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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