Waker v. Republic Steel Corporation Brief for Plaintiffs-Appellees

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 74-3721

L. C. WAKER, et al.,
Plaintiffs-Appellees, 

- vs -
REPUBLIC STEEL CORPORATION, et al.,

Defendants-Appellees,
- vs -

DONALD PRITCHARD, et al.,
Plaintiffs-Intervenors.

On Appeal From The District Court for the 
Northern District of Alabama

BRIEF FOR PLAINTIFFS-APPELLEES

OSCAR W. ADAMS 
U.W. CLEMON 
CARYL PRIVETTSuite 1600, 2121 Building 

2121 Eighth Avenue North 
Birmingham, Alabama 35203

JACK GREENBERG 
BARRY L. GOLDSTEINSuite 2030 - 10 Columbus Circle 

New York, New York 10019 Attorneys for Plaintiffs-Appellees



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 74-3721

L. C. WAKER, et al. ,
Plaintiffs-Appellees,

- vs -
REPUBLIC STEEL CORPORATION, et al.,

Defendants-Appellees,
- vs -

DONALD PRITCHARD, et al.,
Plaintiffs-Intervenors.

On Appeal From The District Court for the 
Northern District of Alabama

CERTIFICATE REQUIRED BY LOCAL RULE 13(a)

The undersigned counsel for plaintiffs-appellees 
Waker, et al., in conformance with Local Rule 13(a), 
certifies that the following listed parties have an interest 
in the outcome of this case. These representations are 
made in order that judges of this Court may evaluate 
possible disqualifications or recusal:



1. L.C. Waker, James L. Allen, Joseph Kimbrough,
Joe Bryant, Joseph Faulkner, Isaiah Hayes, III, Edward 
Robinson, and Henry Williams, named plaintiffs in the con­
solidated actions.

2. The class of black workers at defendant Republic 
Steel Corporation's Gadsden plant, represented by the named 
plaintiffs.

3. Republic Steel Corporation, defendant.
4. United Steelworkers of America and its Local 

2176, defendants.
5. Donald Pritchard and Gary Adcock, intervenors.
6 . The class of white workers at defendant Republic 

Steel Corporation's Gadsden plant, represented by the 
intervenors.

Attorney for Plaintiffs-Appellees



TABLE OF CONTENTS

Table of Authorities................. ................. ii
Statement of Question Presented.......................... vi
STATEMENT OF THE CASE..................................  1
ARGUMENT......................  ........................  4
Introduction and Summary .... ..........................  4

I. THE DISTRICT COURT DID NOT ERR IN DENYING 
, INTERVENTION..... ...............................  5

A. The District Court Appropriately Denied 
Intervention as of Right Because the 
Intervenors Do Not Have a Legally
Protectable Interest......................  5

B. The District Court Appropriately Denied 
Intervention as of Right Because the 
Legitimate Interests of the Intervenors, 
e.g., to a Fair Seniority System Which 
Provides for Plant Efficiency and Safety,
Are Adequately Represented by the Union.....  13

C. The District Court Properly Exercised 
Its Discretion In Denying Permissive Intervention Pursuant to Rule 24(b),
FRCP......................................... 17

D. The Motion to Intervene Insofar As It Is 
Intended to Alter the Preliminary
Injunction Is Untimely......................  18

CONCLUSION.............................................. 20

Page

-1-



table: of authorities

Cases Pacjc?

Atlantic Development Corporation v. united States,
379 F .2d 818 (5th Cir. 1967)................  16

Bennett v. Madison County Bd. of Educ., 437
F . 2 d 554 (5th Cir. 1970).....................  17

Bing v. Roadway Express, Inc., 444 F.2d 687
(5th Cir. 19701).............................  6

Bowe v. Colgate-Palmolive Company, 416 F.2d
711 (7th Cir. 1969).............    16

Bush v. Lone Star Steel Corporation, 373 F.Supp.
526 (E.D. Tex. 1971).........................  15

Central of Georgia Ry. v. Jones, 229 F.2d 648 
(5th Cir. 1956) cert, denied 352 U.S.
848 (1956).. ................................  7

Clark v. American Marine Corp., 320 F.Supp. 709 
(E.D. La. 1970) aff'd 437 F.2d 959'
(5th Cir. 1971)................ ............. 12

Culpepper v. Reynolds Metals Company, 421 F.2d
888 (1970)..................................  9

Diaz v. Southern Drilling Corp., 427 F.2d 1118(5th Cir. 1970)..’..........................  4,8,19

Eaton v. Courteaulds North America, Inc. 5
EPD.5(8032 (S.D. Ala. 1972).................. 16



TABLE OF AUTHORITIES [Cont1d.]
Page

English v. Seaboard Coast Line Railroad Co.,
465 F.2d 43 (1972)............. .......... 16

Gabriel v. Standard Fruit & S.S. Co., 448
2724 (5th Cir. 1971).....................  12

Horton v. Lawrence County Bd. of Education,
425 F . 2d 735 (5th Cir. 1970).......... . 14

Humphrey v. Moore, 375 U.S. 335 (1964)..........  7,14-

In *the Matter of Bethlehem Steel Corporation,
Decision of the Secretary of Labor,
Docket No. 102-68, January 15,
1973 EPD *H5128..........................   15

Johnson v. Goodyear Tire & Rubber Company,
491 F.2d 1364 (5th cir. 1974)............    6

Kessler & Co. v. EEOC, 472 F.2d 1147 (5th
Cir. 1973) (en banc) cert denied 412 U.S.
939 (1973)...............................  11

Lipsett v. United States, 359 F.2d 956
(2nd Cir. 1966)...........................  18

McDonald v. E.J. Lavino Co., 430 F.2d 1065
(5th Cir. 1970)...........................  19

Martin v. Kalvar Corporation, 411 F.2d 552
(5th Cir. 1969)...........................  14

NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175
(1967)......................................  15

Norman v. Missouri Pacific Railroad, 414
F.2d 73 (8th Cir. 1969)....................  7

- iii-



TABLE OF AUTHORITIES [Cont'd.]

Pettway v. American Cast Iron Pipe Company,
494 F . 2d 211 (5th Cir. 1974)................. 6,8,10,12

Quarles v. Philip Morris Co., 279 F.Supp.
505 (E.D. Va. 1968).......................... 7

Robinson v. Lorillard, 444 F.2d 791 (4th
Cir. 1971)...................... .............6

Rodriquez v. East Texas Motor Freight Company,
No. 73-2801, Slip Opinion (5th Cir.
Nov. 25, 1974)............................... 6

Sagers v. Yellow Freight Systems, Inc. 5 EPD
<517992 (N.D. Ga. 1972)........................ 16

Stadin v. Union Electric Company, 309 F.2d
912 (3rd Cir. 1962)...... ....................11

St. Helena Parish County School Bd. v. Hall,
287 F .2d 376 (1961) cert denied 368
U.S. 380 (1961).............................. 17

Stell v. Savannah-Chatham County Bd. ofEducation, 333 F.2d 55 (1964)................ 17

Taylor v. Armco Steel Company, 8 EPD <519550
(S.D. Tex. 1973)............................. 15

United States v. Bd. of Sch. Comins. , Indianapolis,
Indiana, 465 F.2d 573 (7th Cir. 1972) 
cert, denied sub nom Citizens of 
Indianapolis for Quality Schools v. United 
States, 410 U.S. 909 (1973).................  17

United States v. Bethlehem Steel Corporation,
446 F.2d 652 (2nd Cir. 1971)................  15

Pago

-iv-



1 ■J •

TABLE OF AUTHORITIES [Cont'd.]

Page

United States v. Hayes International Corp., 
415 F .2d 1038 (1960)............... 9

United States v. H.K. Porter, 491 F.2d 1105 
(5th Cir. 1974)....................

United States v. Jacksonville Terminal Company, 
451 F.2d 418 (5th Cir. 1971) cert, denied 
406 U.S . 906 (1972).....................

United States v. United States Steel Corporation, 
371 F. upp. 1045 (N.D. Ala. 1973)........ 3,9,10,15

Waters v. Wisconsin Steel Works, 502 F.2d 
1309 (7th Cir. 1974)...... . 6,16

STATUTES AND OTHER AUTHORITIES
Federal Rules of Civil Procedure

Rule 19........................
Rule 24...................... .

Wright and Miller, 7A, Federal Rules of 
Civil Procedure ..............
§1901 .........................
§1909 .........................
§1913 .........................

National Labor Relations Act--*.;.....
29 U.S.C. §§151 et seq

Title VII Civil Rights Act of 1964
42 U.S.C. §§2000e et seq...... .
28 U.S.C. §1291............... .
42 U.S.C. §1981.......... ....

164,9,16,17

17
10
14
17
5,14

passim1
2

v-



STATEMENT OF QUESTION PRESENTED 
Whether in a suit brought pursuant to Title VII 

of the Civil Rights Act of 1964 and 42 U.S.C. §1981 to 
terminate racial discrimination in employment the district 
court appropriately denied intervention as of right and by 
permission pursuant to Rule 24, FRCP, to individuals pxir- 
porting to represent a class of v/hite workers when,

(a) The intervenors have no legally cognizable 
interest in mitigating the relief afforded in the 
preliminary injunction or in any further Order which
is designed to terminate unlawful racial discrimination;
(b) The legitimate interests of the intervenors, to 
a fair, efficient and safe seniority system, are re­
presented by the Union defendants who are under com­
pulsion of law to represent individuals within the 
bargaining unit; and
(c) The Complaint in Intervention seeks to affect
a preliminary injunction which was entered four months 
prior to the filing of that complaint.

1/

1/ There is no statement of the question(s) presented
in the Appellants-Intervenors" Brief.

vi



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 74-3721

L. C. WAKER, et al.,
Plaintiffs-Appellees,

- vs -
REPUBLIC STEEL CORPORATION, et al.,

Defendants-Appellees,
- vs -

DONALD PRITCHARD, et al.,
Plaintiffs-Intervenors.

On Appeal From The District Court for the 
Northern District of Alabama

BRIEF FOR PLAINTIFFS-APPELLEES 

STATEMENT OF THE CASE

This is an appeal from denial of intervention by 
the district court. This Court has jurisdiction of the 
appeal pursuant to 28 U.S.C. §1291.



This litigation was commenced by the filing of four
2/separate actions on March 3 and 4, 1971 pursuant to Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e elt
sen. and 42 U.S.C. §1981. Together these suits, a fifth 
---  ̂ 3/suit was filed later, sought to remedy the pervasive practices 
of discrimination at defendant Republic Steel Corporation's 
Gadsden Plant ("Republic Steel" or "Company"). These dis­
criminatory practices allegedly included, inter alia, unlaw­
ful seniority, transfer, promotional policies, and unlawful 
selection practices for training and for supervisors. These 
five actions were consolidated for trial.

The defendants Republic Steel, United steelworkers 
of America ("steelworkers") and Local 2176, Steelworkers 
("Local 2176") filed Answers generally denying the sub­
stantive allegations of the Complaint.

The litigation and trial of these consolidated actions 
was delayed, while essentially the same issues were tried in
an action concerning Fairfield Works of United States Steel

1/Corporation.

2/ civil Actions Nos. 71-179, 71-180, 71-181, 71-185,
Docket Nos. 2, 17, 21 and 25, la-12a, 15a-19a; this designation 
is to the appendix of the appellants)3/ Civil Action No. 72-255, filed March 21, 1972,
Docket No. 29, (I3a-14a).
4/ Counsel in these consolidated actions were also counsel
Tn the Fairfield works action.

-2-



The Fairfield Works case was tried in fifty-four trial days 
over a six month period; a final order was entered six months 
after trial. United States v. United States Steel Corp­
oration, 371 F.Supp. 1045 (N.D. Ala. 1973).

On February 14, 1974 a preliminary injunction was 
entered in these consolidated actions, which was similar in 
large part to the injunction entered in United States Steel 
Corporation. Essentially the preliminary injunction altered 
the measure of seniority, from occupational, to plant, which

5/governs promotional and reduction-in-force movement.
Prior to the entrance of the preliminary injunction 

the plaintiffs had served and the defendant Republic Steel 
had answered an extensive set of interrogatories.

On June 11, 1974 intervenors Pritchard and Adcock 
moved to intervene. ( 3 9a - 40a ) The lower court denied 
the intervention on July 25, 1974 and on September 3, 1974 
the court also denied the intervenors1 Motion for

5/ On October 21, 1974 the district court supplemented or
amended the preliminary injunction to conform with the injunc­
tion entered in United States v. Alleqheny-Ludlura Industries, 
Inc., Civil Action No. 74-P-339, appeal pending 74-3056.

The Allegheny-Ludlum injunction resulted from a Consent 
Decree agreed to by nine major steel companies, including 
Republic Steel, the Steelworkers, Justice Department, 
Department of Labor, and the Equal Employment Opportunity 
Commission.

-3



Reconsideration. (ls-3s; designation to supplemental appendix) 
■The lower court denied the intervention because the inter- 
venors did not raise any legally cognizable interest which would 
justify mitigating relief from discrimination, any legal 
interest of the intervenors were adequately represented by the 
Union defendants, and the intervention insofar as it purported 
to affect the preliminary injunction was untimely. (Id.)

The intervenors filed, on September 30, 1974, a timely
notice of appeal.

A R G U M E N T  
Introduction and Summary

The intervenors sought intervention as of right or 
by permission pursuant to Rule 24(a) and (b), FRCP. Inter- 
ention as of right must pass the muster of a threefold 
test: (1) the intervenor must have an interest relating to
the property or transaction that is the subject of the action, 
(2) be so situated that the disposition of the action may as 
a practical matter impair or impede his ability to protect 
that interest, unless (3) his interest is adequately repre­
sented by existing parties. Diaz v. Southern Drilling Corp.,
427 F.2d 1118, 1124 (5th Cir. 1970). In addition the in­
tervention must be timely, id.

The plaintiffs submit that the intervenors have not 
claimed any legally cognizable interest which would in any

-4-



way justify mitigating or terminating the relief instituted 
by the preliminary injunction, or which may be instituted 
in a final injunction designed to end racial discrimination. 
Also the legitimate interests of the intervenors, e.g., 
to a fair seniority system which provides for plant effi­
ciency and safety, are adequately represented by the union 
defendants who are under compulsion of law to fairly re­
present them. National Labor Relations Act, 29 U.S.C.
§§151 e_t seq.

« Finally, insofar as the intervention is intended to 
alter the preliminary injunction, which was entered four 
months prior to the motion to intervene, the intervention 
is untimely. (ls-3s).

I.
THE DISTRICT COURT DID NOT ERR IN DENYING
_____________ INTERVENTION_______________

A. The District court Appropriately Denied 
Intervention as of Right Because the 
Intervenors Do Not Have a Legally 
Protectable Interest

The intervenors are concerned about one particular, but 
essential, aspect of the relief sought by the class of black 
workers: The termination of a discriminatory seniority system. 
The Fifth Circuit has repeatedly dealt with the manner in which 
a line of progression or occupational seniority system when 
based on a history of job assignment on the basis of race

-5-



continues the effects of past discriminatory practices by
6/locking Blacks into low-paying jobs. Similarly, this Court

has repeatedly held that the use of plant seniority is the
appropriate remedy for terminating the unlawful effects of

1/discriminatory seniority systems. Of course, courts may
modify existing collective bargaining rights in order to
accord relief from discrimination, Bing v. Roadway Express,
Inc., 444 F.2d 687, 6S0-91 (5th Cir. 1971), and the parties
to collective bargaining agreements cannot defend practices
of «discrimination on the grounds that they were bound by the

8/collective bargaining agreement.
Similarly white employees have no substantive right 

to oppose the alteration of a discriminatory collective bar­
gaining contract. The "rights" or "interests" of white 
employees which are presently in question is the favorable

6/ See, e.g., Pettway v. American Cast Iron Pipe Company,
494 F.2d 211, 223-224 (5th Cir. 1974); United States v. 
Jacksonville Terminal Company, 451 F.2d 418, 453 (5th Cir.
197 1) cert. denied 406 U.S. 906 (1972).
7/ Pettway v. American Cast Iron Pipe Company, supra
at 248, n.102 and cases cited therein.
8/ This Court has indicated that the very fact that a
defendant is a party to a discriminatory contract is sufficient 
to constitute a violation of Title VII. Johnson v. Goodyear 
Tire & Rubber Company, 491 F.2d 1364, 1381-82 (5th Cir. 1974); 
Rodriguez v. East Texas Motor Freight Company, No. 73-2801,
Slip Opinion, (5th Cir-. Nov. 25, 1974), see Waters v .
Wisconsin Steel Works, 502 F.2d 1309, 1321 (7th Cir. 1974); 
Robinson v. Lorillard, 444 F.2d 791, 799 (4th Cir. 1971).

6-



seniority position of the whites relative to black workers.
The favorable seniority position of the white employees 
is the direct result of the discriminatory seniority practices 
at the Gadsden plant of Republic Steel. In any event, these 
seniority "rights" based on a pervasive discriminatory 
seniority system, "are not vested, indefeasible rights.
They are expectancies derived from the collective bargaining 
agreement, and are subject to modification". Quarles v.
Philip Morris Co., 279 F.Supp. 505, 520 (E.D. Va. 1968);
Norman v. Missouri Pacific Railroad, 414 F.2d 73, 85 (8th 
Cir. 1969); cf. Humphrey v. Moore, 375 U.S. 335 (1964);
Central of Georgia Ry. v. Jones, 229 F.2d 648 (5th Cir. 3.956) 
cert. denied 352 U.S. 848 (1956).

There is no douiat that white workers will be affected 
by a reconstruction of the seniority system at the Gadsden 
plant in order to terminate racial discrimination. Just as 
the white workers' ability to promote and hold jobs during 
a reduction-in-force was increased by the discriminatory 
seniority practices, the termination of discriminatory seniority 
practices will accordingly reduce their promotional oppor­
tunities. But the advantage enjoyed by wliites as a res\ilt of 
discrimination is certainly not an interest that is "legally 
protectable".



It is true that, even though Rule 24(a) (2) 
provides that propriety of intervention 
is to be tested by practical considerations, intervention still requires a 'direct sub­
stantial legally protectable interest in 
the proceedings'. Diaz v. Southern Drilling 
Corp., supra at 1124.

As the district court noted the intervenors "neither 
claim nor disclaim racial discrimination", (2s) and 
correctly concluded that "the movants [inter­
venors] fail to allege any basis for restoration of the 
seniority system as it existed prior to February, 1974 [the 
date of the preliminary injunction] . . . "  [ ld_. ] In actuality, 
the intervenors are attempting, at most, to suggest to the 
district court certain types of possible relief provisions, 
"super-seniority", for victims of discrimination, such as job­
skipping, to the exclusion of other provisions, a straight­
forward plant seniority system.

However, the granting of injunctive relief to terminate 
discrimination is not an either/or proposition; injunctive 
relief must be "full", that is designed to make black workers 
free drom discriminatory effects and to place them in their 
"rightful place" as quickly as possible. Pettway v. American 
Cast Iron Pipe Company, supra at 243 n.82. This requires 
plant seniority and job skipping, plant-wide posting of 
vacancies, advanced entry into lines of progression, etc., 
whenever such measures are not in contravention of "business 
necessity". IcL at 248-49.

-8-



By the use of plant-wide seniority in the preliminary
9/injunction the district court established a partial remedy

for the discriminatory employment practices at Republic Steel
which could be readily instituted. See United States v.
United States Steel Corporation, 371 F.Supp. 1045 (N.D. Ala.

10/1973). The intervenors suggest a limited use of seniority
relief which would leave in effect, to a large degree, the

11/present occupational seniority system. The intervenors' 
position, as set out supra, is not legally cognizable to the 
extent that it purports to limit effective enforcement of 
Title VII? to the extent that the intervenors' interest is to 
see implemented a "fair" and efficient system, then that 
interest is adequately represented by’ the defendant Unions.
See section B, infra.

It might well be argued that Rule 24(a) was "liberalized" 
in 1966 when amended, and that the white intervenors, who at 
least in practice, will be affected by the seniority relief,

9/ This court has specifically approved the issuance of pre­
liminary injunctions in Title VII actions. Culpepper v .
Reynolds Metals Company, 421 F.2d 888, 894-95 (1970); United 
States v. Hayes International Corp., 415 F.2d 1038 (1069).
10/ An appeal is pending in this case, No. 73-3907, but 
it is limited to the denial of back pay.
11/ The intervenors purport to represent a class of all 
white employees. [Order 1) While a majority of white workers might benefit from a retention of job senrority, there are 
certainly some whites who would be adversely affected by the 
retention of job seniority. According to the intervenors' 
arguments this latter group of white employees would be en­
titled to intervene. The number of resulting possible 
interventions is incalculable.



should be permitted to intervene. Of course this Court 
in Diaz appropriately established a far stricter standard, 
supra. Moreover, the interests of the intervenors to state 
their case, even if they do not have one, is not the only 
policy consideration. The plaintiffs have an interest in 
•die quickest resolution of their complaint with the least 
attendant litigation cost; in addition there is also a public 
interest in the efficient resolution of controversies.
Wright and Miller, 7A, Federal Practice and Procedure,
§1901, p. 465.

The maintenance of manageeibility of Title VII actions 
is a real and substantial problem. In a Title VII case in­
volving a United States Steel Corporation plant similar to the

12/Gadsden plant of Republic Steel the trial comprised "hundreds
of witnesses, more than 10,000 pages of testimony, and over
ten feet of stipulations and exhibits". United States v.

13/United States Steel Corporation, supra at 104S. Even at 
present it is difficult enough, as a result of the complexity 
and cost of Title VII litigation, for individuals with Title 
VII claims to find competent counsel.

12/ The United States Steel Corporation plant has approx­imately 12,000 workers compared to approximately 4,000 workers 
at the Gadsden plant of Republic Steel. United States v. United 
States Steel Corporation, supra at 1050.
13/ Counsel for plaintiffs would anticipate that the trial 
in this action would be less lengthy because of the principles 
of law established in United States Steel Corporation, and 
this Court1s recent decisions in Title VII. E.g., Pettway 
v. American Cast Iron Pipe Company, supra.

-10-



The courts of this Circuit have previously 
found that competent lawyers are not eager 
to enter the fray in behalf of a person who 
is seeking redress under Title VII. This 
is true even though provision is made for 
payment of attorneys1 fees in the event of 
success. In the case of Patete v. Consolidated 
Freight Wavs. 313 F.Supp. 1271 (D.C.N.D. Tex.1970), the court found that further complicat­
ing plaintiff's problem has been the reluctance 
of the attorneys she has approached to under­
take the specific and complex challenges of a 
Title VII lawsuit which are not common to 
more frequently litigated areas of the lav/.

(citations omitted) Kessler v. EEOC, 472 F.2d 1147, 1152
4

(5th Cir. 1973) (en banc) cert. denied 412 U.S. 939 (1973).
If the Court was to reverse the district court by ruling 
that the appellants may intervene as a right, then inter­
vention by one or more individuals, most probably as class 
representatives, would be a prospect in almost all Title 
VII actions.

'Additional parties always take additional 
time. They are the source of additional 
questions, objections, briefs, arguments, 
motions and the like which tend to make the 
proceeding a Donnybrook Fair.'

Stadin v. Union Electric Company, 309 F.2d 912, 920 (3rd
Cir. 1962).

In Title VII actions there are additional problems, 
other than those occurring in other litigation, which would 
be caused by intervention. Counsel for plaintiffs typically 
handle Title VII actions on a contingency fee

-11-



basis: if the plaintiffs prevail, attorneys' fees are gen­
ii/erally awarded. Intervention would mean, since litigation 

would of necessity become more complex and prolonged, that 
attorneys, if they take Title VII actions, would have to 
expend even more time without, possibly, receiving compen­
sation. Moreover, while the intervention may result in sub­
stantially increased litigation costs, including attorneys' 
fees, it will be, as a practical matter, difficult to recover
attorneys' fees or costs from white-workers who intervene.

* Finally, it should be noted that the addition of a 
party through intervention, who does not have any liability

15/under Title VII, will make the resolution of Title VII suits
16/through negotiation and settlement extremely difficult.

Cf. Pettway v. American Cast Iron Pipe Company, supra at 258.

14/ See Clark v. American Marine Corp., 320 F.Supp. 709 
(E.D. La. 1970) aff'd 437 F.2d 959 (5th Cir. 1971).
15/ Title VII applies to "employers", "labor organiza­
tions", "employment agencies" and "joint labor management 
committees". 42 U.S.C. §2000e-2.
16/ Of course, white workers since they are not parties 
to a consent decree would in no way be bound by the decree. 
Moreover, district courts might well determine that white 
workers should be able to present their objections to any 
consent degree at a hearing in manner similar to members of 
a class represented by plaintiffs. Cf_. Gabriel y. Standard 
Fruit & S.S. Co., 448 F.2d 724 (5th Cir. 1971).

-12-



• J  •

B. The District Court Appropriately Denied 
Intervention as of Right Because the 
Legitimate Interests of the Intervenors, 
e.g., to a Fair Seniority System Which 
Provides for Plant Efficiency and Safety,
Are Adequately Represented by The Union 
Defendants.

The intervenors-appellants argue that the plaintiffs 
do not represent their interest. Plaintiffs agree. As the 
district court noted the plaintiffs' class includes black 
employees and the intervenors' puported class contains white 
employees. (Is). The district court did not, as 
appellants infer, state otherwise; the lower court simply 
o bserved that the plaintiffs and the other parties had 
raised the questions of appropriate relief, plant seniority, 
or job skipping, etc., which the intervenors raise in their 
Complaint. (2s-3s) Moreover, the court stated that

"[s]uc'h problems were investigated and con­
sidered through the existing parties prior 
to entry of the preliminary injunction, and 
no doubt will be likewise actively raised and 
presented by such parties to the court prior 
to final relief. " Id.

Moreover, the interests of the intervenors are clearly 
adequately represented by the Union defendants. The inter­
venors are members of defendant Unions, Local Union 2176 
of the United Steelworkers of America, and the United Steel­
workers of America. (Memorandum In Support of Motion to 
Intervene, 42a ). The class of white workers whom intervenors 
purport to represent are within the bargaining unit repre-

-13-



sentted by the defendant Unions. The Union defendants have 
the clear duty under the National Labor Relations Act, 29 
U.S.C. §§151 et seq., to fairly and impartially represent 
the employees of their bargaining unit, in which the inter- 
venors work. Humphrey v. Moore, 375 U.S. 335 (1964).

It is a settled and logical principle that "if there 
i s a party [as the Unions are herein] charged by law with 
representing his [the movant intervenor] interest, then a 
compelling showing should be required to demonstrate why his 
representation is not adequate". Wright and Miller, 7A 
Federal Practice and Procedure, §1909, p. 524; Horton v.
Lawrence County Bd. of Education, 425 F.2d 735 (5th Cir. 1970); 
Martin v. Kalvar Corporation, 411 F.2d 552, 553 (5th Cir. 1969). 
The defendant Unions not only are charged by law with fairly 
representing the interests of the intervenors, but the in- 
tervenors purported class comprises an overwhelming majority

17/of the membership of Local 2176. Furthermore, to allow
members of union defendants to intervene as of right and with-

18/
out a showing of compelling circumstances, in Title VII

17/ Of the 2,986 employees in the bargaining unit of Local 
2176 in December, 1970, 2,462 or 83% were white. Republic Steel's Answers Nos. 1 and 2 to Plaintiffs Interrogatories.
18/ No showing, that the Union defendants have not cham­
pioned the interests of white workers, much less a compelling 
one, has been made.

14-



actions, in order to permit the intervenors to advance 
positions on seniority provisions in the collective bar­
gaining agreement other than the position adopted by the 
union defendants would contravene the National labor policy 
designed to establish a single representative.

National labor policy has been built on the 
premise that by pooling their economic 
strength and acting through a labor organ­
ization freely chosen by the majority, the 
employees of an appropriate unit have the 
most effective means of bargaining. . . .
The policy therefore extinguishes the indi­
vidual employee1s power to order his own 

, relations with his employer and creates a
power vested in the chosen representative 
to act in the interests of all employees.

Thus only the union may contract the 
employee's terms and conditions of employ­
ment, and provisions for processing his 
grievances; the union may even bargain away 
his right to strike during the contract term, 
and his right to refuse to cross a lawful 
picket line.

(Footnotes omitted) NLRB v. Allis-Chalmers Mfg. Co., 338 U.S. 
175, 180 (1967).

18/ [Cont'd.]
In fact, the Steelworkers have been continuously 

found to have too vigorously pushed the interests of white 
workers. United States v. H.K. Porter, 491 F.2d 1105 (5th 
Cir. 1974); United States v. Bethlehem Steel Corporation,
446 F.2d 652 (2nd Cir. 1971); Bush v. Lone Star Steel 
Corporation, 373 F.Supp. 526 (E.D. Tex. 1974); United States 
v. United States Corporation, supra; Taylor v. Armco Steel 
Company. 8 EPD *1(9550 (S.D. Tex. 1973); In the Matter of
D&thlehem Steel Corporation, Decision of the Secretary of 
Labor, Docket No. 102-68, January 15, 1973, EPD 5(5128.

15-



1 J  -

This Court has recently made clear in a similar 
situation that there was no per se rule that because white 
workers will be affected by a change in the seniority system 
that they should then be added as parties. English v.

19/Seaboard Coast Line Railroad Co., 465 F.2d 43, 46-47 (1971)
( 3 s  ). The Fifth Circuit did not reverse the district
court's order for joinder in English because

In such litigation the District Court 
may well regard invididual white represen­
tation as insurance that the ultimate goal 
of terminating discrimination is accomplished 

. in the most equitable and least disruptive
manner possible. When an experienced Trial 
Judge reaches such a conclusion we cannot disregard it in the absence of compelling 
and pervasive justification, particularly 
in light of the Court's traditional broad 
discretion to order joinder under Rule 19.

Id. at 47. Of course, in this case the district court reached
the opposite conclusion from the district court judge in
English, and similarly his conclusion should not be overruled
absent a demonstration of a clear abuse of discretion.

20/See Section C, infra.

19/ The English case concerned joinder pursuant to Rule 19, 
FRCP. However, Rules 19 and 24 are directly and purposefully 
related. Atlantic Development Corporation v. United States,
379 F.2d 818, 825 (5th Cir. 1967).
20/ Courts have routinely found that union defendants ade­
quately represent the interests of white workers and denied 
motions to join white workers as parties. Bowe v. Colgate- 
Palmolive Company, 416 F.2d 711, 719 n .8 (7th Cir. 1969);
Waters v. Wisconsin Steel Works of International Harvester,
427 F.2d 476/ 489 n.ll (7th Cir. 1970); Sagers v. Yellow 
Freight Systems, Inc., 5 EPD *(17992 (N.D. Ga. 1972); Eaton
v. Courteaulds North America, Inc., 5 EPD 5(8032 (S.D. Ala. 1972)

16-



C. The District Court Properly Exercised ItsDiscretion In Denying Permissive Intervention 
Pursuant to Rule 24(b), FRCP

The intervener's lack of a legally protectable interest 
or claim, the adequate representation of any legally cog­
nizable claims that they may have by the union defendants, 
and the very real possibility of prejudice and delay to the 
plaintiffs if intervention is allowed, which factors have 
been fully discussed in sections A and B, supra, are all 
appropriate grounds for the district court to exercise its 
discretion to deny intervention. ( 2s~3s)
Since there was clearly no abuse of discretion by the district

21/court, the Court should affirm the denial of intervention. 
Horton v. Lawrence County Bd. of Education, supra at 736;

20/ [Cont'd.]
Similarly, this Court has regularly held that school 

boards adequately represent the interests of white intervenors. 
St. Helena Parish County School Bd. v. Hall, 287 F.2d 376 
(1961) cert, denied 368 U.S. 380 (1961); Stell v. Savannah-
Chatham County Bd. of Education, 333 F.2d 55, 60 (1964);
Bennett v. Madison County Bd. of Educ., 437 F.2d 554 (5th Cir. 
1970) see United States v. Bd. of Sch. Corns., Indianapolis, 
Indiana, 465 F.2d 573, 575 (7th Cir. 1972) cert, denied _ sub 
nom. Citizens of Indianapolis for Quality Schools v. United 
States, 410 U.S. 909 (1973).
21/ The district court has full discretion to deny per­
missive intervention even if the requirements of Rule 24(b), 
FRCP are satisfied. Wright and Miller, 7A Federal Practice 
and Procedures §1913, p. 55 1.

-17-



Lipsett v. United States. 359 F.2d 956, (2nd Cir.
2 2/

1966).

D. The Motion to Intervene Insofar As It IsIntended to Alter the Preliminary Injunction 
Is Untimely

The district court carefully delineated the adverse
effects that might result from a belated attempt to alter the

23/
preliminary injunction. (Docket No. 12, Order 2) The lower 
court essentially ordered that promotional decisions and 
decisions for reductions-in-force be based on plant seniority. 
This preliminary injunction altered the employment rules at 
the plant and had to create a certain confusion and "attendant 
trauma upon that industrial community" . (Id.. ) Because of the
possible creation of further confusion, trauma and difficulty, 
the lower court, apart from the reasons enumerated in Sections 
A-C, supra, ruled that it was untimely to allow intervention, 
four months after the issuance of the injunction and after 
the seniority charges had taken effect, with full notice to

22/ "[T]he denial of intervention is not an abuse of dis­
cretion if there is any possibility of trial confusion, 
even though there is a well-defined issue common to all 
claims". Lipsett. v. United States, supra at 959-60.
23/ The motion to intervene was filed three months after
the preliminary injunction was entered. Of course, the 
parties to the lawsuit could not, three months later, since notice of appeal must be filed within thirty days, have 
decided to appeal the entrance of the preliminary injunction.

-18



the intervenors and the class they purport to represent, 
which was directed to altering the basic nature of the re­
vised seniority system. Id.

The determination of "timeliness" is addressed to
24/the sound discretion of the district court.

'Timeliness' is not a word of exactitude 
or of precisely measurable dimensions.
The requirement of timeliness must have 
accommodating flexibility toward both the 
court and the litigants if it is to be 
successfully employed to regulate inter­
vention in the interests of justice.

McDonald v. E.J. Lavine Co., 430 F.2d 1065, 1074 (5th Cir.
1970).

The district court for good reason exercised its dis­
cretion to deny the intervention as untimely insofar as it wa 
directed to altering the preliminary injunction and accord­
ingly this Court should affirm.

24/ Although a different standard may well apply to 
interventions as of right as compared to intervention by 
permission, Diaz v. Southern Drilling Corp., supra at 1126.



C O N C L U S I O N

For the above stated reasons the plaintiffs-appellants 
respectfully pray this Court fo affirm the district court's 
denial of intervention.

Respectfully submitted,

OSCAR W. 7-̂ DAMS 
U.W. CLEMON 
CARYL PRIVETTSuite 1.600 - 2121 Building 

2121 Eighth Avenue North Birmingham, Alabama 32503

JACK GREENBERG 
BARRY' L. GOLDSTEIN 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs



CERTIFICATE OF SERVICE

I hereby certify that on the 1.9th day of March, 1975,
I served two copies of the foregoing BRIEF FOR PLAINTIFFS- 
APPELLEES upon Matt Shade, Esq., Shade & McDonald, 6400 
Powers Ferry Road, Suite 360, Atlanta, Georgia 30330;
James R. Forman, Jr., Esq., Thomas, Taliaferro, Forman, Burr 
& Murray, 1600 Bank for Savings Building, Birmingham, Alabama 
35203; Jerome A. Cooper, Esq., Cooper, Mitch & Crawrord, 409 
North 21st. Street, Birmingham, Alabama 35203 by depositing 
a copy of same in the United States mail, adequate postage 
prepaid.

H JL

Attorney'1 for Plaintiffs-Appellees



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