Appendix — Albemarle Paper Co. v. Moody

Supreme Court brief1974

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In The

SUPREME COURT OF THE UNITED STATES

OcToseR TERM 1974

No. 74-389

No. 74-428

ALBERMARLE PAPER Co., Petitioner

V.

JosepH P. Moopy, ET AL., Respondents

Ha .irax Loca 425, PAPERMAKERS

AND PAPERWORKERS, Petitioner

v.

JoserH P. Moopy, ET AL., Respondents

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

INDEX ,

Relevant Docket Entries

Complaint Filed August 25, 1966

Plaintiffs’ Memorandum in Opposition to Motion for Summary

Judgment, filed November 22, 1966

Memorandum Opinion and Order, filed Juiy 6, 1967

1

gee LOS NES EE ORE LA ED ENDS 3° Ae 4

. ‘ *

App. Page

Answer, Albemarle Paper Company —_, filed July 26,

Lace ea 21

Answer, Halifax Local No. 425, filed July 28, 1967 ..................... F<)

Letter from Francis V. Lowden, Jr. to The Honorable John D.

Agrteanias, Jenga, Cebend, Femme: 105 1G csencscvscinncsmetininssedanisconns 28

Opinion and Order on Motion to Add or Join, filed September

/ "Tae |), | nee Te ee Cn a eo Ore Te 30

Amended Oe filed October 15, 1970 o02.....e.eeceeeeecceeeeeeeseeeeeeeeeee 40

Answer and Cross-Claim, Ethyl Corporation, filed December 28,

1970 .... es ees ceria snes essence cimsat shies tedetseunairatiaanceenes 41

Order on Supplemental Interrogatory, filed May 28, 1971 ........... 44

Order on Supplemental Interrogatory and Designation of the

Class, filed June 15, 1971 .. — 45

Order on Communications with Class Members, filed June 18,

1971 " ee eriesstaaeheaceersgicsedantuee necboeeeeeenietame res 48

Order on Notice to the Class, filed July 8, 1971 ....... ieiesemnes 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, my Cn 7) re 57

Motion for Clarification, filed July 14, 1971 ......... 64

Motion for Severance and the Appointment of a Master, filed

FOR TG, IO ict 68

Proofs of Claims, filed July 15, 19, 21, 23, and 26, 1971 ............. 70

it

s App. Page

Stipulation of Facts, filed July 26, 1971 .............. 86

Trial of the Action held before the Hon. F. T. Dupree, U.S.

District Judge for the Eastern District of North Carolina,

Wilson Division Commericing on July 26, 1971 at Raleigh,

North Carolina:

PONE ice sicacrs terse tor pe rcanhiedc trees cs nericeorsnsnienenemepeidione 113

Colloquy between the Court and Counsel [Tr. 11] ................ 114

Testimony of James Alfred Jones

Direct [153] ............-...-- spa nn reel weiensashsoesisortseirriasonens 119

Cross, Defendant Employer (DE) [169].................0......--.. 125

Testimony of Ethoria Jones

SEE IT crip esrentscrecs pete esi ccr ented pester oe ene eenenentn 126

Cross, DE [187] o....c.---cecccsecccnee Mt ecceneeccneescesseecneeecanees as 127

Cross, Defendant Union, (DU) [202] ......000.020002-.eee-- 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:

SIN ois iinet eccecerntinns ren ert sneer merboas So sneateadteostoanctsans 128

Testimony of Philmore Taylor

se Ee |.) Sennen en een een ..... 128

Testimony of Mack Coy Boone

Direct [314] ............-.--.--------000--+- saetesbetentors: Ge evessieneicenietsenies 129

es a Be ny re ee en 129

Testimony of David Harding

= ae ET | 2 eno anne eee en nen ane ere ene 129

Ey Cle Ce TG inert 130

Testimony of Johnny Easter

DORCCE FIG Foci entities ecreaaienes attiievsenseoenes 130

Ce ET, CG reece se rpc sterner remeeene 130

it

omen een | re _

App. Page

Transcript of Proceedings Held Before the Hon. F. T. Dupree,

Jr., U.S. District Judge for the Eastern Disttict of North

Carolina, on July 28, 1971:

Apppearances .. sisonceial = 132

Testimony of David Mills (upon oral deposition ) (389) .. evn: Sa

Testimony of Arnold Brown (upon orai tcposition) [463] ..

Testimony of Curtis V. Bullock (upon oral re

(503) ........2. ) _ . 148

‘Testimony of John E. Bryan, Jr. (upon oral deposition)

[534] : 148

Transcript of Proceedings Held Before the Hon. F. T. a

U.S. District Judge for the Eastern District of North

Carolina on July 29, 1971:

Appearances sihachicinalianenianae en tiennsnersuedeontaeinconconions 150

Testimony of Ernest Garner

CR, SIE LOY ancececcenseescscsenevevenstonvenvsnmnsoveredstntanrontvesisit 150

CN SI COE cncstinitionsinsnnctccctsnvanennnicthnnnthinnesnoreasteamunicrceiectons 151

Testimony of Willie H. Mason

. ee | ne ccicaarnbiecensncnininenseensnssinsiiomnecetsons 152

Ek |. | han ae ri ipeseesecieceeenienecets 152

Oe te | | ee ae .. 153

Testimony of Theodore Daniels (upon oral deposition)

I cliiacdanhenttcshinusspelei suing lade dinistesieasentaanieraneaneomnineininesti poses 154

.Testimony of Herry Hill (upon oral deposition) [708] ........ 155

Testimony of Arthur Mitchell (upon oral deposition) [717] .. 156

Testimony of Clarence High .

Direct (721) ee litatoneniotis ue rihiaeritiioeah omnes 157

Testimony of Nicholas C. Vrataric (upon oral deposition)

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:

PII aiistccescenicictevncianip tll cascetanctipnicotecisianenniniensicetieeinbinns 160

Testimony of Dr. Joseph Tiffin a

MOIR, SIR VIB ascii escapusssinicncicienn etnintinabencthbsanasegenteres 160

Oe | en ne eee 173

Testimony of Edward C. Moore, Jr. (recalled)

SRP, 2iie NIE sankcreprecenieoretemeeeitesnrseryernoneleessiantcmnands 185

<A, TI i ences cheesiest eee teeermtonsiessennecnds 188

Testimony of John E. Bryan, Jr.

Direct, DE [933} .....-22...--..---cecceccsccecceccesiocsccscceceeces seccceneeee 192

Testimony of Dr. Richard Barrett

Direct, P [944] 0.020200. iia soseasesinereosd ehipdoiavanesoonabisecesmands 196

Cross, DE (966) ane... .n.---1e-oncecececovecenecsrsncneceneeseenene:enseee 207

Testimony of Dr. Joseph Tiffin (recalled)

By the Court [972] -...0000220002... po aeisicenreheenneesnbraneaeuirvene 208

Testimony of John E. Bryan, Jr. (recalled) "©

Direct, DE [997] ...22..2ceeceeececceceececeecesceceseececeeseeeesesceseececeese 211

I, FER E. icrsesnrcecierpnecenigrrrorencnsctcerrntntertieemiionenamennts 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:

PIO spires licctcinrertn nisms Man dsiahibentteornenthriecndininetaes 243

Testimony of Edward C. Moore, Jr. (recalled)

SOO, BF PENI Y sisscntctesceciiossssewticwpernetinsicownbarinnecrnensnsscipssnines 243

Ne CI) STIR cccccesnsiccicesntttsoncmncntiemnnlnpsnvimsasinininggenie 245

RIO FE nccsscn riers cncneniesasnvivtinnninieseirnnnessonisncesttieen \ bess 248

p PRRs ie me smemaon PRM MtiaL te , San

LENORE CAE LL E ON ria Leg GPS Bs Bi TM ROE PE

*

App. Page

Testimony of ‘John E. Bryan, Jr. (upon oral deposition)

LY, ee TERR OER RT TON nee NEN eT 249

Testimony of David Mills

Direct, DU [1298] ..................... 253

Cross, P [1334] .......... ee 267

Redirect [1366] ........ 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 ..........<:.: ere . - 270

Testimony of Warren Davis

DOCCE, THU PASTY ssi es scence ech persseieetinoens 270

Plaintiffs’ Exhibits :

P-1 ec: AO

I apexes stacey sxaneasecadcnstsielaveensastvanonniaemaneeee .. 283

5 ee f eeesnees 286

BG ccs rs csen ent n ent ccceeensindeerscenistncetesians 291

| Say 2 eT .. 297

PL ooo sansa ssn test on nks cvs cdcsesaveenaccucansaesectoces c2ecteccdasa cutcecesscen 301

P-27B ............ geese 305

PHZD ooo. coccececcecegeccecesseccccececececessensceccceccececceccecccecseceserserteeseseesscececes 321

PPS! oes occas neericven neo sigsteseese 329

Pe3GA oo coceccccseccccsecssesssvsssnses tesseeceeeeeee i 337

gn. ee en 355

P-60 .. 357

|S 0) 358

Yc sree veer aa serpuereet 359

Se eS ce 408

I sos ce seat co es nce pes dein ccc cdntencta g tne ceteneneendaanegenctasadyersenuuiasioie 413

P-71 ... 415

vi

Defendant Employers’ Exhibits :

LB | CS sane One ne ne aUN SRC RT ERAT eee women erm EN TT ER UNSmtE Nore eerr ere 427

LB) CS er ree Ae ater nome aCe 431

DR ies eis eel ati eg ae eniwass 439

OB ioe ade he ae ate eee Ml ces 458

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 -...................eeeeeeeeceeeeeeeeeeeeeet 508

Letter from the Hon. F. T. Dupree, Judge re Plaintiffs’ Motion

to Alter or Amend, filed November 22, 1971 ...................-.------ 510

Opinion of the United States Court of Appeals for the Fourth

Circuit, entered February 20, 1973 -.........-.........-.--.-sscsesesesseees 511

Order Granting Rehearing en banc, entered June 25, 1973 ........ 538

Question Certified to the United States Supreme Court, filed

December 5, 1973 ...............-.-.cc--cceseceecceecseceeeeeecteseeecceenseeeseeeeees 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 _...0.., 548

vit

ORR PANE Ot oy

App. 273

PLAINTIFFS’ EXHIBIT NO. 1

[ Before the Equal Employment Opportunity Commission]

[Case No. AT-6-6-276 Filed May 9, 1966]

To: Equal Employment Opportunity Commission

COMPLAINT OF UNFAIR EMPLOYMENT PRACTICES

UNDER THE 1964 CIVIL RIGHTS ACT, TITLE VII

Date: Feb. 17, 1966

a

My name is Joe P. Moody. I am a Negro citizen of the

United States and a resident of North Carolina. My ad-

dress is Rte. 1, Box 128, Roanoke Rapids, N. C. My com-

plaint is against Halifax Local No. 425 AFL-CIO whose

ROOPCRE 09 ss sorcnscescciedicccns I applied for work with the above

named employer on .................::---++5 and was refused work

OR rncaccceeceosseccess I applied for a position as a ............2.22.---

My qualifications for the position are: (State education,

training and/or experience.) I received a primary education

and have 14 years of experience Albermarle Paper Mfg.

Co.

I think that I was refused work because of my race or

color. (State briefly the circumstances and/or reasons upon

which the complaint is based. Such things as known, stated

or written racial employment policies, either total or partial,

can be included. )

The above named union, which is a bargaining agency for

most of the employees in the Albemarle Paper Mfg. Co.,

including myself is guilty of discriminating against Negroes

in upgraded employment. According to the guidelines of

progression in Labor Management Agreement, Halifax

Local No. 425 discriminates against Negroes in progres-

sion of policy making staff. There are no Negroes on the

negotiating staff. Negroes are not protected by the union

en een

App. 274

in upgraded employment according to seniority in that no

Negroes have been placed in any position according to

Guidelines, page 16, entitled “Seniority.”

We have been refused redress of grievances by union

management.

1. Negroes are not permitted in meetings where negotia-

tions of grievances are in question.

2. During incliment weather, Negroes have to crawi

under flat cars without proper equipment to protect our

bodies. Whites are not required to do this and they are

furnished adequate clothing by the paper mill.

The union conspires with the company to discriminate

against Negroes.

Negroes have been refused copies of the new wage agree-

ment by the union and are paid salaries below that of

Whites performing the same type duties. For instance:

Negroes must perform any and all jobs requested of them,

including operating bulldozers, repairing cranes, etc., which

are jobs that pay up to $3.00 per hour. We are classified

and paid as laborers of $2.39 per hour.

/s/ Joe P. Moody

Signature

[ Jurat omitted in printing]

erate “ Sn eee a Tees See

ss hs = * ee Ta > tA ES

a tte asl EN eee, aoe *

App. 275

[Before the Equal Employment Opportunity Commission ]

[Case No. AT-6-6-277 ]

To: Equal Employment Opportunity Commission

COMPLAINT OF UNFAIR EMPLOYMENT PRACTICES

UNDER THE 1964 CIVIL RIGHTS ACT, TITLE VII

Date: Feb. 17, 1966

My name is Joe P. Moody Age: ......... I am a Negro

citizen of the United States and a resident of North Caro-

lina. My address is Rte. 1, Box 128, Roanoke Rapids, N. C.

My complaint is against Albemarle Paper Mfg. Co., Inc.,

whose address is Roanoke Rapids, North Carolina. I applied

for work with the above named employer on ........-.------, and

was refused work on ............-.----+ I applied for a position as

ee My qualifications for the position are: (State

education, training, and/or experience.) I received a pri-

mary education and have 14 years of experience with the

above named company.

I think that I was refused work because of my race or

color. (State briefly the circumstances and/or reasons upon

which the complaint is based. Such things as known, stated

or written racial employment policies, either total or partial,

can be included. )

I have been on my present job for twelve years. No. 1

chipper has had a promotion within a certain area. Whites

have been hired and placed in positions above me. Also

one Negro.

I am forced to repair chains, which is a mechanics job,

at a salary cf $3.00 per hour to $3.12 per hour, and my

salary range is from $2.36 to $2.42 per hour. In the light

of these facts, Halifax Local No. 425 is discriminating

App. 276

against Negroes in employment, according to page 16 of

the Guidelines.

/s/ Joe P. Moody

Signature

[ Jurat omitted in printing]

ena ie Set eat baw

App. 277

[Before the Equal Employment Opportunity Commission]

[Case No. AT-6-6-283]

To: Equal Employment Opportunity Commission

COMPLAINT OF UNFAIR EMPLOYMENT PRACTICES

_ UNDER THE 1964 CIVIL RIGHTS ACT, TITLE VII

Date: Feb. 17, 1966

My Name is Arthur Mitchell, Age: -........ I am a Negro

citizen of the United States and a resident of North Caro-

lina. My address is Post Office Box 116, Graysburg, N. C.

My complaint is against Albemarle Paper Mfg. Co., Inc.,

whose address is Roanoke Rapids, North Carolina. I ap-

plied for work with the above named employer on ........-.-- ;

and was refused work on ..........--------- I applied for a posi-

CiOM AS OB acecece My qualifications for the position are:

. (State education, training, and/or experience.) I received

a primary education and have 44 years of experience as a

laborer (2nd helper Stockroom, keeping stock for machine

no. 1) with the above named company.

I think that I was refused work because of my race or

color. (State briefly the circumstances and/or reasons upon

which the complain: is based. Such things as known, stated

or written racial employment policies, either total or partial,

can be included. )

After 44 years of service with the Albemarle Paper Mfg.

Co.. I was released from my job Sunday, Feb. 13, 1966, at

3:00 p.m., without compensation, only to work when called.

In this position I lose all seniority and fringe benefits.

Salary for Stockroom 2nd helper is from $2.58 to 2.70 per

hour. I was listed as a laborer at $2.39 per hour. I was

placed on “Call Board” meaning, part time work, if needed.

As a results, DP lose my departmental seniority and fringe

” Saenaun cel A OES REAR ADE TESTE renee Oe F5 TPAD

co ee : SOR nz ENING IEG yA PROT TERE KS LAL PR LEIT REE LTT LOO IE STAC

App. 278

benefits and all persons on call are the first to be laid off

regardless of seniority. I also believe that departmental

progression is discriminating by United Papermakers and

Paperworkers, Local no. 425 AFL-CiO.

In that Negroes are relegated to certain departments and

are not permitted on basis of seniority to be promoted to

better jobs in other departments, I believe that I was re-

moved from my place of employment and replaced by White

because of my race and color.

/s/ Arthur Mitchell

Signature

[ Jurat omitted in printing]

bir lds Milt bits

App. 279

[Before the Equal Employment Opportunity Commission]

[Case No. AT-6-6-281 ]

To: Equal Employment Opportunity Commission

COMPLAINT OF UNFAIR EMPLOYMENT PRACTICES

UNDER THE 1964 CIVIL RIGHTS ACT, TITLE VII

Date: February 17, 1966

My name is Henry Hill. I am a Negro citizen of the

United States and a resident of North Carolina. My ad-

dress is 1944 Carter Street, Roanoke Rapids, N. C. My

complaint is against Albemarle Paper Mfg. Co., Inc., whose

address is Roanoke Rapids, N. C. I applied for work with

the above named employer on ...............---, and was refused

work on Dismissed on Feb. 14, 1966. I applied for a posi-

tion aS a... eee My qualifications for the position are:

(State education, training and/or experience.) 3rd Grade

education, and 18 years 4 months, valve puller for 14 years.

I think that I was refused work because of my race or

color. (State briefly the circumstances and/or reasons upon

which the complaint is based. Such things as known, stated

or written racial employment policies, either total or partial

can be included. )

On Monday February 14, 1966, I was removed from my

job as valve puller where I had been employed for 14 years.

I had seniority over the 2 white men working in my de-

partment. Most white men are trained on any and all jobs,

regardless of educational level at the rate of about 3 months

training. I was placed on what is called the “call board” ;

meaning part-time work, if needed. As a result, I loose my

departmental seniority and fringe benefits, and persons on

the call board are the first to be laid off—regardless of

= a PALES SEEDS LLL BOGE RG EEA SIE SEL LOE SELLE LEGO SLES I BIL LEONE DPE A YOO OAT LNA ANTAL OD Het

App. 280

seniority. I also believe that departmental progression is

discriminating by United Papermakers and Paperworkers,

local No. 425 AFL-CIO.

In that Negroes are relegated to certain departments, and

are not permitted, on the basis of seniority, to be promoted

to better jobs in other departments, I believe that I was

removed from my place of employment and replaced by

white men because of my race and color.

/s/ Henry Hill

Signature

[Jurat omitted in printing |

App. 281

[Before the Equal Employment Opportunity Commission]

[Case No. AT-6-6-275]

To: Equal Employment Opportunity Commission

COMPLAINT OF UNFAIR EMPLOYMENT PRACTICES

UNDER THE 1964 CIVIL RIGHTS ACT, TITLE VII

Date: Feb. 17, 1966

My name is Theodore Daniels, Age: 33. I am a Negro

citizen of the United Staics ana a resident of Nerth Caro-

lina. My address is Rte. 2, Box 439, Roanoke Rapids. My

complaint is against Halifax Local No. 425 AFL-CIO,

whose address is Roanoke Rapids, North Carolina. I ap-

plied for work with the above named employer on ......---------- ;

and was refused work on .......--------- I applied for a posi-

CON BE SD eetnccecoees My qualifications for the position are:

(State education, training, and/or experience.) I com-

pleted the 10th grade and have eleven years of experience

with the Albemarle Paper Mfg. Co.

I think that I was refused work because of my race or

color. (State briefly the circumstances and/or reasons upon

which the complaint is based. Such things as known, stated

or written racial employment policies, either total or partial,

can be included. ) .

The above named union, which is a bargaining agency

for most of the employees in the Albemarle Paper Mfg. Co.,

including myself is guilty of discriminating against Negroes

in upgraded employment. According to the guidelines of

progression in Labor Management Agreement, Halifax

Local No. 425 discriminates against Negroes in progres-

sion of policy making staff. There are no Negroes on the

negotiating staff. Negroes are not protected by the union

in upgraded employment according to seniority in that no

App. 282

Negroes have been placed in any position according to

Guidelines, page 16, entitled “Seniority.

1. We have been refused redress of, grievances by union

management.

‘Negroes are not permitted in meetings where negotiations

of grievances are in question.

2. During incliment weather, Negroes have to crawl ©

under flat cars without proper equipment to protect our

bodies. Whites are not required to do this and they are

furnished adequate clothing by the papex mill.

3. The union conspires with the company to discriminate

against Negroes.

4. Negroes have been refused copies of the new wage

agreement by the union and are paid’ salaries below that

of Whites performing the same type duties. For instance:

Negroes must perform any and all jobs requested of them,

including operating bulldozers, repairing cranes, etc., which

are jobs that pay up to $3.00 per hour. We are classified

and paid as laborers of $2.39 per hour.

. /s/ Theodore Daniels

Signature

[ Jurat omitted in printing]

PRI. parece nA , mes

= PIR LOL OE A GEFEN IE SO ALLE OLLIE OM

<p tale A EAI OO

App. 283

PLAINTIFFS’ EXHIBIT NO. 5

(Affidavit of Joe P. Moody, et al., February 17, 1966)

%

* * *

General Patterns of Racial Discrimination As Practiced

by the Albemarle Manufacturing Paper Company,

Inc., and Halifax Local 425 AFL-CIO

I]. Organizational Discrimination.

A. The above union and company have organized the

factory in departments with seniority only in the unit in

which you work. As a result, Negroes are relegated to a

particular department and do not have seniority in any

other department in the f actory—usually menial jobs.

B. Since July 2nd, 1965, one Negro has been placed in

a few previously all white departments, see enclosed labor

management agreement.

II. Hiring Practices—The unreasonable tests that are

being administered to Negroes, 133 questions, require 100

correct answers for passing—other tests, perhaps adminis-

tered to other white persons consist of 50 questions, requir-

ing 18 for passing. The 3rd test has the same requirements.

It is believed that these tests are discriminatory in practice.

Secondly, Negroes with a number of years of seniority are

required to take the same tests, if they are to be promoted

to other jobs. White people are not required to take the

test for seniority promotions. And, if Negroes take the

test, even if they have worked 40 or 50 years for the com-

pany, and pass, they will lose their seniority if they enter

another department at the same:-company. Most of the 90

Negroes hired on all levels’ at the plant are in positions of

laborers or utility men, which is the lowest paying level in

GIP PAYEE IDL ILL POOLE BLL DOA ELL IIE

App. 284

the factory. Even though they perform any and all duties

such as mechanics, machine operator, repairmen and etc.

without pay.

III. Discharging Practices of Discrimination.

A. The company and union have policies of placing

Negro employees on what is known as ‘Call-board.’ This is

a part-time position where you are called back to work, if

you are needed. As a result of losing regular employment,

Negroes have lost up to 44 years of seniority and all fringe

benefits due them as a results of their long record of em-

ployment. When there are permanent lay offs, the persons

in the above position are the Ist to be laid off. As a result,

a man with 44 years of seniority, may be replaced with a

man who has 6 months of seniority. We believe this to be

gross discrimination on the part of the part of the union and

management, as mentioned above.

B. Negroes are relegated to menial positions in the

factory with less pay and and opportunities for seniority

advancement in the plant. To my knowledge no Negroes—/

have been promoted on the seniority plan according to the

agreement of progressions, see attached guidelines.

C. Out of approximately 650 persons, more or less, there

are less than 100 Negroes employed in the plant. Ratio of

population in Halifax County, Negro, 56%, white, 44%.

Many of the departments are totally segregated, including

office, staff and management, technicians, laboratory work-

ers and supervisory staff.

D. Negro part-time workers have fewer working hours

than whites, and many of the older Negro employees are

being placed from regular to part-time employment.

PF FNAL BLE I SS he

App. 285

We believe that the gross discrimination is due to race

and color.

We, the undersigned, being citizens of the County of

Halifax, in the State of North Carolina, do certify that the

foregone statement is true to the best of our beliefs.

/s/ Joe P. Moody

/s/ Arthur Mitchell

/s/ Theodore Daniels

Signatures

[ Jurat Omitted in Printing ]

App. 286

PLAINTIFFS’ EXHIBIT NO. 14

Labor Agreement

Between

Roanoke Rapids Division, Albermarle Paper Mfg. Co., Inc.

and

United Papermakers and Paperworkers, AFL-CIO

and

Halifax Local No. 425

United Papermakers and Paperworkers

Roanoke Rapids, North Carolina

September 18, 1965-September 15, 1968

* * *

Section 10

Seniority

10.1.1 If employees are to be promoted or demoted, the

Management shall take into consideration seniority and

ability and when all the factors that constitute ability are

relatively equal, then seniority in keeping with established

lines of progression within a given department (as shown

on attached Appendix F) shall prevail.

* 10.1.2 In those cases in which an employee declines in

writing to accept a job advancement he shall by so doing

change his seniority to the lowest seniority standing among

the employees rated in that particular job in that par-

ticular department. An employee who is offered the chance

to sign a statement declining and refuses to sign the state-

ment but nevertheless declines will be considered to have

declined in writing.

a ee a ilo

App. 287

10.1.3 In cases of permanent promotions or demotions

in a department in which seniority is not followed the

Local Union President will be notified. In case of perma-

nent promotions in which a suitable employee does not exist

within a department one may be selected by the Company

from another department after discussion of the matter

with the Union Committee for the first department.

10.1.4 An employee promoted to a permanent supervisory

vacancy in his own department will accumulate departmental

seniority while acting as a supervisor in that department

for a period not to exceed six (6) months. At the end of six

month period the employee will then become a permanent

supervisor or placed back to his former position, unless

otherwise agreed by mutual agreement between the Com-

pany and the local Union.

10.2 Employees who wish to transfer from one depart-

ment (or line of progression) to another may file through

their foreman with the Personnel Department of the Com-

pany written application stating the department (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 progression) to another upon his own request, his senior-

ity 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 condition 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.

App. 288

10.3 Definitions—Job, Department, Plant Seniority

For the purposes of this Agreement there shall be three

(3) types of seniority: job seniority, department seniority

and plart seuicrity.

Job seniority is defined as total length of continuous serv-

ice in a job classification ; seniority in a higher job(s) in the

same line of progression shall count toward job seniority in

lower job(s) in said line of progression.

Department seniority is defined as length of continuous

service in one of the departments listed in Appendix F.

Plant seniority is defined as length of continuous serv-

ice from most recent date of employment.

10.4.1 Vacancies (including increases in complement),

and reductions (including curtailments, and decreases in

complement) calling for promotions, or demotions, as noted

in 10.1.1 will be practiced as follows:

10.4.2 When the vacancy or reduction is expected to con-

tinue for a period of more than two (2) weeks, job seniority

in accordance with provisions of 10.1.1 will apply across all

shifts of the line of progression. Employees will be laid off

and rehired from the bottom job of a line of progression, in

accordance with this provision.

When applying this paragraph 10.4.2 the Company shall

have three days in which to make the move.

10.4.3 When the vacancy or reduction is expected to

continue for two (2) weeks or less, job seniority in accord-

ance with provisions of 10.1.1 will apply within the in-

dividual shifts of the line of progression. Employees will be

laid off and rehired from the bottom job of a line of pro-

gression, in accordance with this provision.

10.4.4 When the company needs an employee for a job

advancement for two (2) weeks or less, an employee will

App. 289

normally be promoted within the shift on which the vacancy

occurs, but when there is no qualified employee available

on the shift in which the vacancy occurs, the Company may

require the available qualified employee with the highest

seniority to take the job advancement. In such situations of

promoting across shifts for two (2) weeks or less para-

graph 10.1.2 shall not apply to employees who refuse a

job advancement other than such available qualified em-

ployee with the highest seniority.

10.5 It is agreed that the plan for the progression of

employees in the Maintenance Department shall be as pro-

vided in Appendix C attached hereto and a part of this

Agreement.

10.6 To maintain their rehiring rights, employees who

are laid off because of lack of work must notify the Com-

pany in writing once in each thirty (30) days following date

of layoff, giving their current address and signifying their

continued interest in returning to work for the Company.

The failure of an employee to comply with the above pro-

vision within the time limit specified shall void his rehiring

rights. When employees are laid off, they will be advised

of this provision. Employees being recalled to work shall be

notified by certified mail and must return to work within

ten (10) days from date of such notice unless an extension

of time is agreed upon. A copy of said notification shall

also be sent to*the Union.

10.7 In applying 10.4.2 an employee who has bypassed

another employee(s) will be deemed to have one day more

seniority than the by-passed employee(s).

10.8 If the Company makes an error ip applying the

provisions of this Section with regard to layoffs, recalls,

promotions, demotions, transfers, the Company shall not

be liable for any payment to an employee as correction or

App. 290

compensation for such error for such period of time from

the time the employee or the Union knew or was aware

of the error until he or the Union brings the error to the

attention of the Company.

10.9.1 Job seniority shall be lost and all rights attrib-

utable to it forfeited by:

a. Transfer to another line of progression which extends

beyond periods specified in 10.2 above.

b. Transfer to another department which extends beyond

periods specified if 10.2 above.

c. Separation initiated by employee which shall be deemed

to include resignation and retirement.

~ d. Discharge.

e. Absence due either to layoff or disability or both, for

a period equal to his plant seniority at the time such absence

began, but in no event shall an employee retain seniority if

absent in excess of two years.

f. Failure to comply with Section 10.6.

10.9.2 Department seniority shall be lost and all rights

attributable to it forfeited by: (b) through (f) of para-

graph 10.9.1.

10.9.3 Plant seniority shall be lost and all rights under

this Agreement ‘forfeited by (c) through (f) of paragraph

10.9.1.

10.9.4 During the first continuous sixty days of lay-off

an employee’s seniority shall continue to increase and if he

returns to work within this period, he shall be reinstated

without loss of seniority. During such period he shall not

receive holiday pay or other benefits unless he is recalled

within ten calendar days from the date of lay-off.

% :

& \

% og a NGOS AAS —

ares FREON PR acommrmemetn

“App. 291

PLAINTIFFS’ EXHIBIT NO. 15

Labor Agreement

Between

Roanoke Rapids Division, Albemarle Paper Mfg. Co., Inc.

and

United Papermakers td Paperworkers, AFL-CIO

and

Halifax Local No. 425

United Papermakers and Paperworkers

Roanoke Rapids, North Carolina

September 23, 1968-September 15. 1971

x * *

Section 10

Seniority

10.1.1 If employees are promoted or demoted, the Man-

agement shall take into consideration seniority and ability

and when all the factors that constitute ability are relatively

equal, then seniority in keeping with established lines of

progression within a given department (as shown on at-

tached Appendix F) shall prevail.

10.1.2 An employee shall not be permitted to refuse a

promotion without the Company’s permission. An employee

may be “frozen” only by the Company. If an employee is

permitted by the Company to refuse a promotion, he shall

have his seniority changed to the lowest seniority standing

among the employees in that particular job in that par-

ticular department.

10.1.3 In cases of permanent promotions or demotions in

a department in which seniority is not followed the Local

Union President will be notified. In case of permanent pro-

motions in which a suitable employée does not exist within

a department one may be selected by the Company from

\

\

App. 292

another department after discussion of the matter with

the Union Committee for the first department.

10.1.4 An employee promoted to a permanent job outside

of the bargaining unit whom the Company decides to return

to the bargaining unit within six (6) months shall, if so

returned by the Company, have his job, department and

plant seniority restored with additional credit on all three

types of seniority for the time spent outside the bargaining

unit. The six (6) month period may be extended by mutual

agreement between the Company and the Local Union.

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 department

(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 progression) to another upon his own request,

his seniority in the department (and line cf progression)

left shall cease immediately unless within thirty (30) days

from the date of such transfer the health or physical condi-

tion 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 Wher the Company grants a transfer as described

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 transferred.

POIE ALY AF RYE ALOE NOG ATE UNOS

App. 293

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 employee pro-

gresses to a job in the new line of progression which pays

as much or more than his rate in his last classification in

his former line of progression. An employee who is per-

mitted 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 determination by the Company

that he has not had sufficient time in the new line of progres-

sion to obtain the training and experience necessary for pro-

motion. 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 employee making application.

10.3 Definitions—Job, Department, Plant Seniority

For the purposes of this Agreement there shall be three

(3) types of seniority: job seniority, department seniority

and plant seniority.

Job seniority is defined as total length of continuous serv-

ice in a job classification ; seniority in a higher job(s) in

the same line of progression shall count toward job seniority

in lower job(s) in said line of progression.

Department seniority is defined as length of continuous

service in one of the departments listed in Appendix F.

‘a

5 I NNR LUE GR RE BNE Ts PN ET EM :

4 4a - PMP VAM Foy PIP OTE LI LEN: BE» PRISE SR We Het PORE LIEGE IEA PBA ine

$ SELLA IIB ILT EGO LEI TOD RT RR

App. 294

Plant seniority is defined as length of continuous service

from most recent date of employment.

10.4.1 Vacancies (including increases in complement)

and reductions (including curtailments and decreases in

complement ) calling for promotions, or demotions, as noted

‘ in 10.1.1 will be practiced as follows:

10.4.2 When the vacancy or reduction is expected to con-

tinue for a period of more than two (2) weeks, job seniority

in accordance with provisions of 10.1.1 will apply across

all shifts of the line of progression. Employees will be laid

off and rehired from the bottom job of a line of progres-

sion, in accordance with this provision.

When applying this paragraph 10.4.2, the Company

shall have three (3) days in which to make the move.

10.4.3 When the vacancy or reduction is expected to

continue for two (2) weeks or less, job seniority in accord-

ance with provisions of 10.1.1 will apply within the individ-

ual shifts of the line of progression. Employees will be laid.

off and rehired from the bottom job of a line of progres-

sion in accordance with this provision. The provisions of

10.1.1 will also apply within the individual shifts of the line

of progression to the filling of vacancies caused by em-

ployee(s) being on vacation even though such vacation may

extend longer than two (2) weeks.

10.4.4 When the company needs an employee for a job

advancement for two (2) weeks or less, an employee will

normally be promoted within the shift on which the vacancy

occurs, but when there is no qualified employee available

on the shift in which the vacancy occurs, the Company

may require the available qualified employee with the high-

est seniority to take the job advancement. In such situations

of promoting across shifts for two (2) weeks or less para-

graph 10.1.2 shall not apply to employees. who refuse a job

— NE et en eee ae ee ee

App. 295

advancethent other than such available qualified employee

with the highest seniority.

10.5 It is agreed that the plan for the progression of

employees in the Maintenance Department shall be as pro-

vided in Appendix C attached hereto and a part of this

Agreement.

10.6 To maintain their rehiring rights, employees who

are laid off because of lack of work must notify. the Com-

pany in writing once in each thirty (30) days following

date of layoff, giving their current address and signifying

their continued interest in returning to work for the Com-

pany. The failure of an employee to comply with the above

provision within the time limit specified shall void his re-

hiring rights. When employees are laid off, they will be

advised of this provision. Employees being recalled to work

shall be notified by certified mail and must return to work

- within ten (10) days from date of such notice unless

an extension of time is agreed upon. A copy of said notifica-

* tion shall also be sent to the Union.

10.7 In applying 10.4.2 an employee who has by-passed

another employee(s) will be deemed to have one (1) day

more seniority than the bypassed employee(s). The above

sentence shall, effective September 23, 1968 apply only to

cases in which an employee(s) refuses a promotion and

sueh can be refused only with the Company’s permission.

After September 23, 1968, employees who are bypassed for

~ promotion because of disqualification by the Company shall

not lose seniority to those who bypass them but such by-

passed employee(s) shall not be deemed eligible for future

consideration for promotion unless they present the Com-

pany with acceptable proof that they have eliminated or

overcome the reason for the disqualification.

10.8 If the Company makes an error in applying the

App. 296

provisions of this Section. with regard to layoffs, recalls,

promotions, demotions, transfers, the Company shall not

be liable for any payment to an employee as correction or

compensation for such error for such period of time from

the time the employee or the Union knew or.was aware of

_, the error until he or the Union brings the error to the at-

tention of the Company.

10.9.2 job seniority shall be lost and all rights attributable

to ii rorfeited by:

a. Transfer to another line of progressicr which extends

beyond periods specified in 10.2 above.

b. Transfer to another department which extends beyond

periods specified in 10.2 above.

c. Separation initiated by employee which shall be deemed

to include resignation and retirement.

d. Discharge. |

e. Absence due either to layoff or disability, or both, for

a period equal to his plant seniority at the time such absence

began, but in no event shall an employee retain seniority

if absent in excess of two years.

f. Failure to comply with Section 10.6.

10.9.2 Department seniority shall be lost and all rights

attributable to it forfeited by: (b) through (f) of para-

graph 10.9.1. .

10.9.3 Plant seniority shall be lost and all rights under

this Agreement forfeited ed (c) through (f) of para-

graph 10.9.1.

| 10.9.4 During the first continuous sixty days of lay-off

an employee’s seniority shall continue to increase and if he

returns to work within this period, he shall be reinstated

without loss of seniority. During such period he shall not

receive holiday pay or other benefits unless he is recalled

within ten calendar days from the date of lay-off.

* * &*

‘

SO EES

.

S aaeh an daeteeed S ataiaa

BR PERN TMQ NL HS

COREA

~~

PLAINTIFFS’ EXHIBIT NO. 21

App. 297

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sze

SCORING STENCIL FOR THE WONDERLIC PERSONNEL TEST

Answers must be exactly the same as shown here. There

is only one correct answer for each question. Items omitte

are counted wrong. The final score is the total number o

questions answered correctly in exactly 12 minutes. - |

FORA B

App. 304

9 ft.

FORM BB

App. 305

PLAINTIFFS’ EXHIBIT NO. 27B

FEDERAL REGISTER

Volume 35 - Number 149

Saturday, August 1, 1970 - Washington, D. C.

Pages 12311-12379

Title 29—Labor

Chapter XIV—Equal Employment

Opportunity Commission

Part 1607—Guidelines on Employee Selection

Procedures

By virture of the authority vested in it by section 713 of

title VII of the Civil Rights Act of 1964, 42 U.S.C., sec-

tion 2000e-12, 78 Stat. 265, the Equal Employment Oppor-

tunity Commission hereby issues Title 29, Chapter XIV,

§ 1607 of the Code of Federal Regulations.

These Guidelines on Employee Selection Procedures

supersede and enlarge upon the Guidelines on Employment

Testing Procedures, issued by the Equal Employment Op-

portunity Commission on August 24, 1966. Because the ma-

terial herein is interpretive in nature, the provisions of the

Administrative Procedure Act (5 U.S.C..553) requiring

notice of proposed rule making, opportunity for public par-

ticipation, and delay in effective date are inapplicable. The

Guidelines shall be applicable to charges and cases presently

pending or hereafter filed with the Commission.

5 ee islets ‘ See ee

Sec.

1607.1

1607.2

1607.3

1607.4

1607.5

1607.6

1607.7

1607.8

* 1607.9

App. 306

Statement of purpose.

“Test” defined.

Discrimination defined.

Evidence of validity. .

Minimum standards of validation.

Presentation of validity evidence.

Use of other validity evidence.

Assumption of validity.

Continued use of tests.

1607.10 Employment agencies and employment services.

1607.11 Disparate treatment.

1607.12 Retesting.

1607.13 Other selection techniques.

1607.14 Affirmative actian.

Authority: The provisions of this Part 1607 issued under

Sec. 713, 73 Stat. 265, 42 U.S.C. sec. 2000e-12.

§ 1607.1 Statement of purpose.

(a) The guidelines in this part are based on the belief

that properly validated and standardized employee selection

procedures can significantly contribute to the implementa-

tion of non-discriminatory personnel policies, as required

by title VII. It is also recognized that professionally

developed tests, when used in conjunction with other tools

of personnel assessment and complemented by sound pro-

App. 307

grams of job design, may significantly aid in the develop-

ment and maintenance of an efficient work force and, in-

deed, aid in the utilization and conservation of human re-

sources generally.

(b) An examination of charges of discrimination filed

with the Commission and an evaluation of the results of the

Commission’s compliance activities has revealed a decided

increase in total test usage and a marked increase in doubt-

ful testing practices which, based on our experience, tend

to have discriminatory effects. In many cases, persons have

come to rely almost exclusively on tests as the basis for mak-

ing the decision to hire, transfer, promote, grant member-

ship, train, refer or retain, with the result that candidates

are selected or rejected on the basis of a single test score.

Where tests are so used, minority candidates frequently ex-

perience disproportionately high rates of rejection by fail-

ing to attain score levels that have been established as mini-

mum standards for qualification.

It has also become clear that in many instances persons

are using tests as the basis for employment decisions with-

out evidence that.they are valid predictors of employee job

performance. Where evidence in support of presumed rela-

tionships between test performance and job behavior is

lacking, the possibility of discrimination in the application

of test results must be recognized. A test lackigg demon-

strated validity*(i.e., having no known significant relation-

ship to job behavior) and yielding lower scores for classes

protected by title VII may result in the rejection of many

who have necessary qualifications for successful work per-

formance.

(c) The guidelines in this part are designed to serve as a

workable set of standards for employers, unions and em-

No dee Rk de ee a en at nn eT ae ee

App. 308

ployment agencies in determining whether their selection

procedures conform with the obligations contained in title

VII of the Civil Rights Act of 1964. Section 703 of —

VII places an affirmative obligation upon employers, labor

unions, and employment agencies, as defined in section 701

of the Act, not to discriminate because of race, color, re-

ligion, sex, or national origin. Subsection (h) of section 703

allows such persons “* * * to give and to act upon the re-

sults of any professionally developed ability test provided

that such test, its administration or action upon the results

is not designed, intended or used to discriminate because of

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

§ 1607.2 “Test” defined.

For the purpose of the guidelines in this part, the term

“test” is defined as any paper-and-pencil or performance

measure used as a basis for any employment decision. The

guidelines in this part apply, for example, to ability tests

which are designed to measure eligibility for hire, transfer,

promotion, membership, training, referral or retention, This

definition includes, but is not restricted to, measures of

general intelligence, mental ability and learning ability;

specific intellectual abilities ; mechanical, clerical and other

aptitudes; dexterity and coordination; knowledge and pro-

ficiency; occupational and other interests; and attitudes,

personality or temperament. The term “test” includes all

formal, scored, quantified or standardized techniques of

assessing job suitability including, in addition to the above,

specific qualifying or disqualifying personal history or back-

ground requirements, specific educational or work history

requirements, scored interviews, biographical information

blanks, interviewers’ rating scales, scored application forms,

etc.

App. 309

§ 1607.3 Discrimination defined.

The use of any test which adversely affects hiring, pro-

motion, transfer or any other employment or membership

opportunity of classes protected by title VII constitutes dis-

crimination unless: (a) the test has been validated and evi-

dences a high degree of utility as hereinafter described, and

(b) the person giving or acting upon the results of the

particular test can demonstrate that alternative suitable hir-

ing, transfer or promotion procedures are unavailable for

his use.

Nn

§ 1607.4 Evidence of validity.

(a) Each person using tests to select from among candi-

dates for a position or for membership shall have available

for inspection evidence that the tests are being used in a

manner which does not violate § 1607.3. Such evidence shall

be examined for indications of possible discrimination, such

as instances of higher rejection rates for minority candi-:

dates than nonminority candidates. Furthermore, where

technically feasible, a test should be validated for each mi-

nority group with which it is used: that is, any differential

rejection rates that may exist. based on a test, must be rele-

vant to performance on the jobs in question.

(b) The term “technically feasible” as used in these

guidelines means having or obtaining a sufficient number

of minority individuals to achieve findings of statistical

and practical significance, the opportunity to obtain un-

biased job performance criteria, etc. It is the responsibility

of the person claiming absence of technical feasibility to

positively demonstrate evidence of this absence.

App. 310

(c) Evidence of a test’s validity should consist of em-

perical data demonstrating that the test is predictive of or

significantly correlated with important elements of work

behavior which comprise or are relevant to the job or jobs

for which candidates are being evaluated. -

(1) If job progression structures and seniority provi-

sions are so established that new employees will probably.

within a reasonable period of time and in a great majorty of

cases, progress to a higher level, it may be considered that

candidates are being evaluated for jobs at that higher level.

However, where job progression is not so nearly automatic,

or the time span is such that higher level jobs or employees’

potential may be expected to change in significant ways, it

shall be considered that candidates are being evaluated for

a job at or near the entry level. This point is made to under-

score the principle that attainment of or performance at a

higher level job is a relevant criterion in validating employ-

ment tests only when there is a high probability that persons

employed will in fact attain that higher level job within a

reasonable period of time.

(2) Where a test is to be used in diferent units of a

- ynultiunit organization and no significant differences exist

between units, jobs, and applicant populations, evidence

obtained in one unit may suffice for the others. Similarly,

where the validation process requires the collection of data

throughout a multiunit organization, evidence of validity

specific to each unit may not be required. There may also

be instances where evidence of validity is appropriately ob-

tained from more than one company in the same industry.

Both in this instance and in the use of data collected

throughout a multiunit organization, evidence of validity

App. 311

specific to each unit may not be required: Provided, That no

significant differences exist between units, jobs, and appli-

cant populations.

§ 1607.5 Minimum standards for validation.

(a) For the purpose of satisfying the requirements of

this part, empirical e\ idence in support of a test’s validity

must be based on studies employing generally accepted pro-

cedures for determining criterion-related validity such as

those described in “Standards for Educational and Psycho-

logical Tests and Manuals’’ published by American Psycho-

logical Association, 1200 17th Street NW., Washington,

D.C. 20036. Evidence of content or construct validity, as

defined in that publication, may also be appropriate where

criterion-related validity is not feasible. However, evidence

for content or construct validity should be accompanied by

sufficient information from job analysis to demonstrate the

relevance of the content (in the case of job knowledge or

proficiency tests) or the construct (in the case of trait meas-

ures). Evidence of content validity alone may be accept-

able for well-developed tests that consist of suitable samples

of the essential knowledge, skills or behaviors composing

the job in question. The types of knowledge, skills or be-

haviors contemplated here do not include those which can

be acquired in a brief orientation to the job.

(b) Although any appropriate validation strategy may

be used to develop such empirical evidence, the following

minimum standards, as applicable, must be met in the re-

search approach and in the presentation of results which

constitute evidence of validity :

(1) Where a validity study is conducted in which tests

are administered to applicants, with criterion data collected

App. 312

later, the sample of subjects must be representative of the

normal or typical candidate group for the job or jobs in

question. This further assumes that the applicant sample

is representative of the minority population available for

the job or jobs in question in the local labor market. Where

a validity study is conducted in which tests are adminis-

tered to present employees, the sample must be representa-

tive of the minority groups currently included in the appli-,

cant population. If it is not technically feasible to include

minority employees in validation studies conducted on the

present work force, the conduct of a validation study with-

out minority candidates does not relieve any person of his

subsequent obligation for validation when inclusion of mi-

nority candidates ——— technically feasible. ,

(2) Tests must be administered and scored under con-

trolled and standardized conditions, with proper safeguards

to protect the security of test scores and to insure that

scores do not enter into any judgments of employee ade-

quacy that are to be used as criterion measures. Copies of

tests and test manuals, including instructions for adminis-

tration, scoring, and interpretation of test results, that are

privately developed and/or are not available through normal

commercial channels must be included as a part of the vali-

dation evidence.

(3) The work behaviors or other criteria of employee

-adequacy which the test is intended to predict or identify

must be fully described; and, additionally, in the case of

rating techniques, the appraisal form(s) and instructions to

the rater(s) must be included as a part of the validation evi-

dence. Such criteria may include measures other than ac-

tual work proficiency, such as training time, supervisory

App. 313

ratings, regularity of attendance and tenure. Whatever

criteria are used they must represent major or critical work

behaviors as revealed by careful job analyses.

(4) In view -; the possibility of bias inherent in sub-

jective evaluations, supervisory rating techniques should be

a carefully: developed, and the ratings should be closely ex-

amined for evidence of bias. In addition, minorities might

obtain unfairly low performance criterion scores for rea-

sons other than supervisors’ prejudice, as, when, as new

employees, they have had less opportunity to learn job skills.

The general point is that all criteria need to be examined to

insure freedom from factors which would unfairly depress

the scores of minority groups.

(5) Differential validity. Data must be generated and re-

sults separately reported for minority and nonminority

groups wherever technically feasible. Where a minority

group is sufficiently large to constitute an identifiable factor

in the local labor market, but validation data have not been

developed and presented separately for that group, evidence

of satisfactory validity based on other groups will be re-

garded as only provisional compliance with these guide-

‘ lines pending separate validation of the test for the minority

group in question. (See § 1607.9). A test which is differ-

entially valid may be used in groups for which it is valid

but not for those in which it is not valid. In this regard, |

where a test is valid for two groups but one group charac-

teristically obtains higher test scores than the other with-

out a corresponding difference in job performance, cutoff

scores must be set so as to predict the same probability of |

job success in both groups.

-7°

(c) In assessing the utility of a test the following con-

siderations will be applicable :

PRLS GO SPEEA ormeens ”

VIE EO NT Sa i a aa a ot te a ce

a 9 y oa oe _—— —

‘App. 314 |

(1) The relationship between the test and at least one

relevant criterion must be statistically significant. This ordi-

narily means that the relationship should be sufficiently high

as to have a probability of no more than 1 to 20 to have

occurred by chance. However, the use of a single test as

the sole selection device will be scrutinized closely when that

test is valid against only on¢ component of job performance.

(2) In addition to statistical significance, the relation-

ship between the test and criterion should have practical

significance. The magnitude of the relationship needed for

_ practical significance or usefulness is affected by several

factors, including:

(i) The larger the proportion of applicants who are

hired for or placed on the job, the higher the relationship

needs to be in order to be practically useful. Conversely, a

relatively low relationship may prove

tionately few job vacancies are available

ee The larger

satisfactory employees when not selected on the basis of

the test, the higher the relationship needs to be between the

test and a criterion of job success for the test to be practi-

cally useful. Conversely, a relatively low relationship may

prove useful when proportionately few applicants turn out

to be satisfactory ; :

‘{(iii) The smaller the economic and human risks involved

hiring an unqualified applicant relative to the risks en-

_tailed in rejecting a qualified-applicant, the greater the re-

lationship needs to be in order to be practically useful. Con-

versely, a relatively low relationship may prové useful

when the former risks are relatively high.

;

— site acenenisnsenaese

App. 315

= § 1607.6 Presentation of validity evidence.

The presentation of the results of a validation study must

include graphical and statistical representations of the re-

lationships between the test and the criteria, permitting

judgments of the test’s utility in making predictions of fu-

ture work behavior. (See § 1607.5(c) concerning assessing

utility of a test.) Average scores for all tests and criteria

must be reported for all relevant subgroups, including mi-

nority and nonminority groups where differential validation

is required. Whenever statistical adjustments are made in

validity results for less than perfect reliability or for re-

. striction of score range in the test or the criterion, or both,

the supporting evidence from the validation study must be

presented in detail. Furthermore, for each test that is to be

established or continued as an operatiowal employee selec-

tion instrument, as a result of the validation study, the

minimum acceptable cutoff (passing) score on the test must

be reported. It is expected that each operational cutoff

score will be reasonable and consistent with normal expec-

tations of proficiency within the work force or group on

which the study was conducted.

§ 1607.7 Use of other validity studies.

In cases where the validity of a test cannot be determined

pursuant to § 1607.4 and. § 1607.5 (e.g., the number of

subjects is less than that required for a technically adequate

validation study, or an appropriate criterion measure can-

not be developed), evidence from validity studies conducted

in other organizations, such as that reported in test manuals

and professional literature, may be considered acceptable

when: (a) The studies pertain to jobs which are comparable

(i.e., have basically the same task elements), and (b) there

App. 316

are no major differences in contextual variables or sample

composition which are likely to significantly affect validity.

Any person citing evidence from other validity studies as

evidence of test validity for his own jobs must substantiate

in detail job comparability and must demonstrate the ab-

sence of contextual or sample differences cited in para-

graphs (a) and (b) of this section.

§ 1607.8 Assumption of validity.

(a) Under no circumstances will the general reputation

of a’ test, its author or its publisher, or casual reports of

test utility be accepted in lieu of evidence of validity. Spe-

cifically ruled out are: assumptions of validity based on test

names or descriptive labels; all forms of promotional litera-

ture; data bearing on the frequency of a test’s usage; testi-

monial statements of sellers, users, or consultants; and

other nonemperical or anecdotal accounts of testing prac-

tices or testing outcomes.

(b) Although professional supervision of testing ac-

tivities may help greatly to insure technically sound and

nondiscriminatory test usage, such involvement alone shall

not be regarded as constituting satisfactory evidence of test

validity.

}

§ 1607.9 Continued use of tests.

Under certain conditions, a person may “= permitted to

continue the use of a test which is not at the moment fully

“supported by the required evidence of validity. If, for ex-

ample, determination of criterion-related validity in a spe-

cific setting is practicable and required but not yet obtained,

the use of the test may continue: Provided: (a) The person

App. 317

can cite substantial evidence of validity as described in

§ 1607.7 (a) and (b) ; and (b) he has in progress validation

procedures which are designed to produce, within a reason-

able time, the additional data required. It is expected also

that the person may have to alter or suspend test cutoff

scores so that score ranges broad enough to permit the

identification of criterion-related validity will be obtained.

§ 1607.10 Employment agencies and employment services.

(a) An employment service, including private employ-

ment agencies, State employment agencies, and the U.S.

Training and Employment Service, as defined in section

701(c), shall not make applicant.or employee appraisals or

referrals based onthe results obtained from any psycho-

logical test or other selection standard not validated in ac-

cordance with these guidelines.

(b) An employment agency or service which is requested

by an employer or union to devise a testing program is re-

quired to follow the standards for test validation as set forth

in these guidelines. An employment service is not relieved

of its obligation herein because the test user did not request

’ such validation or has requested the use of some lesser

standard than is provided in these guidelines.

(c) Where an employment agency or service is requested

only to administer a testing program which has been else-

where devised the employment agency or service shall re-

quest evidence of validation, as described in the guidelines

in this part, before it administers the testing program

and/or makes referral pursuant to the test results. The em-

ployment agency must furnish on request such evidence of

validation. An employment agency or service will be ex-

pected to refuse to administer a test where the employer or

i ae

App. 318

union does not supply satisfactory evidence of validation.

Reliance by the test user on the reputation of the test, its

author, or the name of the test shall not be deemed sufficient

evidence of validity (see § 1607.8(a)). An employment

agency or service may administer a testing program where

the evidence of validity comports with the standards pro-

vided in § 1607.7.

a

§ 1607.11 Disparate treatment.

The principle of disparate or unequal treatment must be

distinguished from the concepts of test validation. A test or

other employee selection standard—even though validated

against job performance in accordance with the guidelines

in this part—cannot be imposed upon any individual or class.

protected by title VII where other employees, applicants or

members have not been subjected to that standard. Disparate

treatment, for example, occurs where members of a minority

or sex group have been denied the same employment, pro-

motion, transfer or membership opportunities as have been

made available to other employees or applicants. Those em-

ployees or applicants who have been denied equal treatment,

because of prior discriminatory practices or policies, must

at least be afforded the same opportunities as had existed

for other employees or applicants during the period of dis-

crimination. Thus, no new test or other employee selection

standard can be|imposed upon”a class of individuals pro-

tected by title VII who, but for prior discrimination, would

have been granted the opportunity to qualify under less

stringent selection standards previously in force.

§ 1607.12 Retesting.

Employers, unions, and employment agencies should pro-

vide an opportunity for retesting and reconsideration to

App. 319

earlier “failure’ candidates who have availed themselves of

more.training or experience. In particvlar, if any applicant

or employee during the course of an interview or other em-

ployment procedure claims more education or experience,

that individual should be retested.

§ 1607.13 Other selection techniques.

Selection techniques other than tests, as defined in §

1607.2, may be improperly used so as to have the effect of

discriminating against minority groups. Such techniques in-

clude, but are not restricted to, unscored or casual interviews

and unscored application forms. Where there are data sug-

gesting employment discrimination, the person may be

called upon to present evidence concerning the validity of

his unscored procedures as well as of any tests which may

be used, the evidence of validity being of the same types re-

ferred to in §§ 1607.4 and 1607.5. Data suggesting the pos-

sibility of discrimination exist, for example, when there

are differential rates of applicant rejection from various

minority and nonminority or sex groups for the same job

or group of jobs or when there are disproportionate repre-

sentations of minority and nonminority or sex groups

among present employees in different types of jobs. If the

person is unable or unwilling to perform such validation

studies, he has the option of adjusting employment proce-

dures so as to eleminate the conditions suggestive of employ-

ment discrimination.

j

§ 1607.14 Affirmative action.

Nothing in these guidelines shall be interpreted as di-

minishing a person’s obligation under both title VIT and

Executive Order 11246 as amended by Executive Order

App. 320

11375 to undertake affirmative action to ensure that appli-

cants or employees are treated without regard to race, color,

religion, sex, or national origin. Specifically, the use of tests

which have been validated pursuant to these guidelines does

not relieve employers, unions or employment agencies of

their obligations to take positive action in affording em-

ployment and training to members of classes protected by

title VII.

The guidelines in this part are effective upon publication

in the Federal Register.

Signed at Washington, D.C., 21st day of July 1970.

[Seal] William H. Brown, III,

Chairman.

[F.R. Doc. 70-9962; Filed, July 31, 1970; $240 a.m.]

App. 321

PLAINTIFFS’ EXHIBIT NO. 29

Federal Register

Volume 33. - Number 186

Tuesday, September 24,1968 - Washington, D. C.

Part II

Department Of Labor

Office of the Secretary

Validation of Employment Tests by Contractors and

Subcontractors Subject to the Provisions of

Executive Order 11246

Department Of Labor

Office of the Secretary

Employment Tests By Contractors And Subcontractors

Validation

Validation of employment tests by contractors and subcon-

tractors subject to the provisions of Executive Order 11246.

1. General. (a) The following order regarding the use

of employment tests by contractors subject to the provisions

of Executive Order 11246 is being issued in response to

numerous requests for policy guidance by Government

agencies and by contractors.

(b) Two matters regarding selection procedures are of

foremost concern to the Government: (1) Recognizing the

importance of proper procedures in the utilization and con-

servation of human resources generally, and (2) pointing

out the possible adverse effects of improper procedures on

the utilization of minority group personnel.

App. 322

(c) The order is founded on the belief that properly

validated and stardardized tests, by virtue of their relative

objectivity and freedom from the biases that are apt to

characterize more subjective evaluation techniques, can

contribute substantially to the implementation of equitable

and nondiscriminatory personnel policies. Moreover, pro-

fessionally developed tests, carefully used in conjunction

with other tools of personnel assessment and complemented

by sound programs of training and job design, can signifi-

cantly aid in the development and maintenance of an efficient

work force.

(d). An examination by the Office of Federal Contract

Compliance “of compliance reviews of contractors has af-

firmed the increasing reliance on tests in the conduct of

personnel activities. In many cases contractors have come

to rely almost exclusively on tests as the basis for making

employment and promotion decisions, with candidates some-

times selected or rejected on the basis of a single test score.

The examination also disclosed that where employment tests

are so used, minority candidates frequently experience dis-

proportionately high rates of rejection through failing to.

attain score levels that have been established as minimum

standards for qualification.

(e) The examination further suggests that there has

been a decided increase since 1963 in total test usage and a

particularly notable increase in the incidence of doubtful

testing practices which, experience indicates, tend to have

racially discriminatory effects. These findings are particu-

larly evident in testing programs related to blue-collar and

clerical job categories.

(f) It has become clear that in many instances con-

tractors are using tests to determine qualification for hire,

App. 323

transfer, or promotion without evidence that they are valid

indices of performance potential. Where evidence in support

of presumed relationships between test performance and

job behavior is lacking, the possibility of discrimination in

the application of test results must be recognized. A test

lacking validity (i.e., having no significant relationship to

job behavior) and yielding lower scores for minority can- -

didates may resultantly reject many who have probabilities

of successful work performance equal to those of non-

minority candidates.

(g) The order that follows, dealing with basic issues

_ of validity and fairness in those selection programs in which

blue-collar and clerical job cztegories are primarily in-

volved, was developed only after extensive discussions of

the many complex problems and technical considerations

with test experts and personnel management specialists from

both academia and industry. The provisions of the order

are designed to serve as a workable set of criteria for

agencies and contractors in determining whether or not

selection practices are in compliance with Executive Order

11240.

It is recognized that the tests used by the State Employ-

ment Agencies should be similarly validated, and it is ex-

pected that the U.S. Employment Service will expand, as

necessary, its test validation program for State Agencies.

It is also recognized that test usage, as well as test valid-

ity, must be reviewed to determine its effect on the employ-

ment of minorities. For example, a test may be suspect

when it is given in a language in which a significant num-

ber of minority applicants are not proficient and where

language proficiency itself is not a bona fide requirement

for the job. Similarly, a test or other qualification standard

should not be used in a situation involving the transfer or

App. 324

yo

promotion of minority employees when such employees

would already have occupied the positions involved without

such qualifications were it not for past discriminatory

practices.

Specific directives concerning test usage will be issued

by the Office of Federal Contract Compliance within a

short time.

2. Evidence of validity. (a) It is directed that each

agency require each contractor regularly using tests to

select from among candidates for hire, transfer or promo-

tion to jobs other than professional, technical and manz.-

gerial occupations (defined as occupational groups “0”

and “1” in the “Dictionary of Occupational Titles,” Third

Ed.) to have available for inspection, within a reasonable

time, evidence that the tests are valid for their intended

purposes. Such evidence shall be examined in compliance

reviews for indications of possible discrimination, such as

instances of higher rejection rates for minority candidates

than nonminority candidates.

(b) Evidence of a test’s validity should consist of em-

pirical data demonstrating that the test is a. «: of or

significantly correlated with important elemi@nts of work

behavior comprising or relevant to the job(s) for which

candidates are being evaluated.

(1) If job progression structures and seniority provisions

are so established that a new employee will probably, within

a reasonable period of time and in a great majority of cases,

progress to a higher level, it may be considered that candi-

dates are being evaluated for jobs at that higher lev

However, where job progression is not so nearly a"

matic, or the time span is such that higher level jobs may

be expected to change in significant ways, it shall be con-

Z

fey

App. 325

sidered that candidates are being evaluated for a job at or

near the entry level. In the latter case, it would be appro-

priate for a contractor to institute performance or other

tests as a condition of promotion provided such tests also

have been validated pursuant to the provisions of this order.

(2) Where a test is to be used in different units of a

multiunit organization and no significant differences exist

between units, jobs, and applicant populations, evidence ob-

tained in one unit may also suffice for the other. Similarly,

where the validation process requires the collection of data

throughout a multiunit organization, evidence of validity

specific to each unit may not be required.

3. Minimum standards for validation. For the purpose

of satisfying this order, empirical evidence in support of a

test’s validity must be based on studiés employing generally

accepted procedures for determining criterion-related va-

lidity, such as those described in the American Psycholog-

ical Association’s “Standards for Education and Psycho-

logical Tests and Manuals.” (Evidence of content or con-

struct validity may also be appropriate where criterion-

related validity is not technically feasible, but it should be

~ accompanied by sufficient information from job analyses

_to demonstrate the relevance of the content in the case of ©

job knowledge or proficiency tests or the construct in

the case of trait measures.) Although any appropriate

validation strategy may be used to develop such empirical

evidence, the following minimum standards must be met

by any approach used so far as applicable:

(1) Where a predictive validity study is conducted, the

sample of subjects must be representative of the normal or

typical candidate group for the job(s) in question. Where

a concurrent validity study is conducted, the sample should

OP re Oe ae

App. 326

be, so far as technically feasible, representative of the

minority groups currently included in the candidate popu-

lation.

(2) Tests must be administered and scored under con-

trolled and standardized conditions, with proper safeguards

employed to protect the security of test scores and insure

that scores do not enter into any judgments of individual

adequacy that are to be used as criterion measures.

(3) The work behaviors or other criteria of employee

adequacy which the test is intended to predict or identify

must be fully described. Such criteria may include measures

éther than actual work proficiency, such as training time,

supervisory ratings, regularity of attendance, and tenure.

In view of the possibility of bias inherent in subjective eval-

uations, supervisory rating techniques should be developed

carefully and the ratings themselves examined closely for

evidence of bias. Whatever criteria are used, however, they

should represent major or critical work behaviors as re-

vealed by careful job analyses.

(4) Presentations of the results of a validation study

must include graphical and statistical representations of

the relationships between the test and the criteria, permit-

ting judgments of the test’s utility in making predictions

of future work behavior.

(5) Data must be generated and results reported sepa-

rately for minority and nonminority groups wherever -tech-

nically feasible.

. +. &

6. Assumptions of validity. (a) Under no circumstances

will the general reputation of a test, its author or its pub-

lisher, or casual reports of test utility be accepted in lieu of

evidence of validity. Specifically ruled out are: assumptions

App. 327

cf validity based on test names or descriptive labels, all |

forms of promotional literature, data bearing on the fre-

quency of a test’s usage, testimonial statements of sellers or

users, and other nonempirically based and ancedotal ac-

counts of testing practices or testing outcomes.

(b) Although professional supervision of testing activ-

itics may help greatly to insure technically sound and non-

discriminatory test usage, such involvement alone shall not

be regarded as constituting satisfactory evidence of test

validity.

7. Continued use of tests. Under certain conditions, a

contractor may be permitted to continue the use of a test

which is not at the moment fully supported by the required

evidence of validity. If, for example, evidence of criterion-

related validity in a specific setting is technically feasible

and required but not yet obtained, the use of the test may

continue Provided: (a) The contractor can cite substantial

evidence of validity as described in section 5 above, and

(b) he has in progress, validation procedures which are

designed to produce, within a reasonable time, the addi-'

tional data required. It is expected also that the contractor

will use cut-off scores which yield score ranges broad

enough to permit the identification of criterion-related va-

lidity.

8. Affirmative action. Nothing in this order shall be-in-

terpreted as diminishing a contractor’s obligation to under-

take affirmative action to ensure that applicants and current

employees. are treated without regard to race, creed, color

or national origin. Specifically the use of tests which have

been validated pursuant to this order does not relieve the

con‘ractor of his obligation to take positive and affirmative

action in affording employment and training to minority

group personnel.

— . ORL IO ¥ Pts

App. 328

9. Definition of “test.” For the purpose of this order,

“test” is defined as any paper-and-pencil or performance

measure used to judge qualifications for hire, transfer or

promotion. This definition includes, but is not restricted to,’

measures of general intelligence, mental ability, and learn-

ing ability; specific intellectual abilities ; mechanical, clerical

‘and other aptitudes; knowledge and proficiency; occupa-

_tional and other interests; and personality or temperament.

- ‘ * * *

App. 329

PLAINTIFFS’ EXHIBIT NO. 32

Bryan Deposition

The following excerpts are offered in evidence by plain-

tiffs from the deposition of John E. Bryan, Jr., taken by

plaintiffs December 13, 14 and 15, 1967. Each excerpt is

preceded by a reference to the page of the transcript from

which it is taken. Questions are by plaintiffs’ counsel unless

otherwise noted.

[pep. pp. 499-510]

- Q Want to explain your role? A_ Ah, it might help

you to understand it if I told you about the, what I was

told about the history of it, because this affected my role in

what I did subsequent to my coming here.

Q In addition to the role that you played at Albemarle?

A. Allright, ah, Bill Warren told me that ah, in about °55,

'56, just prior to the installation of the number four paper

machine, which is the largest capacity paper machine, most

modern that we’ have, that, ah, in conjunction with others

in the plant management, he was asked to develop a testing

program to get better qualified personnel to man this ma-

chine when it went into operation. They had tried to get.

ah, better qualified people when’ number three machine was

installed, another large modern paper machine, a few years

earlier and, ah, had tried to hire those from outside ah, that

had a high school education, but it had not ah, worked out

satisfactorily ; some of them even with a high school educa-

tion didn’t succeed and ah,—and either quit, were let go, or

‘downgraded or what not, and they didn’t make it on the

machine, so they wanted to avoid this and Bill proceeded to

discuss with other people in the company the possibility of

App. 330

a testing program and to conduct a validation study. He

had, ah, at that time a Master degree in Psychology from

Purdue, and had specialized in this area. So, that he did an s

extensive validation study on the Beta and the Bennett .

Mechanical Comprehension test. He validated it, ah,

against the performance of the incumbent employees at the

time. He told me how he did that and so forth. Ah, from

that time on, for positions on the general extra board and the

Lines of Progression that led from that, they used the

Beta and the Bennett Mechanical Comprehension, and for

selection for the maintenance apprentice program when

it was started a few years later. He found in his validation

study that there was a significant correlation between the

scores on Beta and performance on the job, and as a result

of the statistical calculation you go through in validating

‘tests, he established a cut-off score of, ah, a hundred on the

Beta, now, I don’t recall the scores in regard to the Ben-

netts, but; ah, they continued to use that then not only as

for selecting people for the number four machine, but also

as a pre-employment test from that time on, the Beta, and

they were using Bennett Mechanical Comprehension. Now,

after I came here, they used it to test and I talked to Bill

Warren about it, and Bill at that time was manager of Labor

Relations in Richmond. He was still with the company, and

he told me, or T told him, ah, T just happened to mention

one-day that. ah, we were using a certain score which I

don't recall, as cut off on the Bennett for selection of new

employees, and ah, he said, “You mean that you're, ah,

you're disqualifying people if they don’t make that score?”

And/1 said, “Yes, this is what they were doing when I got’

here, and I thought that was what you had established.”

Well, it turned out that Bill said that he did not find what

he considered to be a significant enough correlation between

N

= a li a Bi FET NOL IIT HOE RY ENA aN TT, :

App. 331

ah, the scores on the Bennett, and performance on the job,

even though it had a high face validity, and, ah, he thought

that, ah, since he left down here that they were only using

it as a guide to, ah, selection without any cut-off score, w ith-

out disqualifying anybody as a result, but when I found that

out, I suppose several of us were probably concerned about

it and we decided, ah, that we should not even use it at all

since its; ah, validity had not been established, in fact, it

had, ah, ah, I believe Bill said somewhat of a negative cor-

relation, so, we quit using the Bennett at that time.

Q What possible way do you use this Mr. Bryan? A

That would have been, ‘uh, probably in the latter part of

1963, and from my knowledge of tests that I acquired in

studying psychology, I am very familiar or well, 1 won't

say very familiar, I was familiar with the Beta. I had not

ever used it before, but I had studied its origin and de-

velopment, and usage and knew that it was a nonverbal in-

telligence test. And I recommended and it was agreed by

the local management that we shuuld start using a Verbal

- Intelligence Test. as well as the Beta; we wanted to keep

using the Beta because it had been validated locally, and I

had had experience with using the Wonderlic before, which

is a short form. Verbal Intelligence Test, and knew that it ©

had, uh, probably more validation studies behind it than

any other short form Verbal Intelligence Test. So, after

consultation we decided to institute the Wonderlic, in addi-

tion to the Beta, in view of the fact that the mill had changed

quite a bit and it - become exceedingly more complex in

operation; whereas !in early years the person w ho was in-

telligent but had very little Verbal facilities acquired

through formal education could, uh, perform satisfactorily

on a lot of the jobs, uh, there were very few jobs and getting

to be fewer and fewer jobs, in which this was possible, and

RR nee

0

App. 332

we needed people that were not only intelligent, but had a

certain amount of, uh, intelligence and, uh, verbal facilities

and this sort of thing to do more and more jobs, so, we

felt, uh, in view of the fact that it is theoretically possible

on the Beta to make a high score, uh, if you are illiterate,

this was not the type of person that we needed today, to

perform a good many skilled jobs, so, we instituted the

Wonderlic and we did not, uh, validate it, uh, locafly, pri-

marily, because of the, the expense of conducting such a

validation, and there were some other considerations, such

as, uh, we didn’t know whether we would get the co-opera-

tion of the employees that we’d need to validate it against

in taking the test, and we certainly have to have that, so,

we used National Norms and on my suggestion after study

of the Wonderlic and Norms had been established na-

tionally for skilled jobs, we developed a, uh, cut-off score of

eighteen (18).

Q Now on the basis of this strike back, you said that

uh, Mr. Warren told you that the Beta had been validated.

Did he tell you what the validation process consisted of ?

A Yes.

Q Would you explain to me what he told you? A

Yes sir, uh, he uh, took uh, people already employed in the

plant, in skilled jobs such as, uh, on number three machine.

Q With the plant, I mean with the Roanoke Rapids fa-

cility? A Yes, this all pertains to Roanoke Rapids, part

of the number three machine,-and he took maintenance men,

among others, and, uh, I’m sure, I think he may have taken,

uh, pulp mill personnel and perhaps some from the wood

yard, but the idea was to get people in the skilled jobs, and

he explained what he was trying to do to these people and

I think he said that he asked cooperation of the Union in

kn) ae es ee ene Eee aoe et ee 3

, App. 333

urging them to cooperate in the taking of the test. They were

given the test on company time. Then he asked the super-

visors over these individuals to use a rank order method of,

uh, comp:F1SON in which the supervisor was given a deck of

cards tht hac these people that he, with whom he .was

familiar wiu., or that he was familiar with their work he

had supervised, and he was asked to rank them in order

of, uh, his evaluation of their performance on skilled jobs

if they were in the higher skilled jobs in the Line of Pro-

gression or if they had not progressed that far, what he

thought their potential was to perform when they got to

those skilled jobs. They ranked them and this was, uh, I

believe, uh, I’m not sure, I think Bill even, uh, ran these

through the computer to get them tabulated and to get a

rank order comparison with their test scores. He did end

up with a comparison between the ranking by the super-

visor and the test scores that they made and this is how he

developed the, uh, fact that there was a high correlation

between score on the Beta and the ranking by the super-

visors, and he had as many supervisors evaluate an indi-

vidual as had sufficient knowledge of that individual’s per-

formance, for instance, uh, he’d have the first line super-

visor evaluate the individual and then the next line super-

visor would also evaluate the individual and in that way you

got four tour foreman and these people had worked under

different ones over the years so he would have each one

evaluate the people they knew, so that he could get more

than one supervisor’s evaluation.

Q Would the, did you get Mr. Warren to tell you that

the validation study was conducted only as to the skilled

personnel? A Yes, that is correct.

Q Did Mr. Warren tell you that the sample that he used

nt eee -

SE PSPS TM ATR AS IE see

App. 334

included both Negro and white employment? A Uh, no,

uh, matter of fact, uh, we didn’t discuss race at all.

Q Youdidn’t discuss raceatall? A Uh huh.

Q At the time that you were Personnel Manager, Mr.

Byran, do you know whether they had Negroes in the skilled

Lines of Progression? A Well, at the time that I came

here I don’t recall there being any, in, uh, the skilled Lines

of Progression. Since I have been in that job and my pres-

ent job, there have been a number who have entered the

skilled Lines of Progression.

Q Did Mr. Warren tell you that the validation study,

tell you how long a period of time to make the validation

study? A_ I don’t recall him telling me specifically, but

from all that he went through, I gathered that it took an

amount of weeks or maybe it might have even taken a

month or so, and he might have, it seems to me that, uh,

it’s perhaps possible that he, uh, he ran the study with maybe

the paper machine crew on one occasion and maybe the

maintenance department, uh, a little later. I vaguely recall

something to that effect.

Q Did Mr. Warren tell you that the validation study

had been reduced to writing? A Well, uh, not exactly.

In that he had not written the whole thing up, uh, in what

you might do if you were doing it for purposes of a thesis,

let’s say, and uh, he did have some records of uh, the test

scores and rankings of individual employees, but that he had

uh, he had not uh, written up a synopsis of it.

Q Did you read any written materials relating to the

validation studies before you made your recommendations

fora Verbal Test? A What do you mean by that? ee

?

App. 335

Q Uh, I’m asking you that, I’m asking you if you read

any reports, written reports or concerning the validation of

the Beta Examination? Whether it was a complete report

of a partial report of fragments before you made the

recommendations: for the institution of the Verbal Test.

A If you mean, did I, uh, read and uh, books on tests and

measurements about—

Q No. A_ About the Beta?

Q What I'm asking is, you said that Mr. Warren con-

ducted a validation test fromthe Beta. A Yes sir.

Q And you say you don’t know whether he did a full

written report of the validational studies. A I don’t

think he did.

Q He may have made fragmentary notations? A

Yes.

Q Et cetera. I’m asking you if you read any of any-

thing in writing relation to the validational study conducted

by Mr. Warren before you made your recommendations

for the Verbal Test? A_ I don’t recall reading anything,

because as I say, he didn’t have a report, he and I just dis-

cussed the thing, uh, orally, and he told me what he had

done and what the results were and this sort of thing, uh,

and I don’t know whether he showed me at that time or

whether I saw it later, but I have seen at some time names

of people and the scores that they made and uh, that served

as a background for his putting these things together.

Q Now you stated that you did have some experience

with the Wonderlic. A Yes sir.

Q Was this one of the reasons why you recommended

the Wonderlic’s use? What experience did you have with it?

App. 336.

A Of course, I first encountered the Wonderlic in college

and courses on tests and measurement and uh, uh, studied

it there and studied, uh, the material that had been de-

veloped about its validation and use and this sort of thing

and, uh, I’ve taken the Wonderlic myself, on I don’t know

how many occasions in the, in terms of applying for jobs

with other companies. Then, uh, uh, with, I think uh, with

two previous employers uh, we used the Wonderlic.

* * *

—

g

App. 337

PLAINTIFFS’ EXHIBIT NO. 36A

Boinest Deposition

The following excerpts are offered in evidence by plain-

tiffs from the deposition of M. Lebby Boinest, Jr., taken

by plaintiffs March 12 and 13, 1968. Each excerpt is pre-

ceded by a reference to the page of transcript from which

it is taken. Questions are by Plaintiffs’ Counsel unless

otherwise noted.

[ DEP. P. 26]

Q What is your occupation? A_ I am vice-president

of the Kraft Paper Division of Albemarle Paper Company.

* * *

[ DEP. P. 27]

Q Did you hold a position with the company prior to

becoming manager of the grocery bag plant? A_ I did.

\

Q What position was that? A Paper Mill superin-

tendent of the Roanoke Rai Operation.

Q How long did you\hold that position? A About

13 years.

* * *

[ DEP. PP. 33-34]

Q Now you indicated that the B Paper Mill was opened

after you went with the plant in 1952. Do you recall the

approximate year that the B Paper Mill was opened? A

The first part of the B Paper Mill went into operation on

January 23, 1953.

Q When that mill was opened, you had the responsibil- .

ity for supervising that department also? A _ I did.

sengpns oes pe

App. 338

Q You had the responsibility for securing employees

for that department? A No.

Q Did you discuss with the personnel manager the staf-

fing of the B Paper Mill? A Obviously.

Q Would you state the procedure you followed in staf-

fing that department? A Well, let’s see how much of it

I can recall. We transferred some skilled people in certain

paper machine Lines of Progression in our mills, in our

Richmond mill, and from our Roanoke Rapids mill some of

these boys were transferred to the new operation. Others

were hired from competitive mills to fill the upper echelons

of the Lines of Progression, Machine Tenders, Back Tend-

ers, et cetera.

Beyond that, we transferred a number of people, I don’t

know how many, from other segments of the mill at Roa-

noke Rapids, and we employed the remainiag persons from

the local available labor force in the Roanoke Rapids area.

Again I can’t specificaily say how many. .

. 2

[pEP. P. 36]

Q Do you recall, Mr. Boirwst, when you instituted test-

ing at the Albemarle Paper Plant in Roanoke Rapids? A

My memory is that it was sometime around 1955 or 1956.

I can’t be specific.

Q Do you recall, Mr. Boinest, when you instituted the

requirement of a high school education at the Paper Plant

in Roanoke Rapids? A _ It was sometime prior to the

startup of No. 3 machine.

Q Would you explain what No. 3 mactiine is? A

That was the beginning of the B Paper Mill. Excuse me.

* * *

PETS ae ¥ ee a SIRE AS AD rma en 2 :

App. 339

[DEP. PP. 42-49]

Q_ Did you play a part in the determination to require

the passing of a test for employment? A Well, I don’t

know how to interpret exactly what you mean by play a

part. I was involved in a general decision on the part of

the mill management to institute a testing program. That

stemmed from the fact that we had not had in our judg-

ment particularly good selection of experienced persons at

the time of start-up of the No. 3 Paper Machine.

At the time the testing was talked about and at the time

it was instituted, the company was already making plans

for the installation of a second machine at Roanoke Rapids,

which was going tu require another fairly comprehensive

_ staffing job in terms of people and skills, and we wanted

to do, in fact, we had to do a better job in staffing the second

machine than we had done in the case of the first one. Ina

fair amount of discussion it became apparent that we should

have something beyond the stipulation of a high school

education as a condition for employment in order to get

people who could adequately staff the jobs and who had the

capabilities to move up the Lines of Progression to the top

jobs or, in the case of Paper Machines, the Machine Tend-

ers, and it was on that basis that the desire was held on the

part of the management to implement some sort of testing

program which would be a better guide than the present

one that we had, which was the high school education.

To that extent I was involved.

77 was going to ask what your involvement was in the

company’s determination for a test. A Well, I will try

to reconstruct this as best I can recall it.

QI just want to know exactly what vou did. A I dis-

cussed with the personnel manager and the management of

the mill the desirability of instituting a testing program

App. 340

to give the mill a better selection of employees to staff the

operations, which was in the planning stage at that point.

Q. Did you play a part in the selection of a test? A

I did not. I am not a testing expert. I know nothing about

the details of tests.

_Q Do you know how the company proceeded to select

the tests? A_ I believe at that point in time Mr. Warren

was the personnel manager. He had some considerable back-

judgment and recommendation.

- Q Do you recall the first test that was instituted by the -

“i _ company, the name of the test? A Ido not.

Q Do you recall whether the employees in the B

Paper Mill, Paper Machine Line of Progression, were

required to go back and take the tests? A Inthe B Paper-

Mill Line of Progression? ;

Q Yes. A _ Prior to the institution of the tests on a

‘regular basis, is that your question ?

Q No, at the time you instituted the tests you had al-

ready opened the B Paper Mill Department? A That’s

right.

Q Did you require the employees at the B Paper Mill,

Paper Machine Line of Progression, to take the tests? A

We did not require it. Actually in an effort to validate the

tests which were used we had to have some yardstick in

which to determine whether the tests that we were going

to consider using had any validity in terms of the types of

things we were looking for.

We had an agreement with the union on a volunteer

RMI NER oP SANT

—

App. 341

basis that the members of the B Paper Mill crew would take

the test in an effort to establish.a cut-off point, if you will,

or a validation of the two pieces, as I recall, of the tests,

to be used as a guideline for subsequent validation of the

tests and implementation of it as a requirement of pre-

: employment in that Line of Progression.

Q Now do you know the procedure that you followed

in trying to validate the tests? A Well, I could tell you

what I know about it. What was done by agreement be-

tween the company and the union on a volunteer basis as I

recall, every member of the B Paper_Mill Lines of Pro-

gression, the Paper Machine and the Stock Room agreed

on a voluntary basis to take the tests that was being pro-

posed on the condition that the scores of individuals would

not be identified to supervision and that in no case would

the results of the tests be detrimental to the position of any-

body who agreed to take the tests on a voluntary basis.

The test was conducted by the personnel department on

a group basis, shift by shift. The paper, answer sheets or

whatever was involved in it were taken by the personnel

manager, The things were graded and those numbers were

never knowledge to anyone in supervision in the mill. It

was done on a voluntary. cooperative basis between the

company and the union.

Q And you are stating that the employees in the B

Paper Mill participated in the testing? A That was the

group which we were trying to establish qualifications for,

so that was the logical group to take the tests.

Q Did the employees in the A Paper Mill take the test?

A They did not.

Q Did the employees in Wood Yard Department take

thetest? A I donot know.

.

i : |

RT I = FOE Y TIED SER a er SteeMnene re» nse Reet 9.49 a Diente

Sen SSRN ROR E ten Mbrm ane yy IO ETT ONS

sews SHS

App. 342

Q Did ‘the employees in the Boiler Room Department

take the test? A Idon’t know. |

Q Did the employees in the Pulp Mill Department take

the test? A I donot know.

© The only employees taking the test were tive em-

ployees in the B Paper Mill? A That was the only one |

was interested in.

Q Did any negro take the test? A So far as I am

concerned at that point in time they did not, since none of

them were in that Line of Progression.

o 1 believe you stated you were giving the test, a vol-

untary test, to select the score or the cut-off score to the

employees of the B Paper Mill? A _ It was an attempt to

validate these two-tests, whatever they were. It was to

determine what would be an acceptable level in light of

employees on their jobs and their relative performance on

those jobs.

( How did you select the cut-off scores? A _ I don’t

know that.

Q All you know you gave the employees the test in the °

B Paper Mill? A That’s right.

© You don’t know how the cut-off score was selected?

A We had already agreed we would not know the score,

and I did not know the score of anyone who took it, nor

did anyone under my supervision. That was a part of the

agreement.

Q Did you know or did you subsequently learn the

cut-off score? A Idid not.

© Do you know presently the cut-off score? A_ I

do not.

;

‘

a App. 343

Q, You don’t know how then you selected the cut-off

score? All that you know is that you had these employees

take these tests? A That's right. ta,

Q You indicated that you considered the job perform-

ance of theemployees? A_ Right.

_Q How did you consider the job performance of the

employees? A The job performance of each individual

employee within the crew was evaluated, and I can say

this was a subjective judgment as to how he performed the

job which he was occupying. In most of the cases, because

we had rotation of people across shifts within the paper

mill group, we had more than one supervisor within the

B Paper Mill who would be conversant with the perform-

ance of each employee on his shift. That was not true in

all cases, but in most cases it was true.

We did, in fact, have each first line supervisor or fore-

man, together with the assistant superintendent and myself,

who had direct first hand knowledge of performance of in-

dividuals’ job performance, and their ability to progress

up the Line of Progression, and this was supplied to the

personnel department, I assume, for a comparison of scores.

Q Did you have any written standards or criterions

for evaluation of job performances? A We did not.

i

Q * Did you pass personally on the job performance on

each individual who took the test? A No, not directly.

I was sufficiently far removed that I couldn't. I was not

capable of making a first hand judgment of every employee.

Q And each supervisor or foreman made his own de-

termination of a job performance of an individual? A

Yes.

Q And you stated this was subjective? It had to be?

A No other mene.

wee

¢ App. 344

Q_ And vou state further that only white employees were

tested and evaluated in their job performance? A Only

incumbents in the job were tested.

* * *

}pEP. PP. 50-51]

Q You indicated that you felt that the high school

education was not the best determinant of job performance.

Do you recall why the company continued to use a high

school education or a test? A Well, I will go back and

qualify what I said about a high school education. The

complexities of jobs in some of these Lines of Progression

that we are talking about are such that the company was

convinced that a high school education was a starting

point, and it was a necessity in terms of an individual g

capable or qualified to get to the top of the Lines of Pro-

gression that a*high school diploma was a beginning point,

and that was a minimum.

Now there were some high school graduates whom I

suspect, I know there were some high school graduates who

didn’t have the capability to do these jobs either, who didn’t

have the inate ability to acquire the knowledge necessary

to staff some of these jobs higher up in the Lines of Pro-

gression.

It isn’t an indictment of the people. It’s the facts of

life, and in a broad spectrum basis a high school education

per se doesn’t qualify people to be skilled paper machine

operators, so the company felt it was necessary to go be-

yond that in an effort to adequately staff the operation, and

that was what was done. That was why we went beyond,

pure and simply, the high school education requirement.

Q My question, however, is why you continued to ac-

cept a high school education or a test score? A Jam not

~

; . seaman, ae ee a a an ote ie

App. 345

aware that we did. At the time we are talking about*we

required a high school education and a test.

* * *

[DEP. PP. 53-54]

Q So you do not know of a comparison of any others

who were not required to take the test and the ones that

took the test in the B Paper Mill, Paper Machine Line of

Progression, A All I can say is, high school education

good or bad, we had a far better crew on the second paper

machine than we did on the first. For what reason, I don’t

know, but the performance and ‘skills of the people on

that machine in operating practice, the record will clearly

indicate that the performance of the operation was ex-

tremely better.

a ae

Q Now did you at any time make any correlation be-

tween what you describe as the better performance when

the new machine opened up in the B Paper Mill and the

test score? A I told you I did not.

* * *

[pDEP. PP. 60-61 |

Q How do you go about promoting efficiency in pro-

duction at the Albemarle Paper Plant in Roanoke Rapids?

A Well, I would say you put together the best possible

management personnel. You staff the operations with the

best available work force, and you provide them with the

best tools which your money allows you to acquire. You put

those tools and people together and attempt to manage

them on.an as efficient basis as your knowledge allows

you to do.

* * *

App. 346

[pEP. PP. 68-80]

By Mr. Lowden: Cross Examination

Q Wiiat changes were made in the mill in the early

1950s? A Well, in terms of equipment, when I went to

Roanoke Rapids in 1952, the mill as I recall had a pro-

ductive capability of “about’ 300 tons a day of pulp and

approximately 50 tons a day of paper from the two small

paper machines. With the disparity between pulp and

paper production being consumed in the Richmond opera-

tion, which we shipped pulp to, in 1952, when I went to

Roanoke Rapids, that was the situation.

In 1953 we started up the B Paper Mill in terms of. the

No. 3 Paper Machine which was a production unit capable

of 200 to 250 tons of production a day, and we had es-

sentially installed about 6 million 500 thousand dollars of

equipment to produce this paper.

We obviously had to build up the productive capabilities

of the pulp mill in order to sustain production for the three

paper machines there and three in Richmond, for which we

had to still produce pulp; so there were rather broad changes

in the plant actually. °

There was a substantial investment and a lot of new

equipment, a lot of sophisticated equipment which was

new and different to us, new and different to the industry.

The technology of the pulp and paper industry at that

point was moving ahead as rapidly as within any 5 or 6 year

history of the industry, so the mill in terms of equipment

and in terms of jobs and in terms of opportunities changed

substantially during’the early 1950s.

* * *

Q_ It was at that time that you instituted the require-

ment of a high school education? A The technology of

it

-

. peer

vs PARSON te bs

App. 347

the industry having moved, the demands of the skills were

changing drastically. People who could operate what I

would chose to call horse-and-buggy type of operations

could no longer do those types of things. In the Paper

Machine, for example, a Paper Machine producing 10 or

15 tons a day is a small, slow-moving installation. It doesn’t

require the knowledge, the skills to the sume degree that

are attendant to a machine which is moving at speeds of

1,500-1,800 feet a minute, which a man can no longer

depend on his eyesight, on his feel for the job, but he rather

must rely on what has now betome substantially sophisti-

cated technical pieces of equipment in order to staff the jobs

and man it, so the requirements for skills at this time

changed just as did the hardware.

Q The No. 3 Paper Machine, at. the time that you

staffed that, would you go over again just how you went

about doing that? A No. 3 Machine?

Q No.3 Machine, yes. A Inthe staffing of the No. 3

Machine, we took an inventory essentially of the skills and

the people which we had in the Albemarle organization, both

in Roanoke Rapids and in Richmond. We determined that

we had a small nucleus of people who were performing in

the A Paper Mill at Roanoke Rapids who had a capability

in our judgment to perform certain jobs in the B Paper

Mill.

For instance, a man who had been a machine tender,

the top man in the line in the No. 1 paper machine, I

remember specifically was transferred to the B Paper Mill

as a back tender on the No. 3 machine, one step down the

line in terms of progression, but in our judgment had the

ability to learn that job and ultimately to progress to the

top job on that line. He did exactly that, that particular

individual.

a eT OP MaRS RAP OAS

App. 348

In the course of the thing we determined that we had a

limited number of people who had these abilities in the

Roanoke Rapids plant. We then looked to the Richmond

operation and we transferred some 6 or 7 out of the

Browns’ Island and Hollywood operation to Roanoke Rapids

to similar jobs on the No. 3 paper machine.

We still didn’t have enough skills to staff a machine. We

went out into the industry where these other skills were,

and we hired people, I testified earlier, as farfaway as

Antioch, California, and we hired one or two people from

the Union-Camp plant at Franklin, Virginia and we hired

* one from a plant at Mobile, Alabama and from the plant

in Pensacola, Florida, specifically qualified skilled people to

fit into these lines in the upper echelons.

Having done that, we then made available the remaining

openings to other people within the Roanoke Rapids plant

on a basis that they could request transfer and, if they,

in the judgment of the company, were capable of fiting

these lower jobs ahd then progressing up the line, then.we

considered those for those jobs.

Having done all that. we still didn’t have enough, and

we then went to the outside and we stipulated that these

people must have high school educations.

© Now I believe you testified that as a result of the

experience in staffing the No. 3 machine, you were dissatis-

fed with the method of selecting people? A Well, I don’t~

know that I could agree that we were dissatisfied. We were

less than pleased with the results.

~

Q Allright, can you explain that a little more in detail? ~

A Well, some of our judgments as to peoples’ ability to

progress along the Line of Progression simply didn’t pan

out. People who we thought had the capabilities to move

App. 349

ahead and learn the jobs in an orderly sequence simply dem-

onstrated by their performance they did not have this abil-

ity, and those that had transferred from other departments,

some were actual transferred back to the department from

which they had originally come, and others were eliminated

through just normal attrition.

«» There were some people we hired from the outside new

to the operation, from a physical standpoint, from an in-

terest standpoint, despite the fact that they wege high school

graduates, it simply wasn’t their cup of tea and didn’t

want to do this kind of work and did not perform well. I

wouldn’t say we were completely dissatisfied, but we were

less than pleased with the way it came out.

Q Then, if I understood you, the next step in between

the time you had the staffing of the No. 3 Paper Machine

and before you began staffing the No. 4 Paper Machine the

tests were instituted for people who were going to come

to the No. 4 machine? A_ This is correct. We were seek-

ing some measure, some yai dstick. I guess we could argue

about whether it was a good yardstick or a bad one, but it

was a yardstick available to us which we thought was

better than what we had been using, and we implemented the

testing procedure which has been talked about before, purely

and simply, to attempt to change the direction of our ex-

perience relative to the first machine, hopefully, to not have

the mortality rate among people who came on to the job.

It certainly doesn’t work to the company’s benefit or to

the people either to put them in jobs which they are not

qualified to do.

Q Turning your attention to the Lines of Progression,

not specifically these, but the ones that were in existence,

in practice say in 1952, were these lines in your opinion

established on the basis of the racial characteristics of the

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. = RES ? SPE NESTA Po ay

App. 350

people or were there other reasons for the development of

those Lines of Progression? A In my. judgment there

was never any conscious attempt to look at Lines of Pro-

gression within the framework of race at all. You must

understand that the problems attendant to the operation of

a pulp and paper mill and its complexities require that you

have an orderly evolution and an orderly training program,

and most of our training must be done on the job.

We must have a device by which we can move people

along the progression from the lower jobs to the higher

ones and they must have an opportunity to be trained in

the course of doing this. This is the reason for the Lines of

Progression. :

They have no basis in race as far as I am concerned or

that I am aware of, and as far as I am personally con-

cerned, whenever these things were started, whether 1952,

1954, as far as I am concerned none of these Lines had

any basis for saying that these people go in this Line of

Progression or this job because they are negroes or because

they are whites. They were put in these Lines of Progres-

sion and moved along this way because in the opinion of

the management of the company they had the ability to

perform th’s job or that job and they had the capabilities to

move from this job to that job, and I am bound to say at this

time some of this had to be subjective. It didn’t have a

genesis in race.

* * *

By Mr. Chambers: Redirect Examination

Q With going right back to what you just said in

your denial of consideration of race and establishment of

Lines of Progression, the company has submitted in its

answers to interrogatories, and I would like for you to

App. 351

explain why you have only Negro employees in the Service

Line of Progression in the Wood Yard Department? A

Mr. Chambers, I think it is important that we understand

what, at least, what I understand and other people have

testified in this case, I understand. We are working with a

group of people primarily in the Roanoke Rapids general

geographical location. Some are Negroes; some are whites.

Within-the framework of that group of people down there

we have people who have historically, conceivably been

denied opportunities for education and these sorts of things,

which I am perfectly willing to agree have happened. I

don’t feel that this company can be held 100 percent ac-

countable for the fact that these people have not in all cases

gotten an education or been denied an education or had a

desire to get an education or a desire to equip themselves

to accept jobs requiring certain skills in our industry. or

in anybody else’s industry.

The facts of the case are we have to work with what is

there. The Negro population in the Roanoke Rapids area, .

by and large, does not have from an educational standpoint

in many cases, in most cases, in the majority of the cases in

the Roanoke Rapids area sufficient educational qualifications

to meet the job requirements of many of these jobs in the

Lines of Progression.

They do have the qualifications and ability to do some of

these jobs, and I think the records at our mill at Roanoke

Rapids will clearly suggest that there have been oppor-

tunities for these people of limited background, which I

cannot criticize them for, and I don’t think this is a result

as far as their own efforts are concerned that they haven't

gotten these things, but the fact is these things exist, and

that is what we have to work with. These people have

filled the jobs and have done the jobs which they were cap-

Dees coe mereemesa . :

Bie Di Te ARGS POR AIRES EM BET Ss i RSet or

" EEE IONE i ct ome BIRT TIRE PreK hig cee _—

4

App. 352

able of doing, which their qualifications equip them to do,

and I don’t suggest to you, sir, for one minute that these

’\. happened to be because they were negroes or because they

were whites. There are white people in that mill who don’t

have these capabilities or qualifications either.

Q At one point there, will you explain why they are in

different Lines of Progression, the whites who do not have

the capabilities or qualifications? A I think this is the

more of the times which we find ourselves. Certain jobs

have been considered within this plant negro jobs over the

years, going way back prior to my going there and, as such,

the social mores of the society said these are negro jobs,

and we couldn’t get white people to fill those jobs. I am not

suggesting that it is right or wrong. I am suggesting only

that that is a fact of life. That is something that has oc-

curred, right or wrong, which I submit we are not, cannot

be held liable for that.

Q You are admitting then that you did have negro

jobs and white jobs at the Roanoke Rapids plant? A_ I

am suggesting that we had Lines of Progression which

happened to evolve in completely or predominantly the

negro on the one hand and completely or predominantly the

white on the other. L.submit this evolution did not have

the genesis in race per s

Q Then you are speaking from your knowledge of how

they had their evolution? A I can only speak from the

point that I have direct knowledge, and that is from my

experience in the mill this is the way it evolved.

Q Are you stating that all negroes at your plant are

incapable of filling jobs which are filled predominantly by

whites? A _ I did not say that or infer it.

~

‘\

\

App. 353

’

© Would you say that in your Yard Crew Department

“you have no negroes in the Wood Yard Department who

can perform one of those job positions, and even including

the top position?

Mr. Lowden: Top position of what ?

Q Yard Crew Line of Progression? A Are you say-

ing that none of these negroes in this line could perform

in these lines? Is that your question ?

Q That is correct. A _ I can’t testify to that. I don’t

know.

Q You made a statement just a moment ago that in

your experience in the Roanoke Rapids area the negroes

were incapable of performing the jobs that are predom-

inantly filled with whites? A _ I didn’t say that, I don’t

think.

Q Are you saying that? A No, I don’t say that.

Q Are yau saying that there are no negroes employed

at your plant which were capable of performing jobs that

are filled predominantly by whites? A I suspect that

there are some.

Q Then can you explain why they are not in the white

Line of Progression? A _ Ican only surmise.

Q Would you give us your reasoning or opinion on

that? A I would suggest that they haven’t indicated an

interest in being in those Lines of Progression.

Q Is it your testimony now that the negro employees

have not indicated an interest in the Yard Crew Line of

Progression and that is why they are not in the line? A

I cannot testify direct to that, but I can tell you in terms of

B Paper Mill, which I am thoroughly familiar with and

App. 354

have been for a number of years, that this line was from

1953 to this date, so far as I know, staffed almost com-

pletely with transfers from other departments.

Q We are going to come to that, but first of all with

the Wood Yard Department, in your general statement in

answer to Mr. Lowden that you do not think that your

Lines of Progression were racially oriented— A _ I do

not think that.

Q_ I was trying to get the basis of your opinion and

trying to get some explanation for negro Lines of Pro-

gression and white Lines of Progression, which I think

your previous testimony indicated existed at the Roanoke

Rapids plant. A Well, again I don't know how to testify

specifically to the qualifications of any individual employees

in the Lines of Progression in the Wood Yard Department.

Q Then your answer to Mr. Lowden’s question has to

be taken with that qualification; is that correct? A In

response to Mr.’ Lowden’s question I was not attempting

to recite specific cases relative to individual jobs within

any department of the mill. I was attempting to respond to

his questions within the general framework of what I

believed to be the genesis and the evolution of the Lines of

Progression as presently existing in Roanoke Rapids.

4

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App. 355

PLAINTIFFS’ EXHIBIT NO. 58

Moody Deposition

The following excerpts are offered in evidence by plain-

tiffs from the deposition of Joseph P. Moody, taken by

defendants November 9, 1966. Each excerpt is preceded

by a reference to the page of the transcript from which it

is taken. Questions are by Defendant Albemarle Counsel

unless otherwise noted.

[pEP. P. 4+]

_ Q Would you state your name, please? A Joe P.

Moody.

[DEP. RP. 6-7]

By Mr. Chambers:

Q Before you began working for Albemarle Paper

Company, did you work for any other employer? A Yes,

I used to work for the city. ,

Q What city would that be? A’ Roanoke Rapids City.

© What type of work did you do there? A I used

to clean up aside of the streets, clean up leaves, help pour

cement—anything like that.

Q Did you ever work for anyone else? A Well, I

used to farm—practically all my life—raised up on the farm

“—cut a little pulpwood.

,

Q Who was your employer? A Farming, you mean?

Q Yes. A I farmed some for Mr. Hubert Floyd.

He’s dead now. After I stopped farming, I went to the pulp-

wood—cut a little pulpwood for Mr. Biddy Shaw. Then,

— — cee 7K anes

7 ee a OE Ee TREE SRORE : Ry A come

a

|

a |

App. 356

I left there and went to the city and then after I left the

city, I got a job with Rust Engineers down here on this

No. 3 mill at Albemarle Paper Company. After I left

there, Mr. Buster Seay, Personnel Manager at Albemarle

Paper Company, he was up on the yard one day and I asked

‘him about a job. He told me to come over next morning—

“see about staring you to work.”

* * * ;

[DEP. pp. 47-48]

Q What type of education do you have, Mr. Moody?

How many grades did you attend school? A Well, I

started to go to school, never got out of the primer.

Q In which grade did you finish your education? A

I never go none much.

Q_ Did you ever finish the first grade? A No, I did

not.

© Have you taken any courses since you have been

working for Albemarle Paper Company—correspondence

courses, night courses or any type of courses—to improve

yourself? A No, I have thought about going to school

a couple of times but all my knowledge of the (I am not

bragging, hope people don’t think I is bragging on the little

understanding I is got) that my understanding that what

T received come from the Man above. He and I deals a lot

together and He shows me which way to go.

* * *

App. 357

PLAINTIFFS’ EXHIBIT NO. 60

Hill Deposition

The following excerpts are offered in evidence by plain-

tiffs froma the deposition of Henry Hill, taken by defendants

November 9, 1966. Each excerpt is preceded by a reference

to the page of the transcript from which it is taken. Ques-

tions are by Defendant Albemarle counsel unless otherwise \

noted.

[pEP, P. 108]

Q State your name, please. A Henry Hill.

* * x

[pEP. P. 113]

By Mr. Chambers:

We would like to tender an objection for the reason

that the witness has the same problem that your former

witness had. He cannot read.

* * x

App. 358

PLAINTIFFS’ EXHIBIT NO. 61

Mitchell Deposition

The following excerpts are offered in evidence by plain-

tiffs from the deposition of Arthur Mitchell, taken by de-

fendants November 9, 1966. Each ex¢erpt is preceded by

a reference to the page of the transcript from which it is

taken. Questions are by Defendant Albemarle counsel un-

less otherwise noted.

[pEP. p. 125]

* * *

~Q > Will you state your name, please? A My name is

Arthur Mitchell.

* * *

[pEP. p. 127]

* * *

Q In what manner do you believe the company is dis-

criminating against you?) A Well, what I think about it,

I work all them many years there, and that is all you might

say I know how to do, and they take me out of there and

put me in a different place doing something I can’t do. That

is the part I don’t think was right.

[pEP. P. 132]

A Well, they didn’t never call me no more. After they

told me then, didn’t never call me for to take no tests.

* * *

j

SEARLS Re WEN oe RUE mets 23 STURT Rena eran ws

App. 359

PLAINTIFFS’ EXHIBIT NO. 62

Katzell Deposition _

The following excerpts are offered in evidence by plain-

tiffs from the deposition of Raymond A. Katzell, taken by

Defendant May 21, 1969. Each exceprt is preceded by a

reference to the page of the transcript from which it is

taken. Questions are by Defendant Albemarle Counsel un-

less otherwise noted.

[pEP. PP. 2-8]

Being first duly sworn, was examined and testified as

follows:

Examination by Mr. Lowden:

Q_ Dr. Katzell, would you please state your name and

address for the record, please? A Raymond A. Katzell,

1 Barry Drive, Glen Cove, New York.

Q Youf present occupation? A J] ama psychologist.

Q Are you connected with New York University? A

Yes. I am Professor of Psychology and head of the Depart-

ment of Psychology at New York University.

© Doctor, this case involves a charge by certain Negro

employees at the Roanoke Rapids, North Carolina, paper

mill, the Albemarle Paper Company, and the case has been

going on for some time. And we asked the plaintiffs some

depositions, one of which was: state the names ot people

who have knowledge of the case, and in answer to that they

did not include your name, but included Mr. Richard Bar-

rett. But we were subsequently told that should have been

you. So that—in order to shorten this down, T would like for

you to state for the record the general areas in which you

—

App. 360

have knowledge of this case. A Well, I have read some

of the trial testimony that has been taken earlier—the testi-

mony of Mr. Palmer and Mr. Bryant. I have als » examined

certain other documents that describe the orgarization and

the progression lines of the paper mill. I have been given

some general oral information about the context of the

case and the nature of it by Mr. Robert Belton who is an

attorney with the [NAACP, Legal Defense Fund,] and

also had some conversation with Mr. Chambers.

I believe this would represent the major source of infor-

mation that I have about the case.

Q And did they employ you to testify in the matter?

A Yes, they have.

Q. And is the area of your testimony going to be limited

to testing or are you going the testify about other matters

in addition to that? A As I understand, it is the former;

it is che area of testing.

Q So that you and I can just talk about that then. Doc-

tor, as a psychologist, I assume that you are familiar with

the Beta—let me get the name of it right—you are familiar

with the Revised Beta Examination? A Yes, Iam.

gf ; :

Q ‘Are you familiar with the development of the B.ta

Test which was originally developed by the Army in Wor ?

Warl? A_ Yes, lam.

Q Could you describe for us how the original Beta Test

was developed? A Well, an effort was made to develop

various pictorial and other kinds of non-verbal questions

so that a test of mental ability could be used with military

recruits of little or no literacy. I don’t recall the names of

the principals who [were] involved in actually devising

these kinds of questions, but they were psychologists asso-

sal TRO A RE IG BS oe

App. 361

ciated with the United States Army, World War I. And

the test was administered to large groups of recruits in the

Army, and related, among other things, to the military

occupations that these recruits—military and civilian occu-

pations—that these groups occupied.

Q And the purpose was to measure an individual’s in-

telligence? A Yes, general intelligence and general men-

tal ability.

Q You would say it was originally devised—the exami-

nation was professionally developed? A Yes, I would.

Q Now, it’s been revised once or twice by Mr. Kellogg

and Mr. Morton, in the early thirties, and then I think I

have—tkg one that I have in my hand was revised in 1946.

Do you have any knowledge of Mr. E. C. Kellogg and Mr.

N. W. Morton? A_ None, other than their association

with this particular test.

Q Do you know if they are psychologists? A I do

not.

Q Would you say the revisions were professionally de-

veloped? A It is my impression from the information

contained in the test manual that it was professionally de-

veloped, yes.

Q Does the Beta Examination and the Revised Beta

Examination have a high correlation with individual tests

of intelligence? A It has a substantial correlation. I

wouldn’t characterize it as high, for that is a matter of word

meaning.

Q So that you—it would be your opinion, then, if I

could summarize it, it would be your opinion that the Re-

vised Beta Examination has a high correlation with in-

- + ho A ene

App. 362

dividual intelligence and that it is an attempt to do that by

means of a culture free examination? A_ I didn’t use the

words “‘culture free.”’ It is an attempt to do so by means of

a non-verbal examination.

Q Would you know what would be the average raw

score—I believe the right words are—of an average high

school graduate on the Revised Beta? A No. I don’t re-

member the specific figures.

QI will hand you a copy of the Revised Beta Manual

and ask you what the correlation is with the Otis S-A Test?

Mr. Chambers: I don’t understand that question.

Q (Mr. Lowden) Do you understand my question?

A Yes, I do. According to Table VI, on page ten of the

Manual, a correlation of .71 is reported for a group of 198

subjects between the Otis S-A Test of Mental Ability and

the Revised Beta.

Mr. Chainbers: Was the question the correlation between

the Otis Test and the Revised Beta Test?

A Yes.

Mr. Chambers: I take it that Dr. Katzell was being’

asked about a document entitled ““Revised Beta Examination

Manual,’ Revised 1957?

A Yes.

Q (Mr. Lowden) Doctor, are you familiar with the

Wonderlic Personnel Test? A Yes.

Q Could you tell us what that is a test of? A It is

also a test of general mental ability, however. this, untike

the Beta, is a test which uses—is substantially verbal in

nature, but purports to measure the ‘same general kind of

intellectual capacity.

App. 363

Q Unlike the Beta Test, if you also gave a person the

Wonderlic Personnel Test, would it give you some idea as

to whether or not they can read and write, more so than the

Beta Test would? A Yes.

Q Can you tell us how the Wonderlic Test was de-

veloped? Would you like to look at this? A It was de-

veloped by Mr. E. F. Wonderlic, whose name it bears, and

by recollection it was—the nature of the items were de-

rived from various other kinds of mental ability tests which

had prior been used as vocabulary, word meaning, [verbal]

reasoning items, arithmetic reasoning, for example.

2, .

Q To shorten the question: do you know—would you

say the Wonderli¢ Test was professionally developed? A

Yes, Lwould.

Q “nd you agree it does measure intelligence? A

That, Mr. Lowden, as you perhaps know, is a question that

isn't readily answered, because psychologists are by no

means in agreement of what intelligence means. | would—

if you could rephrase your question—

OQ Allright. <A as to whether this is a representa-

tive of a type of test intended to gauge general mental

ability, ability to learn and think in abstract terms, I would

answer: yes, that this is a characteristic example of that

type of test.

* * *

[pEP. pp. 12-20]

By Mr. Chambers:

Q In your work with the United States Department of

Labor have you performed any services in connection with

the development of testing guidelines for the Office of

Federal Contract and Compliance ? A Yes, sir. In the

_ —_ ~

App. 364

process of developing the order, the executive order [on

validation] of tests for employment purposes, the Office of

Federal Contract and Compliance invited a number of

specialists from industry, education, labor unions, to meet

with them from time to time to propose the features of that

order and to review drafts. I had some service in that ca-

pacity. Last fall I was asked to serve as co-chairnian of an

advisory committee on selection and tests which the OFCC

established to assist in the administration of the—well, ad-

ministration and interpretation of the order which was

issued last September by then Secretary of Labor Wirtz.

I accepted that appointment and I am still so serving.

Q Now, the order that you are referring to, was this

order dealing with testing by industries receiving contracts

with the federal government? A _ That is correct.

Q Testing of employees? A _ Correct.

Q Orapplicants for employment? A _ Correct.

Q Have you in your work perf

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Appendix — Albemarle Paper Co. v. Moody · 419 U.S. 1068 | Frix