United States v. Allegheny Ludlum Industries Inc. Brief of Defendant-Appellee Companies
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October 10, 1974

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Brief Collection, LDF Court Filings. United States v. Allegheny Ludlum Industries Inc. Brief of Defendant-Appellee Companies, 1974. 95412d33-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2a9ada08-d940-4ee6-82cd-531367347cfc/united-states-v-allegheny-ludlum-industries-inc-brief-of-defendant-appellee-companies. Accessed July 09, 2025.
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'.tin t -^r ••>: pi? i44-‘ •':>r ».;.ry V ■ ^ ^ ̂ .i «:•-•••R,w.?.-1* :,-.J';^v. - -̂ v ,.'«ac;»^^ifl»lISfc^ZSTlC - A n J f i J t j.: .1'w- IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 74-3056 UNITED STATES OF AMERICA, by WILLI/Ĥ l B, SAXBE, the ATTORNEY GENERAL, on behalf of PETER J. BRENNAN, the SECRETARY OF LABOR; and the EQUAL EI4PLOYMENT OPPORTUNITY COMMISSION, Plaintiffs-Appellees V . ALLEGHENY LUDLUM INDUSTRIES, INC.; ARMCO STEEL CORPOR ATION; BETHLEHEM STEEL CORPORATION; JONES & LAUGHLIN STEEL CORPORATION; NATIONAL STEEL CORPORATION; REPUBLIC STEEL CORPOPJiTION; UNITED STATES STEEL CORPORATION; WHEELING-PITTSBURGH STEEL CORPOimTION; YOUNGSTOWN SHEET & TUBE COMPA14Y; and UNI':̂’ED STEELV70RKERS OF AI4ERICA, AFL-CIO-CLC, Defendants-Appellees SIDNEY HARRIS, et al, and NATIONAL ORGANIZATION FOR WOMEN, et al, Intervenors-Appellants On Appeal from the United States District Court For the Northern District of Alabama BRIEF OF DEFENDANT-APPELLEE COMPANIES JAMES R. FORMAL̂ , JR.WILLIAM K. MURRAY 1600 Bank for Savings Building Birmingham, Alabama 35203 Attorneys for Defendant-Appellee Companies SEE SIGNATURE PAGE FOR ATTORNEYS AND FIRMS OF COUNSEL IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 74-3056 UNITED STATES OF AMERICA, by V7ILLIAM B. SAXBE, the ATTORNEY GENERAL, on behalf of PETER J. BRENNAN, the SECRETARY OF LABOR; and the EQUAL EMPLOYMENT OPPORTUNITY COmiSSION, Plaintiffs-Appellees V. ALLEGHENY LUDLUM INDUSTRIES, INC.; ARMCO STEEL CORPOR- JtTION; BETHLEHEM STEEL CORPORATION; JONES & LAUGHLIN STEEL CORPOPxATION; NATIONAL STEEL CORPORATION; REPUBLIC STEEL CORPOPJ^TION; UNITED STATES STEEL CORPORATION; WKEELING-PITTSBURGH STEEL CORPOPJVTION; YOUNGSTOVJN SHEET & TUBE COMPANY; and UNITED STEELWORI-CERS OF AMERICA, AFL-CIO-CLC, Defendants-Appellees SIDNEY HARRIS, et al, and NATIONAL ORGANIZATION FOR WOMEN, et al, Intervenors-Appellants BRIEF OF DEFENDANT-APPELLEE COMPANIES Certificate required by Fiftli Circuit Local Rule 13 (a) : The undersigned, counsel of record for above named Defendant-Appellee Companies, certifies that the following listed parties have an interest in the outcome of the case. These representations are made in order that Judges of this Court may evaluate possible disqualifications or recusal pursuant to Local Rule 13 (a); 1. Equal Employment Opportunity Commission, the United States Department of Justice and United States Depart ment of Labor, plaintiffs. 2. National Organization for Women, Inc., petitioner for intervention; and Cathleen Beasley, Lessie O. Bolin Fix, and Bonnie Halascsak, interveners. 3. District 31 Committee to Defend the Right to Strike, National Ad Hoc Committee of Concerned Steelworkers, and Rank and File Team, amici curiae. 4. Sidney S. Harris, Willie J. Fonville, Paige A. Millhouse, Albert Everett, Nathaniel King, Ron Walker, John S. Ford, Willie Cain, Willie L. Coleman, Joe N. Taylor, Robert Cain, David Bowie, Earl Bell, Bernard Lane, Ellis Lewis, Levy Mazyck, George Mercer, Robert Skates, Jimmie L. Rodgers, John A. Turner, John Taylor, Luther Reden, C. L. Garland, L. C. Waker, James L. Allen, Joseph Kimbrough, Joe Bryant, Joseph Faulkner, and Isaiah Hayes, III, interveners. 5. Allegheny-Ludliiin Industries, Inc., Armco Steel Corporation, Bethlehem Steel Corporation, Jones & Laughlin Steel Corporation, National Steel Corporation, Republic Steel Corporation, United States Steel Corpo ration, Wheeling-Pittsburgh Steel Corporation, and Youngstov/n Sheet & Tube Company, defendants. If any additional information regarding defendant companies is needed pursuant to this Rule, it will be furnished upon request. 6. United Steelworkers of America, AFL-CIO-CLC, defendant. 7. Those minority employees in P&M units of the com panies whose date of employment precedes January 1, 1968, and those female employees in the same P&M unit Jl Zf f 11 -l.ll'̂ 'w'.rv.o.AUCA f fCtto Oi- /̂pJL-LJL fcertain of whom back pay totalling $30,940,000 is to be tendered. 8 . All employees of and all applicants for employment by defendant companies. '' ellee,/^torney for Defendant-A Companies TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES................................ iv COUNTER-STATEMENT OF THE ISSUES .................... 1 STATEMENT OF THE C A S E .............................. 3 STATEMENT OF THE FACTS.............................. 6 ARGUMENT............................................. 12 INTRODUCTION .............................. 12 I. BY ACHIEVING A VOLUNTARY SETTLEMENT THE GOVERNMENT HAS ACCOMPLISHED — NOT ABDICATED — ITS RESPONSIBILITY UNDER SECTION 706(f)(1) OF TITLE VII ............. 13 A. Voluntary Settlement Is The Goal Of Title V I I ........................ 13 B. Uncertainty Of Private Litigation . . 17 C. The Government Has Not Abdicated Its Enforcement Responsibility .......... 19 II. THE EEOC HAS NOT ABDICATED ITS CONCILIA TION RESPONSIBILITIES UNDER SECTION 706(b) OF TITLE VII BY AGREEING IN DECREE I TO PROMPTLY MAKE DETERMINATIONS ON PENDING CHARGES AS TO WHETHER THE EEOC BELIEVES THE ALLEGED UNFAIR EMPLOYMENT PRACTICE HAS BEEN RESOLVED BY THE DECREE.............. 23 III. PARAGRAPH C OF DECREES I AND II AND SECTION 16 OF DECREE I — WHICH DESIGNATE THE GOVERNMENT PERSONNEL WHO WILL CONDUCT A CONTINUING AUDIT UNDER EXECUTIVE ORDER 11246 — ARE NOT AN UNLAWFUL LIMITATION UPON THE AUTHORITY OF THE O F C C ............ 25 IV. IT WAS NOT UNLAWFUL FOR THE GOVERNMENT TO AGREE, IN PAPJ^GRAPH C OF DECREES I AND II, TO MAKE CERTAIN REPRESENTATIONS TO OTHER COURTS OR FORUMS IN WHICH INJUNC TIVE RELIEF IS BEING SOUGHT .............. 30 - 1 - V. THE RELEASE OF CLAIMS REQUIRED OF INDIVI DUALS ACCEPTING BACK PAY IS VALID........ 33 A. Releases Are Essential To Continued Viability Of Conciliation and Settlement.......................... 33 B. The Scope And Effect Of Releases Under Paragraph 18 ( g).............. 36 1. No release of prospective claims........................ 36 2. Additional injunctive relief . . 37 3. Additional back pay ........... 40 4. Enforcement of the consent de crees by individuals ........... 41 5. Accrued claims................ 41 C. Interveners Confuse Election Of Remedies With Release of a Prospective Cause of 7\ction.......... '........ 41 D. The Proposed Releases Are Not Contrary To Pubixe Polxcy.................. 43 1. The effect of acceptance by the charging party of an EEOC conci liation agreement is identical to that of the proposed release . 44 2. Established use of releases in Title VII litigation............ 46 3. FLSA and Other "Liquidated Damage" Cases are Not Applicable . 49 VI. THERE IS ADEQUATE JUDICIAL SUPERVISION OF ENFORCEMENT OF THE DECREES.............. 52 VII. THE DECREES ARE NOT MADE UNLAWFUL BY THE FACT THAT INTERVENORS WERE NOT GIVEN THE OPPORTUNITY TO PARTICIPATE IN THE NEGOTIA TIONS OR INTERVENE PRIOR TO THE ORIGINAL APPROVAL BY THE DISTRICT COURT .......... 54 - XX - VIII. THE DECREES ARE NOT UNLAWFUL BECAUSE THEY DO NOT ATTEMPT TO RESOLVE CERTAIN SPECIAL PROBLEMS ALLEGED BY N.O.W................ 56 A. The Decrees Are Not Unlawful Because of Their Failure To Remedy The Alleged Discharge of Some Women in the 1940's............ ............ 57 B. The Decrees Are Not Unlawful Because of The Absence of Transfer Rights Betv/een Office Jobs and Production or Maintenance Jobs . . . . ............ 58 C. Section 10(a) of Decree I is Not Made Illegal Because it Bases Trade and Craft Goals Upon the Percentage of Women in Production and Maintenance Units.................... .. 59 IX. THE DISTRICT COURT DID NOT COMMIT REVERSIBLE ERROR WHEN IT PERMITTED N.O.V7. TO NAI>1E INDIVI DUAL WOMEN EMPLOYEES AS INTERVENORS BUT DENIED INTERVENTION BY THE ORGANIZATION UNDER FEDERAL RULE OF CIVIL PROCEDURE 24(a).................................... 60 CONCLUSION 64 - Ill - TABLE OF AUTHORITIES Pages Air3-ine Stewards ^ Stewardesses v. American Air lines, Inc.. , 455 F.2d 101 (7th Cir. 1972) ......... 14 Alexander 'v. Gardner-Denver, 415 U.S. 36 (1974) ...... 14, 22, 41,----------- ^2 ̂ 52 American Finance System, Inc. v. Pickel, 7 EPD <19081 (D. Md. 1974) . . .■................................ 49 Austin V. Reynolds MetaTLs C^, , 327 F.Supp. 1145 (E.D. Va. 1970) 46 Beachwood Lumber Co. v. Tobin, 199 F.2d 878 (5th Cir.“ l952) G4 Bennett v. Madison County Board of Education, 437 F.2d 554 (5th Cir. 1970) .................. ....... 61 Bethlehem Steel Corp., OFCC Dkt. 102-68 (1970)........ 6 , 7, 10 Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136 (5th cTrT“l97lT............................ 45 Bowe V. Colgate-Palmolive Co., 416 F.2d 711 TTth Cir. 196 91 TTTTTTTTT............................. 14 Bowers v. Remington Rand, Inc., 159 F.2d 114 (7th Cir. 1946) , cert. den̂ "cI7 330 U.S. 84 3 (194 7) ............ '.................................. 52 Bracey v. Luray, 161 F.2d 128 (4th Cir. 1947) ........ 52 Brooklyn Savinas Bank v. O'Neil, 324 U.S. 697 (194 5) .'........... 7.................................. 50 Brown v. Gaston County Dveing Machine Co., 457 F.2d 1377 (4th“Cir. 19 72 5 . . . ........................... 52 Bryan v. Pittsburgh Plate Glass Co., 59 FRD 616 (W.D. Pa. 1973), af f '~d, 494 F,2d 799 (3rd Cir. 1974)................ 16 , 48 Buford V. American Finance Co., 333 F.Supp. 1243 (N.D. Ga. 1971)....................................... 50 Bush V. Lone Star, 7 FEP Cases 1258 (E.D. Tex. T T U ) ~ .... . ............................................ 6 - IV - Pages City of Orange v. Fidelity £ Deposit. Co. of , 180 F.2d 269 (5th Cir. '1950)................. 64 Cox V . Gyp SUIT! Co. , 409 F.2d 289 (7 th Cir. 1969)........ 46 Culpepper v. Reynolds Meta.l s Co., 421 F.2d 888 (5th Cir. 197^....................................... 13, 14 Dent V. St. Louis - San Francisco R.R., 406 F.2d 399 (5'th Cir. i9b~9)....‘.................. ............. 14, 44 Edv/a.rds v. North American Rockwell Corp., 291 F.Supp. 199 (C.D. Cal. 1968) 22 EEOC V. AT&T, 365 F.Supp. 1105 (E.D. Pa. 1973) 48, 62, 63 EEOC V. Kimberly-Clark Corp., 7 FEP Cases 666 (W.D. Tenn. 1974) ................ .......................... 49 EEOC V. Plurtlaers, Local 189 , 438 F.2d 408 (6th Cir. 1971) ............T.............................. 49 Florida Trailer and Equi.pment Co. v. Deal, 284 F.2d 567 (5th Cir. 1960) ............................. 17 Flowers v. Local No 6, Laborers Int. Union, 431 F.2d 205 (7th Cir. 1970) ..."___'.................. 46 Franks v. Bowman Transportation Co., 495 F.2d 398 (5th Cir. 1974) .................................. 52 Gerst].e v. Continental Airlines, Inc., 358 F.Supp. 545 (D.Colo. 1973) ........................... 49 Guerra v. Manchester Terminal Co., 498 F.2d 641 (5th Cir. 1974) 14 Hackett v. McGuire Bros., Inc., 455 F.2d 442 (3rd Ci'r. 1971) 62 Harris v. Republic Steel Corporation, C.A. 74-P-334S (N.D. Ala.) ................................ 4 Hecht V. Cooperative for American Relief Every where , Inc. , 6 FEP Cases 1075 (S.D.N.Y. 1973) ........ 49 Hines v. Rapides Parish School Board, 479 F.2d 762 (5th Cir. 1973) 61 Horton V. Lav/rence County Bd. of Educ., 425 E.2d 735 (5th Cir. 1970) ___.'.............................. 61, 62 - V Pages In Re Constructors of Florida, Inc., 349 F.2d 595 (5th Cir. 1965) 21 Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968) ............................................ 14, 22 Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th Cir. 1974) 51 Lane v. Bethlehem Steel Corporation, C.A. 71-580-H (D. Md.) ..................................... 4 Leisner v. New York Tel. & Tel. Co., 358 F.Supp. 359 (S.D.N.Y. 1973) .......................... 46, 48 Local 189 V, United States, 416 F.2d 980 (5th Cir. 196S') 6 McGriff V. A. O. Smith Coro., 51 FRD 479 (D. So. Car. 1971) .....' .............................. 4 6 Meat Cutters v. Safeway Stores, Inc., 6 FEP Cases 14 (D. Ka. 1972) ........................... 49 Moffat Tunnel Improvement Dist. v. Denver & S.L. R^. Co., 45 F.2d 715 (10th C’xr. 1930) ................ 64 Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972) .... 62 NAACP V. Button, 371 U.S. 415 (1962) ....................... 62 National Welfare Riqhts Organizations v. Wyman, 304 F.Supp. 1346 (E.D.N.Y. “1969) 7777................. 62 Oatis V. Crown Zellerbach Corp., 398 F.2d 496 (5th clr. 1968) ....... ............................... 13, 14w Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970) ............................. 52 Partee v. Pic-Walsh Freight Co., 7 FEP Cases 1315 (W.D. Tenn. 19’72l 7777.7................. ........ 49 Pettway v. American Cast Iron Pipe Co., 494 10, 14, 16 F.2d 211 (5th Cir. i W U T ............................. 47, 51, 52 Reed v. Arlington Hotel Co., 476 F.2d 721 (8th Cir. 1973) ............................................ 46 18 - VI - Paqea Rodgers v. United States Steel Corporation, C.A. 71-793 (W.D. T. . . ................ Schulte V. Gangi, 328 U.S. 108 (1946) ........... . 50, 51, 52 Scj araffa v. Oxford Paper Co., 310 F.Supp. 891 Sierra Club v. Morton, 304 U.S. 727 (1972) Stamps V. Detroit Edison, 365 F.Supp. 87 (E.D. Taylor v. Armco Steel Corp., 429 F.2d 498 (5th Cir. 1970) ................................... United States v. Bethlehem Steel Corp., 312 F.Supp. 977 (W.D.N.y. 1970), rev'd, 4'46 F.2d 652 (2d Cir. 1971) .................................. United States v. Detroit Edison, 365 F.Supp. 87 (E.D. Mich. 1973) ............................ United States v. Georqia Power, 474 F.2d 906 (5th Cir. 1973) ...................................... United States v. Georgi a Power Co., Civil No. United States v. H. K. Porter, 296 F.Supp. 40 (isi.b. Ala. 1968), remanded with instructions, 491 F.2d 1105 (5th cir.~ 197477" settled~Ey consent decree, 7 FEP 1021 (N.D. Ala. March 22, 1974) .......................... .............. United States v. Ironworkers, Local 8 6, 5 EPD United States v. Local 3, Operating Engineers, 4 FEP Case 1088 (N.D, Cal. 1972) ............ 50, 51, 52 22 62 1 0 , 62 4 6 6 , 7 63 7,43, 34, 35 46, 47 47, 52, 54 6 , 7, 54 24 32, 36 United States v. Sinor, 238 F.2d 271 (5th Cir. 1956) ................................................. 64 United States v. United States Steel, 371 F.Supp. 1045 (N.D. Ala. 1973) (on appeal to 5th Cir. No. 73-3907) .............................................. 64 4, 6 , 7, 9, 11, 37, United States v. United States Steel Corp., Civil No. 70-906 (N.D. Ala., May 2, 1973) (on appeal to 5th Cir. No. 73-3907) ................................ 37 - VIX - Pages Urbino v. Puerto Rico Ry Light & Power Co., 164 F.2d 1.2 (1st Cir. 1947) ...... 7. ......77............. 52 Waker, et al. v. Republic Steel Corporation, C.A. 71-179, 180, 181, 185, and 72-255 0^70. Ala.) ........ 4 , 7 Williams v. New Orleans S.S. Ass'n, 341 F.Supp. 613 (E.D. La. 1972) . . .....77777..................... 46 Williamson v. Bethlehem Steel Corp., 468 F.2d 1201 (2d Cir. 1972), cert, den'd, 411 U.S. 973 (1973) ......... 77777.7777“....................... 3 5 , 36 Wisconsin Darge Lines, Inc. v. Coastal Marine Trans. , Inc. , 414 F.2d 872 (5th Cir. 1977777......... 64 Statutes and Administrative Regulations 2 7 Am. Jur. 2d, Equity §131 .......................... 33 181 BNA-DLR D-1, 2 & 182 BNA-DLR 1-10,11 (1974) ........................... ................... 21 1 CCH Erap. Prac. Guide 1(16 8 0 (197 3) .................. 4 5 , 4 8 41 CFR §60-1.20 e^ seq................................ 27, 29 Executive Order 11246 ................. ............... 1 26 27 28^ 29^ 4s' Federal Rules of Civil Procedure, Rule 24(a) ......... 3 , 61, 63 House Report No. 92-238 ............................... 45 IB Moore* s Federal Practice 1(0.405 v(2d ed. 1974) ..... 21 Title VII, Civil Rights Act of 1964, §706 et seq., 42 U.S.C. §2000e-5 et seq............................. 1 5 ̂ 21, 24, 3 2 ' 3 3 'r 34, 44, 45, 55, 61 28 U.S.C. §1343 ....................................... 33 1972 U.S. Code Cong, and Admin. News 2137 (1974) ..... 45 - vxii - COUNTER-STATEMENT OF THE ISSUES 1. Whether the District Court abused its discretion in refusing to vacate the decrees in response to the objections by intervenors-appellants raising the following issues: A. Whether the EEOC unlawfully abdicated its responsi bility under Section 706 (f)(1) of Title VII to reir.edy discrimination through lawsuits because that agency agreed in paragraph C of Decrees I and II that the decrees resolved the issues within the scope of the complaint or the decrees.' E. Whether the EEOC unlav/fully abdicated its responsi bility under Section 706(b) of Title VII to conciliate pending charges because paragraph 19 of Decree I re quires it promptly to review each charge filed against defendants and then to advise each charging party v/hether the EEOC believes such a charge relates to an alleged unlawful employment practice which has been resolved by that decree. C. Whether the Office of Federal Contract Compliance (OFCC) and the Secretary of Labor unlawfully abdicated their responsibilities under Executive Order 11246, as amended, because paragraph C of Decrees I and II cr paragraph 16 of Decree I designate the government representatives who meet with the im.plementation com mittees and the government member on the Audit and Review Committee to conduct a continuing audit of compliance with the decrees under the Executive eirder. D. VJhether the government unlawfully agreed in paragraph C of Decrees I and II to advise other forums, v;here pri vate actions seeking additional or inconsistent in junctive relief are pending, that, in view of the sys temic relief afforded by these decrees, such relief in that action is unwarranted. E. Whether paragraph 18(g) of Decree I is unlawful because it requires that a release be signed if an "affected employee" desires to accept the back pay tender. F. Whether Decrees I and II unlawfully fail to provide adequate judicial supervision of enforcement. G. Whether, after affording interveners the time and op portunity for as complete a hearing as they requested on reconsideration of the decrees, tl:c District Court should have set aside the decrees solely because that hearing had not been conducted before the District Court's original entry of those decrees. K. Whether the decrees are unlawful, as alleged by because they do not deal with the follov/ing special problems allegedly experienced by women: i. the decrees do not deal with the alleged discharge of some v/omen in the 1940's. ii. the alleged failure of the decrees to create transfer rights between office jobs and production or maintenance jobs, iii. the fact that paragraph 10(a) of Decree I bases trade and craft goals upon t3ie per centage of v.'omen in production and main tenance units. - z 2, Whether the District Court, although it permitted HOW to name three women who were employees of defendant companies to intervene and represent the views of NOW, nevertheless committed reversible error by denying NOW's request that it be permitted to intervene, as an organization, under Federal Rule of Civil Procedure 24(a). 1/STATEMENT OF THE CASE The two consent decrees in this case, entered into by the three plaintiffs (the Departments of Justice and Labor and the EEOC) and ten defendants (nine steel companies and the United Steelworkers of America), represent one of the most significant 2/industry-v/ide Title VII settlements yet reached. The District Court, after reviewing, modifying and entering the consent de crees stated: 1/ This Brief is submitted on behalf of the nine corporate ~ defendants (the "companies") in reply to the separate briefs filed by the Harris group of intervenors and the National Organization for VJomen, Inc. ("NOW"). The consent decrees in approximate figures, cover 73% of the basic steel industry consisting of 250 separate plants and 350,000 employees of whom 60,000 are minority and female. Back pay amounting to $30,940,000.00, is offered to certain of those latter emiployees. Consent Decree I ("Decree I") takes the form of an injunction applicable to those units in which the terms and conditions of employment are established by national collective bargaining by the companies and the union. It provides for a restructuring of seniority rules and regulations, primarily using plant continuous service for determinations depending on a measure of service; speci fies procedures respecting transfers, promotions, vacancies, layoffs and recalls; and enumerates affirmative action v;ith respect to trade and craft positions. Consent Decree II (Decree II") takes the form of a general injunction respect ing those aspects of employment such as hiring, initial assignment, and promotion to supervisory positions as to which the union has no responsibility. - 3 - "The provisions reflect a thoughtful and earnest attempt to respond to . . . charges of employment discrimination made on behalf of black, fem.ale and Spanish surnamed v.’orkers and applicants." (A. 184a). The decrees were entered on April 12, 1974. By May 17, 1974, three organizations, four individuals and six groups of 33 named plaintiffs in six pending actions in various district courts moved to intervene and to vacate and set aside the consent 3/decrees. The District Court invited intervenors to file briefs, offer evidence and make oral arguments at the May 20, 1974, hearing at the conclusion of which the court limited intervention to 37 in 4/dividuals, and stated that: "Such intervention as is allowed is permitted at this time for the limited purposes of [1 ] seeking to stay or vacate the consent decrees and [2 ] to question the contemplated releases of back-pay claims in connection with the payments of back-pay to electing employees under the decree." (A. 187a). The Court refused to stay or vacate the decrees: 3/ The Harris group consists of seven sub groups, the first of~ which claims to move on behalf of all black employees of all defendant companies at plants represented by the union. The next six sub-groups claim to represent six limited classes in pending actions, Harris v. Republic Steel Corp., C.A. 7 4 _ p _ 3 3 4 S (N.D. Ala.); United States v. United States Steel Corp., 371 F.Supp. 1045 (N.D. Ala. 1973)(on appeal to this Court, No. 73-3907); Taylor v. Armco Steel, C.A. 68-129 (S.D. Texas); Waker et al. y. Republic Steel Corp., C.A. 71-179, 180, 181, 185, & 72-255 (N.D. Ala.); Lane v. Bethlehem Steel Corp., C.A. 71-580-H (D. Md.); Rodgers v. United States Steel Corp., C.A. 71-793 (W.D. Pa.). 4/ All of the individual movants and three, women named by NOW in its amended complaint were allowed to intervene for limited purposes. NOW, the Ad Hoc Committee of Steelworkers and the National Steelworkers Rank and File Committee were denied intervention. Only NOW appeals from the denial, of intervention. - 4 - " . . . the court concludes that, as attacks on the decrees as a whole, they are due to be denied and overruled, and that the intervenors do not demonstrate or suggest anything illegal, improper or fundamentally unsound in these decrees, which, it should be emphasized, are not binding on in dividual employees." (A. 188a), and upheld the validity of the releases: "This court concludes that there ciin be a legal waiver of back-pay claims where, for valuable consideration, a release is signed knov/ingly and voluntarily, with adequate notice v.’hich gives the employee full possession of the facts . . . ." (A. 192a), thereby disposing of botli issues. On July 17, 1974, the District Court denied intervenors' ap plication for stay pending appeal and on September 6, 1974, this Court denied a motion to stay and granted a motion for expedited appeal, both filed by intervenors. T ̂ — i-. r-. z-N-P 4-K, ̂ "Kr-vlWAJ.S.- ^ ^ ^ V .W-Vi .W— courts, the companies notified their employees of the entry and 5/effect of the consent decrees.” The changes in the industry seniority practices mandated by the decrees have been implemented at the plants listed in paragraph 3(c) of Decree I under the supervision of the Audit and Review (A&R) Committee and local implementation committees. Implementation at the plants and facilities listed in paragraph 3 (d) v;ill take place by the end of the year. 5 / At plants where private class actions under Title VII were " pending the form of notice, which had been approved by counsel for the parties and Judge Pointer, was submitted to the local district court. Representatives of the private plaintiffs were heard and the notices were reviewed, modi fied in some cases, and approved for submission to employ ees . - 5 - STATEMENT OF THE FACTS Superimposed upon the steel industry, complex and unusual in many ways, is an equally complex seniority system which has grown with and met the needs of the industry over the years. Six cases involving aspects of the steel industry seniority system have been litigated and decided under Title VII and Executive Order 11246. Those decisions clearly reflect the special problems relating to injunctive relief fundamentally changing the basic seniority system. The application of the "business necessity" doctrine to the unique structure of the steel industry caused a delayed application of the concepts of plant continuous service [plant service] and rate retention even though those concepts had been applied to other seniority systems that operated in less ycomplex industries. The first three cases indicated that 6/ 7/ United States v. H. K. Porter, remanded with1968) , 1974), March 22, F.Supp 1971); ________ Taylor v . Armco United States v.settled by 1974 ______977 (W.D.N.Y. 1970T Bethlehem Steel Corp Steel Corp. supra;United States Steel, 1258 (E.D. Tex. 1974) ______ 296 F.Supp. 40 (N.D. Ala. __ instructions, 491 F.2d 1105 (5th Cir. consent decree, 7 FEP 1021 (N.D. Ala. Bethlehem Steel Corp., F.2d 652 (2nd Cir. 1 0 2 - 6 8 (1970); Cir. 1970) 7 312 rev'd 446 . OFCC Dkt. , 429 F.2d 498 (5th Bush V. Lone Star, FEP Cases A strong possibility of a conflict in the circuits relating to the peculiarities of the steel industry was noted by Judge Pointer in United States Steel, summarized as follov;s: This Court in Local 189 v. United States, 416 F.2d 980 (5th Cir. 1969), the first appellate decision requiring a re vision of a seniority system such as at Fairfield Works, saw no necessary conflict with the H. K. Porter decision, 196 F.Supp. 40, v/hich had upheld such a system in the steel industry. The district court in Bethlehem Steel, 312 F.Supp. 977, and the Hearing Panel in the Bethlehem Steel Corp. OFCC Dkt. 102-68, concluded that Local 189-type remedies were inappropriate in the steel industry. Not until 1971 was the Bethlehem Steel decision reversed, 446 F.2d 652 (2nd Cir. 1971). Even so, H. K. Porter was then on appeal to this Court and, particularly in view of Local 189, the strong possibility of a conflict in the circuits remained. -. 6 "business necessity" justified a seniority system in the steel 8/industry different from some other industries. Plant service and rate retention (red circle) were not originally deemed ne cessary and back pay v;as not even sought during the first six years after Title VII was passed. Back pay was first sought in a steel company pattern or practice action in United States v. United States Steel, 371 F.Supp. 1045 (N.D. Ala. 1973), filed in December of 1970, and was first permitted in a pattern or prac tice action in 1973, United States v. Georgia Power, 474 F.2d 906 (5th Cir. 1973). The first pattern or practice case to litigate the issue of back pay in the industry was United States Steel, where Judge Pointer held that back pay was not warranted. Shortly after United States Steel, the H. K. Porter case was settled by a consent decree on March 19, 1974, which used Judge Pointer's decree as a guide. The K. K. Porter settlement did not av;ard a red circle formula or back pay. Immediately after Judge Pointer entered his decree in United States Steel, the parties entered into a substantially idential decree in Waker v. Republic Steel Corporation, supra, and com panion cases, cases then pending before Judge Pointer involving the Gadsden plant of Republic Steel. The consent decrees developed from the effort of the major steel companies and the union to conform the industry-wide sen iority system to the results of the foregoing cases in order to II* li* PoJ^ter, supra; Bethlehem Steel, 312 F.Supp. 977, supra; Fiethlehem Steel, OFCC Dkt, supra. In Bethlehem Steel Corp., 312 F.Supp. 977, 996 the court stated "The Court will order that all employees . . . shall have the right to transfer to other departments . . . without rate retention or seniority carryover." - 7 9/ mitigate any continuing effects of past discrimination. In corporation of the principles of plant service and intraplant transfer v;ith rate retention throughout the com.panies required changes of a revolutionary nature. The companies v;ere, of course, interested in accomiplishing that result in a manner which would have the least adverse impact upon the safety and effi ciency of operations. The union naturally sought to preserve as fax' as possible the legitimate expectations of all of its mem bers. The government agencies which entered the negotiations were particularly concerned V7ith obtaining full and complete svstem.ic relief for individuals and to that end insisted upon a10/ back pay settlement offer, the inclusion of females, and the separate Consent Decree II which, among other things, affects the hiring, assignment and promotion practices of the companies as to whicli the union has no responsibility, with the goal of achieving full utilization of minorities and females. All of the parties were concerned with avoiding the enormous cost of further pattern or practice litigation on a plant—by-plant basis and the poss ibility of conflicting and perhaps irreconciliable changes in the seniority system, which could result from variations between the decrees of different district courts. 9/ .As the intervenors recognize (Harris Brief at 9) any sys- ” tematic discrimination that may have existed in the industry had terminated by 1968 — in most instances v;ell before that date. The decrees, of course, have the effect of making substantial benefits available to employees at plants and facilities v/here past practices were not discriminatory. 10/ Females are entitled to receive back pay and are added to the goals and timetables under the Affirmative Action Plan with a goal that 20% of all new hires in P&M be female. The United States Steel decree is silent on this issue as neither the United States nor the seven private cases consolidated for trial sought this relief. - 8 - Given the adversary nature of the lengthy negotiations, the consent decrees could not have been achieved if the self inte.rest of the parties, v̂ hich motivated the original effort, had not been subordinated to the common aim of achieving a new system pro viding increased opportunities for minority and female employees. The fact that the package of substantive relief obtained by the governmiont exceeds in breadth that awarded in any prior case in IjL/the industry demonstrates that the government has not "sold out" its o'vvn interest in enforcement of the law or the rights of individual employees. The consent decrees provide:' a novel system of administra-- ii/tion which consolidates the diverse enforcement efforts of 11/ The systemic relief provided by the consent decrees includes plant service to bo used for all future promotions, step- ups, demotions, layoffs, recalls and other practices v;here a measure of service is utilized. All tests given to em ployees are to be validated according to FEOC guidelines and Labor Department regulations. An offer of back pay is made, totalling $30,940,000. Rack pay is available to all P&M minority employees hired before 196 8 and all P&M female employees hired before the date the decree. Rate retention is available to all P&M employ ees hired before 1968. In United States Steel rate reten tion and back pay were limited to black employees hired before 1963. The consent decrees grant rate retention for tvjo years for transfers at any time, whereas United States Steel limited rate retention to one year for transfers within -three years. In the three private actions where back pay was awarded in United States Steel , there v;ere 4 64 cla-.c- mieirbers. 13% (61 members) received back pay and 87% (403 em.ployees) v;ere denied back pay; accordingly, the average back pay to the 464 class memebers was $433.38 but consider ing all of the consolidated cases tried, including the pat tern or practice case, the average back pay award v:as $64.68. 12/ The decrees provide for implementation comm.ittees and an A&R Committee, answerable to Judge Pointer, which have already proved their effectiveness in resolving the diverse problems arising during the initial stages of implementation. Other courts have recognized the effectiveness of implementation comrr.ittees coupled with retained jurisdiction in controlling and monitoring implementation. United States Steel, supra; - 9 - the various agencies and provides for continuous monitoring of compliance under the supervision of the District Court. The 12 Con'd/ Bethlehem Steel, OFCC Dkt. 102-G8, supra; Pettway y. Tmer- ican Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 197 4); Stamps' V. Detroit Edison, 365 F.Supp. 87 (E.D. Mich. 1973) The A&R Committee consists of five company, five union and one government menfoer with each of the three parties having equal voice. Its actions must be unanimous to be effective The implementation committees, numbering over two hundred at virtually all plants in the industry, are reviewed by the A&R Committee, VN'hich acts as a policy coordinator for implementation of the decrees. Those committees keep detailed records of actions taken, available to the District Court, which, in turn, has full power of review over all of their actions. The interaction of the Court and these comimittecs represents a mechanism for prompt disposition of any problem arising under the decrees and for continuous tailoring of the relief to special plant situations. Implementation committees are- now workinq at all of the larger plants and m.any of the smaller plants. The A&R Committee has met 17 times (prior to October 10, 1974), including sessions lasting two and three days. Every "decree-related" grievance filed by any employee is processed through the established grievance machinery— with the local implementation committee advised of its progress. Resolution is subject to review by the A&R Committee and then by the District Court. Communication, written and telephonic, has been maintained betv/een Judge Pointer and the A&R Committee through the government member, ’'r. Robert T. Moore, Attorney, Department of Justice. Each implementation committee consists of tv.-o or m.ore union members, one or more of whom is a minority member, tv.'o or more company members and is subject to the supervision of an appointed government representative, any of whom may refer disputed matters to the A.&R Committee. ’lore than 1,000 individuals, therefore, will be charged with implementing these decrees to the satisfaction of the Court. Mot only has the Court retained jurisdiction, but the flexibility for relief contained in the consent decrees provides for ad ditional relief v/ithin the system. Under Decree I, para graph 4 (a)(2 ) provides for the revision of seniority units and pools; paragraph 6 provides review of promotion and transfer opportunities; paragraph 7(d) provides for reviev: - 10 - decrees also require that charges pending with the EEOC be re- 13/ viewed and resolved within one year if possible, and represent M /an ultimate time saving of years over litigation. Defendants have a substantial interest in the success of Title VII and the consent decrees in ensuring a production en vironment free of discrimination. The decrees show that com pliance with Title VII can be achieved in the m.anner preferred by Congress, through conference and conciliation without prolonged and segmented litigation. 12 Con'd/ of existing temporary vacancy practices; paragraph 1 0 (a) provides for a utilization analysis of trade and craft jobs; paragraph 1 0 (f) provides for review of goals and timetables at least annually; and paragraph 13(c) provides for review of the experience under this decree to determine if addi tional relief is warranted. The Agreement attached to Decree II requires a utilization analysis with goals and timetables (paragraph 2) , af f iriua Li ve j. ui Luiei'i L ef uixiiorj.- ties and females, approval of the utilization analysis and all supplemental data by OFCC (paragraph 3), approval of affirmative action plan by OFCC (paragraph 3(b)), annual review of OFCC (paragraph 3(c)) and review by A&R Committee (paragraph 3(c)) and by the District Court (paragraph 5(b)). 13/ So far as we are aware, this is the first time that any decree has required expeditious resolution of all EEOC charges. Many of these charges have been unresolved for years. 14/ United States Steel, supra, involved about 10,000 employees of whom approximately 3,100 were black, in comparison to the consent decrees V7hich cover approximately 350,000 of whom about 60,000 are minorities or women. It took six months to try the United States Steel case. If an equivalent amount of time were used to litigate the issues at each of the 250 plants covered by the consent decrees, it would take at that rate 1 0 years of trial time to decide the issue of lia bility. If after trial the issue of back pay were referred to the court or a special master for determination on an individual basis, after giving consideration to various defenses, including lack of qualification, freezing, not bidding, and physical fitness, and if one hour were allo cated to each individual, over 28 years of trial time could be consumed. - 11 - ARGUMENT INTRODUCTION The real attack mounted by this appeal goes to the very ability of the United States Government to reach a settlement with the employers of most of the workers in one of the country's most vital basic industries, and the union representing those employees, of numerous and far-reaching disputes concerning alleged employment discrimination. The resolution of this attack will determine whether the concept of a consent decree will be available as a means for securing rapid broad-based im.provements in employment opportunities for minority and v?omen employees in the vast industrial complex v;hich underlies the American economy, or whethe;r progress in this area must depend solely upon endless administrative and judicial proceedings dealing with the com plaints, real and imagined, of individual employees and groups of employees who believe they have been wronged. The method for achieving progress in this vital area is not only consonant with the congressional policy of voluntary settlement embodied in Title VII but is indeed the only feasible means by which rapid and meaningful progress is possible in a major and complex industry like basic steel. When the steel companies and the union became apprised with some certainty of the developing legal principles respecting employment opportunities for minorities and women they decided to 12 - restructure relevant eniployment practices in a v;ay which would meet tliese requirements. They also sought some procedure by which the restructured arrangement would become recognized as properly complying v/ith the lav;, at least by the government agen cies with enforcement responsibilities. Further, when, during the discussion directed toward se curing such an arrangement, the companies and the union were confronted by the goveirnment' s demands for the payment of sub stantial amounts of back pay to minority and women employees, it was normal and proper that they condition payment of such sums, liability for which they never conceded, upon receipt of a release of claims from any employee who exercises his or her option to receive that payment. The actions of all parties to the decrees were entirely lawful. BY ACHIEVING A VOLUNTARY SETTLE!4ENT THE GOVERNMENT HAS ZvCCOMPLISHED— NOT ABDICATED— ITS RESPONSIBILITY UNDER SECTION 706 (f) (1) OF TITLE VII A. Voluntary Settlement is the Goal of Title VII This Court has often stressed the role of voluntary settle ment under Title VII: "This court has held many times that Title VII should receive a liberal construction while at all times bearing in min(ji that the central theme of Title VII is 'private settlement' as an effective end to employment discrimination." Culpepper v. Reynolds Metals Co., 421 F.2d 8 8 8, 891 (5th Cir. 1970), citing Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968). - 13 - Guerra v. Manchester Terminal Co., 498 F. 2d 641, 650 (5th Cir. 1974); Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968). The goal of voluntary settlement in Title VII enforcement is equally applicable to post-litigation settlements: "[Vjoluntary compliance is preferable to court action and . . . efforts should be made to resolve . . . employment rights by conciliation both before and after court action." Dent v. St. Francisco R. R. , 406 F.2d 399, 402 (5th Cir. 1969) (emphasis added). Accord, e.g., Pettway v. American Cast Iron Pipe Co., 494 f .2d 211, 258 (5th Cir. 1974) (recommended settlement as means of ascertaining amount of back pay); Airline Stewards and Stewar desses V. American Airlines, Inc., 455 F.2d 101 (7th Cir. 1972) (settlement achieved after suit begun): " [A]s a general proposition the public interest may indeed be served by a voluntary settlement in which each side gives uround in thp — j_-' — This IS especially true within the confines of Title VII where 'there is a great emphasis . . . on pri vate settlement, and the elimination of unfair practices without litigation.'" 455 F.2d at 109, citing Oatis v. Crown Zellerbach Corp., supra; Culpepper v. Reynolds ^tals Co., supra;“Bov^ v. Colgate-Palmolive Co., 416 F.2d 7li, 719 (7th Cir.1969). lu Alexander v. Gardner-Denver Co., 415 U.S. 36, 59 (1974), the Supreme Court emphasized the importance of voluntary settle ment in Title VII cases by voicing its disapproval of a policy of Jeferral to arbitration which might encourage employees to bypass arbitration of their grievances in favor of immediate litigation, since [t]he possibility of voluntary compliance or settlement of - 14 - Title VII claims would thus be reduced, and the result could well be more litigation, not less." Judicial recognition of informal conciliation and settlement as the preferred method for disposition of equal employment opportunity controversies is based upon the structure of Title VII and the nature of such disputes. The congressional bias in favor of conciliation is clear, especially v/hen one considers the structure of §706. Only after an individual lias filed a charge v/ith EEOC and e>:hausted the op portunities for settlerrient offered by state administration pro ceedings and EEOC conciliation has he satisfied the jurisdic tional prerequisites for institution of a private action (§706 (f)) All EEOC conciliation proceedings are confidential to encourage ̂jc* "7 N B cfc^ c EEOC ciic cn incii.v.i.d.u5i2. * s behalf it must show that it has fulfilled its duty "to endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation and persuasion" (id.). Litigation is thus deliberately made the last resort for vindication of rights under Title VII. It is preserved as a safeguard for individual rights, but neither Congress nor this Court has accorded it the central place in the enforcement scheme suggested by interveners. The congressional preference for conciliation and settlement gives great weight to factors which interveners ignore. The extreme complexity of broad seniority systems, the sensitivity of all parties to adjustments which inevitably benefit some em ployees only to the detriment of others and the difficulty of - 15 - calculating back pay for a single employee, not to mention tens of thousands of employees, make litigation the most cumbersome method of resolving such disputes. The difficulty of obtaining effective yet workable resolution virtually entreats the parties to settle Title VII claims. When mammoth groups of employees are involved, as in the present case, individual back pay av/ards can only be calculated by a process fraught with conjecture and uncertainty. See Pettway, supra, at 261-62 (even the class-wide approach is a process of conjectures). It is not surprising, therefore, that settlements upheld by district courts are not disturbed on appeal unless abuse of discretion is shown. E.g., Bryan v. Pittsburgh Plate Glass Co., 494 F.2d 799 (3rd Cir. 1974). No abuse of discretion exists when voluntary settlement is chosen in lieu of individual adjudica tions— a process which could last for years but w'hich may be required by constitutional guarantees: "Damage awards must be individualized to avoid constitutional problems which would arise in taking the property of one for another v;ithout a shov/ing of loss to the particular recipient. This would not, of course, preclude a settlement by consent decree on terms suitable to the parties and which do not overreach the members of the class." Pettway, supra, at 267 (Bell, J., con curring opinion). The consequences of the inversion of congressional purpose sought by intervenors must not be overlooked. From their er roneous premise that private litigation, not conciliation, is the preferred weapon in the enforcement arsenal, it follows that settlement through conciliation efforts such as that here must be - 16 - discouraged. Intervenors would permanently "disestablish" the conciliation process by denying to any settlement of a Title VII claim any vestige of finality. By so doing they would remove v;hat is often the only inducement to conciliation, the prospect of avoiding burdensome litigation of the same claim that is settled. The central issue in this case, therefore, is not whether the consent decrees meet some hypothetical standard constructed by imagining every benefit that might someday be obtained in litigation. The question this Court must decide is whether the responsible government agencies may lawfully conciliate and settle by consent decree charges of discrimination cutting across an entire industry in a manner which assures the defendants that they v;ill not face future governm.ent lav;suits on those claims and which offers defendants the. opportunity to obtain final release from all employees willing to accept back pay and grant such releases. B. Uncertainty of Private Litigation It is not necessary, of course, to ascertain the probable outcome of the private litigation desired by intervenors in deciding whether the consent decrees should be vacated, but the existence of substantial uncertainty as to the outcome of that litigation is a highly relevant factor in favor of affirming those decrees and the certain, present relief they provide. As Judge Brown stated in Florida Trailer and Equipment po. v. Deal, 284 F.2d 567, 571 (5th Cir. 1960) (settlement by bankruptcy trustee), in a manner equally applicable to Title VII; - 17 - "Of course, the approval of a proposed settlement does not depend on establishing as a matter of legal certainty that the subject claim . . . is or is not worthless or valuable. I'he probable out come in the event of litigation, the relative advantages and disadvantages are, of course, relevant factors for evaluation. But the very uncertainties of outcome in litigation, as well as the avoidance of wasteful litigation and expense, lay behind the Congressional infusion of a power to compromise. This is a recognition of the policy of the law generally to encourage settle ments . " Interveners argue as if private suits by some employees covered by the consent decrees would be virtually certain to achieve far better results than those obtained by the government 1 1 /in thi.s action, at least with respect to back pay (Harris Brief at 31-33). They overlook the practical problems that face private suitors, such as (1 ) statutes of limitation barring claims at many plants covered by the decrees, (2) the fact that many employees lUciy uoL be included xn prxvatc actxcnc, (3) the fact that even though some classes proved discrimination, numerous defenses such as voluntary freezing, refusal to bid, lack of qualifications, overpayment, physical fitness, relative ability, and lack of vacancies would bar relief to many such individuals, and (4) the fact that relief would be delayed for several years if individual adjudications of back pay claims were required. See Pettway, supra, at 267 (Bell, J., concurring opinion). 15/ By their failure to challenge either in this Court or below the adequacy of the injunctive relief provided by the de crees, the Harris interveners tacitly admit that private litigation would not be appreciably more beneficial than that obtained by the government. - 18 - Even more incredibly, interveners overlook the fact that only 12 of the approximately 250 plants covered by the decrees are subject to suits seeking back pay. Against the entirely speculative advantage to a relatively few employees of vacating the consent decrees must be v^eighed the certain loss to all of the immediate benefits of injunctive relief and the right to receive back pay. Additional losses which must be considered are the nation's investment in the months consumed by the federal enforcement machinery in nego tiating these decrees, frustration of. the congressional goal of voluntary settlement which the EEOC was created to accomplish, and the chance to finalize a matter that otherwise would create a substantial burden on the courts and disruption in the nation's steel industry for years to come. C. The Government Has Not Abdicated Its Enforcement Respon- sibility___________________ . _____ _______ Interveners maintain that the government has unlawfully restricted its enforcement responsibility by signing the consent decrees and thereby "disestablished" the statutory enforcement mechanism. The decrees represent the opposite of such abdica tion. The committees, self-correcting mechanisms and retained jurisdiction established by the decrees constitute an enforcement mechanism which is more powerful, more comprehensive, more flex- iable and more expeditious than any program that could be im plemented without the consent of the defendants. Already over 50 specialists from four federal agencies have been assigned to work full time on the implementation of the decrees, an unprecedented manpower commitment to equal employment enforcement by the United States Government (Tr. May 20, 1974, p. 131). - 19 - Interveners maintain that that effort is unlawful in its entirety. But all of their objections stem from a premise with which they are obviously uncomfortabie— that Title VII must be narrowly construed. In the words of counsel for Harris below: "This [consent decree] could be infinitely better [than the statutory enforcement plan], but that isn't what congress enacted." (Tr. Ilay 20 , 19 7 4 Hearing, p. 81) . Citation of this Court's opinions holding that Title VII must be liberally construed would belabor the obvious. More important, the decrees establish a system for continuous m.on- itoring of compliance which borrows liberally frcmi elements imposed in litigated cases. The use of informal methods is not only consistent with the statutory preference for conference, conciliation and persuasion", it is particularly appropriate where, as here, there has been no finding or admission of wrong doing by the defendants who have submitted to it. The "sur render" of pov'ers by the government is illusory; the advantages in terms of overall enforcement and benefit to individuals are very real. Interveners allege that the decrees unlawfully restrict the power of the EEOC to maintain Section 706 actions (Harris Brief at 48), but that objection is without merit. The Harris group asserts (Harris Brief at 48-52) that IrOC has unlawfully circumscribed its authority by admiitting in paragraph C that the consent decrees are res judicata as to the governmicnt. The supposed vice i.s that the Commission has thereby renounced a statutory obligation to bring §706 actions on behalf of individuals v?ho are not satisfied with the decrees. 1'he Com.mission has no such obligation. 20 - The provisions of the decrees objected to by intervenors relating to res judicata as between the parties (Harris Brief at 48-49) simply confirm existing law. See, e.g., In Re Construct ors of Florida, Inc. , 349 F.2d 595, 599 (5th Cir. 1965) (prior decree "constitutes a bar to a new action or suit upon the same cause of action") ; IB Moore' s Federal Practice 1I0.405, at 621 (2d ed. 1974) ("is an absolute bar to a subsequent action . . . upon the same claim or demand"). The EEOC's determination not to select individual charges against the companies for suit by that agency under §706 where those charges are within the scope of the present pattern or practice action is reasonable and appropriate in light of the settlement reached. Title VII gives EEOC broad discretion in determining whether or not to sue on behalf of a specific in dividual. Section 706(f)(1) expressly provides, "The CoimT\ission may bring a civil action. . ." No individual, therefore, has a right to prosecution of his case by the EEOC. In the first tv/o years that EEOC has had the right to file §706 actions less than two-tenths of one percent of the charges filed have resulted in actual litigation (Statements by EEOC Chairman Powell and member Lewis before House Labor Subcommittee on Equal Opportunities, 181 BNA-DLR D-1, 2 & 182 BNA-DLR 1-10, 11 (1974)). Furthermore, of the small percentage of charges resulting in litigation by the EEOC, priority has been given to §707 (pattern or practice) ac tions. The backlog of charges is such that the Commission must choose its cases for maximum impact. In the present case the EEOC has obtained major systemic relief for all employees through voluntary conciliation. Any employee in the present case who is not satisfied with that - 21 - relief retains his right to bring a private action. He or she is, however, in a better position than the 99.8% of the persons who file charges which are not selected for litigation by the EEOC because he or she has the immediate benefit of the broad injunctive relief contained in the decrees. Since employees who are dissatisfied with that relief or the back pay offer have no statutory right to EEOC representation and, as a practical mat~ ter, are unlikely to receive its benefits on strictly individual claims, there has been no "trade off" of one employee's rights for advantages to another. Thus, rather than abdication of their Tide VII enforceirient responsibilities, the entering into of these decrees by EEOC and the other government agencies should be viewed as one of the most significant achievements of the government's enforcement respon sibilities in the ten-year history of Title VII. By upholding this settlement, this Court will support the EEOC in accomplishing its primary responsibility in enforcing Title VII: "The primary purpose in setting up the EEOC was to establish a method of eliminating unlawful em-^ ployment practices, where actually found to exist, through conference, conciliation, and persuasion . . . Sciaraffa v. Oxford Paper Co., 310 F.Supp. 897 n.lO (S.D. Me. 1970), quoting Edwards v. North American Rockw’ell Corp. , 291 F.Supp. 199, ^03 (C.D. Cal. 1968). Accord, e.g., Gardner-Denver, supra at 44; Jenkins v. United Gas Corp., supra. - 22 II. THE EEOC HAS NOT ABDICATED ITS CONCILIATION RESPONSIBILITIES UNDER SECTION 706(b) OF TITLE VII BY AGREEING IN DECREE I TO PROMPTLY MAKE DETERMINATIONS ON PENDING CHARGES AS TO V7IIETHER THE EEOC BELIEVES THE ALLEGED UNFAIR EMPLOYMENT PRACTICE HAS BEEN RESOLVED BY THE DECREE Interveners mistakenly assert that the decrees prevent the EEOC from conciliating outstanding charges (Harris Brief at 53). In fact, Decree I, paragraphs 19(a) and (b), requires the EEOC to investigate and conciliate outstanding charges against the de fendant companies promptly (A. 61a). The first tv;o sentences of paragraph 19(a) require the EEOC to review every charge pending against any defendant and iden tify all charges alleging employment practices wholly within the scope of the decree. As to those charges determined by the EEOC to allege practices wholly v;ithin the scope of the decree, the u-iiC OiinJx.wyrriC:il U ^ jLCIC-”“ tice complained of had been resolved by the decree and recommend that the charging party accept the relief provided by the decree and execute a release. Since this provision applies only to charges relating to practices v/holly v;ithin the scope of the decrees, it is unquestionably proper. By joining in the decrees the EEOC indicated that it believes all matters within their scope have been resolved by them, and this disposition of such charges is consistent with that judgment. If the employee is not satis fied with that result, his right to institute a private action is unimpaired. The decree does not, as the interveners imply (Harris Brief, at 54), in any manner suggest that the EEOC determine that charges outside the scope of the decree are within its scope. Interveners apparently would have the EEOC engage in an 3-^bificial conciliation of charges which EEOC believes are - 23 - wholly remedied by the decrees (Harris Brief, at 54-56). Such a result would lack common sense. The EEOC is not required to conciliate a charge unless it has reasonable cause to believe that a violation of the law has occurred (42 U.S.C. §2000e(5) (b)). Charges wholly within the scope of the decrees have in fact been conciliated by the decrees. Paragraph 19(b) provides that as to pending charges not wholly within the scope of the decrees EEOC is to investigate and resolve them "in a manner consistent with the principles set forth in Title VII and this decree" (A. 62a). Nothing in the decrees prevents EEOC from finding reasonable cause as to one or more such charges and seeking additional conciliation. Indeed, the language cited would dictate that result in at least some c c Interveners* final attack on the conciliation issue is the contention that the District Court lacked jurisdiction to enter paragraph 19 of Decree I requiring the expedited processing of pending EEOC charges (Harris Brief, at 55-56) . That arguinent is obviously unsound. Since a review and^resolution of all charges will facilitate implementation of the decrees, the court clearly had jurisdiction to order the EEOC to make that review. See, United States v. Ironworkers, Local 86, 5 EPD 117973 (V7.D. Wash. 1972). The obligation of the EEOC to review pending charges "promptly" is not only appropriate; it is in the best interest of charging parties and follows the congressional policy of speedy relief as expressed in the various time limitations found in Title VII. 24 - The EEOC has not abdicated its responsibilities to engage in prompt investigation and conciliation where it believes con ciliation warranted under Section 706(b) of Title VII. III. PARAGRAPH C OF DECPJ3ES I 7vND II AND SECTION IG OF DECREE I— VJHICH DESIGNATE THE GOVERNFiENT PERSONNEL WHO VvILL CONDUCT A CONTINUING AUDIT UNDER EXECUTIVE ORDER 11246— ABE NOT AN UNLAWFUL LIMITATION UPON THE AUTHORITY OF THE OFCC Intervenors further misconstrue the decrees v;hen they sug gest that they constitute an attempt to eliminate the companies' duty to com̂ ply v;ith Executive Order 11246 (Harris Brief at 56- 68). The assertion is entirely inaccurate and was specifically recognized as such by the District Court: "The basic thrust of Tintervenors'1 arguments . . . is that the United States has abandoned Executive Order 11246 [citation omitted) by entering these decrees. This position is, again, inaccurate." (A. 205a.) Apparently intervenors' misconceptions on this point are derived from an improper reading of paragraph 16 of Decree I, the only paragraph cited by Harris for this proposition (Brief at 59), which provides: "So long as the defendants are in compliance with the provisions of this Decree and of Consent Decree II entered this date, the Secretary of Labor and the Office of Federal Contract Compli ance shall rely upon the continuing audit of that compliance by Government representatives to the Implementation Committees and by the Government member of the Audit and Review Committee as ade quate for purposes of all compliance reviews under Executive Order 11246, as amended, at the plants and facilities listed in paragraphs 3(c) and (d)." (A. 54a - 55a). - 25 - Paragraph 16 of Decree I does not state or even suggest that the companies are excused from compliance with E. 0. 11246. Instead, it merely designates the government representatives to the implementation committees and the government member on the A&R ComiTiittee as comi^liance officers for the purposes of com pliance reviews. Such a designation is spec.lfically authorized by Section 401 of E. O. 11246. 12/The companies remain obligated to comply with E.O. 11246. Such compliance is simply to be monitored by, in effect, special compliance review officers. Indications of the continued via bility of E. O. 11246 are found throughout the decrees. Para graph 3 (b) of the Agreement incorporated as a part of Decree II requires an affirmative action plan approved by the OFCC pursuant to E. O. 11246, and paragraph 3(c) thereof provides for annual review of the aoals and timetables established in that affii-ma- tive action plan by the OFCC "to determine if they should be adjusted and in order to monitor the companies' efforts to meet and comply with such goals and timetables" (A. 78a). In addition to the general obligation to submit affirmative action programs for approval pursuant to E. 0. 11246 contained in 16/ Sec. 401 provides: "The Secretary of Labor may delegate to any officer, agency, or employee in the Executive branch of the Government, any function or duty of the Secretary under Parts II and III of this Order, except authority to promulgate rules and regulations of a general nature." 17/ The cases in the Harris brief at pages 61 to 66 are inappro priately cited because they relate to situations in which the government had failed to enforce statutes. In the present case the OFCC retains the full range of sanctions available to it and now has, in addition the power to seek a contempt finding which is a new, expeditious and far more direct remedy. - 26 - paragraph 3(b) & (c) of the Agreement incorporated into Decree II, paragraph 10 of Decree I specifically requires the companies to implement affirm-ative action programs for trade and craft occupations in accordance with E. O. 11246, and 41 C.F.R. §60- 2.11 & 2.12 of Revised Order No. 4 (A. 43a). Similarly, para graph 3(a) of the Agreem.ent incorporated in Decree II provides for OFCC approval of all goals and timietables relating to the hiring of females and minorities v/here underutilized (A. 78a) . Paragraph 11 of Decree I orders the companies not to use employee selection procedures for initial employment, assignments to jobs and prom.otions, where such procedures have a disparate effect on minorities or females "unless such procedures have been validated in accordance with . . . the regulations of the Secretary of Labor on 'Employee Training and Other Selection Procedures'" (41 n “fp (p c: /?\ a o ^ \ m - u ,— . t _________ ^ w . a. . X V vx y x x . x w t > e x e U L . X U l l i ( i y U X c t U X O J l S c i T B issued pursuant to E. 0. 11246. Finally, paragraph 15 of Decree I and paragraph 5 of Decree II make available to OFCC all information that it could obtain or would require under the Executive Order. If further material is required, it can be requested through the government member of the A&R Committee. Intervenors contend that the decrees improperly allow the implementation and A & R Committees to determine whether defen dants comply with E. O. 11246, when that function is properly wvested with the OFCC (e.g., Harris Brief at 59-63) . 18/ As previously noted such a delegation of authority to con duct compliance reviews by the OFCC to another employee of the Executive Branch is specifically provided for in E. O. - 27 - Apparently, they overlook the fact that it is not these com mittees but the government representatives or members of those 19/committees who review compliance. Where reports are not made directly to the OFCC and monitored by that agency, compliance is reviewed by the "Government representatives to the Implementation Comm.ittees and by the Government member of the Audit and Review Committee" [emphasis added] (A. 54a-55a), not by the committee as a whole (Decree I 1|16) . Apparently interveners, in their shotgun attack on the OFCC provisions of the decrees, would also find something wrong with paragraph 3(e) of the Agreement accompanying and m.ade a part of Decree II (Karris Brief at 59). Paragraph 3(e) requires the OFCC to submit disputes to the government representative and the company representative of the A & R Committee for possible reso lution prior to taking any drastic action such as withholding government contracts (A. 79a). Their attack on this provision is misplaced. Section 209(b) of E. O. 11246 requires the OFCC to attempt the resolution of disputes by "conference, conciliation, mediation and persuasion," prior to taking such action. The representatives appointed by paragraph 3(e) are logically the best conciliators. 18 Con'd/ 11246. For the same reasons intervenors' complaints that the companies are required to present compliance information only to the government member of the A & R Committee and that the OFCC will not conduct compliance reviews are without merit (A. 60). 19/ Intervenors' suggestion that the A & R Committee is "do minated" by the companies and union is without merit. Each group of members has equal voting pov/er. Action by the committee requires unanimous approval (A. 53a). Unresolved issues go to the court (Id.). - 28 - The last argument of interveners (Harris Brief at 64-67) in respect to the powers of the OFCC is at best novel. They argue that the District Court lacked jurisdiction over the OFCC, as v/ell as over "the United States," the "Secretary of Labor" and the "Attorney General." Intervenors posit their argument on the claim that OFCC failed to: (1) hold a compliance hearing for the nine steel companies, and (2) thereafter refer the matter to the Department of Justice. In the first place, the process followed by all parties in this case, conciliation and persuasion, is exactly the OFCC contemplated procedure (41 CFR 60-1.20(b)). Secondly, contrary to intervenors' contention a "hearing" is not a condition prece dent to achieving a binding settlement betv/een OFCC and the contracting companies (§209(b) E. O. 11246; 41 CFR 60-1-26(a) & (b) ——the word "luay" x£> uScu Llixoughout, indicating a hearing is permissive in the discretion of the OFCC), nor is referral to the Department of Justice a sine qua non to a valid resolution of the matter before the OFCC. Referral to the Department of Justice is only one of numerous options open to the OFCC (E. 0. 11246, §209(b), 41 CFR 60-1.20, -1.24, -1.26, -1.27, -1.28). The consent decrees are both per se evidence of and the result of the "persuasion", "mediation", conference" and "con ciliation" intended by E. 0. 11246 (§209(b), 41 CFR 60-1.20(b)), and therefore constitute fulfillment of this preferred compliance vehicle. It is patently silly to argue that, because the government chose to engage in conciliation and persuasion, rather than to use one of the other means set out in E. 0. 11246 and other - 29 - federal equal opportunity acts and regulations, it is thei.eby precluded from bringing the instant action in the name of all such agencies v/ho participated in the negoti.ations of the de crees . IV. IT WAS NOT UNLAUTUL FOR THE GOVERNMENT TO AGREE, IN PARAGRAPH C OF DECREES I AND II, TO MA.KE CERTAIN REPRESENTATIONS TO OTHER COUPTS OR FORUMS IN WHICH INJUNCTIVE RELIEF IS BEING SOUGHT Interveners allege "that, if a private litigant seeks more systemic injunctive relief than the government obtained through the negotiations leading to the decrees, the United States is obligated to assist tlie defendants by opposing, in court, any such additional relief" (Harris Brief at 40) and suggest that the , -I __ _ r-.-i.-'i-- o'sroTi T.’hon it belie VOSgoverniiienu xs v_u ------, the added relief is appropriate (^. at 40-48) . Intervenors cite the follov.-ing language from paragraph C of both decrees; "If a private individual seeks, in a separate action or proceeding, relief other than back pay v/hich would add to or be inconsistent with the ̂ systemic relief incorporated in this Decree, the plaintiffs v/ill undertake to advise the Court or other forum in which such private action or pro ceeding is brought that such relief in that action or proceeding is unwarranted," (A.. 18a) (Harris Brief at 41). But they omit the sentence which immediately follows it: "Provided that, since this Decree provides for reviev' by the /vudit and Review Committee v/ith ultimate review by this Court, the plaintiffs may recommend that matters raised in such separate^ action or proceeding should be submitted to this court for resolution under the terms of this Decree." - 30 - Paragraph C in its entirety is wholly proper. The inter veners' construction is based on a deliberate misreading of the language and the intention of the parties as stated to the dis trict court (A. 175a-177a). The obligation in this respect is fully set out in the letter to the Court dated June 3, 1974 which reads in pertinent part as follows: "Some of the movants apparently misconstrued the third sentence in paragraph C of each of the Consent Decrees to mean that the Government is obligated to assert in private proceedings, irre spective of the circumstances, that any additional or inconsistent systemic relief is unv;arranted. This is not correct. The systemic remedial pro visions of the Consent Decrees were agreed upon by the plaintiffs and the defendants as appropriate and effective relief, and accordingly, in many instances additional or inconsistent systemic relief would be either undesirable or unnecessary, and in those cases the plaintiffs v;ill so advise the Courts before whom private actions seeKing such relief are pending. Moreover, the plaintiffs are committed not to seek or support the substitu tion of additional or inconsistent systemic relief through private actions. However, it is recog nized by all parties to the Consent Decrees that, as a result of unanticipated or changed circum stances, the plaintiffs' position in a particular case may not be that relief requested therein is per se undesirable or unnecessary. In those situations, the plaintiffs' commitment under paragraph C is to advise the Court in which the private action is pending that such relief is unwarranted in that action or proceeding. The point of paragraph C is that even in those situ ations the Consent Decrees, in the opinion of the parties thereto, provide an appropriate mechanism for adopting corrective steps to overcome any shortcomings in the Decrees or in their imple mentation (see Consent Decrees I, paragraph 13(c) and paragraphs 3(c) and 5(b) of the agreement attached to Consent Decree II). Of course, para graph C cannot and does not foreclose the Court or other forum in which a private action or proceed ing is brought from passing upon the relief sought in that action or proceeding." (A. 176a-177a). - 31 - Section 706 (f) (1) expressly permits the EEOC to intervene in any private action thereunder by an employee. Nothing in that statute requires the Commission to support the employee if it believeis his position contrary to the public interest. Thus Paragraph C does not empov;er the government to tale any action which it could not otherv.n.se take, it simply requires that, as a party to the consent decrees, it use its offices to support their integrity. An assumption of such an undertaking is entirely appropriate. United States v. Local 3_, Operating Engineers, 4 FEP 1088 (K.D. Cal. 1972). The ultimate disposition in any such case is, of course, not within the control of the government but the forum oourt. It alone will decide whether to dismiss an independent action, whether to defer proceedings or whether to proceed with the case. P;^r3rrrnob C , +-hp-rp ■Frvrp> . c; i rnr) T wp i ah p in fp- r̂nr" o f nis i n r i n - ing the integrity of the decrees by making systemic changes, when and if necessary, through the mechanism incorporated in the decrees, including ultimiate disposition by the District Court. It works against piecemeal and perhaps conflicting and irrecon- ciliable changes by different courts on^a variety of issues, a situation which eventually might result in a breakdov;n of the overall administration. Interveners speculate that reference of a complaint to the committees and the court charged with implem.enting the decrees may result in some delay to individuals in obtaining relief (Harris Brief at 46). Indeed, the opposite is true. The pur pose and function of these committees is to resolve problems expeditiously as they arise, and the alacrity with which the 32 - District Court supervising the decrees can and will act has been aptly demonstrated by the speed with which it acted on inter veners' motions below and their subsequent motions relating to implementation of the decrees and for a stay. Intervenors contend that the Court below lacked jurisdiction to order the government, as plaintiff, to do anything. They point to the fact that "no counterclaim for such relief" was filed by defendants (Harris Brief at 42). In doing so they overlook the fact that relief under Title VII is equitable in nature (e.g., §706(g): "back pay . . . or any other equitable relief"). Traditionally in equity a complainant by appealing to the equitable jurisdiction of a court offers to do equity himself and submits himself to the court's decision as to what is neces sary to do justice to the respondent (see, e.g., 27 Am. Jur.2d . Equity § 131) . The District Court clearly has jurisdiction of the subject matter under Sections 707(e) and 706(f)(3) of Title VII and 28 U.S.C. §1343 and all parties have submitted to personal juris diction by signing the decrees. Consequently, it clearly had jurisdiction to order the plaintiffs to take appropriate action to enforce and maintain the decrees. V, THE RELEASE OF CLAIMS REQUIRED OF INDIVIDUALS ACCEPTING BACK PAY IS VALID A. Releases Are Essential to Continued Viability of Concili- _____ation and Settlement _________________ ___________ — The critical issue before this Court, as we have noted, is whether a final settlement of employment discrimination claims is - 33 - possible. If interveners are successful in denying validity to a knowing and voluntary individual release of such claims, the enforcement priorities established by Congress will be radically altered. Congress established the conciliation process as the pre ferred means of resolving Title VII claims. It preserved liti gation as a club to be wielded by EEOC and private plaintiffs but created procedural obstacles to its use sufficient to guarantee that conciliation would have an opportunity to be effective. It further made private litigation unavailable where a settlement has been successfully achieved (§706(f)(1)). The essential truth which interveners fail to articulate, but with v;hich they are intimately familiar, is that the major and often the only inducement to settlement of any claim, but part ic ui ctl-ly au eiupluyiucii L iIxSCj. xmxuciLxuU claxm, xo Llie aVOxdaiiCe of litigation. Removal of that inducement will inevitably make settlement impossible in virtually all cases. By making litigation the only practicable avenue to relief under Title VII, the interveners v/ould severely handicap the government's enforcement of the statute through pattern or prac tice actions. During the first decade following the enactment of Title VII in 1964, only injunctive relief was sought by the Attorney 2 0/ General in pattern or practice actions. Since United States 20/ The statement of the Karris intervenors (Brief at 13) that the Consent Decrees' release requirement denies steelworkers "the full choice afforded minority employees in virtually all government suits since 1965" is deliberately misleading. Until the government's power to seek back pay was - 34 - V. Georgia Power, 474 F.2d 906 (5th Cir. 1973) allowed back pay to be sought in a pattern or practice action, defendants are faced with the prospect of defending tv;o suits for both back pay and injunctive relief: "Insofar as the pattern or practice suit consti tutes a proper legal conduit for the recovery of sums due individual citizens rather than the treasury, it is a private and not a public action. . . . These personal claims are entitled to no superior status.because they are here allowed to be asserted in the Attorney General's suit as v/ell as in the private class action." Georgia Power, supra, at 923. This result is allowed, of course, by Wi.lliamson v. Bethlehem Steel Corp., 468 F.2d 1201 (2nd Cir. 1972), cert den'd, 411 U.S. 973 (1973), which holds that pattern or practice actions by the government do not bar, on res judicata grounds, private actions for injunctive relief by aggrieved employees. If the government cannot offer a pattern or practice defen- 21/dant an opportunity to finally resolve all issues of injunctive relief and back pay, its ability to negotiate settlements of such actions will be severely reduced: 20 Con’d/ ^ established in 1973, no government decree provided for back pay. An employee could hardly accept back pay and sue for additional relief. Moreover, such an opportunity, had it ever been offered is not a "free choice"--it is more in the nature of a "free ride." 21/ Whether or not Georgia Power means that in seeking back pay the government acts in a purely private capacity in privity with the employees it represents, and may therefore bind them by a settlement or judgment on that issue need not be reached. The consent decrees do not purport to bind in dividuals except to the extent they are willing to execute releases. - 35 - "The first, and the reason for any concern at all about going beyond the [government] consent de cree, is the possibility that parties will bti discouraged from entering into settlements with the United States. If the United States cannot offer a final settlement in cases where a pattern and practice suit is proceeding simultaneously with a class action, then the Government's bar gaining power will be severely I'educed." United States v. Operating Engineers, Local _3, 4 FEP Cases 10 8 8,"'l'093 (N.D. Cal. 1972) . The two-wave attack made possible by Williamson (by the government on behalf of aggrieved employees and then by the aggrieved employees themselves) is inconvenient and cumbersome enough. The only prospect of finality which may be allowed in a goverment suit after Williamson is the prospect of valid re leases, which are functions of employee choice. But with that last remnant of finality erased by a finding that releases by those accepting a government back pay settlement or judgment are invalid, a pattern or pracrxce acuion would become a mere pj-elude to private actions seeking more and a waste of the resources of the responsible agencies and the courts. B. The Scope and Effect of Releases Under Paragraph 18(g). Intervenors raise a number of objections to the releases required by paragraph 18(g) based on supposed impairments of the rights of individual employees. Those objections result primarily from a confusion or misguided speculation about what claims are and are not affected by the release. The language of paragraph 18(g) is not ambiguous and a careful reading demonstrates that intervenors' objections are illusory. 1. Wo release of prospective claims. The Harris intervenors assert (Brief at 6) that the releases unlawfully encompass these types of "prospective" claims: (a) - 36 - claims for additional injunctive relief and back pay arising from past (pre-decree) discrimination, and (b) claims that defendants have not complied with the consent decrees. Claims in group (a) are released--but they are not "pros pective" claims. Such claims, if any, are presently existing, accrued claims. Claims in group (b) are prospective because they do not come into existence until a violation of the decrees occurs. But such claims are not affected by the release. Whether or not an employee signs a release, he may utilize the enforce ment mechanism of the decrees or, to the extent permitted by Title VII and the general law relating to standing, institute a separate action to remedy alleged violations of the decrees. Not only is there no release of prospective claims, but interveners' fears wi.th respect to the actual effect of the releases are wholly unjustified. 2, Additional injunctive relief. The injunctive provisions are not new or experimental but are patterned after the detailed court ordered injunctive relief in United States v. United States Steel Corp., Civil No. 70-906 (N.D. Ala. May 2, 1973) which has been working well for over eighteen months. It is surprising to find these interveners questioning the adequacy of the injunctive relief provided by the consent de crees. Some of the present interveners were also plaintiffs in United States Steel, were apparently pleased with this type injunctive relief at the conclusion of that case, and, in any event, did not appeal from it. After subsequent experience they have not petitioned the court in that case for modifications of - 37 - such injunctive relief pursuant to its retained jurisdiction. Presumably, the interveners' concern over a release of claims for additional injunctive relief is due to certain mis conceptions on their part concerning the effect of the injunctive relief provided. For example, the Harris interveners (Brief at 10-11) state "The Consent Decrees do not establish any job skipping or merging of departm.ents or LOPs." However, Decree I, *,i4(a)(2) specifically provides: "[T]he Implementation Com.mittee at each plant shall review, by no later than January 1, 1975, all seniority units and pools and make revisions, if necessary to assure meaningful promotional opportunity for minority, female and longer ser vice em.ployees." (A. 35a) . Similarly, the Harris interveners state that "[t]he Consent Decrees do not . . . require plant v/ide bidding, or posting for, at least, all entry level LOP jobs". (Brief, at 11). Paragraph 7(g) (1) of Consent Decree I explicitly provides: "Permanent vacancies on entry level jobs in plant- v;ide competition shall be posted on a plant wide basis." (A. 39a). Paragraph 7(a) & (b) in connection with paragraph 7(g)(1) unequi vocally require plant wide posting and bidding for entry levelV jobs. Even, assuming that the interveners v/ould still maintain that the "issue presented by this appeal is what remedy minority employees will have if the decrees fail" (Harris Brief at 20), the sim.ple ans'wer is that the decrees are self-correcting. Para graph 13(c) of Decree I obligates the A & R Committee to "review . . . the experience under [the] Decree, the transfer opportuni ties, the transfer record of female and minority group mem.bers. - 38 - the progress in achieving stated trade and craft goals and other decree related m a t t e r s a n d provides that it "may promptly propose corrective steps at any such plant or facility over come at such plant or facility any shortcomings in the decree or its implementation" (A. 53a) (emphasis added). If the A&R Committee members do not unanimously agree the matter, may be taken to the District Court for final resolution (A. 53a). The Agreement accompanying Decree II, relating to affirma tive actio)‘i goals and timetables at paragraph 5(b) provides: "Each party to this Agreement may propose amend- . ments to overcome any short comings [sic] in this Agreem.ent or to reflect any relevant change in applicable law by referring it to the Audit and Review Conmnittee. If the Company and the Govern ment members on the Audit and Review Committee are unable to reach agreement on any matter referred to it pursuant to this Agreement, such matter may be brought before the Court for final resolution by any party to this Agreement." (A. 80a), See also Agreement accompanying Consent Decree II at paragraph 3(c). These provisions of the two decrees, together with the District Court's retained jurisdiction and its authority to review any action taken by the A&R Committee, provide an appro priate method of making corrections to the decrees, if necessary (A. 63a, 71a, 177a & 190a). Finally, if any member of the class or group of members feels that the injunctive relief provided by the consent decrees together with its self-correcting mechanisms is nevertheless insufficient, he, she or they may refuse to sign a release, and sue for additional injunctive relief. Interveners disparage the self-correcting mechanisms estab lished by the decrees by assertions that the implementation and A&R committees are "dominated" by the defendants. The patent frivolity of that assertion is indicated by interveners' resort 39 to scandalous characterization of the motives of the parties to bolster their argument. Each of the three parties (companies, union and government) represented on the 7V&R Committee has an equal voice and equal voting power {A. 53a). hction can only be taken with unanimous approval. Unresolved issues go to the District Court. The single government member not only has a veto povjer over any action; he hardly stands alone against the defendants. All government representatives to the implementation comm.ittees report to him and the com.bined resources of OFCC and EEOC are at his disposal. Similarly any member of an implementation com mittee, including the minority member and the government repre sentative to the committee, may bring any matter to the A.&R Committee for review. The record is devoid of any evidence that those coiTimittees v;ill fail in any way to function so as to fully protect the rights and interests of employees under the decrees. 3. Additional back pay. Any employee who believes the amount of back pay tendered him insufficient, may refuse the tender and bring a privatew action. The present decrees will have no effect v;hatever upon such a later suit for back pay. The effect of the release is to prevent the employee who accepts back pay from later changing his mind and suing for more. The choice presented is that offered in any settlement. It is a choice which each individual is entitled to and should be permitted to make. Denial of such a choice v/ould mean that the vast majority of affected employees would never receive any bac): pay. - /1.0 - 4. Enforcement of the consent decrees by individuals. Intervenors attempt to bolster their argument that releases are invalid by the claim that persons signing a release waive their right to sue tor enforcement if defendants fail to comply with the decrees. They claim that defendants construe the de crees to have such an effect (Harris Brief at 6). Both asser tions are untrue. Nothing in the decrees or the release bars an individual from asserting a claim to enforce the decrees. An employee's right to enforce the decrees outside the machinery provided will depend upon the general law and, among other things, his employment status and the nature of his claim. 5. Accrued claims. The language of paragraph 18(g) leaves no doubt that the release would include claims for both injunctive relief and back pay arising out of actions prior to the date of the decrees. The Harris intervenors (Brief at 7-8) seize on the fact that the District Court used the short hand term "back-pay release" to describe the releases offered in exchange for back pay. Nothing more is involved than a semantic quibble. The release is not limited to claims for back pay. C. Intervenors Confuse Election of Remedies with Release _____of a Prospective Cause of Action_____________________ The position of intervenors is founded upon a confusion between the principles of election of remedies and release of cause of action. Intervenors correctly cite Alexander v. Gardner- Denver Co., 415 U.S. 36 (1974) for the proposition that parallel or overlapping remedies exist to combat discrimination, that - 41 - Title VII provides several forums for employment discrimination claims, and that an individual can pursue hiis rights under Title VII and ether applicable state and federal statutes independ ently. 1̂ . at 48-49, But Gardner-Denver does not support the proposition attributed to it by interveners that an aggrieved employee can seek relief in other forums after he has released in one forum his claims arising out of the same transaction. Gardner-Denver clearly distinguishes between "mere resort" to a forum, which does not constitute a waiver of an em.ployee's Title VII riglits in other forums, and an actual "settlement expressly conditioned on a waiver" of an employee's cause of action under Title VII: "Although presumably employee m.ay waive his cause o^ action under Tit].e VII a_£ part of £ voluntary settlem.ent, mere resort to the arbitral forum to enforce contractual rights constitutes no such waiver. . . . ic "k -k "k "In this case petitioner and respondent did not enter into a voluntary settlement expressly condi tioned on a waiver of petitioner's cause of action under Title VII. In determining the effectiveness of any such waiver, a court would have to deter mine at the outset that the employee's consent to the settlement was voluntary and knowing." I^. at 52 & n. 15 (emphasis added). The above passage from Gardner-Denver refers to a release executed pursuant to an out-of-court settlem.ent. The Court stated that presumcsbly suc)i releases would be valid if voluntary and knowing. The proposed releases in the instant action contain protections for em.ployees exceeding the mere requirement that tlie releases be "voluntary and knowing." Paragraph 18(h) of Decree I - 42 - requires that employees be furnished in advance "all information necessary to enable them to make an informed decision whether to accept the back pay tendered to them." (A. 61a) At plants where private actions are pending, the information to be furn ished will first be submitted to the local district court for approval. (A. 176a) D. The Proposed Releases Are Not Contrary to Public Policy In addition to attacking the "prospective waiver" chimera interveners argue that the releases contemplated are invalid because the appropriate amount of back pay can only be ascer tained by allowing employees to sue on the same claim in any or all of the forums existing for enforcement of Title VII (and all other equal employment laws, orders or collective bargaining aoTf^pment nroTri r i on s ̂ . t-he total amount of bank pay av.’arded hoing the appropriate measure for settlement (Harris Brief at 31-40). They offer no explanation, however, of the appropriate method of calculation of back pay for the benefit of any such forum. Based upon the assumptions that the back pay to be offered here is a priori insufficient and that back pay is charged with the public 2^/interest, they argue that a public interest in "full compen sation" for aggrieved employees can be vindicated only through successive and/or simultaneous suits in any or all possible forums, until "full compensation" is av;arded, V7hich process cannot be im.peded by valid releases. Interveners' argument suffers from incorrect logic and faulty application of the law. The following is an attempt to correct those errors. 22/ But see Georgia Power, supra, 474 F.2d at 923. - 43 - 1. The effect of acceptance by the charging party of an EEOC conciliation agreement is identical to that of the proposed release. ____________________ The consent decrees are equivalent to conciliation agree ments achieved by the EEOC pursuant to the congressional policy favoring voluntary settlement of Title VII complaints embodied in §§706 (b) and (f) (42U.S.C. §§2000e-5(b)& (f)) . As stated by Judge Pointer: "After months of negotiations pursuant to the governmental conciliation function of Title VII . . ., the parties herein reached a tentative agreement as to a manner and means for correcting allegedly discriminatory employment, practices. . . , The agreement was reduced to writing in the form of two consent decrees. . . (A. 184a) (emphasis added). Conciliation agreements under §706(b) may be achieved before or after litigation is begun: "[V]oluntary compliance is preferable to court ♦ n ^ ^ jr _ .. . ju _ ^ T— —V .« T J 1—. ̂ ̂̂ ̂ ^ C U X O i i . C llU-A » • • A - v j X. c. o o 1 1 a. x ./v - v- O j- w o O a . v' w . . . eraployment rights conciliation both before and after court action." Dent v. St. Louis-San Francisco R.R., 406 F.2d 399, 402 (5th Cir. 1969) ^emphasis added). A conciliation agreement between the EEOC and employer to which the employee becomes a party by acceptance of the agreement and the benefits thereof precludes the employee from bringing a private action against the employer: "If a charge filed with the Commission . . . is dismissed by the Commission, or if . . . the Commission has not filed a civil action under this section . . . or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission T . . shall notify the person aggrieved and . . . a civil action may be brought against the respondent named in the charge." §706(f)(1) (emphasis added). - 44 - The legislative history of the 1972 Amendments to the Civil Rights Act of 1964 leaves no doubt that if employees accept conciliation agreements achieved by the EEOC, the district courts 21/lack jurisdiction over a private action brought by these same employees: "[The statute] contains . . . a provision for termination of the right of private action once the Commission . . . enters into a conciliation or settlement agreement which is satisfactory to the Commission and to the person aggrieved. If such an agreement is not acceptable to the aggrieved party, his private right of action is preserved." House Report No. 92-238, 1972 U .S. Code Cong. and Admin. News 2137, 2148 (1974). Pursuant to §706(f)(1), supra, the EEOC customarily inserts a "Waiver and Release, Conditional upon Performance" clause in its conciliation agreements, of which the follow'ing is typical: X l l t : 1 1 C l 1 . J - J . 1 - v,* W Ct i 11 Tv - v * * 4"/̂ fair and equitable, and hereby v/aives, releases and covenants not to sue the Respondent with respect to any matters which were or might have been alleged as 'charcjes filed with the Equal Employment Opportunity Commission, subject to performance by the Respondent of the promises and representations contained herein. . . ." ICCH Emp. Prac. Guide <i|1680.02 at 1449 (1973) (emphasis added). The cases clearly state that a conciliation agreement signed only by the EEOC and the employer is not binding on the employee since he is not a party thereto; but if the employee elects to sign the conciliation agreement and accept the benefits thereof, 23/ The right to sue letter is a jurisdictional prerequisite to private actions under Title VII, e.g., Beverly v. Lone Star Lead Const. Corp., 437 F.2d 1136 (5th Cir. 1971), and since aggrieved persons who became parties to conciliation agree ments would not be entitled to such letters, the district court would not have jurisdiction over their private ac tions. - 45 - he becomes a party to that agreement and is barred from bringing a private action. An employee has the same freedom of clioice in the instant case as he does in any other situation involving a conciliation, namely, to reject the agreement between the government and the employer (consent decree or conciliation agreem.ent) and bring his own private action. But when the employee signs the conciliation agreement, the cases and statute cited above clearly state that he is barred from bringing a private suit. Likewise, when an employee accepts the benefits of the consent decrees in the instant case, and executes a release, he is barred from bringing a private action. See Leisner v. New York Tel. _& Tel. Co. , 358 F.Supp. 359, 367 (S.D.N.Y. 1973) (discussed infra). 2. Established use of releases j.n Title VII litigation. The use of releases similar to those proposed in the instant case is well-established in Title VII litigation. In United 24/ See Reed v. Arlington Hotel Co., 476 F.2d 721 (8th Cir. 19731 Tof three plaintiffs discriminatorily discharged, only Reed rejected EEOC conciliation agreement and received a right to sue letter); Flowers v. Local No. £, Laborers Int. Union, 431 F.2d 205 (7th Cir/ 197F) T^mployees may reject conciliation agreement between EEOC and employer and main tain a private action); Cox v. Gypsum Co., 409 F.2d 289 (7th Cir. 1969) (employees v/ho did not accept conciliation agree ment were not precluded from maintaining private action); Williams v. New Orleans S.S. Ass'n ., 341 F.Supp. 613 (E.D. La. 1972) (settlement agreement approved by EEOC and emplo yer does not preclude private action by employees who re fused to sign the settlement agreement) ; McGrif f v. A_̂ O . Smith Corp., 51 FRD 479 (D. So. Car. 1971) (private action not barred by conciliation agreement between employer and EEOC which employee did not agree); Austin v. Reynolds Metals Co. ,~^27l'. Supp. 1145 (E.D. Va. l97C) (conciliation agreement signed by some employees did not bar private action by others who did not sign). 46 - States V. Georgia Power, 474 F.2d 906 (5th Cir. 1972), this Court allowed the Attorney General to seek back pay in a pattern or practice case and remanded the case for a determination of back pay liability. On remand, the District Court "permitted the parties to prepare a suitable means of effectuating the judgment of this Court, Pettway, supra, at 264 n. 156a. The parties thereupon negotiated a settlement v/hich contained the following release provision captioned in bold typeface: "As a condition to the receipt of back pay, per diem payments, employment bonus, and/or pension adjustments under the provisions of this Decree, any individual otherwise qualifying for such relief shall execute a general release as respects any further liability on the part of the Company regaroing any alleged violations of racial dis crimination under any equal employment opportunity laws, ordinances, regulations, or orders, includ ing but not limited to Title VII of the Civil Rights Act of 1964. . . the Civil Rights Act of 1866. . . the United States Constitution, and any applicable srare or local constitutional or stat utory provisions which may have occurred prior to the entry of this Decree. . '. ." United States v. Georgia Pov/er Co., No. 12355, at 14 (N.D.~G™, January 31, 1974) ("Amended and Final Decree"). This Court approved the Georgia Power consent decree con taining the above release provision, stating that it "may well be a model for other trial courts to use with appropriate modifi cations in back pay cases," Pettway, supra, at 264 n. 156a. The proposed execution of releases in exchange for back pay has been approved in another major consent settlement achieved under Title VII. In a case quite similar to the instant case, AT&T and IBEW reached a consent settlement with the EEOC, Secre tary of Labor, and Attorney General which provided for extensive affirmative action and $38,000,000 in back pay and other benefits - 47 - to employees of AT&T, EEOC v. AT&T, 365 F.Supp. 1105 (E.D. Pa. 1973). Paragraph IV.B. of the AT&T consent decree contained the following release provisions: "The Bell Companies may require that acceptance by any person of individual relief pursuant to the termiS of Part A, Section VIII [back pay relief] , shall constitute a waiver and release by such person of any claims for alleged violations of Title VlT . . ., 42"u .S.C. §§Ty8l7~T583, Executive Order 11246, or any applicable state fair employ ment practice laws or regu]ations based on occur rences prior to the date of this Agreement and the Decree, and such person shall sign a v^aiver of such claim as a condition to receipt of such individual relief." 1 CCH Emp. Prac. Guide 1(1860.15 (1973) (emphasis added). In a class action against an AT&T affiliate, the New York Telephone Company, pending at the time the AT&T consent decree was entered the court stated that: "The benefits of that decreee are available,V>/-\T.T/r\TT/̂v vrVlO TTnat.T Vel V elect to relinquish complaint of discrimina- tion against the Company in excnange tor relief provided by the decree. . . .[T]he plaintiffs in this action have elected not to participate in the benefits of that decree." Leisner v. New York Tel. Co., 358 F.Supp. 359, 367 (S.D.N.Y. 1973) (emphasis added). The enforcement procedure and structural context of the instant consent settlement are virtually indentical to those of the AT&T settlement, and the result in Leisner is the logical and disposi tive reply to intervenors' attack against the proposed release provision in the instant case. Release provisions have been included in consent settlements approved by courts in Title VII suits in Bryan v. Pittsburgh Plate Glass Co., 59 FRD 616 (W.D. Pa. 1973), aff'd , 494 F .2d 799 (3rd Cir. 1974) (private class action resulting in $931,724.00 - 48 - settlement fund; on delivery of settlement checks, "all defend ants shall be released of and from any and all. obligations, claims, deniands, damages and causes of action" v;hich any class member may have against defendants) ; I-Iecht v. Cooperative for American Relief Everywhere, Inc., 6 FEP Cases 1075 (S.D.N.Y. 1973) (Private class action settlement against CARE approved over- objection of class representative; broad release provision ap proved); American Finance System, Inc. v. Pickel, 7 EPD 1(9081 (D. Md. 1974) (sex discrimination; in exchange for payment of vested benefits pursuant to settlement agreement, employee agreed to "give up any additional amounts which may or may not be pay able"); Partee v. Pic-Walsh Freight Co., 7 FEP Cases 1315 (W.D. Tenn. 1972) (consent settlement containing waiver provisions approved by court in private action) ; Meat Cutters v. Safev/ay Stores, Inc., 6 FEP Cases 14 (D. Ka. 1972) (under settlement agreement, all plaintiffs on behalf of all class members agreed to dismiss class action with prejudice to refiling of any sex discrimination action against defendants). See EEOC v. Plumbers, Local 189, 438 F.2d 408 (6th Cir. 1971); EEOC v. Kimberly-Clarkw Corp., 7 FEP Cases 666, 668 (W.D. Tenn. 1974); Gerstle v. Con tinental Airlines, Inc., 358 F.Supp. 545, 548-49 (D. Colo. 1973). 3. FLSA and Other "Liquidated Damage" Cases are Not Ap- ____plicable ____ ___________________________— ______ The Harris group urges (Brief at 15-19) that decisions under the Fair Labor Standards Act, the Truth in Lending Act and similar legislation compel the conclusion that employees may, in a case of alleged race, sex or national origin discrimination, accept back pay in settlement of a disputed claim, execute a - 49 - release and sue for additional damages without being bound by the 25/ release. The analogy between the cases cited by Harris and actions under Title VII and related statutes is too fragile to sustain its own weight. The clearest reason why Schulte v. Gangi and its progeny are inapplicable to the instant case was stated by Judge Pointer: "Relief under the FLSA is defined . . ., while Title VII relief is more flexible. . . . While the amount of back-pay for an FLSA violation is, essentially, a matter of simple calculation sub ject only to the statutory requirements of the Act, Title VII back-pay awards are much more difficult of ascertainment as such are subject to innumerable variables." (A. 191a). The same distinction applies with equal force to cases involving an attempted compromise for less than a "sum selected by Congress as proper compensation," Schulte, 328 U.S. at 116. 1.. T.,,£___3 OOO T7I 1 0 /1*} k j X l U J . X CX J . f X I I Uk w Jk. WA V • X ^ u s . . . a . ^ ^ t f ^ a. ^ (N.D. Ga. 1971) a release of "liquidated damages" under the Truth in Lending Act was invalidated where the settlement amount was less than the $100 statutory minimum. Ignoring the distinction drav?n by the District Court, inter- venors attack the validity of the release here by stating, "Although every minority employee will need to know how much back pay he might win if he rejected the v;aiver and chose to litigate, the companies have objected that such calculation for all the minority employees involved is impracticable" (Harris Brief at 14). Interveners argue as if a new and correct method for calcu lating back pay exists which allows speedy calculation of back 25/ Schulte v. Gangi, 328 U.S. 108 (1946); Brooklyn Savings Bank vl 0*Neil, 324 U.S. 697 (1945), and additional cases at Harris Brief at 16-18, and 34-37. - 50 - pay, and that the consent decrees should be vacated to allow utilization of that method _(W_. at 31, 33, 37, 39) . But they fail to appreciate the extreme difficulty involved in ascer taining the amount of pay an employee would have received "but for discrimination, much less the amount owing to a mammoth class of employees. E_^. , Pettway , supra; Johnson v. Goodyear & Rubber Co., 491 F.2d 1364 (5th Cir. 1974). I'urther, the FLSA specifically authorizes releases which are utilized with the approval and supervision of the Secretary of Labor 29 U.S.C. §216(c). Under the consent decrees, the form of the release described in Section 18(g) will be approved by the representative of the Secretary of Labor, the EEOC and the Attorney General on the A & R Committee. The procedures for execution of the release and payment of back pay will be subject to SirmlAT* ov»rNrNVTT‘>/-’*î ^. c. w — Finally, the Schulte line of■cases contains an exception to even the rigid FLSA policy against compromise, which exception is also applicable here. In Schulte the Court stated that it did not need to consider "the possibility of compromises in other sit- uati.ons which may arise, such as a dispute over the numer of hours worked or the regular rate of employment." 328 U.S. at 114-15. The Court also indicated in a footnote that stipulated judgments, as opposed to extra-judicial releases, might be valid: Even though stipulated judgments may be obtained, where settlem.ents are proposed in controversies between employers and employees over violations of the Act, by the simple device of filing suits and entering agreed judgments, we think the require ment of pleading the issues and submitting the 3udgment to judicial scrutiny may differentiate stipulated judgments from compromises by the parties." M. at 115 n. 8. - 51 - Following Schulte the courts of appeals made it clear that re leases of FLSA claims are valid when executed pursuant to consent judgments in cases involving bona fide disputes over the amount due. Urbino v. Puerto Rico Ry. Light £ Power Co . , 164 F.2d 12, 14 (1st Cir. 1947); Bracey v. Luray, 161 F.2d 128, 129 (4th Cir. 1947); see Bowers v. Remington Rand, Inc., 159 F.2d 114, 116 (7th Cir. 1946), cert, den'd, 330 U.S. 843 (1947). For similar rea sons, the Supreme Court has explicitly approved the waiver of Title VII claims pursuant to voluntary settlement. Gardner- Denver, supra, 415 U.S. at 52 n. 15. VI. THERE IS ADEQUATE JUDICIAL SUPERVISION OF ENFORCEMENT OF THE DECREES The decrees provide for retention of jurisdiction by the 26./District Court for at least five years. Implementation com mittees are established to monitor decree related complaints and grievances by a procedure similar to that mandated by this Court 27/in Pettway, supra. Any matter dealt with which is not resolved 26/ A two year retention of jurisdiction was considered ade quate, Franks v. Bovanan Transportation Co., 495 F.2d 398 (5th ciFTT9T4r.------------------------ 27/ In Pettway this Court stated: "The district court should establish a complaint pro cedure by which a member of the class may question the interpretation of implementation of the district court's decree. See United States v. Georgia Power, supra, C.A. Nos. 12355, 11723, 12185. The procedure should include the filing of a complaint with the personnel department of the company and the proper committee of the Board of Operatives (described infra). . . . Brown V. Gaston County Dyeing Co., supra, 457 F.2d 1383; Parham v. Southwestern Bell Telephone Co., supra, 433 F.2d 429." Id. at 263. - 52 - by the appropriate implementation committee may be brought before the A&R Committee by any member or the government repre sentative, and then before the District Court. In addition, as specified to the District Court in the parties' June 3 letter: "[A]11 parties to the decrees fully understand that the court has authority to review any action taken pursuant to the Decrees, whether or not any party requests such review by the Court." (A. 177a). (emphasis added) (see A. 189a, n. 4). Interveners recognize the broad supervisory powers of the District Court under its retained jurisdiction but speculate that it will not have sufficient information upon v;hich to properly oversee the decrees. The facts demonstrate that interveners' assertion that there is "absolutely no provision for evaluation in practice" (Harris Brief at 75) through reporting is incred ible. 1974 (A. 180a-183a) provided that written records were to be kept of all implementation committee and ASR committee actions and that these records wore to be made available to the District Court, that the "Notice of Rights" letter called for by paragraph 17 of Decree I, the text of the release form, and the statement of information required by paragraph 18(h) are each to receive prior approval by the District Court, and that copies of all information furnished the government pursuant to the decrees are to be made available to the District Court. Intervenors were supplied with a copy of this directive on June 3, 1974 (A. 175a). The judicial supervision of the present decrees is inten sive, active and working. Intervenors' objections are based on mere speculation and provide no basis for vacating the decrees. - 53 - VII. THE DECREES ARE NOT MADE UNLAV7FUL BY THE FACT THAT INTERVENORS V7ERE NOT GIVEN THE OPPORTUNITY TO PARTICIPATE IN THE NEGOTIATIONS OR INTERVENE PRIOR TO THE ORIGIN/CL APPROVAL BY THE DISTRICT COURT Interveners argue that all interested persons should have been allowed to participate in the negotiations leading to the consent decrees (Harris Brief at 80), or alternatively given thirty days notice and an opportunity to intervene prior to approval by the court (Harris Brief at 05). Their objections are without merit. See, e. g. /■ United States v. H. K. Porter, 491 F. 2d 1105 (5th Cir. 1974); United States v. Georgia Power Co . , Civil No. 12355 (N.D. Ga. 1974) ("Amended and Final Decree"). Partinination in pattern or practice conciliation negotia tions by everyone who cares to participate v/ould serve neither the public interest nor the interests of the minority and female employees. One of the most unusual aspects of the present con ciliation is that nine major companies, the union and three agencies of the government were able to agree. This agreement was and could have been achieved only by all parties to the negotiations working together tov;ard a fair settlement. If interveners and representatives of other employees with con flicting interests had participated in the negotiations no agreement could ever have been reached. The demand by interveners for notice prior to approval of a pattern or practice consent decree would, in effect, turn every - 54 - such action into a Rule 23 class action. That result is not anticipated or intended by §707-of Title VII. A §707 pattern or practice action is entirely different from a private §706 action. One is brought in the name of the government; the other by in dividuals. One is not binding on individuals; the other is. The claims of individual employees have not been adjudicated by this action. Therefore, individual employees had no right to notice prior to approval of the decrees. For the foregoing reasons the companies do not believe that notice to employees prior to approval of a pattern or practice consent decree is required or appropriate. However, in the context of this particular case the argument over tlie issue is academic. Any conceivable damage to interveners was cured by the Distri-Ct Court by allowing therr rnLej.V'eiiLxoii and giaiiLxny Lliem a full hearing on any objections to the decrees they v/ished to make. Indeed, the present appeal is not based upon the Court's initial approval of the decrees, but upon the Court's decision, after hearing interveners' objections, that there was nothing wrong with the decrees. At a hearing, held in open court on May 20, 1974, intervenors were allowed to argue fully all of the objections raised. Briefs were taken by the Court and affidavits were also received from certain intervenors and other persons. At all times the parties to the decrees took the position that: "The Court should hear the objections to the Consent Decrees raised by various movants inclu ding those who [had] no standing." Memorandum of Defendant Companies at 2 (May 13, 1974). - 55 - The Harris interveners clearly stated (contrary to Harris Brief at 81 & 86) that their objections to the decrees were on strictly legal grounds (see, e.g., Tr. at 54: "I address myself to the general legality of the decrees"), and that an evidentiary hearing was not sought (see, e.g., Tr. at 57: "We do not seek to litigate the substance of the decrees"). NOW , indicated that any further hearing would be cumulative and did not request it (Tr. at 24, 27-30, 194). The interveners were fully heard and their arguraents carefully considered, h t the conclusion of the hearing Mr. Greenberg speaking for the Harris intervenors stated: "We believe your Honor has all the argument you need" (Tr. at 198). The District Court reconsidered its approval of the decrees in, light of intervenors' objections and arguments and decided that it should not vacate the decrees in light thereof. As a result of the May 20th hearing and intervenors' objec tions, the parties to the conciliation clarified certain pro visions of the decrees in a letter dated June 3, 1974 (A. 175a). Thereafter, the Court issued its June 7th Memorandum of Opinion which, in effect, reaffirmed its prior approval. Intervenors' objections to a lack of prior notice are without merit and are not a basis for reversal. VIII. THE DECREES ARE NOT UNLAWFUL BECAUSE THEY DO NOT ATTEMPT TO RESOLVE CERTAIN SPECIAL PROBLEMS ALLEGED BY N.O.W. Most of the issues raised in the Brief of NOW, et al., are similar to those discussed above. However, in addition, NOW 28/ See, e.g., Tr. at 9; A. 160a (remarks by Judge Pointer on May 20) and letter of the parties (A. 175a). - 56 - claims that the decrees are unlawful because they do not deal with certain alleged special problems of women (NOW Brief at 17- 22). NOW is in error for the reasons discussed below. A.__The Decrees Are Not Unlav/ful Because of Their Failure To ____Remedy The Alleged Discharge of Some Women in the 1940*s NOW alJ.eges that some women were discharged in the 1940's by defendant companies. The decrees do not purport to deal at all V7ith any such persons. No back pay is being offered any such victims of alleged sex discrimination in the 1940’s. No releases of claims are being solicited from any such alleged vi.ctims. If in fact any such alleged victims of 1940's discrimination exist, their legal rights are not affected by these decrees. Those persons may assert v/hatever causes of action they might 1 -f- rit decree‘s c Thoco po-rsQns a.re in the sa.rne position which will be shared by,all females, blacks and Spanish surnamed Americans if NOV7 is successful in having the decrees vacated in their entirety---they just are not affected by the decrees. Further, it is impossible for^a consent decree to remedy every alleged act of discrimination in the last 30 years. A decree should not be set aside because it does not deal with every such act. First, if these alleged acts had taken place in the 1940*s, they were not violations of Title VII because that statute was not effective until 1965. Second, NOV7 itself ad mitted in the District Court that the alleged victims in question have no viable causes of action to be asserted by themselves or - 57 - the government--all such causes have long since been barred by any applicable statute of limitations and are stale (Tr. May 20, 1974 at 18) . B. The Decrees Are Not Unlav/ful Because of The Absence of Transfer Rights Between Office Jobs and Production or Maintenance Jobs NOW contends that the decrees are unlawful because they do not require that office, clerical and technical (herein "C&T") or plant protection jobs he included in the same unit as production and maintenance (herein "P&M") employees for purposes of sen iority and transfer rights (NOW Brief at 20). If some female C&T or plant protection worker differsv/ith the judgment of the negotiators of the decrees and desires to attain a merger of C&T or plant protection jobs v;ith P&M jobs for 1 - ------- i r ’---------------------------- ----------------------- ----------- ' ̂ ^ r* ^ 1— J JL. A X , 1 . * ^ W. ^ ^ J_ 4- -fc. a 1 S - O ^ U A I C I U W i ^ l U d i l C . c i i l pursue whatever causes of action she may have. C&T and plant protection v;orkers will not be receiving back pay or signing releases under paragraph 18(g). Their rights to assert claims are not barred by the decrees. There is neither legal precedent nor any need for the setting aside of the decrees because the C&T and plant protection units are not merged with the P&M units. At the portion of its Brief dealing with transfer rights (p. 21), NOW has also inexplicably included an erroneous insinuation regarding back pay. NOW implies that there is some impropriety in the fact that female production and maintenance workers may get back pay in an amount less than the $250 minimum amount guaranteed to black and Spanish surnamed production and mainte nance workers. The existence of this fact indicates the converse - 50 - of discriminatory treatment of women under Decree I. Blacks and Spanish surnamed production and maintenance workers don't get any back pay under Decree I unless their employment predated January 1, 1968 (1118(c)). All "affected employees," including women whose employment predated January 1, 1968, receive a guarantee of a $250 minimum payment (1118(e) (1)). VJomen are the only group eligible for back pay even though their employment may have started since January 1, 1968 (1|18 (c) ) , although, of course, they do not all receive the guaranteed $260 minimum since some of them may have been employed only one day in advance of the date of entry of Decree I. Thus, women are actually favored by the back pay provisions. C. Section 10(a) of Decree I is Not Made Illegal Because it Bases Trade and Craft Goals Upon the Percentage of Women in Maintenance Units ____ ________________ NOVJ claims that Decree I should be set aside because it bases the female goals for filling of trade and craft jobs upon the percentage of women in P&M units (NOW Brief at 19—20). There is an inherent logic in filling trade and craft jobs from the existing P&M work force. ^ However, NOW implies that the percentage of women in pro duction and maintenance jobs is not large enough to provide a proper basis for the trade and craft goals { I d . at 19-20). NOW fails to note that Decree II provides, as a goal, for the hiring of women as 20% of all of the new hires into P&M units (A. 76a). Thus, Decree II assures that the P&M work force, which is the basis upon which trade and craft goals are set, will include a suf ficiently large number of women. As the percentage of P&M - 59 - women increases under Decree II, the goals for trade and craft under Decree I will increase automatically. If any C&T women are injured by the fact that the decrees do not grant them preferential bidding rights to trade and craft jobs over the present P&M work force then they can pursue what- 29/ever causes of action they may have. The decrees should not be set aside because they do not purport to deal with this con cept of preferential rights for secretaries who may want to be trade or craft v/orkers. The decrees are not made unlawful because they do not purport to deal with every allegation of discrimination in the steel industry. IX. THE DISTRICT COURT DID NOT COmiT REVERSIBLE ERROR WHEN IT PERMITTED N.O.W. TO NAME INDIVIDUAL WOMEN EMPLOYEES AS INTERVENORS BUT DENIED INTERVENTION BY THE ORGIiNIZATlON UNDER FEDERAL RULE OF CIVIL PROCEDURE 24(a) On May 20, 1974, NOW filed ci complaint in intervention on behalf of all former, present and future female employees of defendant companies, alleging widespread acts of discrimination. Judge Pointer denied NOW's motion to intervene as an organiza tion, but granted NOW leave to amend its complaint to name not more than three women who were employees of one of the steel companies, who were allowed to intervene. (A. 186a). The three women, Beasley, Fix and Halascsak, filed the amended complaint in intervention; the District Court refused to vacate the Decrees on 29/ C&T workers will not be executing releases (Decree I, 1118) . - 60 - the basis of their objections; and the three women and NOW have filed the instant appeal. The District Court-held that a statutory right of inter vention, under Rule 24(a)(1), F.R.C.P., existed only on behalf of the persons who were allegedly "aggrieved" by the employment practices involved in the decrees. The Court also held that there was no need to grant intervention by NOW under Rule 24(a)(2) because any interests of the organization could be advanced by the individual employees selected by NOW to serve as intervenors. The District Court's Opinion stated: "The court concludes that §§ 707 (e) and 70G of Title VII, 42 U.S.C.A. §S 2000e-7 (e) and 2000e- 5, confer upon some petitioners a right to inter vene within the meaning of Rule 24(a)(1), F.R.C.P. This statutory right is provided to a 'person or persons aggrieved' within the meaning of Title VII. . . I * * * * "The court denies the requests for interven tion by the three organizations, the Ad Hoc Com mittee, NOW, and the Rank and File Committee. VJhile such organizations may have authority to file charges with the EEOC and even to file law suits with respect thereto, they are not 'persons aggrieved' for the purpose of any statutory right of intervention under Rule 24(a)(1). In view of the allowed intervention of officers or members of such organizations, it appears that adequate representation is being afforded for any interest the organizations may have. See Rule 24(a)(2) and Hines v, Rapides Parish School Board, 479 F.2d 762 (CA5 1973TV Nor, indeed", have the organizations demonstrated a sufficient interest qua organiza tions to justify the additional problems of manage ment and inconvenience caused by unnecessary intervenors. See Bennett v. Madison County Board of Education, 437 F.2d 554 (CA5 1970); Horton v. Lawrence County Board of Education, 425 F.2d 735 (CA5 197077'’ (A. 187aTT On this appeal NOW alleges that it has a statutory right of intervention in the instant pattern and practice action brought by the government. (NOW Brief at 6). - 61 - The District Court correctly held that NOW had no statutory right of intervention. Under §706 only "persons aggrieved" can become parties plaintiff to private civil actions, either ini tially or upon intervention., §§706 (f) (1) (plaintiffs in inter vention) & (f)(1)(A) and (B) (plaintiffs). This result is con sistent with the case or controversy limitation of Article III, §2, which requires that a party have a "personal stake in the outcome of the controversy" in order to acquire standing to sue, which is an essential element of justiciability. Sierra Club v. Morton, 304 U.S. 727, 731-32 (1972). A Title VII plaintiff must have standing to sue in his ov/n right and as a class representa tive. Hackett V. McGuire Bros., Inc., 445 F.2d 442, 447 (3rd Cir. 1971). Accordingly, where organizations are involved, there must be an injury to the organization, not just merely to its members, in order to confer standing upon the organization either to sue as the original plaintiff, e.g., National Welfare Rights Organization v. Wyman, 304 F.Supp. 1346, 1348 (E.D.N.Y. 1969); Stam£S V. Detroit Edison Co., 365 F.Supp. 87 (E.D. Mich. 1973), or to later intervene, see Bennett v. Madison County Bd. of Educ., 437 F.2d 554 (5th Cir. 1970), Horton v. Lawrence County 30/Bd of Educ., 425 F.2d 725 (5th Cir. 1970). In EEOC V. American Telephone ^ Telegraph, 365 F.Supp. 1105 (E.D. Pa. 1973), cited in Brief of NOW at 7, intervention by the Communications Workers of America (CWA) was permitted. However, intervention was permitted only upon the narrow question (concerning 30/ An organization may have standing to sue when it seeks redress for injuries that it has suffered as an organiza tion. NAACP V. Button, 371 U.S. 415, 428 (1962). However, NOW has not alleged injury to the organization. In addi tion, it is clear that no persons may bring an action for an injury suffered by others but not by themselves. Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). 62 which the CWA had filed charges with the EEOC) of maternity leave, that was in a footnote in the consent decree. The District Court noted: "such intervention will not operate to stay in any way the enforcement and implementation of the other provisions of the Consent Decree." 365 F.Supp. at 1110. The District Court described the issue on which it allowed intervention: "This issue as to pregnant women employees is either not significantly involved in the instant settle ment, or if involved is at most minisculely related." 365 F.Supii. at 1110. Even the narrow intervention permitted the CWA is not precedent for intervention by NOW in the instant decrees. The CWA was a party to the collective bargaining agreements and practices affected by the AT&T decree. NOW is not a party to a collective bargaining agreement with the defendant companies. No contention has been or could be made that NOW v/as itself "aggrieved. " None of Lhe uastis eifed by Now indicate that an organization has a statutory right of intervention in a government pattern or practice action (NOW Brief, at 7-9). Other than EEOC v. AT&T, none of the cases cited by NOW even involve a statutory right of intervention under Rule 24(a)(1). The cases cited by NOW in volved intervention under Rule 24(a)(2). As discussed in the above quoted portion of the District Court's opinion, there is no need for intervention under Rule 24(a)(2) because the interests of NOW are adequately protected by the individual employees NOW was permitted to name as intervenors. Thus, the prerequsite to intervention under Rule 24(a)(2)— that the applicant's interests not be adequately protected— is lacking. ^i^3.11y, even if NOV7 had a statutory right of intervention, there has been no injury to NOW attributable to the belief of the - 63 - parties and the District Court that no such statutory right existed. NOW was permitted to participate fully in the May 20, 1974, hearing upon objections to the decrees. (May 20, 1974, Hearing Transcript). In conjunction with the three individual employees NOW was permitted to name as interveners, NOW has filed extensive briefs in the District Court and before this Court. In summary, the District Court's denial of a statutory right of intervention by NOW is not a basis for reversal of the Dis trict Court's approval of the Decrees. 31/CONCLUSION— On the basis of the facts, authorities and reasons set forth herein, defendant-appellee companies respectfully 31/ Reference to the Brief of Amicus Curiae District 31^Com- — mittee was not deemed necessary in rne ms^anufollowing reasons: As to the three issues raised by the Committee as amicus curiae, only the first (waiver of statutory rights) Is an issue brought before this Court by the Harris or NOW appellants. The Committee at page 2 states that it seeks to introduce issues, presumably its Issues II and III, not otherwise dealt with by interveners. It is well established that an amicus curiae must accept the case before the court with the issues made by the parties and has no standing to introduce new issues. Moffat Tunnel Improvement Dist. v. Denver _& 'F.2d 715, 722 (10th Cir. 1930) (^Briefs are received ^^om amici curiae to aid the court in disposing of issues before the court; friends of the court cannot introduce new issueo. ."). Additionally District 31 Committee s arguments II and III were not raised before the District Court. This Circuit has often stated that it will not consider sue arauments. Wisconsin Barg^ Lines, Inc, v. Coasta_l Marine ̂ ^ Trans., Inc.’, 414"F72d 872, 876 (5th Cir. 1969) ( [T^e trialJ535^ muit-first have had opportunity to pass upon the issue."); United States v. Sinor, 238 F .2d 271, 277 (5tn Cir 1956) ("A auestion which v/as neither pleaded norQPTvted to the trial court cannot be considered on appeal. ); DeSchwood hlitber Cc. v. T o ^ , 199 F.2d 878,_881 pth Cir 1952);~cTtv~of~Qrange v. Fidelity & Deposit Co. of IW., 18U F.2d 269, 270 (5th Cir. 1950). - 64 submit that the judgment of the District Court should be af firmed. Respectfully submitted. Ĵa;Ues R. Forman, Jr. William K. Murrti^ Attorneys for Defendant-Appellee Companies 1600 Bank for Savings Building Birmingliam, Alabama 35203 October 10, 1974 THOMAS, TALIAFERRO, FORMAN, BURR & MURRA.Y 1600 Bank for Savings Building Birmingham, Alabama 35203 D, FRANK DAVIS CRAVATH, SWAINE & MOORE 1 Chase Manhattan Plaza New York, New York 10005 RALPH L. McAFEE ANTHONY A. DEAN ROBERT G. WILSON DUANE, MORRIS & HECKSCHER 1600 Land Title Building Philadelphia, Pennsylvania HENRY T. REATH GALL, LANE & POWELL Suite 707 1205 Connecticut Avenue Washington, D.C. 20036 JEROME POWELL FRANK CUMMINGS 19100 - 6 5 - REED, SMITH, SHAW & McCLAY 747 Union Trust Building Pittsburgh, Pennsylvania 15230 LEONARD L. SCHEINHOLTZ WALTER P. DeFOREST, III EDWARD N. STONER, II THORP, REED & AR14STRONG 2900 Grant Building Pittsburgh, Pennsylvania 15219 CARL K. HELLERSTEDT, JR. EDWARD J. O' CONNELL 2000 Oliver Building Pittsburgh, Pennsylvania 15222 EDWARD C. PERKINS Martin Tower Bethelehem, Pennsylvania 18016 JOSEPH P. KELLY Gateway No. 3 Pittsburgh, Pennsylvania 15230 THOMAS R. ALEXA.NDER P. O. Box 6778 Republic Building Cleveland, Ohio 44101 VINCENT L. MATERA S. G. CLARK, JR. 600 Grant Street Pittsburgh, Pennsylvania 15230 FRANCIS St.C. O'LEARY P. 0. Box 118 Pittsburgh, Pennsylvania 15230 G. J. HANEY P. O. Box 900 Youngstown, Ohio 44501 OF COUNSEL CERTIFICATE OF gERVICE I hereby certify that on this the 10th day of October 1974, I have served the appropriate number of copies of the above and foregoing Brief of Defendant-Appellee Companies on the following named persons, at their addresses- of-record, by United States Mail, postage prepaid: William A . Carey General Counsel Equal Employment Opportunity Commission Washington, D. C. 20530 William J. Kilberg Solicitor of Labor Department of Justice Washington, D. C. 20210 Robert T . Moore Depai-tmcnt of Justice 550 - Eleventli Street, N. W. Washington, D. C. 20530 Martin I. Slate Equal Employment Opportunity Commission c/o 4300 Old Dominion Drive Arlington, Virginia 22207 Wayman G. Sherrer United States Attorney Room 200, Federal Courthouse , L > x x u i i . i i ^ U c L U i , r x x a u c i . u i c i o o ^ v o Ms. Marion Halley Equal EmplojTnent Opportunity Commission 1545-18th Street,N.W., Apt. 714 Washington, D. C. Carl Frankel Five Gateway Center Pittsburgh, Pennsylvania 15222 Ms. Elizabeth M. Schneider Ms. Doris Peterson Center for Constitutional Rights 853 Broadway New York, New York 10005 Michael 11. Gottesman 1000 Connecticut Avenue Washington, D. C. 20030 Jerome A. Cooper Cooper, Mitch & Crawford 409 North 21st Street Birmingham, Alabama 35203 David Schi'ibner 50 Broadway New York, New York 10004 James H. Logan 505 Court Place Pittsburgh, Pennsylvania (Certificate of Service Cont'd) Jack Greenberff James M. Nabrit, ITI Barry L. Goldstein Charles S . Ralston Eric Schnappcr Morris J . Bailer #10 Columbus Circle New York, New York 10019 Ms. Judith Lonnquist National Organization for Women, Inc. 201 North Wells Street, Suite 2122 Chicago, Illinois 60006 J. Richmond Pearson 1630 Fourth Avenue, North Birmingham, Alabama 35203 Bernard D . Marcus T-l, .. T-) T __J. ^ 415 Oliver Building Pittsburgh, Pennsylvania 15222 Oscar Ŵ . Adams James K. Baker U. W. demon Ms. Cai'yl P . Privett 2121 Building, Suite 1600 2121 Eighth Avenue, North Birmingham, Alabama 35203 Ms. Emily M. Rody The V/omen's Law Center, Inc. 700 Equitable Building Baltimore, Maryland 21202 Arthur Man dell 1901 First National Life Building Houston, Texas 77002 Ms. Gabrielle K. McDonald Mark T . McDonald 1554 Suuthmore Boulevard Houston, Texas 77004 Nathaniel R. Jones William D. Wells NAACP 1790 Broadway New York, New York 10019