# Appendix — Albemarle Paper Co. v. Moody > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0443%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 419 U.S. 1068 ## Text bi * — + Se, 8 oh va ; ’ 4 * * ‘ x a . * e “~~ ’ ? 4 & Ny F- ‘ 2. 92 ~ % a ne t * ° - m 4 rt 4 ‘ er + - ‘ ‘ « ’ ‘ ¥ - 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. 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[ J ee eee éSazB1]dnp jexe ase mojaq paysi] suzazt jo sured aay ayy jo Ausw MmOZy Co) Sere Te rege eee €380D SU0} YE [IM IBY “OZS 3SOD [BOD JO SudY YZ J] weme Beco “UOS SAY “JIYVWSJ BAIT “wiajs sy Aq umouy st urydwind Asaaq ¢A10j21pesquod Jou sepWIs -Jayyieu ¢ ‘AJOYDIPSIUOD Z ‘JepuNs | :SauajUEsS BuIMO]]OJ ay jO sBuIUBaW ayy ayW ee) error ése]]Op B 103 Anq NOA ued suojje3s Auew moZy “uojje3 & syuad ST si aul]OSeH ‘eee ercececcceccee seeanenennneneneseseneseaeascnsseseenenseaanenanersseseneraanaasistisseeesersntertneserees ‘suBotqnday ‘ue ajdoad aatssas303d aWIAG ‘strmangnayy ore wat ssaursnq yoy: ‘AArssasBo3d asr uaW ssoutsng OY] 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. (Mr. Chambers) Dr. Katzell, inmconnection with the guidelines for testing, one of the questidus put to you by counsel for the defendant about the Re\ised Beta and Wonderlic being professionally developed, would you state for the record what you understand “profegsionally de- veloped” to mean? A The term is used : somewhat different senses. My interpretation of the sense in which Mr. Lowden—the sense in which Mr. Lowden et the question is whether in the process of constructing the test originally professional considerations guided the selection of items and checking out their suitability, aud it was in that sense——my interpretation of that sense of the question that I answered in the affirmative, that it was my opinion that it was professionally developed. The term “profession- ally developed’’ has also been used in a broader sense to re- fer to the degree to which professional standards have been applied, not only to the construction of the instrument it- self, but the way the instrument is applied in arriving at de- terminations of its suitability for personnel decisions. In ont ~¥ other words, in the latter sense the term is used to cover 4 not only the original construction of the instrument, but whether the whole procedure of its utilization was profes- sionally developed, which would include not only its con- struction but the extent to which evidence was secured in a local situation, as to the validity of the test, its reliability, and the determination of norms regarding how applicants or employees of that organization performed on the test. App. 3566 Sets ey She ea). STE Q So, for us laymen, professionally developed could mean that a group of professionals got together and de- vised a test, following the procedure’ that is considered to be standard procedure for developing atest? A Right. .Q. And it could also mean, for us laymen, the use of the test to insure validity in measuring what you want to? A Yes. The distinction is whether the instrument is pro- fessionally developed or the program for the use is profes- sionally developed. That is, one could have a professionally developed instrument which then is abused by incompetent people in building this instrument into a selection program, and if that were the case, I-don’t think it would be appro- priate to say that the program of testing in a given organi- zation was professionally developed, even though a pro- fessionally developed instrument may be used as part of it. * * * i | Q (Mr. Chambers) Dr. Katzell, in your development or work on the guidelines for testing for OFCC, was it your understanding that professionally developed tests which are permitted to be used under the guidelines would include both those that are professionally developed in terms of the way that the questions are selected, and so forth, and also the professional use of the test? App. 367 Mr. Lowden: Just—before he answers that, we take the position that what is—OFCC does has no relevancy be- cause this is a Title VII case. Mr. Chambers: You can still answer it, Doctor. A Yes. The OFCC order addresses itself primarily to the way in which tests are used, that is, the way they are actually built into a program of selection rather tha to the mechanics of devising the instrument. Q (Mr. Chambers) Would that also be true of the guidelines for testing of the Equal Employment Oppor- tunity Commission? A_ Yes, it would be in my judgment. Q Have you published any material relative to testing, that you have had published? A Yes, I have. Q Doyou have your Vitae with you? A No, Ido not. Q Could you name some of the publications? A Yes. Q At this time, Dr. Katzell, rather than go through the list of publications, I will show you a document entitled “Testing [and] Fair Employment” and ask you if you were one of the co-editors of that publication? A One of the co-authors. Q Coauthors? A_ Yes. Q Now would you state, for the record, what the pur- pose of this study was? A_ Yes. This document you have shown is a—is [primarily] a report of a research project conducted by myself and my colleagues at New York Uni- versity under the auspices of the Ford Foundation, the study having had the objective of determining in a sample of work situations the extent to which tests were or were not simi- larly valid for different ethnic groups, and whether or not —_— DAA OE RTI rie i TE CRG eRe TE: 34 _) ee ae —— 7 seen TO ORES SET ALE BNO OI 9 FE p's cahed efor oer / App. 368 there was evidence of unfairness of the test when applied to members of different ethnic groups. Q Did you find in your study any differences in the performances of various ethnic groups on certain tests? A_ Yes, we did. Q Did you find in your study any fallibility on the cor- relation of test performances by various ethnic groups and their performances on the job? Mr. Lowden: Would you read the question? (Question Read) © A Well, I am not sure I understand your question. Q (Mr. Chambers) Let me rephrase it. Would | you tell us what you found in your study? A Well, one thing we found was that there is not a stable picture about the validity of tests for ethnic groups or the fairness of such tests of different ethnic groups from one situation to fhe next. In other words, we did find instances where there were—the tests were equally valid or invalid for different ethnic groups in the sense that the job performance of mem- bers of one ethnic group [was] not underestimated on the basis of their test scores. In other words, their job per-. formance was in line with their test scores just as the job performance of other ethnic groups [was] in line. We also found [instances]' where members of one ethnic group might tend to get lower scores on the test but not perform their job less adequately, and instances of the latter sort were those that we identify as being unfair to members of the group that obtained the lower test scores. . i. * App. 369 [DEP. PP. 27-48] Q What are your views on the value of paper and pencil tests for selecting personnel? A Well, I generally believe that paper and pencil tests can potentially be a highly useful technique for determining the qualifications of job applicants or candidates for transfer or promotion, and both in my own experience and through many citations in the literature of the field, we know of instances where paper and pencil tests have been found to be substantial indicators of the suitability of a person for performing a job. However, we also know that whether or not a paper and pencil test will, in fact, have the utility that it is po- tentially capable of having depends on its proper utilization. So that one can’t on a blanket basis say that all tests are useful under all circumstances or no tests are useful uider any circumstances. [Simply]: potentially the strategy of testing can be [useful] if properly [implemented] accord- ing to certain professional standards which have been de- veloped in the field over [the several decades that], the tests have been used for selection. Q What, then, would be some of the conditions of proper use that would make tests desirable? A Well. the critical point is that the test must be job relevant. Now, to be sure that a test is indeed job relevant, that it does indeed indicate the suitability of placement for a given individual . ina given job, there are certain procedures that are widely acceptable standard procedures for doing this. For example, an initial critical step in developing a testing program for personnel selection is to study the job or jobs in question very thoroughly as a basis for estimating those human capabilities and traits that are critical to the adequate per- formance of the job. This is a step that in the parlance of the field is spoken of as job analysis. i POITIER MOD NG TELLER lla ad fear ‘ Di LO ORE EIN tga ON NGM Reh 04 eI Ae TNT ete Pay ray App. 370 On the basis of such a careful job analysis an experienced test specialist can surmise tentatively what tests may have the capacity to measure the abilities and traits that are ap- parently germane to that job. That is a matter of judgment, of course, still at this stage. It depends on the test special- ist’s [assessment] of the relevant characteristics based on his job analysis, and it is always a matter of judgment based on his knowledge of tests and which tests in the past, through research, have been shown to have some accuracy in assessing the particular qualities in question. In order to see whether these judgments or surmises are in fact true, it is necessary to conduct a validation study. A valida- tion study in effect consists of studying a sample of em- ployees by means of a test, that is, administering the test to the sample of employees, and also obtaining one or more criteria of their ability to perform the job. These may be production records; they may be ratings by supervisors who have intimate knowledge of the work performance of the individuals in question, and the like. The study then consists of determining the extent to which the scores that people obtain on the tests are correlated with or paralleled by their performance on these indicators or criteria of job effectiveness. If the result is that the test scores do in fact parallel the job criteria, that is, those people who get higher test scores are also those whose ratings of job effectiveness are higher, and those of lower test scores are those whose ratings of job competence are lower, then in the termi- nology of the field we speak of such a test as being valid. It is valid to the extent that the scores on the tests are correlated with criteria of actual job performance. So this is a critical step, to see whether in fact this validity exists. It is possible, of course, and it is not infrequently the case, that a test which in the judgment of the test specialist appears like it may be valid for a job turns out not to be App. 371 so, and [when] actual validation study is performed. This is because, for some reason, the specialist made misjudg- ment of the element involved. If the test is found to be valid on the basis of such a study, another important step is to determine what level of test performance seems to be, such as to differentiate those who are likely to be good job incumbents from those who are likely to be less satisfactory incumbents on the job. And this is often called a cut-off score or a critical score, and this again is empirically determined from the data: by comparing the scores of the better performers on the job with the scores of the poorer performers, or of the scores of those succeeding with those whe fail, it is possible to determine a score or range of scores that distinguishes those of the greater likelihood of success and those with the poorer likelihood of success and to use this as a guide in the future personnel decisions of new people that come along and take these tests. So that, to summarize the three’ critical steps, the per- formance of the job analysis, the validity study of the test presumed to be—assumed to be helpful on the basis of the job analysis to determine whether in fact the tests are valid, and, thirdly, the determination of scores, cut-off scores, to serve as guides for judging the—whether an employee’s performance is such as to lead him likely to be an acceptable or unacceptable employee. * * x Q (Mr. Chambers) You spoke of job relevance. I gather you were talking about job analysis, or what do you mean? A_ Yes, I think all of these steps that I described are important to determining whether or not the test and the standard of employment based on the test are in fact relevant SRE ORS URE ty ete reer CEL EGE TIT aN TS te ean AOI Stee ps BSR ae! App. 372 to the individual’s job capabilities. And if—if these steps were not performed, or not performed satisfactorily, there would be a high risk that the tests were not in fact job rele- vant, that is, that a person’s score on the test cannot properly be taken as an accurate indicator of his job suitability, or that the standard that was used in judging him might be one that excluded him from the job when, in fact, the data might show that he in fact possessed enough of the ability represented by the test so that he could be a satisfactory incumbent of the position. I might add another point in terms of this professional application of tests for purposes | of selection, And that is that if the test is going to be used | for a sample of job applicants or candidates who are hetero- | geneous with respect to some characteristic that might affect their test performance, then it is essential test prac- tice to [conduct] these empirical validation studies practi- cally for each of the subject groups of such employees constituting the heterogeneous sample. Samples might be heterogeneous with respect to sex, for example, and it may very well be the significance of a given test score for a woman might not be necessarily the same indicator in terms of job suitability as for a man, or more appropriately, as the case before us here, it is also quite possible that the test scores don’t have identical meanings for a sample of culturally disadvantaged or educationally disadvantaged persons as compared to a sample of culturally or education- ally more advanced persons. And the guidelines that are ap- plicable inySuch instances, then, is to separately ascertain for each of the ethnic or culture groups involved what de- gree of validity there is between the scores on the test and criteria job performance, and, also, what is the relevant cut-off score or differentiation of those who are more likely to succeed from those who are less likely to succeed. PREPARE ENE ES ES L App. 373 I wonder if I might use that to maybe just explain a little more fully some of the terms I have used. I mentioned before that the term “validity” is used to refer to the degree to which scores on a test correlate with some measures or criteria of actual job performance. The relevance of that concept to this question of dealing with two or more ethnic groups is that it is possible for a test to be suitably valid for one ethnic group but not for an- other. If that were the case, it might be perfectly acceptable practice technically for the company to use the test for employing people of Group A, but it wouldn’t be much point of using the test for persons of Group B, because the test wouldn’t have the same relevance to illuminating their likely job performance and therefore would be inappro- priate to use for them. Also, the test might prove to be invalid for either group as in the case of the Kaiser group and/or it might prove to be valid for both groups. And we have an example of a set of studies that I was co-author of, an example where the tests were approximately equally valid for two ethnic groups. There is another example that I got into earlier about cut-off scores, to which I referred a little bit. That is the concept of fairness. A test may be valid for two ethnic groups, each of two ethnic groups, and yet it is possible for it to be unfair to one of those groups relative to the other group. That is because it is possible for a test to underestimate the job performance of members of one ethnic group relative to what is [estimated] for members of another ethnic group. Thus, for example, for members of one race it-might be that the cut-off scores that differentiate those who are likely to succeed from those who are likely to fail as a score of—just to name an arbi- trary figure—of 20, but for the other ethnic group, when it is studied separately, it might be in the neighborhood of —take a score of 15, let us say. That score of 15 would be — — App. 374 equally indicative of ability to do the job as was true of the score of 20 for the other group. You might wonder why this might be. This might be because there are certain factors in the makeup and back- ground of individuals in one ethnic group that adversely affect their test performance. A test like this would be technically unfair and discriminatory between the groups. And for this reason it is, especially in the light of the Civil Rights Act, and the OFCC, the EEOC, that the psy- chological profession, having been alerted to these kinds of problems of fair employment, is now accepting as a guide- line for satisfactory professional practice the separate vali- | dation and the separate determination of cut-off scores for the various ethnic groups that are present in the labor | force or potential labor force in appreciable numbers. | Q Now, Dr. Katzell, if you were an employer and con- | sidering instituting a test as a requirement for an em- ployee. would you just give us the steps that would be generally accepted in the profession for the employer to follow in selecting and instituting the test? A I think that this is a technical area. Amateurs in it are too likely to make mistakes. And I think an employer would be well advised, if he were planning to institute testing programs, to see that he had the guidance and counsel of experienced personnel and testing personnel. I think if he did that, he would find that the advice given to him, or the work done by this employee that he brought in to do this work for him, would follow pretty much the lines that I have mentioned earlier. That the test specialist would, first of all, try to identify in which areas of employment there are—there_. do seem to be [selection] problems and where there are some evidences that whatever methods you are now using don’t vield satisfactory employees, and having identified cer- * SR SS LEE NEEL SEL TELEOY LP LP TEN he . App. 375 tain kinds of jobs and certain ladders of progression [where] ,there seem to be a high frequency of unsatis- factory employees. We might then take these as our target to see whether we couldn’t develop a testing program. Once having identified those, we would go through the steps that we have indicated before, that is, doing this job analysis, trying out the tests that seemed to be suitable on the basis of job analysis on a sample of either current incumbents trying to test them on some [applicants], trying to follow them on up after placed on the job, in both instances to see how the test works out when compared to some distinct separate measure of job success or job [effectiveness : then we would analyze these data] to see whether the validity is sufficient to be able to warrant using on [the tests] for personnel [decisions. If there were] heterogeneoused—at least two ethnic groups present in some appreciable number, then to undertake to see that the validation study was done separately on each of the ethnic groups involved. And, also, that I would check to see that the cut-off scores that were established on the basis of the test were indicative of the same probability of job success for each of the ethnic groups involved. Q Let me see if we can put that in layman's terms. Let's start, first of all, with the job analysis. Would that include the determination of what the job position would require in terms of what the employee would actually do in the job position? A That is correct. Q In other words, the employer would take Position “A” and determine what the employee would do in Posi- tion “A”? A Include a description of the actual abilities and behaviors that an individual performs in accomplishing this job, the responsibilities and duties. Beyond that, it also involves an assessment of those knowledges, skills, and ee i App. 376 other human traits and characteristics that are entailed in performing this job. So it is what does the individual do.and what kind of a person must he be in terms of his knowledge and aptitude, and [some] in order to do—to be able to do arid execute those responsibilities competently. Q And if one were looking at a department, one would look at all the job positions in a department; if one were going to use a test in selecting employees in a department, one would look at all the job positions withi.. the depart- ment? A Yes. Certainly, those that were related in terms of some progression ladder, because, typically, when one wishes to consider an employee, he considered him not only from the standard of his initial position, but if there is some likelihood that he is going to be progressing in that ladder with reasonable rapidity, then he would be considered in terms of his suitability for the next higher job as well. Q Now, the second point that you mentioned that would be considered in the job analysis, that being the qualities or attributes that an individual would have to have in order to perform a job, would be a subjective de- termination initiated by the employer to determine what things he really wanted to measure with the test? A Yes. Ideally, this should be done, again, by a professional who is experienced in this kind of thing because the judgment is not easily made. In other words, what I am suggesting is both the determinations of the job duties and the judg- - ments regarding the capabilities involved in performing the job should be made by an experienced individual in the personnel field. | | | ! -Q Along that same vein, and if one department would require certain attributes, would it necessarily follow that each department within the plant itself would require those same attributes? A No, sir. It would not necessarily i i a NE a te SNM Ater eM App. 377 follow. Certain jobs might require different attributes than other jobs, or even if the same attributes were involved, certain jobs night require them at a minimum level that was different from the minimum level involved in another job. Q In this instance one would be talking about a test measuring different attributes? A That’s right. You have different test standards in such a case. Q Now, after the company had made this job analysis, the next step would be selecting the test to measure those attributes that the company felt were necessary for the particular job or position? A That’s correct. Q And I gather that there are thousands of tests in - the field? A That is correct. Q Now, how would one go about selecting the test? A This again is a judgmental matter. The professional in the field iz generally—should be knowledgeable about the way in which the use of the test. in the past in other situations has shown it to be relevant to the traits or attributes that seem to be involved in this particular company—the jobs in this particular company. He knows this partly from his own personal experience if he's worked along these lines in the past. And, of course, there is an extensive body of literature in which there have been records of experience with tests being tried out at various kinds of companies— various kinds of job situations, so it would be his knowl- edge of which tests, based on past experience, have shown some promise of measuring the traits and abilities that ap- pear to be involved in the jobs in question that would lead to decision that the test appears to be promising for use for this particular job, whereas, Test “B”, “C’, “D”, and “E” seem to be less suitable. — App. 378 Q Now, since we have made the job analysis and have selected tests, or a battery of tests, the next step would be the validation of the test? A That’s correct. Q And I think you defined that as determination of whether there was any correlation between the test per- formance and the performance of the individual on the job? A Correct. Q Now, how would one proceed in validating the test, and let’s assume the heterogeneous group that the employer was going to pick from? A_ Ethnically heterogeneous, you mean, for example? Q Right. A Well, there are two basic strategies that can be followed there. The one that most specialists in this field would generally recommend be followed, if feasible. is to administer this test—let’s assume for the purposes of illustration that we are talking about only one test, the same principle that applied when we felt it desirable to use two, three, or four. Let’s speak of one for this purpose—would be to administer this test to job applicants or candidates for this type of position and then to make the decision as to whether to hire or not to hire these candidates on grounds other than their performance on the test. In other words, the test would be administered, and only for try-out purposes anyway, and not as a basis for personnel decisions. After a sufficient number of persons had been hired so that one could have a fairly stable finding based not on just a handful of people, but a substantial sample of 25, 30, 50 people, one would then follow up their subsequent job history to see which—to see how well they measured up in terms of their actual job effectiveness, using one or more of these criteria of job performance to which I alluded earlier. And then one would statistically de.ermine the degree of correlation between the scores ERIS TE IE AIEEE LIE TIS NII INE IE ORO IER NEE on eles, ial iil aici tie OTL IRED Stat ts ae neem aed a sasaseiad ctteianonsareenast App. 379 these candidates had had when they were initially hired with their subsequent history of job effectiveness to see whether the test is sufficiently valid. If the sample were ethnically heterogeneous as suggested by your question in making this analysis the members of the different ethnic groups should be analyzed separately to see whether the test is equally valid for the two or more ethnic groups involved. And at the same time, of course, these same data would provide a basis for determining what minimum score level is relevant to |differentiating.] those who ex- perience showed turned out to be the more satisfactory employees from those who experience showed turned out were the less satisfactory. I did mention there were two strategies. The first. the one that T have just been describing, is call predictive vali- dation. for reasons that vou can see. that is, that the test scores are not used as a basis for personne! decisions, but are just kept in the file, as it were. and later determination is made to see how well the scores of these people who— have predicted their future performance. Now there is another strategy that is sometime followed for the sake of getting more rapid results, because this [aforementioned] predictive strategy is—obviously takes some time before the data can be developed. You have to hire enough people and let them be on the job long enough in order to get the data, and this may be a matter of a year or two years before you have a reading on how well the test is working, and if one, for practical reasons, feels it is necessary to have a prompter or quicker answer for the purposes of validity, then a second [strategy ]—which is less desirable on technical grounds, but may be desirable on practical grounds—is adopted. and this is a strategy called a strategy of concurrent validity. That is. here, in- stead of applying the test to a sample of new job can- App. 380 didates, the test is administered on an experimental basis to a sample of current employees who occupy the job or jobs in question, and their scores on the tests are com- pared with records of their job capability so that the test scores and the criteria data are simultaneously available and could be compared at once, and, therefore, a quicker reading can be made. Technically, this is a less desirable procedure because whatever the process that was used in screening out employees and whatever the processes in- volved underlying the attributes of employees on the job, it may very well be that some employees who were poten- tially satisfactory have already been excluded from the sample because you are dealing with a current work group so you don’t get as good a picture as you would with the predictive validity strategy. Q If one selected the predictive analysis approach, would one in the profession begin with using the test as a _ means for employing persons or just get the test scores and make the determination to employ on some other basis, and then follow the employees to determine the minimum score that one would use? A_ It would be that latter. That is, ideally, the test should not—since it has not been proved out—should not be used as a basis for the employ- ment decision but some other basis should be used. Q Would that also be true, Dr. Katzell, of the con- current approach? A_ Yes. It is needed in the concurrent approach because of course the personnel have already been employed on some other basis and, of course, the test data were probably not available for them at the time they were hired. Q Now I gather that during this validation test that one might find that some of the attributes that one con- App. 381 sidered to b& necessary, and considered necessary to be measured, would not be required for one to adequately— to perform the job? A _ That is correct. In other words, not infrequently we find that some tests that we thought | measured a relevant attribute turns out not to be valid. Q And one might also find that the test that one initially selected does not really meaure what is necessary for the job? A That is correct. Q Now could you tell us something about the form of a cut-off score? I understood your testimony that during this validation test or analysis that one would come up -with a cut-off score in the process. Now is this a hard and fast inflexible score that is generally used or does it have some flexibility, too? A _ It is generally not advisable to ' have a single hard, fast, inflexible score as a cut-off, the reason being that tests—even the best of them—are not a hundred percent accurate. In addition to this, there is the fact that virtually all test proféssionals will recommend strongly that tests not be used as the sole basis for a per- sonnel decision, so that other factors should be taken into account and, therefore, that if there were strong [basis | from a person’s previous work history, for example, that he was a competent employee and his test score was a little bit lower than that of some other [person’s where] there wasn’t much evidence that this person was a competent employee in terms of his previous job. performance, you might give preference to the first of the two even though the test score may be lower, because you should be taking this other into account. So we usually think of ranges of acceptable test scores rather than some single, hard and fast score that is minimally accepted. * * * —_— PAAR SE AILEY 22 LP MOTEL OO Oe 5 Rea eenamemenneee OR ee rm ‘ ‘ , ; Lf ! .. ' ; App. 382 fae. pp. 50-53] Q. (Mr. Chambers) Now, Dr. Katzell, bases at the question of the possible discrimination between blacks in ; testinyz, would you tell us whether there are any other factors that the profession would take into consideration in selecting the type of.test and the procedure that should be followed? You have testified earlier that if one were testing a heterogeneous group, that one might find it neces- sary to develop different norms for the various groups with- in it. Now, would you elaborate on that further and tell us why this would be necessary? A_ It has many times been shown that ordinarily the average score obtained by a group of black people in the United States are somewhat lower than the average scores obtained on the same test by a group of whites coming from the same general area of the country. The reasons for this are not entirely clear and there are probably a number of reasons rather than just some one ° reason. Some of these reasons, however, may be of a sort which depressed the level of test performance of the é average black without having a similar depressing effect on his actual job capability. For example, in many parts of the country, if not most, blacks obtain inferior schooling to whites, so that insofar as a particular test was likely to be affected by educational background, the black would be at a disadvantage. If the job were of a sort in which this kind of school learning was not particularly relevant, then you could see that the blacks as a group would tend to get poorer test scores without necessarily as a group, being less adequate performers on the job. Blacks as a group tend to be particularly disadvantaged on verbal tests. Thus, again, would be—if it were a job that did not rely heavily on verbal skills, verbal aptitudes for adequate per- App. 383 formance, as is true in the case of many mechanically - skilled occupations, the blacks might be disadvantaged as compared to whites. It has also been found that blacks somehow do not do as well on tests, under some of the usual conditions that tests are taken, as do whites, and that if these conditions are changed, they might do relevantly better. For example, blacks particularly those in cultural backgrounds where they are not accustomed to having close working relation- ships with whites, seem to have their performance on tests adversely affected by a white examiner on the test perhaps because such an examiner is seen as a somewhat threatening or anxiety inducing figure even if he doesn’t intend to be. Blacks—some studies of blacks have shown that they are not as responsive to performance of tests under highly speeded conditions, as many tests require; that is, where there are tight time limits and performance depends large- ly on how much you can accomplish within the short time allowed. Now, again this may not be something they carry over to the job if the job didn’t have that kind of a counter- part to it. I have just given illustrations then, and these are by no means exhaustive, of some of the circumstances that may be associated with lower average test performance of blacks as compared to whites that may have no particular counter- part in the actual job condition or job performance. And to the extent that this would [happen, your] empirical vali- dation study, if one were to be performed along the lines that I, have already prescribed, could very well show what I have called unfair discrimination, that is, depictive of the black applicant population tends to be lower in relation to this actual job capability than is true of a white popu- lation. And if a count were not taken of this difference, eT ae — ' App.384 | | the net effect of this could be dienecputt nate exclusion of otherwise qualified biacks. * * x [ DEP. PP. 56-67 ] ~ A_ I wonder if I might comment, before I go on to your next question, on something you were asking a little bit ago and I realized I wanted to add something in the course of giving my comments that I forgot. You were asking a little bit ago—I guess it was the ques- tion before this last set—about the—about some special considerations that might affect testing black people. And I was indicating that there are certain conditions that might depress test performance without necessarily affecting their job performance—was the general thrust of my response. In the course of this I indicated that the average black in most localities gets less adequate schooling, and for other . reasons as well, is particularly handicapped in certain other verbal kinds of tests. It has sometimes been assumed that it is possible to avoid this disadvantage for the average black by using so-called culture free or culture fair tests, perhaps of a non-verbal nature or in other ways somehow not getting at things that are too~closely related to school background and the other kinds of things that we think are characteristic of the cultural mainstream in this country. I must say it is my judgment—and I think most psy- chologists would concur in this—that the search for culture free tests has so far not been successful. The attempt to use non-verbal tests, for example, has not proven a solution to the deficit in test performance that blacks show in relation to whites. Again, the reason is not necessarily that the black man is proportionately less capable than the white man, but it may be something linked specifically to performing on App. 385 tests. It may have something to do, for example, with the test environment as I have already explained, Blacks are less responsive to some of the speeded conditions, tend to be more anxious when confronted with an examiner, and so on, and this would be true whether it was a verbal test or a non-verbal test, but beyond the cultural deficit experienced by blacks in their educational background and in their home backgrounds that are related to educational kinds of con- siderations, transcend simply the disadvantages in using and understanding words because it carries over to a whole set of ability to cope with certain kinds of abstract rela- tionships that are characteristic of the kinds of learnings and mental processes that go along with the advantaged dominant white culture and the kinds of schooling that we give our children. So, that the cultural disadvantaged, you see, is not—for a variety of reasons—is not evaded simply by taking a test that has relatively little verbal contact, be- cause the mental processes involved in coping with verbal type materials can be present also in non-verbal materials. To illustrate, there are tests such as are included in the specimens that we have been talking about that involve space relationships and you are’supposed to match up cer- tain kinds of figures. Well, one way of coping with these kinds of figures is to speak—is to put it in verbal terms, that is, this figure looks like a triangle and this figure looks like a square, and so on, and that in matching up, even though terms aren’t verbal, the thought processes are rooted in words, and just-by using the non-verbal terms you don’t get around the problems of relying on mental processes that have symbolic verbal tyj¢ aspects to them. Q Dr. Katzell, you stated earlier that you had had an opportunity to examine some of the documents that have been gathered in connection with this c>se I think, includ- ing the testimony of Mr. Bryant, Mr. Moore, Mr. Palmer, in — Re METRE OMRON CN Pete ANC i | App. 386 addition to answers to interrogatories and other exhibits. Did you in your study of this case have an opportunity to find out the procedure that was followed at Albemarle Paper Company in the institution of the testing requirement there? A Well, the testimony of Mr. Bryant was— contained a fair amount of information about the pro- cedures that were followed in installing the tests, so that— but that is the source of my information. And to the extent that that is an accurate picture of what was actually fol- lowed in the company, I think I do have some familiarity with it. | ak t Phen Q Did you find in your study’ of the procedure that was followed any difference in what you indicated was the normal accepted practice in the Profession? A _ Yes, sir. There were several respects in which—what I understand the procedure to have been, deviated from the kinds of standards that I have outlined in my earlier deposition. Q Would vou tell us what those deviations are, or were? A Well, of course, there were two different tests—there are two different tests used by the company, and somewhat | different procedures, as I understand it, were followed in those two cases. . Let me take first the case of the Army Beta Test. Mr. Bryant referred to a validation study that was performed of that test in the company by, I believe, a Mr. Warren. It was not clear, however, from his testimony, that there | was ever the kind of systematic job. analysis performed of those positions in question. And it is my understanding that there are no formal job descriptions that cover that set of jobs that is in existence. The procedure mentioned there of validation corresponds in a general way to what I have termed the concurrent validation procedure, that is, the test was administered to a sample of current employees PU ae he ahi sa a App. 387 of the Albemarle Paper Company. Supervisors’ ratings of some sort were obtained. And, according to Mr. Bryant’s testimony, apparently it was found that there was some substantial degree of relationship between the scores on the tests and those ratings, although just how high that relationship was is not specified in the testimony. The sample of positions covered in the validation study is not—likewise, not specified, other than reference to skilled people, to skilled jobs, so it is not entirely clear whether the jobs covered were all the relevant jobs or just some of them, which doesn’t necessarily mean that it wasn’t a prop- erly conducted study. It just means that it is not clear that it [is] because—conceivably, because if the jobs covered did not adequately represent the range of positions for which the test is being used, then the finding that the test was valid in that set of jobs does not necessarily speak for its validity in the other jobs for which it is being used, you see. Also, in another respect, the testimony suggests a de- parture from the standards that [I] have proposed here, and that since there were apparently practically no Negroes employed in those skilled jobs as of the time Mr. Warren wy conducted the study, we can assume that no separate valida- — tion or setting of cut-off scores was done for each of the two races, which would represent in my judgment an ex- tremely important departure in view of the fact that the test is now being used to determine eligibility of Negroes for employment. Now, with respect to the Wonderlic Personnel Test— Q Let me go back to the Beta so that we can clear that up for the record, too. You said that the information shows also a deviation in the fact that there were no Negroes in. the more skilled or more highly paid job categories and there was, therefore, no determinations, or could be no t — IES RRR TIAN EE NRE RE TERE Fi apre ce Te App. 388 determinations of the job performances of Negroes, so in layman’s terms would you be saying that you don’t have any validation of Negroes of the Beta Test in this plant in the more skilled or highly paying lines of progression? A To my knowledge that is correct. To my knowledge there is no information developed at this plant about the validity of the Beta [for Negroes] in any jobs. Q In any jobs. A_ Incidentally, I don’t know that there were no Negroes included in the sample. I judge from the information given that if there were some there were very few, so in any event the accuracy of the test—the validity of the test for Negroes as a group was never estab- lished. Q And I think that in your earlier testimony you said that the concurrent approach of validation had some se- rious effects, also? A Yes, it is less desirable, but it doesn’t—it is an acceptable method, although less desirable, but I think particularly the deviation comes here from the - | fact that really nothing can be said about the validity of | this test for Negro candidates for these skilled jobs, and we are not even sure that the jobs covered in the valida- tion study were the critical ones that are at issue with respect to providing skilled employment opportunities for Negroes in this company since the jobs covered in the study are unspecified. Q You were beginning to tell us some of the deviations in the company’s institution of the Wonderlic Test. A Yes, sir. Again, in the case of the Wonderlic there was no systematic—no reference to any systematic job analysis as a basis for deciding that a test like the Wonderlic would be appropriate to use. Moreover, the Wonderlic—moreover, there was no validation study conducted of the Wonderlic App. 389 in this company according to Mr. Bryant’s testimony. So, in this case we not only don’t know whether the test was valid for Negroes, but we don’t even know whether it was valid for whites for this class of jobs in this company. Furthermore, the cut-offs that were adopted—the cut- off, I should say. Singular. The cut-off that was adopted for the Wonderlic Test was established as near as I can determine from the testimony on the basis of what was referred to as national norms, that is presumable. In the norms that are provided by the publisher of the Wonderlic Test, they do provide some kinds of suggested cut-off for different kinds of occupations. So, I assume some effort was made to judge from that.information provided the cut- off that was most nearly maybe comparable to the jobs in question here, and to adopt that. That is a highly question- able procedure, not only in—for the general reasons that I have indicated in my earlier testimony, namely, that cut- offs should be determined empirically on the basis of ex- perience in a given company, but that it is widely known that cut-offs, even if they are established for somewhat similar jobs, somewhere else in the country, are not neces- sarily applicable to a given situation in a given plant. There may be sufficient differences in the way the jobs are set up, the work requirements, and so on, to make the cut-off established in Company “X” inaccurate when applied to Company “Y.” As a matter of fact, in Exhibit 5 that’s been submitted, on the second page of that exhibit—if I may quote from Mr. Wonderlic’s own statement, referring to cut-off scores or what he calls “minimum scores” here, he says and I quote: “However, there have been minimum scores”—I’m sorry. If I may—if you would strike that. I mean to start earlier in my reference. Let me quote here: “What is needed, is to establish passing or so-called critical scores for . ~~ sd PORPY IESE BEA LIS DE Le BIST TH PREG ORI aE LES LUMO BL OPI iO a ih cto eer aman v4 App. 390 various occupations. This should be done for each com- pany since job titles are not completely descriptive. They are known to vary from plant to plant even within the same organization. Also, the critical score—the passing score—must be moved up or down, depending upon the alsa of applicants.” Paragraph. “However, there have been minimum scores established in many industries which give some basis for the experimenter to check against.” Paragraph. “A skilled industrial psychologist will un- doubtedly find variations from this: table in studying any particular group and because of this, the author hesitates to furnish these norms.” Period. End of quotation. Which is simply, again, a restatement of what I had already in- dicated, that it is widely recognized, and in my judgment even recognized by the statement of Mr. Wonderlic, that it is hazardous to adopt minimum scores or critical scores or cut-off scores from persons in other companies and other organizations and try to use that as a basis for setting pass- ing scores in one’s own company. Q Did you find any additional deviations in the Won- derlic Test? A Well, of course, again, the central point —since no validation study was conducted, we have no evidence of whether the test operates in a discriininatory fashion for blacks in relation to whites. Q Now, when you speak of no information on whether it operates in a discriminatory fashion, you are talking _ about whether its use at the Albemarle Paper plant operates ina discriminatory fashion? A That’s correct. Q Because there’s been no test by the plant to determine — = O x - x r=} eP} co We Coma” Gi z: PSD \ site, acl es ”~A bony 5. —y A. \ . Po a we. NS? SW! Via . =~ \ / ewe fo 2 6) be 7h. \\ App. 467 : TEST 4 Mark each square to show how the pieces at its left Ln\| | & =I a7 |. SE) bb 5a | Kd) [S|] S80 OO QO App. 469 TEST 5 In each picture draw what is left out. Work fast PPE eK ere App. 470 EXERCISE 6 Look at each pair of drawings or numbers, and make a mark on the dotted line if they are not alike C3 ---- ee SST 8 650 2... ell. 650 o, Y\S cannes 658049 ...........- 650849 Page 13 App. 471 TEST 6 Look at each pair of drawings or numbers, and make a mark on the dotted line if they are not alike (1) 1 ee Ol4it} 10 [4 [4 BAN esenteretig soe 3281 $5190 .............000000. 55102 482991 oo 482991 1026858 kk 1024858 590218540 wee 59012534 888172902, 881872902 631027594 6... 681027594 2499901854 2.0.2... 2499901534 2261059310 «22.2.6... 2261659310 2911038227) 22... 2911038227 818377752)... 313377752 1012988567 ............ 1012938567 7166220988 ............ 7162220988 8177628449 2.0... 8177682449 468672663 468672668 9104529003 ............ 9194529003 8484657120 ..........., 8484657210 8588172556 ..... 28... 8581722556 $120166671 ............ 3120166671 7611848879 «©... 2... 76111345879 Oo) 26557239164 ............ 26557289164 8819002841 ............ 8819002341 CS) eee. 6571018034 ............ 6571018034 =. Keyghncunceuass & 88779762514 ............ 38779765214 OA eee. OA 89008126557 ............ 89008126657 O32 ........8.... 0349 75658100398 ............ 75658100398 OVO. AVS 41181900726 ............ 41181900726 ti) Oe 6543920817 ............ 6548920871 Page 14 Be... | | App. 472 DEFENDANT HALIFAX LOCAL NO. 425’s EXHIBIT NO. 2 Letter from K. D. Running to David L. Mills Dated September 23, 1968 Albemarle Paper Company Roanoke Rapids Division Roanoke Rapids, North Carolina 27870 September 23, 1968 Mr. David L. Mills President. Local No. 425 United Papermakers and Paperworkers Roanoke Rapids, North Carolina 27870 Dear Mr. Mills: You and the Union Committee have requested that the Company write you concerning what we have done and are continuing to do to provide more work for long-service employees who are on the extra board. You brought to our attention a few months ago that some of these employees were not getting much work. Since that time, we have taken a number of steps which have resulted in these employees getting more work. We plan to continue to do the things that we have already done to provide them with more work and seek out other ways of favoring these employees with the available work. I think you will agree that both the Company and the Union are very much concerned that these long-service employees receive as much work as can reasonably be provided in line with their qualifications. Sincerely yours, K. D. Running Vice President KDR /j ~~ App. +73 In The UNITED STATES DISTRICT COURT FOR THE Eastern District of North Carolina Wilson Division Civil No. 989 Joseph P. Moody, et al., Plaintiffs, Vv. Albemarle Paper Company, A Virginia Corporation, et al., Defendants, and Albemarle Paper Company, A Delaware Corporation; Hoerner Waldorf Corporation, A Delaware Corporation: First Alpaco Corporation;and Ethyl Corporation, A Virginia Corporation, Additional Defendants. MEMORANDUM OPINION AND ORDER [Filed November 9, 1971] — App. 474 ~ APPENDIX A OPINION OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA Dupree, District Judge :—Plaintiffs brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., on their own behalf and on behalf of other Negroes similarly situated, alleging violations by their em- ployer and their local union of their rights to equal employ- ment opportunities. Jurisdiction is vested in this court by the Act and by 28 U.S.C. § 1343. The named plaintiffs are citizens of the United States and of the State of North Carolina, residing in Halifax County, North Carolina. On July 15, 1971, this court entered an order allowing the action to be prosecuted as a class action under Rule 23 of the Federal Rules of Civil Procedure, and the class was defined as (1) all Negroes employed at the Roanoke Rapids plant of Albemarle Paper Company as of June 30, 1967; (2) all Negroes employed at said plant after June 30, 1967, except those whose initial permanent positions were not job classifications limited to or predominantly staffed by-Negroes; and (3) all Negroes who may hereafter apply for or be employed at said Roanoke Rapids plant who may be affected by the alleged racially-discriminatory employment practices of the de- fendants. The alleged discriminatory_employment practices have occurred at a pulp and paper plant in Roanoke Rapids, North Carolina. The multitude.of defendants is explained by changes in the corporate ownership of the plant which have occurred since the institution of this action more than five years ago. However, the operation at Roanoke Rapids has at all pertinent times been called the Albemarle Paper Company and, therefore, for purposes of discussion, unless App. 475 clarity otherwise dictates, such operation will be referred to as “Albemarle.” The action encompasses all aspects of the hiring and promotion practices within the Roanoke Rapids facility and the application of the provisions of the collective bar- gaining agreements entered into by it with the defend- ant Union. The essential issues relate to the educational and testing requirements for employment and promo- tion utilized at the plant and the effects of the “job seniority” system embodied in the respective union con- tracts. This cause was tried by this court without a jury, and having considered the evidence, briefs, oral arguments and the voluminous five-year accumulation of pleadings and other court papers, the court makes the following Findings of Fact 1. On May 9, 1966 the named plaintiffs filed charges against Albemarle, Halifax Local No. 425 and United Papermakers and Paperworkers, AFL-CIO (United Papermakers) before the Equal Employment Opportunity Commission (EEOC) pursuant to the provisions of Sec- tion 706(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(a). These charges raised the issues set forth in the complaint filed with this court. 2. Plaintiffs received letters dated July 28, 1966 from EEOC notifying them that they were entitled to file suit in federal district court under Title VII of the Act. The complaint in this action was tmery filed on August 25, 1966. 3. The paper mill was built in 1907 and it began business under the name of Halifax Paper Company. In 1937 a Vir- ginia corporation, Albemarle Paper Company, acquired the App. 476 plant. Albemarle Paper Company (Virginia), a wholly owned subsidiary of the defendant Ethyl Corporation, op- erated the piant at the time this action was filed. On Oc- tober 31, 1968, the paper mill was transferred to defendant Albemarle Paper Company, a Delaware corporation. Albe- marle Paper Company (Delaware) is a wholly owned sub- sidiary of defendant Hoerner Waldorf Corporation, a Delaware corporation. Albemarle’s (Virginia) name was changed to First Alpaco Corporation and thereafter was merged into defendant Ethyl Corporation. 4. There has been a continuation of the business in substantially the same manner in which the business was operated prior to the transfer on October 31, 1968; the plant location is the same; the work force is substantially the same; the jobs and working conditions are substantial- ly the same; the method of production is substantially the same; the products and services provided are substantially the same; and the machinery and equipment are substan- tially the same. | 5. Albemarle is a leading employer in the Roanoke | Rapids area. It pays higher wages than most, if not all, industries in the area. 6. At all pertinent times the Albemarle facility at Roa- noke Rapids has been an employer in an industry affecting interstate commerce and has more than 100 employees. 7. Defendant Local No. 425 (hereafter referred to as the “Union’’) is a labor organization which is and has been a party to collective bargaining agreements with Albemarle pertaining to production and maintenance employees at the Roanoke Rapids plant and negotiates on their behalf con- cerning the wages, terms and conditions of employment with respect to those employees. The Union is a labor organiza- App. 477 \ tion within the meaning of Section 701(d) and (e) of the Civil Rights Act of 1964, 42 U.S.C. §§ ones) and (e). 8. The operations of Albemarle, as is characteristic of pulp and paper mills throughout the United States and Canada, are organized on a departmental basis in accord- ance with the type of work performed in each department. The jobs within each department generally require skills and ability which differ from one department to another and each department has a specific function of its own in the overall operations of the mill. For purposes of employee classification and promotion, each of the departments is organized into one or more “lines of progression.” In all but exceptional circumstances, entrance of new employees into each department is effected at the lowest-paying, least responsible job of the lines of departmental progression and vacancies are filled by promotions within the lines. 9. There are over 100 different jobs at the Roanoke Rapids plant ranging from Janitorial to Complex Machine Operator. Of these, approximately 86 are jobs traditionally reserved for white persons ranging from jobs of Helper and Laborer to Machine Operator. 10. Promotion and demotion within a line of progres- sion is governed by seniority and ability. The 1965 and 1968 labor agreements provide in part that “when all factors that constitute ability are relatively equal, then ' seniority in keeping with established lines of progression within a given department shall prevail.” 11. Thus, the seniority system utilizes “job seniority” for promotions and demotions. This means that the em- ployee who has the greater seniority in the job within the line of progression immediately below the vacancy to be CRSIY PPA He sae Wa ¥ PEASE RL IEE NA DEW ME LOOT Remar A te rotary App. 478 | filled would normally be given the first opportunity to fill the vacancy even though other employees in the same job classification have more plant and departmental seniority, assuming that the person has the necessary ability, ex- perience and training to do the higher job: 12. When a layoff occurs within a line of progression or department, the employees bump downward and the most junior employees are either laid off or offered Call Board work. Employees who are returned'to the Call Board or are | laid off retain their seniority rights in their former depart- ment and line of progression, but do not have a seniority preference to an opening in a different department or line of progression. ' me “= 13. A 1965 labor agreement provided. that employees | could request transfers from one department (or line of progression) to another department (or line of progres- fe sion). This provision was contained in the labor agree- | ments prior to 1965. Whether or not the transfer was granted was within the sole discretion of the company. | If an employee transferred at his own request, his seniority in his former department or line of progression ceased im- | mediately unless within thirty days the employee returned to his former department or line of progression because of his health or physical condition. When the transfer was | affected at the request of the company, his seniority in the ' department (or line of progression) left would be retained for a period of six months from the date of transfer. An employee transferred would, therefore, enter at the bottom job in the line of progression and would suffer a reduction in pay if that job to which he was permitted to transfer carried a rate of pay less than the jo from which he had transferred. ; , hacedan Cre kasi Lie 4 8g i AO FD aa App. 479 14, This provision was amended by the 1968 labor agreement to read: “10.2.1 Employees who wish to transfer from one department (or line of progression) to another may file through their foreman with the Personnel Depart- ment 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 cr denying such request for transfer is to be final. However, when an employee transfers from one department (or line of progres- sion) to another upon his own request, his seniority in the department (and line of progression) left shall cease immediately unless within thirty (30) days from the date of such transfer the health or physical 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 When 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 trans- ferred. “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 progresses to a job in the new line of pro- _ —_— ‘ —— AE NN ML LONER AIR, YY VENETIAN RNS OW APC as pe, trom App. 480 gression which pays as much or more than his rate in his last classification in his former line of progression. An employec who is permitted to carry a higher rate to another department or line of progression shall have such rate reduced to the rate of the job to which he is transferred if the employee is deemed at the time a ‘permanent’ vacancy occurs in the next higher job in the new line of progression to be unqualified for such job, or with the Company’s approval declines a pro- motion 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 progression to obtain the training and experience necessary for promotion. In applying Section 10.2.1, if the Company decides to fill a vacancy by transferring an employee who has made application pursuant to the foregoing provisions and there are on file more than one such application for the job opening, then the Company will offer the transfer to the senior qualified employee making application.” The rate retention provision referred to in Section 10.2.3 is commonly known as “red circling.” 15. Prior to January 1, 1964, Albemarle’s lines of pro- gression were strictly segregated on the basis of race. Those lines of progression to which black employees were traditionally assigned were lower paying than the “white” lines of progression. The racial identifiability of jobs and departments in lines of progression were maintained subse- quent to the effective date of Title VII (July 2, 1965). As of June 30, 1967, the racial composition of jobs, depart- ments and lines of progression were as follows: ) App. 481 A. Wood Yard Department ." Negro White Yard Crew Crane Operator (Large) 0 9 Long Log Operator 0 4 Log Stacker Operator 0 4 Small Equipment Operator 0 + Bulldozer Operator | 0 1 Oiler 0 4 ) Chip Unloader 1 3 7 Chain Operator 0 4 Chipper Operator No. 2 Chipper Operator No. 1 4 0 Tractor Operator 5 0. Chip Bin Operator 4 0 Laborers 12 0 | Knife Grinder* 0 1 Service Crew | Dempster-Dumper 1 0 | Winch Truck Operator 3 0 Winch Truck Operator Helper 1 0 | Laborer 6 0 | B. Pu!p Mill Department Digester Operator 0 + Stock Room Operator 0 4 Stock Room First Helper 0 4 Kamyr Operator , 0 4 Stock Room Second Helper 0 4 Lead Loader-Blower 0 4 Loader 0 10 * The Knife Grinder is in the Wood Yard Department but is not in a line of progression. This position is occupied by a white person. @ SL TERETE ETL E TSMR NET LIL IN RT UT RM tn EDs VENI ARYg BEARER Be oa recA NR aes SNS App. 482 CE Recovery Operator First Helper No. 6 Second Helper Caustic Operator Lime Kiln Operator General Utility Operator By Products Operator Payloader Lancer Salt Cake Man Janitor-Dead End Job C. A Paper Mill Department Paper Machine Line Of Progression Machine Tender No. 1 Machine Tender No. 2 Back Tendeer No. 1 Third Hand No. 1 Third Hand No. 2 Fourth Hand No. 1 Fourth Hand No. 2 Front Plugger No. 1 Back Plugger No. 1 Back Plugger No. 2 Beaterman First Helper Brokeman Stock Puller Laborer D. B Paper Mill Department Machine Tender | eh COoooeo°ceeo mOoroocorooooocococse oo Back Tender S z. = COOCOONeK FH RR EE COCOA A AR ARERR ERA oC CO r 4 App. 483 Negro Third Hand Fourth Hand Fifth Hand Sixth Hand Seventh Hand Spare Hand Janitor-Dead End Job Stock Room Operator Stock Room First Helper Stock Room Second Helper E. Product Department B Papermill Sheeter Operator Rewinder Operator (large) Rewinder Operator Helper (large) Rewinder Operator (small) Sheeter Operator Helper Wrapper, Tier, Capper Rewinder Plugger Core Cutter Janitors Scale Clerk Lift Truck Operator Utility Man Laborers F. A Mill Finishing Department Lead Loader 1 Lift Truck Operator 1 Lead Tier & Wrapper 1 Wrapper, Loader & Brokeman 2 G. Boiler Department Boiler Operator 0 4 SCOOMNKFOCOOOSO S PPROUNPD DHMH OE Ay ooooworrO CO OCO NDWNOndN AL HHH ND oo°coco ; $ 4 “ . BREA OECD PINT TOG DIONE LT ET PEI TI ELIOT IG NEI SII RES AEE GALE METS - gow App. 531 press representations made three and one-half years prior to the request for additional relief.” This situation is plain- ly distinguishable from Robinson, in which the oral repre- sentation by counsel for the plaintiffs that no monetary relief was sought was made at pre-trial conference. The prejudice to Albemarle stemmed not from a failure of defenses, with which this court was concerned in Robin- son, but from the unconscionably long delay between the _ express disclaimer and the unindicated, abrupt reversal of position. Rule 54(c), Federal Rules of Civil Procedure, provides that the federal courts “shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings,” but this is not the ordinary case of a mere failure to request a specific form of relief; here there was an express and formal disclaimer of intention to seek that particular rem- edy. An.opposing party should be permitted to rely on such a statement, and to the extent that in relying thereon he has acted to his detriment,’® Rule 54(c) does not mandate the grant of the contested award.” 18 The request was first communicated to the company on June 4, 1970. 16 Illustrations of the detriment arising from the reliance of the defendants upon the express disclaimer by the plaintiffs of their in- tention to seek back pay for members of the class generally, were argued before the district court at pretrial conferences: (1) The ex- tensive period of time taken for prosecution of the suit exposed the defendants to the unexpected hazard of a potentially enormous award, - unavailable for consideration during their continued efforts to arrive at a settlement, and which threatened the financial viability of the defendant paper mill. (2) During the hiatus with respect to the back pay claim, the paper mill was sold by the defendant 4 ‘ ye Ze 3 ‘ sk e é 4 2 - 7 os ‘ j t j - 4 ne ‘ Ss jeder EEX ee Kanthal * FP Gora hy iad hee ‘ji a aiackishs Vee Mids Mili asta oe Soe --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0443%3A02. Public record. Not legal advice.