

that up to the Court.

attached to the in-

erk could just hand

By Mr. Ferguson:

Q. I believe you testified, Mr:® that that is the

answer you supplied in responsd'terrogatory #191

Is that correct? A. Yes, sir.

Q. Interrogatory #19 requests the Defendant de-

scribe and designate each job v’ and the date the

vacancy occurred, which existedi¢ Company’s Dan

River Steam Station at any timveen July the 2nd,

64a

A. C. Thies—for Defendant—Direct

1965, and December 31, 1966, and further, the Name, Race,

Date of Initial Employment, Prior Job Classification, if

any, of each employee. who filled such vacancy. Does that

answer 19A—purport to answer that question? A. Yes,

sit.

Q. All right, sir. Now, using the answers to Interroga-

tory #19, would you please explain whether or not the

promotions indicated thereon, created a vacancy into which

others could have been promoted from a lower classifica-

tion? A. You want me to go through this whole list, here!

Q. If you will, please. A. In the case of Mr. Sayars,

the first man on the list, here,—that created—let’s see, he

was promoted to [56] take a Shirt Supervisor job, I believe,

sO a man was moved up from Pump Operator to fill Mr.

Sayars place as Control Operator. Now, I might explain

at this point that there were three more there—Pump Oper-

ator to Control Operator. At about this time, we decided

that we needed a little bit more relief flexibility in the

Operating Department of Dan River Station. We don’t re-

lieve upward people. We only relieve jobs with people who

were in that classification or higher, so that in order to

provide us more relief flexibility, we decided to provide a

Control Operator on each shift to do relief work—an extra

man. At the same time, we had two Pump Operators that

were operating in the Pump Room of the Power Station

for the three units, and by the addition of certain equip-

ment there, and an analysis of the job which had been made

over some years, we decided it was not necessary to have

both of those men on that job, so we eliminated one of those

jobs in the Pump Room, so we operate now with one man

in the Pump Room at all times, instead of two, and we

promoted those people up to the Control Operator Classi-

fication, who had been in the Pump Room, and eliminated

65a

A. C. Thies—for Defendant—Direct

this extra job in the Pump Room. Now, of course, this

need was brought about by the fact that our people were

getting somewhat older. We have a real stable employ-

ment situation and they are entitled to more vacation and

more holidays—not more holidays, but more vacation time,

and it just made our [57] relief situation a little tighter

in the Operating Room, so that was the reason for this

increase in relief. Now that covers really the next three

men there who were moved out of the Pump Room up to

the Control Operator Classification, so these did not create

any vacancy as such. The Pump Operator, I believe, is

the next one who was promoted from Utility Operator,

and he was promoted into a job,—I believe it was a Mr.

Pratt who said he didn’t want to be in the Pump Room

any more. He had some family problem at home, and he

didn’t want to work shifts—something about his personal

situation, so we could arrange it at that time for him to

go on other jobs in helping with the maintenance and that

sort of thing, and we let this McClung, we promoted him

to Pump Operator. And therefore, that created no vacancy

in this case, because he was a relief man. McClung was a

relief man anyway. He was an extra man in the Pump

Room—if you will—he was a Relief Operator, so we had

moved these others up, so now we were covering the relief

situation by having more all the way around, so we did

not need him in the Pump Room. Now, there was no va-

cancy created there. One of the Pump Operators, the fourth

one out of the Pump Room, and incidentally, on a rotating

shift, we work twenty-four hours a day, seven days a week,

and it’s automatically rotated, and there are four positions

filled for each classification. It takes four men to fill those

positions, plus the relief situation. [58] You've got to have

enough people to relieve, too, so any time you talk about

a eel eee ae ELEY IM AE AERTS RRR I I a ES REET. ge TI

66a

A. C. Thies—for Defendant—Direct

a promotion, you are talking about—there are four people

in the Pump Roem right now, for instance at Dan River.

There will be one man on the shift, but there will be four

people in the Station that will automatically relieve around

—to fulfill the full manning situation, the relief has to be

in addition to those people for things like sickness and holi-

days and vacations. But the Pump Operator, Clarence

Amoriello—that’s A-m-o-r-i-e-]-l-o, he had some interest in

this job, so we at this time were losing a Clerk, so we trans-

ferred Mr. Amoriello from the Pump Room into the Clerk’s

Office. The two next men, were Helper and Learner. Now,

they were employed in the Power Station in the Operating

Department to do Operation, and they were performing

duties—say, Utility Operators normally perform—when

they first came on the job, they were in training, you might

say, for Utility Operator, so when they had progressed and

when there was a need for them to fulfill this whole job

by themselves, they were made Utility Operators, so no

vacancy was created by their promotion to Utility Opera-

tor, because they were already doing that similar job, but —

under more supervision than they would have to have when

they were learning. Jesse C. Martin was a Semi-skilled

Laborer, and he was promoted from Semi-skilled Laborer

to the Coal Handling operation. Now, he is in line to pro-

gress right on up [59] to Coal Equipment Operator, and

he in fact, since this answer was given, he has been pro-

moted from Learner to Helper, but at this time, he had

just been promoted to Learner, but he is progressing nor-

mally through the Coal Handling Operation. There was

no vacancy as such created in the Semi-skilled Laborer

category, by his promotion, because here again, the Labor

Department can fluctuate a few men one way or the other,

and the Superintendent just decided, “Well, I will try to

JKaee r

th, BOS 7 re

Pe chee at er

67a

A. C. Thies—for Defendant—Direct

get along without him for awhile, and see how we get along.

Maybe we can do without him for awhile—do without a

Laborer in this area for this time.” From Learner—the

next one is Mr. Seigler and Mr. Clark from Learner to

Repairman. Both of these men were employed as Mainte-

nance Men and when they progressed through the Learner

Classification, then they were promoted to Repairmen. They

were qualified to move on. No vacancy was created in the

Learner Classification by them moving into the Repairman

Classification. Helper to Coal Handling Operator, James L.

Williams,—that’s a normal progression; after the man has

learned enough and has worked as a Helper in the Coal

Handling Operation to where he has progressed through

the Helper Classification and understands and can perform

the duties of the Coal Handling Operator, he is promoted,

and there was no vacaney created by his promotion from

Helper to Coal Handling Operator, because he is doing

[60Jessentially the same type of work as the Coal Han-

dling Operations Helper, as he would as a Coal Handling

Operator, except for the degrees of skill and the length of

time it takes him to progress to the Helper’s position, so

no vacancy was created in Coal Handling per se, by his

promotion. In Mechanic B series, two of those were pro-

moted to Mechanic A—from Repairman to Mechanic B—

here again, it’s a normal progression. No vacancies were

created because these people are doing mechanical main-

tenance work, and it was just a change in their pay and

their classification, as their skills progressed.

Q. Are you saying by that, Mr. Thies, that a Mechanic

B, when he is promoted to Mechanic A, still ean do what

the Mechanic B does, but he has just progressed through

skills to a point—in other words, where no vacancy is cre-

ated, the function is still being fulfilled? A. That is cor-

FON eH Oe SRE ee 2 NTR ITT EE RT OAL LRT ES AU II

68a

A. C. Thies—for Defendant—Direct

rect. Our policy is—in our Power Stations, we do not work

a man up out of his classification. We will permit a higher

classified man to do lower classified work but we don’t per-

mit a man, who is in a lower classification to work in a

higher classification without paying him for that work or

re-classifying him. That is a basie policy that we have.

Q. All right, sir. Please go ahead. A. Now, three pro-

motions from Common Labor to Semi-skilled [61] Labor;

these are again normal progressions, and normal learning

of the individuals. They have progressed through the Com-

mon Labor Classification in the opinion of their Supervisor,

and the Superintendent. They have learned enough to be

classified as Semi-skilled Labor. They still doing possibly

some of the same jobs or mostly the same job they were

doing before, but they know how to do it better, and they

know where the equipment is, and it is just a matter of

normal progression up in the skills, so they have created

no vacancy by their move. In Mechanic A to Welder is

again where a man specialized in welding, and when we

felt that he’d progressed far enough through Mechanic A

and had demonstrated his ability to weld, he was promoted

into the Welder Classification. Now, I believe maybe there

is a little overiap in the pay of the two, but at any rate,

that’s immaterial. This is a normal progression into

Welder, and would not create a vacancy as such.

Q. Would you summarize your conclusion with respect

to this “19"? A. Yes, sir. There was one vacancy created

by Mr. Sayars that was filled from persens already in that

department, and the promotion of Mr. Sayar—

Q. Mr. Thies, I don’t want you to go back through it.

If you will just count up, if you will and state whether or

not there were any vacancies created? [62] A. Yes, in the

SORES : ao . —— _ -

SSE SPITE SCRA S S ANT FR RT

69a

A. C. Thies—for Defendant—Direct

case of—of Sayars—of Sayars, there was a vacancy cre-

ated, and that’s the only one I see on here.

Q. In the course of answering my questions concerning

this answer, No. 19, or the answer to Interrogatory No.

19, you mentioned that there was a stable employment situ-

ation at Dan River. When was the last time that you hired

somebody up there? A. We have hired a man fairly re-

cently.

Q. Well, strike that and let me ask you this question.

Have you hired anybody since July the 2nd, 1965 or tell us

how many you have hired, if you have? A. Yes, we’ve

hired one man.

Q. In the past three years—or two and a half years?

A. Since the date you mentioned—July 2nd, 1965.

Q. All right, sir. Looking at this list, Mr. Thies, I notice

Jesse C. Martin, whose race is listed as Negro, was pro-

moted from Semi-skilled Labor to Helper in Coal Handling.

Do you know what his education is? A. No. See—was he

promoted to—he was promoted to a Learner. He has since

been promoted to Helper. I believe he is progressing up—

Q. Do you know what his education is? A. Yes. He

was the Senior Semi-skilled Laborer who had a High School

education.

Q. Have any other Negroes been promoted from Laborer

[63] into higher classifications since July the 2nd, 1965?

A. Yes, sir. We’ve promoted one Semi-skilled Laborer to

—to Watchman.

Q. What’s his name? A. R. A. Jumper.

Q. Do you know his education? A. He was again the

Senior Semi-skilled Laborer who had a High School edu-

cation.

Q. Well, what created the vacancy into which he moved

if there was a vacancy, Mr. Thies? A. In the case of Mr.

Jumper?

Nh ROP EIEIO ET LO LLG ROE POMEL IOS

PN I LET TELE ION TEL ALT NE DROIT REG ONY S TDG EF Ts ELIE,

70a

A. C. Thies—for Defendant—Direct

Q. Yes, sir. A. We needed a Watchman. We had a

Watchman retire. I don’t remember his name or when he

retired, but it was back last September, I think, and we

needed a man back in there, so naturally, we offered it to

the Senior man who had the qualifications, which is a High

School education.

Q. Mr. Thies, the Plaintiffs, in their complaint allege

that the Defendant pays less wages than to white employees

performing the same or similar work. Would you state

whether or not Negro and white employees at Dan River

ever do the same or similar work, and explain your answer?

A. They can do—on occasions, they can do this same or

similar work, but a general statement would be going back

to our policy. We do not work a man out of his classification

{64] up. We will work him out of his classification down

and continue to pay him as that, but basically, the em-

ployees that are—that are doing maintenance work, their

job is maintenance, and that’s what they normally do. Now,

on occasion, the Mechanic A may pick up a broom and

sweep out the Shop, and that’s what I mean when I say

that they occasionally do the same or similar work because

that is normally the job for the Laborer—Labor Depart-

ment, but if the Mechanic A is there and he’s got chips

in his way or what have you, or if he’s got a little time on

his hands and nothing to do, he may say, “Let’s pitch in

and clean up these chips in front of the Lathe a little bit”,

so to that extent only are these people doing the same or

similar work. I can think of other occasions—for instance,

when we had a boiler off the line. This is a real pressure

time for us because any time a boiler is down, we have got

capacity off the line, and we make every effort to use—

we use planning to get our work done in a minimum time

to get that equipment back in service to meet the load, so

Sass

rt i a

denne Rieeshal 2 RESIN

LY ET EDERAL ION MN IO RRC TI ON ak A RN

7la

A, C. Thies—for Defendant—Direct

everybody pitches in, and for Laborers, they will, as I

mentioned before, they will occasionally maybe mix some

mud, they call it,—it’s a material they put in these Ash

Hoppers—a Laborer may be in our—there may be a Me-

chanic in there mixing with a hoe at the same time, but

that is not normally the Mechanic’s work, but he is being

used there because this is a real emergency situation [65]

to get this thing back. The jobs that the laborers are doing

under those conditions are Labor jobs. They are simple

manual tasks that laborers do.

Q. Where the Mechanic is doing Laborer’s work, what

rate of pay would he be getting? A. He would be getting

his regular rate of pay as a Mechanic.

Q. Mr. Thies, have you read the depositions of the Plain-

tiffs in this case? A. Yes, sir, I have read through them.

Q. If the Court would permit me, I'd like to lead him for

just a minute so I can get the problem before him.

The Court: Go ahead and ask your question. If

the Plaintiff objects, we’ll indicate it or we’ll make a

ruling.

Mr. Ferguson: All right, sir.

By Mr, Ferguson:

Q. Some, or at least one of the Plaintiffs in this case,

indicated in his deposition that at one time, he was knock-

ing doors and that now—first of all, tell us what “knocking

doors” is? A. On the coal cars that come in, they are

unloaded from the bottom, and there are the large metal

doors on the bottom that are held by rotating dogs and

you take a hammer and tap this dog and it rotaies out

of the way and you do this on both sides of the car, and

ae al a ee

PMI CORN OI at ENE ATS ORT TT TN OE PRONG. NM Et OPN ERENCE RIAN Kil

72a

A. C. Thies—for Defendant—Direct

the door just swings open [66] by gravity, and the coal

runs out of the car.

Q. I see. Now, one of the Plaintiffs in his deposition, Mr,

Thies, stated that he used to knock doors, but since that

time, white employees are now knocking doors, and that

they receive a higher rate of pay for doing that job than

he did. Now, would you comment on that, and explain it

to us, if there is any explanation?

Mr. Belton: Objection, Your Honor. It’s leading

and if he has read the deposition, he should identify

the Party.

The Court: Can you identify the deposition, Mr.

Thies? Do you recall?

The Witness: I don’t remember which man.

The Court: Are you familiar with the deposition!

Mr. Ferguson: Yes, sir, I have notes here. It will

take me a little while to look it up, Your Honor,

but I can get it for you.

The Court: No, wait a minute. Do you recall in

one of the depositions that testimony to that effect

was given, Mr. Thies?

The Witness: Not word for word, but I remember

that the man made such a statement—yes, Your

Honor.

The Court: You do remember that one of the

depositions—remember that in one of the deposi-

tions?

The Witness: Yes, sir.

[67] The Court: All right. Overruled.

The Witness: Some years ago,—many years ago,

our Laborers came to us and said that they were

doing this work of knocking these dogs loose on the

bottom of the coal cars as they came in and that

eae acts

DAE TOS Sel ree ae AUREL EON HE Mh A LR he

73a

A. C. Thies—for Defendant—Direct

they thought that was a Coal Handling Operator’s

work. Now, we didn’t think so, and we still don’t

think so. We think it is Labor work. Knocking the

dog loose to drop a door down is Labor work as

far as We can see, and still feel that way, but at

that time, the decision was made that we would

make a point of it—we would make an issue of it;

if it was making the employees in the Labor Group

unhappy, we would just provide that the Coal

Handling Operators would do this job, and so they

were at their request taken off of this work because

they said it wasn’t something that Laborers should

be doing. Now, we still feel that it was Labor work,

but we didn’t argue with them. We just agreed to

it and let the Coal Handling Operators do it.

Mr. Ferguson: All right, sir. If you would bear

with me just a minute. Your Honor—

The Court: In other words, you are saying, Mr.

Thies,—is this right—that you were letting person-

nel from your Labor Division do the knocking of the

doors, at one time, and then you chenged that in

view [68] of, shall we Say, some contention about

it, and you let those from the Coal Handling De-

partment do the door knocking, and do I under.

stand that from that, that I might surmise that

those from the Labor Department who were doing

that job, knocking doors, were paid less than those

in the Coal Handling Department, who were knock-

ing doors? Is that what I surmise out of this?

Mr. Belton: Your Honor, before you ask the ques-

tion, I would like to raise something at this point,

and I call your attention—well, let me state the

point, first, that we have attempted to get informa-

TP GAREY -mme ner Puree

INEM SIEGEL LA. LOOL EE ICR RGB, IM Fim

EA STE OSE, e+ ATT sonny

74a

Colloquy

tion both in the interrogatories and in depositions

of the operations and facts pertaining to the opera-

tion, the promotion, and etcetera of the Company

prior to July 2nd, 1965, which is the effective date

of the Act and in particular, I call your attention

to Deposition #11 which is the deposition that we

took of Mr. Thies in which we posed such a ques-

tion on Page 20. Now, we have no objection to

going back, but we think that to the extent that the

Defendant can go back and get these events that

occurred prior to 1965, then, we should likewise be

permitted to do so, and I raise that at this point

because I’m quite sure we will have questions.

The Court: When has this happened?

(69] Mr. Ferguson: It has not been established,

Your Honor.

The Court: Well, let’s establish it, and it wouldn't

be important back of July 2nd, ’65.

Mr. Ferguson: Ali right, sir, I withdraw the ques-

tion.

The Court: Or would it?

Mr. Belton: We have no objection to going back,

Your Honor, but they have interposed and instructed

their witness not to answer. In fact, they instructed

this one not to answer a question pre-dating July

2nd, 1965. We take the position that some informa-

tion as to the operation of the Company is relevant

to what is going on now, notwithstanding the fact

that the Act became effective July 2nd, 1965, be-

cause we think it’s impossible to understand now,

unless the Court has some appreciation of how the

Company operated as to promotion and hiring.

2S PRAT ae REN ae EERE TE Pe

| "

Colloquy

The Court: Here was a law, and presumably, if

they were doing something that was incorrect and

here is a law that prohibited presumably—and I say

presumably, they would amend whatever they are

doing to comply with that law, so I am not exactly

clear on the fact that what transpired before July

2nd, 65, would help to decide the issue as to whether

they discriminated after [69] July 2nd, °65. I would

rather think that what transpired before would have

little bearing on the issue of what happened after

the effective date of the Act, unless we can pose

the old rule, “Something that is established is pre-

sumed to continue,” or something like that, but I

hate to do that in view of the Law. Well, let’s

keep it after July 2nd.

Mr. Ferguson: All right, sir.

The Court: If that’s your question?

Mr. Ferguson: Your Honor, the reason for my

asking that question was that this is so difficult to

go through a set of depositions and interpose objec-

tions every time when you ask a question, and you

don’t specifically tie it to that date. Now, in this

particular deposition—now, on occasions I did ob-

ject to it and directed the witness not to answer,

but as I look through this deposition, he hadn't

tied it down to any particular date,—the witness,

at the time, and I am perfectly willing to withdraw

it, but I felt like that this was an area where we

had to meet that proof because it is not tied down

in his deposition as to whether that occurred be-

fore July the 2nd, °65, or after, and that’s the only

reason.

The Court: Can he tie it down?

Colloquy

Mr. Ferguson: Yes, sir, I think he can, but his

{70} answer would probably be stricken.

The Court: You withdraw the question?

Mr. Ferguson: Yes, I withdraw the question.

Mr. Belton: Your Honor, I don’t want to belabor

the point. Well, we will meet this again, I am quite

sure, at the time that we are given an opportunity

to cross examine the witness.

The Court: That means, I’m not going to let you

ask him about it prior to July 2nd, 1965.

Mr. Belton: We’re precluded, Your Honor?

The Court: I’m not going to let you ask, and I’m

certainly not going to open it up on cross examina-

tion. Isn’t that the basis you all have taken these

depositions on—that July the 2nd was the cut-off

date?

Mr. Belton: No, sir, Your Honor. That has been

a point of contention with respect to interrogateries,

and it also has been a point of contention with re-

spect to the depositions, and it has never been ruled

upon because the Defendants take a position con-

trary to that of the Plaintiffs. We take the posi-

tion that some information as to what transpired

before July 2nd, ’65, is relevant, and we have not

been operating under—that we have been limited to

that date. We feel that it is relevant.

The Court: I don’t see that what transpired prior

[71] to the Act—the effective date of the Act would

be relevant on the issue—that you all really agree,

you know. I have to answer in this as set out. You

differ somewhat in the Final Pre-Trial Order. You

break it down—Paragraph 16—the Plaintiffs do, but

each time, in reference to Title 7 and the Civil Rights

—

77a

Collogu

Act of '64, and it is a fac

= re no ogee July 2n d, 65 is the

r. Ferguson: No, sir :

Mr. Son: Of the Pa that, is theret

The Court: Well, you hate, no, sir.

di edoeis, waa ant, er xnt roblem of how far

relevant evidence is that .

events transpiring—the em ruling that the

sition, July 2nd, 1965— y!8 Yestricted to the

Mr. Belton: Your Ho? Gate of the acqui-

what transpired on the d'Y proceed.

The Court: What did y! this point, as to

Mr. Belton: I'd like tc

what it might show. ?

The Court: You may oer the evidence on

z course have indicated tha

; would be competent, but » evidence, and I of

tect you on the record, annot think that that

it in, so that it might be ily, I want to pro-

; an appeal. £72] Whether }) allow you to put

; but I don’t see how that \ed in the event of

I am in error on it andould be all right—

4 then it would have to COM e}y you, because if

: Court to make some dete not considered it, ;

go back again, but if you you know, for the

; would like to offer the e’ ‘

: tually filed with the GOP OP 1 and then

. 7 you think that you

ee Mey Oo a > and then have it

Mr. Belton: What—ju', caer cas

tences, Your Honor. I wo“ SOW my ruling,

attention to several cases

that we are taking. Thes: f two more sen-

That Have Been Decided t° call the Court's

upport the position

itled, “Seven Cases

e Merits.” I don’t

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78a

Colloquy

have the citation on hand, but I can get them for

you for the Court’s perusal. One is, Bowe-Colgate,

B-o-w-e-Colgate, in which the Court allowed the

Parties to introduce evidence as to activities back

to World War II. More in point is a recent case.

This was a sex discrimination case under Title 7,

more recently, Quarles vs. Phillip Morris, involving

racial discrimination, in which the Court did allow

the Parties to go back to at least 1959, if you will,

in terms of the steps that were supposedly under-

taken to eliminate the problem, and the bearing that

they would have had on what the Defendant was

doing presently under the Act. As I said, I don’t

want to [73] belabor the point.

The Court: Well I just simply can’t see. If a

fellow were speeding on January 10th, 1968, and

he is apprehended, and I realize this is not a crim-:

inal case, and then, he is apprehended again on

January 15th, I don’t know—we all agree what took

place on January 10th has no bearing on whether

he was or was not speeding on January 15th. That

seems rather elementary to me. I’d be interested

in reading the case. Do you have the citations? Dur-

ing the recess, would you give them to Mr. Blanco?

Mr. Belton: Right. The other one I have is just

a mimeographed copy. i can make a copy of it avail-

able to the Court.

The Court: All right. I’d like to see it.

Mr. Belton: And to Counsel for the Defendant.

The Court: I reserve the right to change my mind,

if these cases will convince me that I should. All

right.

pee

A. C. Thies—for Defendant—Direct

79a

Mr. Ferguson: I assume Your Honor is going to

let me be heard at the time?

The Court: Yes.

Mr. Ferguson: All right, sir. Thank you.

By Mr. Ferguson:

Q. Mr. Thies, are you familiar with the Company’s pol-

icy regarding overtime at the Dan [74] River Steam Sta-

tion? A. Yes, sir.

Q. On what basis are overtime opportunities provided?

A. There are two bases for overtime at Dan River. The

first is what is called, “Scheduled Overtime.” Each em-

ployee at the Power Station works an extra day every

fourth week—one extra eight-hour day. He works a normal

forty-hour five-day week, and every fourth week, he works

six days or forty-eight hours that week. Now, that eight

hours is at overtime rates. Now, this is called, “Scheduled

Overtime.” The other type of overtime is categorized as

“Emergency Overtime,” or “Call-out Overtime,” if you will.

This overtime is kept to an absolute minimum, consistent

with the needs of the operation of this Power Station. I

instruct the Superintendents to keep this as low as they

can because this is a direct cost to the operation of the

Station, above and beyond the normal pay of employees,

and it adds to the Station’s operating cost. So this is

emergency operating time only, and we use it only in classi-

fications where a man is necessary to be called out, and

under emergency situations, where we have to have more

man power than can be provided by the normal working

hours of the employee. So these are the two types, really

of overtime that we have at the Power Station. )

Q. Mr. Thies, in answer to Interrogatory #34—[75] In-

terrogatory +34 requested the following information: ;

RS EDN ET NN RIE ON TIE RRR SARIN ERE TO has SEN EAM ELE NS

A. C. Thies—for Defendant—Direct

State the Name and Race of each employee who has worked

overtime on any job at any time since July the 2nd, 1965,

and with respect to each employee, indicated, A, the dates

on which such employee worked overtime, and the job per-

formed by working overtime. I hand to you an instrument

that has a heading, 34A and B with the following columns,

Date, OT hours, Name, Race, Job, OT hours. There are

two columns there of the same thing, consisting of twenty-

six pages, and ask you if that represents the answer that

you gave to Interrogatory #34. A. Yes, sir. That ap- 2

pears to be a Zerox copy of it. a

Q. Mr. Thies, have you made an analysis of these twenty- B

six pages and the overtime opportunities as were provided ce

to employees listed on those twenty-six pages; that is, from

July 2nd, 1965 until February, ’67, or answers to interrog- bi

atories when they were supplied? A. Yes, we did. [

Q. What did your analysis show, if anything? A. Well, —

we broke this list down by departments, within the Power

Station, and we took the figures off of these sheets, as to

the actual overtime hours that were worked by these em-

ployees, and we knew the straight time hours, and we came

up with a figure by departments in the Station, that gave Fe

the percentage of overtime hours worked [76] to total

hours worked by the employees, within these departments. b

It showed, for instance, that in the Coal Handling Depart-

ment, the employees in Coal Handling Operations worked

10.39 per cent of their total working hours were overtime

hours. In the Labor Department, 5.22 per cent of their

hours were overtime hours. In the Operating Department

of the Power Station, 5.39 per cent—very close to what

the Laborers were—a little bit more than the Operating

Group, were overtime hours. In Maintenance, 7.84 per

cent of the total hours worked were overtime hours, and

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A. C. Thies—for Defendant—Direct

in the other departments which we lumped together—the

other departments, the Testing and the Laboratory and

the Clerical and the Watchman, the lowest of all in the

Power Station, was 5.19 per cent of their hours were over-

time hours.

Q. I noted, Mr. Thies, that Coal Handling got 10.39 per

cent of the overtime. Is there any reason for that? A.

Yes, sir, for the period covered here, we had problems

getting uniform delivery of coal. The coal market in this

country was badly upset, and actually coal was hard to get

and shipments were very erratic, and we would get slug—

slug with many, many cars of coal, and then, there wouldn’t

be any cars for awhile, and this was the result—of work-

ing overtime hours—to prevent paying demurrage on such

many cars of coal. Also, we had some frozen coal during

this same period covered, which required working [77]

overtime in the Coal Handling Operations to get that coal

unloaded and into the bunkers for a continuous operation

of the Power Station.

The Court: What do you mean by “frozen” coal?

The Witness: The coal actually freezes, and

there’s enough moisture that gets into the car, with

it cold, and it freezes. Mostly, it freezes in from the

sides, a foot or a foot and a half, and you can’t un-

load it. It will come another car so we have to get

in there and put—and put heat under the cars. We

have to get in—we have to get in with car shakers,

and shake these cars. We beat on the side of —sides

of the cars with hammers, to try to break this up,

and in many cases, we are unsuccessful, and we

have to push these cars off down the track and let

them stay in the sunshine, if it’s sunny that day,

LOOSE LO TET OTE

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82a

A. C. Thies—for Defendant—Direct

and let them thaw a little bit, and then bring them

back, and it is more than you can do in eight hours

time to get enough coal unloaded to get it into the

bunkers to operate the Station.

By Mr. Ferguson:

Q. With respect to the frozen coal situation and other

situations, where you have excess amounts of coal to un-

load, is this overtime work a voluntarily or involuntarily—

A. Well, we ask our employees to stay over on [78] call-

out, and in almost all cases, they cooperate with us very

well. You might say, it is requested of the employees to

work this overtime. If a man has a special situation that

he has got to get off for, we give consideration to that;

if he’s got problems or something and can’t work—work it,

we make arrangements. We might even call out someone

in another department to come in and help temporarily,

if we didn’t have enough men in that department to do

the work. Now, there are some Laborers, who clean up,

in Coal Handling, and under these overtime conditions in

Coal Handling, in the case of the frozen coal, there's just

not as much cleaning up to do, because we aren’t unload-

ing the coal at as rapid a rate. In addition to that, at

night, it’s rather dangerous to be in, cleaning up under

these conveyor belts, in the condition at night where the

darkness—and it isn’t as light at night, and it isn’t as safe

to use clean-up people.

Mr. Ferguson: I believe His Honor had a ques-

tion.

The Court: When you get to a point where it will

interfere as little as possible in this examination,

we will take our noon recess.

Reha,

tee

@.;

83a

A. C. Thies—for Defendant—Direct

| Mr. Ferguson: We're just about there, Your

Honor.

| The Court: Are you about to conclude your exam-

ination?

Mr. Ferguson: No, Your Honor, I think it would

be [79] better if we adjourned for lunch until we

got to the other area.

| The Witness: I might say, in further reference

| to this analysis that we made,—to me, it illustrates

| very clearly that we call out only those skills that

we need. For instance, the Maintenance people get

| 7.84 of their time as overtime hours, indicates for

| equipment break-downs, we had to call on their ser-

vices on an emergency basis quite frequently, where-

| as, the Operating Personrel and the Laboratory and

Test Personnel, we didn’t need as much. In fact,

we needed the Laboratory and Test Technicians,

| least of all, and so they weren't called out. They

have a lower overtime, percentage-wise than any

other group or department in the Plant, so we call

out the people that we need as required by the job,

and we limit this overtime as “Emergency Over-

time,” but everyone else gets the same amount of

“Scheduled Overtime,”—all departments.

Mr. Ferguson: Your Honor, I believe this is a

| convenient place, if it’s all right with you?

The Court: All right, Mr. Thies, you may come

| down.

| (Witness excused.)

e s - e o

[80] Let’s take a recess until 2:00 o’clock.

(Lunch recess was taken.)

LEE ORL LL ALLL AMO EE ODS AEG AN AE OA LA ELLE AIM ROL HA te AEA NOOO ALOT ALL DIELS

A. C. Thies—for Defendant—Direct

The Court: Mr. Thies, I believe you were on the

stand, sir. If you will please, come back.

(Witness resumes the stand.)

All right, you may proceed.

By Mr. Ferguson:

Q. Mr. Thies, when we recessed for lunch, you had fin.

ished stating what your analysis of the answer to Inter.

rogatory #34 showed, and I believe you stated that Coal

Handling had 10.39 per cent of the overtime total—that is

a percentage of the overtime to straight time hours. I be.

lieve you further stated that this was attributed in part

to the frozen coal situation that existed during this period

of time at the Dan River Station. Would you state, please,

sir, what is involved in the frozen coal situation—what

kinds of jobs have to be done in connection with thawing

the coal, if that is what is done? Explain that to us, please,

sir. A. Well, I thought I had pretty well gone over the

routine part, Mr. Ferguson. Now, maybe I didn’t say that

this part I explained was only an occasional circumstance,

when the coal would be frozen, and is really only a small

part of the total Coal Handling Operation. In other words,

that’s just preliminary, really, to the Coal Handling Oper-

ation as such. The unloading of the coal is just a pre-

liminary [81] step, really.

Q. Now, Mr. Thies, as Vice-President of Production and

Operation, you are responsible for the promotion policy at

Dan River, are you not? A. Yes, sir.

Q. As of July 2nd, 1965, what was the promotion policy

at Dan River? A. I will just put this in my own words.

The promotion policy of Dan River was—was within the

departments, to promote the senior man to any job vacaney

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A. C. Thies—for Defendant—Direct

that comes open, if qualified_—the next senior man in the

lower classification, if he’s qualified. Now, that’s within

departments of the Power Station. Now, between depart-

ments of the Power Station, the policy is that any indi-

vidual who is working in one of the so-called “outside”

departments at the Power Station—outside of the Station,

proper—

Q. Such as what? A. Such as Coal Handling or Labor

or Watchman. In order to be qualified for a promotion to

the higher skilled jobs within the Power Station, they must

have a High School education or we would accept a GED

equivalent of a High School education.

Q. What does “GED” mean? A. I think that is a Gen-

eral Education Equivalent that’s issued, for instance, by

the Armed Service people.

[82] Mr. Ferguson: I'd like to request that the

Reporter mark this as “Defendant’s Exhibit 1.”

(Defendant’s Exhibit 1 was marked for identifi-

cation.)

Q. Mr. Thies, this is a document which has been marked

for identification as the Defendant’s Exhibit #1, and I

show it to you and ask you if you recognize it? A. Yes,

sir, I do.

Q. What is it? A. It is a letter that I wrote to all

Power Station Superintendents on September 22nd, 1965,

modifying our promotion policy as regards to the promo-

tion of personnel from the outside departments into the

Station.

Q. In what respects does it modify the policy? A. It

sets forth the fact that I would accept a passing score on

the two tests that are normally used for employment, as

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86a

A. C. Thies—for Defendant—Direct

satisfying or in lieu of the requirement that our policy

has had for a number of years—that a man have a High

School education to be considered for the more highly

skilled jobs.

Q. Does this policy apply to everybody? A. Yes. I

might tell you a little bit about how I got into this. The

employees in Coal Handling Operations had for some years

approached me as I made visits around, and asked me if

there wasn’t some way they couldn’t get into [83] Mainte.

nance, for instance. A man would say, “I think I can do

Maintenance work.” Well, if he didn’t have a High School

education, then he wasn’t eligible to come into these higher

skilled jobs, and this was because we had found from ex.

perience that we were getting individuals—before we had

this requirement, we were getting individuals who couldn't

progress through the classifications. They were limited,

and they would stop. So, I felt like that, all right, on July

the 2nd, we had put into effect some tests for employment

that were designed to yield us a man of average intelli-

gence to be a Duke Power employee, so I seized on these

tests as being a possible way that I could free-up these

men who were blocked off,—that they could use this means

of showing me, “All right, I can do the job. I’ve got a

general intelligence level that would permit me to have a

reasonable chance of success in some of these higher jobs,

even though I don’t have a High School education for some

reason.” Now, there is no requirement that anybody take

these tests. The letter just states that we will accept these

in lieu of a High School education, and of course, the mak-

ing of these two scores on these two tests is not mentally

equivalent to a High School education. I just said that I

would accept those scores as an indication that a man had

enough intelligence to be reasonably assured of being suc-

a ere a

—— Si. eee

87a

A. C. Thies—for Defendant-—Direct

cessful in the more skilled jobs in Operation and Mainte-

nance, in these [84] sort of jobs.

Q. Now, in point of time, to whom was this requirement

extended, or was this privilege extended? A. Now, I did

not feel that we should offer this to new employees com-

ing into the Plant, because they had to meet the established

hiring practices which were to have a High School educa-

tion and also, to have a passing grade on these two tests.

That’s the requirement for employment in other than the

Labor Classification. Now, if a person wants to apply for

a Labor Job only, then, he is permitted to take a very

simple test, which I believe was introduced this morning—

this Revised Data Test—and that only qualifies him to be

a Laborer, but this test applies to all employees at the

Station—Negro, white,—both alike.

Q. Does it apply to employees who are presently em-

ployed? A. Yes, it does. Now, all right, I lost the “train”

there; just a minute. I didn’t feel that it was right to

extend this to the new employees, but everyone who was

on the Pay Roll as of September 15, 1965, I said, could be

covered, under this modification, or if you will, I liberal-

ized the requirements a little bit to try to help folks

qualified for these higher jobs.

Q. Is your testimony, then, Mr. Thies, that the policy is

to accept minimum acceptable scores on the two [85] tests

referred to in your letter, which are the Wonderlic and

the Mechanical AA, to accept those scores in lieu of a

High School education, and that policy is applicable only

to those who were on the Pay Roll, as of September the

15th, 1965? A. Yes, sir. r

Q. Is that the policy? A. Yes, sir. :

Q. Now, Mr. Thies, what does the letter show—this

Plaintiffs’ Exhibit 1—as a minimum acceptable score on

}

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88a

A. C. Thies—for Defendant—Direct

the A. F. Wonderlic Test!—I’m sorry; that’s Defendant's

Exhibit 1. A. 20, on the Wonderlic.

Q. And what for the Mechanical AA? A. 39.

Q. Now, how were these scores determined, Mr. Thies?

A. These scores were determined by the Personnel Depart-

ment of Duke Power Company in consultation with Dr.

Moffie, Consulting Psychologist, and were put into effect

over the whole entire system for employment tests, to

yield us the type of individual that we felt that we must

have.

Q. Do you know what the 50th percentile of the High

School graduates make on the Wonderlic Test? A. I be-

lieve it’s 21.

Q. 21? [86] A. 21 vr 22. Somewhere in between 21 and

Q. And you have accepted 20? A. Yes, it’s my under-

standing that—this is a level that is between 11th and 12th

grade capability—somewhere along in there.

Q. State, if you know. Mr. Thies, what the Oth per-

centile of those having completed the 12th grade make—

that is, what is the norm of the average High School grad-

uate on the Bennett Mechanical AA? A. I believe it’s this

39 that we have here.

Q. Now, is there any flexibility with respect to these

minimum-acceptable scores? A. Yes. We have instructed

our Personne}! that administer these and grade them that

if a man is one point over on the Wonderlic and one point

under on the Mechanical AA, we would accept that and

vice versa. I mean, we have said that we would take one

point less on one test, if he’s one point over on the other,

but we have held to those limits.

Q. It has been stipulated, Mr. Thies, that Mr. Richard

Lemons — that Lemons administers the tests at the Dan

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89a 5

A. C. Thies—for Defendant—Direct

River Station —do you know whether or not Mr. Lemons

has any special training in the administration of tests?

. © o * * 3

[87] eee

By Mr. Ferguson:

Q. Who administers the tests at Dan River? A. There

are three people who are capable of it, so that our Mr.

Richard Lemons has administered the tests at Dan River,

and he has had training in this. He went to Charlotte and

attended a training session, which explained to him along

with others in the Company that would administer these

tests, the method of administration—how to score the F

tests, how to provide the materials for the employee, and ‘

the use of the test manuals, and it’s a fairly simple thing :

[88] to administer these tests. They have strict rules and ;

time that you must go by, and generally it was instruction ;

of the personnel that would administer the test, and how P

they were to be administered. ;

Q. Who conducted the training session? A. I’m not ,

sure who conducted that session that he was in, but it

was someone from the Personnel Department, I believe. t

I believe that Girard Davidson was in charge of the ses- :

sion. Mr. Austin was at the session. I’m not sure who ‘

conducted the session. :

Q. Do you know whether or not Mr. Lemons also scores f

the tests? A. Yes, he does. é

Q. Where are the tests administered? A. We have a ‘

Conference Room there that is a place that is a little §

smaller than this Courtroom, that has tables and chairs, :

and it’s a quiet place, and it’s free from disturbance and :

generally, this is where the tests are administered—in a f

SORTS esate ass 3) SOT a RORT ETS SAR Te

90a

A. C. Thies—for Defendant—Direct

place where there wouldn’t be—wouldn’t be distractions

to the person taking it.

Q. What, if anything, is your policy as to re-testing for

failures? A. Well, we felt like that—a man could con.

ceivably be nervous when he was first taking this test,

and for some reason, feel bad, or make a poor score the

first time, so I [89] instructed the folks to re-test again

in six months; if the man did not pass and wished to take

it again, we would give it to him again in six months.

The Court: Where is your Dan River Plant?

The Witness: It is close to Draper. It is be-

tween Leaksville and Spray—over in that area.

The Court: That's the general vicinity that it’s

inf

The Witness: Right.

By Mr. Ferguson:

Q. Is there any limitation on the number of times that

an applicant may take the test? A. No, there is no

limitation on this, and there’s no requirement that he

take the test. It is perfectly voluntary. We've had the

requirement for years and years and years that you had

to have a High School education, and this is just a way,

if he didn’t have a High School education,—that I would

accept these scores in lieu of that.

Q. Does the Company have any other policy whereby

an employee may get an education or may get a High

School education, if he so desires? A. Yes, we do. In

fact, I have encouraged the folks in this particular action,

to take advantage of the Company’s tuition refund. I

talked personally to a number of them, and asked them

to consider this at night or on their own time—that the

Company would pay three-fourths of the [90] cost of

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SEE SLRS AE ZEAE AERATOR ON SETS ELEN

A. C. Thies—for Defendant—Direct

any expense, and that we would consider this type of

training to get a High School equivalency certificate, as

job related. So far, I believe only one has applied under

Tuition Refund. I believe one man—

Q. Now, you say, “One man;” do you know what his

name is? A. I forget which one he is.

Q. Is he one of the Plaintiffs? A. I believe he is, yes,—

one of the Plaintiffs in the case. I believe he has applied

under Tuition Refund, but this is a means by which they

could meet this High School diploma requirement.

Q. Mr. Thies, have any Negro employees taken the test?

A. Yes, sir, they have.

Q. Have any white employees taken the test? <A. Yes,

sir, they have.

Q. Do you know whether or not they passed or failed?

A. None of the white or Negro; employees who have

taken these two tests so far have passed both tests suc-

cessfully. There are three who have taken them.

Mr. Ferguson: Your Honor, if I could just have

a couple of minutes to get my things together here.

The Court: All right.

By Mr. Ferguson:

Q. Mr. Theis, this is a document [91] that is entitled,

“Registration and Application for Tuition Refund, Duke

Power Company.” I previously asked you if you knew

whether or not any of the Plaintiffs had made application

under the Tuition Refund Program. Does this refresh

your recollection? A. Yes, sir.

Q. What is the name? A. Willie R. Boyd, Semi-skilled

Laborer.

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92a

A. C. Thies—for Defendant—Direct

Mr. Ferguson: Your Honor, at this time, I don’t

desire to enter into evidence the charge that we

received from the Equal Employment Opportunity

Commission for which we gave a receipt, in view

of the position I have taken that the Statute rules

such evidence incompetent. I would, however, like

to ask Mr. Thies whether or not this is what he

receipted for, or is this representative of what

he receipted for, and I would like to go through

it in that way, if I may?

The Court: It’s up to you as to whether you

want to introduce it or not. I’m not insisting that

you do. Whatever the Commission has said about

it is not going to have any bearing on me one way

or the other, you know. Really, what they put in

there—I will have to look at it from the evidence

that’s before me, to determine whether there is or

is not.

Mr. Ferguson: All right, sir. That completes

[92] my examination of this witness.

The Court: I’m learning about this case. You

already know about it. You obviously require a

High School education. You say, for years and

years, you required a High School education in

connection with some of your classifications and

some of your jobs. In which jobs have you required

a High School education or its equivalent, Mr.

Thies?

The Witness: For over ten years, we have re-

quired a High School education for Watchman, Coal

Handling Maintenance, Operating, Lab and Test

jobs.

93a

A. C. Thies—for Defendant—Direct

The Court: Well, maybe, if you will approach it

from the other end? What didn’t you require?

The Witness: Labor.

The Court: Just Labor?

The Witness: Right.

The Court: But if—

The Witness: Your Honor, we’ve had some ex-

periences. The nature of our business is becoming

more complex all the time. We have got seven or

eight computers on order. We are moving rapidly

into the nuclear power area with our Leconia Sta-

tion. We use our existing Power Stations as a

nucleus pool from which to draw man power with

the skills required to move into new Stations—

new locations, and they form [93] the nucleus of

the experienced people, into moving into these more

complex areas. Many years ago, we found that

we had people who, due to their inability to grasp

situations, to read, to reason, to have a general in-

telligence level high enough to be able to progress

in jobs—that we were—that we were getting some

road blocks in our classifications in our Power Sta-

tions, and this was why we embraced the High

School education as a requirement. There is nothing

magic about it, and it doesn’t work all the time,

because you can have a man who graduated from

High School, who is certainly incompetent to Zo

on up, but we felt that this was a reasonable re-

quirement that would have a good chance of suc-

cess in getting us the type of people that are

required to operate the more complex things thai

we are faced with all the time, and this was the

reason behind this. Now, the reason that we offered

TRIS ORE TS st ar epee a parm eae see eto PONENT OLE TERI IBY: eID ne er eas ia it ae

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A. C. Thies—for Defendant—Cross

the test, was an effort on my part that backfired,

I was trying to help people who didn’t have this,

to some way get around going through all this

schooling—to take English and Spanish and all

this other stuff, which really didn’t bother me too

much. If they had the intelligence to do the job,

that’s all I was interested in, but I didn’t want to

break my policy because then, I would have to

take people in that I knew didn’t have the skills to

do [94] this, and they would have a hard time with

it. This was the background behind it.

The Court: I just wanted to be informed. I don’t

complain about your policy at all. I understand

that the shoe manufacturing Company up in Wilkes-

boro, has the very same policy, even with jani-

torial help—that unless you have a High School

education, why, they don’t want you, because it

does, as you say, interfere with their in-planned

promotion, which sometimes brings on complica-

tions. All right. Mr. Belton, you may cross examine.

Cross Examination by Mr. Belton:

Q. I think, Mr. Thies, you testified at the beginning of

your testimony as to the kinds of jobs that were performed

by various employees in the respective categories that

you have at Duke Power? Is that correct? A. Yes, sir.

Q. Let me ask you, do you have written job descriptions!

A. We do not.

Q. On what basis do you determine what the job con-

tent of a particular job category would be? A. It’s deter-

mined by practice and by many years of doing these jobs,

and by an understanding between the Supervisor and the

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95a

A. C. Thies—for Defendant—Cross

man in any classification as to what his duties [95] are.

It is explained to each man What his classification is.

He knows from actual practice what his job requirements

are, but these are not written out, as such.

Q. Have the job content in performing a job, has it

changed over the years? A. Not appreciably, no.

Q. I think you testified, Mr. Theis—let me show you

because I’ll have reference to it. Mr. Theis, do you have

before you Answer Interrogatory #12B which lists the

job classifications? A. 12B?

Q. Yes. I think it was handed to yeu by Mr. Ferguson?

A. I’ve got it in here somewhere. 12A and C, I’ve got.

Let’s see. Yes, here it is—12B.

Q. Referring to Answer 12B of the Interrogatories,

is a listing of the job categories in the various depart-

ments. I think you testified that the normal way for a

person to advance in any one particular category would

be starting at the bottom—starting at the bottom lowest

job and moving up to the next highest job? Now, is that

correct? A. That’s the normal way, yes, sir.

Q. My question is, have there been instances in the past

five years in which an employee has not moved up the

progression chart in the normal way that you referred to?

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NPE LOREEN Dieta, EERSTE CE erage PF

{96] Mr. Ferguson: Objection.

The Court: I will allow it, restricted to since

July 2nd, 1965, the effective date of the Act.

The Witness: Your question is—if I understand

it correctly—is are there any employees who have

not moved up the progression scale in the normal

way, when a vacancy was created above?

Mr. Belton: That’s correct.

REE BRAINS Reese ReR tN sae rec “VEIT SOLER a IRR ih em ce meanest aye

96a

A. C. Thies—for Defendant—Cross

The Witness: Yes, there have been some. I’m sure

whether it was prior to July 2nd or after, but I

know in one case, we had two men in the Pump

Room at the Power Station—the Pump Operators

—that were not High School graduates, but had been

there for many years, and when time came for pro-

motion, they said, “We can’t do the Control Opera-

tor’s job, and we don’t want to be promoted,” so

we moved around them, but I don’t know of any other

particular ones.

By Mr. Belton:

Q. Referring to Answer 12B again, and particularly the

category of Laborer, how long have you had a job classi-

fication for Auxiliary Service Man? A. About— oh, a

year and a half or a little less, maybe.

The Court: Now, what do you mean by Auzil-

iary Service people?

The Witness: An Auxiliary Service Man was a

(97] classification which we created, and I’m not

sure of the date, but it was a year or year and a

half ago, into which—into which we could promote

anyone in the Power Station, but particularly the

semi-skilled Laborer who exhibited skills that were

extraordinary. Maybe he could do a little bit of

rough carpentry work or some brick work or some-

thing like that, or maybe he had other special skills

that warranted a little bit more money even though

he could not be promoted due to his lack of a High

School education, into the higher classifications in

the more skilled jobs—that this was a way to re-

ward the man with a special skill that might come

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97a 3

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A. C. Thies—for Defendant—Cross

along, and it was just a merit classification that we

put in there. At the present time, there is no one

in this at Dan River.

The Court: Let me ask you this, Gentlemen. I

am going to call on you when this matter is com

pleted, to give me proposed Findings of Fact and

Conclusions of Law. Each of you, now, are you

going to want a copy of the transcript in this case?

Mr. Ferguson: Yes, sir,

Mr. Belton: Yes, sir.

The Court: It has something to do with my note

taking. I can listen better if I don’t have to take

notes. All right.

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STEEN RR Pap os mee

[98] By Mr. Belton:

Series

Q. Looking again at 12B which you have before you,

were the jobs performed—and I understand that vou tes-

tify that vou have no persons in the Auxiliary Service

category—would the jobs performed by a person in the

Auxiliary Service category, have been jobs which would

have been performed by persons who,—in the Labor semi-

skilled category? A. That’s a little bit difficult to answer,

but I will try from this standpoint. It’s almost like the i

explanation I gave this morning—for a promotion from ‘

Mechanic B to Mechanic A. The man who received this i

promotion to Auxiliary Service Man, might have as his

normal duties, doing janitorial work, say, in an area of

the Power Station, and this stil] might be his normal duties,

but he had the special skills that on occasion we called on

him to exercise these special things that warranted his

promotion to Auxiliary Service Man in the first place. :

Then, certainly he would be an Auxiliary Service Man,

and he would still normally be doing his other job. but

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98a

A. C. Thies—for Defendant—Cross

he would also have these skills that had caused us to

promote him in the first place to Auxiliary Service Man,

so I don’t know whether this answers your question or not,

but he could be doing some of the same things he was

doing before he was promoted. It is not—there is not a

sharp line of demarcation, and it doesn’t create a vacancy.

He is not satisfied, and he [99] doesn’t become a specialist,

by any means, but he is still doing his regular job.

Q. Do you have any white employees in the Laborers

Department in the job category of Laborer, referring

again to your 12B? A. No, sir, we do not.

Q. Do you have any white job category Laborers, semi-

skilled? A. No, we do not.

Q. Now, do you know whether the Labor Foreman is

Negro or white? A. He’s white.

Q. Do you know what his educational background is? A.

He does not have a High School education, but I couldn't

tell you just how far he got in school. I don’t remember

that detail.

Q. Do you know whether you have an Assistant Labor

Foreman? A. No, we have no Assistant Labor Foreman.

Q. Now, my question is this,—did you have whites in

the job categories below Labor Foreman prior to July 2nd,

1965?

Mr. Ferguson: Objection.

The Court: Sustained. I have read parts of this

decision, and I see nothing—there was evidence that

[100] went in prior to July 2nd, ’65.

Mr. Belton: Your Honor, even though it’s not

demonstrated, in the opinion that you have before

you—

99a

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The Court: It doesn’t say whether it’s objected

to or not.

Mr. Belton: Right. As ] am saying, and I am

trying to explain the cireumstances to which I have

brought it to the Courts attention; the case was

handled—persons held the same office, which asso-

ciated—I know the same objections were raised.

The Court: Well, how far do we go back then?

Do we go back to July 2nd, ’64 or to July 2nd, ’63,

or just where do we go with this, then?

Mr. Belton: Your Honor, I think it depends on

the particular line of evidence that is being de-

veloped. I think that under—in any area that the

Party should be able to go back at least as far

as July 2nd, 1964, which is the date that Title 7

was passed, along with other portions of the Civil

Rights Bill. However, there is legislative history

to indicate that the reason why Title 7 did not

£o into effect on July 2nd, ’64, as did other provi-

sions of the Act, was to allow a period of adjust-

ment.

The Court: To allow a period for them to get in

compliance—

(101] Mr. Belton: The question that we have

before us now, your Honor, in this case js whether

the Parties are in compliance, and in order to

determine whether they are in compliance, we can-

not focus specifically on the date in which they

were supposed to have been in compliance, at

least when they apply it to this, at this stage.

Now, I think after the Act has been in effect maybe

ten or twelve years, during the time, one needs to

establish whether it is or not in compliance, need

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100a

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not extend beyond—back beyond July 2nd, °65, but

I think that at this stage, when the cases are being

brough: under Title 7, that they’re being tried,

that the Court needs this cross-section in order to

make this determination.

The Court: I understand if you could show that

this Company had a system of classifications—a

classification that was discriminatory in June of °65,

that I could assume from that, that they didn’t cor-

rect it, by the effective date of this?

Mr. Belton: Your Honor, let me refer to the

language at ieast in the Quarles opinion, which sug-

gests that it’s necessary to go back beyond the date

—the question that is posed on Page 17 “is our

present consequences of past discrimination covered

by the Act?” Now, what the Court held in the

Quarles case is that [102] as of January 1, 1966,

Phillip Morris no longer discriminated. The Court

also posed a problem, gi

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