United States v. Allegheny Ludlum Industries Inc. Transcript

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION
UNITED STATES OF AMERICA, by 
WILLIAM B. SAXBE, the ATTORNEY 
GENERAL, on behalf of PETER J. 
BRENNAN, the SECRETARY OF LABOR; 
and the EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION,

Plaintiff,
vs

ALLEGHENY-LUDLUM INDUSTRIES, 
INC.; ARMCO STEEL CORPORATION,
Et Al,

Defendants

)
nuEO crtrKS

) JAN 2 0 m
)  JUUtSS t .  VAHWEGrJTT. CL€RK 

UMTK& STATES CIST«tCT, COUOT

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CIVIL ACTION 
NO. 74-P-339-S

C A P T I O N

THE ABOVE ENTITLED CAUSE came on to be 
heard before the Honorable Sam C. Pointer, Jr., 
United States District Judge, United States District 
Courthouse, Birmingham, Alabama, on January 2, 1976, 
at 9:30 A.M., when the following proceedings were 
had and done:

A P P E A R A N C E S  
Plaintiff Government:

Robert T. Moore 
Department of Justice 
Washington, D. C. 20530

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Robert W, Nichols
Equal Employment Opportunity Commission 
Washington, D. C. 20210

Defendant Companies

William K« Murray 
James R. Forman, Jr,
Thomas, Taliaferro, Forman, Burr 6e Murray 
1600 Bank for Savings Building 
Birmingham, Alabama 35203

Defendant Steelworkers

Michael Gottesman
1000 Connecticut Avenue, N.W
Washington, D, C. 20036

Jerome Cooper 
Cooper, Mitch & Crawford 
409 North 21st Street 
Birmingham, Alabama

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Petitioners for Intervention

Barry Goldstein 
10 Columbus Circle 
New York, New York 10019

Oscar W. Adams, Jr, and 
Caryl Privett 
U. W, demon and 
James K. Baker,
Adams, Baker & demon
2121 8th Avenue, North, Suite 1722
Birmingham, Alabama 35203



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1 P R O C E E D  I N G S :
2 THE COURT: Due to the number of people
3 wanting to hear the proceedings scheduled for this
4 morning, we are going to ask for special considera-
5 tion, in that it is very easy with this many people

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for there to be discussions between people sitting

7 on the benches among themselves as to what is said.
8 With this many people that type of discussion.
9 unfortunately, will create too much noise for me
10 to be able to hear and pay strict attention as to
11 what is going on. So, I am going to have to insist
12 that you hold that type of conversation and dis-
13 cussion until you get outside of this courtroom.
14 Also, there are some that would like to be
15 in here, but unfortunately, to find seats, I think.
16 as a practical matter you are going to find that you

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will need to leave simply by virtue of really not

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9 being able to hear, and that simply standing around

19 is not going to be very satisfactory. You are
20 welcome to remain standing, but we simply are out
21 of seats. I think those that have already gotten
22 seats should be allowed to retain them without
23 trying to shuffle people around.
24 The schedule before the Court for hearing
25 this morning are several motions that have been 1



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1 filed. There are three that have been filed by
2 parties to the litigation.
3 There is a motion for approval of certain
4 notice forms and release forms that have been tendered
5 to the Court on behalf of the Audit and Review

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Committee. There is a motion by the Plaintiff,

7 United States, for approval of certain proposed
8 letters to be sent out by the EEOC.
9 There is a motion by the Defendants that
10 the companies and the Union for amendment of
11 Consent Decree Number One.
12 Now, these motions were scheduled for
13 hearing at this time and the Court directed the
14 parties to send copies of these motions to all
15 persons who had litigation pending elsewhere who
16 might be affected. That is, send notices to the

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attorneys of record in those cases, even though

18 they were not attorneys of record here and also
19 directed the parties to send copies of those to
20 those persons who had previously intervened or
21 attempted to intervene in this litigation.
22 I did ask a cutoff date for any type of
23 response so that the parties and myself would be
24 more aware and have an opportunity of knowing what
25 might be presented for hearing at this time. The



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1 cutoff so established was the 29th of December.
2 I have received a series of motions and
3 memorandums from persons seeking to intervene or to
4 be heard in opposition to one or more of these motions.
5 I think very briefly I should indicate for

the record what has been presented, and with one
W

7 possible exception, I think they are all timely
8 presented.
9 There is a motion to intervene that has
10 been filed on behalf of Harris and others, Taylor
11 and others, Waker and others. Lane and others, Rogers
12 and others and Pender and others. This constitutes
13 five separate groups of classes of people who have
14 pending litigation in other courts or in this court
15 but in other cases together with one group who have
16 charges pending apparently before the EEOC, but not
17A yet in Court. I have reference there to the Pender

group.
19 I do know, although I am not sure what
20 the significance of it is, that the Ford and other
21 group did not join in the motion to intervene.
22 Secondly, there are objections filed, I take it, on
23 behalf of all of those who have attempted to
24 intervene in this fashion, objections to the proposed
25 notice, release and letters.



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1 Thirdly, there are complaints and
2 interventions and supplemental complaints and
3 intervention filed on behalf of those who have sought
4 to intervene, including the joining into the complaint
5 of intervention by Ford and others, even though they

were not named in the Application for Relief to
7 Intervene <,
8 There is pending a motion on behalf of
9 certain private actions against Republic Steel, I
10 take it this is the Waker and others and Harris and
11 others cases.
12 I received this morning, and it was filed
13 this morning, a Motion for Injunction, shown to be
14 filed on behalf of Ford and others and Harris and
15 others relating to certain activities, principally
16 involving the EEOC and its agents in the Birmingham

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area. I take it, although, I am not sure.

18 There is a motion filed, I take it, on
19 behalf of all intervenors opposing the proposed
20 amendment to the Consent Decree tendered by the
21 Defendants.
22 Finally, there is a motion on behalf of
23 all intervenors, I take it, for leave to take
24 discovery in connection with proposed amendments, if
25 the Court rules that such an amendment is possible



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1 from some set of evidence.
2 Now, there is the listing that I have of the
3 matters that have been presented, both those that
4 were filed by December 29th, and the one additional
5 item that was filed this morning.

A On behalf of myself, and I think of the
7 Court Reporters, I am going to have to ask that
8 counsel in addressing the Court, please reidentify
9 yourself for the record and if there is any signifi-
10 cant period of time between speaking once and coming
11 back and speaking a second time, reidentify yourself.
12 It seems to me that logical consideration
13 must first be given of proposed amendment to
14 Consent Decree Number One, in that what is done
15 with that proposal will affect what may be done in
16 connection with the releases and the notices and
17 the letters to be sent out, and to some degree if
18 there is a holding open of any questions dealing
19 with that amendment, it may of necessity call for
20 a holding open of questions dealing with the releases
21 being sent out and the like.
22 I am prepared, and I will be happy to hear
23 from counsel, but I am prepared to permit the
24 proposed intervenors to intervene under Rule 24(a)2
25 insofar as being heard and opposing the proposed



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amendment to the consent decree,
I think I can hold off other questions of 

intervention to some degree, but I think it should 
be clear at the outset that I think it is appropriate 
that the person seeking to intervene on that issue 
be allowed to intervene on that issue under Rule 
24(a)2.

Now, if counsel for the parties wish to 
be heard to convince me to the contrary about that 
matter, I think that would be the first thing to 
be taken up.



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1 MR. MURRAY: May I make one statement in
2 reference to that?
3 THE COURT: If you will, identify yourself,
4 Mr. Murray.
5 MR. MURRAY: My name is William K. Murray

•  ̂ speaking on behalf of the steel companies.
7 I'd like to slightly suggest a change in
8 what the Court stated in reference of the City of
9 Jackson case which was cited September 25, 1975,
10 and I have a copy of it here for the Court.
11 It's a Fifth Circuit decision. That case
12 cited Allegheny for the proposition that interven-
13 tion as a matter of right was not allowed under
14 24(a)! and I think we agree on that.
15 It also cited 24(a)2 as being improper in a
16 case that is almost identical to ours. That'case
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• involved this. A private action was filed in 1971.
18 A second private action was filed in 1973 under
19 Title VII.
20 A consent decree was entered in 1974 in a
21 pattern and practice case. The intervenors were
22 the plaintiffs in the first two private actions
23 and they attempted to intervene under 24(a)2 and
24 the Fifth Circuit held that that was improper. I
25 think that's as near as we can get on the facts and



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, 2 1 on the issues and that's all I have.

2 MR. GOTTESMAN: May it please the Court, I'm
3 Michael Gottesman. Together with Mr. Cooper I am
4 ^®P^osenting the Union in the proceedings today.
5 The Union believes that it would be more
6 appropriate if intervention on this issue were allowed

• under Rule 24(b) rather than 24(a)2 for one great
8 practical reason, and it's hard to state that reason
9 without anticipating something that will come to the
10 Court later this morning, and that is, the request
11 for discovery with respect to the Motion to Amend
12 the consent decree.
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In the Allegheny-Ludlum decision, the Fifth
14 Circuit made clear that with respect to permissive
15 intervention the Court has broad discretion to
16 assure that it will not delay the enforcement of
17A the provisions of the decree and, therefore, the

Court could grant permissive intervention under Rule
19 24(b) and stillretain discretion as to whether it
20 wants to tolerate and allow and permit in all circum-
21 stances any delay in going forward with the decree
22 which the Fifth Circuit said should go forward
23 immediately.
24 We think for -- independently we think
25 Allegheny-Ludlum makes clear that intervention is



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3 not available as of right under (a)2 because this
ou proceeding cannot as a practical matter impede or
3 impair the interests of these movants. The fact
4 is, as they have made very clear, they are going to
5 reject the offer of back pay under the decree and.
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• consequently, the amendment of the decree can have
7 no effect whatsoever on their interests. They’d
8 like to suggest the interest of others, but in terms
9 of their own interests, there can be no impeding or
10 impairing of it by the participation herein and.
11 consequently (a)2 intervention we believe is not
12 appropriate.
13 THE COURT: Would the applicants fi>r interven-
14 tion Uke to be heard on this particular question?
15 MR. GOLDSTEIN: Your Honor, we will just make
16 a couple of remarks.
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A May it please the Court, my name is Barry
18 Goldstein and I am representing the Harris applicants
19 for intervention.
20 First, Your Honor, on the Motion to Amend
21 Consent Decree, number one, it is our position that
22 we are before the Court at this time, that this is a
23 motion to alter the remand from the Fifth Circuit

. 24 in which the Harris intervenors were present and
25 that we would be present before this Court in a



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4 1 motion to alter the remand.

2 I would disagree with the Union and the
3 Company that Allegheny-Ludlum does not provide for
4 intervention as of right under 24(a)2, and I just
5 refer the Court to footnote 22. That's all.

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Thank you .

7 THE COURT: Do you have any comment about
8 the implications of the United States versus City
9 of Jackson?
10 MR. GOLDSTEIN: I read the case quite awhile
11 Your Honr, and I'd have to refresh my recollec-
12 tion on it.
13 THE COURT: It seems to me that there's some
14 degree of incompatibility between the opinion in
15 Allegheny-Ludlum from the Fifth Circuit and the
16 opinion in the Fifth Circuit in the City of Jackson,

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each case being decided within a month of the

18 other and having at least one member on each panel
19 that decided both cases. I think it is clear,
20 however, in Allegheny-Ludlum that the Fifth Circuit
21 felt that some intervention might in appropriate
22 cases be both in order and wise. There may be a
23 question as to whether it should be permitted under

V 24 24(a)2 or 24(b). I am going to sidestep that
25 issue by allowing it under 24(b) and we'll go on



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5 ' forward from that point.
Ou I am again at this point speaking only to
3 the question, however, of the proposed amendment
4 to the decree. That’s not to say that I am not
5 going to hear from the intervenors or proposed

• intervenors on the other questions but I am going
7 to hold off on it at the present time. I have
8 received a brief from the intervenors in opposition
9 to this amendment taking at least as a principal
10 point that this would be to subvert the decision
11 already rendered by the Fifth Circuit, and secondly.
12 that as of modification or reformation of the
13 decree it is not permitted under certain Supreme
14 Court decisions.
15 I have not received a brief from the moving
16 defendants and I have not received anything from
17A the United States other than a muted no answer.

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# I am interested in the position taken by

19 the United States on this Motion to Amend and I'd
20 like to hear from you, Mr. Moore, ifyou would, as
21 to your position or lack of it.
22 MR. MOORE: I am Robert Moore. I am an
23 attorney with the Department of Justice and I
24 represent the government agencies that are plain-
25 tiffs in this case.



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May it please the Court, Your Honor, the
2 government agencies believe that they are estopped
3 from asserting that any intent existed concerning
4 the scope of the releases to be signed by those
5 persons accepting back pay which is contrary to
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that set out in the defendants' moving papers.

7 This estoppel results, one, from our repre-
8 sentation made in our memorandum to this Court of
9 May 10, 1975 at page25 where we denied that an
10 employee would waive his right to sue for injunctive
11 relief to enforce consent decree, one, but conceded
12 the Harris interveners statement to be correct.
13 that the decree, and I quote, purports to require
14 black employees as a condition of receiving back
15 pay for specific discrimination to waive their right
16 to sue for such injunctive relief in addition to or
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inconsistent with the provisions of this decree

18 as may be necessary to end the discrimination or
19 the continuing effects thereof.
20 The government there pointed out in that
21 brief that such waivers were standard in the settle-
22 ment of claims and that quote a defendant cannot be
23 expected to offer compensation without the assurance
24 that he will be released from further claims.
25 Secondly, by our brief in this court of May



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1 20th, 1974 at page 8, the government again expressed
Oid its understanding that the release would include
3 waiving the right to seek further injunctive relief.
4 Thirdly, before the Fifth Circuit at the
5 oral argument of this case in response to the

• Harris intervenors' question does the release
7 contemplated by Section 18G waive an employee's
8 right to sue for additional or inconsistent injunc-
9 tive relief if the consent decrees do not eliminate
10 the continuing effects of past discrimination,
11 counsel for the government acknowledged that the
12 correct answer was yes, it was so intended, and Mr.
13 Gottesman, counsel for the Union, was authorized
14 and did so state to the Court. Each of these state-
15 ments were carefully made and they accurately
16 described the government agencies’ understanding
17A of the scope of paragraph 18G in this respect.

W 18 however, while we believe we are estopped from
19 denying that the intent was to include then the
20 scope of the reilease, the waiving of the rights
21 to seek further or different injunctive relief
22 against the continuing effect of predecree acts of
23 discrimination, we do not believe we are obligated
24 to join in the defendants' Motion to Amend the
25 decree to now conform it to that intent. As an



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officer of :this court, I would like to say that 
I think that the Court may find instructive the 
Fifth Circuit's case of West Virginia Oil and 
Gas Company versus Breece, B-r-e-e-c-e, Lumber 
Company, 213 Fed. 2nd 702, a 1954 case, along with 
two Supreme Court cases, Thompson versus Maxwell 
which will be found at 95 US 391, an 1877 case, 
and Wisconsin versus Michigan at 295 US 455. 
Otherwise, we respectfully decline to either join 
or oppose the defendants' motion but leave the 
issue to the Court.

However, in doing so, we wish to make a 
paramount concern of the Court known. Whatever 
the outcome here, we will oppose any delay in 
the tendering of hhe back pay awards to individual 
employees. Those tenders are now ready to be made 
subject only to this Court's approval of the 
release and of the notice rights and of the approval 
of the other district courts where appropriate.
If any party defendant or intervenor seeks a stay 
or causes other delays of any aspect of the full 
implementation of paragraph 18, we will oppose it 
and seek to have a bond posted to cover interest 
on back pay funds for the period of ay such delay. 
Thank you.

c>?



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9  1 THE COURT: Mr. Moore, are you saying that

2 factually you would agree with the position taken
3 by the defendants, namely, that it was the intent
4 of the contracting parties that on acceptance of
5 back pay under the decree that there would be a
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waiver by such an employee of his or her right to

7 seek injunctive relief to remedy the continuing
8 effects of predecree discrimination and that as
9 a factual matter you would have to agree that that

10 was the intent of the government agencies in any
11 event at the time of making an agreement?
12 MR. MOORE: Yes, sir, that is the understanding
13 that the government agencies had at the time that
14 this agreement was entered into.
15 THE COURT: And that that was what the
16 parties were agreeing to or intending to agree to?
17 MR. MOORE: Yes, sir, and the statements

that have subsequently been made to that effect
19 have been carefully made by the counsel who have
20 signed the briefs who represent the three agencies
21 involved.
22 Now, obviously we are talking about a large
23 number of people. I have talked with the people
24 who are still in government concerning this and
25 this is our understanding.



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1 1 will ssy , xf I may. Your Honor, we believe
o that irrespective of that, and that may be of some
3 importance later, that we are at this point estopped
4 from denying.
5 THE COURT: I think it might be helpful to
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• me at this point for the intervenors to indicate
7 to me why this should not be treated as a motion
8 made in effect on behalf of all parties to the
9 consent decree to change it, notwithstanding the
10 government's formal declination to sign the motion.
11 but in view of what Mr. Moore has said why this
12 Court should not at least view it in that manner.
13 MR. GOLDSTEIN: My name is Barry Goldstein.
14 I represent the Harris intervenors.
15 Your Honor, I think the problem we are
16 getting into now is one that we have had since
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the beginning of this litigation and that's the

18 problem of ambiguity, and one could almost say
19 deliberate ambiguity on the part of the parties
20 to the consent decree. I listened very carefully
21 to what Mr. Moore said and he said that he did not
22 agree to the motion, that the parties seemed to
23 indicate that contractual law is applicable. We
24 would disagree with that. But even if it was
25 applicable, when an agreement is amended and a new



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1 agreement Is made, there has to be a meeting of the
2 minds as to the new agreement. Mr. Moore has
3 denied that there is a meeting of the mind at this
4 time as to the motion. He could resolve the
5 problem in one sentence and say that he agrees to
6• the amendment and that the government agrees to it.
7 They have denied —  they have declined to do that.
8 I think one of the problems that the government has
9 in this is that the Fifth Circuit has deliberately
10 rendered an opinion which affords some substantial
11 rights as to obtain full injunctive relief to black
12 workers and female workers and other minorities
13 across the country.
14 The government theoretically represents these
15 people. The government is, and I can understand,it,
16 reticent to join in a motion which would substantially
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• reduce the rights which these people have.
18 THE COURT; If there is agreement by all
19 parties to a contract that the true agreement between
20 the parties is not put into effect by the written
21 memorial of that agreement, is no t that contract
22 to be reformed subject only to problems, in effect.
23 of third party beneficiaries and as to whether or
24 not they can show the circumstances any third party
25 beneficiaries that would preclude that type of



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1 reformation?
2 MR, GOLDSTEIN: We have notmade an argument
3 here, although if contract law was to apply, I
4 think that there would be situations in which
5 blacks or females or other minorities might have

• relied on the Fifth Circuit's opinion asto this
7 matter since there was no petition for rehearing
8 clarification before petition for certiorari
9 which would be the normal course. I think it's
10 not proper to rely too heavily on contract law.
11 although since there has not been a meeting of
12 minds, the Court would not even have to reach the
13 consent decree law on this issue.
14 THE COURT; Let me stop you there. You
15 say there has not been a meeting of the minds. It
16 seems to me that given the motion by defendants

• and given the statement by Mr. Moore that what I
18 have presented to me is that there was a meeting
19 of the minds by the parties prior to April of '74
20 as to what the releases would do, that there has
21 occurred a decision in which construing the language
22 used memorializing that agreement.
23 There has been an interpretation placed
24 that's contrary to what the parties had agreed upon
25 and that what the government is saying is that it



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declines to request a change in the language but 
does agree that there was this prior meeting of 
the minds on a subject that's different from the 
way the agreement has been interpreted. Now, it 
seems to me that’s what I am confronted with.

MR. GOLDSTEIN: I think. Your Honor, that 
there are two separate questions which have to be 
looked at distinctly. The first one is whether 
or not there is a contract which was made here 
today, whether there was a meeting of the minds 
in 1976 as to a consent decree.

THE COURT: Let me interrupt you. I would 
agree that there is no full meeting of the minds 
as of today on what the Court should do as witnessed 
by the fact that the government did not join in 
the decree.

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Take 3 - DM 23
1 MR. GOLDSTEIN; That raises the second
2 point, and that is, what does the contract or rather
3 the consent decree mean that was entered on April
4 the 12th, 1974.
5 The Defendants treat this as a private

• contract, but it is not. The consent decrees were
7 orders entered by this Court -- interpreted by this
8 Court and interpreted by the Fifth Circuit.
9 The main argument, as I understand it, is
10 that the contract means something different from
11 what the Fifth Circuit states it meant. That the
12 Fifth Circuit was wrong. Judge Thornberry was wrong.
13 Now, there is a normal course for --
14 THE COURT: I assume what they are saying
15 is that the parties were wrong in the selection of
16 language to memorialize their agreement as it turned
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• out by virtue of the interpretation placed on that
18 language by the Fifth Circuit.
19 MR. GOLDSTEIN: The parties made the
20 same representations as Mr. Moore described to the
21 Circuit. Judge Thornberry interpreted the
22 contract in light of the argument that the parties
23 are once again making today, for the Fifth Circuit.
24 There were opportunities throughout the whole
25 litigation for the parties to make the same

(3U



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1 amendments that they made -- that they are seeking
2 to make today. The Harris intervenors on July 23,
3 1974 filed a motion for clarification of this point.
4 The parties did not respond. They could have made
5 the consent decree explicit. So, there was no doubt

• on this point. They did not, and Judge Thornberry
w 7 interpreted the contract -- the consent decree rather.

8 in light of this prior history and in light of all
9 of the statements made to the Court.
10 It seems to me that the arguments that the
11 Defendants want to make should not be now made in
12 Birmingham but should have been made several months
13 ago in New Orleans or Washington.
14 One other point along these lines, and
15 that is, if the Defendants may, as they request.
16 amend or modify the consent decrees in order to
17 subvert any judicial interpretation order of the

• consent decrees which doesn't suit their fancy.
19 then, this question is to whether a consent decree
20 can ever have any certainty of meaning or finality
21 for literally tens of thousands of people who are
22 involved in the consent decree. The problem is
23 exacerbated here by the rather peculiar procedure
24 which the Defendants followed after the issue was
25 litigated and decided by the Fifth Circuit. It was



3 2*)
1 not a difficult issue. It was a rather straightfor-
2 ward, a simple three page motion for rehearing or
3 petition for rehearing of clarification, which was
4 filed in this Court. It could have been quickly
5 filed in the Fifth Circuit, yet, the Defendants waited

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over four months to file their papers in this Court.

7 I would think that this is contrary to
8 established procedure.
9 One further point that I would like to
10 make, and that is that the question that is before
11 the Court today is the release of full injunctive
12 relief is only a consequence if the consent decrees
13 do not work, if they do not remedy discrimination.
14 They are only of consequence if employees, such as
15 blacks, women and other minorities remain locked
16 into their inferior positions.

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What the Defendants seek is judicial

18 approval to freeze an entire generation of blacks
19 or females into a discriminatory position if the
20 consent decrees do not work.
21 If the consent decrees work, then, the
22 release of injunctive relief is of no consequence
23 since any future suits for injunctive relief will be
24 without merit.
25 THE COURT; Of course, that depends upon



4 26
1 what you mean by work. If you say that the decree
2 or relief does not work if it fails to satisfy each
3 person, then, I think your construction is correct.
4 but I am not sure that the fact that someone is not
5 completely satisfied a year from now or two years

A from now means that it doesn't work. We do see
w

1 lawsuits that the plaintiff may bring that aren't
8 won by the plaintiff, occasionally, anjrway.
9 MR. GOLDSTEIN; I am unfortunately well
10 aware of that. Your Honor, I don't think that even
11 if there was a release you could ever preclude people
12 from filing a suit. Anyone could file a suit in any
13 case to challenge the release. I think it is really
14 a question of what will be the decisional ground of
15 future courts, whether it will be a determination of
16 the merits as to whether or not there is discriminatior
17A or some esoteric interpretation of release, waiver

and contract law.
19 Thank you.
20 THE COURT: I would like to hear from one
21 of the movants. Union or companies as to what
22 agreement, if any, was reached dealing with a
23 person’s right to claim injunctive relief, number one.
24 by someone who did not sign a release.
25 Let me clarify that question. As I view



5 27
1 it, the Defendants are asking that the release be one
2 that would give up a person's right to institute a
3 claim for injunctive relief premised upon continuing
4 effects of pre-decree discrimination.
5 What if some other person were to institute

• such a suit, we will assume, one who did not accept
7 back pay and suppose that person were successful in
8 that the injunctive relief decreed by the Court were
9 to grant what I would call super seniority rights to,
10 let's say, black workers to allow them, but not other
11 workers, to let's say, job skip or whatever it may be.
12 Would a person who had signed a back pay release or
13 a release upon getting back pay be precluded from
14 exercising, in effect, individual super seniority
15 rights or is he only to be precluded from instituting
16 or maintaining a claim for such rights and was this
17

A agreement reached by the parties on that point?
MR. GOTTESMAN: Michael Gottesman, counsel

19 for the Union.
20 I was present, I think, at everyone of
21 the negotiating sessions. This question was discussed.
22 I am reluctant to say that there was an agreement.
23 There was discussion of what would happen if, for
24 example, 80 or 90 percent of the people that applied
25 signed the release, but one of the remaining people



6 28
1 brought a lawsuit saying there should be some other
2 systemic relief different or inconsistent with that
3 prescribed in the consent decree.
4 I volunteered an answer to that question.
5 which to my recollection, no one disagreed with.

»
Whether that constitutes a clear understanding of

7 the parties, the Court would have to infer. That
8 was, that the Court entertaining that action,which
9 would presumably be some other court, but could be
10 this one, would be treating -- could only define a
11 class of plaintiffs consisting of those who had not
12 signed the releases. That all other people, whites.
13 blacks, who had signed releases and blacks who were
14 not members of the affected class would in effect
15 not be members of the affected class in that lawsuit.
16 The question of whether the Court should

•
extend whatever relief it might deem appropriate to

18 persons other than the class of those who have not
19 signed releases would be the same as the question
20 that Your Honor had in the original Ford, or United
21 States versus U, S. Steel case where in fact some
22 relief was afforded that extended not only to the
23 affected class but to everyone in terms of plant
24 seniority rights, but those who had signed releases
25 would be treated the same as persons who were not in



7 29
1 the affected class, because, either they were not
2 black or they were not victims of discrimination.
3 They would not be entitled to affirmative relief as
4 a grieved employee, but they would be entitled to
5 only such relief as the Court might deem appropriate
6• for all employees, I don't know if that is responsive
7 To my knowledge, that was the only sub-
8 stantive discussion that we had on that subject.
9 Whether others who were present have a different
10 recollection or more complete one, I don't know.
11 because, it has been quite awhile and, frankly, I
12 haven't thought about that question.
13 If I might, while I am up here, there was
14 a second question discussed and I think now rather
15 clear, and that was, what is the status of someone
16 who signs the release. He can't, we know, or so we
17 thought, bring a separate lawsuit for additional

injunctive relief. What if in fact the consent
19 decree's relief is not working, in his judgment?
20 Is he wholly without a remedy? Is there no recourse
21 that he can have to protest though he signed a
22 release he doesn't have adequate injunctive relief.
23 All parties were agreed as our motion recites
24 and as the question and answer which we gave to the
25 Fifth Circuit reflected, all parties were agreed that



8 30
1 though he had surrendered the right to institute a
2 separate lawsuit that he retained the right to work
3 within the mechanics of the decree.
4 The Fifth Circuit in the Allegheny-Ludlum
5 decision made clear that -- well, let me back up a
6

• minute. Our understanding was that he would be in
7 the same posture if he took the back pay as the
8 Government is in. It may no longer institute separate
9 lawsuits against these parties, but it may come to
10 this Court and,so the Fifth Circuit said, may agrieve
11 individual without exhaustion, may come to this Court
12 protesting the relief isn't working and within the
13 meaning of Paragraph 20, additional or mandatory
14 relief is required.
15 We think it is absolutely clear from the
16 Circuit s decision, that even if the amendment
17 we seek is granted, people signing the release, even

^  18 though they will have surrendered the righf to bring
19 independent lawsuits will retain the right to proceed
20 within the mechanics of this decree, including those
21 rights which the Fifth Circuit and, indeed. Your
22 Honor, clearly spelled out as available to them.
23 THE COURT: I imagine you might want to make
24 a possible correction of one statement in which you
25 indicated that such private workers would in essence



9 31
1 have the same rights as the United States under the
2 decree or be in the same posture. You may have
3 left, by that statement, open a potential right to
4 have a matter heard by this Court which the United
5 States has, but which an individual employee would

A not have as a right, but he would only have a means
w 7 for asking the Court to deal with it, which I would

8 have to deal with.
9 MR. GOTTESMAN: I appreciate the Court's
10 care. What the Fifth Circuit said, he would have
11 the right to approach the District Court and, of
12 course, the Court would then make whatever dispositior
13 it thought appropriate of the claim.
14 The main point was that it is clear that
15 any employee signing the release is not bereft of
16 remedy if in fact he has a valid claim that the
17 injunctive relief isn't working. On this point

• I think the affidavit of Bruce Johnston is
19 instructive. He explains that what prompted this
20 from the standpoint of the Defendants, if explained
21 correctly is a desire that insofar as possible.
22 questions as to the adequacy of the relief be
23 resolved by a single Court which could assure
24 consistency and had an awareness of the implications
25 by its overall supervision of the decree. That vas



10 32
1 why the parties had an interest to the extent possible
2 in channeling these things to the consent decree
3 mechanisnio
4 THE COURT; Have you been involved in the
5 Rogers litigation in Pennsylvania?
6 MR, GOTTESMAN: Not directly. Your Honor,
7 My name is on the papers, but I am not directly
8 familiar with it.
9 THE COURT; I understand there was a
10 decision, and I have not read it, but in some
11 seventh, eighth or ninth of this year by Judge
12 Titlebaum which both recognize the possibility of
13 there being a class action there notwithstanding
14 Allegheny-Ludlum, but which perhaps indicated that
15 the company or Union were taking the position that
16 Allegheny-Ludlum would effectively preclude the
17

*
need for any class determination, I may be overstating
the case. You are not familiar with the particulars?

19 MR, GOTTESMAN; The Union quite deliberately
20 did not take such position. Your Honor, Our position
21 is that a class action can clearly be maintained, at
22 least by those who don't accept the release and.
23 indeed, unless our amendment is obtained, I guess a
24 class action could be maintained by everyone for
25 injunctive relief.



11 33

Take 3

8

9

10

11

12

13

14

15

16

17

18

19

20 

21 

22

23

24

25

THE COURT; Did the company wish to be heard 
on the question raised by the Court, namely, what 
agreement, if any, had been reached dealing with 
injunctive benefits which a person might nevertheless 
claim even though he or she signed the release?



34

T 4 JW 1
.  ̂ 1 MR. MURRAY: My knowledge is not as great

2 as Mr. Gottesman, and I think he answered it more
3 completely than I could.
4 THE COURT: Does the government wish to make
5 any comment?
6

• MR, MOORE: No, Your Honor, other than
7 the government's understanding -- if I understand
8 the question being posed correctly, of how we can
9 treat a nonrelease signer who sought injunctive
10 release inconsistent or in addition to that obtained
11 which the decree and obtained it, how would you
12 compliment that in light of the decree, and if that's
13 the question, the government's understanding is
14 that basically that in most situations that you
15 would end up with a situation such as the first
16 decision or the decision that came out after the
17

A Second Circuit in the Williamson or, rather, the
United States versus Bethlehem case where an

•

19 identifiable class entitled to relief was iintified
20 and they had certain rights other people did not
21 have, and similarly if the Court will recall in
22 the Fairfield case where with regards to a group
23 of helpers, a group of identifiable people they
24 were given certain, as you characterize it here.
25 a minute ago, super seniority rights with regard

*5̂  7 /



35
2 1 to promotional opportunity into the trade and

2 craft into which they were related, and I believe
3 that at least -- again I don’t know how extensively
4 it was discussed, but certainly in my own mind
5 that is the sort of thing that I would imagine would
(5

• occur, but I don’t know if I am addressing the
7 question.
8 THE COURT; I think I --
9 MR. GOLDSTEIN: Your Hour, just one final
10 comment on the Court’s question.
11 THE COURT: You might reidentify yourself
12 because we are changing court reporters back and
13 forth.
14 MR. GOLDSTEIN: Barry Goldstein.
15 I think that the position taken by the
16 government highlights the need for discovery on
17

A this matter if the Court thinks such an amendment
is possible. Mr. Moore started off by saying he

19 was estopped from disagreeing with the position
20 of the defendants as to the intent. He did not
21 say, I don’t think he did, that he agreed with
22 that position. He said he was estopped from denying
23 it, and I think that it would be appropriate and
24 we seriously question whether or not there was an
25 ^^bent to include an injunctive release that would

9 1 ^  to



\
16

3
, 1 be appropriate to have discovery as to all the

2 negotiations, positions, the paragraphs of the
3 agreement and the recollection under cross
4 examination of all the negotiators to the consent
5 decree. Thank you.
6 Oh, one final matter. Your Honor, in the
7 May 20th hearing, the Court addressed a similar
8 question to Mr. Murray, and it's on page 184 of
9 the transcript at the bottom, and if I may read
10 a few lines.
11 "MR. MURRAY; You mean if another person
12 sought and obtained additions in the way of
13 systemic relief?
14 THE COURT: Right.
15 MR. MURRAY: I think that is a plus he gets
16 free."
17

A THE COURT: I think it's difficult for me
to understand the context of that with just the

19 short extract, frankly.
20 MR. GOLDSTEIN: Perhaps the best thing is
21 to refer Your Honor to the pages.
22 THE COURT: Okay.
23 MR. MOORE: Your Honor, if it would help
24 clarify things, I certainly did not mean to leave
25 and thought I did not leave the impression that

^  7



M

4 1
the government does anything other than acknowledge

OLi that the statement of intent, that is, as to the
3 scope of the release, that is, that it includes
•i waiving of the right to seek additional injunctive
5 relief with regards to continuing effects. We do
6

A
concede that is a correct way and not just as a

w matter of estoppel but that is in fact our under-
8 standing.
9 THE COURT! Suppose that upon discovery the
10 intervenors were able to obtain evidence that is
11 contrary to the recollections of the parties from
12 whom I have heard to the effect that at least one

3

13 of the parties did not have a meeting of the minds
14 dealing with injunctive relief for continuing
15 effects of past discimination. How could the
16 Court mechanically handle the question of allowing
17 such discovery to take place to see. if there is

any such evidence? The parties indicate that they
19 would not find such evidence, but suppose, or
20 should not the Court in some way give an opportunL ty
21 to the intervenors to see if there is any such
22 evidence without having to simply accept the word
23 of the parties who here give their own version in
24 their own words of what was said back then?
25 MR. GOTTESMAN: Your Honor, that gets back --

,4 2 7 ^



38

5 1 I think the ansvier -- let me first state the
2 answer and then explain.
3 The answer is if the Court allows discovery
4 and if the intervenors discover evidence which the
5 Court finds convincing that one of the parties in

• fact did not have this intent, then the reformation
7 of the consent decree would be inappropriate and
8 the Motion to Amend should be denied.
9 The question, I think, is whether the Court
10 in order to find out whether that eventuality
11 might occur should in fact allow the discovery to
12 take place, and if I may, I’d like to address that
13 for a moment. When I requested earlier that the
14 Court make the intervention permissive rather than
15 as of right, it was with this precise, the anticipa-
16 tion of this precise question coming up.
17

• The Court has before it and certainly in
18 some context t±ie Court could say even though all
19 three parties tell me that that's what they meant
20 and even though we have three earlier, though all
21 of them post the event, affirmations by all three
22 parties to that, it's conceivable that discovery
23 would show that all or at least one -- well, it
24 would have to be all three parties because all
25 three parties have a recollection that it was agreed

/-Ts ̂



3S
6 1 prior to the event, but the problem is that though

Ou that is theoretically conceivable, surely the Court
3 must have in its own mind that it isn't very
4 likely and the consequences of allowing for that
5 unlikelihood or that the proffering of the back
6

A
*

pay to some sixty odd thousand people would be
delayed for some significant period of time.

8 We have, number one, whatever time the
9 intervenors will feel they need for that discovery.
10 and number two, the necessity for the Court then
11 scheduling another hearing and resolving it, et
12 cetera. It's got to be some period of time at
13 least. In Allegheny-Ludlum in addressing the
14 appeal of the National Organization of Women who
15 claim that they should have been allowed to inter-
16 vene because they indeed did have factual claims
17

A that they wanted to assert and that to show for
factual reasons the consent decree was going to

19 injure their people, the Court said the District
20 Court was clearly justified in determining that the
21 interests of the majority of the affected indivi-
22 duals, in this case some fifty, 60,000 people.
23 predominated over NOW's interest in further delaying
24 implementation of the decree's reforms. That's
25 in the slip opinion, page 7292. What we undeKtood

^  "Ih



^̂0

3

4

5

6

7

8 

9

10

11

12

13

14

15

16

17

18

19

20 

21 

22

23

24

25

the Court to be saying was that even if permissive 
intervention is available to a party and even if it's 
S^^i^bed, the Court retains a measure of discretion 
to decide that a factual question, though not 
necessarily illusory or the rift of any conceivable 
possibility of disclosing relevant evidence, has 
to beweighed against the consequences to all these 
people.

Now, I can tell the Court as representative 
of the Union,that the Union has been besieged for 
the past many, many months with claims where is 
our money. PeepLe are anxious to get this. They 
wilted an inordinate amount of time. And given 
what has to be the unlikelihood that this quest 
would be anythirg but a quixotic effort and would 
result in a reaffirmation of what the parties are 
telling Your Honor, we would suggest that the 
interests of those 60,000 people outweigh it.

THE COURT: Suppose this Court were to grant 
a motion to amend, permit the intervention or 
recast the intervention, if permitted, to permit 

frifsrvenors to, in effect, move for a recon~ 
sideration of that decision and giving them an 
opportunity for a period for discovery to see if

^ 77^



41

8 1 wss any factual basis in support of such a
2 motion for reconsideration. As far as the Union
3 is concerned, would you, seeing that there would
4 be a possibility of some evidence being found and
5 the matter being reconsidered, would the Union

• be, nevertheless, satisfied to go on forward in
7 January with sending out releases and notices
8 that assumed that there was to be this waiver?
9 MR. GOTTESMAN: Yes, and if I may --
10 THE COURT: Recognizing that, then, if
11 the Court should grant that consideration come
12 back to the language of the decree as interpreted
13 by the Fifth Circuit, that there would have to be
14 some additional notification to those that have
15 signed their releases that they didn't have to give
16 away as much as they signed.
17

• MR. GOTTESMAN: We have no doubt that we
18 would be prepared to do that. Indeed, we made it
19 a condition of our joining in the motion, which
20 we wanted to meet the motion, but we were concerned.
21 but not necessarily with a reconsideration, but
22 by the necessity of an appeal.
23 THE COURT: Same problem.
24 MR. GOTTESMAN: We were satisfied that we
26 would be piepared to pay our share of the money



42
9 1 notwithstailing the pendency of the appeal and we got

2 the company’s assurance that so would they, that
3 barring a stay we would in fact go forward, I think
4 the same is applicable today. In our view, people
5 who are willing to sign a release of this additional

•
feature, even if it's subsequently determined that

7 that feature is in fact not to be released, would
8 clearly be understood to have still released every-
9 thing because the greater includes the lesser. So
10 that we suffer no legal jeopardy by going ahead.
11 and indeed we are so confident that discovery is
12 fruitless that it’s a risk we’d be prepared to take.
13 If it did not delay the processing and the hopefully
14 early opportunity to transmit an offer of the money
15 to the people, we are not in any respect objecting
16 to it.
17

• THE COURT: What’s the company’s position on
^  18 that question?

19 MR, MURRAY; My name is William K, Murray,
20 speaking for the steel companies. Our first position
21 is that the principal negotiators representing the
22 companies and the union are present in this room
23 and you have the affidavits and there’s no issue of
24 fact. The second position is that discovery at this
25 point where there’s no issue of fact and is not



43

10 1 likely to be one in an attempt to discover is more
2 a device to delay than a device to obtain evidence.
3 The third is that if there could be found evidence,
4 that might be in the nature of a man who did not
5 remember or who was not particularly involved in
6

•
this precise issue as were the negotiators who are

7 present here. In respect to that, I'd like to invite
8 the Court's attention to General Discount versus
9 Sadowski which is a Sixth Circuit decision where
10 there was in fact evidence offered which was prin-
11 cipally to the effect that a witness could not
12 remember facts or at least his memory was not as accu-
13 rate as those who positively testified and had
14 complete agreements as to the meeting of the minds.
15 The Sixth Circuit in that case merely waived the
16 evidence and went with the preponderance of the
17 evidence and amended the contracts.

• 18 THE COURT; Well, let me say that although
19 the Court is not directly faced with it at this
20 point that if I were making a ruling on the merits
21 of a question of reformation under a disputed set
22 of evidence, my view is that it would require clear
23 and compelling evidence that the parties in fact
24 had reached agreement X and that the written form
25 of that is different from the agreement they had



44
11

1

2

3

4

5

6

7

8 

9

10

11

12

13

14

15

16

17

18

19

20 

21 

22

23

24

25

reached. It would require clear and compelling 
evidence. It would not require unanimous opinion 
oneway or the other, but there would be a higher 
standard than simply the preponderance of the 
evidence.

MR. MURRAY: Well, that*s exactly what that 
General Discount case was. The words used there did 
not reflect the opinion of the parties.

MR. MOORE: Your Honor, I’d just like to make 
two points here. One has already been touched on by 
counsel. One is that, of course, there are eight 
government signatures to the consent decree and there 
are more than a dozen company and union figures.
Those people had varying contact on both sides with 
these negotiations. I wonder and question when the 
responsible legal authority of each of the agencies, 
the person in the government hierarchy who is respon­
sible makes a statement, whether the fact that some­
body who is on their own may not even now be in 
government has even a contrary recollection or 
no recollection at all, what the legal consequences 
of that are. That is, is not the agency bound by 
its legal representatives who participate in the 
negotiations assertion, irrespective of some of the 
other officials that signed? Likewise with ^ho



45

12 1 companies. There are nine companies and it is known
2 that all nine companies were not personally present
3 through all negotiations.
4 THE COURT: Well, I view it, Mr. Moore, that
5 it's a question of establishing by clear and convinc-
6li ing and compelling evidence that there was an oral

W 7 meeting of the minds on the subject matter X and
8 that as it turns out the words chosen to put that
9 into form did not as it turned out do what they had
10 agreed to do, and on that it's much like any other
11 type of contractural controversy. It's not so much
12 what they would like now to accomplish. That would
13 then be getting into the area of making a modifica-
14 tion that cannot be made simply to cover something
15 they had not anticipated. It's simply a matter of
16 finding out and being satisfied under that type of
17 standard what in fact was that agreement between

• 18 the parties.
19 MR. MOORE: Well, that, of course. Your Honor,
20 right there, when the Court says oral understanding.
21 it means those who were present during these things
22 and eliminates and excludes a number of other
23 people .

' 24 THE COURT: That's right.
25 MR. MOORE: The second point that I would

'2Ĵ



46
13

1 raise about this whole thing, and that is a question.
2 if the government is now through its solemn and
3 carefully made statements estopped to deny the intent.
4 can someone else for it deny that Intent through any
5 kind of discovery?
6

• And I would say that they probably cannot.
7 THE COURT: Well, suppose you had as government
8 attorney made representations to this Court and to
9 the Fifth Circuit which deliberately or unintentional!.
10 were incorrect?
11 MR. MOORE; Well, in this particular instance
12 I have reconfirmed these things and they were not.
13 I don’t know but that those agencies in the government
14 would not, having given me the authority to represent
15 them, would not be bound by it even if I had mistaken-
16 ly on three occasions --
17 THE COURT: They might be so estopped insofar

^  18 as a question dealing with the interpretation or
19 what was intended, what I am seeing, however, in
20 the motion is not a review of the Fifth Circuit’s
21 opinion but an acceptance of that and are saying
22 that's contrary to what in fact the oral agreement
23 was and that we made a mistake in the words we chose
24 in effect.
25 MR, GOLDSTEIN: Your Honor, it’s peculiar to



14 1 hear the defendants talk about delay when the delay
2 is of their own contrivance. It‘s four months since
3 the rendering of the Fifth Circuit's decision before
4 they appeared before this Court to propose a notice
5 and release form and amend the consent decree. But

• I think more than that four months the extraordinary
7 procedure that they are seeking to follow is designed.
8 whether intended or not, to create further delay.
9 There was a major'.issue in this litigation that has
10 never been decided, and that is whether or not
11 a waiver for full injunctive relief is lawful.
12 The Fifth Circuit'specifically did not make a
13 holding on that matter because they did not need to.
14 They interpreted, and we would say appropriately.
15 the consent decree on the basis of the plain language
16 and that that issue is still left to the Fifth
17 Circuit.• 18 If the parties had followed the appropriate
19 procedure and asked for a clarification or rehearing
20 on the meaning of pa ragraph 18G, then the Fifth
21 Circuit would have been called upon to decide the
22 question of whether or not you can waive injunctive
23 relief and we would have had that decision by this

 ̂ ■ 24 time .
25 Now, that decision has not been rendered and



{̂8
15 1 the interveners would seek to have a determination

2 of that issue as quickly as possible. I would think
3 looked at in that light the need for fast back pay,
4 and as the defendants suggest, doesn't work for the
5 amendment. It works to deny the amendment so that
6

A there is no need to decide this further issue, and
again I would reiterate that there was a speedy

8 procedure and the appropriate procedure for the
9 defendants to get a resolution of the injunctive
10 waiver of position. Now, we would also maintain.
11 and I won't go into this because it's fairly clear
12 from our papers, that the whole question of the
13 subjective intent is not appropriate and the language
14 in United States versus Amour which refers to the
15 four corners of the consent decree which was cited
16 by the Fifth Circuit as the appropriate means for
17 interpretation of the consent decree.

One final point is that if the releases are
19 sent out and include an injunctive waiver, a waiver
20 that may be over broad in the final analysis, that
21 the people who refuse to sign the waiver because
22 of the inclusion of the injunctive waiver would be

,̂nd 4 3^ harmed.
24

25



Take 5 - D̂ 49
1 THE COURT: Well, that raises an interesting
2 point that if the Court were to go forward with the
3 procedure I sort of raised a question about, whether if
4 the intervenors were to prevail subsequently here or
5 at Appellate Court on this injunctive feature, should
6

• there be any circulation or retender to those who did
7 not sign the release. That is the question raised
8 and it very well may be that the Court should direct
9 that and it would be appropriate, given the nature of
10 an appeal or reconsidered issue, but it is an
11 interesting question that I had not thought about.
12 MR, GOLDSTEIN: I thought that such a
13 procedure would be appropriate.
14 Thank you.
15 MR, MURRAY: I would like to respond. My
16 name is William K, Murray, I would like to respond
17 to one statement that Barry made that the Fifth

 ̂ Circuit had not ruled on this question, I would like
19 to invite the Court's attention to --
20 THE COURT: Page 853?
21 MR. MURRAY: Yes, sir, where it says.
22 ”We hold", and they did so hold.
23 THE COURT: I believe that the essence of
24 a consent decree is grounded in contract rights. The
25 Court has an interest, having been invited initially



2 50
1 to place its stamp of approval upon the agreement of
2 the parties as presented to it in the form of a
3 consent decree.
4 The decisions of the Supreme Court, such
5 as in Armour and Company, which have concluded that
6Ik particular forms of modification were inappropriate

w 7 or illegal weas cases in which, by reason of some
8 changed circumstance, there was an attempt by one
9 party or the other to place something additional
10 in the agreement in order to carry out some expecta-
11 tion or purpose of at least one of the parties.
12 None of those cases, so far as I have been
13 able to see, dealt with modifications of a decree
14 so that the words of the decree set out the agreement
15 that in fact had been reached by the parties.
16 It is a well recognized principle of
17 contract law and indeed one in which, in viewing a

• consent decree a Court should be also concerned about.
19 that the formalization accurately put into effect
20 what the agreement of the party is.
21 As an absurd illustration, perhaps if the
22 decimal point on thirty million dollars had been at
23 the wrong point and had shown thirty dollars as the
24 amount to be paid out to the workers and the parties
25 were to discover that because some Appellate Court



3 51
1 opinion pointed out that this dollar mark was in
2 the wrong point. Surely the Court would have the
3 power to see that the language of the decree stated
4 what in fact was the agreement of the parties, thirty
5 million dollars.

• I am here confronted with a showing at this
7 stage that the parties to this contract which this
8 Court said was permissible for them to enter, in
9 fact agreed on something, that as it turns out, the
10 language doesn't say. If that is the case, if in
11 fact there was that agreement between the parties
12 which the written language does not reflect, this
13 Court almost has a duty to see that it conforms so
14 that it is correct. It is possible that though
15 the parties state to me now on this date in 1976
16 what their agreement was back in '74 that they are
17 mistaken in their recollection about actually what

i 18 was said.
19 Ultimately, the Court or some Court would
20 have to determine whether in fact there was a meeting
21 of the minds back in April of '74, that is, prior to
22 that in this particular area and whether that is
23 shown, since it is contrary to the language chosen.
24 in a clear and compelling fashion.
25 The rule generally adopted is that where



4 52
1 the parties to a reformation are in agreement that
2 there was this oral agreement that is not reflected
3 by the written word, then, that suffices and the
4 Court is authorized to reform the written language
5 to reflect the actual agreement.

»
There are problems where persons who in

7 effect are third party beneficiaries may have rights
8 that are affected by such a modification in much the
9 same way that persons who are third party beneficiariej>
10 of a contract have some standing to complain if the
11 parties simply agree to make a new change in this
12 contract.
13 The rules of law that have developed in
14 this area have been shifting over the past half
15 century. I believe that the best statement and the
16 one that would be approved for Federal law purposes
17

• is contained in the restatement of contract number
18 two to the effect that the third party beneficiary.
19 even when an intended beneficiary cannot object
20 successfully to the modification or I would insert
21 reformation of a contract where that contract did not
22 S'̂ ^̂ ^̂ b̂ee that there would be any changes and where
23 that third party beneficiary has not made some change
24 of position or shown other individual equitable
25 reasons for its inapplicability to him or her.



5 53
1 It is possible that there have been some
2 employees that have made some change of position that
3 could be established from an equitable standpoint.
4 That would mean that even though the back pay and
5 the release have never been tendered to them, never-
6 theless, a change since the Fifth Circuit's opinion

• would be inappropriate for them, but that is not a
8 matter that this Court would have to deal with.
9 That will have to be an individual matter in some
10 individual litigation.
11 It is my conclusion and I find that based
12 on what is before me, that the proposed amendment
13 contained in the Defendants' motion should be allowed
14 and is allowed.
15 I find, however, that under 24(b) the
16 person proposing to be intervenors should be allowed
17 to intervene and to conduct limited discovery on the

• limited issue of agreement or lack of agreement by
19 the contracting parties relative to this continuing
20 effect question and that the intervenors are allowed
21 to intervene not for the purpose of accepting their
22 complaint in intervention as tendered or the
23 supplement complaint of intervention, but to file a
24 motion for reconsideration on this particular ruling
25 of the Court, namely, allowing the amendment.



6 54
1 The Court believes and finds that notices
2 of some sort of releases of some sort and back pay
3 checks should go on forward. We will have to deal
4 after recess with problems dealing with those
5 questions, and that that should not be stayed or
6 halted pending the development of evidence or possible

reconsideration on this question or amendment.
8 We will take a fifteen minute recess.
9 I think that those who have had seats
10 might perhaps want to indicate a willingness to
11 exchange their seats with some who have been standing.
12 but I do not -- there is another equity, and that is
13 that those who are here first may be allowed to remain
14 and be able to attend to the calls of nature without
15 having their seats taken. I leave that for individual
16 resolution, reminding all that this is a Court in
17 which we anticipate problems that are solved, amicably

9 rather than physically.
19 We will have a recess for fifteen minutes.
20 [Whereupon, proceedings were in recess from
21 11 o ’clock A.M. until 11:15 A.M., at which time the
22 proceedings were resumed as follows:]

End Take 53
 ̂ 24

25



55

6JW 1 1
2

3

4

5

6

7

8 

9

10 

11 

12

13

14

15

16

17

18

19

20 

21 

22

23

24

25

THE COURT; Be seated, please. We'll now 
move to the area of a request for approval of a 
release and notice and letters to be sent from the 
EEOC. As Indicated, there have been objections 
filed to those along with a motion for application 
to intervene and a complaint in intervention which 

proposes those notices. There's some secondary issues 
relating to the use of such notices in those places 
where there's pending litigation. Would you like 
to get the Court's attention?

MR. GOLDSTEIN: Yes, Your Honor, if I may.
I would like to move the Court for a stay of its 
order approving the amendment to the consent decree 
for a time sufficient to allow us to request a 
stay from the Fifth Circuit.

THE COURT: That motion is timely made but is 
denied and we'll have it shown of record.

MR. ADAMS: Your Honor, inasmuch as there 
are quite a few people in pending cases presently 
in court and some of the statements made by the 
Court ccdLd be construed to affect them as far as 
offer of back pay is concerned, I would like to ask 
the Court is it intended that they be directly contact 
ed concerning back pay?
________ the COURT; This is a matter that comes up_____



56

2 1 at least in two separate motions and is additionally
2 included as part of a proposed complaint in inter-
3 vention and as a part of, let's see, one of the other
4 motions. It is my belief that in no case where there
5 is a pending court case that either seeks class
6A determination or where a class determination has

• been granted or determined that there would be
8 notices and back pay items going out to those persons
9 without first the district court having control over
10 that litigation deciding whether the rctice should
11 go out and, in effect, in what form which might
12

1 involve some changes, very likely, in the form that
13 this Court might approve. So, to answer your question.
14 and I'll be happy to hear from the defendants and
15 the plaintiffs, if they wish to indicate a contrary
16 position and persuade me to the contrary about it.
17 that, for example, in the Harris and others case.

• the Republic of Birmingham, Taylor and others, Armco
19 of Houston, Waker and others. Republic of Gadsden,
20 Elaine and others, Bethlehem Sparris Point, Rogers
21 and others, U, S. Steel Homestead, Ford and others.
22 U. S, Steel Fairfield, Williamson and others, though
23 not appearing here as attempted intervenors, William-
24 son and others versus U. S. Steel -- no, Bethlehem,
25 that there would not be back pay items



57

3 1 sent out in any of those cases unless and until the
2 District Courts where those items are pending approved
3 that and after giving full opportunity to hear from
4 the parties and the counsel to that litigation.
5 Though I personally have two of these cases,

• I do not consider this hearing, or three of the
7 cases, as dealing with the request to send out notices
8 in those three cases, for example. I will deal with
9 those separately.
10 MR. ADAMS: Your Honor, I do not know whether
11 the Court considered the motion which we filed just
12(\ this morning to be appropriate to be considered by
13 the Court but we would like to hasten to tell the
14 Court the reason why it was just submitted was
15 because the letter did not have the date on it
16 except December 30th of 1975 and also the information
17

• just recently came to our attention that the EEOC
18 in Birmingham was, in effect, soliciting settlements
19 under the consent decree which the Court knows is
20 in violation of Ford versus United States Steel.
21 THE COURT: I believe that that motion.
22 though it raises some similar questions to these
23 others, raises some additional questions and my
24 idea on that particular motion, the defandants and
25 plaintiffs may not be that familiar with it, is to



>8
3 4

1 direct the parties to at least consult with one
2 another shortly about the status of that motion and
3 if necessary I'd be prepared to take up that motion
4 Monday morning,
5 I think it does raise some serious problems
6A assuming the factual accuracy of the matters contained

in there.
8 I would not see it as appropriate to deal
9 with in detail at this point or in this hearing.
10 MR, ADAMS: We do have the witnesses present
11 who can substantiate it except Mr. Sanchez who is on
12 vacation in Pensacola, Florida,
13 THE COURT; I think it*s the kind of problem
14 that there ought at least be some discussion between
15 counsel as to what's really involved and see if there’s
16 ways of resolving the question short of having the
17 Court deal with it.

• MR. MOORE: Your Honor, if it may please the
19 Court, with me is Mr. Robert Nichols, an attorney
20 with the EEOC and a gendeman who has responsibility
21 in Washington for the charge resolution aspect of
22 this thing, and upon being served this morning with
23 this matter Mr. Adams indicated Mr. Sanchez is not
24 obtainable at the moment, however, we are prepared
25 to issue to all regional offices directions not to



>9

5 ' send out any additional communications and not to
2 make any oral representations other than when people
3 cell to tell them that they*11 get back in touch
4 with them later.
5 We have considerable numbers of charging
6

•
parties calling the EEOC regularly and one of the

/ purposes of at least one of the letters was a
8 status report to these people as to their charge
9 where determination has now been made. But at any
10 rate, we are prepared to give those directions and
11 feel confident that they will be closely adhered
12 to and I would think that that would resolve the
13 question.
14 MR. ADAMS: I recently got the one in this
15 morning’s mail from Baltimore, the same letter which
16 is attached as Exhibit A to our complaint which the
17

A EEOC has sent to the people in a pending case there.
"  18  ̂ MR. MOORE: Well, we acknowledge those

19 letters have been sent. They were a status report
20 and we will, as I say, stop sending them.
21 MR. ADAMS: In addition, they are phoning
22 people in Gadsden as well as in Birmingham asking
23 them to withdraw their charges. We’d also like
24 that stopped.
25 MR. MOORE: That will be stopped.



50
6

1 THE COURT: And I believe that if counsel
O for intervenors and for the government and for
3 the companies and unions that may be involved would
4 meet for a short time immediately following our
5 hearing, it is possible that some resolution that*s
6 satisfactory can be made of that without having

^  7 the Court go forward. I am prepared to go forward
8 with it, though, not today, and if necessary, I
9 would be prepared to go forward with it Monday
10 morning, but I believe that it’s the type of
11 matter that can be satisfactorily resolved if
12 people will talk about what?s happened.
13 So, that particular motion I am not going
14 to take up and I hope it can be resolved without
15 the need for a hearing, but I am prepared to do
16 so Monday if necessary.
17 Is there any question that the parties

have about the Court's statement to the effect
19 that back pay is not to be tendered in pending
20 cases for the people at plants where there are
21 pending cases, whether or not there's yet been
22 a ruling of class action determination in those
23 cases?
24 MR. FORMAN: If the Court please, there
25 has not been any -- this is Jim Forman -- any



(:1
7 1 misunderstanding about that as far as the steel

2 companies are concerned since the initial hearing
3 when it was represented to the Court and directive
4 number one of the NR committee set that as a require-
5 ment before any communication be made.
6A THE COURT: That did involve also the first

objection raised in the intervenor's objections
8 to the proposed notice release and letters and I
9 think we are clear on where we stand there. I
10 will be hearing at this time from the intervenors,
11 that is, from the counsel. I*m not, however, at
12/ this time ruling whether they are being heard as
13 intervenors or simply as friends off the Court.
14 I think I can get a better feel for tha t
15 as we are going through it and there may be some
16 areas in which formal intervention is appropriate
17 and perhaps other areas in which only appearing

as friends of the Court would be appropriate.
19 MR, COOPER: Judge, do you intend to indicate
20 when you expect to reach consideration of Ford
21 and the other local cases that you have?
22 THE COURT: I would expect to reach con-
23 sideration of it after one of the parties in
24 that litigation requests me to do something. I
25 do not anticipate setting something in the absence



62
8 1 Of one of the parties to the litigation asking me

2 to and suggesting it's time to deal with it.
3 MR. ADAMS; Your Honr, may I point out
4 that the Court made mention of the fact that we
5 did not intervene or seek to intervene in the
6

• Ford class of Fairfield Works. We thought it in-
7 appropriate inasmuch as the matter is still before
8 the Fifth Circuit for a final resolution of a
9 petition for clarification of rehearing, however.
10 if any actions here impinge on the rights of the
11 people at Fairfield, we'd certainly like to assert
12 them even though we didn't formally present it in
13 an intervention petition.
14 THE COURT: I see no problem with it.
15 and as already indicated before, that anything done
16 in any of these other cases will be dealt with in
17 those cases .

• 18 MR, ADAMS: And we did not ask the Court
19 to move on it because we thought it inappropriate
20 to before the Fifth Circuit ruled.
21 THE COURT: I am proposing to go down the
22 list of objections to the proposed releases and
23 notices and letters, having already, I think.
24 dealt with objection number one, namely the
25 question of jurisdiction of the local.



1)3

3

4

5

6
7

8 

9

10 

11 

12

13

14

15

16

17

18

19

20 

21 

22 

23

End 6 j;«4

MR. GOLDSTEIN; You want us to present 
argument on it. Your Honor?

THE COURT: Well, I'm trying to decide 
whether it’s better to hear argument in masse or 
to go down each individual item and see what 
comments should be made, I think maybe going 
down each individual item makes more sense.
So, I will be following in essence the outline 
as contained in the intervenor's objections to 
the proposed release and notice.

Let me say here, though, as to item number 
one, that is, what is to be done with the local 
cases. It's my view that I should not attempt 
to preempt the local court one way or the other 
either by saying that the notices should or should 
not be sent out in the form suggested or in some 
contrary form. To some degree perhaps objection 
number one seemed to be saying that I should 
direct that they may be sent out in those other 
cases and I don't think that would be appropriate 
either.

I think I should leave it simply to the 
particular situation in those particular courts.



2 65
as does the procedure in a class action, for some

2 period of time which is really devoted simply to
3 making a decision, to studying the facts that are
4 relevant to an individual's claims.
5 We would envision that there would be a
6 notice with attendant information which would be

• sent out to the employees under Step One, There would
8 be some slip or enclosed card which would allow an
9 employee to indicate whether or not he would want
10 to accept the tender. He would then under the
11 second step, if he or she answered in the affirmative.
12 be sent the check with the release.
13 Under the first step, which we think should
14 last for at least six months, would provide an
15 opportunity for employees to not only reasonably
16 evaluate their particular situation, but also to seek
17 and receive appropriate advice. The situation is

difficult enough for the individual who has a pending
19 case, but for the individual who is not presently
20 represented by counsel to receive a check with a
21 deadline of thirty days, or it stamped on the check
22 and the check saying, "Void if not cashed after
23 30 days", and for one to find counsel and for that
24 counsel to be able to figure out what has been going
25 on procedurally in this litigation and then somehow

3 0 / ^



3 66
1 review the individual's facts and provide him with
2 some intelligent legal advice, I just don't think it
3 could be done.
4 If there is a two step procedure, then.
5 during the first step counsel could make appropriate
6 requests to local courts or to this Court to specific

• problems that may arise around the country.
8 For example, the problem that was presented
9 here today, which I think is really very relevant
10 to this issue, and that is there are -- it is alleged
11 that there are members of the Federal Government who
12 are soliciting by unsupervised oral communication

V 13 people to withdraw their charges, which is as Your
14 Honor knows, is a very drastic step.
15 Somebody might have filed a charge in 1967
16 allowing him to obtain back pay to 1965 or '66, in
17 this State. That would be incredible for the Federal

Government to actually suggest that it would be
19 appropriate for him to withdraw his charge.
20 I think if you have thirty days in a one
21 step procedure there are going to be innumerable things
22 and problems that will arise and there will not be time
23 or procedure to deal with those problems.
24 That's all I have to say in addition to our
25 argument on one, unless you want me to go on to



4 67
1 Part B.
2 THE COURT: Well, what you are really saying
3 is that the combination, is it not, of a thirty day
4 time limit with a one step, as you describe the pro-
5 cedure, puts undue pressure upon persons to accept
6 before they have adequately learned what is really

involved and what is in their best interests?
8 MR. GOLDSTEIN: Well, I think that the
9 stringent time limit exacerbates the problem. It
10 is our position that the one step process in itself
11 sending a person a check is inherently unfair and
12 coercive and that there should be a two step procedure
13 wholly apart from the time limitations.
14 Although, we would say that by having a
15 two-step procedure you are, in a way, providing a
16 mechanism that will minimize the time pressure.
17 THE COURT: Why is the one-step procedure

inherently -- I have forgotten the word you used.
19 MR, GOLDSTEIN: Unfair.
20 THE COURT: Unfair?
21 MR, GOLDSTEIN: The whole procedure of
22 actually tendering somebody some money. The natural
23 thing for somebody to do when he gets a check is to
24 cash it. There is no procedure for making an
25 alternative step, not a comparable one, really.



5 68
1 Maybe his step is to burn the check if he is not going
2 to cash it. It is just contrary to providing people
3 with a document which should be neutral and judicious
4 on its face and should not advocate one position or
5 another and should make it clear to the employee that
6 he should carefully evaluate his personal situation

to see what is in his best interests.
8 If there are two boxes on a piece of paper
9 and he checked one which said, "l want the tendered
10 back pay", and another one that said, "l don't
11 want the tendered back pay", that is comparable. When
12 you have a situation where somebody has a check and
13 there is no alternative means to signify that he
14 doesn't want to cash it except by burning it, I just
15 think that loads the dice.
16 THE COURT; Do you have any additional
17 comment dealing with the thirty day problem? I know

• I had asked that we go down individually, but it
19 seems to me they are related.
20 MR. GOLDSTEIN; As I mentioned earlier, the
21 two step procedure would reduce the time pressure.
22 I think thirty days, in any case, is just unfair. I
23 think the Court in its earlier hearings recognized that
24 or at least indicated as such and the Fifth Circuit
25 made some mention of it. It is interesting that the



6 69
1 parties took six months of hard thought negotiations
2 to figure out what should be in the consent decree
3 and the Fifth Circuit deliberated a year and
■i apparently got it wrong, and took four months to come
5 up with the notice and release forms and to now ask
6 some individuals, no matter how perceptive, to make

a decision like this under the consent decree and
8 how it affects them and seek advice in which everybody
9 will be seeking advice at the same time. In a town
10 like Pittsburgh, and I don't know how many thousands
11 of steel workers there are, but if every lawyer in
12 Pittsburgh decided he was going to help evaluate the
13 situation he would be innundated in a thirty period.
14 I just think that a six month period, if
15 anything, would be too little. I don't see where
16 there would be any prejudice to anybody during such
17 period.

• THE COURT: Let me hear from the parties
19 on these two aspects, the one step procedure and the
20 time limit.
21 MR. MOORE: If it please the Court. Your
22 Honor, we believe the one-step procedure is the
23 better approach and that it is not unfair or
24 coercive.
25 As a matter of fact, we believe the two-step



7 70
1 approach is more apt to be unfair since it will place
Otd a burden on the recipient to go seek out his check
3 which means as a fact of the matter going to a company
4 office and having to ask for it.
5 In my opinion, it would be inevitable that
6 no matter what is done and what is said with regard
7 to the clerks, the people that are involved, and we
8 are talking about the distribution to some forty-six
9 thousand people, that the clerks involved in this, no
10 matter what the instructions they are placed under
11 would inevitably give misinformation. Inevitably
12 those people that are going to come are going to have
13 questions and they are going to direct those questions
14 to these people.
15 Now, the audit review committee has solely
16 authorized and will control the infomation that is
17 given out by the implementation committee. It is

just not possible for a period of time, much less
19 six months, to have the implementation committee
20 available at the payroll office or the place where
21 the check will be picked up to handle the inevitable
22 questions,
23 I think that the procedure we have set which
24 directs the employee to the implementation committee
25 specifically for any questions about any matter covered

3>o



8 71
1 by their back pay check or about the release is a
2 better and more certain system to minimize any
3 misinformation that might be given out.
4 Now, another consideration I think that
5 the Court should have is that the decree mandates a
6 tender, I don't believe that a tender offer that

the two-step procedure is talking about here would
8 constitute such tender. Therefore, the date of such
9 notice could not be seen as the tender date from which
10 a recipient's time would begin to run nor would an
11 unlimited time after notice and until tender be a
12 practical method or one consistent with the decree.

 ̂ 13 That is, if at any time within six months they can
14 seek the check and from that point they have thirty
15 days to accept or reject it is, when we are talking
16 about forty-six thousand eight hundred some odd
17 recipients, is just not a practical method for handling

the matter.
19 Now, for those recipients with EEOC charges
20 pending there is a two-step procedure, but it has
21 safeguards of, number one, a time and place certain
22 for tender and, secondly, an EEOC representative
23 present to provide authorized information. Now, this
24 can be done with approximately four hundred and
25 eleven affected employees who have such charges and

3o^dLJ



9 72
1 who are recipients who are entitled to back pay.
2 Again, these same safeguards as a practical
3 matter, I don't believe, can be provided for the
4 more than forty-six thousand other people.
5 Now, as for the Rule 23 safeguards which
6 the intervenors suggest should be made applicable

• here. Those safeguards are necessary in a class
8 action because the members are bound. This is not
9 a class action and the settlement is not binding if
10 the recipient of the tender rejects it. In a true
11 class action the members, like it or not, let's say.
12 are bound and precluded from maintaining a separate
13 action to obtain more if they are dissatisfied from
14 what they have obtained.
15 Therefore, I don't think that it can be --
16 the Rule 23 procedure is really analogous to this
17 s ituation.

I will say this; That in many respects.
19 what has been proposed by the Audit and Review
20 Committee is analogous to that in that they will get
21 the information and have the free opportunity, in
22 effect here, unlike a 23(b)2, they will have the
23 opportunity to op out by rejecting the tender.
24 THE COURT: Do you believe that 30 days is
25 an adequate length of time for someone to evaluate the



10 73

3

4

7

8 

9

10

11

12

13

14

15

16

17

18

19

20 

21 

22

23

24

25

wisdom of accepting back pay?
MR. MOORE: Well, Your Honor, when the 

decree was executed we put in thirty days. We believe 
that it is adequate. As a practical matter, to insure 
that the full thirty days is given to every employee, 
the Audit and Review Committee has agreed that the 
date on the check, the void date, will be 45 days 
after the mailing, after the distribution date. That 
is to make sure that any difficulty -- we don't 
anticipate but a small percentage of difficulties in 
making delivery occur, but at any rate, we are 
providing an additional 15 days to make sure that all 
deliveries are effectuated.

Now, for the vast majority -- for the vast 
majority that because deliveries will not be delayed 
it will mean 45 days. Now, this six months, I don't 
think six months would be appropriate.

THE COURT: Has there been any discussion 
in the Audit and Review Committee about a mechanism 
for giving any extension of time for someone who may 
indicate to have additional time because of problems 
of evaluation and et cetera?

MR. MOORE: Yes, sir, we have had 
discussion and it had to do with primarily the 
situation in which people receive a check which is

3>/6



11

3

4

5

6

7

8 

9

10

11

12
>

13

14

15

End Take 6̂
17

18

19

20 

21 

22

23

24

25

_____________________________________________________7^
in error. That is, the check stub will indicate the 
plant seniority date, which is the key date for 
the amount of each individual which has been used 
for calculation purposes. If that is in error the 
notice advises the person to come to a place certain 
to raise this error. Now, if the error is confirmed 
a new check will be issued, and my understanding is 
that we have agreed it will start a new time period 
when that error is corrected.

Now, that also would apply to the errors 
of the estates and executors and whatnot in those 
areas. Beyond that, no, other than recognizing that 
we will have contingencies or situations in which it 
will be necessary to arrange for some sort of 
extension out of a matter of fairness.



Take 8 - JW 75
1 MR. MURRAY: In response to the question
2 you just asked, Mr. Moore, whether thirty days was
3 sufficient, I think you might bear in mind that the
4 employees have already worked under the consent
5 decree for some twenty months. I'm sure they've been
6 thinking about it. I'm sure that each employee can

• evaluate better than anyone else what his own
8 position is about the injunctive relief and how the
9 decree is working, and with twenty months plus
10 thirty days, that's sufficient for him to decide
11 that issue.
12 I think their advocating a two-step
13 procedure, I think there are many disadvantages to
14 that, but I think in one sense we already have a
15 two-step procedure. We've got a two Court procedure
16 where it's approved by this Court and where litigation
17 is pending is approved as to form and substance by

• another Court.
19 THE COURT: Let me ask you this. Do you
20 think that a District Court in Pennslyvania where
21 private action, class action is pending could on
22 application for notices to be sent out in that case
23 decide yes, to allow that to be tendered but perhaps
24 to require that it be done in a two-step procedure
25 or that more than thirty days be allowed?



2 76
1 MR. MURRAY: I think that I would not
2 first try to state what a District Court will or
3 will not do, but I think it's within the discretion
4 of that Court to do what it thinks is right and
5 in a particular circumstance, I think that
6 decision should be made at the local Court and not• 7 here.
8 THE COURT: Well, notwithstanding the
9 thirty day provision that's in the decree, you
10 would view it that as to those plants which have
11 pending litigation that the District Court before
12 permitting the tender could, in effect, impose as
13 a condition that there be some period of time in
14 addition to thirty days?
15 MR. MURRAY: I think if it, if it doesn't
16 violate the terms of the decree. Now, the decree
17 says that the tender of -- that there will be

• acceptance within thirty days of the date of the
19 tender offer, I think a District Court could
20 give additional time on the notice, but I think
21 the District Court does have to remain within the
22 agreement of the parties as reflected in the
23 consent decree.
24 THE COURT: Well, it could withhold its
25 consent to allowing any such tender to be made, I

3/3^



3 77
1 take it, unless the parties agreed that they would
O
Lj permit more than sixty days.
3 MR, MURRAY: Yes, sir. In addition to
4 the two-step procedure of two Courts approving.
5 I think it's a much better procedure to follow
6 what the consent decree says and what the Fifth

Circuit says, that is, vest in the implementation
8 committee and the Government and the District Court
9 the right to approve these forms and be sure that
10 the rights of the parties are clearly understood
11 or at least explained in the notice of rights.
12 Now, Mr. Goldstein objected to the notice
13 of rights because he's advocated a position. The
14 notice as drawn, it does not advocate any position
15 other than to notice the parties of their rights
1C fully and formally so that they can be enabled to
17 make a voluntary acceptance with full facts about

• what their rights are. There's been no effort to
19 advocate any other position.
20 As to the advantages of a one-step
21 procedure as opposed to a two-step procedure, I
22 think there are several that should be brought
23 to mind. The first is that if the check is
24 mailed or delivered with the notice, that precludes
25 anyone from saying that I got the check but I did



4 78

1 not get the notice of rights. It's possible that
O if they're delivered at separate times an employee
3 could not receive one or the other, but if they
4 are delivered together there is the additional
5 safeguard and absolute as near as you can make it
6 that the two were received and that the employee

• had an opportunity to read the notice of rights
8 before deciding whether or not to cash the check.
9 Second, if the check is delivered with
10 the notice of rights, it's much more likely that he
11 would read the notice of rights. If notice of
12 rights is merely sent like a lot of circular mail
13 with no check and no real reason, it may be placed
14 aside, but if it's sent with a check, most individuals
15 will pay a lot more attention to it.
16 Now, the purpose of the notice of rights
17 is to inform the individual so that his acceptance

• or rejection can be voluntarily and knowingly.
19 I think the third point is that there's
20 been no showing of any harm by the one-step procedure
21 and I think it could be reasonably drawn a conclusion
22 that a six month delay, certainly a six month delay
23 between a notice and a tender offer of a check would
24 not add to anyone's understanding or connecting the
25 two together, and I think that with a six month delay



5 79
1 no individual is going to learn any more about his
2 own job or how the decree is affecting him than he
3 has learned in the past twenty months.

%

4 MR. GOTTESMAN: I'll be very brief. Your
5 Honor, as Mr. Moore and Mr. Murray, I think, have
6 covered the essential points.

• In our view, the essential importance of
8 the one-step procedure and the thing that really
9 makes it better is something that Mr. Murray
10 mentioned and that is, that when people get the
11 notice with the check, they'll read the notice.
12 I have personal awareness of this.
13 because I've received court notices in class actions
14 a couple of times and began to read them and sat
15 them aside. I know that I would have read them if
16 there had been a check there. I think it's human
17 nature that it's going to strongly discipline one's

• interest in reading the notice if the check is with
19 it.
20 Conversely, if it's not with it, we run
21 a tremendous problem that perhaps -- we don't
22 know this -- but perhaps a large number of people
23 because they don't read the notice won't respond
24 within a time limit one way or the other and there's
25 going to be an extraordinary administrative burden



6
1 to go out
2 Under Mr. Goldstein's procedure, they
3 have to say yes or no within whatever time limit
4 the Court sets, but if we have a ten thousand people
5 saying neither yes or no then there's this
6 administrative burden to go out and find those

• people. Finding them creates problems because
8 somebody has to find them. If somebody finds them
9 somebody may communicate with them. One of the
10 things we've tried to do is shape the process so
11 that communication will come from the implementation
12 committees who are going to be very carefully
13 educated on; precisely what people should be told
14 so that we can have some control over the whole
15 mechanics.
16 Just one other observation, or really
17 there are two and they're interrelated. The

People who are making the request to Your Honor
19 are presumably not private attorneys generally, but
20 are seeking to intervene on their own behalf and
21 they are saying don't offer me a check because
22 I will be coerced. There's something strange
23 about that.
24 These people obviously are not coerced.
25 They're here. The other ingredient which is



Take 7 - DM 64
1 MR, GOLDSTEIN: The first item which we have
2 under Section Two is the general procedure for sending
3 out the notice and receiving or soliciting tenders.
i We would say in general that the procedure
5 like the form is designed to accomplish only one end.
6 and that is to maximize the number of back pay tenders

• received, much as a door to door salesman attempts to
8 sell as many encyclopedias as he can.
9 This is just not a form or procediare which
10 the Court should approve. The proposal of the parties
11 is inherently unfair. What they propose to do in
12

f
their one step procedure is really give employees an

\ 13 opportunity to accept cash or to burn it. It is not
14 an opportunity which would lend itself to reasoned
15 decision as to some very, very complicated rights.
16 We don't purport to say, as Mr. Gottesman suggested.
17 that everyone should turn down the waiver.

• I think the parties should at least
19 recognize that everybody in their best interest should
20 not take the waiver. It is a very complicated
21 situation, depending on the scope of the release and
22 individual facts and some things which are not
23 presently known. For example, how the back pay was
24 calculated, but that is an issue that we will get to
25 later. In any case, the procedure should provide.

5/S<0



7 81
1 common to this and to other items that are a
2 part of the request of the intervenors is delay.
3 The Union is very sensitive to this because people
4 tend to look to the Union where is my payment.
5 even though in this case, the Union is partially
6 a payor. People tend to come to us and not to

the company with their grievances about delay.
8 and so, we've been innundated with this and
9 people are looking to us as failing in our
10 responsibilities as their representative, not
11 as one of the Defendants, in not getting this
12 money out.
13 We hear the suggestion for two-steps
14 and for six months and all we hear is more delay.
15 and we're really very anxious that this money get
16 out,
17 THE COURT: From the standpoint of the

Union, I would view it that the Audit and Review
19 Committee would have the power, or if not, perhaps
20 some responsibility to address itself to problems
21 of individuals needing more than thirty days and
22 in some way to perhaps delegate authority to an
23 implementation committee to grant an additional
24 time or something of that sort.
25 MR, GOTTESMAN; Well, as to power, I



______8 - j---------  82
1 think there's no question. As to desirability.
2 nobody has voted to put me on the committee. I
3 think Your Honor's suggestion is extremely good, that
4 people ought to be required to make the request
5 within whatever the time limit so that we don't
6 have people wandering aimlessly, but people who

w 1 say I need this time because I have scheduled an
8 appointment with a lawyer and it's two weeks from
9 now or I have made an inquiry that I need some
10 information on.
11 It certainly would make all good sense
12 to me and I hope it would to the committee that
13 such a procedure be established.
14 THE COURT: I make inquiry of the
15 companies in that same regard as to a position
16 dealing with the, at least the power of the
17 Audit and Review Committee to set up some

mechanism that would give opportunity for extension
19 of time to those that made a special request.
20 MR. MURRAY: Judge, I think this, that
21 this is a matter that I have to approach the
22 Audit and Review Committee on to get their views
23 and without authority to represent what their view
24 i6. I know what their policy is.
25 Their policy is that the consent decrees

3



in aP
9

1 are living documents that contain within them

2 remedial relief that are designed to make it work.

3 Now, ® t o  your specific question, I'd have to

4 approach them and get the benefit of their
i-

5 consolidated view. 1

• the COURT: Mr. Moore. >
7 MR. MOORE: Your Honor, I would point

8 out Chat under the very paragraph that we have

9 centered our discussion around, 18(g), it says

10 that the amount of back pay determined to be due

11 to each affected employee shall be tendered to

12 him in accordance with procedures established with

13 the Audit and Review Committee.

14 I would venture to say that that statement

15 would authorize or give the Audit and Review

16 committee the sufficient latitude to Implement a

• procedure such as the Court has suggested, and in

18 fact as I indicated earlier, I would say that

19 that's exactly what we've done in making such

20 determinations about the amount, Che date, time.

21 and how to handle these mistaken checks, and we're

22 certain to have some.

23 THE COURT: I'd prefer to go on forward

\ 24 with the balance of the objections or take

25 additional objections because I think rulings in on<a



10 84
1 area may have some impact in some of the others and
2 perhaps I'd be better off not attempting to resolve
3 particular questions until all of them have been
4 dealt with.
5 MR. GOLDSTEIN; Your Honor, do you want
6

A me to proceed on number one?
THE COURT: I believe you can deal with

8 items one through five somewhat together.
9 MR, GOLDSTEIN: I have a slightly
10 different category, Your Honor, but I think you
11 can do a number of them together, I think it's
12 paradoxical that throughout the prior litigation
13 of these decrees that defendants would respond
14 to many objections raised by the Harris
15 interveners with a statement, "Don't worry, the
16 notice will describe everything, there will be
17 sufficient information provided, almost more

than enough".
19 Now, a notice is presented that does
20 not carefully describe alternative procedures to
21 people, that doesn't tell them that they may
22 request assistance from counsel, that does not
23 even tell them the name of counsel if they are
24 represented by counsel. There's just a gross
25 and pervasive lack of information in the notices.

3 1



11 85
1 This carries over to the EEOC letters, but
2 I will ju3t limit my remarks here to the notices.
3 I would say that there are two categories concerning
4 the inadequate information.
5 The first category is described in our
6

A objections to the proposed notice, 2(b), 1 and
W 7 7 through 9. Briefly these objections deal with

8 the inadequacy of information concerning the consent
9 decrees or the consent decree litigation itself.
10 The second category which I'll not address
11 right now concerns inadequate information concerning
12 alternative means which an employee can follow apart
13 from accepting a tender of back pay and executing
14 the release.
15 First —  and then objection number Bl —
16 there's no description of the claims of discriminatioi1
17 in the complaint. Now, especially if there's to be

•̂  18 a waiver of injunctive relief and an employee is
19 asked to waive his rights to full relief, monetary
20 and injunctive, to practices of discrimination, he
21 should be told what those practices are. It's
22 generally the practice, as I understand it, in
23 Rule 23 class action cases to list at least the
24 claims of discrimination and you could do it -- I
25 believe it's paragraph sixteen through eighteen of

3



12 86
1 the complaint filed by the Government which lists
2 the allegations of the discrinmatory practices of
3 the defendants.
4 Secondly, --
5 THE COURT: And how do you think that
6

A would assist an employee who gets this notice?
MR, GOLDSTEIN; As it stands now there's

8 a statement that an employee will waive his rights
9 to discrimination. As the Fifth Circuit has stated.
10 not all discrimination is overt. Most of the
11 practices of employment discrimination that the
12 Courts have dealt with are systemic and not readily
13 apparent to the individual employee. He just knows
14 that he's in a lower job than whites or males.
15 The complaint lists the specific types of
16 practices that people have been asdgned to, lower
17 jobs that have been all black, that there has been

0 a seniority system which locks people into those
19 positions and an employee should understand that
20 if the position he's in now as a result of the
21 relief provided by the consent decree has not
22 really gotten him out of that position that he's
23 waiving all rights to full remedy from that
24 discrimination.
25 The second set of objections on the



13 87
1 inadequacy of the description of the present consent
2 decree litigation concerns back pay, and they are
3 objections seven through nine and really can be
4 looked at together.
5 The calculation in amount of the amounts
6 of back pay is now secret as far as Harris

intervenors go. There has been no public disclosure
8 as to how it was calculated. There isn't even any
9 indication as to what the time period is for the
10 calculation of back pay.
11 THE COURT: I'm not sure whether you are
12 familiar with this or not, but the report of
13 calculation was filed on December 4th, 1975 and is
14 a matter of the Court public records.
15 Now, I'm not saying that means people
16 effectively have access to the Court records, but
17 in fact this has been on record since December 4th.

I am not sure whether you are aware of that or not.
19 MR. GOLDSTEIN; No, Your Honor, I am not
20 aware of it, I would think that that might expedite
21 our objections, as a matter of fact, if there is
22 such a document, if the document has been filed.
23 We would feel that one of the first items of
24 consideration that anybody considers when deciding
25 wheter or not to accept a settlement, whether it be



14 _________________ _______________________________________ 8 ^
1 in a Title 7 case or regular business action, is.
2 well, how is the money arrived at, what was my
3 total possible recovery or something to that extent.
4 what is the time period and some idea of what the
5 compromise was as to the back pay. I would think
6A that that would be relatively easy to put into the
7 notice and would be essential.
8 I think the third matter which is related
9 to this and is that there has to be a clear statement
10 that, as I think is the case, although I haven't
11 read the document, that the back pay is not
12 calculated on the basis of an individual's claim.
13 that this was derived at some formula which did not
14 take into account whether Mr. X was qualified for
15 very high paying jobs but had been denied those
1C jobs and that an analysis of his individual claim
17A might reveal that he would be entitled to more

back pay or indeed less, but at least that should
19 be made explicit.
20 THE COURT: I think that it's at least
21 implicit in the draft submitted in the description
22 of how it was calculated, but I take it what you're
23 saying is there ought to be an explicit statement
24 of that.
25 MR. GOLDSTEIN: That's correct. Your



15

3

4

End Take B

7

8 

9

10

11

12

13

14

15

16

17

18

19

20 

21 

22

23

24

25

_8^
Honor, and really as I recall the statement in the 
draft, it's to distribution. There's no statement 
as to how the amount itself was arrived at, which 
would go to our prior objections.

7 0



Take 9 - D11 90
1 THE COURT: All right.
2 MR. GOLDSTEIN: Well, I would think
3 also really just would be relying on the documents
4 we prepared here, and it was prepared on the
5 assumption that the injunctive waiver would not be
6 added. I think that it doesn’t need much argument

that the complexity of telling people what remedy
8 they are being provided is magnified when you are
9 dealing with injunctive remedy.
10 Now, I have not gone through the entire
11 file that has been submitted to the Court, but
12 I don't know if there has been a description of
13 all of the individual relief which was supposed to
14 be implemented at each plant, such as merging lines
15 of progression, the redefinition of vacancy in
16 the Ford case, change in the go al and time tables
17 or whether indeed there were any changes or if

• changes are contemplated for the future.
19 I think there has to be a description of
20 at least the injunctive relief that has been offered
21 as to whether it is going to be all that is going to
22 be offered.
23 THE COURT: You are now speaking really
24 of a local supplementation to the notice of rights
25 that went out last year or the year before?



91
1 MR. GOLDSTEIN: Yes, sir.
2 THE COURT: That would indicate any
3 special provisions dealing with that particular
4 plant, is that really what you are --
5 MR. GOLDSTEIN: Yes, sir. That is part
6A of it, I think really there is a second part which

w 7 was mentioned in our motion for leave to take
8 discovery. That is, if the Court is going to approve
9 waiver of injunctive relief with very strong public
10 policy to provide full relief from discrimination.
11 that there should be adequate showing that the relief
12 provided at all of the individual plants is in
13 fact designed to afford full relief. That would
14 require certainly a description of the individual
15 relief provided, a statement as to the principles
16 guiding the various implementation committees, or
17 Audit and Review Committee in deciding whether there

• would be redefinition of vacancies as at Fairfield
19 Works or merging or changing goals and time tables
20 or even if in fact any of these changes have been
21 made.
22 I think that there would be as a
23 correlary need, some analysis of how effective
24 the relief has been. Now, this would not be
25 burdensome because, as the Fifth Circuit mentioned.



92
1 the companies are required, I think it is under
2 paragraph fifteen of consent decree one and of
3 consent decree two, to keep a record of all
4 promotions since April 12th, 1974 by race and sex.
5 I think that if we are going to have an injunctive
6 waiver there has to be some showing to the Court

• as to the effectiveness of the injunctive relief
8 and then a description to the workers so that they
9 can make analysis of whether or not the remedy
10 is sufficient and they therefore can knowingly
11 waive their rights to further relief.
12 I have some comments on the second
13 categories of objections if you want.
14 THE COURT: I think perhaps you can go
15 on forward.
16 MR. GOLDSTEIN; The second category is
17 insufficient information concerning description of

• the alternatives, which individuals have.
19 I would think that these objections are
20 listed in Section 2(b)2 through 6 and 2(c) 1
21 through 3. I will make very limited remarks on
22 the pending litigation in light of the Court's
23 ruling.
24 I believe it is objections two through
25 five that really all deal with the problem of

3 3 o o J



93
1 affording employees adequate information concerning
2 the alternative to seek additional counsel from
3 attorneys and their right to proceed with private
4 litigation.
5 There is no mention of that in the notice
6 which is to be sent out to the employees of no

pending litigation. Workers should be told
8 specifically they have a right to consult counsel
9 before they accept or reject the tender and that
10 they have a right to file a private action and
11 that there should be some description of private
12 action. That is, if you are able to prove
13 discrimination and result and economic harm that
14 you will be entitled to back pay in all probability
15 as well as payment of the attorney's fees and costs.
16 It should be explicitly stated that the
17 result of the private litigation may result in a

• greater recovery of back pay or maybe in less money.
19 THE COURT: You mentioned --
20 MR. GOLDSTEIN: Excuse me.
21 THE COURT: -- an Item D5, the right to
22 free counsel, as I view it, for consultation about
23 whether or not to accept the back pay. I may be
24 misreading what you are suggesting, but if I am
25 reading that correctly, I don't think there is

33



___________ ___________________________________________94
1 any such right.
2 MR. GOLSTEIN: The statute doesn't provide
3 at least explicitly for free counsel. It may be
4 that a Court can read that into the statute. That
5 is not what we are specifically requesting here.
6 What we are requesting here is that under Section

^  7 706(c) of Title 7 an employee has a right to request
8 the clerk or judge in a local District Court for
9 appointment of an attorney and that the local District
10 Court would, of course, have the discretion to grant
11 or deny that.
12 I think again there is going to be a
13 potential problem, especially if we are talking about
14 a 30 or 60 day or 45 day notice period in which in
15 a place like Pittsburgh thousands of workers are
16 gong to wonder what to do. A lot of the people may
17 not be familiar with an attorney, I think it would

• be appropriate for the employees to be informed of
19 their right to go to a local District Court for
20 appointment of an attorney, I think that that would
21 be a fair procedure for all involved.
22 THE COURT: Isn't this after a person
23 obtains a right to sue letter from the EEOC and
24 is in contemplation of filing an action and then
25 the person can come and request appointment of an



95
1 attorney really for that purpose. As an exanple
2 where that has gone on in the past on occasion, the
3 attornejs so designated have checked into the litigation
4 or potential litigation and say, "We don't believe
5 this is a matter that should be presented or should
6A be pursued", I don't believe the Court would have

any authority, number one, to pay that attorney any
8 money.
9 MR, GOLDSTEIN: What we are trying to do
10 here. Your Honor, is address the problem of where
11 can people get other counsel than counsel from the
12

(
implementation committee which is in fact the

13 defendants, no matter how impartial they may try to
14 be and there are some problems that are going to
15 arise, as we have alleged in our motion.
16 I think that in a way this is very much
17 analogous to receiving a right to sue letter. If

one does not file within a certain period a lawsuit
19 after receipt of a right to sue letter, you are
20 barred, at least under Title 7. Similarly here, and
21 especially with the injunctive waiver, if an employee
22 that signs the release, he is similarly barred from
23 litigating over his claims of discrimination, at
24 least which have accrued to that point.
25 THE COURT; Wouldn't that problem really best



96
1 be handled by addressing it in the EEOC letters going
2 out to people with pending claims with EEOC?
3 MR. GOLDSTEIN: Well, I think that people
4 are waiving their right to sue under Section 1981,
5 42 use 1981 as well and they are also waiving their
6 right at least for back pay to be a class member in

•̂  7 an action which may well be brought by someone who
8 has pending EEOC charges. I think there is at this
9 point, just like an employee does not act on a
10 right to sue letter, there is a waiver of very real
11 and important right of action.
12 The last objection in this category is
13 number six in which we address the problem that
14 it will be extremely difficult for the most
15 intelligent employee with experienced Title 7 counsel
16 to evaluate his claim and whether or not he should
17 accept the tender of back pay.

We are not proposing specific information.
19 We have thought and assumed all along that the
20 Government would be responsible for coming up with
21 some way of categorizing information for providing
22 some means for employees or their counsel to
23 determine the adequacy of the back pay for their
24 specific clients.
25 As stated in our papers, we feel counsel

3 3



97
1 for the Government represented that.
2 There has been a massive task force of
3 Government employees working for twenty months on
4 this. They, with the assistance of the defendants.
5 have had, as requirements under paragraphs four.
6

A six and several other paragraphs of the consent
decree and also as directed by the Fifth Circuit,

8 they have been under an obligation to investigate
9 and collect information concerning individual
10 situations, the effect of the remedy for individual.
11 To do that, of course, one would have to accumulate
12 data as to past discrimination.
13 We are not aware of what information is
14 available or how much the Government has collected
15 as they theoretically were required to collect
16 under the consent decree and in the Fifth Circuit's
17 order, but we would contend that the Government

should be required to make available information
19 to employees and some information to be put in the
20 notices. There could be some comparison of the
21 gross wages of blacks and whites or of males and
22 females of various plants, if that information is
23 available to the employee or his counsel, I
24 think that I could go on and suggest other
25 information, but that the obligation is on the part

B 3



98
1 of the Government, and they have had thousands of
2 man hours to this time to come up with such
3 information and we feel that it is a real default
4 on their part that they have not.
5 Thank you. Your Honor.
6

A
*

MR. MOORE; Your Honor, if I could, I
would like to make these matters more in the order

8 in which they are listed in the objections filed.
9 The first one being the question of
10 setting out the allegations of discrimination in
11 the complaint.
12 The Government has no objection to those
13 being included in the letter. We will say that
14 what is really informative to the employee is not
15 a copy of the complaint, but the decree and they
16 either have the decree or have access to the decree.
17 That is what tells them what their rights are and

what the seniority system is and I might also add
19 it also tells them what the standard is that the
20 implementation committees are to follow in making
21 the reviews with regard to temporary vacancies and
22 so on and so forth.
23 With regard to the series of alternatives.
24 We have no objections to changing the introductory
25 sentence or last sentence of the first paragraph to

3 3 4 a--



99
1 read: "it is in your interest to read this letter
2 carefully before deciding whether to accept the
3 offer of back pay and sign a release which will
4 waive certain rights that you otherwise would have",
5 We, of course, also have no objection

to informing all employees that they have the
7 right to consult a private counsel.
8 Of course, we can't be responsible for
9 the advice that the counsel would give.
10 Now, with regard to the right to maintain
11 a private action. We strongly object to advising
12 recipients that they have a right to maintain a
13 private lawsuit. That is simply not a true state-
14 ment for any but perhaps no more than the 411
15 employees out of forty six thousand who have
16 pending EEOC charges.
17A Now, as for the other forty six thousand

people involved, here, I think we have to recognize
19 that the Fifth Circuit in Pettway, Ford and
20 Allegheny-Ludlum has held that normally back pay
21 liability stops accruing after systemic reforms
22 are undertaken. We are fast approaching the
23 second anniversary of the systemic reforms of
24 consent decree one. Title 7 has a two year
25 statute of limitations and few states have a



100
1 longer period which would control 1981 actions.
2 To advise these eligible employees as
3 the intervenors suggest that they can maintain a
4 private action for back pay and further to advise
5 them that in all probability** they will recover.

• we think would be a positive disservice to these
7 people.
8 It is in our view pure misinformation and
9 it is not saved by telling the employee that the
10 tender under consent decree one may be more or less
11 than what the suit could obtain.
12 Of course, where private suits of class
13 action nature are pending, the employee will be
14 advised of this by the notice letter. Likewise,
15 those employees with EEOC charges will be advised
16 of their suit option. Again, as for the remaining
17A employees, we simply must object to the advice that

• we understand that the intervenors would seek for
19 us to give.
20 Now, of course, I might also add that
21 what I have said assumes such an employee has a
22 provable claim recognizable in the law, but we
23 know that there are employees with no claims at
24 all and others with weak claims and there will be
25 ones with personal claims that are piovable claims

3



101
1 but without the ability for one reason or another
2 to obtain confident counsel. Yet, such employees
3 on the advice that the intervenors would have the
4 Audit and Review Committee give might well reject
5 this tender and we believe to their definite
6 detriment.

w 7 With regard to right to consult attorneys.
8 As I said before, which was their objection number
9 four, we have no objection. Again, any employee
10 can retain private counsel and that his advising
11 him of such is fine. We would say that he should
12 also be advised that the parties to the consent
13 decree cannot be bound by what advice private
14 counsel might give.
15 As for the right to court appointed
16 counsel. The Court has indicated and we also
17

A believe that in the absence of a charge filed with
the EEOC and right to sue letter issued by that

19 Commission, that Section 706(e) simply does not
20 authorize appointment of counsel.
21 With regard to the factual information.
22 The intervenors would have the notice of right to
23 include data on the income disparity between blacks
24 and whites of comparable years of plant service.
25 We object to this suggestion.

1



102
1 As this Court is aware and as the
2 Government is aware, such raw data at the most
3 is but a starting point. Against it must be
4 weighed the opportunities which have occurred in
5 a measured period of time, how many and which
6 employees would have gotten them and whether the

employees would have taken them and did take those
8 under the previous system of seniority which were
9 available to them. That a simple statement of
10 earnings difference is misinformation to an
11 employee that was demonstrated by the Fifth Circuit
12 in Ford. There it took a hypothetical situation of
13 five black employees and one vacancy. There is no
14 way of telling accurately who would have gotten it
15 had the system been different.
16 The Court took the greatest disparity
17 by means of linear progression calculated a

• recovery equal to one-third of each employee’s
19 disparity, but qualified this by pointing out the
20 right of the defendant to show that under no
21 circumstances would the employee with the greatest
22 disparity would have taken the vacancy and, of
23 course, to the extent that the defairiants succeed
24 in such a showing, that the percentage of disparity
25 would be further reduced by one-third. This is



- - 103
1 not the end of the difficulties for the Fifth
2 Circuit went on to note: ”Of course, the prorata
3 method will seldom, if ever, work out as
4 conclusively or as simply as the example", and
5 that the Court pursuing this method "will have to
6 deal with tedins computed fractional constants in

most cases". The Fifth Circuit also pointed out
8 that this prorata method was but one of many
9 possible methods that could be followed.
10 As the Court said, back pay calculations
11 are quagmire. It was in recognition of this
12 quagmire, among other considerations that caused
13 the Government to settle its back pay claims
14 against this industry. We oppose the intervenors*
15 attempt to drag us into it by a call for data.
1C The only fair and objective treatment of which
17 would call for a phase two in the Ford case

9 consent, a man by man informational proceeding.
19 To settle a case cannot mean this, especially
20 where the action is not a class action, the
21 settlement of which would bind all of the members
22 otherwise.

End Take 9j3
 ̂ 24

25

3  0^



ake 10 - JW . - 104
1 THE COURT: All right.
2 MR. MOORE: Data about tha racs and sex
3 composition of every job is even more meaningless
4 information. It is so fragmentized at Fairfield.
5 As an example, there were roughly ten thousand
6 employees on approximately three thousand different

• jobs. That's an average of three and a third
8 employees to a job. Such figures cannot without
9 more and very sophisticated treatment tell the
10 employee much of anything. The intervenors recognize
11 this and recognize the employees' need for an
12 experxenced Title 7 attorney to< objectively treat it.
13 The intervenors have such counsel and
14 five suits pending. They have said the Government
15 should have assembled this material. We have a
16 good deal of material, no doubt about that, but
17 I would suggest that through discovery they should

• have obtained the same material on their own. As
19 for the method of calculation, this is as the
20 Court knows, a complex subject.
21 The Audit and Review Committee notice
22 explains the basic determinant of the amount
23 involved, which is plant age, and he or she is
24 advised to direct any further questions he or she
25 may have to his or her implementation committee.



_______ _____________________________________________ 105
1 Representatives of the implementation committee
2 will be able to give or get to such employees a
3 full explanation of any subject they want. To
4 have attempted to include the type of information
5 that the intervenors called Erere in this notice
6

A letter would preclude anybody reading it. It would
have subjected the Audit and Review Committee to

8 the charge of burdening the letter with complex
9 and tedious details designed to confuse and not
10 enlighten the employee.
11 I think that the system that has been
12 devised, that is, any question about any subject
13 being and obtaining information to do so through
14 the implementation committee rather than trying
15 to burden this letter into a treatise is far and
16 better a way designed to fully inform the employees
17 of every right that they may have. Now, with

regard to the question of information about the
19 time period of calculation, the thirty one million
20 dollar figure or approximate figure is a fixed
21 amount arrived at as a settlement.
22 In following the decree formula for
23 minority employees, disparity in income was
24 calculated on the 1973 average hourly earnings.
25 That's the time period year period. I don't know

5



106
1 what that disclosure —
2 THE COURT: Well, one aspect of the
3 formula involves the 1973 earnings in terms of
4 disparity. Another aspect of the allocation
5 involves total service from the first year an
6 employee came to work, whether that's 1937 or

• '38, all the way through 1974 in a sense. I
8 think one has to look at the way the formula is
9 done to appreciate that you can't simply say
10 that it's based on so many years of service or
11 the like. It's a far more complicated procedure.
12 MR. MOORE; Yes, it is, and the
13 implementation committee will be prepared to
14 answer any questions, but to try to put that far
15 more complicated procedure into a letter I think
16 would really insure that the people did not read
17 the letter or large numbers would not read the

•
C

letter because it would be too tedious to read
19 the letter and they would miss the important
20 information that is in the letter.
21 Now, with regards to notifying people --
22 THE COURT: Let me ask you this. Will
23 you anticipate that the 25 page document explains
24 the formula would be made available to the various
25

3  ^



___________ _____________________________________________107
1 local implementation committees for potential
2 explanation to anybody interested?
3 MR. MOORE: Your Honor, we'll have --
4 the chairman, the company and Union chairman of
5 each of the implementation committees is intended
6 to have a day long explanation session with regard

• to the back pay calculations and other matters
8 concerning their duties with regards to the
9 dissimilation of information. The Audit and
10 Review Committee is meeting on two different
11 days and prior to that to put together the
12 informational package. We have not yet concluded
13 whether or not that document will or will not be
14 in it, because as the Court is aware, it's a
15 fairly technical document in itself. However,
16 everything in that document will be on a
17 blackboard discussion session explained to these

people. Now,ifthe Court thinks it would be
19 desirable, of course, we'd resolve the question
20 right now whether to provide it, but we have not
21 yet.
22 THE COURT; I would not think it would
23 be helpful particularly to have that document
24 available. I don't think it would be used locally.
25 Whether it ought to be available locally is



- 108
1 another matter.
2 MR. MOORE; Well, as I say, they will.
3 however, understand, hopefully will understand
4 the principle used and how it was done.
5 THE COURT: I think that if anybody
6 wanted to look at the document or they had an

attorney that wanted to look at the document
8 they ought to have the right to do so.
9 MR. MOORE: I would have no objection
10 to that. That the back pay tender, that there
11 be some statement in the notice that the back pay
12 tender is not directly based on any individual
13 situation other than his plant service for the
14 individual. That's the individualizing factor,
15 but it's not based on whether he does or does
16 not have a provable claim, any other aspect of
17 his individual situation.

• Now, collectively on the disparity on
19 the basis of plant by plant determinations, he
20 does get in there indirectly, but we would have
21 no objections with those qualifications of
22 advising an employee that this is based on a
23 formula and it is not based on individual
24 consideration of any other factor other than his
25 plant age, and quite frankly, I think that’s what

BilioOiJ



109
1 we have advised him, I believe I've already spoken
2 on the thirty day period and since we're not really
3 quite into the appendix A objections, I will decease.
4 MR. MURRAY: William K, Murray, speaking
5 for the companies. First, I'd like to say that we
6 agree with Mr. Moore that in reference to the

addition of paragraphs 15 through 18 as set forth
8 in the claims and consent decree we have no
9 objection to that. We question the wisdom of it.
10 It's four pages long. We're not sure that it will
11 help anybody. If it is put in, we think that it
12 should be put in in perhaps a footnote and a statement
13 should go with it that the companies have denied
14 those allegations.
15 As to the second point, just a little bit
16 more about what Mr. Moore said about the back pay
17 calculations, I'd like to invite the Court's

attention to the Fifth Circuit's opinion in this
19 case which has already ruled, and I am reading now
20 from 517 Federal Reporter -- it's head note 28, first.
21 I don't seem to have a page number on my copy. It's
22 862, I believe. The Court calculated the average.
23 what it thought was the average amount to be

' 24 tendered. It undercalculated by over a hundred
25 dollars.

3arjxj



110
1 But in reference to that, it says, our
2 limited scope of review neither requires nor permits
3 us to decide the adequacy of that amount which
4 resolves each and every doubt as if that were
5 possible in any event, and then it recites Pettway,
6

A and the language that has been referred to as
the quagmire of hypothetical judgments that is

8 necessary in order to make that calculation and
9 concludes that any calculation anyway is nothing
10 but a process of conjectures.
11 The Court then says on the next page that
12 it points out, and we have no objection, and I
13 think that if they want this to be pointed out, they
14 can point it out in the notice of rights, that
15 there is no assurance that by litigation they would
16 get as much as they get under the consent decree.
17 They may get more or they may get less.

The Fifth Circuit pointed out that
19 according to its calculation under the consent decree
20 the average employee would get $440,00 more than he
21 got in the litigated cases in this court, and that’s
22 in headnoteSO. Then it said, without saying more
23 about a litigated case, we may candidly observe
24 that it is far from clear that any particular
25 employee will be better off if he or she awaited

3  U-%a^



________________________ _______________________________111
1 contested litigation in lieu of accepting the
2 back pay provided in the consent decrees.
3 It then pointed out in reference to
4 whether an employee was competent to make a
5 decision, it said, and I'm reading from the top
6 of the next page on 864, it said, the consent

decrees offer minority and female employees an
8 opportunity to make an informed and voluntary
9 choice of whether tendered back pay is satisfactory
10 to them. No reason is suggested where we ought not
11 to consider them competent to make that decision.
12

(
We think the sum together with each eligible

13 employee's free option to reject his or her tender
14 amply satisfies any legal requirement with respect
15 to the size of the back pay tender offer.
16 Now, in reference to any matter that
17 Mr. Goldstein suggested about the employees LOP

changes or other changes of a local nature, we
19 think that is a matter for the local court and we
20 think again that the employee, having worked
21 in his position twenty months or more under the
22 consent decree is better able to judge that than
23 anyone else and there's not much advice someone
24 else can give him about that.
25 THE COURT: Well, that's a possibility

3



112
1 where there's local litigation, but there's what.
2 200 plants that have no local litigation.
3 MR, MURRAY; That employee still knows his
4 position. He knows what happened to him the last
5 twenty months and he couldn't ask a layer to tell
6 him. He'd have to tell the lawyer.

In reference to court appointed counsel.
8 however, I think it would be appropriate -- it would
9 be a mistake to say in a general notice that
10 employees do have a right. There are, like Mr.
11 Moore pointed out, employees who do not have rights.
12 For example, the employees in the Ford,
13 Hardy and McKinstry case tried here did not appeal
14 and they litigated a substantial portion and it
15 would be a mistake to assume that they have rights
16 and put that in a general notice. That's a matter
17 for local decision.

• In any event, I think that if they are
19 to be advised that they have the right to consult
20 with counsel, it would be proper to advise them
21 that they should consult counsel at their own
22 costs and that we accept no responsibility for
23 the advice that counsel gives.
24 MR. GOTTESMAN; The Union agrees virtually
25 in its entirety with the observations Mr. Murray has



113
1 made. There are just two points I'd like to make.
2 One is with respect to the request that
3 people be given certain information, statistical
4 data. I think the request arose out of the claim
5 by the intervenors or whoever they are that since
6

A this Court said that the waiver had to be voluntary
W 7 and knowing, that knowing means they have to know

8 what they would get or as much as possible about
9 what they would get if they chose the alternative
10 of rejecting the back pay. We've always understood
11 knowing to mean something quite different, that
12

f
they would know the consequences of accepting the

13 back pay, which is that they would lose the rights
14 that they otherwise have, and there's language in
15 the Fifth Circuit's opinion which supports that
16 that was their understanding because they talk
17

A about furnishing eligible employees with compre-
hensive relevant information about their rights.

19 for example, their membership in pending private
20 class actions.
21 So that it's clear to us, I think, that
22 the knowledge that the employees must be provided
23 by the notice is the knowledge of what they are

' ,. 24 giving up, and conversely, what their rights or
25 alternatives are and not a knowledge of how they



114
1 would do on the merits of those cases, and indeed,
2 as everybody has suggested, it would be absolutely
3 impossible to attempt to undertake to give them
4 very informed knowledge. Clearly we can't just
5 give them the little bits and pieces that the
6 intervenors suggest.

• In Allegheny-Ludlum, Footnote 28, the
8 Court pointed out that there are a number of
9 defenses to back pay that are available to the
10 defendants and which would presumably result in
11 certain individuals receiving no back pay at all.
12 This is the last paragraph of footnote 28.
13 The Court said that if after trial the
14 back pay issue were referred to a special master
15 for specialized computations, after giving
16 consideration to various defenses, including
17 lack of qualification, voluntary freezing, refusal

to bid and physical fitness -- now, if we are
19 going to give the people an education in their
20 prospects, we've got to tell them not only all
21 the nice statistical information, but all the
22 barriers, and that barrier of refusal to bid is
23 now a terribly important one because we've had
24 the curative system in effect for nearly two
25 years and we presumably have large numbers of

3 ^  ̂



115

1 p e o p l e  w h o  h a v e  a p p l i e d  f o r  t r a n s f e r  a n d  l a r g e

2 n u m b e r s  w h o  h a v e  no t ,  a n d  u n d e r  a f a i r l y

3 s u b s t a n t i a l  s e r i e s  o f  c a s e s  n o w  an e m p l o y e e  w h o
4 d o e s n ' t  s e e k  a t r a n s f e r  a f t e r  the c u r a t i v e  s y s t e m
5 g o e s  in t o  e f f e c t  is a t  l e a s t  p r i m a  f a c i e  a s s u m e d
6 w o u l d  n o t  h a v e  t r a n s f e r r e d  at s o m e  p r i o r  o p p o r t u n i t y

if it h a d  g o n e  on.

8 I a m  s u r e  t h a t ' s  a b u r d e n ,  a n d  t h e C b u r t
9 s a i d  this b e f o r e ,  t h a t ’s a b u r d e n  that h e  c a n
10 o v e r c o m e .  B u t  t h e r e ' s  a s u b s t a n t i a l  r i s k  for a
11 g r e a t  p e r c e n t a g e  o f  the p e o p l e  w h o  ar e  g o i n g  to
12 b e  t e n d e r e d  b a c k  p a y  th a t  t h e y  w i l l  g e t  a b s o l u t e l y

13 n o t h i n g  i f  t h e y  c h o o s e  the a l t e r n a t i v e  o f  p r i v a t e
14 l i t i g a t i o n ,  a n d  i n d e e d ,  i f  t h e y  t h o u g h t  it w e r e
15 f e a s i b l e  to d o  so, w e  w o u l d  a d v o c a t e  t h a t  t h e y  get

16 a c o m p l e t e  e d u c a t i o n ,  as it w e r e ,  in the r i s k s .
17 T h e  p r o b l e m  is t h a t  the l a w  is so

u n s e t t l e d ,  b o t h  as to the n a t u r e  o f  t h e s e  d e f e n s e s .
19 as to the t h e o r i e s  o f  c a l c u l a t i n g  t h e  m o n e y  for
20 t h o s e  w h o  a r e  e n t i t l e d  to it. It's n o t  o n l y  the

21 q u a g m i r e  o n  h y p o t h e t i c a l s  o f  h o w  y o u  c o m p u t e  it

22 b u t  a l s o  t r e m e n d o u s  u n c e r t a i n t y  in the la w  as to

23 w h a t  d i s q u a l i f i e s  an e m p l o y e e  f r o m  r e c e i v i n g .

24 No  m a t t e r  w h a t  e f f o r t  w e  m a k e ,  y o u  kn o w .

25 u n l e s s  w e  a r e  g o i n g  to w r i t e  th e  u l t i m a t e  l a w

3 r 3 o



116
1 review article to date on what the status of back
2 pay is, and even then undoubtedly we will be as
3 wrong as we are right in our speculations and
4 efforts to predict what the law is going to be.
5 The whole purpose of the settlement
6 was for those who are willing to do it to forsake

that kind of unforeseeable exploration in lieu of
8 an amount of money which will be tendered and, if
9 the person were willing to accept it, would be
10 deemed as sufficient.
11 But our view is that if we put our toe
12 in the water in attempting to give substance, we've
13 got to at least give the other side of the story
14 too, not just that nice statistical thing that
15 blacks are in this and whites are in this on the
16 average. No Court has said that that's the
17 measure.

9 The other thing is on advice on how
19 the injunctive remedies are working, and this is
20 what has been done at your plant. So, the
21 predicate for the request that this be added is
22 that since there's now going to be a waiver of the
23 right to seek injunctive reform people ought to
24 know what they've got. Again, that is a factually
25 incorrect predicate because people are not waiving



117

1 t h e i r  r i g h t s  to s e e k  i n j u n c t i v e  r e f o r m .  T h e y ' r e

2 j u s t  w a i v i n g  t h e i r  r i g h t s  to s e e k  it t h r o u g h  an

3 i n d e p e n d e n t  a c t i o n .  T h e y  w i l l  r e t a i n  the r i g h t

4 to s e e k  a d d i t i o n a l  i n j u n c t i v e  r e f o r m  t h r o u g h  a l l

5 t h e  m e c h a n i s m s  o f  t h i s  d e c r e e ,  a n d  c o n s e q u e n t l y .

6 it is n o t  e s s e n t i a l  t h a t  p e o p l e  k n o w  n o w  w h a t  the

• F i f t h  C i r c u i t  s a i d  w a s  u n k n o w a b l e .  T h e y  s a i d  it

8 c a n n o t  be k n o w n  n o w  w h e t h e r  the i n j u n c t i v e  r e l i e f

9 is g o i n g  to be a d e q u a t e .  T h a t ' s  g o i n g  to d e p e n d

10 o n  e f f o r t s  o v e r  a p e r i o d  o f  y e a r s .

11 So, w e  c a n ’t g i v e  e m p l o y e e s  the f i n a l

12 i n f o r m a t i o n  o n  that, b u t  w e  h a v e  r e t a i n e d  fo r
f

13
>

t h e m  w i t h i n  the s t r u c t u r e  o f  the d e c r e e  a l l  the

14 m e c h a n i s m s  to g e t  the r e l i e f  if in  f a c t  the

15 p r e s e n t  r e l i e f  p r o v e s  i n a d e q u a t e .

16 F i n a l l y ,  t h e  o n l y  o t h e r  t h i n g  I v a n t

17 to a d d r e s s  m y s e l f  to is t h e  r e q u e s t  t h a t  p e o p l e

• be t o l d  t h e y  h a v e  a r i g h t  to an a t t o r n e y .  T h e

19 U n i o n  s t r o n g l y  o p p o s e s  t h e  a d d i t i o n  o f  t h a t  f o r

20 a c o u p l e  o f  g r e a t  p r a c t i c a l  r e a s o n s .

21 N u m b e r  o n e ,  i t ' s  gratuitous. C e r t a i n l y

22 n o  o n e  t h i n k s  t h a t  t h e  r e c e i p t  o f  t h i s  n o t i c e

23 f o r b i d s  h i m  s e e k i n g  an a t t o r n e y .  T h e y  m u s t  s u r e l y

24 k n o w  t h a t  t h e y  h a v e  t h a t  r i g h t  i f  t h e y  w a n t  it.

25 B u t  p u t t i n g  it in, p r e c i s e l y  b e c a u s e  i t ' s



118
1 gratuitous, putting it in has implications. If we
2 say you have a right to retain an attorney, there will
3 be people who will say that implicitly means the
4 Audit and Review Committee will pay my attorney. In
5 certain context, that's what the right to an attorney
6 has been understood to mean.

• More frightening for us, the last thing
8 in the world that we want is for people to later come
9 in and say my waiver was ill advised because I talked
10 to an attorney and he told me this, that and the
11 other and it turns out his information was all wrong
12 and, for goodness sake, this notice told me that I
13 had the right to go out and get this, so, these
14 people have, even with a disclaimer responsibility
15 for what he said. They steered me on the course that
16 led me to the incorrect information.
17 We just think that since there cannot be

• a person out there among these forty six thousand
19 who doesn't know that attorneys exist, nor can there
20 be one who thinks that he's forbidden by law from
21 seeking out the advice of one. There's jus t no
22 reason to put it in and there are terrible implicatioi s
23 that flow from putting it in.
24 So that, contrary to Mr. Moore, and this
25 is the only place where we disagree, we would urge

^sloOu



119

1 t h a t  t h a t  p a r t i c u l a r  o b j e c t i o n  o f  t h e  i n t e r v e n o r s
2 n o t  be a c c e p t e d .

3 TH E  C O U R T :  Is t h e r e  a n y t h i n g  in r e b u t t a l
4 as to the i t e m s  d e a l t  w i t h  t h u s  f a r  t h a t  i n t e r v e n o r s
5 w o u l d  l i k e  to n o t e  b e f o r e  w e  r e c e s s  f o r  l u n c h ?

• M R .  G O L D S T E I N :  d u s t  a c o u p l e  o f  v e r y
7 b r i e f  c o m m e n t s .  Y o u r  H o n o r ,  w i t h o u t  r e i t e r a t i n g .
8 It s e e m s  as b e s t  as I c a n  u n d e r s t a n d  the
9 a r g u m e n t  b y  M r .  M o o r e  t h a t  a l l  this i n f o r m a t i o n  is

10 too c o m p l i c a t e d  to be p u t  in w r i t i n g  o r  too
11 c o m p l i c a t e d  to be s u p e r v i s e d  by  the C o u r t ,  b u t  it
12

i
c a n  be o r a l l y  c o m m u n i c a t e d  b y  l a y m e n  s i t t i n g  in

V
13 i m p l e m e n t a t i o n  c o m m i t t e e s ,  t h a t  t h e y  c a n  a n s w e r
14 q u e s t i o n s  as to w h a t  an i n d i v i d u a l ' s  p o s i t i o n  is.
15 I t h i n k  t h a t  t h a t ' s  r e a l l y  a s k i n g  f o r  t r o u b l e .  I
16 m e a n ,  a d m i t t e d l y  i t ' s  c o m p l i c a t e d ,  b u t  t h e r e  a r e
17

• s o m e  t h i n g s  t h a t  c o u l d ,  w i t h  c a r e f u l  p r e p a r a t i o n .
18 a n d  the G o v e r n m e n t  has h a d  s u b s t a n t i a l  t i m e  to
19 u n d e r t a k e  t h a t  p r e p a r a t i o n ,  c o u l d  p r e s e n t  s o m e
20 i n f o r m a t i o n .

21 I w o u l d  a s s u m e  a n d  w o u l d  t h i n k  that the
22 C o u r t  w o u l d  s u p e r v i s e  o r  o r d e r  t h a t  t h e r e  be s o m e

23 o u t l i n e  o f  the i n f o r m a t i o n  w h i c h  the i m p l e m e n t a t i o n

24 c o m m i t t e e  m e m b e r s  w o u l d  p r o v i d e  to m e m b e r s  o r  is

25 it s o m e t h i n g  t h a t ' s  to be l e f t  u p  to t h e  d i s c r e t i o n



120
1 of the committee members.
2 As we allege in our motion today, and
3 we have evidence here today to put on, some EEOC
4 personnel allegedly have undertaken to persuade
5 people to withdraw their charge or to accept
6 the tender of back pay. Is the role of the

• implementation committee to not only give advice
8 unsupervised over complicated matters, but also
9 to persuade people? We would think that there
10 would be, and as we request, I guess, in paragraph
11 2(b) or (c) that there be a bar on persuasion, and
12 that there should also be a supervised form for
13 communication of complicated facts and that the
14 best way of doing that is to do that in conjunction
15 with the notice.
16 THE COURT: Let's take a recess for
17 45 minutes and return at 1:45.

• [Whereupon, proceedings were in recess
19 from 1 o'clock P.M. until 2:00 P.M., following
20 which the following occurred:]

End 21
Take 10

22

23

24

25

5  rSoLj



121
H  J M  take

1 1 A F T E R N O O N  S E S S I O N  2 : 0 0  P.M.
O
id T H E  C O U R T :  Mr .  M o o r e ?

3 M R .  M O O R E :  M a y  it p l e a s e  the C o u r t ,  Y o u r

•i H o n o r ,  I h a d  s p o k e n  w i t h  the i n t e r v e n o r s  c o n c e r n i n g

5 a m a t t e r  o f  the E E O C  l e t t e r s .  A g a i n  I r e i t e r a t e

6 t h e  g o v e r n m e n t  h a s  -- t h e  E q u a l  E m p l o y m e n t  O p p o r t u n i t }

• C o m m i s s i o n  ha s  as o f  n o w  d i r e c t e d  a l l  r e g i o n a l  a n d

8 d i s t r i c t  o f f i c e s  to c e a s e  a n d  d e s i s t  a n y  commurdca*

9 t i o n  w h i c h  b y  l e t t e r s  or o t h e r w i s e  w i t h  p e o p l e

10 w h o  a r e  e m p l o y e e s  w i t h  p e n d i n g  c h a r g e s  w h o  a r e

11 e m p l o y e e s  of the s t e e l  c o m p a n i e s  i n v o l v e d .

12 N o w ,  th e  i n t e r v e n o r s  s e e k  to h a v e  us n o t

13 o n l y  be e n j o i n e d  f r o m  d o i n g  t h a t  as to w h i c h  w e

14 a r e  v o l u n t a r i l y  d e s i s t i n g ,  b u t  a l s o  t h a t  i n  a l l

15 i n s t a n c e s  in w h i c h  a n y  l e t t e r s  h a v e  g o n e  o u t  or

IG o r a l  c o m m u n i c a t i o n s  h a v e  b e e n  m a d e  t h a t  w e  r e t r a c t

17 them.

N o w ,  w e  c a n ' t  a g r e e  to t h a t  b e c a u s e  we
•

19 d o n ' t  g e t  to k n o w  p r e c i s e l y  w h a t  has o c c u r r e d .

20 W e  k n o w  w h a t  w e  h a v e  a u t h o r i z e d .

21 A n d  t h e  m a t t e r  w h i c h  is c o n n e c t e d  to the

22 m o t i o n ,  n a m e l y ,  the d e t e r m i n a t i o n  l e t t e r  s e n t

23 to a n  e m p l o y e e  of  F a i r f i e l d  w a s  s p e c i f i c a l l y

24 n o t  a u t h o r i z e d .  F a i r f i e l d  w a s  n o t  to g e t  e v e n

25 a s t a t u s  r e p o r t  i n f o r m a t i o n  b u t  f o r  s o m e  r e a s o n



V

i

122
2

-' 1 it appears to have.
2 Where these clear errors have occurred we
3 are prepared to correct them by appropriate letters
4 to disregard and so on and so forth but -- and
5 we have proposed to proceed to do that as our
6

•
investigation reveals these erroneous mailings.
However, we would not be prepared tomorrow or

8 rather Monday to respond to this motion. We
9 would be prepared fairly soon within a week or
10 ten days to do so at which time we would be
11 prepared to give the Court a complete and full
12 report with regards to what has happened, what
13 corrective action has been taken and where there
14 is any erroneous action and to otherwise subject

• 15 ourselves to any other directions the Court might
16 have, but we just -- we cannot obtain the information
17

i| that we need to be prepared to respond to this
™  18 between now and Monday.

19 Thank you.
20 MR, ADAMS: Your Honor, may I respond to
21 that?
22 (Your Honor, we feel that this is of vital
23 importance. We have witnesses here who have --
24 some have been subpoenaed and are off of work at
25 Fairfield, some people who, from Republic Steel in

34o <u



123

V.

3

4

5

6
7

8 

9

10

11

12

13

14

15

16

17

18

19

20 

21 

22

23

24

Gadsden, and we think not only is it relevant 
to the motion filed this morning but also relevant 
to the issue involving the type of letter that 
EEOC is to send to various persons with charges 
to protect from the kind of statements we say are 
being made by one of the EEOC employees asking 
them to withdraw their charges.

Because of this kind of evidence which we 
are willing to proffer to the Court if it does not 
want to hear that evidence today, we certainly 
think Monday would be an appropriate time in which 
to consider it but in any event we would like 
the Court to defer ruling on the EEOC letters 
until such time as it may have heard this evidence. 
That is our position.

THE COURT: Number one, I would not be 
prepared to hear evidence on this motion today.
The motion actually was not set. I understand 
the emergency nature of it but I would not be 
prepared to hear evidence on it today or a proffer 
of evidence on it today.

It seems to me that a cessation of any 
further contact and certainly cessation of any 
allowance of a withdrawal of charges if such has 
been solicited, at least pending some fucther



_________________________________________________________________________ 1 2 4
4 1

h e a r i n g ,  is c e r t a i n l y  in o r d e r .  A n d  I t a k e  it
O
Lu

t h a t  the g o v e r n m e n t ’s c o m m e n t s  o f  l i m i t i n g  f u r t h e r
3

c o m m u n i c a t i o n  c a r r y  w i t h  t h a t  t h e r e  w i l l  be n o
4

c h a r g e s  d i s m i s s e d  a t  t h i s  t i m e  as a r e s u l t  of
5

s o l i c i t a t i o n  or c o m m u n i c a t i o n .  T h a t  b e i n g
6

•
the ca s e ,  it s e e m s  to m e  t h a t  e v i d e n c e  as s u c h

i

o n  a n y  f u r t h e r  c o r r e c t i v e  a c t i o n  t h a t  m i g h t  be
8

r e q u i r e d  n e e d  n o t  be h e a r d  M o n d a y  p r o v i d e d  it be
9 h e a r d  as n e e d e d  in t h e  v e r y  n e a r  f u t u r e .
10

I do u n d e r s t a n d  a n d  c a n  a g r e e  t h a t  the
11 l e t t e r s  t h a t t h e  E E O C  w o u l d  s e n d  o u t  m a y  r e q u i r e
12

f s p e c i a l  t a i l o r i n g  to m e e t  the p r o b l e m s  t h a t  h a v e
13 a r i s e n  b y  v i r t u e  o f  a c t i v i t i e s  d o n e  up to this
14 p o i n t  a n d  so t h a t  to s o m e  d e g r e e  in a n y  e v e n t
15 the a p p r o v a l  o f  a n y  E E O C  l e t t e r s  m a y  be s u b j e c t  to
1C o r  c o n d i t i o n a l  u p o n  s o m e  f u r t h e r  i n q u i r y  as to
17 w h a t  is p r e s e n t e d  in y o u r  m o t i o n .  I d o n ’t k n o w

w h e t h e r  I h a v e  m a d e  m y s e l f  c l e a r  b u t  w h a t  I a m
19 s a y i n g  is t h a t  I c a n  u n d e r s t a n d  t h a t  t h e  g o v e r n -
20 m e n t  w o u l d  n o t  b e  r e a d y  to g o  f o r w a r d  w i t h  the
21 e v i d e n c e  o n  M o n d a y  a n d  w o u l d  n o t  r e q u i r e  t h a t  to
22 b e  d o n e ,  b u t  I w o u l d  w a n t  e v i d e n c e  to be p r e s e n t e d
23 if it n e e d s  to b e  in th e  v e r y  n e a r  f u t u r e  a n d  I
24 w i l l  h a v e  to g e t  w i t h  c o u n s e l  as to w h e n  a n
25 a p p r o p r i a t e  t i m e  f o r  t h a t  w o u l d  be.

6  ̂  V o



125
5

1 MR .  M O O R E :  J u s t  f o r  c l a r i f i c a t i o n  t h e n

2 w e  w i l l  a l s o  -- b e c a u s e  th e  C o u r t  has i n d i c a t e d

3 in the v e r y  n e a r  f u t u r e ,  u n t i l  w e  n o t i f y  the

4 C o u r t ,  w e  w i l l  n o t  e v e n  u n d e r t a k e  a n y  c o r r e c t i v e

5 a c t i o n  w i t h  r e g a r d  to t h o s e  w h e r e  w e  d e t e r m i n e  it

is e r r o n e o u s  u n l e s s  t h e  C o u r t  t h i n k s  t h a t  t h a t
7 w o u l d  be a l l  r i g h t .

8 T H E  C O U R T :  I t h i n k  it w o u l d  be b e t t e r  n o t
9 to a t t e m p t  o a r r e c t i v e  a c t i o n  u n l e s s  e i t h e r  the

10 p a r t i e s  a r e  i n  a g r e e m e n t  as to w h a t  t h a t  c o r r e c t i v e

11 a c t i o n  s h o u l d  b e  --

12 M R .  M O O R E :  F i n e .

13 T H E  C O U R T :  -- o r  t h e  C o u r t  has a p p r o v e d  it.

14 o n e  o r  t h e  o t h e r .

15 MR. M O O R E :  T h e n  we s h o u l d  i d e n t i f y  the

16 p r o b l e m .

17 T H E  C O U R T :  I b e l i e v e  w e  w e r e  to the p o i n t

18 o f c b j e c t i n n s  r e l a t i n g  to t h e  d e s c r i p t i o n  o f  i m p a c t

19 in p e n d i n g  l i t i g a t i o n .

20 MR .  G O L D S T E I N :  M y  n a m e  is B a r r y  G o l d s t e i n

21 a n d  I r e p r e s e n t  th e  H a r r i s  i n t e r v e n o r s .

22 I t h i n k  o u r  o b j e c t i o n s  w i t h  r e s p e c t  to

23 p e n d i n g  c a s e s  c a n  be q u i c k l y  d e a l t  w i t h  as o f  t h e

24 C o u r t ’s p r i o r  r u l i n g .  H o w e v e r ,  as w e  s t a t e  in o u r

25 o b j e c t i o n  n u m b e r  on e ,  t h e  n o t i c e  p r o v i s i o n  w h i c h



1266
1 describes the scope of the waiver is contrary
Ou to the actual waiver under the consent decree
3 even as amended today and as the Fifth Circuit
4 interpreted it. It would seem that the purpose
5 of the waiver as described in the notice in
6 Appendix A is to simply require people to release

•
i any rights :that they would have to maintain a
8 pending private actionincluding allegations of
9 discriminatory acts that occurred after April 12th,

10 1974 and also their right to enforce the consent
11 decree. We interpret what the Fifth Circuit said
12 as allowing individuals to sue to enforce violations
13 of the consent decrees, not only here in Alabama
14 but in district courts in which their plants are
15 located.
16 Secondly, I think the Court in making clear
17A to local judges that it is appropriate for them

to formulate the notice should not give any
19 tacit approval or explicit approval to the second
20 paragraph and especially the last four sentences
21 in Appendix A which purports to describe pending
22 litigation. There may be some concerns there that
23 should be expressed but they certainly come of
24 their own concerns.
25 You want me to continue with the EEOC letters.



12 7
17 Your Honor?
2 THE COURT: No, let’s hold off on that.
3 This same problem would be involved not only
4 in describing in the notice the release and its
5 impact on pending litigation but actually would

• involve also the wording of the release itself,
7 would it not?
8 MR, GOLDSTEIN: Yes, I would think so
9 although it was unclear to me whether the release
10 would be changed for pending cases or not.
11 There was an inconsistency in the to tice itself
12 where the government objected to such a waiver in
13 cases where two employees who were not represented
14 in pending litigation but did not object to such
15 a waiver in cases where there was pending litiga-
16 tion.
17 THE COURT: Any response from the parties?

t 18 MR.MURRAY: In reference to his suggested
19 change in what may be in both the release and
20 the Exhibit A which I take it to mean on behalf
21 of, in any action pending in the United States,
22 we object to no -- we do not object to any clarifi-
23 cation of that to which more accurately states the
24 events after April 12th, 1974 which are not released
25 and that any other suggestion that clarifies and



128
8 1 makes that more accurate.

Ou As to his second objection, the last four
3 sentences of Appendix A, and I*m reading from the
4 fourth sentence, I thinkthe first one is "The
5 Court may grant or deny the plaintiffs* request
6 for injunctive relief and back pay." We think

• it*s important that their right in that regard
8 be explained. We don't object to editorial
9 changes but these are things that we do think
10 that this Court should at least suggest as a
11 guideline that's formed to the lower courts -- I
12 mean to other district courts.
13 (Laugher)
14 The second sentence further, "Plaintiffs
15 or defendants cor successful or unsuccessful
16 parties will be entitled to appeal," that's a true
17 statement. We are not pressing the point. But

• if the idea is to inform them of their rights.
19 we think that some statement -- I won't read the
20 other two sentences. Our objection is to leaving
21 them out based on the same grounds and it does
22 give them additional information that may be
23 beneficial.
24 MR. GOTTESMAN: If the Court please, I
25 would suggest perhaps that we ought to stay but



129
9

1 perhaps what it ought to be is a bracket at the
Ou sentence at the end which says that the Court
3 with jurisdiction over the private action has.
4 you know, is free to change this in such manner
5 as it deems appropriate in light of the particulars
6

•
of that case but I think the other courts will

7 in fact welcome some guideline or some framework
8 from this court as to at least the scope of what
9 ought to be included. Of course, they know how
10 to tailor it for their own purposes.
11 THE COURT: Anything from the gDvernment?
12 MR. MOORE: No, Your Honor. We would agree
13 that any clarification to make clear that there is
14 no waiver to rights to approach the decree clari-
15 fication should be provided as well as on the
1C question of waiving any rights to sue or otherwise
17

•
proceed out of violation of the decree but which

18 in due course would occur after the decree.
19 Now, as far as the last four sentences.
20 we will leave that to instructions but have no
21 objection to leaving that question to the local
22 courts to which these will be submitted.
23 MR. GOLDSTEIN: I have no further comments
24 on that. Your Honor, pending litigation.
25 THE COURT: All right. If you will, go to



130le
1 the EEOC letters.
2 MR. GOLDSTEIN: Your Honor, I think that
3 the objections previously stated by the Hards
4 intervenors with respect to the notice of rights
5 are equally applicable to the EEOC letters and in
6 a very definite sense each more important

^  7 especially with the first letter which I believe
8 covers people who are entitled to back pay and whose
9 charged for those wholly within the consent decree.
10 The reason that I say that is that here what is
11 implicit in the notice is making it explicit. The
12 government says take the money in so many words.
13 Mr. Moore and the parties have described the
14 complexity of the situation of determining whether
15 or not back pay is sufficient for an individual.
16 There is no indication in the letter that it is a
17 complex decision. They just say take the money.

•  18 I would think that if an employee walked into a
9

19 - lawyer's office and said "I have been offered
20 $500 for a settlement, should I take it” and the
21 lawyer said, "Well, you'll be $500 richer, don't
22 bother me with facts,” that he would be open to
23 sue on that. I don't think the government should
24 be able to do that. If they are going to make
25 recommendations, it^ould be made very carefully

3



131
1 1

1 and very explicitly on what information the
2 government is making in that judgment; they should
3 somehow describe the individual's claim, what his
4 possible recovery is and why the amount in the
5 consent decree is adequate; similarly, if it's
6

• not adequate they should inform the employee to
7 the same extent, but as is more likely, if they
8 don't know whether it's a good deal or not, if
9 they have no specific evidence with respect to the
10 individual, they should tell them that; similarly,
11 with the problem with injunctive relief, that
12

( should be made clear, what relief he was afforded
13 under the consent decree, how that went to
14 resolve his pending charge and why he is not in
15 need of any further injunctive relief if in fact
16 that is the case or of course if he is not in his
17

A
*

rightful place or will not soon be there, the
government, I would think, if they are going to

19 make any recommendation under the consent decree.
20 would be obligated to tell the employee that.
21 I mean I assume from this letter that the government
22 intends to tell all 411 people who fall into this
23 category that they should take the money and --

V. 24 THE COURT: I was not aware that the 411
25 represented those who fell into what we will call



132
1 2 1 category one only. I assume that that included

2 those that fell into categories one through six.
3 but --

- 4 MR. MOORE; No, Your Honor. These are
5 the -- the 411 are those who fall into category
6

A of the three categories of persons entitled to
back pay. Now, there are 400 employees, additional

8 persons who are in the category of not being en-
9 ^^bled,that is, they don’t fit the definition under
10 the decree of an effective employee entitled to
11 back pay again because of need of some other
12 instances but they are then, with regard to each
13 of the categories, we give the Court further infor-
14 mation.
15 MR, GOLDSTEIN: As far as letter number two
16 which is the notice to charging party who charges
17

A wholly within the consent decree but who is not
entitled to back pay under that consent decree.

19 the statement that under the decree you are not
20 entitled to back pay is misleading and this is
21 considerably questionable as to whether or not it
22 would be an appropriate letter to send out under
23 the consent decree; similarly, the information that
24 we set forth on page 23 and 24 of our objections
25 that there should be a specification as to -- and

3 7 0



133

3

4

5

8

9

10

11

12

13

14

15

16

17

18

19

20 

21 

22

23

24

this was promised under the consent decree with 
this speedy investigation, that there would be 
an investigation as to the particular conplaints, 
a determination for the employee as to whether 
or not his complaints were resolved and if so, 
how, that information should be provided to those 
employees.

With the remaining notices we make the 
argument that the EEOC was expected to conduct 
an expedited investigation in attempt to resolve 
all pending charges which allege employment 
practices not wholly within the scope of the decrees 
These letters don't inform people as to that 
investigation or that the information is available 
or as we list on page 25 the factors that an 
employee would need to know as to how his charge 
is being resolved.

The extent to which the consent decree if 
at all resolved his charges, whether his charges 
are -- there is reasonable cause to believe that 
his charges are valid, the conciliation attempts 
that are being undertaken by the government, et 
cetera,

It's twenty months after the consent decree 
was entered and one would think that an expedited

3 7 / * - -



«
______________________________________________________ 13414

1 investigation in determination and conciliation
2 would have been faMy far advanced at this point
3 if not finished and the letters in these categories
•i just inform people that such an investigation and
5 conciliation will occur and probably what is more
6

i| problematic is that with respect to the people
w who are entitled to some back pay there it not a

8 clear explicit statement that that back pay does
9 not cover a remedy or compensation for charges
10 that are not within the scope of the consent decree
11 and if in fact there is no statement as to which
12 charges or allegations the government perceives
13 as being within the scope of the consent decree
14 and which are not.
15 THE COURT: Is the principal problem you
16 are raising there that the letter itself should
IT

A go into a lot of these details rather than, as I
understand it, having those matters dealt with

19 by the conference method with the employee?
20 MR. GOIDSTEIN: Well, our position is
21 that to the extent that the communications can be
22 supervised and regularized, the fewer problems
23 there will be in people being misled and that is
24 one of the reasons that we think the evidence that
25 we are prepared to present on the communications

37^-0-



13515
1 to employees by some EEOC personnel or at least
2 one individual is relevant to this matter.
3 MR. Moore stated that with the large number
4 of government personnel cor personnel of a private
5 company it's hard to control informal communications.
6

A People get it wrong. They might not intend to mis-
• lead or they might intend to mislead; but to the

8 extent you can have a written regularized communica-
9 tion you are going to limit those problems.
10 Thank you.
11 MR. MOORE: Now, may it please the Court,
12 I would like to again introduce Robert Nichols,
13 attorney for the EEOC who has for that commission
14 responsibility for this area and if the Court
15 pleases he will respond.
16 MR, NICHOLS: May it please the Court,
17

A before getting into the specific objections of the
Harris intervenors concerning our motion that the

19 Court adopt the EEOC notice letters I would like
20 to hand the Court a revised copy, some changes in
21

•4
which we incorporated, some of the'’suggestions of

22 the Harris intervenors and I will be explaining
23 those changes as I discuss their objections.

. 24 Before getting into their specific objections.
25 I think I would like to address the objections on



1

136
16 1 which the gentleman last spoke to and that was

ou whether or not there was an insufficient presenta-
3 tion of competing consideration and a general
4 discussion of the individual facts of a personas
5 charge.
6n It is the commission's and has been the

• commission's experience that in a matter of such
8 complexity as the types of issues that we are
9 dealing with here today that the method of
10 trying to draft one letter which will be sent
11 in 19 of our district offices to cover all of the
12 possible alternatives and possible fact situations
13 would be quite impractical. Rather, we prefer
14 and suggest that it is much more likely to lead
15 to a well informed charging party to use the
16 conference approach and that is the district
17A offices where the investigations have been conducted

with review in headquarters EEOC. They will be
19 the ones who will be talking to the individual
20 charging party, analyzing their charge, explaining
21 how the decree resolves their particular grievance
22 and what their rights are.
23 We feel that this is a superior method and
24 that is why the notice letters are styled in
25 the way that they are.



_______ ______________________________________________ 137
17

1 The next general objection, I believe.
2 that the interveners had and I would say that it
3 was substantial objection but we consider it to
4 be a total misunderstandng and that is that they
5 feel that the standard of EEOC review of charges
6 as revealed or reflected in these letters showed• 7 that somehow the commission merely looked at the
8 letter, the words in the decree and if it mentioned
9 a certain allegation or type of charge that that
10 meant the charge was covered, that the EEOC never
11 went into an analysis of the individual facts of
12 the situation and asked whether or not the consent
13 decree as fully implemented would provide that
14 individual with relief.
15 The fact is although perhaps it is not
16 reflected in the EEOC notice letter, the
17

A commission has from the inception of the consent
decree and in its analysis of these charges done

19 exactly what the Fifth Circuit explained to be
20 the standard that the EEOC should adopt and that
21 was that the EEOC should look to the individual
22 claimant*s grievance and see whether or not it
23 was remedied specifically by the consent decree
24 before making anydecision that such a matter was
25 wholly within the scope; this, we have done



138
18

1 consistently. Of course, we began with 1100 charges
2 and have been reviewing them since and we have had
3 several opportunities to communicate with the
4 charging parties, with the respondents in attempting
5 to get things like the hire date and other matters
6

• and we have consistently applied this standard.
7 We can show, demonstrate to the Court, that with
8 some documents, some working materials that we have
9 used in processing our charge, if you think the
10 Court would like to review such documents, they
11 explain, for instance, the types of charges, the
12 types of issues which we have deemed to be fully
13 covered by the consent decree and the types of
14 issues we have deemed to be not fully resolved by
15 the consent decree. For example, testing issues.
16 when a charging party alleged that he was required
17A to take a test when, say, whites were not required

• to take a test or that he alleged he was taking a
19 test which was discriminatory against minorities
20 in its operation and effect, that of course is
21 covered in the sense tha t it is mentioned in the
22 consent decree. However, we have classified
23 all such charges as not resolved by the consent
24 decree and rather we are pursuing this method of
25 approach and that is we will tell the charging



139
19 1 party that this matter is not resolved by the

2 decree, all it provides for is that the companies
3 ^ ^ 1 1 submit certain test data to then be reviewed
4 by the audit and review committee and the EEOC to
5 then make the determination of "Is there reasonable
G cause to believe discrimination occurred?" So

• this is one example of the types of analysis which
8 we make and I think it certainly conforms with
9 the Fifth Circuit's opinion in that matter.
10 Going then to the specific objections to
11 specific notice letters, the first objection of
12 the gentleman concerned the first notice letter
13 and that is the one which is addressed to persons
14 who fall wholly within the consent decree and who
15 are also entitled to a tender of back pay under
16 that decree.
17 Now, you will note that we made no changes

• in our revised list or revised letters which I
19 just handed to you feeling that on the grounds
20 that I just discussed previously that this letter
21 sufficiently notifies the charging party of
22 exactly what needs to be notified.
23 Now, the second objection which he examined
24 on this particular notice letter was that there
25 was no statement that the back pay was not based

377<̂



140
20 1 on an individual claim. This is the one suggestion

2 which we did incorporate and we thought was an
3 excellent suggestion and that is to preclude
4 charging parties from thinking that this offer of
5 back pay somehow is supposed to approximate the
6 amount which an analysis of their individual fact

• situation would occur. We have adopted the
8 paragraph which appears at the bottom of that first
9 paragraph, that you should understand that the
10 amount of your offer of back pay was determined
11 by the steel decree audit and review committee
12 according to factors specified in paragraph 18
13 of the consent decree, one, this sum is not based
14 on the facts of your individual charge. We
15 certainly have no objection to including that one.
16 The next specific objection concerns the
17 that the amount of back psy that the

EEOC should make some type of statement in its
19 n®bide letter, that the amount of the back pay
20 to which the charging party will receive, a tender
21 of it anyway under the decree approximates, is
22 greater than, or substantially less than that
23 which the charging party might expect to obtain
24 in private litigation.
25 I would agree one hundred percent with the



141
2 1 1 statements made by Mr. Moore of the Department of

Ou Justice on our feelings about making such a
3 speculation. It is not the EEOC*s practice to
4 do so in other matters and we feel that we needn*t
5 go into an analysis of that and that is trying to
6

•
speculate what if the charging party went on.

7 this is what we think we will -- youcould obtain.
8 What we do do. Your Honor, and we will
9 continue to do so and this -- in this individual
10 case and that is on matters that are not within
11 the scope of the decree entirely, a charge that
12 has something that is outside of the scope of
13 the decree or is entirely outside of the scope
14 of the decree, of course, we are obligated to
15 proceed to a determination after an investigation
16 of that and to attempt to conciliation. Now,
17

A
*

should conciliation fail we of course will present
to the charging party this is what we sought for

19 you in conciliation, these meet the standards
20 which the EEOC has as a minimum necessary for
21 relief when we find such a violation, we will
22 continue to do that in those instances, in this
23 case too.
24 Finally, whether or not the charging
25 party should be notified in this notice letter.

3 7 - ? ^



142
2 2

1 that there is pending action which he may -- of
2 which he may be a class member, we have no objec-
3 tion to including that in a notice letter or later
4 advising the charging party in the conference
5 procedures.
6 We don*t think perhaps that is best done

w by the Equal Employment Opportunity Commission
8 but perhaps better by the audit review committee
9 but we will certainly cooperate with whatever you
10 think is necessary'in that regard. It is not
11 routinely done by the Commission to notify of other
12 pending litigation.
13 Now, the second matter of discussion, the
14 second letter in our original package was addressed
15 to persons who had charges fully resolved by the
16 decree but who were not entitled to back pay.
17 As you will notice in my revised package

which I handed to you, this letter is omitted.
19 We do not feel -- it was in error that it was
20 submitted in the first place because it was our
21 understanding that what the Court wished to see
22 was any communication with anyone who was going
23 to receive an offer of back pay and therefore any
24 notification about their rights would have to be
25 carefully scrutinized to make sure that the release

32.oa->



143
23 1 of rights which resulted thereafter the tender of

Ou back pay was appropriately fulfilled. Since this
3 person is not getting any back pay, we didn't feel
4 it was necessary to submit this to the Court.
5 We will discuss how we propose to do that if the
6 Court feels that that is necessary.

THE COURT: Will that take somewhat however
8 the same form as your former Exhibit B?
9 MR, NICHOLS: That's correct. Your Honor,
10 it will be almost identical with the addition of
11 the suggestion made by the intervenors that we
12 explain how their back pay was calculated, the
13 reason they did not get an offer of back pay.
14 the reason being that they didn't fall within the
15 certain factors of entitlement that the decree
16 provides for. We think that's a good suggestion
17 and we plan to use that. It will bein substantial

% compliance with that.
19 THE COURT: I would want to see that parti-
20 cular letter as well. The sentence that was
21 contained in that draft previously that under the
22 decrees you are not entitled to back pay I think
23 is susceptible of construction that that is a
24 judicial determination that someone is not entitled
25 to back pay and to make sure that is adequately

S S / i U



144
2^ 1 solved I would like to see your draft of that.

2 MR. NICHOLS:: We certainly will submit
3 that. Your Honor. Upon reflection, we agreed
4 with the objection and instruct that paragraph
5 or that sentence and substituted the paragraph
ti and we will submit that to the Court.

I move then to the specific objections
8 of the intervenors on charges not fully resolved
9 by the consent decrees.

10 The first statement or objection was
11 that the letters contravene the decree requirement•
12 of a expedited investigation and conciliation as
13 paragraph 19(b) provides of the consent decree.
14 I must confess that I don’t understand specifically
15 the thrust of this objection. What will occur
16 perhaps as we plan it may answer this objection.
17 We meant for these notice letters to go out at the

• same time to notify the charging party who is
19 entitled to back pay what his options will be.
20 We expect, Your Honor, that about 70 percent
21 of all investigations on charges outside the
22 cons ent decree or partially outside the consent
23 decree will be completed by February 1; however.
24 we did not know this of course when we adopted this
25 letter and there will be some that will not have



145
25 , that investigation fully complete. The point is

2 that as soon as that investigation is completed
3 the charging party will be notified of exactly
4 what the gentleman requested and that is a full
5 explanation in the letter of determination of his
G allegations, how the decree resolved or did not

n resolve it and whether or not we have found cause
8 or no cause and that we will then proceed to
9 conciliation.
10 THE COURT: Well, would not the several
11 letters dealing with charges wholly or partly
12 outside the decree need a revision beyond that
13 which you have submitted this afternoon? As I
14 read your original drafts and the ones you have
15 submitted here a few minutes ago, as to those
16 who would get some back pay, be tendered a back
17 pay, the EEOC would not be conducting an investiga-

W  18. tion unless there is a request made of the'EEOC
19 to conduct that further investigation.
20 As I understand the Fifth Circuit's opinion
21 there would be a duty to go forward with that
22 investigation unless the employee were to accept
23 a tender of back pay so there shouldn't be no
24 requirement as I view it for the employee to have
25 to make a second request for consideration or



146
26 1 investigation. I think those two letters, C and

O(Li D, I suppose it is, really need to be revised in
3 that manner.
4 MR. NICHOLS: I understand your point.
5 Your Honor, and we .will make that revision. In
6 fact, that would reflect, as I stated, what has

actually occurred. We have proceeded with that
8 expedited investigation and most of them will be
9 completed by the time these notice letters actually
10 go out.
11 I think the other objection to this
12 specific -- these C and D notice letters are
13 working back to other objections made earlier
14 by the Harris intervenors. Briefly, they wanted
15 us to specify how the grievances were to be
16 resolved. We will do that of course in our formal
17 of determination which will be issued when

^  18 we have completed that investigation.
19 Next they state that they want a statement
20 that the back pay is not based on an individual
21 claim, that, ifyou will notice, has been inserted
22 into C and D and notice letters, so we have no
23 objection to that.
24 Number three, state whether a back pey award
25 equals, is more or less than a charging party might

^  S’



147
27 11 recover in a private suit, of course, I have the

/ 2 same response as I had to the earlier letters on
3 that.
4 Finally, the statement that we should
5 inform of private suits pending, we also take the
G# same position that normally we do not do that but
7 we have no objection to doing so if Your Honor
8 determines it necessary.
9 I have nothing further.
10 THE COURT; Okay. Are the company and
11 union taking the position in any way on these
12 letters ?
13 MR, GOTTESMAN: The union is not. Your
14 Honor.
15 MR. MURRAY: The company is not. Your Honor.
1C THE COURT: I may be in -- yes, go ahead.
17• MR, GOLDSTEIN; Excuse me. Your Honor,
18 two comments. One is on Exhibit A. I*m confused
19 by what Mr. Nichols said. It seemed to me that
20 he argued that his position is he would not
21 speculate whether or not the back pay was sufficient
22 or not and tha t it was a very complex matter and
23 difficult to determine yet there is the unequivocal
24 statement that we recommend that you would accept
25 the back pay which follows on the heels of the



148

28 1 statement that the practices complained of in
Ou your charge have beenfully resolved by the
3 relief provided by these consent decrees. It
4 seems very clear that what the EEOC is saying
5 there is that this is the amount of money that
6

A you are entitled to based on your claim and as
I understand what Mr. Nichols said, they didn’t

8 make such an assessment and that they would not
9 engage in such speculation. If that’s the case.
10 then this first sentence of the third paragraph
11 should be stricken.
12 A second matter is that there's a problem
13 of the letter going out in pending to charging
14 parties who are represented in pending cases.
15 especially if there Is no mention of counsel.
16 in that the local district court may in fact
17 decide that no tenders at all will be offered or

that they would be offered after six monl;hs or
19 something along that line and yet there would be
20 an EEOC letter which would be sent to the charging
21 parties telling them that there will soon be a
22 tender and I think that that would create a
23 tremendous amount of confusion, would be misleading
24 and interfere with this Court’s concept of the
25 procedure that should be followed.



29

3

4

10

11

12

13

14

15
16

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18

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20 

21 

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End JM PM

___________________________________________________149

THE COURT; Well, I take it that the EEOC 
letters would not go out for those plants where 
there is pending litigation until there was 
approval by that local court for tte tender to 
be made and that there probably would be a companion 
motion or examination of the proposed EEOC letter 
in that particular court with some options there 
perhaps as to inclusion of the name of counsel 
or other information about the existing case.

MR. MOORE: May it please the Court, Your 
Honr, we are submitting these today out of a 
feeling of fairness and compatibility. Under 
sudit and review committee directive number one, 
we have made no commitment prior to making such 
submission. It was not our intention to make r 
individual submission of these letters once 
approved by this Court to other courts but it 
was our intention not to have them of course sent 
until tender was authorized. In any individual 
plant situation, authorized eitherby the distiict 
court or by the audit and review committee where 
there is no pending litigation, but we had not 
intended to submit these in cases where there is 
pending litigation.



150
12 DM

1

2

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8 

9

10

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21 

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25

THE COURT: I believe that we have gone 
through several objections being raised to the 
release, notice and letters. Did we mistakenly 
skip anything in that respect?

MR. GOLDSTEIN; I think we have gone through 
them all. Your Honor.

MR. GOTTESMAN: Your Honor, I think the only 
thing is that nobody has mentioned today, though,
I am sure Your Honor has it in mind and that is that 
with the amendment of the consent decree there will 
have to be an amendment of at least one sentence of 
the notice.

THE COURT; Sure.
MR. GOTTESMAN: And the release.
THE COURT: To some degree the answers to 

the questions being here raised to the Court depend 
upon one’s assumptions about the decree and its 
impact.

Underlying some significant objections by the 
intervenors or those who are heard as friends of 
the Court, are the assumptions that for a great 
many people the tender of back pay and the execution 
of a release would be adverse to the best interests 
of those employees and hence they should be in 
effect permitted to do that only if there is

3  5 % ^



If>1

2
1 some initiation on their part indicating quite
2 clearly that they nevertheless want that to occur.
3 On the other hand, the parties seem to
4 function on the assumption that by and large it is
5 going to be in the best interest of the employees

• to receive and accept the back pay and execute the
7 release and consequently there should be no impediment
8 placed and no burden placed on their being able to
9 have in as acceptable a manner as possible a back
10 paycheck and be able to cash that readily.
11 The Court is in the posture of having neither
12 assumption, really. It does make for difficulty
13 in trying to decide then what is correct.
14 The first question relates to the one step
15 versus two step approach and to the time limits
16 bhat are placed by the decree on acceptance or
17 rejection of the tender of back pay.•
18 I think it is important for it to be put on
19 record that this Court, insofar as approving notices
20 and procedures, is here primarily concerned with
21 those plants which have no pending litigation.
22 As to the plants where there is pending litigation
23 these very questions are going to have to be resolved
24 in the local courts.

25 So we are dealing with those several hundred
i



152
3 1 plants where there has never been any litigation

2 filed presumably charging violation of Title VII
3 or 1981 or if they have, they were dismissed or
4 dropped.
5 Secondly important to place on the record

• IS that whatever this Court does in way of approving
7 procedures and notices does not ultimately decide
8 and bind an individual employee on whether if that
9 employee signs the back paycheck he is going to be
10 held to have knowingly and intentionally given up
11 his rights to proceed or to press various claims.
12 That can only be dealt with by a particular court
13 having a particular individual before it and looking
14 facts of that partxcular individual.
15 I view it that my charge here is to see that
16 there is a fair statement of the essential elements

• thata person ought to be made aware of prior to his
18 making an informed decision about whether to accept
19 tender of back pay or not.
20 It seems to me that too much information some-
21 times is as bad as too little and that if a person
22 were to receive a 2 0 0 -page document, as an example.
23 explaining what is involved in the acceptance of an
24 offer and containing some very wise description of
25 the way civil rights litigations Iwe been resolved



153
4 1 and compromised and litigated, that might frustrate

2 an intelligent decision as much as saying very little.
3 Something in the middle is needed in giving the
4 critical facts and of provxding a means for the
5 person to get more information if that particular

• employee wants, and to assure that there is no
7 misinformation.
8 It seems to me that this is the function that
9 I should perform here and that for example the
10 company and the union by deciding to prefer a one-
11 step procedure may be taking a risk that there will
12 be sone employees who can successfully accept the
13 tender sign the waiver without full knowledge of
14 bhefacts whereas if it had been a two—step procedure
15 they might have had a more difficult burden to
16 establish that type of position.
17• It seems to me that the companies and the
18 unions have in effect accepted some risk of that
19 occurring, occurring with greater frequency than
20 otherwise by proposing a one-step procedure.
21 In class action litigation, although this is
22 not a class action litigation there is some pre-
23 f®^snce toward procedures which allow someone to
24 op out but do not require a person to op in,in order
25 to claim the benefits of some action.



.54

5 1 In a way the proposal by the interveners for a
2 two-step procedure has some marks similar to an op-in
3 procedure. This Court, however,has adopted op-in
4 procedures on a coip le of occasions on class action.
5 So, I am not totally adverse to that. I
6

m

do recognize that the analogy is not com^iete and
w 7 there certainly are distinctions.

8 I believe that a one-step procedure is per-
9 missible. Though again for the record, I say this
10 can still be contested by an individual employee
11 in later litigation who attempts to bring an
12 action and is in a position to say, "My waiver was
13 ineffective because I was pressured under the
14 context or I didn't get enough information to
15 intelligently make my choice." The Court which
16 has that issue before it will have to resolve it.
17

A I do think that there is nothing inherently
unfair in a one-step procedure nor do I see anything

19 essentially unfair in this one-step procedure. The
20 same thing is true as to the 30 days, although I
21 do believe that there should be an opportunity for
22 a person to request additional time for making
23 a decision that should require initiation on his or
24 her part, presumably to an implementation committee
25 where there is a lack of information that that person



L55
6 1 needs or where that person has contacted counsel.

2 There could be a variety of other reasons. It is
3 impossible to just at this point lay down definitive
4 ground rules. I think that the A and R committee
5 should develop some general standards as to permitting
6

• a person to request within the time frame allowed
7 additional time and that the notification letterto
8 should indicate/some degree that if an employee needs
9 more time to get certain information prior to the

10 void date on the check that he should make contact
11 whether it is with the implementation committee or
12 however the mechanics should be handled.
13 I think that there can be problems of thirty
14 days being too short or forty-five. That is not for
15 everybody, but for some because of their circumstances »

16 The decree obligates the company and union
17 to make a tender with a 30-day limitation or cut-off.
18 It can be argued that the Court is overstepping
19 its bounds in saying that there must be some flexi-
20 bility for people who have special problems, but I
21 believe t±iat by allowing the A and R committee to
22 develop procedures for the distribution and tender
23 and by giving the Court superintendence over the
24 A and R committee. I have some flexibility there.
25 to go and to impose a requirement for some flexibility



l56

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17

18 •
19

20 

21 

22

23

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25

for additional time to people who need it to make a 
decision.

In all likelihood that would mean the reissue 
of some check because the check is going to have a 
void date on it, and in a particular case the person 
may not be able to make an appropriate decision 
prior to the void date.

The request for the inclusion of the allega­
tions of the complaint in U . S. versus Allegheny- 
Ludlum or for a summary of those provisions would 
not, in my judgment, help at all persons to make 
an intelligent choice and the inclusion of those 
allegations in legal language taking up an additional 
page and a half or more of a letter, it seems to 
me, would interfere with the process of understanding, 
really, what is involved in the release.

I think it unwise to attempt to define who 
would have an efficacious right to suit and who 
would not. This in part is the problem that 
intervenors present.

I do think it appropriate that there be an 
inclusion in the notification letter of the fact 
that a person may employ privately his own counsel 
to seek such advice, and the decree does not prohibit

that
3740- ^



.57
8 1 In the language of the letters as tended there

2 is perhaps left the inference that that is not
3 permissible or that there is a direction to go to
4 the implementation committee. That is true both
5 in the part of the letter dealing with how one gains

• information and with the last part of the letter
7 that says what you are to do and which it is in-
8 dicated that if you have any questions you will
9 go to'the implementation committee. I think that

10 overstates the question.
11 I perhaps have already indicated my feelings
12 about the kind of factual information that should
13 be available. Certain information should be available
14 for easy access though not contained in the letters
15 and should be available not only to an employee but
16 to his counsel upon request. Certainly this would
17

• include information such as how the back pay was
18 determined at a particular plant and indeed how the
19 back pay in gross at one plant was determined rather
20 than another plant.
21 In those cases where there is pending litiga-
22 tion there is no reason to convert this proceeding
23 into a discovery for the other litigation. In any
24 event, that is a question that a particular court
25 will have to deal with when it is asked to approve

1



158

9 ^ notice going out in that particular location.
2 I, for example, will have to deal with it insofar
3 as, for example. Republic Steel, Gadsden, as to
4 how much if any information that may have been
5 accumulated should be made available or given
6

• access as a part of the process of tendering back
7 pay.
8 I do not think, however, that as to the
9 two hundred odd plants which have no pending
10 litigation that there is a requirement to develop.
11 that is, to process and assimilate and put into
12 meaningful form all of the data that might apply
13 to that particular plant which someboc^ might want
14 to look at in order to decide how good or how bad
15 a Title VII case would the plaintiff have if they
16 were to bring one in that location.
17

A I think that goes beyond what is required
to have a tender of back pay. '

19 I have already indicated there should be.
20 however, indications certainly of the calculations
21 that are involved, how that is done, both locally
22 and on a national basis for tha se that would like
23 to see it.
24 I think it is well to have some minor
25 modification in the paragraph dealing with how



.59
1 0 1 the back pay was calculated to make it explicit

2 rather than merely implicit, that the back pay was
3 not done an individual situation basis but on a
4 formula basis in which all of those of the same
5 sex at the same plant with the same years of
6 continuous plant service get the same amount of• 7 money under the tender and that persons of different
8 sex at different plants and with different periods
9 of continuous service will be presumably getting

10 different tenders.
11 The questions about the time periods involved.
12 as I may have already indicated, that is, as to what
13 time period we are using in calculating back pay.
14 I think upon a review of how the back pay was cal-
15 culated, that the interveners would be aware that
16 that cannot be handled in that way. It is not an
17 appropriate question, because in essence, an

employee's total service is involved in the calcula-
19 tion of back pay.
20 The description about pending litigation
21 and its impact. Clearly, the language used in the
22 release and description of that in the no tice as
23 to the effect upon pending litigation is too broad
24 and must be retailored.
25 I think that the last four sentences, so to

3 9 ’?



160
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speak, can be merely suggested in a slightly different 
form as subjects for possible inclusion at the 
direction of the particular district court involved.

I see no reason to change or to make specific 
requirements about oral communications by the 
EEOC, though we have a pending problem that we 
are going to be dealing with on the motion for 
the injunction.

1 recognize that as a special problem. Insofar 
as the EEOC letters are concerned as a general 
proposition and subject to going forward into that 
motion for an injunction in the immediate future,
I approve the approach that a conference method 
for discussion of how an employee*s charges have 
been remedied or corrected by the decree is far 
preferable to an attempt to put that in words in 
a letter.

I have already indicated a question of redraft­
ing to indicate as to those where charges are not 
wholly resolved, that it would take activity on 
the part of the employee to prevent the charge from 
continuing under investigation and would not require 
action by the employee in order to keep that inves­
tigation going.

~ 3 % u



Take 12 - - 1 1Tape 2
1 The Government has eliminated the word
2 "thus", t-h-u-s, at one point to help resolve some
3 questions that had arisen of construction as to what
4 had gone on with the EEOC.
5 I think that although the Government had
6 not anticipated tendering to the local forum letters• 7 to persons having EEOC claims pending, that some
8 procedure should be allowed to give the local courts
9 an opportunity to see at least whether or not
10 reference should be made to the identity of counsel
11 in that pending case.
12 1 will also say that where in the notice
13 dealing with pending litigations, although, this is
14 subject to review by each District Court, I would
15 certainly think it desirable to have an indication
16 of the name of counsel for the class and would have
17 to be persuaded in the case that I have not to put• that information in and hence, I think that insofar
19 as the general form is concerned of suggestion, that
20 it should have that in there though certainly any
21 District Court would have to make its own decision
22 about that.
23 None of the EEOC letters, however, will go
24 out at this point, subject to further consideration
25 of the questions raised by the motion for injunction.

i



2 161
1 I believe that the interveners with the
2 exception of the Pender group should only be
3 recognized on these objections as friends of the
4 Court, because, except for the Pender group they
5 will have fully an opportunity to present the
6

• questions before the local courts where they are.
7 I think the Pender group, which is the group that
8 does not have a pending case, but only pending EEOC
9 charges should be recognized as an appropriate
10 intervenor under Rule 23(b) insofar as the objections
11 to the proposed notice, release and EEOC letters are
12 concerned, but they are objections. With the
13 exception of those I have already gone over are
14 denied. Some of those obviously were granted and
15 some were denied.
16 I have already indicated that the motion
17

A 3EspectingIS>ublic Steel is, in effect, deferred for
hearing and consideration in conjunction with

19 Republic Steel.
20 I have indicated, I believe, that the
21 complaints in intervention and supplemental complaints
22 intervention should not be allowed. That all
23 requesting applicants for intervention should be

V. 24 permitted to intervene for the limited purpose
25 under Rule 24(b) of moving to reconsider the Court's



3 u i3

1 grant of the amendment to the decree and that the
2 Pender group should be allowed to intervene under
3 Rule 24(b) to present as has been done, the objections
4 to the proposed notice, release and letters.
5 The motion for leave to take discovery is
6A granted in part, though, it is limited to pursuit

of discoverable matters relating to a motion to
8 reconsider the allowed amendment to the consent
9 decree and would be limited to the questions of

10 what was the agreement, if any, of the parties
11 dealing with the continued effects of pre-decree
12 discrimination.
13 I believe that gives a ruling on each of
14 the matters that has been presented to the Court
15 with the exception of one or two that have been
16 deferred.
17 MR, GOLDSTEIN: Excuse me. Your Honor,

We had an objection to the direct recommendation
19 by the EEOC that employees accept back pay.
20 THE COURT: You are correct, I should
21 have mentioned that.
22 I think they are permitted to do so.
23 In order to do that, they have to be
24 satisfied that the matter is wholly within the
25 decree, which means that they have made a

4c/



4 1 64

1 determination that the decree both encompasses those
2 charges and contains a remedy which it believes, in
3 its opinion, is adequate and appropriate for the
4 particular grievance. If it is of that opinion.
5 as it must be to classify the matter as wholly
6 within the decree, it would be its obligation to

^  7 recommend that which it believed to be in the best
8 interest of the employee.
9 The Fifth Circuit at least implicitly

10 recognized the granting or the authority of the
11 EEOC to make a recommendation when it said that
12 unless those two conditions are met the commission
13 would have the duty to conciliate in lieu of -- I
14 am quoting "advising the grievant to settle or
15 accept an immediate right to sue letter". It
16 seems to me implicitly that that recognizes the
17 right of the EEOC to give advice consistent with

its statutory duty of conciliation.
19 I think the point is well taken, I
20 disagree, but I think it should be covered, and
21 I am glad you raised the question.

End Take22l2

23

24

25



1 fis
Take 13 JW MR, ADAMS: Your Honor, you did allow

2 intervention for the purpose of questioning
3 the amendment to the decree as far as waiver
4 of in:}.unctive relief, I believe, earlier?
5 THE COURT: I initially granted it.
6A I changed in the way in which that was being

w t done by saying I was granting under Rule 24(b)
8 the right to intervene to move to reconsider
9 the amendment to that complaint and then giving
10 discovery in support of that, which, in effect.
11 meant that before me was, at the time or granting
12 the amendment to the complaint was a consistent
13 position by the parties, in effect, as to the
14 facts for granting that amendment, but then
15 putting you in a posture to discover facts that
16 would be different from that which they represented.
17 MR. MOORE: Your Honor, I just want to

raise a couple of questions for clarification.
19 With regards to EEOC's submitting letters to
20 the other courts and this question of listing
21 in that letter the name of counsel and the court
22 indicated that at least in its case it was so
23 inclined to do, and I would just like to make
24 two observations.
25 Number one, I would ^'s^ume that if the Court -



1 56

2 THE COURT: Let me correct one thing.
2 When I indicated that so far as the cases that I
3 had I would expect there to be an indication of
4 counsel, I was referring to that being contained
5 in the EEOC letter. I was expecting that to be a
6

A part of the description of the effect on pending
litigation contained in the notice, and if it*s

8 there, it probably is going to mean that it need
9 not be in the EEOC letter.
10 MR. MOORE: That's the point I wanted to
11 make, because our difficulty is that while in
12 the three cases this court has it’s very clearly
13 defined what the class is. Some of these others
14 in the country not represented by these people
15 are very poorly done and we would have a very
16 difficult time making those- decisions and we
17 think it should be left to the Court.

The other thing I wanted to touch upon was.
19 with regards to the factual information that the
20 implementation committee should have available.
21 and the Court has indicated that among them
22 would be information with regards to the method
23 of calculating, does the Court contemplate some-
24 tiling more extensive, that is, for instance, the
25 actual steps of the computer printout or something

f
LfO



16 7

3 1 of that nature or something at any rate more
2 extensive than the back pay calculation report
3 that sets out step by step for the industry and
4 down through the plant, coupled with perhaps
5 what the end product for the individual plant was
6

• through that process?
7 THE COURT: I would envision something
8 comparable to the calculation of back pay as
9 filed with the Court, and perhaps not all of
10 that information, and a printout or some other
11 device showing the calculation at a particular
12 plant where an employee is located so that he
13 knows or can see how his pay with his number of
14 years of plant service compares to another empbyee
15 at that same plant, I think that person would
16 legitimately have an interest in that and that it
17

gjk
ought to be available.

MR. MOORE: Well, I just wanted to get it
19 clear because that's one thing and it's another
20 thing -- and quite frankly I think fairly in-
21 decipherable if you take, have the computer printout
22 every step that it goes through and gives you just a
23 lot of stuff and voluminous, but the information
24 that you just said is something that can^ be taken
25 out coupled with the calculation report which we'll



1 (>8

4 1 be happy to make available to the implementation
Ou committee.
3 last thing I wanted to touch on, and
4 that is, with regards to the question of discovery
5 with regards to the intent of the parties, time
6

A of negotiation specifically concerning the scope
of the relief. It occurs to me that it might

8 niiî -imize some difficulty if we were to present
9 to the Court a proposed written order as to the
10 limits of this discovery.
11 THE COURT: Well, you can move for a
12 protective order if you think it's likely to be
13 abused. I think that perhaps if counsel will
14 get together xnsofar as discovery is concerned
15 that this should not be that kind of difficulty
16 that you're perceiving.
17 Now, I think the intervenors may wish to

• pursue some of the legal problems in a more
19 ^gS^sssive and disagreeable manner from your
20 standpoint, but I don<* t believe you are going to
21 find there's that much difficulty in giving them
22 access to make at least informal discovery which
23 perhaps may be sufficient on this area of whether

'v 24 there's any evidence to be presented on a lack of
25 an agreement. I would suggest '4iiiat you contact

---------  /
1



16 ?
5

1 counsel and see if that can*t be worked out.
2 MR. MOORE: Fine. Thank30U.
3 MR. GOLDSTEIN: Your Honor, I have a couple
4 of matters that I*d like to seek the Court’s
5 clarification on. The first is on our memoranda
6

• in opposition to the amendment to consent decree one.
( Apart from the intervention, it was our contention
8 that we were before this Court and I am not sure
9 that the Court has ruled.
10 THE COURT: I ’disagree.
11 MR. GOLDSTEIN: And the second matter is
12 THE COURT: Let me interrupt you there.
13 I do not view, and I think it ought to be clear
14 for the record, I do not view the matter before
15 this Court as being a matter of interpretation
16 of the consent decree. I take that matter as
17A* having been determined by the Fifth Circuit and I

view it rather as being an attempt to then modify
19 that decree to conform to what the parties say
20 was their true agreement.
21 MR. GOBCBTEIN: The second matter is on the
22 government’s recommendation that charging parties
23 accept back pay, that that recommendation has to
24 be based, as I understand the Court, on an investi-
25 gation of the individual’s claim and the indiV.idual ’ s

f



170

6 ' claim as to economic loss and the right to back pay.
2 THE COURT: I would go with what the Fifth
3 Circuit indicated, namely, that it is a matter
4 committed to the sound discretion, as I understand
5 it, of the EEOC to make the decision, subject to
6

•
being attacked for arbitrariness and things of this

7 sort, as to whether the employees* charge is wholly
8 covered by the decree and then to give him advice
9 or a recommendation, though it’s ultimately his
10 decision, and I view that that's what the Fifth
11 Circuit said. If you are asking me to make some
12 decisions at this point on whether the EEOC has
13 done that, or whether they could do that if they
14 have not made a calculation of dollar amounts, if
15 I am understanding you correctly, I would decline
16 to take that issue before at this point as being
17 hypothetical at this point, and until you get it

• to a particular employee who wants to raise a
19 particular question about it, I don't see I can
20 deal with it.
21 MR, GOLDSTEIN: Thank you.
22 THE COURT: If counsel for the government
23 and counsel for the intervenors would, perhaps
24 stay in contact with my office next week in terms
25 of a potential setting of the Motion for Injunction,



171

End

1

2

3

4

5

6

7

8 

9

10

11

12

13

14

15

16

17

18

19

20 

21 

22

23

24

25

and I may need to talk or to work informally with 
counsel for the parties on some redraft of the 
language of the letters in view of what the Court 
has done. I do not view that as requiring full, 
open courtroom work. I view it as simply putting 
into effect what has already been spread on the 
record here, and we may need to do that sometime next 
week in order to facilitate matters.

4 ^





UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF ALABAMA 

Southern Division

UNITED STATES, et al.,
Plaintiffs,

-vs. -

ALLEGHENY-LUDLUM INDUSTRIES, 
INC., et al. ,

Defendants.

)

r.'lED IN CLERK 'S  OFFICE 
r iO RTHEnN  DISTRICT OF A LA BA M A

JAII6 1375
JA K E S  E. •. A N C ^ R IF T , CLERK 

UNITED^^E^/DISTiRiCT C O uA V

) No. CA 7'<-P-339-S
)
)
)

ORDER
It is hereby ORDERED, ADJUDGED, and DECREED as follows:
1. The third sentence of paragraph 18(g) of Consent Decree I

is hereby amended to read as follows:
"Such release will also bar claims for additional 
relief of any kind, including injunctive relief 
and damages, based on alleged Injury suffered 
at any time after April 12, 197^j by reason of 
continued effects of any such discriminatory 
acts which occurred on or before April 12, 197^."

2. Those persons who have heretofore applied to Intervene 
to oppose the foregoing amendment are hereby, under Federal Rules 
of Civil Procedure Rule 24(b), permitted to intervene for the pur­
pose of filing a Motion to Reconsider the foregoing amendment and, 
upon filing such Motion to Reconsider, they are granted leave to 
conduct discovery of evidence, if any, which would support a con­
clusion that the parties to the Consent Decree did not agree that 
the release would bar the claims described above. The oral motion 
of such persons for a stay of the effective date of the amendment 
is hereby denied.

3. The motion of the Audit and Review Committee for Approval 
of Back Pay Release and Notice Forms is, with certain modifications 
made known in open court and indicated in the Memorandum of Opinion 
filed this date, granted.

4. The motion of the Equal Employment Opportunity Commission

233



for Approval of EEOC Letters to Affected Employees with Pending 
EEOC Charges is, with certain modifications made known in open 
court, granted.

5. The motion of K. D. Pender, Charles R. Brown, Sr., Robert 
L. Hill and William R. Tilghman to intervene to oppose the Motions
of the Audit and Review Committee and the Equal Employment Opportunity 
Commission, as described in paragraphs 3 and 4 of this order, is 
granted, under Federal Rules of Civil Procedure Rule 24(b). .but their 
objections and opposition to such Motions are denied.

6. Except to the extent specified in paragraphs 2 and 5 of 
this order, the applications for Intervention are denied.

This the S day of January, 1976.

United States District Jud

I TRUE COPY
JAMES E. VANPEGRIPT, Clerk 
UNITED STATES DISTRICT COURT 
ror.TEEPlhSiS/RIJ: QJ ALABU'A 
BX: ' "

(J./

134



UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF ALABAMA 

Southern Division

FILED IN CLERK 'S  OFFICE 
NORTHERN DISTRICT OF A LA BA M A

JA(J 6 i275
UNITED STATES, et al.,

Plaintiffs,
-vs. -

ALLEGHENY-LUDLUM INDUSTRIES, INC., et al. ,
Defendants.

JA M ES  E. VAIICCGRIFT, CLERK  
UNITED STi^TES DISTRICT CO U R t /

o
No. CA 74-P-339-S

Memorandum ^  Opinion
On January 2, 1976, the court heard argument on a series of 

motions and, at the conclusion of the hearing, announced orally its 
conclusions thereon. While the rulings and the rationale were set 
forth from the bench, it is appropriate to enter an abbreviated memo­
randum of opinion and order.

1. Motion by defendants for amendment of Consent Decree I.
The defendants assert that Consent Decree I, as Interpreted . by the 
Court of Appeals, 517 P.2d 826, 852-856 (CA5 1975), falls in one 
particular to memorialize the actual agreement reached by the parties 
to the litigation and that, given the contractual nature of a consent 
decree, it should be amended (or reformed) to conform to the actual 
agreement of the parties. While the plaintiffs have not joined in this 
motion, they state that they are estopped to deny the defendants' 
allegations and indeed have acknowledged to the court that the de­
fendants accurately characterize the true agreement reached by the 
parties, one which by mutual mistake was not expressed in the written 
agreement presented to the court (as construed by the appellate 
court).

This is not a situation where a party is seeking to amend a 
consent decree to provide for a contingency which, though never agreed

228



upon by the parties, is needed to satisfy the purposes of the parties 
or some of them. CF. U . S .  v .  A x m o a n  S C o . ,  H 0 2 U.S. 673 (1971)- 
It is rather based upon the assertion, undisputed by the parties to 
the agreement, that the written record of that agreement is by mutual 
mistake of the parties contrary to what they actually agreed upon.
That the written agreement has received the imprimatur of the court 
should not change the right of the parties to obtain a correction, at 
least if intervening rights of innocent persons have not accrued dur­
ing the interim.

The focus is not upon what the parties' present intentions and 
desires may be, nor even upon what their private intentions may have 
been at the time of agreeing with one another. The question is whether 
they did in fact actually come to a "meeting of the minds" on a matter 
which, as it turns out, is, by mutual mistake, not embodied in their 
written agreement.

The parties are in accord as to having come to such a "meeting 
of the minds". Lest, however, this accord be possibly the result 
of their present desires, the court believes that an opportunity 
should be given to some "third persons", having an Interest (though 
no accrued rights) in perpetuating the original language of the 
Consent Decree, to test, after appropriate discovery, the correct­
ness of the parties' present recollections of what they agreed upon 
in the past. While affording such an opportunity, however, the 
court should give due consideration to the unanimity from the parties 
themselves both as to the facts and as to their opposition to any 
delay in the premises.

Accordingly, the court has (1) granted the defendants' motion 
to amend Consent Decree I and entered such amendment, (2) allowed 
the requesting interveners to Intervene under F.R.Civ.P. Rule 2i4(b) 
for the purpose of filing a motion to reconsider the granting of de­
fendants' motion, (3) denied interveners' oral motion for a stay 
of the amendment, and (̂ ) granted interveners' motion for discovery

- 2 -

229
J  /



limited, however, to evidence in support of their motion to reconsider 
upon the ground that the language of paragraph 18(g) of Consent Decree 
I, as construed by the Court of Appeals, represents the true agreement 
of the parties as to the scope of the releases to be tendered to 
affected employees.

2. Motion on behalf of Audit and Review Committee for approval 
of proposed release forms and notice forms to be submitted to affected 
employees. The proposed release and notice, as submitted by the Audit 
and Review Committee, are approved by the court with certain changes. 
Appropriate changes shall be made in the following respects:

(1) To reflect the expanded scope of the release 
in view of the granting of defendants' motion to amend 
Consent Decree I.

(2) To clarify the effect of the release upon 
pending litigation.

(3) To clarify that access to the Implementation 
Committee for information in no way precludes an employee 
from seeking other advice and counsel of his own choice 
and at his own expense.

(Ij) To make explicit that the calculation of the 
back pay amount was by a formula which did not give 
special attention to the earnings or situation of the 
individual employee, but rather utilized plant continuous 
service dates.

(5) To provide, and give notice, that employees may 
be able to obtain upon timely request an extension of time 
for deciding whether to accept the back pay tender.

The court will, without further hearing, review with representatives 
or counsel from the Audit and Review Committee revisions of the 
notice and release to effect the foregoing and to make minor modi­
fications of form.

The authorization from this court to tender back pay and re­
leases to affected employees, and to communicate with them about such 
matters, is limited to employees who are neither parties, class 
members, or potential class members in pending litigation involving 
alleged employment discrimination. As to employees who are parties, 
class members or potential class members in pending litigation, tender 
of back pay and releases may be made only after obtaining permission 
of the court having Jurisdiction over such litigation, and subject

- -3-
230



to such terms and conditions as may be imposed by such courts.
The function of this court has been to review the proposed tender 
for compliance with the provisions of Consent Decree I, and this 
court does not purport to speak for other courts in determining 
whether tender of back pay and release should be permitted in con­
nection with litigation there pending. If such other courts should 
permit tender to be made, it is anticipated— though this would be a 
decision for such other courts— that appropriate modifications would 
be made in the notices, such as, for example, identifying counsel 
for the class and describing the status of the litigation.

The proposed Intervenors, with the exception of one group, 
are involved in pending litigation and will, as indicated in the 
preceding paragraph, have the opportunity to be heard in the court 
where such litigation is pending on the question of whether— or in 
what form— tender of back pay and release should be permitted as to 
such employees and their class. Accordingly, they need not be per­
mitted as Intervenors here. However, one of the proposed intervenor 
groups— K. D. Pender, Charles R. Brown, Sr., Robert L. Hill, and 
'William R. Tilghman— is not so situated and, under F.R.Clv.P. Rule 
24(b), such persons are allowed to intervene to oppose the proposed 
tender of back pay and releases. Such opposition is, however, denied 
subject to the changes previously indicated.

3. Motion on behalf of EEOC for approval of proposed letters. 
The proposed letters to be sent by the EEOC to affected employees with 
pending EEOC charges are, with minor modifications indicated at the 
time of the hearing, approved. As these letters are not to be sent 
prior to tender of back pay and releases, the mailing of these letters 
bo employees at plants involved in pending litigation is indirectly 
subject to the control of the courts having jurisdiction over such 
litigation. This court reserves ruling on whether changes in these 
letters or other communications should be directed to correct rais-

-4-

231



information which may possibly have been given by some EEOC offices 
respecting the Consent Decree and pending charges.

k. Motion on behalf of certain employees of Republic Steel 
having pending cases. A motion filed on behalf of employees of 
Republic Steel having cases pending in the Northern District of 
Alabama is rescheduled for hearing, at a date to be determined, in 
connection with those respective cases, rather than in CA 74-P-339- 
The private employment discrimination cases Involving the defendants 
which are pending before this the United States District Jlojurt for 
the Northern District of Alabama will, on appropriate request, be 
scheduled for hearing on motions to make tenders of back pay and 
releases in such cases.

This the O_____ d̂ay of January, 1976.

' United States District Judge^^^

Ji7<t
:32



IN THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF ALABAMA

UNITED STATES OF AMERICA, et al., ))Plaintiffs, ))V. ))ALLEGHENY-LUDLUM INDUSTRIES, INC., ) 
et al., ))Defendants. ' )
___________________________  )

ORDER APPROVING NOTICE OF RIGHTS, 
RELEASE FORM AND CHECK LEGEND

CIVIL ACTION 
NO. 74-P-339

FILED IN CLERK 'S  OFFICE 
NORTHERN DISTRICT OF A LA BA M A

JAN 1 4 1976/
JAM ES  E. ^ N p E G R Ip T , CLERK  

U N IT lD S J ^ E S  D l ^ l C r e O U r

a
THIS CAUSE coining on to be heard January 2, 1976 

and after oral hearing, argument of counsel, and for good 
cause shovm, in conformity with the Order of January 5, 
1976 and the Memorandum of Opinion of January 5, 1976 
entered in this cause, it is:

ORDERED, ADJUDGED, and DECREED that the form of the 
proposed Notice of Rights from the Audit and Review 
Committee consisting of eight pages and attached hereto 
as Attachment A, the form of the proposed Release consisting 
of two pages and attached hereto as Attachment B, and the 
proposed legend to be imprinted on the face and stub of 
back pay checks attached hereto as Attachment C are 
hereby approved.

DONE this the /V day of January, 1976.

District Judge /L

4/i
244



[Letterhead of]
AUDIT AND REVIEW COMMITTEE

______1976

Notice of Rights to Back Pay Under Consent Decree I 
U.S. et al. V. Allegheny-Ludlum Indiistries, Inc, et al.

Dear Employee;
Enclosed* is a "back pay" check for the amoimt vMch you, as

an "affected employee", are entitled to receive under Consent Decree

I xpon releasing certain claims you may have against your etployer
and union. It is in your interest to read this letter carefully before
deciding vdiether or not to cash or deposit your check.

Note; If the person to vAxm the check is payable is' 
no longer living, then the check cannot be cashed.
Hov^ver, in such case, read paragraph 5 of the "What 
to Do" section of this letter for instructions On how 
the surviving spouse or estate of the deceased onployee 
can receive payment by a separate check.

The Consent Decree
Consent Decree I is a court order, approved and entered by a 

U. S. District Covirt on ipril 12, 1974, and affirmed by the U. S.
Court of ippeals for the Fifth Circuit on August 18, 1975. It is a 
settlement between the Ifriited States Government (and certain of its 
agencies), nine major steel coipanies (inclviding yoinr employer), 
and the United Steelworkers of America of a number of claims involving 

employment discrimination. The coipanies and the union expressly 
denied in the Consent Decree, and still deny, that they have violated

* A check should not be enclosed if you have a charge of discrimination 
pending with the Equal Hiployment Opportimity Conmission relating to 
acts or practices occurring before April 13, 1974. In such a case the 
paragraph entitled "Htployees With Pending EEOC Charges" applies to you.

ATTACHMENT A

2 4 5



any equal enployment laws; but they have nevertheless agreed to the 
Consent Decree to avoid time-consuming litigation.

As you have been advised, various changes in seniority rules and 
other employment practices have been put into effect under the Consent 
Decree. Furthermore, the Consent Decree requires the continued monitoring 
and review of its inplementation.

Part of the settlement requires that back pay be offered to varioiis 
minority and fannale eitployees (and former anployees) in exchange for 
their release of certain claims of aiployment discrimination. Because 
the back pay offer resiiLted fron a settlanent and cotpranise between the 
union, your enployer, and the varioi;is government agencies, it is 
being offered to all "affected anployees" as defined in the Consent 
Decree. You may feel that you have never been discriminated against and 
that neither your union nor your eitployer owes you anything; but, in 
view of the nature of the settlement, it would still be perfectly proper 
to accept the enclosed check.

How to Get Information
You should read this letter carefully. If you have any questions 

vAiich are not answered by this letter, representatives of the 
Iitplementation Ccmnittee at your plant wall be available to answer 
such questions at the times and place shown on the sheet wMch you 
have received along with this letter. You may call the telephone number 
shown on that sheet to make an appointment wath representatives of the 
Implomentation Cormittee.*

* If you desire, you may obtain guidance and counsel from others, 
including an attorney. This is a matter of your own choice, but any 
expense incnorred will be for your own resolution.

-  2 -  -

2 4 6
l/ '2̂)



The Release
In order to receive this back pay you vd.ll have to release certain 

claims or potential claims. That Release is printed on the back of your 
check, and a separate copy is enclosed for your records. You shoiild 

read the Release carefully.
The Release, vM.ch you will be executing if you cash or deposit 

your check, is an agreement by you to give up;
— all claims, known or unknown,
— viiich you have, or may have,
— against yoxxr onployer, the United Steelvrorkers of America 
and related individuals and organizations,

— ûnder any equal enplcyment opportunity law, ordinance, 
regulation, or order, including (but not limited to)
Title VII of the Civil Rights Act of 1964 as amended, the 
Civil Rights Act of 1866, Executive Order 11246 as amended, 
the United States Constitution, the duty of fair repre­
sentation under the Labor Management Relations Act, or any 
other applicable federal, state, or local constitutional 
or statutory provisions, orders or regulations,

— for any and all relief, injunctive, declaratory, monetary 
or otherwise,

— ^based on any discrimination or on the continuing 
effects of any discrimination because of 
race, color, sex* or national origin where such dis­
crimination occurred on or before April 12, 1974.

If you cash or deposit your check, you will give 155 vhatever rights 
you may have to file suit or otherwise pursue any of the matters covered 
by the Release as summarized in the above paragraph.

* The Release does not cover— and you would not give up— any claims 
based on differentiations between male and female aiployees in health 
insurance, pension and other fringe benefits, or any claims under the 
Equal Pay Act of 1963.

- 3 -

t/ 'I'f ̂
2 4 7



[Insert the following section where there is pending enployment 
discrimination litigation applicable to actual or alleged class 
motibers vto will receive the notice.]

Effect of Release on Pending Litigation
There is presently pending i n _______________________court an

action entitled____________________________________________________

[Ifere describe action; e.g., vdien corinenced; parties; 
attorneys; nature of allegations; class action status; 
relief sought; position of defendants; trial status; 
estimated time imtil final resolution including 
possible appeals; etc.]

No ruling has been made by the court in the_____________ case as
to vdiether the class viiich the plaintiffs seek to represent is entitled 
to any relief or, if so, viiat relief. If that decision should be 
favorable to the class, there could be special benefits— injunctive, 
monetary or both— ^provided to sane or all of the class manbers. Whether 
such benefits, if liLtimately awarded, would be more than, the same as, 
or less than those provided under the Consent Decree cannot be known at 
this time.

If you cash or deposit the check offered under the Consent Decree, 
you will be giving up whatever, if any, special benefits vidch might
otherwise have ultimately been awarded to you in the_______________
case by reason of discrimination vMch occurred on or before April 12, 
1974, or by reason of continuing effects after i^ril 12, 1974, of 
discrimination which occurred on or before that date.

Accordingly, in deciding whether to accept the back pay under 
the Consent Decree you should consider its effect upon your potential 
interest, if any, in the_________________■ case.

- 3.1 -

2 4 8



You Do Not Give Up Protection Against Future Dis­
crimination or Claxms Unrelated to Discrimination

The Release is limited to claims based on, incident to, or
resulting fron, acts of discrimination because of race, color, sex,
or national origin vMch occurred before i^ril 13, 1974. You do not
give i:p claims v4rLch are imrelated to such discrimination. Nor will
acceptance of your back pay check affect any claim you may have
on account of discriminatory acts occurring after î ril 12, 1974*;
and, as to such claims, you will continue to have such rights to proceed
as you otherwise would have under the Basic Labor Agreenent for
violations of that Agreement, imder the Consent Decree for non-
ccnpliance with that Decree, and under any applicable federal, state,
or local equal errployment opportunity law, statute, ordinance, or
regulation.

Bnployees with Pending EEXXI! Charges 
If you have a charge pending with the EEXX relating to an act 

or practice occurring before ̂ ril 13, 1974, your back pay check 
should not be enclosed with this letter, as the tender of such check 
will be handled xmder special procedures to be explained in a letter 
you are to receive fron the EEOC. If you have such a charge pending, 
you should contact the EEOC district office vhere you filed your 
charge (1) iitinediately if a check is enclosed with this letter, or 
(2) protptly after 20 days if, within that time, you have not received 
the EEOC letter.

* Note, hovEver, that all claims based on any continuing effects after 
April 12, 1974, of discriminatory acts which occurred on or prior to 
that date are considered pre-decree claims and are released by acceptance 
of the back pay check.

- 4 -

2 4 9
OJ



Calculation of Individijal Back Pay Awards 

As required by the Consent Decree, the gross aitount of back pay 
reflected on your check has been determined by a formula established by 
the Audit and Review Conraittee and approved by the District Court and is 
not based on an evalmtion of any individual claim you may have. The 
formula relates the amount of back pay to the length of an affected 
aiployee's plant continous service. Those affected ottployees in the 
same plant, of the same sex, and with the same plant service will receive 
the same anoimt of back pay; and those affected onployees in the same 
plant, of the same sex, with longer plant service will, in most instances, 

receive more back pay than those with shorter plant service. Under the 
formula, the amount of back pay received by an onployee at one plant 
will likely differ from that received by an onployee with equal plant 
service at another plant; and males and females with the same length of 
plant service may receive different amounts even though they work at the

same plant.
Your pi ̂n•̂  continuous service date was used in calculating the 

amount of your check. Therefore, it is important for you to make sure 
this date, which is shown on the stub of your check, is correct.

What To Do
1. Read this letter and the Release carefully. If you have a 

charge pending with the EEOC relating to acts or practices which 
occurred before April 13, 1974, read carefully the information you
will receive in a separate letter frcm the EEXX] and follow the directions

therein.
2. If you have any questions relat3ng to your plant continuous 

service date, your back pay amount, the method of its calculation, or

■ ^ 2 5 0



the Release, you may make an appointment with the representatives of 
your ]jinplan:oitation Catmittee identified on the schedule which you have 
received along with this letter.

3. To receive the back pay under the settlanent, you must per­
sonally sign the enclosed check in the space provided on the back, and 
cash or deposit it by the date shown on its front. It is iitproper and 
nay be unlawful for anyone other than the person to vdxm the check is 
made payable to sign it. The check is not to be cashed or deposited if
it or the Release on the back is altered in any way. Cashing or depositing 
of the check constitutes your final and binding acceptance of all the 
provisions of the Release printed on the check. Because your check 
cannot be cashed after the date upon v^ch it becctnes void, you 
should act promptly in deciding vhether or not to accept this back pay.

4. If your individual circumstances are such that you are imable 
to cone bo a decision before the void date on your check, you should 
contact your hipleinentation Ccinmittee representatives identified in the 
schedule received with this letter, and make an application for extension 
of time. If you wish to apply for such an extension, you must bring your 
back pay check with you. Such application should be made at least 15 
days before the void date on your check. If the circumstances you set 
forth justify an extension of time, the Audit and Review Canmittee
can grant it.

5. If the person to vdion the enclosed check is made payable is 
deceased, his or her spouse, executor or administrator should bring the 

check, together with personal identification, to the location shown on 
the enclosed sheet. Upon signing the Release, a new check will be made 
payable, as appropriate, to the surviving spouse or estate of the deceased.

-  6 -

2 5 1



6. If you believe that there is any error in the check or 
that you have received the check in error, you shoiald bring the 
check, together with personal identification, to the location shown 
on the enclosed sheet. If an error in the check is confirmed, a new 
oorrected check will be issued to you.

FOR THE AUDIT AND REVIEW COMMITTEE:

Union Chairman Carpanies' Chairman

Government Manber

- 7 -

2 5 2 iU



[Enclosure]

RcprcscntatJ.vcc of tho Iniplcrnait.al,1oii Cotmnl i;t;cc 

your plant v/lll be available bo anav/er your fiucr.l. Ion:; about 

the offer of back pay under the Consent Decree att ■ "■ I -

from A.M. to P.M. on
[and ], 1976.

You may call [Telephone N o .] to make an appoint­

ment with the representatives of the Committee during those 
hours. *

The names of the Implementation Committee members 
and the Government Representative are:
Union Members:

Company Members

Government 
Representative:

Any back-pay check made payable to a deceased person 

should be brought by that person's surviving spouse, executor

or administrator to [_______  location__________. ].

.For further information about l;ow to proceed in suci; cases you 
may call [Telephone No.] .

If you believe there is an error in the clieck received 
by you, you should bring that checlc, to [______location ].

2 5 3



A

Ihis Is A Release 
Read it Carefully Before Signing

1/ the undersigned, acknowledge receipt of the gross sum shown 
on the face of this check, in consideration of v^ch I irrevocably and
unconditionally release________________________________  Steel

Corporation, the IMited Steelworkers of America, the past and present 
parents, subsidiaries, division, officers, directors, agents, local 
unions, matibers, enployees, successors and assigns of either of them 
(severally and collectively "Releasees") jointly and individually, 
from any and all claims known or unknown vAiich I, iiy heirs, successors 
and assigns have or may have against Releasees and any and all liability 
vMch Releasees may have to me or them: (1) resxilting froti any actual 
or alleged violations occurring on or before April 12, 1974, based ipon 
race, color, sex or national origin, of any federal, state or local 
equal enployraent opportunity laws, ordinances, regulations, orders, 
the duty of fair representation or other applicable constitutional 
or statutory provisions, orders or regulations; and/or (2) resulting 
at any time from the continued effects of any such violations 
Releasees of any such laws, etc. [This Release includes any and all 
such claims or liability vinch have or could have been asserted by
me or on ny behalf in the case of ___________________

V.

in the U. S. District Court for the District of
_.]* I do not release claims relating

To be included vhere litigation is pending.

ATTACHMENT B

2 5 4



solely to fringe benefits of aiployment vMch may differentiate in 

purpose of effect between males and fanales and matters or claims 
arising under the Equal Pay Act.

I also consent to inmediate dismissal and termination, vdth pre­
judice, of any and all claims against Releasees released herein, filed 
by me or on my behalf vd.th any federal, state or local court or agency. 
I further agree that I will not file, or cause or permit to be filed 
on my behalf, any such claim.

The gross amount stated on the front of this check is the vAiole 
consideration of this Release. This Release is the sole and entire 
agreanent between me and Releasees and there are no other written 
or oral agreenents regarding the stjbject matter hereof.

I have read and understand this Release and the "Notice of 
Rights to Back Pay under Consent Decree I" received herewith. I 
intend to be legally bound by this release and have signed, sealed 
and delivered it voluntarily, without coercion and with knowledge of 
the nature and consequences thereof.

Signature: [Seal]

-  2 - 2 5 5



Lonend On Face OP Cheek

THOSE TO WirOM TUTS CIIICCK IS PHESENTED I'OH PAYMI'.MT OH Dl'.I’OSlT
SHOUI/D NOTE THAT: THIS CHECK IS NOT TO BE CASIII'U OH ACCEl’TED 

FOR DEPOSIT WITHOUT THE PAYEE'S INDORSEMENT AT THE PEACE PRO­
VIDED ON THE REVERSE SIDE OR IF THIS CHECK 01? THE RELEASE 

PRINTED ON THE REVERSE SIDE HAS BEEN ALTERED IN ANY WAY. T}IIS 
CHECK SHALL BE VOID AFTER THE VOID DATE PRINTIiD ON ITS FACE.

THE PAYEE SHOULD NOTE T H A T : BY CASHING OR DEPOSITING THIS 

CHECK THE PAYEE SHALL BE DEEMED TO HAVE RATIFIED AND ACCEPTED 
THE TERMS OF THE RELEASE.

Legend On Stub Of Cheek 

YOUR PLANT CONTINUOUS SERVICE DATE IS

ATTACHMENT C

o
2 5 6



IN THE UNITED STATES DISTRICT COURT FOR THE 
NORTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION

UNITED STATES OF AMERICA, et al,. 
Plaintiffs,

CIVIL ACTION 
NO. 74-P-339

V .

f i l e d  in  CLERK ’S  OFFICE 
riORTHERN DISTRICT OF ALABAM A

JAN 1 4 1975

) ) ) ) ) ) )
ALLEGHENY-LUDLUM INDUSTRIES, INC., )
et al., ))

Defendants. )
___________________________________ )

ORDER APPROVING PROPOSED 
EEOC LETTERS TO AFFECTED EMPLOYEES 

WITH PENDING EEOC CHARGES

The moti^, of the plaintiffs herein to approve 
certain notices and forms to be used by the Equal Employment 
Opportunity Commission and provided by it to certain 
employees who have pending charges before that Commission 
concerning alleged acts and practices of discrimination 
occurring on or before April 12, 1974, was heard on 
January 2, 1976. The plaintiffs have now resubmitted those 
letters and forms which will be used by the Commission and 
provided to those employees entitled to back pay under 
Consent Decree I who have such charges pending, with changes 
made to conform those letters and forms to the directions 
given by the Court during the course of the January 2, 1976 
hearing, and with the Court's Order and Memorandum of 
Opinion entered on January 5, 1976, and to further clarify

25 '



the procedures to be followed by the Equal Employment 
Opportunity Commission in implementing provisions of 
paragraph 19 of Consent Decree I. The Court has considered 
these redrafted letters and forms, copies of which are 
attached hereto, and it is;

ORDERED, ADJUDGED and DECREED that they are hereby 
approved subject to their being changed, or other communi­
cations being made, to correct any misinformation which 
may possibly have been given earlier by some Equal Employ­
ment Opportunity Commission offices.

/ ̂ORDERED this 'v day of January, 1976.

■ O -  L
UNITED STATES DISTRICT JUDGEJ

258



E Q U A L  E M P L O Y M E N T  O P P O R T U N I T Y  C O M M I S S I O N  
W A S H I N G T O N ,  D.C. 20506

EEOC LETTER "A" - 1/8/76

IN R E PLY  R E F E R  TO:

SUBJ: Notice to Charging Party whose charge falls wholly
within the Consent Decree and who is entitled to 
back pay.

RE: V.

Charge No. / Case No.

Dear Charging Party:
This letter is your notice that the Equal Employment 
Opportunity Commission (EEOC) has completed its review of 
your charge of employment discrimination as required by 
Consent Decree I and II entered on April 12, 1974, in 
United States, et. al. v. Allegheny-Ludlum Industries, Inc, 
et. al.. (U.S.D.C., N.D. Ala., Civ. Action No. 74-P-339).
After careful examination of your charge, the Commission 
believes that the allegations of discrimination contained 
therein fall wholly within the scope of the Consent Decrees 
mentioned above. We also.believe that the practices com­
plained of in your charge have been fully resolved by the 
relief provided by these Consent Decrees.
In accordance with provisions of Consent Decree I, you are 
entitled to participate in the back pay award provided for 
by that decree. Your check for the amount of back pay to 
which you are entitled under that decree will be made 
available to you at the time and place specified on the 
enclosed slip. At that time, you will be notified of that 
amount and have an opportunity to ask any questions about 
your charge or the basis for our conclusion concerning it.

259



Page 2 -- Letter "A"

You should understand that the amount of the offer to you 
of back pay under Consent Decree I was determined by the 
Audit and Review Committee according to factors specified 
in paragraph 18 of Consent Decree I. This sum is not 
based upon the facts of your individual charge.
Should you decide not to accept the back pay check offered 
and notify the EEOC that you desire to file a private suit 
on your own behalf, the EEOC representative named below 
will issue a Notice of Right to Sue to you.
The back pay check which you will be tendered will have a 
date on it after which it will be void and cannot be cashed 
or deposited. You must act before that date to avoid loss 
of your right to back pay under the Consent Decrees.

Name

Address

Phone-Collect

Sincerely,

Director

District Office

(Registered Mail)
Copy to Respondent(s)

260



E Q U A L  E M P L O Y M E N T  O P P O R T U N I T Y  C O M M I S S I O N  
W A S H I N G T O N ,  D.C. 20506

EEOC LETTER ”B' 1/8/76

IN R E PLY  R E F E R  TO:

SUBJ: Notice to Charging Party whose charge falls only 
partly within the Consent Decree and who is 
entitled to back pay.

RE: V.

Charge No, / Case No.

Dear Charging Party;
This letter is your notice that the Equal Employment 
Opportunity Commission (EEOC) has completed initial review 
of your charge of employment discrimination as required by 
Consent Decrees I and II entered on April 12, 1974, in 
United States, et. al. v. Allegheny-Ludlum Industries. Inc., 
et. al.. (U.S.D.C., N.D. Ala., Civ. Action No. 74-P-339).
After careful examination of your charge, the Commission 
believes that certain allegations of discrimination con­
tained in your charge fall wholly within the scope of the 
Consent Decrees mentioned above. We believe that those 
allegations concern practices which have been fully 
resolved by the relief provided by the Consent Decrees.
We believe other allegations in your charge, however, are 
not covered by the Consent Decrees. Therefore, at this 
time you have two options: (1) You may accept the check 
for back pay to which you are entitled under Consent Decree ! 
and sign a release of all existing claims of discrimination 
based on events occurring on or before April 12, 1974, 
including those allegations in your charge which are not 
covered by the Consent Decrees. This would then terminate

261



Page 2 -- Letter *'B”

the processing of your EEOC charge; ^  (2) you may choose 
not to accept the back pay check at this time, and the EEOC 
will continue its expedited processing of the portion of 
your charge which is not covered by the Consent Decrees.
The results of this expedited processing may or may not 
provide an opportunity for compensation or relief in excess 
of the back pay offer. Such a result depends entirely on 
the facts of your case as it develops. It is important to 
remember that you retain your option to accept the back pay 
offer at any time during the processing of your charge and 
for 30 days after you are notified of the final results of 
the EEOC processing. At the latest, within 30 days after 
notice of final results is sent to you, you must decide 
whether to accept the back pay offer and sign a release. 
Otherwise, you will lose your right to accept that offer.
You should understand that the amount of the offer to you 
of back pay under Consent Decree I was determined by the 
Audit and Review Committee according to factors specified 
in paragraph 18 of Consent Decree I. This sum is not based 
upon the facts of your individual charge.
You will be notified of the amount of back pay to which you 
are entitled under Consent Decree I and have an opportunity 
to ask any questions about your charge, or the basis for our 
conclusions concerning it, at the time and place specified 
on the enclosed slip.

262 43/



Page 3 -- Letter "B"

If you have any questions regarding your charge before that 
time, you should contact our local representative:

Name

Address

Phone-Collect

(Registered Mail)
Copy to Respondent(s)

Sincerely,

Director

District Office

263 >y



E Q U A L  E M P L O Y M E N T  O P P O R T U N I T Y  C O M M I S S I O N  
W A S H I N G T O N .  D.C. 20506

IN R E PLY  R E F E R  TO:

EEOC LETTER "C" - 1/7/76

SUBJ: Notice to Charging Party whose charge falls totally 
outside the Decree but who is entitled to back pay.

Re: V.

Charge No. / Case No.

Dear Charging Party:
This letter is your notice that the Equal Employment 
Opportunity Commission (EEOC) has completed its initial 
review of your charge of employment discrimination as 
required by Consent Decrees I and II entered on April 12, 
1974, in United States, et al. v, Allegheny-Ludlum 
Industries. Inc., et al.. (U.S.D.C., N.D. Ala. Civ. Action 
No. 74-P-339).
After careful examination of your charge, the Commission 
believes that the allegations of discrimination contained 
therein fall wholly outside the scope of the Consent Decrees 
mentioned above. This means that we believe the practices 
which you complained of are not resolved by the Consent 
Decrees,
Therefore, at this time you have two options: (1) You may 
accept the check for back pay to which you are entitled 
under Consent Decree I and sign a release of all existing 
claims related to acts or practices of discrimination occur­
ring on or before the entry of the Consent Decrees (April 
12, 1974) including those allegations in your charge.
This would then terminate the processing of your charge;
OR (2) you may choose not to accept the back pay check 
at this time, and the EEOC will continue its expedited 
processing of your charge. The results of this expe­
dited processing may or may not provide an opportunity

2 6 4



V
Page 2 —  Letter "C"
for compensation or relief in excess of the back pay 
offer. Such result depends entirely on the facts of 
your case as it develops. It is important to remember 
that you retain your option to accept the back pay 
offer at any time during the processing of your charge 
and for thirty (30) days after you are notified of 
the final results of the EEOC processing. At the latest, 
within 30 days after notice of final results is sent 
to you, you must decide whether to accept the back pay 
offer and sign a release. Otherwise, you will lose 
your right to accept that offer.
You should xmderstand that the amovint of your offer of 
back pay xinder Consent Decree I was determined by the 
Audit and Review Committee according to factors specified 
in paragraph 18 of Consent Decree I. This sum is not 
based upon the facts of your individual charge.
You will be notified of the amount of back pay to which 
you are entitled xinder Consent Decree I and have an 
opportunity to ask any questions about your charge at 
the time and place specified on the enclosed slip.
If you have any questions regarding your charge before 
that time, you should contact our local representative:

Name

Address

Phone-Collect
Sincerely,

Director

(Registered Mail)
Copy to Respondent(s) 2 6 5

District Office



E Q U A L  E M P L O Y M E N T  O P P O R T U N I T Y  C O M M I S S I O N  
W A S H I N G T O N .  D.C. 20506

IN R E PLY  R E F E R  TO:

EEOC LETTER "D" - 1/7/76

FORM TO BE DISTRIBUTED TO CHARGING PARTIES ENTITLED TO BACK 
PAY UNDER THE CONSENT DECREES AT THE MEETING TO DISCUSS AND 
OFFER BACK PAY CHECKS_______________________________ '
TO: Equal Employment Opportunity Commission

Please check one box, sign, and return in the enclosed 
envelope:
___/ I intend to accept the offer of back pay under the

Consent Decrees described. Please terminate processing 
of all pending charges relating to events occurring 
on or before April 12, 1974, which I have filed with 
the EEOC.

___/ I do not intend to accept the offer of back pay under
Consent Decree I at this time. If my pending EEOC 
charge has not been fully resolved by the Decrees, I 
will be notified of the results of the expedited 
processing of my pending charge(s) pursuant to 
Paragraph 19 of Consent Decree I. I understand that I 
may change my mind and accept the offer of Decree 
back pay at any time during processing or thirty (30) 
days after notification of the final results thereof.

Signature

O Employee's plant location

Employee's home address

if 4 1 ^ Employee's home telephone no,



E Q U A L  E M P L O Y M E N T  O P P O R T U N I T Y  C O M M I S S I O N  
W A S H I N G T O N ,  D.C. 20506

IN R E PLY  R E F E R  TO;

EEOC FORM "E" - 1/8/76

SUBJ: Slip of paper to be enclosed in EEOC letters to 
Charging Parties entitled to back pay under the 
Consent Decrees.

A meeting will be held at the following time and location 
to inform you of the amount of back pay to which you are 
entitled under Consent Decree I. An EEOC representative 
will be present to counsel you about your rights and 
options regarding the back pay offer and to answer any 
questions you may have concerning the processing by EEOC 
of your discrimination charge(s).

TIME:_
DATE:
LOCATION:

267