Appendix — Albemarle Paper Co. v. Moody

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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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