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INDEX

Page

I. Waiver of Injunctive Relief .............
II. Waiver of Prospective Back Pay Claims ...

III. Waiver of Accrued Back Pay Claims ......
IV. Injunctive Provisions Against Government 

Agencies ...............................
V. Sections C .................■. . .............

VX. EEOC Conciliation Activities ............
VII. Responsibilities of the Office of Federal 
. Contract Compliance and the Secretary

of Labor ...............................
VIII. Judicial Supervision ................. .

IX. Approval of the Decrees Without Prior
Notice ..... ...........................

X. Unresolved Questions Regarding the
Meaning of the Decrees ...............

2

3
5

11
14
16

18 
2 0

22

24



TABLE CF AUTMORITTES

CASES

Page

Alexander v. Gairclner~Denver Company, o9 .u. Ed. 
2d 147 (1974) ...............................

American Home Improvement Co. v. Maelver, 105 
N. H. 435, 201 A.2d 886 (1964) ............

Eracey v. Luray, ].61 P’.2d 128 (4th Ciy. 1947)
Broolclyn Savings Bank v. O'Neil, 324 U.S. 697 

(1945) .......................................
Franks v. Bowm.an Transportation Company, 495 

F.2d 398 (5th Cir. 1974) ................ .
United States v. Trucking Employees, Inc,

United States v. United States Steel Corp., 
(civ. No. 70“906, N.TH Alci.) ,..o,

United States v. Georgia Pov7er, 474 F . 2d 906 
(5th Cir . 1973) ..... ........ ..............

Urbino v. Puerto Rico R.R. Co., 164 F.2d
(1st Cir. 1947) .............................

Vermont v. New York, 41 L. Ed. 2d 61 (19/4) ..
VJilliamson v. Betlilehcm Steel Corp., 468 F.2d 

1201 (2d Cir. 1972), cert. den. 411 U„S.
973 (1973) ................ .................

5, 6

10
6

20 

3, 4 

2 , 20
6
11

15

-a 1-



STATUTES AND REGUIATIOi<!S

Page

42 UoSoC. § 2000e-5(b) ...............
42 U.S .C. § 2000e-5 (f) (.1) ...........

Fair Labor Standards Act ............

OTHER /auth o r i t i e s

Executive Order 11246 ..............
Uniform Commex'cial Code, § .-̂ -303 (x)

CASES

Corbin on Contracts, § 128 .........

14, 17

6, 7, 8

18, 19 
10

10

-111-



IN THE UNITED STATES COUNT OF APPEALS 
FOR THE FIP'TH CIRCUIT 

NO. 74-305G

UNITED STATES OF AMERIGfi, et al.,

Plaintiffs-Appellees,
- vs -

ALLFGHENY-LUPLUM INDUSTRIES, et al.,
Defendants-Appellees,

SIDNEY HARRIS, e t a1.,

Intervenors-Appellants

On Appeal From The United States District court 
For Tne Northern District of Alabama

REPLY BRIEF FOR INTERVENORS-APPELLANT'

Interveners submit this brief in reply to the briefs on 
behalf of the Defendant-^Yppellee Companies (hereinafter cited as 
"Companies' Brief"), the Union Defendant-Appellee (hereinafter 
cited as "union Brief") and the United States, et al. as Plaintiffs- 
/vppellces (hereinafter cited as "Government Brief"). This brief
is divided into sections corresponding to the issues raised by 
Appellees.



UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 74-3056

UNITED ST7VTES OF AMERICA, et al..
Plaintiffs-Appellees.

V  .

/ALLEGHENY—LUDLUM INDUSTRIES, st al. ,
Def endants-Appell.ees ,

SIDNEY HAiRRIS et al.,
3 nterve^lors-Appell^:nti

On Appeal From Th.e United States District Court 
For The Northern District of Alabama

REPLY BRIEF FOR INTERVEEORS-APPELLANTS

JACK GREENBERG 
JAMES M. NABRIT, III 
BAFiRY GOLDSTEIN 
MORRIS u . BALIjIjR 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER

10 Columbus Circle 
Suite 2030
New York, New Y'ork 10019 

Counsel for Intervenors-Appellants



I, Waiver of Injunctive Relief
Still unresolved is whether the District Court approved 

any waiver of injunctive relief, or understood the Decrees to 
require such a waiver. The arguments in the brief of the United 
States deal solely with the propriety of a waiver of accrued back 
pay. Government Brief, pp, 33-3B. Tlie companies assert that the 
District Court, in describing the waiver as a "back-pay" release , 
was using a "shorthand r.erm" for back pay and injvmctive relief, 
Com.panies ' Brief, p. 41. Nothing in the record suggests the 
District Court thought it was using shorthand.
’ The defendants, in supporting the validity of a waiver of 

any right to injunctive relief, rely primarily on the contention 
that the Decrees v/ill work and that additional injunctive relief 
will not be necessary. Union Brief, pp. 25-28; Companies' Brief, 
pp. 38-40. If the Decrees are as successful as the parties hops, 
the waivers will prove unnecessary. | The issue in this appeal is
what rights employees w’ill have if the Decrees fail to end dis­
crimination as quic'.kly as possible. | 'Djs critical difference be- 
tv/eeji the decrees in this case and that in United States v . 
United States Steel Corp., (Civ. No. 70-906, N.D. Ala.) is that 
in the United States SteeJ. case the employees retained the right
to seek additional or inconsistent relief if necessary. In the 
instant case jtlie propo^d re^ase, as construed by the defendants, 
would deny employoes not only that right, but even the right~~t.o 
enjoin violations of the Consent Decrees themselves, ^

2 -



Ko serious contention can, or appears to be made, that, the 
United States could not.settle a case such as tĥ .s without a 
waiver of an employee's right to seek injunctive relief. In the 
years prior to United States v. Georgia Pov.̂ er, 474 F.2d 906 (5th 
Cir. 1973), wliich established the Government's right to seek back 
pay, the United States regu.larly settled actions for injunctive
relief without the execution of any releases whatever. In Uni.tpd_
States V .  Trucic.inq Emnloyees,_Iiip. , (No. 74—153, D.D.C.), the
Department of Justice and EEOC settled a nationwide Title Vil 
case against the trucking industry, obtaining both injunctive 
and Bionetary relief. Tlie release agreed to by the defendant 
emplov'ers in that case i.s limited to a waiver of accrued back pay
claims; no waiver of rights to seek injunctive relief is involved.^

11' Waiver of__ Prospective Back Pay Clarms
Vfnile the precise meaning of the Decrees .remains unc.lear,

they may require a .release of back pay accruing afte_r_ the ej-fect.ive 
date of the release or of the execution of the waiver, .including 
back pay accruing because of the fut\are effects o.f past drs- 
crim.ination (1) where the Decrees enable a)i employee to reach hxs 
rightful place as quickly as possible but not at once, v2) where 
the Decrees prove unsuccessful and do not enable an employee to 
reach his rightful place as quickly as possible, or (3) v;here an 
employee does not reach liis rightful place as quickly as possible 
because the Decrees are violated. The arguments in the brief of 
the United States appear to deal solely with the propriety of a

- 3



v.'aiver of back pay already accrued. Government Brief, pp. 33-38. 
The Union assumes the release wil], cover the first variety of 
future back pay. Union Brief, pp. 23-32. None of the parties 
suggest whether the second or third types of waiver may be in­
volved.

The union defends a prospective waiver of back pay claims 
on the assumption that minority employees will in fact reach their 
"rightful place" as soori as possible. But the danger of , such a 
prospective v/aiver is precisely that it removes the primary 

incentive —  that of potential back pay .liability —  which wcu3.d 
encourage the defendants to comply v̂ îth the Decrees and to assure 
that they work. I.!: a prospective waiver is upheld, the companies, 
union, and white^ em.ployees v/ill have nothing to lose, and every­
thing to gain, by postponing as long as possible the day v.'hen 
minority em^ployees obtain the jobs to v/hich they are entitled and 
white employees no longer enjoy the benefits of preferential
treatment. \____ __________

No serious contention can, or apx^ears to, be made that the 
United States co-aid not settle a case such as this wi.thout a 
prospective waiver of back pay rights. In United States v .
Trucking Employers, Inc. (No. 74 — 3.53, D.D.C.) the Government 
settled a pattern or practice action much lijce this one. Although 
the consent decree in that case does contemplate a waiver, L3iat 
v/aiver, according to tlie Department of vJustice and E.E.O.C., 
will only cover back pay which accrued before the effective date of 
the decree. No reason appears v;hy such an arrangement could not 
have been agreed upon in this or oU-ier cases.



III. Waiver of Accrued Back Pay
Each of the appelleer. grounds its argument in support of 

the validity of a waiver of bach pay on the policy of Title VII 
favoring conciliation. Government Brief, p. 31; Union Brief, 
p. IG; Companies’ Brief, pp. 13-33. Appellees suggest the goal of 
Title VII is the settlement of all discrimination charges, re­
gardless of whether the discriminatory practice is actually 
remedied. This argument misconceives the nature of the jrelevant 
statutory policy.

Title VII favors the use of conciliation, instead of un-- 
necessary litigation, to obtain relief v/hich in fact fully repiedies 
any violation of the law. Section 70G(b), 42 U.S.C, §2000e-5(b).

If the Commission determiir.es after such 
investigation that the charge is true, the 
Commission shall endeavor to eliminate any 
such unlawful emi'jloyment practrcc by rnforuial 
methods of conference, conciliation, and 
persuasion.

(Emphasis added) . Si.mrlarly in Alexander v. Cardner-Uenver
company, 39 L.Ed.2d 147 (1974), the Suprem.e Court explained

Congress enacted Title VII of the Civil Rights 
Act of 1964, 42 U.S.C. §§2C00e et: seq. , to 
eissure equaiJ.ty of employraerit opportunities 
by elimLin^lting those practices and devices that 
discriminate on the basis of race, color, re­
ligion, sex, or nacional origin. . . .
cooperation and voluntary compliance were selected 
as tlie preferred means for achieving this goa]..

39 L.Ed.2d at 155-156 (Emphasis added).
The "persuasion" efforts contemplated by the statute are 

not, as here, efforts to persuade an employee to drop his charge

- 5 -



or to accept a less than complete remedy, but to persuade the 
employer to obey the lav; and to fully redress past violations.

In view of the ovexd.apping remedies created by Congress,
the most efficacious method of rem.edying past discrimination may
involve cumulating past partial relief in several forums.
Compromise v/ithin any one forum would be proper so long as it did
not impinge on the availability of other independent forums. See
Interveners' Brief, pp. 22-30. Appellees rely heavily on certain
dictum in Alexander that an employee's right to pursue a Title _ . .. ^
VII action might under certain circumstances be waived.
Government Brief, p. 30, Onion Brief,, pp. 23-24; Companies'. Brief 
pp. 4]-42. But the dictum relied on does not appear to laean 
more than that an eraployec, in the context of a pending private 
Title VII action, may waiver his right to pursue that action in 
return for a partial settlement, so long as other remedies are not 
impaired. Similarly, in the cases on which appellees rely 
sanctioning waivers under the Fair Labor Standrjrds 7iCt, tlie em­
ployees only compromised their claims in the context of a private 
civil action and actually received 100% of the bach pay to v.hich 
they were entitled. See Urbd.no v . Puerto Rico R.R. Co., 164 
F.2d 12 (1st Cir. 1947); Bracey v. Luray, 161 F.2d 128 (4th Cir. 
1947) .

The appellees also assert that the Government could not 
negotiate settlements of its own litigation unless, as a condition

1/ The language relied on is dictum, not only in the sense that 
it was unnecesaary to tlie decision in 7\lexnnder itself, but also 
because it involved a question which v;as not briefed or argued 
by any of the parties in the Supreme Court.

-  6 -



V

of receiving benefits under the settlement, employees were re­
quired to abandon their Title VII rights. There is nothing in the 
record in this case to support that sv/eeping contention. The 
Government presented no evidence, in the form of records, expert 
testimony, or otherwise, indicating that pattern and practice 
suits could not be settled without siich releases. 'ifhis is clearly 
a contested question of fact not decided in the District Court, emd 
cannot be resolved on the basis of assertions in appellate briefs, 
n fact both the Government and private litigants have in the past

settled emplo^/ment discrimination litigation, inclv;ding settle-
ments with bach pay, v^ithbut provldihg "for any releases, and in
some cases where the settlem.ent authorized releases the defendants
have declined to actually require sue:h. releases. Moreove]?,
Intervenors suggest that, if the Department of Justice be]ievos 
it will not be able to settle these suits Vv’ithiout requi.ring v/aivers 
v,hich abolish employees' independent private remedies, the 
Department should make that argument, not to the cou’rts, but to 
Congress v^hich Jrirst establislted those independent remedies.

In the analogovis area of claims for minimumL wages under the 
Fair Labor Standards Act, the Departiaent of Labor has settled tens 
of thousands of cases invoJving back pay Vv-itliout requiring an 
employee to execute a release in ret\irn for the back pay obtained 
by the Government. The Department of Labor explained its position 
in an amicus brief in Drooklyn Savings Bank v. O'Neil, 324 U.S.
697 (1945).

The Administrator has disi^osed of thousands 
of cases of violation, v/ith and without litiga­
tion, on the basis of restitution of the unpaid

- 7 -



v/ages alone. This occurs in the course of 
investigations, in which violations are dis­
covered, and also in the negotiation of 
consent decrees. Often as a practical matter 
the employer 'will agree to restitution of the 
base liability, but not the liquidated damages.
The Administrator cannot compel the payment 
of the latter, and there is a good chance that 
the employees, or many of them, will never 
assert their ri.ghts them.selves. The collection 
of the base liabi].ity, even though it may not 
fully reimburse the employees, is in their 
interest and in conformity v/ith the ptirposes of 
the Act.

In disposing of cases on this basis the 
Administivitor informs employees that the re­
stitution is v/ithout prejudice to the employees' 
rights to liquidated damages under Section 
16(b). Indeed, where the employer insists upon 
a release from the employees, instead of the 
usual form.a], recei.pt (printed on page 3.8 of 

. Petitioner's bri.ef in No, 4a 5) , the v;age and
Hour Division informs the employer that it does 
not approve or recognize the substitute form.
The A.drnini stra tor is th\is euccremely careful
v\ y—\ 4— -v-> » ■» ***''̂*' I ■ - 1 -» y~- .-S-I T y-«. f-

li.quidated damages; he properly recognizes 
tiiat'hehas nc' authority to enforce or to fore­
close sucli rights.

Brief of tiie United States in No. 445, Cctober Term, 1944, pp. 17-18. 
If the Government was able to settle cast;s under the Fair Labor- 
Standards Act v/ithout requiring waivers, there is no reasen to 
believe the Government could not settle employment discrimination 
cases if siicli waivc;rs were not permitted.

Appellees urge that this Court adopt a blanket rule approv­
ing, as consistent with public policy, all waivers of back pay 
claims. ̂ ^Public policy, however, precludes this Court—£^om 
ioning a scheirte whereby minority employ'ees cv.'ed $5, 000 or $10,000
in back pay would receive only $2 50. ySuch an arrangement v/ould 
fall tragically short of effectuating tdie purposes of Title VII

8



and would reduce the deterrent effect in future cases of the 
possib-Uity of bach pay liability. Title VII could be rendered 
nugatory if an employer could insulate hiiTiself from back pay 
liability by periodically offering his employees a fev/ dollars 
in return for a waiver of their accrued back pay rights. 
Resolution of Title VII claims in the courts, or under the 
auspices of the E.E.O.C., would quickly be replaced by wholesale

___ ■ —  -- ■ --- f -
'Nullification of those claims by employers v/ho chose to buy
uo the rights of thexr emproyecs. Êven in the contevi.t oT tho^ in 
stant Consent Decrees, the parties ask that the releases î e 
validar.ed v/ithout any evidentiary hearing as to whether the back 
pay provided by the Decvecs bears any reasonable relation to the
amount of back pay actually owed.

Xf n choice must be made bet\/een the Appellees proposal, 
that all v/aivers c")! back pay are valid regardless of the amounts 
involved, aid the Intervanors proposal, that no such waivers are 
valid, the latter alternative is clearly to be preferred.
Defendanl's in pattern or practice surts v.o .Ij. not insist on re­
leases as part of any se;ttleR;ent i.f, as a matter of law, such re- 
eases are not available. In such a situation an employer anr.ious 
to avoid J.i.tigation v/i.ll seek to do so, not by baying up the rights 
of his employees, but by a back pay settlement so sulistantial that 
employees will have little to gain by suing for more, and by in­
junctive relief so effective that employees will in fact be sat­
isfied with their jobs and disinclined to pursue litigation.

In the til‘cernative, the Court might adopt an intermedia i.e 
position upholding releases only where the back pay actually

_ 9



is sufficient to do "substantial justice" under an employee's 
particular circiainstances. A waiver and settlement which failed 
to do substantial justice v/ould be invalid as a species of 
unconscionable contract. See Corbin on Contracts, §128;
Uniform Conmercial Code, §2-303(1); /vnerican Home Improvement 
Co. V. Maelver, 105 N. H. 435, 201 A.2d 886 (1964). The factors
bearing on whether the settlement worked substantial justice, 
and thus effectuated the policies of Title VII, would include (a) 
v/hat portion the back pay settlement v/as of the total back pay 
to which an employee was in fact entitled, (b) the size of the 
differeiice, in do].lars, between the settlement: figure and the actual 
back pay owed and (c) the magnitude of that difference in com­
parison with the employee's salary. Each case v/culd turn on its 
Tiarticular facts, but .such a rule would distinquish bettcecn a re­
lease in return for a $100 settlement of a $5,000 claim, which, 
would be unconscionable and invalid, and a release in return for 
a $4,500 settlement of a $5,000 claim, which would be valid.
In a case su.ch as thi.s t}->e District Court would not be required to 
decide in advance, for each of 60,000 employees, whether the 
settlement and release worked substantial justi.ee; that question 
could be deferred for resolution if acid v.lien an employee aoug'nt 
to challenge, in an appropriate local federal court, tiie vali.dity 
of a release executed by h.lmself and others similarly sitvuated.

-  10 -



Interveners suggested in their initial brief that

the Drstrrct Court lacked either the jurisdiction or the

power to incorporate in the Decrees the directive of

section C, .̂requiring the United States to take a position

xn cerraxn pendxng private actions. iTitervenors' Brief,
-— --  1

pp. 42-44. The same considerations apply to section 19 

of Decree I regulating EEOC conciliation procedures, 

section 16 of Decree I and section C regulating the O.F.C.C,
3.ncl or*r** hr'r*\T r j ,i i. * .■' ■“ .. ' ' jr’-1-ovj.oj.ons oi- tne Decrees
restricting the power of 3-.E.0.C. to commence privcrtTlitl^ 

gation. Inasmuch as there are no considerations of law 

or concen.vable facts which v/ould require the award of such 

provisions in a contested proceeding, it was inappropriate 

for the District Court to establish these requirements in 
a formal court order binding on the Secretaxy of Labor, 

Department of Justice, O.F.C.C. and E.E.O.C, and enforce­
able against them> by a contempt proceeding.

Although these provisions are somewhat unprecedented, 

a similar situation arose in Vermont v. I^w_ynT:Vy 41 L.Ed.2d 

61 (1974). In that case, an original action in the Supreme

11-



Court between two states regarding interstate boundaries, 

the parties readied a settlement after the case was filed. 

The parties, having arrived at an agreement, asked the 

Supreme Court to approve a decree embodying that settle­

ment and to appoint a South Lake Master to supervise the 

implementation of the decree over a period of years.

Under the proposal the Master v;ould refer to the Supreme 

Court any disputes arising under the decree. The Supreme 

Court, per curiam, refused to enter the decree or appoint 

the Master, reasoning that sudi action wou.ld require the 

Court to endov7 with the force of law, and thereafter inter­

pret and enforce, a pri.vate agreement v/hose provisions were 

not compelled or sanctioned by any statut.e or common law.

In the instant case no findings of 
fact have been made; nor has any ruling 
been r'esolvcd concerning either equitable 
apportionment of the v/atcr involved or 
the questions relative to whether New 
York and international are responsible 
for the creation of a public nuisance 
as alleged by Vermont.

T'ne proposed South Lake Master would 
police the execution of the settlement 
set forth in the decree rind pass on to 
this Court his proposed resolution of 
contested issues tliat the future might 
bring forth. Such a procedure v;ould ma- 
terial.iy change the function of the Court 
in these interstate contests. Insofar as 
v/e would be supervising the execution of 
the consent decree, wo would be acting 
more in an arbi.tral rather than a judicial

- 12-



manner. Our original jurisdiction here­
tofore has been deemed to extend to 
adjudications of controversies between 
States according to principles of law, 
some dra\\Ti from the international field, 
some expressing a “common law" forraulated 
over the decades by this Court.

The proposals submitted by the South 
Lake Master to this Court might be pro­
posals having no relation to law. Like 
the present decree they might be mere 
settlements by the parties acting under 
compulsions and motives that have no refla­
tion to perform.ance of our Article i n  
functions. /article III speaks of the 
"judicial power" of this Court, v;hich em­
braces application of principles of lav7 or 

, equity to facts, distilled by hearings or
by 3 tipvilations. Notliing in the proposed 
decx'ee nor in the mandate to be given the 
South Lake Master speaks in terms of 
"judicial pov/er." 41 L.Ed.2d at 66.

In the instant case the Decrees contain a variety of orders 

directed eigainst the plaintiff, none of them within the 

power of the District Court to enter in a contested proceed­

ing. The judici^\l pov/cr of th.e federal courts exists to 

resolve cases or controversies on the basis of relevant 

lav7s and facts, not sanction or enforce rules having no 

relation to law but desired by private litigants. To the 

extent that the Consent Decrees purport to regulate the 

conduct of the United States or its agencies, they are be­

yond the power of the District Court.

-13-



V . Sections C
Intervenors noted in their initial brief that the pro­

blems regarding Sections C, as many other provisions of the 
Decrees, v̂ 7ere aggravated by the failure of the District 
Court to spell out precisely what it construed the Decrees to 
mean. Intervenors' Brief, pp. 41-42. That difficulty is 
well illustrated by the briefs of the c;ppellees.

The government appears to construe Sections C to require 
it to urge, in other courts where additional or inconsistent 
systemic relief is sought, that litigation in that forum be
postponed to accord "a fair opportunity" for the system set 
up by the Decree to consider the proposed now relief and 
cittempt to remedv the plaintiff s' qrievance. Government Brief.
p. 26 Section 706 (f) (1) , 42 U.S.C. § 2000e-5(f) (1) , expressly 
authorizes such postponements to allow "further efforts to the 
Commission to obtain voluntary compliance." Section 706 (f) (1) 
also places an absolute limit on such postponements of "not 
more than sixty days." So long as the goverxim.ent does xiot 
advocate a delay .in excess of this statutory m^iximum it would
not be urging the court to violate the lav*/.

The defendsmt union a n d coiapani es c_onstrue Section C 
differently. They appear to bexlieve that the United States
is obligated, v/henever additional or inconsistent systemic 
relief is sought in a private action, to urge that that
action be dismissed on the merits and v/ith prejudice. Com­
panies' Brief, p. 34; Union Brief, p. 32. Intervenors contend, 
and the parties do not deny, that Congress directed

-14-



that private actions for injunctive relief must be heard on 
the merits and in the district court where the vj.olation 
occurred. See Williamson v. Bethlehem Steel Corp.. 468 F.2d 
1201 (2d Cir. 1972), cert. den. 411 U.S. 973 (.1973). The 
District Court in the instant case could not conceivably 
order the United States to urge that other courts disregard 
the express statutory cormnands of Congress.

The defendants clearly envision Sections C as a method 
of preventing an aggrieved employee from ever getting a hear­
ing before any judici.al forum. If Section C were upheld, 
and the United States successfully obstructed Title VII actions 
th,roughout the country, the oiily District Court v/hich could 
hear an aggrieved employee v.'ould be that for the Northern
*1 o +• V* * s-P AT a-T_______________ 1. 2 _ _

w A i w  V-J. C.O

are also united in their opposition to any such proceeding 
in the District Court belov/. IVlien, in the District Court, 
the National Orgeinization for V7omen and others souglit to 
j.ntervene to seek "additional or inconsistent relief," the 
companies and vinion vigoiOTisly op2:>osed such a motion. The 
union argued

By allowing the filing of this pro­
posed complaint, this Court would 
estexblish itself as a forum for ad­
judicating the extent to which viola­
tions have occurred in each of several 
hundred plants in the steel industry.
. . . Manifestly, there is no need
and no justification for allov/ing such 
an industry-wide trial.

Union's Response to Motions to Intervene, p. ].0. In the 
instant appeal, NOW seeks such additional or inconsistent

-15-



systemic relief, but the defendants urge that this is not an 
appropriate forun\ for such cJ.aims. Companies; Brief, pp. 58, 
60; Union Brief, pp. 4S"49, If an employee in Pittsburgh 
wants additional or inconsistent relief, the companies and 
union will oppose consideration of that relief in the Northern 
District of Alabama on the grounds that the matter should be 
resolved in the Western District of Pennsylvania, and the 
Government is obligated by Sections C to oppose relief in 
the V7estern Distrj.ct of Pennsylvania on the ground that the 
matter should be resolved in the Northern Dd.strict of Alabama. 
The District Court clearly erred in accepting Sections C and 
requiring the United States to participate, in this ingenious 
scheme to prevent an employee from ever obtaining a day in 
court.

VI. EEOC ConciJiation Activities
The parties ar)pea.r to be in disagreement as to why the 

EEOC agreed to refuse to conciliate ponding charges agai.nst 
the defendants alleging systemic racial discrimineation. The 
union Indicates it so agreed because the defendants hacl^told' 
the government they would adamantly refuse to make any con­
cessions in any such conciliation proceedings.^ Union Brief, 
pp. 3 7-3 8. The comp)^^nies argue that the government so agreed 
because it had gotten all the relief it v/anted and believed 
the violations "wholly re.rriediod. " Companies' Brief, pp. 2 3- 
24. The Coimaission indicates it agreed to there provisions 
because the Decrees constituted a "just .resolution" of the

-16-



problems, presumably less than the Government wanted but 
enough for a fair deal. Government Brief, p. 40. None of the 
parties contend the E.E.O.C. reviewed all or any of the pending com­
plaints to determine whether the Decrees would remedy systemic 
discrim.ination as it affected the complainant.

None of these reasons, or any others, would warrant the 
entry of Section 19 of Decree I, forbidding the EEOC to 
engage in conciliation. Title VII is explicit in reguiring 
the EEOC to attempt conciliation whenever the Commission con­
cludes "there is reasonable cause to believe that the charge 
[of discrimination] is true." In all such cases the Cora- 
mission "shall" attempt to resolve that grievance through 
conciliation. 42 U.S.C. § 2000e-5(b). The only circmastance 
in which the EEOC need not attempt coneilation is v/hon it 
finds there is no "reeisonsible cause to believe the charge is 
true," and in such a case the Comiaissicn is obligated to dis­
miss tl)e charge. In the instant case the EEOC undeni.eeibly 
believes that pc-:nding charges of systemic discrimiination are 
true; tliis action was brought precisely because of that 
belief. These fiicts establish an absolute legal obligation 
to attempt conciliation, an obligati.on which the EEOC cannot 
shirk and v/hich a District Court cannot abolish.

The companies and goveriiment contend it would be in app>ro- 
priate to require the Comnii ssi.on to cittcmpt conciliation where 
it thinks an adequate or just remedy has already been obtained. 
Government Brief, p. 41; Companies' Brief, pp. 23-24. The

- 17-



simple answer is that that is precisely what Congress, and 
the law, do require. The Commission's role in conciliation 
is not, as the parties'assume, merely to advocate whatever 
position the charging party desires. Congress contemplated 
that the Commission v/ould use its good effaces to try to 
bring the parties, through persuasion and negotiation, to 
agree on a remedy v/hich is satisfactory’’ to both employ^er and 
employee and which is sufficient to fully remedy any violation 
of the lawn That i.s precisely Vvhat the District Coiirt 
enjoined the EEOC from doing in this case with regard to 
charges of systemic discrimination within the scope of the 
Decree.

VII, Responsibi 1 itl_cĵ  _pf the Off ice of Federal Con—
TV̂ rr.-, I -i ::in rS S T~ 0 ,~-=l T O f  1 laDOl'

In ’their initial brief Interveners argued that the Con­
sent Decrees, insofar as they affected the Office of Federal 
Contract Compliance and the Secretary of Lc.bor, w^ere unlavo- 
ful for 4 reasons: (1) the Decrees under certain circumstances 
forbid the O.F.C.C. and contracting agencies from cancc_liIlfL

,._contracts wi.th the def endan ts on the ground of racial dis ~ 
crimination, (2) the stai’idard for reviewing the actions qf^ 
’the defendants is not whether they _a_̂ e__iii—Gompl.iance wxth_
Executive Order 11246, but whether they arc in compliance with
the Consent Decrees, (3) the final decision as to whether the 
defendant com.panies are in violation of the Executive Order 
is not in the hands of Secretary of Labor or his designee.

-18-



but the Audit and Review and Implementation Committees sub­
ject to judicial review, and (4) the defendants arc released 
from their obligation to provide the inforiaation required 
in Compliance Reviews, and neither the O.F.C.C., the Secretary 
of Labor or any designee is empowered to conduct the Compliance 
Reviews required by lav7. Interveners ‘ Brief, p p . 56-68.

Tlie companies urge at length that tlie Secretary of Labor 
could designate the government representative to the Audit 
and Review or Implementation Comiaittees as the federal officia.l 
responsible for carrying out the requirements of Executive 
Order 11246 and the Regulations thereunder. Union Companies'
9

Brief, pp. 26-28. But the problem is not that the Decrees 
change the federal official responsible for enforcing the
Executive Oirder and Regulations, but that the Decrees alter 
and severely limit the powers of any enforcing, offjcial to
insure compliaxTce with the Order and Regulations.
---- The-coitTpanies^and Government stress that certain aspects
of the Decrees, nvOtabJ.y those deai ing with affiarmative a.ction 
and goals, incorporate by reference existing O.F.C.C. standards, 
Companies' Brief, pp. 26-27. The defect in the Decrees, hovr- 

ever, is that othea: of its substantive provisions are not 
necessarily the seime as the Executive C>rder and Regulations 
and that the Decrees purport to abolish the enforcement pro­
cedures established by lav/.

- 19 -



VIII. Judicia], Supervision
The question posed by this aspect of the Decrees is 

whether the District Court erred in failing to require the 
filing of detailed periodic reports sufficient to permit it 
to determine whether the defendants were complying with the 
Decrees and whether the Decrees were proving successful in 
eradicating racial discrimination.

The same issue arose in Fr^mks v. EoxvTnan Transportation 
Company, 495 F.2d 398 (5th Cir. 1974), v/nere the district 
court granted certain injunctive relief but refused to require 
any reporting. This Court reversed :
’ Bovviaan maintained blatantly discriminatory

policies at legist until Septeiviber of 1971, 
over five years after the passage of Tit].e
VII. thait time it has moved some
distance tov.'ard complying v/ith Title VII‘s 
mandates, but only iinder pressure from 
government agencies and in the fare of 
threatened litigation . . . jih'.e districir
court should rctai.n jurisdiction of this 
(tas^ for at least tv/o years ahcT require ~ 
'peraoaic reports £fom~Bbv/iran which v/ill 
eaiablc it to ascerrarn thau~the remedial' 
measures' it mandates 5r_a~bcxng carrrecT'in" 
to effect.

450 F.2d at 421.
In United States vu United States Steel, on v/hich the

parties claim to have modeled the instant Decrees, detailed 
reporting was required to assure that the complex problems 
of discrimination in the steel industry were fully remedied. 
5 EPD Ti8619, pp. 782 0-21. The order in United S tates Steel 
required a detailed report on all present employees, includ­
ing their race, seniority, job title, line of progression.

-  20 -



and annual wages, as well as annual reports concerning (1) 
details of al] promotions, including identity of bidding 
employees and the race of the successful bidder (2) iden­
tities of and in format: ion regarding all "helpers" qualifying 
for special required training (3) identities of and info^nnatjon 
regarding employees given on-the-job training (4) identites 
of and information regarding employees bidding for and winning 
apprenticeships (S) identities of and inforniation regarding 
all parsons hired to clerical and technical positions (6) 
identities of and information regarding all. persons en.rolled 
in the management training program (7) identities of and in- 
fo.rmation rcg^lrding all pt-̂ rsons appointed to supervisory posi­
tions (8) current lists, v'itli race and background, of all 
superviso.ry personnel at general forraan level or below (9) 
detai.led i.nformaL'io.n conce.rning employees affected by reduc­
tions in force a.nd (10) detailed information regarding the 
use of the "rod circliug" provisions. None of. this info.rma- 
tion v/ill be provided to the District Court under the Consenc 
Decrees.

The defendants note that, pursuant to Audit and Reviev/ 
Committee Directj.ve No. 1, v/ritten records shall bo "made 
available" to the District Court of the actions of the Audit 
and P.eview Committee and the Implementation Committees, Union 
Brief, pp« 42-43; Couq^anies Brief, p. 53. This Directive 
does not, however, cure the defect in the Decrees. (1) To 
ascertain the effectiveness of the compliance with the Decireos,

-  21  -



the District Court needs detailed specific information 
on hiring, firing, promotions,' leiy-offs, red-circling, etc., 
by the defendants "records” covered by Directive 3?To. 1
contain none of thl:S information, but are merely minutes of
Committee meeti n g s ^ ^  (2) Control over the coxitents of these
records is completely in the haiids of the parties, and in the 
case of the Implementation Comraittees in the hand of the 
defendants, and they are free at any time to repeal the Direc­
tive itself (3) certain records v/ill be "supplied" to the 
Audit and Review Committee, but v/ill merely be "available" 
to the District Court if it wants them; the District Court, 
however, has not as]ced to be furnished with copies of there 
records or anv others.

IX. roval of Decrees Without Prior Notice
The Government and companies argue, in essence, tliat 

even if the Distric^t Court erred in approving the Consent 
Decrees Vvvithout prior notice to any interested parties, that 
question is nov/ moot because the DistricL Court did pormit the 
named intervenors to intervene aiid litigate their contentions 
regarding the lav/fulness of the Decrees. Government brief, 
pp. 24-25; Companies' Brief, p p . 54-56.

Wliile this is a correct description of the facts, it 
does not render this question moot. There are literailly 
thousands of minority steelworkers v4io were not provided with 
an opportunity to object to provisions of the Decrees. None 
of the employees with pexiding EEOC charges, and. none of the

-  22 -



Xjlaintiffs in private actions, were provided with advance 
notice as to the entry of the Decrees, How much these employees 
or their counsel now know about the Decrees is at best a 
matter of speculation, and certainly varies widely. Appellants 
intervened for the express purpose of assux'ing that all 
aggrieved employees, to the extent practicable, were given 
adequate notice and an opportunity to be neard prior to final 
approval of the Decrees. Appendix, pp. lOOa-lOla. That 
relief v/as not granted by the District Court, and as properly 
raised for review in this appeal.

-- 23 -



X . Unresol v e 0uestdons Regardj.ng the Meaning 
of tlie Decx'eos.

In their initial brief Intervenors noted that there 
was substantial uncertainty as to the meaning of the 
Consent Decrees, and, thus, as to the meaning of Judge 
Pointer's orders of May 20, 1974, and June 7, 1974, 
refusing to set aside the Decrees. Intervenors had thought 
that this situation might be clarified by the brief of the 
appellees, but that has not occurred. Since this, appeal is 
to review the dccis.ions of the District Cou.rt refusi.ng to 
set aside the Decrees, the significance and correctness of 
the District Court's orders of May 20, 1974, and June 7, ].974,
depends in large measure on what the District Court understood 
the Decrees to mean. The record in this regard is .less 
thaji clear, and cannot be clarified nunc pro tunc by statements 
of the axipellees on appeal .

For the convenience of the Court,Intervenors set out 
below the questions regarding the meeining of the Decrees wh.ich 
are not resolved by the decisions of the District Court.

(1) Does the release contemplated by Section 18(g) 
waive an employee's right to sue for additional 
or inconsistent injunct.ive relief if the Concent 
Decrees do not eliminate the continuing effects 
of past discrimination?

(2) Does the release cojitempiated by Section 18(g)

-24-



waive an employee's right to sue to enforce 
the Consent Decrees if the defandants fail 
to comply with their provisions?

(3) Does the release Cvontemplated by Section 18(g) 
waive an employee's right to sue for back pay 
or damages which m.ay arise in the future from 
continuing effects of past discrimination 
because, cilthougli minority employees reach their 
rightful place as quickly as possibly, they do 
not reach their rightful plr.ce at once?

(4) Does the release contemplated by Section 18(g) 
waive an employee's right to sue for back pay 
or damages vhich raay arise in the future from 
the continuing effects of past di.scrimination 
because the Consent Decrees do not enable 
minority employees to resxch their rightful place 
as quick.ly exs possible?

(5) Does the release contemplated by Section 18(g) 
waive an eirployee's right to sxxe for back pay 
or damages vhich nxay arise in the future from 
the continuing effects of past discrimination 
because the defendaiits did not comply with the 
Consent Decrees?

-25-



(6) Does Sections C require the United States 
to urge, v/hen an employee seei's additional 
or inconsistent injunctive relief, that the 
court in whicdi that relief is sought dismiss 
the action, or merely stay the action pending 
operation of the Decree mechanisms?

(7) If Sections C require the United States to 
merely advocate postponement, is the United 
States required to advocate a stay of only 
60 days, or to seek a stay of indefinite 
duration pending a fineil decision under the 
Decree mechanisms?

/ r-\ \ -T-.r* « _ .. I .’ ... .........ii

a court in which an employee seeks additional
or inconsistent relief stays or dismiss that 
action because of the Consent Decrees, v/ouid the 
employee be entitled to a hearing on the merits
of his c3-_aim in, the..Northern District of Alabama 
in the instant action?

(S) Do Sections C preclude the EEOC from seeking, in 
other civil actions against the defendants for 
past discrimination, (a) back pay or injunctive 
relief for any employee injured by a discrete.
non-systeraic act of discrimJ.nation, (b) back pay
for any minority employee hired since D.968 j

—26 —



(13) Do Section C and 17 limit the power 
of the U.F'.C.C, Secretary of Labor, or 
contracting agencies to cancel or refuse
to enter into contracts v;ith the defendants 
because of discrimination in employment?

(14) If the O.F.C.C. Secretary of Labor or 
contracting agencies retain the power to
so cctncel or refuse to enter into contracts 
with the defendants, (a) may they do so 
whenever they conclude there has been such 
unlawful discrimination, or only when the

«

Decrees are violated, and (b) is the decision 
as to v/hethcr there has been such discrimination 
or a vioJ.ation of the Decrees to be made by the 
Government, the Audit Review Committee, or the 
District Court?

In addition there arc several questions of fact, external 
to the meaning of the Decrees themselves, which may affect 
their validity.

(1) What portion of the bac;k pay actualiy owed to
minority employees v^ill they actually receive under 
the Consent Decrees?

-28-



cind subject to systemic discrimination (c) back pay 
or preferential hiring or seniority status for 
applicants previously rej^K^d by defendants 
because of their race, sex, or national origrn, 
or (d) back pay or preferential hiring or 
seniority status for .form.er employees subject 
to systemic dismissal because of their race, 
sex, or national origin?

(10) Does Section 10 require the EkOC to advise a charg­
ing party to accept the relief afforded by the 
Decrees and execute the release vdiere, although 
the complaint is \diolly within the scope of the 
Decrees, the EF.OC beli.eves the Decrees wrll not 
in fact provide a full, adequate, or jus<- remedy 
for that em.ployee's complaint?

(11)D o e s  S e c t i o n  19 r e q u i r e  t h e  EbOC, i n  t h e  c a s e  o f  a  c o m p l a i .n t  V v'holly  w i t h x n  t h e  s c o p e  o f  t h e  D e c r e e s ,  t o  r e f u s e  t o  a t t e m p t  c o n c i l i a t i o n  i f  t h e  c h a r g i n g  p a r t y  i n d i c a t e s  h e  o r  s h e  x s  n o t  s a t i s f i e d  w i t h  t h e  re m e d y  p r o v i d e d  t o  h i m  o r  h e r  b y  t h e  D e c r e e s ?
(12) Do S e c t i o n s  C a n d  16 r e q u i r e  t h a t  t h e  G o v e r n m e n t  b e  p r o v i d e d  a l l  o f  t h e  i n f o r m a t i o n  r e q u i r e d  f o r  an  o r d i n a r y  c o m p l i a n c e  r e v i e w ?

-27-



(2) What would be the effect on the ability 
of the Government to settle pattern or 
practice suits if the proposed release 
of accrued back pay were held invalid?

(3) Was back pay agreed upon in the Consent 
Decrees calcul^Jte^d to include compensation 
for back pay which may accrue after the 
effective date of the Decrees?

(4) Is it the policy and intention of the Government
. to make the representations describe in Sections C

sue sponte and regardless of udiether required to
c? o  V > \7  •H'K cs " n o  n - o  o  cr

(5) Did the E.E.O.C., prior to agreeing to these Decrees, 
review each of the pending charges against the 
defendamts to determine whether each charge wholly 
within the scope of the Decree would in fact be 
fully remedied by the Decrees?

For the above recisons the Court should reverse the 
decisions of the District Court of May 20, 1974, and 
June 7, 1974, and remand this case v;ith instructions to set

-2 9-



a s i d e  the C o n s e n t  D e c r e e s  a s  u n l a w f u l .
Respectfully s u b m i t t e d ,

' /' /
/  /'h i >, ,

JACK GREEKl^bRG 
JZi.MES M. KABRIT, III 
BARRi? b. GOLDSTEIN 
CHARIjES STEPHEN RALSxON 
HIRIC SCHN.APPER 
MORRIS J- BALLER10 C o lu m b u s  Circle 

EuiteZOSO
New York, New York 10019

OSC-AR W. ADAMS 
JAMES K. BAKER 
U.W. CLEMON 
CARYL P. PRII'ETT2121 Buj.lding - Suite 16JO 

2121 E:iqht Avenue North Birmingham, Alabama 35203

SMxxi-
KENNETH JOHNSON 
NORRIS RAMSEY711 St. Paul Street 

B a l t i m o r e ,  Maryland 2120.
BERNARD D. MARCUS415 O l i v e r  B u i l d i n g  

E'itv.sburgh, Pennsylvania
15222

G ABR IELLE K . McDONAIiD 
MARK T .  MCDONALD1834 S o u t h m o r e  B o u l e v a r d  H o u s t o n ,  Texas 7/004
NATHANIEL R. JONES 
WILLIAM D. WELLS 

N.A.A.C.P.
1790 BroadwayHew York, New York 1001.-

-30-



J. RICHMOND PEARSON
1630 Fourth Avenue, North 
Biririingham, Alabama 352 03

Attorneys for Appellants- 
Intervenors

CERTIFICATE OF SERVICE
I hereby certify that on this 23rd day of October, 

1974, tv70 copies each of Intervenors-Appellants' Reply 
Brief were served on counsel for the parties by United 
States mail, air mail, special delivery, postage prepaid, 
addressed to:

Michael Gottesman, Esq.
Brehoff, Cushman, Gottesman & Col)en 
1000 Connecticut Avenue 
Wa sh ing t oi'i, D . C . 2 003 6
James R. Forman, Jr., Esq.
Thdmas, Taliaferro, Forman, Burr & Murray 
IGOO Bank for Savings Building 
î ixilliiignciUl,
Marian Halley, Esq.
Equal Employment Opportunity Commission 
Wa sh i ng t o’"!, D . C . 2 05 0 6
Judith Lonnquist, Esq.
2 01 N. Wells - Suite 2].22 
Chicago, Illinois 60606

/ //

Attorney f^r Interveners-
V '