Appendix — Albemarle Paper Co. v. Moody
Supreme Court brief1974
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In The
SUPREME COURT OF THE UNITED STATES
OcroBER TERM 1974
No. 74-389
No. 74-428
ALBERMARLE PAPER Co., Petitioner
v.
JoserpH P. Moopy, ET AL., Respondents
Ha.iFax Loca 425, PAPERMAKERS
AND PAPERWORKERS, Petitioner
V.
JosepH P. Moopy, Ef AL., Respondents
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FOURTH CIRCUIT
INDEX
App. Page
Relevant: Dockets Entries ornare eee 1
Bi Te Me of) ce Ba 4s G2 bs. gmap een Oe an nee eee ee 6
Plaintiffs’ Memorandum in Opposition to Motion for Summary
Judgment, filed November 22, 1966 ..........0..........::c.ccscecsceeeeeeee 11
Memorandum Opinion and Order, filed July 6, 1967 ........0.0........ 16
i
ata — - i lait Te at RSs Ercan s Se
ae
Jd ‘
App. Page
Answer, Albemarle Paper Company (Virginia), filed July 26,
BPI eniiec ss ccctebacdapheseesiadetoissesanstcysuveseisd seenictaraungacinidiosebiopeseucessoseeas 21
Answer, Halifax Local No. 425, filed July 28, 1967 _.0..02000002..... 25
Letter from Francis V. Lowden, Jr. to The Honorable John D.
Larkins, Judge, filed June 12, 1970 000-0... penne 28
Opinion and Order on Motion to Add or Join, filed September
|, | a op ree ne ie na ean ee 30
Amended Order, filed October 15, 1970 0020000000 ccececececec cece eee 40
Answer and Cross-Claim, Ethyl Corporation, filed December 28,
1970 ............- welch nbaaeirend lg ea nants Dieniesiereetemeetavasdeenenesbuysaseeemensite ices 41
Order on Supplemental Interrogatory, filed May 28, 1971 ............ 44
Order on Supplemental Interrogatory and Designation of the
me, FU Fe 1D F987 Bini vcsi css iced ccseeerersmetnsisinthanveerteee 45
Order on Communications with Class Members, filed June 18,
DE nccaseinreeiee Aaaapievailp eens acon eens lads ues eaedin ebdiaea digs oe 48
Order on Notice to the Class, filed July 8, 1971-00002 .. 50
Notice to Class Members (Exhibit A to Order of July 8, 1971) .. 53
Motion for Leave of Counsel of Plaintiffs to Communicate with
Class Members, filed July 14, 1971 uw... eee eeececeeeceeeees 57
Motion for Clarification, filed July 14, 1971 2200... 64
Motion for Severance and the Appointment of a Master, filed
Velly 14,1978 ccc peaeniess ie Daycaditeessueutaindevedeeacas areca 68
Proofs of Claims, filed July 15, 19, 21, 23, and 26, 1971... 70
ii
ETT ET ENOL FLT PAT IIT ILL OEIC OO NA Pe pH OM EMOTE OD IBMT TG Sta
Rien
Stipulation of Facts, filed July 26, 1971 00 86
Trial of the Action held before the Hon. F. T. Dupree, U.S.
District Judge for the Eastern District of North Carolina,
Wilson Division Commencing on July 26, 1971 at Raleigh,
North Carolina:
Appearances oo... plore ealaaa eee ten eae eederedesouatapsineessesestas 113
Colloquy between the Court and Counsel [Tr. Wy 114
Testimony of James Alfred ‘ones
Direct [USS] neces cccccccecceesccseesvestenteseesessveseeseceeceeeeeeeeee 119
Cross, Defendant Employer (DE) [169]....00.00000000....... 125
Testimony of Ethoria Jones
Direct [173] occ occ iepecneanceesebeeresacceens 126
Cross, DE [187] ....... Pitinas dv edbeocstandayiedaze5 beheandotasavvedicaaieetta-ssen 127
Cross, Defendant Union, (DU) [202] 00000000000. 127
Transcript of Proceedings Held Before the Hon. F. T. Dupree,
Jr., U.S. District Judge for the Eastern District of North
Carolina, on July 27, 1971:
Appearances ......0.0.0........ beter bea Santana tot assielsdotatcanssenceccandeseenecesaecs .. 128
Testimony of Philmore Taylor :
OS oD) OK) rr 128
Testimony of Mack Coy Boone
Bice A) C9 a eeennee nn veer ve OE 129
Cross, DU (332) oon... 2. eeeeccssccssssssscesessssseceenenessencsssscaccesevene 129
Testimony of David Harding
se ee ee ee 129
By the Court [344] 20 cccecccssnececeeesssssnesnens 130
Testimony of Johnny Easter
Direct [361] 02.0200. Sganeprerdsesebackevatiesshaabeddseraacasversictcoe 130
M68 DL SGL | csssccacesscsscncsinnsepsinesicsSneacencessepyecugqeeztseseenncens 130
ERLE RE TLL EO t Oapengr pare ae TLE E LE DIES OIE ES hy DE Eat IOP gene PN ge op Sere acne JEP SE Magee
App. Page
Transcript of Proceedings Held Before the Hon. F. T. Dupree,
Jr., U.S. District Judge for the Eastern District of North
Carolina, on July 28, 1971:
Apppearances |...............000.. jratnenn sixcheesanieeineseninneaceeasnnnotemeaned 132
Testimony of David Mills (upon oral deposition) [389] ........ 132
Testimony of Arnold Brown (upon oral deposition) [463] .... 142
Testimony of Curtis V. Bullock (upon oral deposition)
[503] 0... eee (pete ewbeaepaca ieontcstcocene-useviesieausicacesoaiaene desu oieetse 148
Testimony of John E. Bryan, Jr. (upon oral deposition )
DIS re acer cee canst cece srrence ne teecrcd sec daemea iol Reanlepomaeaanteersanintes 148
Transcript of Proceedings Held Before the Hon. F. T. Dupree,
U.S. District Judge for the Eastern District of North
Carolina on July 29, 1971:
Appearances ..........2....eeeeceeeeeceececeeeeeeeeees 150
Testimony of Ernest Garner
CIOOR, TA TGR aceonncheteeneseteriaa tine 150
COG TIT A acctieseecaieinn: 151
Testimony of Willie H. Mason
TIRCCE TI scecsscticsniesictestic ven cersavoteeciuciasideiccescbegubnaeactoe 152
ee, TIRE LRG iscsi setae tee tse eaten 152
OU I I insist teenie oieemenpees 153
Testimony of Theodore Daniels (upon oral deposition)
4 Secon eneTe sty oes anal ateneetehesacectcoedighoniniepibeeinestes 154
Testimony of Henry Hill (upon oral deposition) [708] ........ 155
Testimony of Arthur Mitchell (upon oral deposition) [717] .. 156
Testimony of Clarence High
ORE SFE ccs ect iccseeorneerirernicucnninasrosacaee 157
Testimony of Nicholas C. Vrataric (upon oral deposition)
UPR bee e sect e cnet es someone teertese cso d enka rors aeons 157
iv
— ae ne ee ee
App. Page
Transcript of Procedings Held Before the Hon. F. T. Dupree,
U.S. District Judge for the Eastern District of North
Carolina on July 30, 1971:
Appearances ............... soinienkbbepneaeesteiya ake dice coe ueveensicnesenie@ibaciaaies 160
Testimony of Dr. Joseph Tiffin
Direct, DE [852] oo...0c.c.c0-cccccccscssssesessssssssssesssevessesevsesssseseeee 160
Cross, Plaintiffs (P) [892] .2.0........ccececccccceeccespeeeeeeeeeeeeee 173
Testimony of Edward C. Moore, Jr. (recalled)
PRCCE, TIE TGIF) oss sicscescssiitsssniciccnsusescensvenyssessinonncossoensooievcsnse 185
Croan, BP [GES] o.nccccncsseieninsscossessencsseonessssocerssenesouseersesceseasoreses 188
Testimony of John E. Bryan, Jr.
Direct, DE [933] -.....02202000000020000.2--- sin otasianesulbeninccmnnncteaysceconis 192
Testimony of Dr. Richard Barrett ;
Direct, P [944] oo... cece cece cece ceeeeeeececeeeeeereeeeneeeeeeeeees 196
OS oe DO be 6 0) 207
Testimony of Dr. Joseph Tiffin (recalled)
By the Court [972] .202202..20..0..c2cccecccecesceeecencecececceteceneeeeeesesees 208
Testimony of John E. Bryan, Jr. (recalled)
9 a 5 a |g, nee nn ee 211
NR TN Bs ssnccesitce wicemtesnentec nese aiaevapsibinnbctenbenendedusste 235
Transcript of Proceedings Held Before the Hon. F. T. Dupree,
Jr., U.S. District Judge for the Eastern District of North
Carolina on August 3, 1971:
PRN aires ctrsiaf entero enteric etnies 243
Testimony of Edward C. Moore, Jr. (recalled )
m,n Fae | 5 |) [ene CN 243
Crom. (PF) [1996] .....5......1 P sepet da ontaeioae sei aastemonieioreces 245
Redirect [1249] 0000000. een 248
v /
App. Page
Testimony of John E. Bryan, Jr. (upon oral deposition)
DR lacie areccarentccanvty sens Lccwrshnedeomateniness sleet eames 249
Testimony of David Mills
Direct; DU [1298] ......... sieecacioiesectnninshaesantnensonccustakonereans 253
Cross, P [1334] ...:.....206.....2...c:cn00--0 shoe detente ois sapiesicitandsairoen 267
Redirect [1366] 000 ee eeeensaeaneed 268 —
. ;
Transcript of Proceedings Held Before the Hon. F. T. Dupree,
Jr., U.S. District Judge for the Eastern District of North
Carolina on August 4, 1971:
{
Appearances ................ gecvseacoeceesnecsonennsscnees Finavyestuessayuvaasestsres uses _ 270
Testimony of Warren Davis :
Direct, DU [1378] 0.000.000... dralepihulensi0eteripeoe: seteender 270
Plaintiffs’ Exhibits ;
. App. Page
Defendant Employers’ Exhibits:
DE-2 ooo eee pevnesadbeigs dinsiveahesesesianainte carvestbointanseeticslcotioees 427
DI cds ca cisarnencescsantnneeeinmisgntnaweveutieeamanddchesncoupeicnediaencsranimbtenteeuNatas 431
CP BE nsxsnnvescdcatnnnsossontavaducksavebdnncsrvsinetitebaveseeiiariatsenanpevisenpwnmzesiewanes 439
| D) Days Se speerentrocbanysaehsetscsttySbeoumnnires 458
Defendant Union's Exhibits :
| D) OY cs 472
Memorandum Opinion and Order, filed November 9, 1971 ........ 473
Motion to Alter or Amend the Judgment Entered on November
9, 1971, filed November 22, 1971 200.0... ccee eee cece 508
Letter from the Hon. F. T. Dupree, Judge re Plaintiffs’ Motion
to Alter or Amend, filed November 22, 1971 200000000000000ceew... 510
Opinion of the United States Court of Appeals for the Fourth
Circuit, entered February 20, 1973 2000000000000 eee cee 5i1
Order Granting Rehearing en banc, entered June 25, 1973 ...... 538
Question Certified to the United States Supreme Court, filed
CINE i I Seki tac cepsanigspiesniien teh snilatcemibtaieretthacanieiies aptoail . 539
Opinion of the United States Supreme Court Answering the
Certified Question in the Negative, entered June 17, 1974... 542
Order of the, United States Court of Appeals Rescinding Its
Order of June 25, 1973 and Denying the Petitions for Re-
hearing and Rehearing en banc, filed July 22, 1974 0000. 548
‘an
CHRONOLOGICAL LIST OF RELEVANT
DOCKET ENTRIES
Aug. 25, 1966—Plaintiffs’ Complaint filed in U.S. District
Court for the Eastern District cf North Carolina, Wil-
son Division.
Sept. 26, 1966—Defendant, Halifax Local 425’s Motion to
Dismiss filed.
Sept. 26, 1966—Defendant, United Papermakers and
Paperworkers International Union’s Motion to Dismiss
filed.
Sept. 28, 1966—-Defendant, Halifax Local 425’s Amended
Motion to Dismiss filed.
Oct. 5, 1966—Defendant, Albemarle Paper Co.’s Motion
for Summary Judgment filed.
Oct. 7, 1966—Defendant Albemarle Paper Co.’s Motion
for Summary Judgment filed.
Nov. 22, 1966—Plaintiffs’ Memorandum in Opposition to
Summary Judgment filed.
Dec. 20, 1966—Defendants, United Papermakers and
Paperworkers and Halifax Local 425’s Motion for Sum-
mary Judgment filed.
Jan. 9, 1967—Plaintiffs’ Response to Defendants United
Papermakers and Paperworkers and Halifax Local 425
Motions for Summary Judgment and Motion to Dismiss
filed.
July 26, 1967—Defendant, Albemarle Paper Co.’s Answer
filed.
July 26, 1967—Defendant Albemarle Paper Co.’s Motion
to Dismiss filed.
July 28, 1967—Defendant Halifax Local 425’s Answer
filed.
App. 2
Nov. 24, 1967—Order and Memorandum Opinion entered
denying Defendant, Albemarle Paper Co.’s Motion to
Dismiss.
f
June 25, 1970—Plaintiffs’ Motion to Add or Join Parties
Defendant filed.
Aug. 20, 1970—Defendant, Albemarle Paper Co.’s Motion
to Dismiss filed.
Sept. 29, 1970—Order and Opinion entered that Motion to
Add or Join the Albemarle Paper Co., a Delaware Corpo-
ration, the Hoerner Waldorf Corp., the First Alpaco
Corp., and the Ethyl Corp. is allowed and Motion to
Dismiss on behalf of Defendant, Albemarle Paper Co.,
a Virginia Corporation, as to it and to all parties herein
joined as parties-defendant is denied.
Oct. 15, 1970—Amended Order entered.
Dec. 3, 1970—Defendant, Albemarle Paper Co.'s (Dela-
ware) Answer filed.
Dec. 3, 1970—Defendant, Hoerner. Waldorf Corp.’s An-
~ swer filed. .
Dec. 28, 1970—Defendant, Ethyl Corp.’s Answer and
Cross-Claim filed.
Mar. 15, 1971—Defendant, Ethyl Corp.’s Notice of Dis-
missal of Cross-Claim filed.
May 28, 1971—Order entered requiring Plaintiffs to an-
swer Supplemental Interrogatory no later than June 25,
1971.
June 15, 1971—Order entered defining class and directing
*Plaintiffs to answer Supplemental Interrogatory by July
10, 1971.
App. 3
June 18, 1971—Order entered directing that all parties and
their counsel are forbidden directly or indirectly to com-
municate concerning this action with any potential or
actual class member not a formal party to action without
consent and approval of proposed communication of the
Court.
July 8, 1971—Order entered directing Notice to members
of the class.
July 14, 1971—Plaintiffs’ Motion for Leave of Counsel for
Plaintiffs to Communicate with Class Members for Pur-
poses of Trial Preparation filed.
July 14, 1971—Plaintiffs’ Motion for Clarification filed.
July 14, 1971—Plaintiffs’ Motion for Severance and the
Appointment of a Master filed.
July 25, 1971—Trial commenced before the Hon, F. T.
Dupree, Judge, United States District Court.
Nov. 11, 1971—Order and Memorandum Opinion entered
enjoining Defendants from discriminating against Negro
employees and setting out certain procedures to be fol-
lowed.
Nov. 22, 1971—Plaintiffs’ Motion to Alter or Amend the
Judgment filed.
Dec. 7, 1971— Plaintiffs’ Notice of Appeal filed.
Jan. 3, 1972—Order entered exrerine time for transmittal
of record on appeal.
Mar. 13, 1972—Record on appeal filed and appeal docketed
in the United States Court of Appeals for the Fourth
Circuit.
App. 4
May 3, 1972—Order entered allowing Equal Employment
Opportunity Commission to participate as Amicus Cu-
riae.
May 8, 1972—Order entered extending time to file ap-
pellee’s brief and reply brief.
May 22, 1972—Appellant’s Motion for Extension of Time
to File Brief to May 29, 1972 filed and Motion granted.
Aug. 17, 1972—Appellant’s Motion for Extension of Time
to File Reply Brief to August 22, 1972, filed and Motion
granted.
Oct. 3, 1972—Cause argued before Boreman, Bryan and
Craven, Circuit Judges and submitted.
Feb. 20, 1973—Opinion of the United States Court of
Appeals for the Fourth Circuit filed.
Feb. 20, 1973—Judgment of the District Court reversed.
Judgment filed.
Mar. 6, 1973—Petition for Rehearing and Suggestion of
a Rehearing En Banc, filed.
Mar. 6, 1973—Petition for Rehearing En Banc on Behalf
of Appellee, Halifax Local 425, et al. filed.
June 25, 1973—Order Granting a Rehearing En Banc filed.
Aug. 31, 1973—Appellant’s Supplemental Brief on Re-
hearing En Banc filed.
Aug. 31, 1973—Appellee Employer’s Supplemental Brief
filed.
Sept. 4, 1973—-Amicus Curiae Brief for the United States
and the Equal Employment Opportunity Commission
filed.
Oct. 28, 1973—Cause argued En Banc before Hayns-
worth, Chief Judge, Boreman, and Bryan, Senior Circuit
App. 5
Judges, Winter, Craven, Butzner, Russell, Field and
Widener, Circuit Judges and submitted.
Dec. 5, 1973—Certificate mailed to Clerk of the United
States Supreme Court.
Dec. 5, 1973—Held in abeyance pending decision of the
Supreme Court of the United States on Court of Ap-
peals’ Certificate.
July 22, 1974—Order rescinding the Court of Appeals’
Order of June 25, 1973 and denying the Petitions for
Rehearing and Rehearing En Banc filed.
“Aug. 9, 1974—Certified copy of Order of the Supreme
Court regarding question to the Court answered in the
negative.
Aug. 29, 1974—Motion of Halifax Local 425 for recall and
stay of mandate filed.
Sept. 4, 1974Appellee, Employers’ Motion to Recall Is-
suance of Mandate filed.
Sept. 13, 1974—Order recalling and staying mandate, not
to exceed thirty (30) days, pending application for cer-
tiorari, filed.
Oct. 7, 1974—Notice evidencing the filing of Petition for
a Writ of Certiorari in the Supreme Court October 7,
1974 filed (No. 74-389).
Oct. 22, 1974—Certificate evidencing the docketing of the
case in the Supreme Court October 15, 1974 filed (No.
74-428).
Dec. 23, 1974—Order Granting Certiorari December 16,
1974 in No. 74-389.
Dec. 23, 1974—Order Granting Certiorari December 16,
1974 in No. 74-428.
* * *
: oR y
App. 6
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District Of North Carolina
Wilson Division
Civil Action No. 989
Joseph P. Mcody, Theodore Daniels, Heriry Hill and
Arthur Mitchell,
Plaintiffs,
V.
Aibemarle Paper Company ; United Papermakers and
Paperworkers, A.F.L.-C.1.O. and Halifax Local No. 425,
United Papermakers and Paperworkers, A.F.L.-C.I.O.,
Defendants.
COMPLAINT
[Filed August 25, 1966]
I
The jurisdiction of this Court is invoked pursuant to
28 U.S.C. § 1343 and 42 U.S.C. § 2000e, this being a suit
in equity authorized and instituted pursuant to Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.,
providing for injunctive and other relief against racial dis-
crimination in employment.
II
Plaintiffs bring this action on their own behalf and on
behalf of others similarly situated pursuant to Rule 23(a)
EUR Gy Ai RP DANE LOR IO ELIE PM
App. 7
and (b) of the Federal Rules of Civil Procedure. There are
common questions of law and fact affecting the rights of
others seeking equal employment opportunities without dis-
crimination on the basis of race and color who are so
numerous as to make it impracticable to bring them all in-
dividually before the Court; the claims and defenses of the
plaintiffs are typical of the claims and defenses of the
class; and the plaintiffs will fairly and adequately protect
the interests of the class. The defendants have adopted
rules and policies and have refused to eliminate same, which
~ have deprived and will continue to deprive the plaintiffs
and others of their class of their rights to equal employ-
ment opportunities without regard to their race or color
as secured to them by Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq.
Ill
This is a proceeding for a permanent injunction to restrain
the defendants frem maintaining any policy, practice, cus-
tom or usage of withholding, denying, attempting to with-
hold or deny, and depriving or attempting to deprive or
otherwise interfering with or limiting the rights of plain-
tiffs and others of their class to equal employment oppor-
tunities at the Roanoke Rapids, North Carolina plant of
defendant Albemarle Paper Company without discrimina-
tion on the ground of race or color.
IV
Plaintiffs Joseph P. Moody, Theodo:e Daniels, Henry
Hill'and Arthur Mitchell are Negro citizens of the United
States and the State of North Carolina, residing in the
County of Halifax, North Carolina. Plaintiffs are and have
been employed at the Albemarle Paper Company plant at
Roanoke Rapids, North Carolina, for several years.
App. 8
Vv
A. Defendant Albemarle Paper Company is a corpora-
tion incorporated under the laws of the State of Virginia,
and authorized as a junior corporation to do business in
the State of North Carolina, with power to sue and be sued
in its corporate name. Said defendant operates a paper
plant in the City of Roanoke Rapids, North Carolina, proc-
essing wood and pulp into paper. Said defendant is an
employer in an industry which affects interstate commerce
and employs more than 100 employees.
B. Defendants United Papermakers and Paperworkers,
A.F.L.-C.1.O. and its Halifax Local No. 425 (hereinafter
referred to as “Union’’) are international and local labor
organizations representing the employees of defendant
Albemarle Paper Company in dealing and negotiating with
said company concerning terms, conditions and privileges of
employment. The Union is engaged in an industry which
affects interstate commerce and has more than 100 mem-
bers.
VI
A. Defendant Albemarle Paper Company has followed and
presently follows a practice and policy of limiting and
classifying its employees on the basis of race or color. De-
fendant company maintains segregated eating and rest
rooms and medical facilities for its employees. All matters
regarding compensation, terms, conditions and privileges of
employment of plaintiffs and the class they represent have
been governed by collective bargaining agreement entered
into by defendants Albemarle Paper Company and the
Union.
B. Defendants have entered into labor agreements to gov-
ern the terms, conditions, privileges, wages and benefits
App. 9
of employees of the Albemarle Paper Company plant at
Roanoke Rapids, North Carolina, which have included
provisions for a seniority system designed to and having
the effect of discriminating against plaintiffs and others
of their class solely because of their race and color. The
last such agreement was executed by defendants in August,
1965 and extends through August, 1968.
C. Defendants have limited the employment opportunities
of plaintiffs and other Negro employees, and discriminated
against plaintiffs and other Negro employees in the compen-
sation, terms, conditions and privileges of employment
because of race and color.
VII
Defendants’ discrimination against plaintiffs and others
of their class with respect to terms, conditions and privi-
leges of employment and classification of plaintiffs and
others of their class in employment were intended to deny
and have had the effect of denying the plaintiffs and others
of their class equal employment opportunities and to other-
-wise adversely affect their status as employees solely be-
cause of their race and color in violation of their rights
secured to them by Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq.
Vill
Neither the State of North Carolina nor the County of
Halifax nor the City of Roanoke Rapids has a law pro-
hibiting the unlawful practices alleged herein.
On or about May 9, 1966, the plaintiffs filed a complaint
with the Equal Employment Opportunity Comission al-
leging denial by defendants of their rights under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq. On or about August 1, 1966, the plaintiffs received
i —— OL OPPO GIO ELLIO LILLLEV GIS LL LLG LED IELTS LEE ANODE ELE LES. RI TI NRE SG! PP REYNE RIE IE
App. 10
a letter from the Commission advising that their right to
maintain civil actions for relief in the United States Dis-
trict Court.
IX
Plaintiffs have no plain, adequate or complete remedy at
law to redress the wrongs alleged herein and this suit for
a permanent injunction is their only means of securing
adequate relief. Plaintiffs and the class they represent are
now suffering and will continue to suffer irreparable injury
from defendants’ policy, practice, custom and usage as
set forth herein unless and until enjoined by this Court.
Wherefore, plaintiffs respectfully pray this Court ad-
vance this cause on the docket, order a speedy hearing at
the earliest practicable date; cause this case to be in every
way expedited, and upon such hearing to:
1. Grant plaintiffs and the class they represent a perma-
nent injunction enjoining defendants, Albemarle Paper
Company and the Union, their agents, successors, em-
ployees, attorneys and those acting in concert and participa-
tion with them and at their direction from continuing or
maintaining any policy, practice, custom or usage of de-
nying, abridging, withholding, conditioning, limiting or
otherwise interfering with the rights of the plaintiffs and
‘ others of their class to equal employment opportunities
including equal rights to employment, equal terms, condi-
tions and privileges of employment as secured by Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
2. Allow plaintiffs their costs herein, including reason-
able attorneys’ fees and such other additional relief as may
appear to the Court to be equitable and just.
Respectfully submitted,
/s/ J. LeVonne Chambers
App. 11
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina
Wilson Division
[ Title Omitted in Printing]
PLAINTIFF’S MEMORANDUM IN OPPOSITION TO
MOTION FOR SUMMARY JUDGMENT
| Filed November 22, 1966]
II
This Action May Properly Be Brought
as a Class Action under Rule 23 of
the Federal Rules of Civil Procedure.
Rule 23(a) and (b) (as amended effective July 1, 1966) ,~_
set forth the requirements for bringing a class action. The ™
basic requirements of Rule 23(a)—(1) sizeable class, (2)
common questions of law or fact, (3) claims typical of
class presented by plaintiffs and, (4) adequate representa-
tion of class by plaintiffs—all are duly alleged by plaintiffs
and are obviously met. We do not understand defendant to
challenge plaintiffs’ credential regarding any of these re-
quirements and they, therefore, stand as alleged. It may be
noted that regarding he isa (2), defendant expressly
concedes that “there dré questions which relate to all mem-
— PE LRN LTA TE OTIS RIS mera: [PRN NEN MISES 6 SRE IN SPC AT RES MOLDY SALT OL TTA TR RE IED
App. 12
bers of the class.as well as questions which relate to the
Plaintiffs.” _
The special requirements; set forth in Rule 23(b) are
also by plaintiffs. Rule 23(b) sets forth three special situa-
tions, any one of whic: will justify a class action. Plain-
tiffs seek to maintain this class action under subdivision
(b) (2) of Rule 23 which requires that
“the party opposing the class has acted or refused to
act on grounds generally applicable to the class, thereby
making appropriate final injunctive relief. or corre-
sponding declaratory relief with respect to the class —
as a whole.” '
Plaintiffs’ action does not merely fall under subdivision
(b) (2). Rather plaintiffs’ action is the model which (b) (2)
was designed to include. The comment of the advisory
committee which prepared the new Rule 23 makes this
crystal clear.
“Subdivision (b) (2). This subdivision is intended to
reach situations where a party has taken action or
refused to take action with respect to a class, and final
relief of an injunctive nature or of a corresponding
declaratory nature, settling the legality of the behavior
with respect to the class as a whole, is appropriate. De-
claratory relief ‘corresponds’ to injunctive relief when
as a practical matter it affords injunctive relief or
serves as a basis for later injunctive relief. The sub-
division does not extend to cases in which the appro-
priate final relief relates exclusively or predominantly
to money damages. Action or inaction is directed to a’
class within the meaning of this subdivision even if it
8 Defendant’s Memorandum, p. 15.
App. 13
has taken effect or is threatened only as to one or a
few members of the class, provided it is based on
grounds which have general application to the class.
Illustrative are various actions in the civil-rights field
where a party is charged with discriminating unlaw-
fully against a class, usually one whose members are
incapable of specific enumeration.” Advisory Commit-
tee Note to amended Rule 23, 86 Sup. Ct. No. 11,
Yellow Supp. at 34 (1966) (Emphasis added).
Plaintiffs so abundantly meet all of the requirements of
Rule 23 that defendant could not seriously challenge plain-
tiffs’ credentials under the Rule. To defendant’s credit, it
does not attempt to do so. As we understand defendant’s
positicn, it does not question whether plaintiffs meet the
requirements of Rule 23, but rather suggests that class
actions are prohibited by Title VII even to a party who
qualifies under Rule 23. Defendant advances two points in
support of this position:
(1) Plaintiffs should not be permitted to sue on behalf
of other members of their class since the other
members have not exhausted their remedies before
the Commission. '
(2) The scheme of Title VII is such that the Attorney
General is vested with exclusive authority to bring
class actions.
This memorandum will take up defendant’s points in order.
1. Plaintiffs Have The Right To Sue For Other Class
Members Who Have Not Exhausted Their Remedies.
It is important to understand the exact nature of the
class relief being sought by plaintiffs. No money damages
are sought for any member of the class not before the
‘4 i — SLY LMON EA A EIT LENE LISA EL SNE OL EOE EEO LEO GSE PETES ALERT 2 REAR FE eM
App. 14
court, nor is specific relief in the way of job changes,
promotions or the like being sought for any member of the
class not before the court. The only relief sought for the
class as a whole is that defendants be enjoined from treat-
ing the class as a separate group and discriminating against
the class as a whole in the future (Complaint, Para. IX).
The issye of discrimination against the class as a whole
is the essence of this action and it was the essence of the
complaints filed before the Commission. The proof involved
in establishing this discrimination will necessarily include
not only proof of plaintiffs’ treatment but also proof of
the treatment of all other Negroes employed by defendant.
This common issue of class discrimination has been pre-
sented to the Commission as fully as it can be presented.
There is no need for, and indeed no sense in, presenting this
common issue to the Commission time and again when the
Commission has once shown an inability to resolve it.
It may well be that any employee seeking separate and
specific relief such as an individual promotion should first
address his individual grievance to the Commission. But
the matter of specific individual relief for other class
members is not before this Court. The only class issue is the
common one of enjoining general class discrimination in the
future. With regard to this relief there are no specificaily
aggrieved individuals since no specific individual can be
aggrieved by a possible future event. The grievatice is a
class grievance and it must be presented by representatives
of the class if it is to be presented at all.
The point was Well made by Judge Gray in Hall v.
Werthan Bag Corp., 251 F.Supp. 184 (M.D. Tenn. 1966).
That case, like the instant case, involved a Title VII class
action where a broad injunction against future discrimina-
tion was sought. In addition, specific relief for the named
individual plaintiffs was sought. In ruling that a class ac-
App. 15
tion on the common issue of class discrimination -was
proper, Judge Gray stated: )
“Racial discrimination is by definition a class dis-
crimination. If it exists, it applies throughout the
class. .. . [A]lthough the actual effects of a discrim-
inatory policy may . . . vary throughout the class, the
existence of the discriminatory policy threatens the
entire class. And whether the Damoclean threat of a
racially discriminatory policy hangs over the racial
class is a question of fact common to all members of
the class.
. * -*
In regard to the injunctive relief sought in this case,
_. . the purpose of the requirement of resort to the
Commission has already been served. In regard to
whatever back pay or reinstatement might be sought
as ancillary relief, however, the purpose of the ad-
ministrative remedies requirement has been satisfied
only as to Robert Hall, for the Commission has not
attempted conciliation in regard to rectifying any al-
leged injuries which other Negro employees or would-
be employees may claim to have suffered as a result of
the defendant’s alleged discrimination.
Upon consideration, therefore, the court is of the
opinion that the complaint properly states a class ac-
tion under Rule 23(a) insofar as it seeks a prohibitive
injunction.” 251 F.Supp. at 186, 188.
In the instant case, plaintiffs ask that this Court adhere
to the sound distinction drawn by Judge Gray between the
class injunctive relief and ancillary specific individual relief.
* * *
— £15 POON NRE RIA SRI EUS BI AT AT I PRET RARER PARSE SERN” A WRENNER
App. 16
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina
Wilson Division
C.A. No. 989
Joseph P. Moody, Theodore Daniels, Henry Hill, and
Arthur Mitchell,
: Plaintiffs,
v.
Albemarle Paper Company ; United Papermakers and
Paperworkers, A.F.L.-C.I.O. and Halifax Local No. 425,
United Papermakers and Paperworkers, A.F.L.-C.IO.,
Defendants,
Equal Employment Opportunity Commission,
Intervenor.
MEMORANDUM OPINION and ORDER
[Filed July 6, 1967]
Plaintiffs bring this action on their own behalf and on
behalf of other Negroes similarly situated under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
alleging violations by their employer, their local union, and
CE Pe ee ee
App. 17
the defendant international union of their rights to equal
employment opportunities. Jurisdiction in this Court is
provided by the Act and by 28 U.S.C. § 1343.
Several motions have been filed by the defendants and
are now before the Court for ruling. Within 20 days of
service of the complaint, the local union moved to dismiss
the action or in lieu thereof to quash the return of service
of the summons upon the grounds that service had been
improperly made and that the complaint fails to state a
claim against the local union upon which relief may be
granted. In a separate motion filed on the same date, and
within 20 days of service upon it, the international union
likewise moved to dismiss the action or in lieu thereof to
quash the return of summons upon the grounds that service
was improperly made and that the complaint fails to state
a claim upon which relief against it may be granted. The
employer, Albermarle Paper Company, has filed a Motion
for Summary Judgment upon the following grounds: (1)
that the Court lacks subject matter jurisdiction and that
the complaint fails to state a claim upon which relief may
be granted, for the reason that plaintiffs have not exhausted
their administrative remedies before the Equal Employ-
ment Opportunity Commission as is required by Section
706(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-
5(e); (2) that the complaint fails to state a claim upon
which relief may be granted in a class action. Oral argu-
ment was presented at a hearing requested by the parties,
and numerous briefs and memorandums of law have been
submitted in support of the parties’ respective positions.
The objections to the sufficiency of service of process upon
the local union and the international union were withdrawn
at the hearing, leaving for decision the jurisdictional ques-
tions and that of whether the complaint states a claim for
relief as to each defendant.
eR D
App. 18
The Court is of the opinion that only one of the motions,
that of the international union, has merit. Jurisdictional pre-
requisites for institution of an action under Title VII of
the Civil Rights Act of 1964 have been the subject of
much recent litigation. See. e.g., Hall v. Werthan Bag
Corp., 251 F.Supp. 184 (M.D. Tenn. 1966); Dent v. St.
Louis-San Francisco Rwy Co., 265 F.Supp. 56 (N.D. Ala.
1967); Robinson v. Lorillard, Civil Action No. C-141-G-
166 (M.D.N.C. 1967); Quarles vy. Phillip Morris, Inc.,
Civil Action No. 4544 (E.D. Va. 1967) ; Evenson v. North-
west Airlines, Inc., Civil Action No. 3961, 35 U.S.L. Week
2601 (E.D. Va. 1967); Anthony v. Brooks, Civil.Action
No. 9947 (N.D. Ga. 1967) ; Mickel v. South Carolina State
Employment Service, No. 11069 (4th Cir. May 3, 1967).
From a reading of the foregoing cases, it appears that the
better rules regarding jurisdictional prerequisites and
the propriety of entertaining an action under Title VII are
as follows: =
1. Subject Matter Jurisdiction. After an aggrieved party
has filed a written complaint with the Equal Employment
Opportunity Commission and has received notice from the
Commission that voluntary compliance within sixty days
irom receipt of the complaint by the Commission has not
been effected, no further formal efforts toward conciliation
by the Commission are necessary to open the district courts
to a private civil action by the complainant against a re-
spondent named in the charge theretofore filed with the
Commission. To the extent that Dent, supra, is inconsistent
with this ruling, it is disapproved and not followed.
2. In Personam Jurisdiction.
(a) Parties Plaintiff: All potential parties plaintiff in a
class action seeking relief under the Act are not required
SRY API OTSA HEP CREE
App. 19
to have all joined in as a group or class in the prior written
complaint to the Commission. This Court approves and
adopts the rationale of Hall, supra, in this respect.
(b) Parties Defendant: Although, as indicated, all
plaintiffs in a class action under the provisions of Title VII
are not required individually to exhaust their administra-
tive remedies before the Commssion where some members
of the class have already done so, it is a quite different
matter as to who may be made a party defendant: a plain-
tiff or a class of plaintiffs may institute a civil action in
federal district court under Section 706(e) of the Act
against only an employer. employment agency, or labor
organization which was a respondent named in the charge
filed with the Commission. Whether this be treated as a
question of subject matter jurisdiction or personal jurisdic-
tion, the requirement that all defendants be named in the
charge filed with the Commission goes to the competence of
a district court to entertain the action in respect to the party
in question (international union), as defined in clear lan-
guage of the statute. Mickel v. South Carolina State Em-
ployment Service, supra. The contention that the local
union is the agent of the international union is without
merit-the records indicating that the local is merely af-
filiated with the international and enjoys an autonomous
existence. This is insufficient to establish responsibility of
the international for any alleged unlawful conduct on the
part of the local.
ORDER
It is therefore Ordered that the Motion to Dismiss filed
by Halifax Local No. 425, United Papermakers and Paper-
workers, A.F.L.-C.1.O. be, and the same is hereby denied ;
App. 20
It is Further Ordered that the Motion of United Paper-
makers and Paperworkers, A.F.L.-C.I.O. (International)
to dismiss be, and the same is hereby allowed;
It is Further Ordered that the Motion for Summary
Judgment filed by Albemarle Paper Company be, and the
same is hereby denied.
It is Further Ordered that the Clerk shall serve copies
of this Memorandum Opinion and Order upon all counsel
of record.
Let this Order be entered forthwith.
/s/ John D. Larkins, Jr.
John D. Larkins, Jr.
United States District Judge
eo ea tke int Sea Mn AD ie
. App. 21
In The
UNITED STATES DISTRICT COURT.
. FOR THE
Eastern District of North Carolina
Wilson Division
(Civil Action No. 989)
{ Title Omitted in Printing]
ANSWER
[Filed July 26, 1967]
Defendant, Albemarle Paper Company, for answer to
the complaint served on it in this action, says:
1. Defendant admits the enactment of the Acts of Con-
gress as alleged in paragraph 1 of the Complaint, but dertes
that they are applicable in the premises and, further an-
swering, Defendant denies that it has deprived Plaintiffs
of any rights secured them by any of the Acts whose exist-
ence is alleged in paragraph 1 of the Complaint, or other-
wise.
2 Defendant denies the allegations of paragraph 2 of
the Complaint.
“ 3. Defendant denies the allegations of paragraph 3 of
the Complaint.
4. Defendant admits the allegations of paragraph 4 of
the Complaint.
PLE TNL OIE IO
App. 22
5. Defendant admits the allegations of paragraph 5 of
the Complaint.
6. Defendant denies the allegations of paragraph 6 of
the Complaint.
7. Defendant denies the allegations of paragraph 7 of
the Complaint.
8. Defendant admits that neither the State of North
Carolina nor the County of Halifax nor the City of Roa-
noke Rapids have enacted laws or ordinances regulating
unlawful employment practices. Defendant is without
knowledge as to the remainder of the allegations of para-
graph 8 of the Complaint and accordingly denies the same,
except that Defendant admits that on or about August 11,
1966, it received copies of Complaints of “Unfair Employ-
ment Practices Under the 1964 Civil Rights Act Title 7,”
signed by the Plaintiffs and verified on February 20, 1966.
9. Defendant denies the allegations of paragraph 9 of
the Complaint and denies that Plaintiffs are entitled to any
of the relief prayed for, or any other relief.
A ffirmative Defenses
First Defense:
The Complaint fails to state a claim against Defendant
upon which relief may be granted.
Second Defense:
The Complaint is barred by the Statute of Limitations
inasmuch as there is no allegation in the Complaint that
the alleged conduct occurred within 90 days prior to the
ps at & Someone
RISA Ae Re B00 CRE RSIS PE greens
.— PORE TE es LEARY RT ARLE are; VO OAR RR NR REE US se
: - FRC LG GE RG
App. 23
filing of charges with the Equal Employment Opportunity
Commission.
Third Defense:
The Complaint fails to state a claim upon which relief
can be granted in a class action, in that the rights, if any,
of the members of the alleged class are several and not
joint and there is no common question of law or fact that
is affecting the rights of the members of the alleged class,
and no common relief can be granted in this action.
Fourth Defense:
The Court lacks jurisdiction over the subject matter of
this action and the’ Complaint fails to state a claim upon
which relief may be granted because the Plaintiffs have not
exhausted their remedies before the Equal Employment
Opportunity Commission as required by Section 706(e) of
the Act, 42 U.S.C. § 2000e-5.
' Fifth Defense:
The Complaint fails to state a claim upon which relief
can be granted in a class action because the Plaintiffs have
not notified the members of the class of their right to
participate in, or be excluded from, this action as required
by Rule 23 of the Federal Rules of Civil Procedure.
Sixth Defense:
The Complaint should be dismissed because the Interna-
tional Union, United Papermakers and Paperworkers,
AFL-CIO, is an indispensable party to this action.
Dee eg ae ee ete
App. 24
Wherefore, having fully answered, Defendant prays
that this action be dismissed and that it be awarded its
costs herein expended, including reasonable attorneys’ fees.
Albemarle Paper Company,
Its Counsel
Francis V. Lowden, Jr.
Paul M. Thompson
Hunton, Williams, Gay, Powell & Gibson
700 East Main Street ~
Richmond, Virginia 23212
Allsbrook, Benton, Knott, Allsbrook & Cranford
P. O. Box 108
Kidd Building
Roanoke Rapids, North Carolina 27870
Of Counsel
[ Certificate of Service Omitted in Printing]
App. 25
In The
UNITED STATES DISTRICT COURT
FOR THE ©
Eastern District of North Carolina
Wilson Division
(Civil Action No. 989)
[ Title Omitted in Printing]
_ ANSWER
[Filed July 28, 1967]
The defendant, Halifax Local No. 425, United Paper-
makers and Paperworkers, A.F.L.-C.1.O., one of the above
named defendants answering the Complaint of the plaintiffs
says:
1. Paragraph 1 of the plaintiffs’ Complaint is admitted.
2. Paragraph 2 of the plaintiffs’ Complaint is denied.
‘ 3. Answering paragraph 3 of the plaintiffs’ Complaint, it
is admitted that the nature of the relief sought by the
plaintiffs is injunctive; however, this defendant has not
committed any acts for which they shotld be subjected to
the relief sought by the plaintiffs and, t lerefore, the re-
maining allegations of paragraph 3 are denied.
4. Paragraph 4 of the plaintiffs’ Complaint is admitted.
5. Answering paragraph 5-of ' the aintiffs’ Complaint,
this answering defendant admits te aera of said
paragraph as the same pertain to thi answering defendant.
Except as admitted, this defen Ant denies the remainder
of the allegations of said paragraph.
6. The allegations of paragraph 6 of the plaintiffs’ Com-
plaint are denied. ,
{
>)
bY NO RRC ea IR Leumi ete ene ter on nse ees
Beme--..... ey Ot ELLE EEE ELLE IDES IDI LIE LIE SOMES AMIEL AIMS IO SONI N OEE RE AER Rn
App. 26 |
7. The allegations of paragraph 7 of the plaisitifis’ Com-
paint are denied.
8. This answering defendant does not have sufficient in-
formation as to the allegations in paragraph 8 of the plain-
tiffs’ Complaint to form a reasonable belief as to the truth
or falsity thereof, and, therefore, denies the same.
9. The allegations of paragraph 9 of the plaintiffs’ Com-
plaint are denied. ;
For A First Further Answer And Defense, This An-
swering Defendant Alleges:
1. Administrative remedies for persons alleging denial
of rights under Title VII of the Civil Rights Act of 1964,
42 U.S.C. Section 2000e et seq. are provided by said Act.
2. The plaintiffs herein have failed to exhaust the ad- —
‘ministrative remedies before the Equal Employment Op-
portunity Commission as provided by the Civil Rights Act. .
of 1964, prior to the institution of this action, and such
remedies are required to be exhausted prior to the institu-
tion of an action of the nature herein brought by the plain-
tiffs.
And For A Second Further Answer And Defense, This
Answering Defendant Alleges :'
The plaintiffs have failed to exhaust the conciliation rem-
edies provided in the Civil Rights Act of 1964 aca
the Equal Employment Opportunity Commission. ;
And For A Third Further ‘Answer And Defense, This
Answering Defendant Alleges :
1. The Constitution of United Papermakers and Paper-
workers, A.F.L.-C.1.O. and particularly Article IX, Section
9, Subsections a and b provides contractual remedies and
procedures for employees who allege a denial of rights in -
connection with their employment. ,
App. 27
2. The plaintiffs have failed to exhaust the remedies and
procedures provided them under the terms of the collective
bargaining agreement pertaining to their employment and
remedies provided by the Constitution of United Paper-
makers and Paperworkers A.F.L.-C.I.O. and specifically
those provisions of said Constitution contained in Article
IX, Section 9, Subsections a and b.
Wherefore, the defendant, Halifax Local No. 425,
United .Papermakers and Paperworkers, A.F.L.-C.I.O.,
having fully answered the Complaint of the plaintiffs prays
the Court that the plaintiffs’ action be dismissed against
this defendant, that the cost of this action be taxed against
the plaintiffs, and for such other relief as may appear to be
just and proper.
Respectfully submitted,
James B. Ledford
623 E. Trade Street
Charlotte, North Carolina 28202
Bonner D. Sawyer
Hillsboro, North Carolina
Warren Woods
1735 K Street, N.W.
Washington, D. C. 20006
Attorneys for Defendant
Halifax Local No. 425,
United Papermakers and Paperworkers,
A.F.L.-C.1.0.
[Certificate of Service Omitted in Printing]
i — LOLOL LALA ELON LE LIN LEI SEBEL ELEN IE GLA LION SPL 1 1 ARAB SITE ORG POR ON
App. 28 °
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina
Wilson Division
[ Title Omitted In Printing]
LETTER OF JUNE 12, 1970
June 12, 1970
- Moody v. Albemarle Paper Compainy,
Civil Action No. 989 ~
Honorable John D. Larkins
United States District Judge _
Eastern District of North Carolina
Trenton, North Carolina
Dear Judge Larkins:
Counsel for the parties in the above action met in Roa-
noke Rapids, North Carolina, on June 4, 1970, for the
purpose of stipulating certain facts which would make
unnecessary (1) the introduction of the voluminous per-
sonnel records copied by plaintiffs and (2) the answer to
defendant’s supplemental interrogatory. |
At the outset of the meeting it developed that the plain-
tiffs would not agree not to introduce the documents afore-
said if the stipulation were worked out. Since all counsel
were present we did spend the day working -out some
App. 29
stipulated facts, in preparation for pretrial conference, but
the basic problem remains unsolved.
Therefore, the defendant, Albemarle Paper Company,
requests the Court to require plaintiffs to answer the sup-
plemental interrogatory. .
As you know, the assets of Albemarle Paper Company
were sold on October 31, 1968. We understand the plain-
tiffsswill move the Court within the next ten days to make
the new corporation a party. The new corporation desires
an opportunity to be heard on this motion.
One of the reasons assigned by Counsel for plaintiffs
for refusing to agree not to introduce the voluminous docu-
ments is that they now think they may have a claim for
monetary damages. The Court will note that no such dam-
ages were sought in the complaint and have not been men-
tioned during the first three.and one-half years this case
has been pending. I mention this at this time in order that
the record will show that the defendants take the position
that damages are not an issue in this case unless the Court
permits an amendment to the complaint, an action which
defendants would strenuously oppose at this late date.
Sincerely yours,
Francis V. Lowden, Jr.
cc: Robert Belton, Esq.
Julian R. Alisbrook, Jr., Esq.
Warren W. Woods, Esq.
RCE Sey SP eee a eye Pe Bek
App. 30
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District Of North Carolina
Wilson Division
No. 989—Civil
Joseph P. Moody, et al.,
Plaintiffs,
v.
Albemarle Paper Company, et al.,
Defendants.
OPINION AND ORDER
[ Filed September 29, 1970]
LARKINS, District Judge:
This cause is now before the court upon the several mo-
tions below-listed in a civil action instituted by the Plain-
tiffs upon the alleged deprivation of their rights to equal
employment opportunities pursuant to the provisions of
Title VII of the Civil Rights Act of 1964; 42, United .
States Code Annotated, Section 2000, et seq., jurisdiction
in the court being grounded in the “Act” and pursuant to
the provisions of Title 28, United States Code Annotated,
Section 1343.
App. 31
The specific motions before the court for its determina-
tion presently are as follows:
(1) Plaintiffs’ Motion to Add or Join the Albemarle
Paper Company, the Hoerner Waldorf Corporation,
the First Alpaco Corporation and the Ethyl Corpo-
ration as parties defendant pursuant to the provi-
sions of Rules 19, 20 and 25(c), Federal Rules of
Civil Procedures; and,
(2) Motion of Defendant Albemarle Paper Company,
(“old” Albemarle), to Dismiss.
Issues have been joined by the parties Memoranda of
Law in support and opposition to and of the motion to
add or join parties and in support of the motion to dis-
miss, and opposition.
The court will first look to the merits of Plaintiffs’ col-
lective motions to add or join the parties above-named. '
Then a determination upon Defendant “old” Albemarle’s
Motion to Dismiss will be made.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
This action was originally instituted on August 25, 1966,
with Albemarle Paper Company, a Virginia corporation,
being named defendant in the original suit. Although at
that time and until October 31, 1968, ‘‘old’’ Albemarle was a
wholly owned subsidiary of Ethyl Corporation; neither
Ethyl, Hoerner Waldorf, Alpaco, nor Albemarle Paper
Company (a Delaware corporation—hereinafter referred
to as “new” Albemarle) were named as parties defendant.
Of course “new” Albemarle had not been formed at that
time. ,
On October 31, 1968, pursuant to an agreement dated
~ October 25, 1968, between Ethyl Corporation, Albemarle
—
Cire... oeREEYRE ENN marenRenERRRT ES
RA Le RI aR
App. 32
Paper Company, Interstate Bag Company, Inc., a Virginia
corporation, and Hoerner Waldorf Corporation, a Dela-
ware corporation, “old” Albemarle transferred all of its
property and assets, real, personal, tangible and intangible
located in Roanoke Rapids, North Carolina, to Albemarle
Paper Company, a Delaware corporation, i.e., “new” Albe-
marle. This was done by deed, bill of sale and related docu-
ments. On that same date, “old” Albemarle, by amendment
to its charter, changed its name to First Alpaco Corpora-
tion. And Hoerner Waldorf paid to the account of First
Alpaco Corporation a specified amount of money for the
assets of “old’’ Albemarle, including those at Roanoke
Rapids, North Carolina.
Since October 31, 1968, “old” Albemarle has had no
control over any property or person working at its former
mill in Roanoke Rapids, North Carolina. At no time did
First Alpaco Corporation ever own any property or control
any person working at the former mill of “old’’ Albemarle.
On February 20, 1969, First Alpaco Corporation was
merged into Ethyl Corporation. (Affidavit of Frederick P.
Waren, Secretary of Ethyl Corporation).
“New” Albemarle, being the nominee of Hoerner Wal-
dorf pursuant to the original agreement of October 25,
1968, presently has all management and control over the
Roanoke Rapids facility in question—that being the situs
of the alleged deprivation of Plaintiffs’ rights.
In response to the plaintiffs’ motions to add or join
parties, the corporations therein named have relied primar-
ily on this court’s earlier ruling in this same case reported
in 271 F. Supp. 27 (E.D.N.C., 1967). There this court,
in allowing the motion of the international union to dis-
miss, held that where the international union was not named
by plaintiffs in their complaint filed with the equal employ-
ment opportunity commission charging the demul of rights
.
t
~\
~
a
en
7
App. 33
to equal employment opportunities, the plaintiffs were not
entitled to join the international union as a party defendant
in a class action brought under the Civil Rights Act of
1964. This court said then that “the requirement that all
defendants be named in the charge filed with the Commis-
sion goes to the competence of a district court to entertain
the action... .”
But the decision there is distinguishable from the issue
now directly in litigation. That determination establishing
that the international must have been named in the charges
before the E.E.O.C., was based on the fact that the local
union (said union having been named before the E.E.O.C.)
was autonomous in nature and was not an agent of the
international union so as to permit the international union
to be joined by plaintiffs as a party defendant. The court
stated:
“The contention that the local union is the agent of
the international union is without merit, the records
indicating that the local is merely affiliated with the
international and enjoys an autonomous existence. This
is insufficient to establish responsibility of the inter-
national for any alleged unlawful conduct on the part
of the local.” Moody v. Albemarle, 271 F. Supp. 27,
29 (E.D.N.C., 1967).
In other words, the international union was not, to any
extent, viewed by the court as being the successor in interest
to the local union—the local being a separate entity unto
itself.
Further, a distinction between the issue there and that
herein presented lies in the fact that at no time between the
filing of charges by the plaintiffs before the E.E.O.C. and
institution of the suit in this court had the stance or posture
)
— PE RRS IE oP NRPS COLLET - .
: y REE GREELY IE NEI TE ERT EEF NE WIEN TEC II MOONS OE AES NY SEE
App. 34
of the international union changed. While, as per the corpo-
rations herein sought to be joined, two of these companies,
Fifst Alpaco Corporation and Albemarle Paper Company,
a Delaware corporation, were not in existence at the time
of filing of charges with the E-E.O.C. or institution of the
suit in district court. Neither did Hoerner Waldorf Corpo-
ration have any interest in the charges or the suit. Now,
Hoerner Waldorf, as the parent Corporation of “New”
Albemarle surely would have an interest in protecti.g its
“nominee” and wholly owned subsidiary from liability.
Only Ethyl Corporation, though it has engaged in some
corporate shuffling involving liquidation of assets, stands
now in substantially the same position as parent of Alpaco
Corporation, as it did at the time of the filing of charges
before the E.E.O.C. as the parent of “Old” Albemarle
Paper Company.
However, even that stance is questionable in its simi-
larity to the position of Ethyl Corporation at the time of
the filing of charges before the E.E.O.C., because of the
fact that on February 20, 1969, First Alpaco one
was merged into Ethyl Corporation.
The fact situation before the United States Court of
Appeals for the Fourth Circuit in Mickel v. South Carolina
Employment Service, 377 F.2d 239, (4th circ., 1967), was
startlingly. similar to those present in the earlier Moody
ruling in that (1) there was a potential party-defendant in
existence at the time of filing of charges before the
E.E.O.C. which was not joined and (2) that party was
not considered by the court to have been an agent of any
party named in those charges before the E.E.O.C. In both
instances the court determined that requisite jurisdiction
had not been satisfied.
There is no doubt that conciliation is a jurisdictional
prerequisite to institution of a civil action under the Civil ©
__ —— ee eee Otera
App. 35 .
Rights Act of 1964 dealing with equal employment op-
portunities, and further that an action so instituted without
complying with such jurisdictional prerequisitemust be dis-
missed. Civil: Rights Act of 1964 § 706(a,d,e), Title 42
U.S.C.A., § 2000e-5(a,d,e). Mickel v. South Carolina Emp.
Serv., supra.
However, the court is of the considered opinion that
when an aggrieved party has brought charges against a
named respondent before the E.E.O.C., thusly complying
with jurisdictional prerequisites, and has instituted suit in
the district court against that same party, he should be
allowed to pursue his alleged claims for relief against the
party defendant even though his course of purswit may
lead him through that dark and dismal forest known to all
as the corporate reshuffle. And the court is impressed with
the argument of counsel for the plaintiffs that if the deci-
sions of Mickel and Moody I are considered by the court
to be applicable to the facts at bar then “all employers
charged before EEOC with violations of Title VII could
easily escape liability by transferring its interest subsequent
to filing of a Title VII suit in Federal Court.” The court
further agrees that, “If the court were then to find that
the original employer-defendant had been or is presently
guilty of a violation of the Title VII, an aggrieved party
would have an empty victory because injunctive relief would
not be appropriate and the original defendant would not be
able to respond in damages because its assets had been
transferred.” .
. Moreover, to require plaintiffs on the facts in this
case to now go before EEOC as to these proposed de-
fendants would subject plaintiffs to a possible never ending
treadmill.”
The court sees as one of its duties, the avoidance of a
multiplicity of suits. And the court finds that clearly it was
TERRE LEO VEE
App. 36
not the intent of Congress, in passing Title VII of the
Civil Rights Act of 1964, to create multiplicity or loophole.
Rule 25(c), Federal Rules of Civil Procedure provides in
part as follows:
“In case of any transfer of interest the action may be
continued by or against the original party unless the
court upon motion directs the person to whom the
interest is transferred to be substituted in the action
or joined with the original party.”
The motion for joinder of parties having been made, and
it appearing to the court that any or all of the parties sought
to be added or joined have or could have the burden of
liability in the event of a determination of liability being
made, the court finds that Albemarle Paper Company, a
Delaware corporation, the First Alpaco Corporation, Ethyl
Corporation and Hoerner Waldorf Corporation should be
joined as parties-defendant and the motion of plaintiffs
should be allowed.
It was the intent of Congress, as evidenced by Section
706 (a,d,e) of Title VII, the Civil Rights Act of 1964,
clearly, that all possible parties-defendant in Federal court
be included as respondents to charges filed with the
E.E.O.C. The obvious purpose therein was to subject all
original claims to the possibility of conciliation at the
administrative level before entrance into suit in the district
court. This purpose is effectuated by the requirement that
administrative remedies be exhausted by plaintiffs as to
all defendants which were available to them at the time of
filing of charges with E.E.O.C.
But the purpose of prior conciliation is not enhanced by
requiring that plaintiffs exhaust administrative remedies
as to new potential parties-defendant where those parties
.
App. 37
are either substituted for original parties as successors in —
interest or are newly formed (at a time subsequent to the
filing of charges with the E.E.O.C.). Rule 25(c) was
specifically created to resolve this situation. Using the rule
does not expand any federal jurisdiction, but only makes
right what has the odorous property of being an unfair
procedural obstacle.
No longer must we contend with the procedural traps of
the Common Law, for we live in an enlightened age of the
Federal Rules. And until finer tools are created, this court
will utilize these Rules as they were intended to so be used.
Defendant “old” Albemarle Paper Company has moved
the court to dismiss the case both as to it, the present de-
fendant, and as to all those whom the plaintiffs have sought
to join as Defendants essentially on the following grounds:
That it, the Defendant “old” Albemarle is no longer
in existence, all its interests in the plant and facility
in Roanoke Rapids, North Carolina having been trans-
ferred out to other named parties in the motion to
add or join, and no money damages specifically having
been prayed for by plaintiffs, then the injunctive
relief sought by plaintiffs not being possible as against
a non-existent defendant, the whole matter should be
dropped.
Defendant “old” Albemarle further asserts several rea-
sons why the action should be dismissed which involve the
merits of the dispute here in question, and of course, as we
are not yet to the merits of this litigation, much to the
chagrin of the court, these contentions can not be considered
upon the motion to dismiss.
Rule 54(c) of the Federal Rules of Civil Procedure pro-
vides in part: “except as to a party against whom a judg-
— UF ALE SLIT SFE LOLA AL ALLE EN Tera PRN .
App. 38
ment is entered by default every final judgment shall grant
the relief to which the party in- whose favor it is rendered
is entitled, even if the party has not demanded such relief
in his pleadings.” The possibility of an award of money
damages upon a determination of liability is still with us. It
is not yet the proper time to drop the plaintiffs’ claims,
which are, at least, litigable.
However, in view of the fact that “old’’ Albemarle is no
longer in existence, the court having found that all the
interests originally held by it have been transferred out to
the parties named in the motion to add or join; and further
in view of the fact that usage of the terms “old” and “new”
Albemarle is becoming tiresome, and Rule 25(c) providing
that in the case of any transfer of interest the court may
direct that the person or persons to whom the interests
were transferred be substituted in the action for the original
party, the court is wont to allow the motion to dismiss as
to “old” Albemarle. But, in the interest of justice in the
case at bar, the court finds that the more proper step to
be taken is to keep the original party defendant in the liti-
gation, even though it has now been dissolved, and allow
the motion to add or join parties as to all those parties
sought to be joined.
The court having considered the excellent Brief Amicus
Curiae of the Equal Employment Opportunity Commission
filed in support of plaintiffs’ position with respect to their
motion along with responsive briefs thereto, the court finds
that the “Public Policy” sought to be served by Title VII
is best served by taking the abovestated action.
+?
Order
Now Therefore) in accordance with the foregoing, it is
Ordered, that the Motion to Add or Join the Albemarle
Paper Company, a Delaware corporation, the Hoerner Wal-
App. 39
dorf Corporation, the First Alpaco Corporation, and the
Ethyl Corporation be and the same is hereby Allowed, and,
Further Ordered, that the Motion to Dismiss on the part
of Defendant Albemarle Paper Company, a Virginia cor-
poration, as to it and all parties herein joined as parties-
defendant, be and the sameis hereby, Denied; and,
Further Ordered, that the Clerk shall serve copies of this
Opinion and Order upon all Counsel of Record. .
Let this Order be entered forthwith.
/s/ John D. Larkins, Jr.
John D. Larkins, Jr. ,
United States District Judge
—
Trenton, North Carolina
September 28, 1970
_ App. 40
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina -
Wilson Division
' [Title Omitted In Printing]
AMENDED ORDER
[Filed October 15, 1970]
Larkins, District Judge:
It Appearing To The Court, that certain wording in the
Opinion and Order in this matter of the court dated Sep-
tember 28, 1970, may be or is ambiguous or misleading;
Now Therefore, It Is Ordered, that’‘Line 17, Paragraph 3
of Page 5 of the Opinion and Order, which has heretofore
read: :
“There is no doubt that conciliation is a juriedic- oe
be amended to read: >
“There is no doubt that aaa to the possibility
of conciliation is a jurisdic-”
and,
_ Further Ordered, that the Clerk shall serve _— of
this Order upon All Counsel of Record.
Let this Order be entered forthwith.
/s/ John D. Larkins, Jr.
John D. Larkins, Jr.
United States District Judge
Trenton, North Carolina
October 14, 1970
App. 41
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina
‘ Wilson Division
(Civil Action No. 989)
[ Title Omitted In Printing]
ANSWER AND CROSS CLAIM OF ETHYL CORPORATION
[Filed December 28, 1970]
[Answer Omitted In Printing]
Cross-Claim Against Defendant, Hoerner Waldorf
Corporation And Albemarle Paper Company, (Delaware)
1. Prior to July 2, 1965, and until October 31, 1968, the
Albemarle Paper Company, a Virginia corporation, was a
wholly owned subsidiary of Defendant, Ethyl Corporation.
2. By agreement dated October 25, 1968, between De-
fendant Ethyl Corporation, Defendant Hoerner-Waldorf
Corporation, and others, certain assets of Albemarle Paper
Company, a Virginia corporation, including the mill at
Roanoke Rapids, North Carolina, were transferred to the
nominee of Defendant Hoerner-Waldorf Corporation. This
agreement provided in pertinent part that Defendant Hoer-
ner-Waldorf Corporation would assume and pay “all lia-
bilities of Albemarle and Interstate resulting from their
respective operations in the ordinary course of their busi- -
ness prior to the closing date.” (Section 1.03(b)). This
agreement further provided that Defendant Hoerner-Wal-
App. 42
dorf Corporation would indemnify and hold harmless De- ( \
fendant Ethyl Corporation “from and against any claim or ,
expense from or in connection with liabilities or obligations
assumed by Hoerner-Waldorf under Section 1.03... and /
all guarantees or contingent liabilities or obligations of
Sellers with regard to the foregoing.” (Section 1.05): In
Exhibit I to the agreement of October 25, 1968, Defendant
Ethyl Corporation expressly disclosed to Defendant Hoer-
ner-Waldorf Corporation the existence of this lawsuit. Pur-
suant to this agreement, Hoerner-Waldorf Corporation, a
Delaware corporation, delivered at the closing of the sale
and purchase of assets a General Assumption of Obliga-
tions and Liabilities dated October 31, 1968, by which
liabilities and obligations of Albemarle Paper Company, a
Virginia corporation, were express!y assumed and Ethyl
Corporation and Albemarle Paper Company, a Virginia
corporation, were indemnified against any future claim or
expense arising from the liabilities and obligations so as-
sumed.
3. On September 29, 1970, the Court added the Ethyl
Corporation as a Defendant in this action. Defendant Ethyl
Corporation has requested the Defendant Hoerner-Wal- ij
dorf Corporation to defend this action on behalf of De-
fendant Ethyl Corporation and to hold it harmless against
any claim, expense, judgment or liability of or against De-
fendant Ethyl Corporation or Albemarle Paper Company,
a Virginia corporation, arising out of this action or the
defense thereof.
4. Defendants Hoerner-Waldorf Corporation and Albe-
marle Paper Company, a Deleware corporation, have re-
fused the request of Defendant Ethyl Corporation and by
so doing Defendants Hoerner-Waldorf Corporation and
Albemarle Paper Company, a Delaware corporation, have
App. 43
breached the express terms of the agreements previously
mentioned herein.
Wherefore, the. Defendant Ethyl Corporation demands
judgment against the Defendant Hoerner-Waldorf Corpo-
ration and/or Albemarle Paper Company, a Delaware cor-
poration, for’any sum which may be recovered herein by
the Plaintiffs against this Defendant and/or its costs and
reasonable attorneys’ fees.
Ethyl Corporation
Its Counsel
Charles F. Blanchard, Esq.
Yarborough, Blanchard, Tucker & Yarborough
Wachovia Bank Building
Raleigh, North Carolina 27602 (
Counsel for Defendant,
Ethyl Corporation
Dated: December 28, 1970
[ Certificate of Service Omitted in Printing]
es :
meerere. ST eR ea Behe x -
a
App. 44
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District Of North Carolina
Wilson Division
[ Title Omitted In Printing]
ORDER
[Filed May 28, 1971]
This cause was heard by the undersigned on May 17,
1971, on the motion of defendant Albemarle Paper Com-
pany to compel responsive answers to its supplemental in-
terrogatory as follows:
“List the specific names of each employee or former
employee whose personnel record or records in any
way establishes or tends to establish any discrimina-
tion by Albemarle Paper Company in its employment
practices and explain how such record or records show
discrimination giving the specific dates and instances.”
The Court has considered the pleadings and memoranda
and heard arguments of counsel for all parties and is of
‘the opinion that defendant’s motion to compel responsive
answers to the supplemental interrogatory should be
granted.
It Is Therefore, Ordered, Adjudged And Decreed:
That the Plaintiffs answer the supplemental interroga-
tory in a responsive, complete and specific manner no later
than June 25, 1971. The Clerk will mail conformed copies
of this order to all interested counsel.
This 28th day of May, 1971.
/s/ F. T. Dupree, Jr.
Judge, United States District Court
App. 45
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina
Wilson Division
[ Title Omitted In Printing]
(Civil Action No. 989)
ORDER
[Filed June 15, 1971]
At a hearing held on May 17, 1971, the motion of the de-
fendant, Albemarle Paper Company, that plaintiffs be re-
quired to answer a supplemental interrogatory served on
plaintiffs on April 24, 1969, was allowed, and at the request
of the court counsel for said defendant submitted an order
directing plaintiffs to answer the interrogatory which order
was signed and entered herein under date of May 28, 1971.
Thereafter a communication was received from courtsel for
plaintiffs objecting to the form of this order, and the court
thereupon ordered further hearing on the matter to be held
on June 10, 1971.
At this second hearing which was attended by all in-
terested counsel motion of Albemarle Paper Company to
compel answers to its supplemental interrogatory was re-
considered, and also considered were the matters of defining
the class in this class action; the question of whether or not
damages will be recoverable; and the matter of notice to be
ae —
:
App. 46
given to the members of the class. The court thereupon made
the following rulings and it is
ORDERED:
1. Plaintiffs are directed to answer the supplemental
interrogatory of Albemarle Paper Company in a responsive
and complete manner, and more specifically plaintiffs are
directed to indicate in their. answers where the records
presently in possession of plaintiffs show that each member
of the class represented by plaintiffs, who is claiming dam-
ages of the defendants by reason of the alleged racially dis-
criminatory employment practices of the defendants was
denied because of race the opportunity to fill a vacancy ina
job for which the member was qualified on and after July 2,
1965; a statement as to each such member of the class as
to how he was personally and specifically discriminated
against ; and the amount of damages being claimed.
2. The time in which plaintiffs may answer the supple-
mental interrogatory is extended to and including July 10,
1971.
3. Final ruling as to whether any member of the class
may recover damages in this action is reserved.
4. The court designates the class which plaintiffs repre-
sent as follows:
(a) All Negroes employed at the Roanoke Rapids
plant of Albemarle Paper Company as of June 30,
1967.
(b) All Negroes employed at said plant after June
30, 1967, except those whose initial permanent posi-
tions were not job classifications limited to or pre-
dominantly staffed by Negroes.
App. 47
(c) All Negroes who may hereafter apply for or be
employed at said Roanoke Rapids plant who may be
affected by the alleged racially discriminatory employ-
ment practices of the defendants.
5. Counsel are directed to submit suggested forms of
notice to be directed to the members of the class under the
provisions of Rule 23(c)(2) on or before June 25, 1971.
6. The trial date for the action, July 26, 1971, at 10
o'clock a.m. in Courtroom No. 1, Federal Building, Raleigh,
North Carolina, remains unchanged.
7. Except as herein modified the order of May 28, 1971,
remains in full force and effect, and the directives and pro-
visions of the court’s memorandum of the conference on .
May 17, 1971, are by this reference incorporated herein.
This June 15, 1971.
/s/ F.T. Dupree, Jr.
United States cere Judge
Pern eee .
_ — OR AAS BA id et ra
App. 48 \
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina
Wilson Division
[Title Omitted In Printing]
(Civil Action No. 989)
ORDER
[Filed June 18, 1971]
In this case, as in all class actions, there exists the po-
tential of abuse of the procedure, intentional and inadvertent,
unless procedures are devised and employed to anticipate
abuse. The judges of this court have under consideration an
amendment to the local rules to guard against the potential
abuses of the class action processes. Meanwhile, in order
to avoid misunderstanding, the court on its own motion
makes the following ruling with respect to the future con-
duct of counsel in this case, and it is
ORDERED:
All parties hereto and their counsel are forbidden directly
or indirectly, orally or in writing, to communicate concern-
ing this action with any potential or actual class member
not a formal party to the action without the consent and
approval of the proposed communication by order of this
court. Any such proposed communication shall be presented
— sesenieihnieiaiasianantaenias
App. 49
to this court in writing with a designation of or description
of all addressees and with a motion and proposed order for
prior approval by this court of the proposed communication.
The communications forbidden include, but are not limited
to, (a) solicitation directly or indirectly of legal representa-
tion of potential and actual class members who are not
formal parties to the class action; (b) solicitation of fees
and expenses and agreements to pay fees and expenses
from potential and actual class members who are not
formal parties to the class action; (c) solicitation by
formal parties to the class action of requests by class
members to opt out of the action under subparagraph
(b)(3) of Rule 23; and (d) communications from counsel
or a party which may tend to misrepresent the status, pur-
poses and effects of this class action, and of any actual or
potential orders herein which may create impressions tend-
ing, without cause, to reflect adversely on any party, the
counsel, the courts, or the administration of justice. The
obligations and prohibitions of this order are not exclusive,
and all other ethical, legal and equitable obligations remain
unaffected by the order. Neither does the order forbid com-
munications between any attorney and his client, or a pros-
pective client, who has on the initiative of the client or
prospective client consulted with, employed or proposed to
employ the attorney.
This June 18, 1971.
/s/ F. T. Dupree, Jr.
United States District Judge
App. 50
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina
Wilson Division
[ Title Omitted In Printing]
(Civil Action No. 989)
ORDER
[Filed July 8, 1971]
Upon Consideration of the suggested forms of notice
submitted to the court by counsel pursuant to the order of
June 15, 1971, and other matters presently requiring the
court’s attention, it is now
ORDERED:
1. Notice
(a) The notice to be given to the class affected by this
action shall be in the form attached hereto and marked Ex-
hibit A.
(b) A copy of the notice shall be mailed by first class
mail in the official envelopes of the Clerk of this court to
each Negro employed at the Roanoke Rapids plant of Albe-
marle Paper Company as of June 30, 1967, and to all
Negroes employed at said plant after that date except
those whose initial permanent positions were not job classi-
fications limited to or predominantly staffed by Negroes.
(c) The notice shall be published in the Daily Herald,
a newspaper published in Roanoke Rapids, North Carolina,
in its editions of July 8, July 12, July 15 and July 19, 1971.
nS ane
eZ
App. 51
(d) Albemarle Paper Company shall post a copy of the
notice on each of its bulletin boards in its Roanoke Rapids
plant and keep the same posted for thirty days from the
date of this order.
(e) The cost of mailing and publishing the notices shall
be paid by the plaintiffs but shall be taxable as costs against
the losing party in the case.
(f) Notwithstanding the provisions of the notice re-
quiring filing of proofs of claim by July 22, 1971, the court
will on or before August 6, 1971, entertain a motion by any
interested member of the class for an extension of time in
wiiich to file claim upon a showing that the failure to file
the claim timely was due to circumstances beyond the class
member’s control.
2. Damages
(a) In view of the ruling of the Court of Appeals for
the Fourth Circuit in the case of Robinson y. Lorillard
Corporation, No. 15,098, and related cases decided July 1,
1971, this court now rules that damages may be recovered
in this action if the plaintiffs prevail.
(b) It is hoped that the damage claims, if found to be
allowable, may be heard and determined at the trial, but if
such claims become too numerous or complicated, this phase
of the case may be referred toa special master.
3. Attorney's Fees
(a) In the event plaintiffs prevail, it would appear from
the Robinson case cited above that notwithstanding the
language of 42 U.S.C. § 2000e-5(k), plaintiffs will be en-
ee.
PRR ee mcnep se
App. 52
titled to counsel fees as a matter of right absent a showing
of such special ci-cumstances as would render an award of
counsel fees unjust. Counsel are directed to brief this ques-
tion and be prepared to argue the same at the time of the
trial.
(b) In the event attorney’s fees are claimed, counsel for
plaintiffs are directed to file with the court at the time of
the trial upon = court’s request the details of any fee ar-
rangement which\they have with plaintiffs or anyone act-
ing on their behalf, an itemized statement of their time
and expenses incurred and the amount, if any, received on
account to date and the source of same.
4. Stipulations —
(a) Counsel are directed to file with the court on or be-
fore July 16, 1971, the stipulation of facts and a pretrial
order incorporating all matters referred to in paragraph 7
of the court’s memorandum of the conference of May 17, ,
1971.
\
5. Trial Briefs
(a) Counsel are directed to file with the court trial briefs
covering all anticipated questions of substantive, procedural
and evidence law on or before July 16, 1971.
This July 6, 1971.
/s/ F. T. Dupree, Jr.
United States District Judge
App. 53
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina
Wilson Division
[ Title Omitted in Printing]
(Civil Action No. 989)
NOTICE OF PENDENCY OF CLASS ACTION
[Filed July 8, 1971]
(Exhibit A to Order of July 8, 1971)
To: All Black Empluyees Of Albemarle Paper Company '
At Its Roanoke Rapids Plant In Roanoke Rapids,
North Carolina, And All Members Of The Class As
Herein Defined:
Notice Is Hereby Given That:
On August 25, 1966, a civil action was filed in the United
States District Court for the Eastern District of North
Carolina by Joseph P. Moody, Theodore Daniels, Henry
Hill and Arthur Mitchell as plaintiffs seeking relief under
Title VII of the Civil Rights Act of 1964. This law pro-
hibits discrimination in employment on the ground of race,
color, religion, sex or national origin. The defendants in
the case are Albemarle Paper Company, a Virginia corpo-
ration, Albemarle Paper Company, a Delaware corporation,
RE SRSLY OG GE
App. 54
Ethyl Corporation, Hoerner-Waldorf and Halifax Local
.No. 425, United Papermakers and Paperworkers, AFL-
| Ss
On June 15, 1971, the court entered an order allowing the
action to be prosecuted as a class action under Rule 23 of
the Federal Rules of Civil Procedure, and the class was
defined as (1) all Negroes employed at the Roanoke Rapids
plant of Albemarle Paper Company as of June 30, 1967;
(2) all Negroes employed at said plant after June 30, 1967,
except those whose initial permanent positions were not job
classifications limited to or predominantly staffed by
Negroes; and (3) all Negroes who may hereafter apply
for or be employed at said Roanoke Rapids plant who may
be affected by the alleged racially discriminatory TT
_ment practices of the defendants.
Plaintiffs’ complaint seeks relief from alleged ‘teilally
discriminatory practices and policies against black em-
ployees and potential black employees who are, have been
or may be employed at the Roanoke Rapids plant of Albe-
marle Paper Company; relief in the form of back pay for |
any black employees who may be found to have been dis-
criminated against because of race since July 2, 1965; an
injunction against the use of or reliance on any tests and/or
educational requirements not shown to be lawful in deter-
mining qualifications for the employment and promotions of
black employees at the Roanoke Rapids plant; and to have
the court require the institution of a plant seniority system
for filling job vacancies.
The defendants have denied the material allegations of
plaintiffs’ complaint and deny all liability.
This notice in no way indicates any view of the court as
to the merits of the action but is merely to advise you of
the pendency of the suit and of your rights under it.
DEEP E Se eae
:
App. 55
The case is set for trial in Courtroom No. 1, United
States Courthouse, 310 New Bern Avenue, Raleigh, North
Carolina, beginning at 10 o’clock a.m., July 26, 1971.
Your rights may be affected by this action, and if you
believe that you have been discriminated against by any
of the defendants in employment opportunities at Albemarle
Paper Company on account of race and have a lawful claim
against any defendant by reason thereof :
(a) the court will exclude you from the class repre-
sented by the attorneys for the plaintiffs if you request
exclusion in writing addressed to the Clerk of the
United States District Court, Eastern District of
North Carolina, P. O. Box’ 25670, Raleigh, North
Carolina, ‘27611, and postmarked not later than July
22, 1971. If you elect to be excluded from the class,
you will be free to pursue on your own behalf whatever
legal rights you may have.
(b) if you do not request exclusion from the class by
July 22, 1971, you will be included in such class and any
judgment, whether favorabie or not, including any
judgment approving any settlement of this action, will
be binding upon you. ~
(c) if you do not request exclusion from the class but
prefer in connection with your individual claim to be
represented by your own attorney rather than by the
attorneys for the plaintiffs herein, you may enter an
appearance through your attorney but not later than
July 22, 1971.
(d) in the event you are claiming damages of any of
the defendants by reason of any alleged racially dis-
criminatory practice, you must file your written proof
of claim under oath with the Clerk of the U. S. Dis-
a ne '
App. 56
trict Court at the address shown herein stating the
details of such alleged discrimination and the amount
of damages you are claiming. Such claim must be
mailed not later than July 22, 1971, or it will be for-
ever barred.
eIf you have any questions concerning this notice, you
may write or call the Office of the Clerk of the United
States District Court, P. O. Box 25670, Raleigh, North
Carolina, 27611, Telephone No. (919) 755-4370.
This July 6, 1971.
/s/ F. T. Dupree, Jr.
United States District Judge
App. 57
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina
Wilson Division
[ Title Omitted in Printing]
(Civil Action No. 989)
MOTION FOR LEAVE OF COUNSEL FOR PLAINTIFFS TO *
COMMUNICATE WITH CLASS MEMBERS FOR PURPOSES
OF TRIAL PREPARATION
[Filed July 14, 1971]
Plaintiffs move the Court, pursuant to its order entered
on June 18, 1971, for entry of an order granting counsel
for "plaintiffs leave to contact, communicate, and discuss
with actual and potential members of the class, for the pur-
pose of adequately preparing plaintiffs’ case for trial.
Communication with actual and potential class members is
necessary to enable counsel for plaintiffs to discuss with
class members the nature of their testimony at trial; to
obtain and review testimony which may be helpful in pre-
paring plaintiffs’ rebuttal testimony; to explain and dis-
cuss on a continuing basis the status of the proceedings; to
assist counsel for plaintiffs in reviewing evidence which
may be helpful in the cross-examination of the defendants’
witnesses ; and to discuss back pay claims.
As grounds for this motion, plaintiffs show the Court
as follows: 3
: ‘
x
SSI oy Marae —
a SE TEEN INO NL RNR EE NC ter: OOS eMt eng wey —
SREY Rewer a eS he SEY
oo
_ App. 58
1. On August 25, 1966, the complaint was filed in the
instant case under Title VII of the Civil Rights Act of
1964 and the plaintiffs designated the action as a class ac-
tion pursuant to Rule 23 of the Federal Rules of Civil
‘Procedure.
2. The then defendants challenged the right of plaintiffs
to prosecute this action as a class action. After several hear-
ings in the matter, the Court in its July 6, 1967 Memo-
randum, Opinion and Order allowed the class action.
3. On or about September .24, 1968 plaintiffs, pursuant
to the September 18, 1968 Order of the Court, submitted
their statement of the designation of class.
4. Since the institution of this action, counsel for the
plaintiffs have met periodically with the named plaintiffs
in this case as well as other black employees of Albemarle
Paper Company. These meetings have taken place in the
office of counsel for the plaintiffs, in Raleigh, North Caro-
lina and in Roanoke Rapids, North Carolina. The purpose
of \these meetings has been to advise plaintiffs and other
black employees of Albemarle Paper Company of the prog-
res$ and status of the case and to obtain information which
might be useful in the presentation of their claims. No at-
tempt was made by counsel to record the names and ad-
dresses of all the black employees who attended the various
meetings. Plaintiffs will show to the Court that in addition
to the named plaintiffs and those persons listed below, Her-
man Johnson, Carlton Belfield, John Jarrell, Jake Alston,
Joe Bradley, Joe Rook, Mack Johnson and Marvin Harri-
~ son have attended meetings on occasion.
5. In addition to the named plaintiffs, the following em-
ployees or former employees have formally retained counsel
for the plaintiffs to represent them in this matter: Arthur
App. 59
T. Kearney, Route 1, Box 127, Roanoke Rapids, North
Carolina ; Eulis K. Lawson, 124 Matthews, Roanoke Rapids,
North Caroliia; William Townes, Route 2, Box 216, Roa-
noke Rapids, North Carolina; James Mallory, 109 Prospect
Street, Weldon, North Carolina; Frank Mayo, Route 2,
Box 381-M, Roanoke Rapids, North Carolina; W. H.
Mason, Street Route, Box 87B, Roanoke Rapids, North
Carolina; E. R. Hardy, 334 E. Littleton Road, Roanoke
Rapids, North Carolina; Philmore Taylor, 1940-A Carter
Street, Roancke Rapids, North Carolina; Lonnie Lee, Box
132, Gaston, North Carolina; Julius Love, Valentine, Vir-
ginia; Moses Vincent, Garysburg, North Carolina; M. C.
Boone, Post Office Box 38, Garysburg, North Carolina;
James Alfred Jones, 118 Lincoln Avenue, Roanoke Rapids,
North Carolina; Ernest Garner, 1929 Glover Street, Roa-
noke Rapids, North Carolina; Ernest Hawkins, 1901 Glov-
er Street, Roanoke Rapids, North Carolina; Johnnie E.
Roberts, Post Office Box 453, Gaston, North Carolina;
Clarence High, Route 2, Box 381], Roanoke Rapids, North
Carolina ; Julian Peebles, Route 2, Box 279, Halifax, North
Carolina; Marvin Harrison, 154 Carver Street. Roanoke
Rapids, North Carolina; Charlie D. King, Star Route, Box
145, Emporia, Virginia; Eugene Neville, 130 Lincoln Ave-
nue, Roanoke Rapids, North Carolina; Willie Ashe, Route
2, Box 278, Littleton, North Carolina; W. M. Martin,
Route 1, Box 431, Roanoke Rapids, North Carolina; Perry
M. Cowan, 524 First Street. Weldon, North Carolina;
William Garris, Route 1, Box 249 Roanoke Rapids, North
Carolina; Jesse Mallory, Garysburg, North Carolina; Al-
phonso Owens, Roanoke Rapids, North Carolina; William
T. Vassor, Garysburg, North Carolina; A. N. Johnson,
Route 1, Box 213, Jackson, North Carolina.
*>-
App. 60
6. Counsel for the plaintiffs have assumed that since
the initiation of this action they have represented other
black employees of Albemarle Paper Company in addition
to the named plaintiffs and this is particularly true since
the order of the Court of August 6, 1967. Furthermore, it
is apparent that many of the black employees of Albemarle
Paper Company have relied on the representation of counsel
for the plaintiffs to protect their interest in this action be-
cause from time to time counsel for the plaintiffs have re-
ceived communications from black employees of Albemarle
other than the named plaintiffs to discuss the status of the
case and/or to request advice from counsel @m what action
should or should not be taken with respect to their status
as employees of Albemarle Paper Company.
7. Plaintiffs recognize that an individual has a right to
select his own counsel to prosecute any of his claims and
that his choice of counsel should be unfettered. Plaintiffs
submit that the willingness of a number of the black em-
ployees of Albemarle Paper Company to rely on and con-
sult with present counsel in assisting in the preparation of
this claim establishes a prima facie showing that the répte-
sentation of present counsel is adequate.
8. The notice of July 6, 1971 to some class cia
provides in one part that if a member does not indicate to
the Court by July 22, 1971 that he chooses not be repre-
sented by present counsel, then any judgment favorable or
unfavorable will be binding upon him. The notice in an-
other part requires members to submit a statement to the
Court in writing, under oath, of the amount of back pay
he has suffered if unlawful discrimination is found and pro-
vides that his claim for back pay, if not noted by July 22,
1971, will be forever barred. Counsel cannot affectively
represent the interest of a class member if he is prohibited
tlhe hee deren eds OR?
App. 61
from discussing all relief to which that member is entitled
if a violation is established. Plaintiffs submit that the terms
of the present order affectively prohibits counsel for plain-
tiffs from discussing a member’s or a potential member’s
claim freely and advising him of all relief to which he may
be entitled.
9. Plaintiffs submit that the ruling of the Court limiting
communication between counsel and plaintiffs and actual
and potential members of their class, particularly at this
stage of the proceedings, raises serious questions under the
First Amendment to the Constitution of the United States
guaranteeing the right to free speech and association and
decision of the Supreme Court of the United States in
NAACP vy. Button, 371 U.S. 415 (1963). See also United
Transportation Union, Petitioner v. The State Board of
Michigan, 39 U.S.L.W. 4428 (1970) and Brotherhood of
Railroad Trainmen v. Virginia State Bar, 377 U.S. 1
(1964).
Since the mailing of the notice by the Court, black em-
ployees of Albemarle Paper Company have contacted the
named members in this-action requesting advice and ex-
planation of the notice and requesting that Joe P. Moody
contact present counsel for advice. The only advice allow-
able under the present orders is that contact be made with
the Clerk of the Court. Counsel for plaintiffs have so ad-
vised the named plaintiffs that this could be the only ex-
tent to which they could discuss the present status of the
, case.
Attached herewith in support of this motion is the Affi-
davit of Joe P. Moody.
Wherefore, for the reasons stated above, plaintiffs re-
spectfully request the Court to enter an order granting
a SFL RNR OD RTS
App. 62
leave to counsel for plaintiffs to communicate with actual
and potential class members for the purposes stated above.
This 13th day of July, 1971.
Respectfully submitted,
ORO RRRRR Ree RRR R RRO RR RRR Ree meee ee eRe Ree eee ae eRe e ee een aeeeeae
Robert Belton
j. LeVonne Chambers
Chambers, Stein, Ferguson & Lanning
237 West Trade Street
Charlotte, North Carolina
T. T. Clayton
307 West Franklin Street
Warrenton, North Carolina
Conrad O. Pearson
203% East Chapel Hill Street
Durham, North Carolina
Jack Greenberg
William Robinson
10 Columbus Circle
New York, New York 10019
Attorneys for Plaiutiffs
App. 63
State Of North Carolina )
Mecklenburg County ) Affidavit
Joe P. Moody first being duly sworn deposes and says:
1. My name is Joe P. Moody and I reside at Route 1
Box 128, Roanoke Rapids, North Carolina. I am a plaintiff
in the case styled Joe P. Moody, et al., v. Albemarle Paper
Company, et al., C.A. No. 989, pending in the United States.
District Court for the Eastern District of North Carolina.
2. After receiving notice from the Clerk for the United
States District Court advising of the pendency of the law-
suit, I was approached by several black persons who were
employees or former employees of Albemarle Paper Com-
pany requesting some explanation of the notice.
3. Iam of the opinion that many of the persons who have
received notices from the Clerk do not completely under-
stand the content of the notice nor what they are obligated
to do pursuant to the Notice.
The foregoing has been read to me and is fully under-
stood by me to be accurate and true.
/s/ Joe P. Moody
Joe P. Moody
[ Jurat Omitted in Printing]
sh. STS teaye TK op eee ENS sant Mra a
aS p+ - FEY OC TNO Pa as eM ee ae 4 Poa — ‘ Jyh EDI PRA PAR ere SOMES.
R 7 ‘ Ys * y FED EIS SOOT ae es Rt tg Boe CREA LEY TTA OS
; Sees a at Ss E p
App. 64
In The
UNITED STATES DISTRICT COURT
: FOR THE
Eastern District of North Carolina
Wilson Division
[ Title Omitted in Printing]
(Civil Action No. 989)
MOTION FOR CLARIFICATION
{
[Filed July 14, 1971]
Plaintiffs move the Court, by their iene “at-
torney, for clarification of the Notice, dated July 6, 1971,
directed to all black employees of Albemarle Paper Com-
pany at its Roanoke Rapids plant Roanoke Rapids, North
Carolina and all members of the class as designated in the
Order of June 15, 1971. The basis for this motion is as
follows:
1. Paragraph (b) on page 2 of the Notice provides, “i
_you do not request exclusion from the class by July 22,
1971, you will be included in such class and any judgment,
whether favorable or not, including any judgment approv-
ing any settlement of the action, will be binding upon
you.” Paragraph (d) on page 2 of the Notice provides, “in
the event you are claiming damages of any of the de-
fendants by reason of any alleged racially discriminatory
practice, you must file your written proof of claim under
App. 65
oath with the Clerk of the U.S. District Court at the ad-
dress shown herein stating the details of such alleged dis-
crimination and the amount of damages you are claiming.
Such claim must be mailed not later than July 22, 1971, or
it will be forever barred.”
2. According to paragraph (b) referred to above, failure
of a class member to request exclusion results in a binding
judgment on that member whether favorable or unfavor-
able. Further, failure to request exclusion means that pres-
ent counsel must represent that member in the trial of this
matter. On the other hand, failure to request exclusion and
failure to file proof of damages under oath by July 22,
1971, results in the barring of the damage claim of that
member notwithstanding the fact that he is represented by
(counsel and counsel have been ordered not to discuss the
case with members who are not formal parties to the action
unless permission is received from the Court. Plaintiffs sub-
mit that this posture of the case seriously diminishes the
opportunity for counsel to advise class members.
y aie,
3. Paragraph (b) speaks in terms of “judgment” and
“settlement.” We submit that reference to judgment in
paragraph (b) in the Notice encompasses all the relief to
which the class members may be entitled after trial or any
settlement, including damages. Plaintiffs contend that back
pay is not a separate and distinct kind of relief which
should not be included in the judgment; the effect of para-
graph (b) is to make this distinction. See Robinson v.
Lonillard, Slip Op., pp. 25-28, No. 15, 098 (4th Cir. July 1,
1971). ,
4. Plaintiffs submit that the law is unclear on the method
by which back pay, if allowed, should be computed. Plain-
tiffs have submitted a suggested method of computation in
\t-
App. 66 }
their Further Answers to Interrogatories filed on July
10, 1971. While plaintiffs may urge the court to adopt the
method of computation as suggested in Further Answers,
the court has not yet decided that this will be the method
of computation. This raises a question of how actual or
potential members of the class are to compute the damages
by July 22, 1971.
5. The Notice provides that if any of the actual or po-
tential class members have questions concerning the Notice,
then he may write or call the office of the clerk of the U.S.
District Court. Is the clerk authorized to advise those per-
sons who may call how their damages are to be computed
when the court itself has not made such a determination?
If the clerk is not authorized to so advise, is the clerk
authorized to refer him to, or appoint, an attorney to assist
him in computing his back pay claim if the member ques-
tions the adequacy of Present counsel? See 706(e) of
Title VII.
6. Assuming that a persons does not contact the clerk of
Court plaintiffs’ counsel, under the Notice, will represent
_ him, but is plaintiffs’ counsel barred from making a claim
for-damages for back pay on the part of that person after
July 22, 1971?
7. Counsel for the plaintiffs were aided in responding
to the requirement that plaintiffs specify the amount of
back pay that each member claims to have suffered by
records copied pursuant to an Order of the court; these
records were incomplete. These records have not been made
available to actual or potential members of the class. To re-
quire the class members to specify the amount of darnages
without the aid of such records and more particularly
without the aid of an attorney, is to require class mem-
bers to do without necessary assistance.
Aide enh ete GN peal tele rnaia ot sired Zoe
— ~ 7
App. 67
Wherefore, plaintiffs respectfully pray the Court to
clarify its Notice of July 6, 1971. |
This 13th day of July, 1971.
Respectfully submitted,
OR RR mee eR ROEM ROE EOE H EERE EEE E eee eee eee
Robert Belton
J. LeVonne Chambers
Chambers, Stein, Ferguson & Lanning
237 West Trade Street |
Charlotte, North Carolina
T. T. Clayton
307 West Franklin Street.
Warrenton, North Carolina
Conrad O. Pearson :
203% East Chapel Hill Street
Durham, North Carolina
Jack Greenberg
William Robinson
10 Columbus Circle
New York, New York 10019
\ Attorneys for Plaintiffs
_ App. 68
In The
UNITED STATES DISTRICT COURT
FORTHE ' é
Eastern District of North Carolina
: [Title Omitted In Printing]
(Civil Action No, 989) _
MOTION FOR SEVERANCE AND THE APPOINTMENT
OF A MASTER
[Filed July 14, 1971] !
Plaintiffs move, by the undersign attorney, for entry of
an order by the court that the issue of the determination
of the amount of back pay be the subject of a special
proceeding separate and apart from the determination of
, the issue of liability. Plaintiffs further move the court to
refer matter of the determination of the amount of. back '
pay to a special master, pursuant to Rule 53 of the Federal
Rules of Civil Procedure, should the court find that the
plaintiffs or any of their class have suffered an economic ©
loss as a result of the complanied of racially discriminatory
employment practices by any or all of the defendants.
As grounds for this Motion, Plaintiffs show the court
_ as follows:
~~
1. The severance a the Yale of the amount of
back pay ‘from the determination of liability would expedite
the final determination of this matter. The court may make
a finding on evidence introduced to establish a violation of
Title VII, that plaintiffs have not made out their claim and
_ therefore the Court would not have to reach the issue of
, back pay or determination of the amount.
2. Pizintiffs submit that the determination of the amount
ot back pay, should the Court decide that back pay is ap-
/
MAA j
IST OEY oy) aa
?
’ /
App. 69
' propriate, will involve the examination of employees’ rec-
ords, qualifications of employees and mathematical compu-
tation of claims. These are matters which should be re-
ferred to a special master.
3. In this connection we call the Court’s attention to
Robinson v. Lorillard, No. 15,098 (4th Cir. July 1, 1971)
and Sprogis.v. United Air Lines, ...... >. es , 3 EPD
Para. 8239 (No. 18481, June 16, 1971).
This 13th day of July 1971.
Respectfully submitted,
Robert Belton
J. LeVonne Chambers
Chambers, Stein, Ferguson & Lanning
237 West Trade Street
Charlotte, North Carolina
~ T. T. Clayton
307 West Franklin Street
Warrenton, North Carolina
Conrad O. Pearson
203% East Chapel Hill Street
Durham, North Carolina
tt ie ancien
App. 70
In The 7
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina
Wilson Division
[Title Omitted In Printing]
PROOF OF CLAIM
[ Filed July 15, 1971]
124 Matthew Street
Roanoke Rapids, N. C.
July 14,1971 ~
To whom it may concern:
I have been employed at Albemarle Paper Mill since
1950. I have worked on a regular job there for 13 years.
During that time I have worked on different jobs. During
that time my seniority was taken from me and I had to
work under the authority of men who had not been working
there even as much as half the time that I have. Also, I was
told that the only time that I would have a job was when »
someone went on vacation or if someone was sick.
Furthermore, they made #€ necessary for me to install a
phone. I have had to sit at home many timés in order to wait
for a call. If I missed three calls I was not even allowed to
get a slip to the employment office so that I could draw un-
employment. They have hired quite a number of men since
then, but I am still on the board filling out vacation and sick
calls.
j
!
j
'
App. 71
I cannot give any figures on what they owe me, but I do
want my backpay and to 40 hours a week. Also I would
like to have my seniority back and to be placed where I
should be. I’m afraid I don’t know where that should be,
but my regular job was unloading salt cake. I am a part of
a discriminated group. I want my rights and a regular job
back. :
Thank you for what you have tried to do.
Yours truly,
/s/ Mr. Eulis K. Lawson
App. 72
In The
UNITED STATES DISTRICT COURT
FOR THE (
Eastern District of North Carolina
Wilson Division
[Title Omitted In Printing]
\
PROOF OF CLAIM
[Filed July 19, 1971]
Star Route, Box 88-A
Roanoke Rapids, North Carolina 27870
July 17, 1971 ‘
Clerk of the United States District Court
Post Office Box 25670
Raleigh, North Carolina 27611
Dear Sir:
It is my concern to remain with Joseph P. Moody, et al.,
Plaintiffs vs. Albemarle Paper Company, et al., Defendants
—Civil No. 989.
In reply to the notice filed with the United States District
Court for the Eastern District of North Carolina Wilson
Division on August 25, 1966, iby Plaintiffs, I have been
employed with the Albemarle ‘Paper Company, Roanoke
Rapids, North Carolina, since 1947. I am in no position to
determine an unpaid amount in salary up to date in ac-
cordance to my position of employment.
Yours truly,
/s/ Johnie Easter,
App. 73
In The
UNITED STATES DISTRICT COURT
FOR THE d
Eastern District of North Carolina
Wilson Division
[ Title Omitted In Printing]
PROOF OF CLAIM
[Filed July 19, 1971]
Clerk of the U/nited States District Court
Eastern Distriict of North Carolina
P. O. Box 25670
Raleigh, Nortlh Carolina 27611
Re; Joseph P.- Moody et al., vs. Albemarle Paper Company
Civil No. 989
Dear Sirs:
I wish to be a part of the above named Civil Action, I
accepted employment with Albemarle Paper Company, Roa-
noke Rapids JPlant on, December 1950. I was forced to
seek employment elsewhere on, January 1966, due to the dis-
criminatory pifactices of this employer. I wish to claim
back pay, but ue to the inability to state where I would be
on present seniiority list, due to the discriminatory practices
of the above named employer, I ask that after all, factors
are settled which pertain to seniority, that.I be awarded
back pay in lire with my employment date with this com-
pany.
App. 74
The above named employer discriminated against me in
the form of testing by stating that I did not have the ability
to hold positions, as the results of this testing. I am now a
resident of the state of New Jersey, have passed the re-
quirements of this state as a Shift Engineer, Power Plant
Operator. I request that the present Attorneys for the
Plaintiffs, also be considered as my Attorneys, My present
address is as follows. Theodore Roosevelt Brown, 138 North
14th Street, East Orange New Jersey,
I enter this claim as a Class Action, because of race,
under the Civil Rights Act of 1964.
I Theodore Roosevelt Borwn [sic], here by state under
oath, that I have read the above and, sign the above under
my own will.
/s/ Theodore Roosevelt Brown’
[Jurat Omitting In Printing]
a a ne
App. 75
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina
Wilson Division
[Title Omitted In Printing]
- PROOF OF CLAIM
[Filed July 21, 1971]
Ethoria Jones
133 Lincoln Ave.
Roanoke Rapids, N. C.
27870
Dear Sirs:
I have filed a Claim with Mr. Joseph P. Moody attorney
for damages. i was on Lay off for Over a year, and i Was
Put on Call Board for Over 3 years. When the younger
White Men was working. On some Jobs that i Now
Opprate, But Before i Was not given the chance. iam still
on Call Board and these same White men are still working.
Some of the Jobs the Black Man is working, i did have
the chance to work until the last past year.
Now the dates and the times i can not send you to day.
for Mr. Joseph P. Moody attorney have that information.
the Amount of Damages i Cant say. Because for years
this have went on. Over me. And all Other Black men at the
Plant.
Yours truly
/s/ Ethoria Jones
133 Lincoln Ave.
Roanoke Rapids, N. C.
phone—537-9990. 27870
°
App. 76
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina
Wilson Division
[ Title Omitted In Printing]
PROOF OF CLAIM
[Filed July 23, 1971]
Clerk of the United States District Court
Eastern District of North Carolina oe
P.O. Box 25670
Raleigh, North Carolina 27611 a}
Re; Joseph P. Moody et al, vs Albemarle Paper Company
Civil No. 989 a
Dear Sirs:
I wish to be a part of the above named Civil Action: I
accepted employment with Albemarle Paper Company,
Roanoke Rapids Plant at Roanoke Rapids, North Carolina.
Due to discriminatory practices of this employer, some were
forced to seek employment elsewhere. I wish to claim back
pay, but due to the inability to state where I would be on the
present seniority list; due to the discriminatory practices
of the above named employer, I ask that after all factors
are settled which pertain to seniority, that I be awarded
back pay in line with my employment date with this com-
pany.
The above named employer discriminated against me in
the form of testing, by stating that I did not have the
ability to hold positions, as the results of this testing.
App. 77
I request that the present Attorneys for the Plaintiffs, also
be considered as my Attorneys. My present address and
name is attached.
I enter this claim as a Class Action; hecsiials of race, under
the Civil Rights Act of 1964.
I have read the above, and sign the above under my own
will.
Name/Address
Thomas Kearsey, Rba, Box 127 R.R.
Leroy Jordan, 515 West First St., Weldon, N. C.
William Thomas Vasser, Box 187, Garysburg, N.C.
Willie Joseph Bradley, 112 Prospect Ave., Weldon, N. C.
Jack Norton, P. O. Box 165, Garysburg, N. C.
Alexander Sledge, 706 W. F St., Weldon, N. C.
Reny Cowan, 524 W. First St., Weldon, N. C.
Leon Quick, P. O. Box 441, Roanoke Rapids, N. C.
Clarence Daniel, Roanoke Rapids, N. C.
Elizah Daniel, Roanoke Rapids, N. C.
Cecil M. Pierce, Rte. 2, Box 487, (Deceased)
East Hawkins, 1903 Glover St., Roanoke Rapids, N. C.
( Deceased )
W. M. Martin, Rte. 1, Box 431, Roanoke Rapids, N. C.
Asa Roone, R 2, Box 50B, Roanoke Rapids, N. C.
William Garris, R. 1, Box 29, Garysburg, N. C.
Moses L. Garner, noua 1, Box 129A, Roanoke Rapids,
N.C.
App. 78
Name/Address
Hosea Roberts, 605 West Ist St., Weldon, N. C.
Robert McNair, Jr., 407 County Rd. (Deceased)
Paul C. Ingram, 1214 Snead
Willie H. Mason, Star Rt. Box 87
Jimmy V. Love, Route 626, Box 52, Valentine, Va.
Andrew M. Johnson, Rte. 1, Box 213, Jackson, N. C.
Otis Jones, Route 1, Box 107, Roanoke Rapids, N. C.
Eugene Neville, 130 Ligon St., Roanoke Rapids, N. C.
Willard Bufield, Box 30, Rt. 1, Garysburg, N. C.
F. B, Hardy, 334 E. Littleton Rd., Roanoke Rapids, N. C.
Richard Squire, 1914 Glover St., Roanoke Rapids, N. C.
Robie Mason, Star Rt., Box 134B, Emporia, Va.
Isaac M. Weaver, Rt. 2, Box 52, Lawrenceville, Va.
Eugene Vincent, Box 53, Henrico, N. C. (Deceased)
Mack Coy Boone, P. O. Box 38, Garysburg, N. C.
Sandy L. Johnson, 127 Poplar St., Roanoke Rapids, N. C.
William Town, RFD 216, Roanoke Rapids, N. C. |
Ernest Gardner, 1929 Glover St., Roanoke Rapids, N. C.
James Mallory, 109 Prospect Ave., Weldon, N. C.
James Alfred Jones, 118 Lincoln Ave., Roanoke Rapids,
N.C. '
TA Peer pe pal -
App. 79
Name/A ddress
Jeremiah Webb, 307 Holm Dr., Weldon, N. C.
Frank Mayo, Rt. 2, Box 381M, Roanoke Rapids, N. C.
Charlie D. King, Star Route, Box 145, Emporia, Va.
Johnie E. Roberts, P. O. Box 453, Gaston, N. C.
Nonnie King, Star Route, Box 34, Roanoke Rapids, N. C.
Johnie Easter, Star Route, Box 88-A. Roanoke Rapids,
N.C.
Julian Peebles, Rte 2, Box 279, Halifax, N. C.
ag | ean ot, AW , 154 Carver St., Roanoke
Rapids, N. C.
Lonnie Lastrom, Box 132 _
J. T. Martin, 1939 Church St., Roanoke Rapids, N. C.
James Harris, Box 234, Garysburg, N. C. ( Deceased )
Clarence High, Rt. 2, Box 381J, Roanoke Rapids, N.C.
“Amos Harris, Henrico, N. C., Box 55
Eulis K. Lawson, 124 Matthews St.. Roanoke Rapids, N. C.
Alfred P. Kidd, Route 1, Box 15C. Garysburg, N. C.
Willi Jones, 307 Kitchen St., Roanoke Rapids, N. C.
Jake Alston, Rt. 3, Box 326T, Littleton, N. C.
Robert Lee Alston, 127 Poplar St., Roanoke Rapids. N. C.
Gilbert Lee Harding, Rt. 1, Box 137, Pleasant Hill,
* Where deletions occur, individual handwriting was illegible.
App. 80
Name/Address
Davie Daniel Harding, Jr., Rt. 1, Box 9, Pleasant Hill
Herman Johnson, Route 2, Box 439C, Roanoke
N.C.
Samuel Moody, Star Rt. Box 23B, Roanoke Rapids, N. C.
Carlton Belfield, P. O. Box 187, Gaston, N. C-
Willie A. Ashe, Rte. 2, Box 272, Littleton, N. C.
Mason Vincent, Rt. 211, Box 54, Garysburg, N. C.
Ethoria Jones, 133 Lincoln Ave., Roanoke Rapids, N. C.
27870
R. R. Scott, Rt 1, Box 166, Garysburg, N. C.
Eugene Harris, P. O. Box 121, Seaboard, N. C.
L. G. Cooke, 308 Poplar St., Weldon, N. C.
pids,
[Jurat Omitted In Printing]
Clerk of the United States District Court
Eastern District of North Carolina
P. O. Box 25670
Raleigh, North Carolina 27611
Re; Joseph P. Moody et al, vs Albemarle Paper Company
Civil No. 989
Dear Sirs:
I wish to be a part of the above named Civil Action:
I accepted employment with Albemarle Paper Company,
Roanoke Rapids Plant at Roanoke Rapids, North Caro-
lina. Due to discriminatory practices of this employer, some
were forced to seek employment elsewhere. I wish to claim
App. 81
back pay, but due to the inability to state where I would be
on the present seniority list; due to the discriminatory prac-
tices of the above named employer, I ask that after all
factors are settled which pertain to seniority, that I be
awarded back pay in line with my employment date with
this company.
The above named employer discriminated against me in
_ the form of testing, by stating that I did not have the
ability to hold positions, as the results of this testing.
I request that the present Attorneys for the Plaintiffs,
also be considered as my Attorneys. My present address
and name is attached.
I enter this claim as a Class Action; because of race, un-
der the Civil Rights Act of 1964.
I have read the above, and signed the above under my own
will.
Name/Address
Jesse Mallory, Rt. ...., Box 20A, Garysburg, N. C.
Robert E. Coleman, Box 121, Garysburg, N.C.
Edward S. Lee, Box 22, Garysburg N. C.
John Juniaiso Jarrell, Rt. 1, Box 151, Roanoke Rapids,
N.C.
Wom Jarrells, Rt. 1, Box 342, Roanoke Rapids, N. C.
Alphonso Owens, Star Rt., Box 82, Roanoke Rapids, N. C.
Walter Woul, Jr., P. O. Box 78, Garysburg, N. C.
[Jurat Omitted In Printing]
App. 82
/
lu ek Oe :
UNITED STATES DISTRICT COURT
| FOR THE .
Eastern District of North Carolina
Wilson Division
[ Title Omitted In Printing]
PROOF OF CLAIM
[Filed July 23, 1971]
Clerk of the United States District Court
Eastern District of North Carolina
P. O. Box 25670
Raleigh, North Carolina 27611
Re; Joseph P. Moody et al vs Albemarle Paper Company
Civil No. 989
Dear Sirs:
I wish to be a part of the above named Civil Action: I
accepted employment with Albemarle Paper Company,
Roanoke Rapids Plant at Roanoke Rapids, North Carolina.
Due to discriminatory practices of this employer, some were
forced to seek employment elsewhere. I wish to claim back
pay, but due to the inability to state where I would be on the
present seniority list; due to the discriminatory practices of
the above named employer, I ask that after all factors are
settled which pertain to seniority, that I be awarded back
pay in line with my employment date with this company.
The above named employer discriminated against me in
App. 83
the form of testing, by stating that I did not have the
ability to. hold positions, as the results of this testing.
I request that the present Attorneys for the Plaintiffs,
also be considered as my Attorneys. My present address and
name is attached. |
I enter this claim as a Class Action; because of race, un-
der the Civil Rights Act of 1964.
I have read the above and signed the above under my own
will.
/s/ Charlie C. Jones
Rt. 1, Box 138
Roanoke Rapids, N. C.
/s/ Clarence Sorrell
Henrico, N. C.
[Jurat Omitted In Printing ]
App. 84 ©
In The
UNITED STATES DISTRICT COURT
FOR THE
Eastern District of North Carolina
Wilson Division
[ Title Omitted In Printing]
PROOF OF CLAIM
[Filed July 26, 1971]
Clerk of the United States District Court .
Eastern District of North Carolina pe
P. O. Box 25670
Raleigh, North Carolina 27611
Re; Joseph P. Moody et al, vs Albemarle Paper Company
Civil No. 989 . —
Dear Sirs:
I wish to be a part of the above named Civil Action: I
accepted employment with Albemarle ‘Paper Company,
Roanoke Rapids Plant at Roanoke Rapids, North Carolina.
Due to discriminatory practices of this employer, some were
forced to seek employment elsewhere. I wish to claim back
pay, but due to the inability to state where I would be on
the present seniority list ; due to the discriminatory practices
of the above named employer, I ask that after all factors
are settled which pertain to seniority, that I be awarded
back payin line with my employment date with this com-
pany.
App. 85
» The above named employer discriminated against me in
the form of testing, by stating that I did not have the
ability to hold positions, as the results of this testing.
I request that the present Attorneys for the Plaintiffs,
also be considered as my Attorneys. My present address and
name is attached.
I enter this claim as a Class Action; because of race,
under the Civil Rights Act of 1964.
I have read the above, and sign the above under my own
will. a
Name/Address
Robert Avon, Box 3-9, Roanoke Rapids, N. C.
Joe Bagett, Jr., Box 1343, Roanoke Rapids, N. C.
Robert Paul, Jr., 503 West First St., Weldon, N. C.
Adolphus L. Scott, 10 Popular St., Weldon, N. C.
Thornton M. Majette, Garysburg, Box 135
[Jurat Omitted In Printing]
App. 86
In The
UNITED STATES DISTRICT COURT |
FOR THE |
Eastern District Of North Carolina
Wilson Division
[ Title Omitted In Printing]
STIPULATION OF FACTS
[ Filed July 25, 1971 and admitted in evidence as a
joint unnumbered exhibit (R. 37) ]
It is hereby stipulated by and among counsel for the
plaintiffs ; counsel for the defendant, Albemarle Paper Com-
pany, a Virginia corporation; counsel for the defendant, .
Albemarle Paper Company, a Delaware corporation, coun-
sel for the defendant Hoerner Waldorf, a Delaware corpo-- -
ration, counsel for the defendant, Ethyl Corporation, a
Virginia corporation and counsel for the defendant, Hali-
fax Local No. 425, United Papermakers and Paperworkers,
AFL-CIO, that the following facts are true to the best of
the knowledge and belief of all parties :
Exhibit A
‘1. Plaintiffs Joseph P. Moody, Theodore Daniels, Henry |
Hill and Arthur Mitchell are Negro citizens of the United |
States and the State of North Carolina, residing in the
County of Halifax, North Carolina.
2. Defendant Albemarle Paper Company, the Virginia
corporation, operated a pulp and paper plant in Roanoke
\
3
SKS eee aN IEA SS bh
App. 87
Rapids, North Carolina at the time this action was filed on
August 25, 1966. Albemarle Paper Company (Virginia)
was at the time suit was filed a wholly owned subsidiary of
defendant Ethyl Corporation, a Virginia corporation. On
October 31, 1968, during the pendency of this action, the
Roanoke Rapids plant was transferred to defendant Albe-
marle Paper Company, a Delaware corporation, which is a
subsidiary of defendant Hoerner Waldorf Corporation,
also a Delaware corporation. Since November 1, 1968, the
Roanoke Rapids plant has been operated by the Albemarle
Paper Company (Delaware). The particular plant here
involved is the Roanoke Rapids plant.
3. Plaintiffs Moody, Daniels and Hill were employed at
the Roanoke Rapids plant for several years. Plaintiff
Moody was initially employed in September, 1952. Plaintiff
Hill was initially employed in October, 1947. Plaintiff
Mitchell was initially employed in 1922; and he retired
during the pendency of this action. Plaintiff Daniels, in-
itially employed in 1955, has been promoted to the position
of Service Crew Foreman, a position outside the collective
bargaining unit.
4. As of June 30, 1967, approximately 637 persons were
employed in production and maintenance jobs at the Roa-
noke Rapids plant. Of these approximately 120 were
Negroes ; 517 were white.
5. Defendant Halifax Local No. 425, United Paper-
makers and Paperworkers, AFL-CIO “the Union,” is a
local labor organization which is and has been a party to
collective bargaining agreements with Albemarle Paper
Company (Virginia) pertaining to certain production and
maintenance employees at'the Roanoke Rapids plant and
negotiates on their behalf concerning the wages, ierms and
conditions of employment with respect to those employees.
—_ PARI RES GOW TE AT PCRERPae ate eee SDPO gee GEES
App. 88
The Union is engaged in an industry which affects inter-
state commerce and has more than 100 members. The
Union is a labor organization within the meaning of Sec-
tions 701(d) and (e) of the Civil Rights Act of 1964, 42
U.S.C. Sections 2000e(d) and (e). The plaintiffs are or
have been members of the Union.
6. The principal business carried on at the Roanoke
Rapids plant is the production of kraft paper, pulp and
allied products. Since prior to 1950, certain production and
maintenance employees at the Roanoke Rapids plant have
been covered by collective bargaining agreements. Accord-
ingly, all such employees have been classified for purposes
of pay and seniority in accordance with Appendices A, C
and F of the collective bargaining agreements or labor con-
tracts attached hereto and designated as Exhibit 1 through
4 of this stipulation. (Exhibit No. 1 is the 1968 contract and
Exhibit No. 2 is the 1965 contract; Exhibit No. 3 is the
1963 contract and Exhibit No. 4 is the 1961 contract).
7. The collective bargaining units at the Roanoke Rapids
plant consists of all permanent employees with the excep-
tion of clerical employees, watchmen, wood procurement
employees, technical employees, guards and supervisors.
8. The Roanoke Rapids plant originally started in 1970.
In 1937, when defendant Albemarle Paper Company ( Vir-
ginia) acquired the facility known then as the Halifax
Paper Company, the various lines of work were either all
white or all black. These lines of progression were formal-
ized about 1954 or 1955. Copies of the lines of progression
for the 1961, 1963, 1965 and 1968 labor contracts are at-
tached hereto as Exhibit Nos. 1 through 4.
9. In accordance with Appendix F of the labor contracts,
certain jobs are grouped into various lines of progression.
App. &9
Using Appendix F of the 1965 contract as a point of
reference, defendant Albemarle Paper Company ( Virginia)
did not, to the best of its knowledge, have any Negro
employees permanently assigned in certain lines of progres-
sion prior to January 1, 1964. In this respect, there were no
. Negro employees permanently assigned in the Yard Crew
line of progression in the Wood Yard Department; the
knife grinder job classification; the Paper~Machine line
of progression in the A Paper Mill Department; the Beater-
man line of progression in the Beater Room of the A Paper
Mill; the Finishing Crew line of progression in the Product
Department B Mill; the Shipping Crew line of progres-
sion in the Product Department B Mill; the Digester Oper-
ator and CE Recovery Operator lines of progression in the
Pulp Mill Department; the Paper. Machine Line of progres-
sion in the B Paper Mill Department; the Stockroom line
of progression in the B Paper Mill Department; the Boiler
. Operator line of progression in the Boiler Room Depart-
ment; and the Mill and the Laboratory lines of progression
in the Technical Service Department.
\
10. Prior to January 1, 1964, the defendant Albemarle
Raper Company (Virginia) did not, to the best of its
knowledge, have any permanent white employees in certain
lines of progression. In this respect, there were no perma-
nent white employees in the Chipper Cperator line of pro-
gression in the Wood Yard Department; the Services Crew
line of progression in ‘the Wood Yard Department and
the Brokeman line of progression in the A Paper Mill
Department; the Lead Loader Line of Progression in the
Finishing Room Department A Mill; the Payloader line of
progression in the Pulp Mill Department; the First Fire-
man line of progression in the Boiler Room Department
and the “dead end”’ janitor classification.
Rests tieeeren . a a ; .
— PMLA LLNS ENE POE IIE SEINE ETH eR Ca che Rane Neem
»
4
App. 0 -
11. In the 1968 labor contract certain changes were made
in the lines of progression. (See Exhibit No. 1 to this
Stipulation, Appendix F.) In this respect, the Chipper
Operator line of progression and the Yard Crew line of
progression were merged on the basis of rates of pay into
one line of progression as shown on Appendix F of the 1968
labor contract; the First Fireman line of progression and
the Boiler Operator line of progression in the Boiler Room
Department were merged into one line of progression; a
separate Kamyr Department was formed by taking the
Kamyr Operator classification out of the Pulp Mill De-
partment and combining that classification with the Lift
Truck Operator and classifications of Baler and Laborer
and making them into a separate line of progression as set
forth in Appendix F in the 1968 labor contract; the Utility
Helper classification formerly the Lancer classification was
added to the CE Recovery line of progression in the Pulp
Mill. The Service Crew line of progression was changed by
adding the Payloader classification from the Pulp Mill De-
partment to the top of that line.and a separate Service De-
partment was established. In the A Paper Mill Department
the Brokeman line of progression was merged into the
Beaterman line of progression. The “dead end” jobs of
janitor in the A Paper Mill Department and Pulp Mill
Departments were eliminated.
12. The racial composition by departments and job clas-
sifications at the Roanoke Rapids plant as of June 30, 1967
was as follows:
App. 91
Negro White
A. Wood Yard Department
so Yard Crew
Crane Operator (Large) 0 9
Long Log Operator 0) 4
Log Stacker Operator 0) 4
Small Equipment Operator 0 4
Bulldozer Operator 0 1
Oiler 0 4
Chip Unloader ] 3
Chain Operator 0 4
Chipper Operator No. 2
Chipper Operator No. 1 4 0
Tractor Operator 5 1)
Chip Bin Operator + 0
Laborers 12 0
*Knife Grinder 0 1
Service Crew
Dempster-Dumpster 1 0
Winch Truck Operator 0
Winch Truck Operator Helper 1 0
Laborer 6 0
B. Pulp Mill Department
Digester Operator 0
Stock Room Operator 0
Stock Room First Helper 0
Fp A
* The Knife Grinder is in the Wood Yard Department but is not
in a line of progression. This position is occupied by a white person.
App. 92
Negro White
Kamyr Operator
Stock Room Second Helper
Lead Loader-Blower
Loader
C.E. Recovery Operator
Ist Helper No. 6
Second Helper
Caustic Operator
Lime Kiln Operator
General Utility Operator
By Products Operator
Payloader
Lancer
Salt Cake Man .
Janitor—Dead End Job
—_e phe OOooe°oeo°ce°ocoeo
SCOOONK SHH PHO DHS
C. A Paper Mill Department
Paper Machine Line Of Progression
Machine Tender No. 1
Machine Tender No. 2
Back Tender No. 1
Third Hand No. 1
Third Hand Nol
Fourth Hand No} 1
Fourth Hand No. 2
Front Plugger No. 1
Back Plugger No. 1
Back Plugger No. 2
Beaterman
Ist Helper
Brokeman
Stock Puller
Laborer
MOROCOOKFOOCOCOOCOOCO .
COOK HAH ALDARA AAA
, App. 93
D. B Paper Mill Department
Machine Tender
Back Tender
Third Hand
Fourth Hand
Fifth Hand
Sixth Hand
Seventh Hand
Spare Hand
Janitor—Dead End Job
Stock Room Operator
Stock Room Ist Helper
Stock Room 2nd Helper
E. Product Department B Papermill
Sheeter Operator
Rewinder Operator (large)
Rewinder Operator Helper (large)
Rewinder Operator (small )
Sheeter Operator Helper
Wrapper, Tier, Capper
Rewinder Plugger
Core Cutter
Janitors
Scale Clerk
Lift Truck Operator
Utility Man
Laborers
Negro
eoouvnr QO oooooeo
SOCOM SOKFHKH COCO CO
White
FF LON SP CO CO CO OC ©
App. 94
F. A Mill Finishing Department
Lead Loader
_ Lift Truck Operator
Lead Tier & Wrapper
Wrapper, Loader & Brokeman
~ G. Boiler Department
Boiler Operator
H. Power Plant Department
Power Plant Operator
Ist Helper '
2nd Helper
Utility Man
I. Technical Service Department
B Mill Shift Testman :
A Mill Shift Testman
Genera] Lab Testman
Lab Trainee
Lab Assistant
Lab Leadman
J. Storeroom Department
Storeroom Clerk A
Storeroom Clerk C
Storeroom Clerk D
K. Maintenance Department Employees
lst Maintenance Emp. Appren.
2nd Maintenance Emp. Appren.
3rd Maintenance Emp. Appren.
Negro
& RD ome ome ome
ooo°o
ooo
oorOo 0 0
White
oo oococo
~-rh bt
omnt
:
A
App. 95
Negro White
4th Maintenance Emp. Appren. 0 : &
Sth Maintenance Emp. Appren. 0 7
6th Maintenance Emp. Appren. 1 1)
7th Maintenance Emp. Appren. 0 l
Sth Maintenance Emp. Appren:. 0 1
“C™ Maintenance Employee 0 3
“B" Maintenance Employee 0 3
“A” Maintenance Employee 0 99
Leadman Maintenance Employee 0 7
L. Miscvllaneous
General Extra Board 2
Utility Extra Board . -3O 0
Truck Drivers 0
13. Promotion within a line of progression is governed
by seniority and ability. Sections 10.1.1 of the 1965 and
1968 Labor Agreements provide in part that “when all
factors that constitute ability are relatively equal, then
seniority in keeping with established lines of progression
within a given department (as shown on attached Ap-
pendix F) shall prevail.”
14. Three kinds of seniority are provided for in the labor
agreements—job, department and plant: (.A) Job seniority
is defined as total length of continuous service in a par-
ticular job classification; seniority in a higher job(s) in the
same line of progression shall be counted toward job
seniority in lower job(s) in said line of progression: (B)
Department seniority is defined as length of continuous serv-
ice in one of the departments listed in Appendix F; (C)
Plant seniority is defined as length of continuous service
from most recent date of employment.
ey
bao’ HP MEL CRE ia de eae ‘ LEER GRE EA Lag LEER IL LAL
ALS ORISA I
C/
App. 96
15. The seniority system employed basically utilizes job
seniority for promotions and demotions. Sections 10.4.2 of
the 1965 and 1968 Labor Agreements provide:
When the vacancy or reduction is expected to continue
for a period of more than two (2) weeks, job seniority
ifi accordance with the provisions of 10.1.1 [see 13
supra] will apply across all shifts of the line of pro-
gression. Employees will be laid off and rehired from
the bottom of the line, in accordance with this pro-
vision.
This means that the employee who has the greater sen-
iority in the job immediately below the vacancy to be filled
will normally be given the first opportunity to fill the
vacancy even though other employees in the same job
classification have more plant and departmental seniority ~
assuming that the person has the necessary ability, ex-
perience and training to do the higher job.
16. The 1965 labor agreement Section 10.2 provided that
employees could request transfers from one department (or
line of progression) to another department (or line of
progression). This provision was contained in the labor
agreements prior to 1965. Whether or not the transfer was
granted was within the sole discretion of the company. If
an employee transferred at his own request, his seniority
in his former department or line of progression ceased
immediately unless within 30 days the employee returned
to his former department or line of progression because of
his health or physical condition. When the transfer is
effected at the request of the company, his seniority in the
department (or line of progression) left shall be retained
for a period of six months from date of transfer. An em-
ployee transferred under Sections 10.2 of the 1965 labor —
agreement would, absent special circumstances, enter at
Pin ak, Ci ie |
App. 97
the bottom job in the line of progression and could suffer
a reduction in pay if that job to which he was permitted
to transfer to carried a rate of pay less than the job from
which the employee transferred.
17. In 1968, the Labor Agreement was amended to
read:
“10.2.1 Employees who wish to transfer from one de-
partment (or line of progression) to another may file
through their foreman with the Personnel Department
of the Company written application stating the de-
partment (or line of progression) and the job therein
to which he wishes to be transferred. The decision of
the Company in granting or denying such request for
transfer is to be final. However, when an employee
transfers from one department (or line of progres-
sion) to another upon his own request, his seniority in
the department (and line of progression) left shall
cease immediately unless within thirty (30) days from
the date of such transfer the health or physical con-
dition of such employee makes it advisable to transfer
him back to the department (or line of progression)
left. Where the transfer is effected at the request of
the Company, his seniority in the department (or line
of progression) left shall be retained for a period of
six months from date of transfer.
“10.2.2 When the Company grants a transfer as de-
scribed in 10.2.1, then the transferred employee will
be vested with department and job seniority equal to
that held in his last job or equal to that held in the
lowest job in the line of progression from which trais-
ferred.
App. 98
‘10.2.3 When the Company grants such a transfer as
described in 10.2.1, then the transferred employee will
be paid his present rate if higher than the rate of the
job to which transferred until such time as the em-
ployee progresses to a job in the ew iine of progres-
sion which pays as much or more than his rate in his
last classification in his former line of progression. An
employee who is permitted to carry a higher rate to
another department or line of progression shall have
such rate reduced to the rate of the job to which he
is transferred if the employee is deemed at the time a
‘permanent’ vacancy occurs in the next higher job
in the new line of progression to be unqualified for
such job, or with the Company's approval declines a
promotion to such a job. Such an employee shall not
lose his ‘red circle’ rate if deemed unqualified and
the sole reason for his lack of qualification is a deter-
mination by the Company that he has not had suf-
ficient time in the new line of progression to obtain
the training and experience necessary for promotion.
In applying Section 10.2.1, if the Company decides to
fill a vacancy by transferring an employee who has
made application pursuant to the foregoing provisions
and there are on file more than one such application
for the job opening, then the Company will offer the
transfer to the senior qualified emplovee making ap-
plication.”
The rate retention provision referred to in Section 10.2.3
is commonly known as “red circling.”
18. In the negotiations between Albemarle Paper Com-
pany (Virginia) and the Union leading to the 1968- 1971
labor agreement the Union proposed but withdrew: . in
So BO es EE
-—
App. 99
case of promotion and transfer for employees covered by
‘this agreement to jobs within the bargaining unit, the
senior qualified employee will be promoted or transferred.”
Albemarle Paper Company (Virginia) proposed Sections
10.2.2 and 10.2.3 which were accepted by the Union. These
‘Seetions provide seniority on transfers and carry-over of
higher wage rates (“red circling’’) on such transfers.
19. The Union withdrew their proposals as referred in
18, supra. Additionally, the Union proposed but withdrew:
“In the event of layoff, any qualitied employee may exercise
his plant seniority to any bottom level job.”
20. Prior to 1958, no employment personnel tests were
given to applicants for employment at the Roanoke Rapids
plant. In about 1956, the then Personnel Manager, William
Warren, was requested to design a personnel screening
program for the use in the selection of new employees to
be hired for jobs created by the installation of the new #4
Paper Machine. In this connection, Warren selected two
paper and pencil tests—the Revised Beta Examination
(Beta) and the Bennett Mechanical Comprehension. New
employees hired for the General Extra Board and the
Maintenance Department were required to score success-
fully on the Beta as well as have high school education.
21. In an effort to validate the Beta, Personnel Manager
Warren administered this examination to a sample of em-
ployees who worked on the #3 Paper Machine, main-
tenance employees and possibly some employees in the Pulp
Mill. The method that he followed is known by Industrial
Psycnologists as concurrent validation, i.c., employees that
were tested were then rated by their supervisors on the
basis of performance on the job. As a result of this study,
Warren established a cut-off score of 100 for the Beta. No
App. 100
Negroes are known to have been included in Warren’s
sample.
22. In about 1963, the then Personnel Manager, John
Bryan discontinued use of the Bennett Mechanical Tests
which had been previously administered to job applicants
since no positive correlation for the Bennett Test was
established by Bryan’s predecessor, Warren, in his studies.
This occurred in the latter part of 1963 and Bryan ceased
using the Bennett and initiated use of the Wonderlic, A
and B series, along with the Beta Test. Since that time the
two pre-employment tests, the Beta and Wonderlic, Series
A and B, have been administered to applicants for Crane
Operator (Wood Yard), Digester and C.E. Recovery
(Pulp Mill), Paper Machine and Beater (A Paper Mill),
Paper Machine and Stock Room, (B Paper Mill) Power
Plant Operator (Power Plant), Boiler Operator (Boiler
Room) Mill and Laboratory (Technical Services) and
Finishing and Shipping Crew (B Mill Product) lines of
progression. —
23. The Wonderlic was selected in 1963 by Bryan, a
Psychology graduate from Vanderbilt University, and
Masters Degree in Public Administration from the Uni-
versity of North Carolina. Bryan was familiar with the
Wonderlic Tests as well as other psychological tests and
felt it essential for new employees to have certain verbal
facilities because of the increasing technical nature of Mill
operations. Bryan does not hold himself out as an expert
in industrial testing; nor did the Albemarle Paper Com-
pany (Virginia) have an independent test consultant.
24. The cut-off score which was utilized for the Wonder-
lic A and B is eighteen (18) on either test.
App. 101
25. Albemarle Paper Company (Virginia) agrees that if
he were present and testifying in open court, Dr. Raymond
Katzell* would testify as follows:
(a) The Wonderlic Tests are verbal tests of general
mental ability. They are professionally developed tests
in the process of constructing the test originally, pro-
fessional considerations guided the selection of the
items included and the checking out of their suitability.
(b) Some industrial psychologists believe that on
written tests the average score obtained by blacks as a
group are lower than the average score obtained by
whites as a group. Although the reasons for this are
not, entirely clear, it is explained in part by the fact
that blacks in many parts of the country obtain in- .
ferior schooling as compared to white, and in part by
-the fact that in some cultural backgrounds where blacks
are not accustomed to close working relationships
with whites, test scores of blacks are affected by having
the test administered by white examiners. This is true
not only for Negroes, but also for Mexicans, Puerto
Ricans and poar whites. Although psychologists have
made and are making an effort to construct cultural
free tests, these efforts have not been successful so far.
(c) In his opinion, the critical factor by which a test
should be judgéd is whether the test is valid (validity),
1.c., does it measure performance on the job.
* Dr. Katzell is Professor and Head of the Department of Psy-
chology at NYU. Among other things he is a consultant to the
Department of Labor, Office of Federal Contract Compliance on the
development of testing guidelines for employers who hold contracts
with the U.S. Government.
App. 102
(d) In his opinion, if the test is not valid, i.e., has no
positive correlation with performance on the job, then
the test should not be used.
(e) In his opinion, the use of ability tests without
validating them is an unsound psychological practice
because the tests may disqualify employees who could
perform as well as employees who pass the test. The
only way you can tell whether the test does this is to
validate the test.
(f{) There is some evidence that Albemarle Paper
Company (Virginia) made an effort at validating the
Beta test at the Roanoke Rapids plant, but it did not
have data with respect to.the job relevance of the Beta
for Negro candidates as separate from white candi-
dates. ;
(g¢) In his opinion, in determining whether a testing
program conforms with sound professional practice,
the psychologist should (1) perform a job analysis,
(2) conduct a validation study and (3) arrive at a
proper cut-off score. In conducting a job analysis, the
psychologist could properly look at the requirements
for the top job when functionally related jobs are
combined into a line of progression.
(h) During the time that an emplyee is working on
a job within a line of progression he normally would
have an opportunity for on-the-job training in the job
immediately above that which he is permanently as-
signed to during temporary periods, ¢.g., vacations,
illness, etc., which may affect his job performance
ability.
—_
as aerre EL IT CP EE SS PTE NT
—
App. 103
\
(1) The _Wonderlick Tests used at the Roanoke
~ employees.
Rapids plant have not been = for incumbent
(j) The Beta Test is a non-verbal or pictorial test.
It was originally developed in World War I by the
Government in an effort to measure the intelligence of
illiterate people.
(k) In his opinion, a significant change in the
make-up of a population group tested may cause varia-
tions in the validity of a test.
(1) It cannot be assumed that the correlation be-
tween Negro test performance and job performance
will be the same as that for white employees. Nor can
it be assumed that there will be a difference. The only
Way a positive or negative correlation can be deter-
mined is to have the test validated.
(m) A validation study would also permit a com-
pany to determine whether the present cut-off scores
should be raised or lowered. Such a study would “cost
a not inconsiderable sum” and may not be theoretically
feasible because of aninadequate sample.
> ~\ a .
(n) Both the Office of Federal contract compliance
and the Equal Employment Opportunity Commission
have promulgated cuidelines on employment testing.
(o) The conduct of validity studies may be beneficial
to business in improvingNts selection procedures.
26. Dr. Katzell testified that, in his opinion, the high
school education requirement should also be related to
performance on the job. He further stated that “general
experience may frequently Suggest that the people with
\
\
App. 104
higher levels of education do in fact, turn out to be better
performers.”
27. In the 1950’s Albemarle Paper Company (Virginia)
started a system of utilizing class boards for the purpose
of having a reservoir of employees who would be on call
to staff the bottom jobs in the lines of progression. Two
boards were set up—the General Extra Board and the
Utility Extra Board.
28. Employees on the General Extra Board, which was
used to supply the Yard Crew, Digester, C.E. Recovery,
Paper Machine (A and B Mills) Finishing Crew, Shipping
Crew, Boiler Operator, Power Plant, Mill, Laboratory and
Maintenance lines of progression were required to have a
high school education and pass the tests after those quali-
fications for employment were started. As of June 30, 1967,
there were 62 White employees on the General Call Board
and 2 Negro employees.
29. The Utility Extra Board was used to have a reser-
voir of employees to staff jobs in the Chipper, Service Crew,
Payloader, Brockeman, First Fireman and Lead Loader
lines of progression. To be hired on the Utility Extra
Board, an employee was not required to have a high school
education, nor required to qualify on the pre-employment
tests. As of June 30, 1967, there were 50 employees on the
Utility Extra Board; all of whorn were Negro.
30. When a layoff occurs within a line of progression or
department, the employees bump downward and the most
junior employees are either laid off or offered Call Board
work. Employees who are returned to the Call Board or are
laid off retain their seniority rights in their former depart-
ment and line of progression, but do not have a seniority
preference to an opening in a different department or line
of progression.
App. 105
31. In 1959-the Albemarle Paper Company (Virginia)
with the Union’s agreement set up a formalized train-
ing program for maintenance employees which is called
the Maintenance Apprenticeship Program. A committee of
three Maintenance employees, selected by the Union, and
three members, selected by the Maintenance Superinten-
dent, review the Apprenticeship Program and periodically
review the performance of apprentices and recommend ac-
tion to the Maintenance Superintendent. Selection of ap-
plicants for the Apprenticeship Program is conducted by
the Personnel Office and appropriate Maintenance super-
vision. Whether or not a particular person enters the pro-
gram ultimately depends upon the selection by the Main-
tenance Superintendent. The relevant provisions of the con-
tract pertaining to the Maintenance Program are set forth
in Appendix C of the Labor contracts (Exhibits Nos. 1-4).
The first Negro to enter the Apprenticeship Program en-
tered that Program in August of 1964, and there were 4
Negroes who participated in the program through Sep-
tember 26, 1967.
32. In December of 1964 the Albemarle Paper (Vir-
ginia) offered incumbent Negro employees who were then
working in the Chipper, Service Crew, Payloader, Broke-
man, First Fireman and Lead Loader lines of progression
an opportunity to take the personnel tests in order to be
considered for other jobs in other lines of progression and
decided to waive its high school education requirement for
incumbent Negro employees who could successfully pass
those tests. This offer was made a second time on Novem-
ber 4, 1965 and some Negro employees took the tests and
were transferred.
33. Each incumbent Negro employee was given an op-
portunity to take the tests but some refused, including all
App. 106
of the named plaintiffs in this case. A majority of those
who took the tests failed them.
34. In the 1968 labor contract the Crane operator and
Chipper Operator lines of progression were merged into
one line of progression on the basis of rates of pay. Future
promotions in this line of progression are based upon
ability and job seniority of the competing employees as set
forth in the current labor contract.
35. Plaintiffs Joe P. Moody, Theodore Daniels, Arthur
Mitchell and Henry Hill have filed charges with the Equal
Employment Opportunity Commission.
36. Plaintiffs received letters dated July 28, 1966 from
the Equal Employment Opportunity Commission notifying
them that they were entitled to file suit under Title VII
in Federal District Court.
37. The complaint in this action was filed on August 25,
1966, or within 30 days after receipt of appropriate notice
from the Equal Employment Opportunity Commission.
The foregoing Stipulations of Fact have been agreed to
this 10th day of July, 1971.
J. LeVonne Chambers, Esq.
Robert Belton, Esq.
Chambers, Stein, Ferguson & Lanning
237 West Trade Street
Charlotte, North Carolina 28202
By: /s/ Robert Belton
Attorneys for Plaintiffs
App. 107
Francis V. Lowden, Jr., Esq.
Paul M. Thompson, Esq.
Hunton, Williams, Gay, Powell & Gibson
Post Office Box 1535
Richmond, Virginia 23212
Julian R. Allsbrook, Jr., Esq.
Allsbrook, Benton, Knott, Allsbrook
& Cranford
Post Office Box 108
Roanoke Rapids, North Carolina
_ By: /s/ Francis V. Lowden, Jr.
Attorneys for defendant Abemarle
Paper Company (Delaware and
Virginia Corporations )
Warren Woods, Esa.
Wilson, Woods & Villalon
1735 K Stféet, N.W.
Washington, D. C. 20006
James B. Ledford, Esq.
623 East Trade Street
Charlotte, North Carolina
Bonner D. Sawyer, Esq.
Hillsboro, North Carolina
By: /s/ Warren Woods
Attorneys for defendant Halifax
Local No. 425, United Papermakers
and Paperworkers, AFL-CIO
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App. 108
' Charles F. Blanchard, Esq.
Yarborough, Blanchard, Tucker & Denson
1112 Branch Bank and Trust Building
Drawer 30 /
Raleigh, North Carolina 27602
By: /s/ Charles F. Blanchard
Attorney for defendant Ethyl Corp.
Gordon Busdicker, Esq.
Faegre & Benson
1300 Northwestern Bank Building
Minneapolis Minnesota 55402
By: /s/ Gordon G. Busdicker
Attorney for defendant Hoerner-
Waldorf Corporation
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