# Appendix — Griggs v. Duke Power Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0240%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 401 U.S. 424 ## Text | canal Pa ER MRR EL RINT RING HY CU OTL ERR 2 Se RSTO ARMIN Heke EA ~ INDEX : PAGE j BPPOWUE TOUGEIOE TUITE nn iscs so ssisenseccnscccsctnesessrnsseemserneas la | 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 3 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 4 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 2a 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. 3a 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, v. Duke Power Company a corporation ’ >] Defendant. I. 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 OTE Ree : AP MBS ad ata ae eee " . 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. (C) Some of the plaintiffs themselves admit they are not 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. ae 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 | ae 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 = i . 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 GE 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 I 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. II 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. ~~ & ¥ 4 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 eh ye a la a FOE, ; ‘ t x | é | - 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 ce 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 ; 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, a 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 a 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- - — —— ee tee Tee ee ee eee ve ye erga FEEL IE LN ee NPG SMILE BIN LI RE SAT Ae er Sarg tds {repr St ARR LIEU PERT A DP eS Se 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 ) 7 — 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 i 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 Aa 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 4 | " 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 a AAS a ten Y - SL RIO i irks kad, i i Ll hn Ae Whim) Th PT EEN BR INC ena 2 SOE RR OR OS 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- we 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 —EEEOEeEEOEOeEeEeEeEeEeEeEeEeEeEeEeEeeee ee ee ee 8la 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 Re eRe Cage Pers WP ORI PRES 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. we a re 4 Reha, YT Ps et tee @.; 7 ie & 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 kee nn ee 2 Ee WE NO A ete O Saree Kaa) So eek BET DTP RAN SUIS POS, BLS ES OIL FE 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 CPSP Mes SPY AYO Te BD LIE POOR EAS PED De A eet EGE LEI ELLE | 9/233 > 4 PAIR LOD ANE LO CTAIN ats a atc UROL OR 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 } . — RPT OBERT MA INE ER SH IS Be OME ete mi ae 05 Kl SL TETE POET GREELEY TON. AINE CO RINT ARGON ae nae re 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 2S ACEO er AS SBE : Nii ee NT TNT ON SORA OTE REIL 8S So RP RU NT ARR WEES. Ae ene 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: t ! 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 i : SORTS esate ass 3) SOT a RORT ETS SAR Te oO 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 ae a ae 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? yv white employees, as contrasted to the average—total ar.» age of overtime work by Negro employees? A. No, we a not, because we don’t consider there’s any difference. We don’t make any distinction between our white and N egro em- ployees. For instance, in the Coal Handling, we have got a Negro employee who is a Helper. He’s a part of the Coal Handling Operation. We sce no reason to pull him out of the Coal Handling Operation. He’s a full part of it. Q. So on the computation, of the overtime percentages, you included those Negro employees in Coal Handling in that computation? A. Let’s not misunderstand. The only Negro employee in the Coal Handling Operating Depart- ment is the one who is classified as a Helper. The other— the other semi-skilled Laborers, who are in the general area of the Coal Handling Operation are in the general Labor force of the Plant, and they just clean up over there and oc- casionally drive a spike in the railroad or put some flash in bags or something of this kind, but they are not part of Sg Te . = es na 108a A. C. Thies—for Defendant—Cross the Coal Handling, if you will. They are not a part of the Coal Handling Department as such. Q. Thank you. [112] A. You see what I mean? 0. K. Q. Did you finish your answer, because I was trying to clarify a point that I was a little confused on? A. Maybe I misunderstood you. Q. Let me rephrase it, if you will, so we can understand each other. My question is that you did make an analysis of how much overtime was worked by employees in a cer- tain department? Is that correct? A. Right. Q. Now, my question is, realizing that you have some semi-skilled Laborers who work—when I say, in the Coal Department, I don’t mean that they are employed in Coal. Of course, they do work in the physical location? Is that correct? A. (No answer.) Q. Did you compute the overtime that they worked, into the percentage worked by employees in Coal [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0240%3A01. Public record. Not legal advice.