Johnson v Trucking Employers, Inc. Brief for Appellants

    IN THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1571

ROBERT L. JOHNSON, et al.,

Intervenors-Appellants,

v .
TRUCKING EMPLOYERS, INC., et al.,

Defendants-Appellees,

and

UNITED STATES OF AMERICA, et al.,

Plaintiffs-Appellees

On Appeal From The United States District Court 
For The District Of Columbia

BRIEF FOR APPELLANTS

JACK GREENBERG 
0. PETER SHERWOOD 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

WILEY BRANTON
Dolphin, Branton, Stafford & Webber 
Suite 500
McLachlen Bank Building 
Washington, D.C. 20001

Counsel for Appellants



IN THE
UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1571

ROBERT L. JOHNSON, et al.,

Intervenors-Appellants, 
v .

TRUCKING EMPLOYERS, INC., et al.,

Defendants-Appellees,
and

UNITED STATES OF AMERICA, et al.,

Plaintiffs-Appellees

Certificate Required By Rule 8(c) 
of The General Rules of the United States Court of Appeals 

For The District of Columbia Circuit

The undersigned, counsel of record for appellants, 

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 dis­

qualification or recusal.

1. The Plaintiffs: United States of America;

Equal Employment Opportunity Commission.



2. The Defendant Unions: International Brotherhood

of Teamsters, Chauffeurs, Warehousemen and 
Helpers of America; International Association 

of Machinists and Aerospace Workers, AFL-CIO.
3. The Named Defendant Companies: Trucking Employers

Inc; Arkansas-Best Freight System, Inc;
Consolidated Freightways Corporation of 

Delaware; I. H. L. Freight, Inc.; The Mason 

and Dixon Lines, Inc.; Pacific Inter-Mountain 
Express Co.; Smith's Transfer and Storage.

4. The Class of Defendant Companies: All common

carriers of general commodity freight by motor 

vehicle which employ over-the-road drivers, 

and which are parties to or are bound by the 

National Master Freight Agreement and area 
supplements thereto, !which, as of December 21,

1972, employed at least 100 persons and which 

had annual gross revenues of at least $1,000,000. 

This class includes over 300 companies.
5. The named intervenors: Robert L. Johnson, Patrick

Hairston, George Scott, Johnny Lee, Naran Buchanan, 
Clifton Wiggins, Oscar Newsome and Richard Sagers.

6. All black and Spanish-surnamed workers who on March 20,
1974, were employed by, or on layoff from, a de­
fendant employer, and who were hired prior to 

December 31, 1972.

-2-
Eric Schnapper
Attorney of Record for Appellants



IN THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 76-1571

ROBERT L. JOHNSON, et al.,

Intervenors-Appellants, 

v .

TRUCKING EMPLOYERS, INC., et al.,

Defendants-Appellees,

and

UNITED STATES OF AMERICA, et al.,

Plaintiffs-Appellees

On Appeal From The United States District Court 
For The District Of Columbia

BRIEF FOR APPELLANTS 

QUESTION PRESENTED

Did the District Court err in authorizing the 
defendant trucking companies to solicit from minority 

employees waivers of certain rights under Title VII of 

the 1964 Civil Rights Act?



This case was not previously before this Court.

There is now pending before the Court a related

appeal arising out of the same proceedings in the District

Court. Jones v. Trucking Employers, Inc., No. 76-1577.

REFERENCES TO PARTIES AND RULINGS
There are four orders below involving approval of

use of the disputed waivers, all entered by the Hon. William

L. Bryant. The first, on March 20, 1974, approved the Consent
Decree proposed by the original parties. The second, on

February 14, 1975, permitted intervention, and held that the
proposed waivers were not per se illegal. The third, on

January 19, 1976, clarified the basis of the two earlier orders.
The fourth, on March 18, 1976, approved, subject to certain
modifications, the form of the proposed notice and waiver.

In addition to the plaintiff named in the caption,

the Equal Employment Opportunity Commission is a plaintiff.
In addition to the named defendant, there are two defendant

1/
unions, and a class of over 300 defendant companies, seven

J jof whom are specifically named as class representatives.

1 / International Brotherhood of Teamsters, Chauffeurs, 
Warehousemen and Helpers of America and the International 
Association of Machinists and Aerospace Workers, AFL-CIO.

2/ Arkansas-Best Freight System, Inc.; Consolidated 
Freightways Corporation of Delaware I„ H. L. Freight, Inc.; 
The Mason and Dixon Lines, Inc.; Pacific Inter-Mountain 
Express Co.; Smith's Transfer and Storage.

-2-



The named intervenors, other than Robert L. Johnson, are 

Patrick Hairston, George Scott, Johnny Lee, Naran Buchanan, 
Clifton Wiggins, Oscar Newsome and Richard Sagers.

STATUTES INVOLVED
Section 706(f)(1) of the Civil Rights Act of 1964, 

42 U.S.C. § 2000e-5(f)(1) provides in pertinent part:
If within thirty days after a charge 

is filed with the Commission or within 
thirty days after expiration of any period 
of reference under subsection (c) or (d), 
the Commission has been unable to secure 
from the respondent a conciliation agree­
ment acceptable to the Commission, the 
Commission may bring a civil action against 
any respondent not a government, governmental 
agency, or political subdivision named in 
the charge. In the case of a respondent 
which is a government, governmental agency, 
or political subdivision, the the Commission 
has been unable to secure from the respondent 
a conciliation agreement acceptable to the 
Commission, the Commission shall take no 
further action and shall refer the case to 
the Attorney General who may bring a civil 
action against such respondent in the appro­
priate United States district court. The 
person or persons aggrieved shall have the 
right to intervene in a civil action brought 
by the Commission or the Attorney General in 
a case involving a government, governmental 
agency, or political subdivision. If a 
charge filed with the Commission pursuant to 
subsection (b) is dismissed by the Commission, 
or if within one hundred and eighty days from 
the filing of such charge or the expiration of 
any period of reference under subsection (e) 
or (d), whichever is later, the Commission 
has not filed a civil action under this section 
or the Attorney General has not notified a 
civil action in a case involving a government, 
governmental agency, or political subdivision, 
or the Commission has not entered into a con­
ciliation agreement to which the person ag­
grieved is a party, the Commission, or the 
Attorney General in a case involving a govern­
ment, governmental agency, or political sub­
division, shall so notify the person aggrieved 
and within ninety days after the giving of such

-3-



notice a civil action may be brought against 
the respondent named in the charge (A) by 
the person claiming to be aggrieved, or (B) 
if such charge was filed by a member of the 
Commission, by any person whom the charge 
alleges was aggrieved by the alleged unlawful 
employment practice.
Section 707(a) of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-6(a), provides:
Whenever the Attorney General has reasonable 
cause to believe that any person or group 
of persons is engaged in a pattern or prac­
tice of resistance to the full enjoyment of 
any of the rights secured by this title, and 
that the pattern or practice is of such a 
nature and is intended to deny the full exercise 
of the rights herein described, the Attorney 
General may bring a civil action in the appro­
priate district court of the United States by 
filing with it a complaint (1) signed by him 
(or in his absence the Acting Attorney 
General), (2) setting forth facts pertaining
to such pattern or practice, and (3) requesting 
such relief, including an application for a 
permanent or temporary injunction, restraining 
order or other order against the person or 
persons responsible for such pattern or prac­
tice, as he deems necessary to insure the full 
enjoyment of the rights herein described.

STATEMENT OF THE CASE
_2/

On March 20, 1974, the United States of America

commenced this action under Title VII of the 1964 Civil Act

against two unions and a class of over 300 defendant trucking

companies. The 20 page complaint alleged that the defendants
had engaged in systematic discrimination against black and
Spanish-surnamed employees and applicants. Seven of the

companies were named as class representatives. Trucking Employers
Inc. represents most of the companies for collective bargaining 

4.Jpurposes. Simultaneous with the filing of the government s

3_/ The authority of the Department of Justice to commence such 
an action under Title VII expired 4 days later. The E.E.O.C. 
was subsequently added as a plaintiff. 
d / Complaint, App.



complaint, each of the named defendant companies filed 

answers, and the government and named companies filed a 
45 page "Partial Consent Decree With Respect to Defendant 

Employees.” On the same day that all these documents 

were filed the District Judge to whom the case was assigned 

summarily approved the "partial" consent decree. The 

decree contemplated that the defendant companies would 
thereafter solicit from their minority employees a waiver 
of certain rights under Title VII in return for a cash

J.Jpayment ranging from $150 to $1500. It is this proposed 
solicitation of waivers which gave rise to the instant 

round of litigation.
Though not disclosed by any of the papers then 

filed with the District Court, there were already pending 

on March 20, 1974, in other federal courts, more than a 
dozen private class actions against the defendant companies. 

On August 26, 1974, counsel for the plaintiffs in several 

of those actions wrote to the District Judge in this case 
expressing concern that, pursuant to the consent decree, 

"some of the defendants will attempt to contact directly,

AJ
2J

App.
Consent Decree, p. 45; App. 

pp. 32-37; App.Consent Decree,

-5-



and without prior permission from us, any of the clients 

whom we represent in pending litigation." Counsel expressed 

the view that the proposed waivers were unlawful, and sought 
a conference to clarify whether intervention might be neces- 
sary to protect the rights of his clients. On September 10, 
1974, the government and six of the named companies filed 
a lengthy "Stipulation" setting forth the procedures they 
intended to follow, and the contents of the notices and 
release to be used, in soliciting the waivers. Apparently 
the signatories did not contemplate that the District Court 

had any role to play with regard to the proposals since 
they neither submitted nor requested an order approving

9_/them. Shortly thereafter counsel for the private plaintiffs 

advised the District Court and original parties that inter­

vention would be sought; on or about September 26, 1974, 

the companies assured the Court that no attempt would be 

made to solicit the waivers pending further order of the 

Court.
On September 30, 1974, appellant Robert Johnson

and 8 other individuals moved to intervene in the instant

case. Each cf the named intervenors was also the named 
a

plaintiff in/pending separate private Title VII action
10/

before another federal court. The request for intervention 
was accompanied by a motion for disapproval of the notices,

8 / Letter of April 26, 1974, from Eric Schnapper to the 
Hon. William Bryant; App.
_9/ App.
10/ App. While this case was still pending in the
District Court the intervention of Willie Johnson was dis­
missed by agreement of the parties because the action in 
which he was the plaintiff had been settled.

- 6-



forms and release which were the subject of the September 10,
11/

1974, stipulation. The intervenors urged that the waivers 

were unlawful per se, and that the proposed notices did not 

contain sufficient information to enable an employee to 

make a knowing and intelligent decision whether to waive 

his or her rights. Shortly thereafter a second motion to 

intervene, and to disapprove, was filed by another group 
of private plaintiffs including Leon Jones; that interven­
tion is the subject of another appeal now before this Court, 

No. 76-1577. The motions of both groups of intervenors 
were argued at a hearing on October 10, 1974.

On February 14, 1975, the District Court granted
12/appellants'motion to intervene. The Court also held that

the proposed waivers were not unlawful per se, but invited

the intervenors to make specific suggestions as to changes

in the proposed notices, etc., that would assist employees
in making a knowing and intelligent decision whether to

13/
execute the waivers. On March 28, 1975, intervenors

moved to modify the proposed notices, etc., in seven specified 
_14/

ways. A hearing on this motion was held on August 8, 1975.

On January 21, 1976, the District Court approved most of 

the modifications sought by intervenors. With the agreement

11/ App.

12/ App. 
13J  App. 

14 / App.

-7-



of all parties that order was modified on March 18, 1976,
15/to avoid certain technical problems.

On September 17, 1975, intervenors moved for an 

order clarifying the decision of February 14, 1975, to 
delineate the extent, if any, to which the District Court 
had ruled on the adequacy of the money being offered in

lfi/return for the proposed waiver. On January 19, 1976, the 

District Court resolved this motion by explaining that it 

had not decided any questions regarding the amount of 

the money offer other than that it was not "a mere pittance". 

A timely notice of appeal was filed on May 8,
_LS/

1976.

11/

STATEMENT OF THE FACTS
Although the complaint alleges, and the partial 

consent decree proscribes, a variety of forms of discrimina­
tion, the central concern of both and of this appeal is 
the exclusion of black and Spanish-surnamed employees from 
jobs as "road drivers." Road drivers drive trucks that 
travel between major cities or depots; the pick-up and 

delivery of goods within a given local area is done by 

"city drivers." The two types of driver jobs differ in 

the hours and distance involved, and, most importantly, 

the rate of pay.

15/ App.
16/ App.
17/ App.

18/ See 28 U.S.C. § 2107.

-8-



Blacks and other minorities have traditionally 

been excluded from jobs as road drivers, and confined 

instead to less well paid jobs within a given city, includ­

ing city driver. In 1971 blacks were only 1 to 2.7% of 
the road drivers at major trucking companies, but accounted 
for 6.9% of the city drivers. Spanish-surnamed workers
were only 0.8% of the road drivers, but 3.4% of the city 

19/
drivers. The complaint in this action alleged that the 

named defendants had a similarly low portion of minority 
road drivers, though there were large numbers of non-whites 

in other less lucrative positions.
2 0/

Employment Patterns
Total Minority Minority Minority
Road Road City Shop

Company
Arkansas Best-

Drivers Drivers Workers Workers

Freight 
Branch Motor

676 2 7 (4%) 190 21

Exp.
Consolidated

683 13 (2%) 106

Freightways 2,767 92(3.3%) 364 74
I.M.L. Freight 
Mason & Dixon

343 8(2.3%) 97 13
Lines 997 28(2.8%) 94 10

Pacific I.M.E. 1,747 54(3.0%) 222 41
Smiths Transfer 931 43(4.6%) 140 2

of these companies hired 
21/

no minority road drivers at

prior to 1968. Nationally blacks and Spanish- surnamed
22/

Americans are 16.6% of all truck drivers and deliverymen.

19/ Nelson, Equal Employment Opportunity In Trucking: An Industry 
at the Crossroads, E.E.O.C. Contract EE072001, App.
20/ Complaint, pp. 2-6; App.
21/ Id.
22/ united States Census, 1970, Detailed Characteristics,
V. 1, Table 227. App. There were 2,026,088 truck drivers
and deliverymen, of whom 245,966 were black and 90,766 Spanish- 
surnamed .

-9-



The exclusion of minorities from road driver

jobs is of critical importance because they are among the 

best paid in the industry. As the United States Commission 

on Civil Rights reported earlier this year,
Road driving is one of the highest- 

paying, blue-collar occupations in the 
trucking industry. The average annual 
earnings of road drivers employed by 
large common carriers of general freight 
were estimated to be $15,800 in 1972.
There is also a high degree of discrimina­
tion against minorities in road driving. 23/

The difference in the annual wages paid to city and road

drivers is very substantial.
Average Compensation: 24 /

Road and City Drivers: 1966-1972

Year Road Drivers City Drivers Difference

1972 $15,913 $12,883 $3,030
1970 12,686 9,923 2,763
1961 12,123 9,412 2,711
1968 11,548 9,027 2,521
1967 10,610 8,444 2,166
1966 10,401 8,157 2,244

Blacks confined to other positions, such as mechanic or 

platform worker, earn even less than city drivers.
Under the procedure proposed by the signatories 

to the partial consent decree minority employees are to be 
offered a specified sum of money if they will execute a

23/ The Challenge Ahead, Equal Opportunity In Referral 
Unions, p. 95 (1976).
24/ Interstate Commerce Commission, Transportation Statistics 
in the United States, 1966-1972; App. . This covers all
Class I common carriers of general freight engaged in intercity 
service, a group roughly co-extensive with the defendant class.

-10-



these rights will receive at once $150 if he was hired

between January 1, 1971 and December 31, 1972, $300 if

hired between January 1, 1969 and December 31, 1970,
_25/

and $500 if hired before January 1, 1969. In addition, 

if the employee later succeeds in transferring into a 
road driver job, he will receive an additional $300, $600, 

and $1,000 respectively. Because there are relatively few 
road driver vacancies at this time, and because, as will 
be seen, the government is still in the process of litigat­
ing injunctive relief necessary to permit such transfer, 
it is not now possible for most minority employees to 
transfer to road driver jobs. A black driver hired as a 
city driver in 1971 who transfers to a road driver job in 
1978 will thus have lost $20,000; in return for waiving 
this claim the employee would receive a total of $450.
In addition,minority workers who have already transferred 

to road driver jobs will be asked to sign waivers in return 

for a cash payment. The payment will be $150 for persons 

hired between January 1, 1971 and December 31, 1972, $450

for persons hired between January 1, 1969 and December 31,
26/

1970, and $750 if hired before January 1, 1969.

waiver of their Title VII rights. An employee who waives

Partial Consent Decree, pp. 34-35; App.

Partial Consent Decree, pp. 37-38; App.
2 57

26/

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In fully litigated Title VII cases against trucking

companies who have engaged in such discriminatory exclusion 

of non-whites from road driver jobs, the injunctive relief 

required by the federal courts has traditionally included 

(a) invalidating any rules forbidding employees in other 
positions to transfer to road driver jobs, and (b) directing 

that minority employees who transfer to road driver jobs not 

lose all the seniority rights they enjoyed before the transfer. 

See Bing v. Roadway Express, 444 F.2d 686 (5th Cir. 1971).

An employee's seniority date is of great importance in trucking, 

as other industries, controlling his or her liability to lay­

offs and, in some jobs, his or her annual income. An employee 
with 5 or 10 years seniority as a city driver would in most 
cases be foolhardy to give up that job to work as a road 
driver with no seniority; an inability to carry over seniority 
tends to lock a black employee into a city driver job as 
effectively as ana/ert no transfer rule. The consent decree 
in this case is avowedly "partial" because it only resolves 
the first problem. Although the companies were willing to 
abandon their no transfer rules, the government was unable 
to reach agreement with the union as to the seniority rights 

for transferees. The seniority issue must thus be resolved 
by a trial on the merits in this case. Pending the resolution 

of that trial it is unknowable whether blacks hired into city 
driver and other jobs in past years will, as a practical matter, 

be able to transfer to road driver jobs.

-12-



ARGUMENT

The waiver which minority employees must execute

as a condition of receiving the compensation described

above releases the company

its officers, directors, agents, servants, 
employees, successors or assigns, from any 
and all claims for monetary compensation 
on account of or arising out of any alleged 
discrimination based on race or national 
origin in violation of any federal equal 
employment opportunity laws, ordinances, 
regulations, or orders, including, but not 
limited to Title VII of the Civil Rights 
Act of 1964, as amended, 42 U.S.C. §2000 (e), 
et seq., the Civil Rights Act of 1866, 42 
U.S.C. § 1981, et seq., or the United States 
Constitution, which may have occurred prior 
to March 20, 1974.

It is important to note at the outset what this waiver does
not include. An employee who executes the release retains

unimpaired his or her rights to sue for (a) monetary or

injunctive relief for violations of law occurring after
March 20, 1974, (b) monetary or injunctive relief to remedy

violations of the partial consent decree or any other order

entered in this action, (c) injunctive relief for violations

of law occurring before March 20, 1974, (d) monetary relief

against the company for losses sustained after March 20,

1974 because of its continued use of practices or procedures

which have the effect of perpetuating the effect of earlier 
27/

discrimination, and (e) monetary relief against his or her 
union for violations of law occurring prior to March 20,

1974. It is clear, though not dispositive if this particular 
case, that a waiver which included a release of (a)-(d)would
be prospective in nature and thus void as contrary to public



policy. Alexander v. Gardner-Denver Co.. 415 U.S. 36 (1974).

Also undisputed is that the consent decree does not bind 

any employee as a matter of res judicata. Williamson v.

Bethlehem Steel Corp.. 468 F.2d 1201 (2d Cir. 1972), cert, 

denied 411 U.S. 911 (1973), that the rights and remedies of 

an employee who does not execute a release are in no way 

impaired or affected by thr release, and that the rights 
of an employee who does execute the release are affected 
only to the extent specified in the release itself.

Appellants maintain that the District Court applied 
the wrong standard in approving the use of this waiver, and 
that the waiver is invalid per se.

I. THE DISTRICT COURT APPLIED THE WRONG 
STANDARD IN APPROVING THE DISPUTED 
WAIVERS_______________________________

This case presents a novel and important question 

regarding the role of federal courts in approving and administer­
ing consent decrees. For over half a century, particularly 

in the area of anti-trust, the United States has been entering 

into, and seeking judicial approval of, consent decrees. In 

the last two decades it has become increasingly common for 

the government to settle a case before it is ever filed, 

formally commencing the action for the sole purpose of embody­
ing the settlement in a consent decree. The judicial role in 

approving these decrees has long been nominal at best; con­
fronted by legal documents of great length and complexity, 

and without any significant knowledge of the underlying facts,
27/ cont'd
waiver. Motion for Disapproval of Proposed Notices, etc., p. 2. 
The government subsequently made clear that the release did not 
"waive monetary claims accruing subsequent to entry of the decree. 
Response of Plaintiffs To Motion For Leave To intervene and to 
Set Aside The Decree and Notices, p. 27.

-14-



the courts have routinely lent their authority to the decrees. 
Commonly the decree is approved on the same day it is submitted 

with no proceedings other than a brief conference in chambers 

with counsel for the parties. The procedure, measured by 

normal standard, is neither adversary in nature nor informed; 
from the perspective of any interested person other than a 

signatory it is also ex parte. We are unaware of any instance 

in which a federal judge refused to approve, or modify sub­
stantially, a consent decree submitted in this matter.

Judicial acquiescence in this nominal role is 
based in large measure on the fact that the consent decree 
binds no one but the parties thereto. Interested private 
parties enjoy whatever benefits the government decree 
contained, and are free to sue for more. If the government 
makes a poor, counter-productive, or eve sweetheart deal, it 

normally has no effect on any other party —  except, of course, 
in the sense that the defendant may continue to break the law.

In the last two years, however, the government in settling 

cases under Title VII of the 1964 Civil Rights Act has used a device 
which sets those consent decrees apart from those with which 

the courts have heretofore been familiar. The government 
decrees, as in this case, have begun to require that minority 

employees, as a condition of receiving some or all of the 
relief provided by those decrees, must waive to a substantial 

degree their rights under Title VII and other statutes.
The government has justified this device by urging 

that it does no more than give minority employees an option 
to accept the government negotiated relief in return for a

-15-



waiver, without impairing their option to sue individually. 

While legally correct, this contention is somewhat unrealistic. 
The average employee, without the aid of counsel, unable to 

hire an attorney to commence an action, and hard pressed 

for funds, is unlikely to turn down a check or job offer 

that comes to him or her under the imprimatur of the United 

States government and a United States District Judge. Actual 

experience under the two major national consent decrees con­

taining such conditional offers cf relief makes clear that all 

but a handful of affected employees can be expected to accept 
these offers and execute the proffered releases.

Because of this a District Court asked to approve 
a consent decree procedure involving such a waiver has a 
fiduciary responsibility to scrutinize the adequacy of the 
relief for which the waiver is exchanged prior to giving such 
approval. That responsibility is closely analogous to the 
duty of a court under Rule 23 (e) , Federal Rules of Civil 
Procedure, in scrutinizing a proposed settlement of a class 
action. In passing on a Rule 23(e) settlement a court is 

obligated to consider a variety of factual questions, particu­

larly "the range of reasonableness of the settlement fund to 
a possible recovery in light of all the attendant risks of 

litigation." City of Detroit v. Grinnell Corp., 495 F.2d 448, 

463 (2d Cir. 1974). This resolution will normally require 

the presentation of substantial evidence regarding the nature 

and magnitude of the underlying claim, unearthed in appropriate

-16-



cases by discovery. Girsh v. Jepson, 521 F.2d 153, 157 (3d 
Cir. 1975). A similar approach should be taken by a court 

which is asked to approve the solicitation of waivers from 

large numbers of victims of discrimination.
The initial procedure followed by the District 

Court in this case, however, was the pro forma role properly 
restricted to traditional consent decrees not entailing a 

solicitation of waivers. On the same day that the parties 

filed a lengthy complaint, 7 answers, and a lengthy consent 

decree, the District Judge approved the decree. There was 

in the few hours involved barely time to read the documents, 

no time to study them in detail, and no opportunity to learn 

anything about the underlying facts. The District Court,when 

it approved the decree, necessarily knew nothing about the 

average wage differential between city and road drivers, the 

likelihood of road driver vacancies in the proximate future, 
or the importance, not to mention the outcome, of the still 
outstanding dispute as to seniority relief. Some 22 months 
later the District Court explained that it had approved the 
use of the waivers because the amount of money involved was 
not "a mere pittance." Regrettably the phrase "mere pittance" 
is not one of established legal significance; there is, however, 
no reason to believe that these words denote the outcome of the 
careful factual inquiry which is appropriate in a case such as 

this and which admittedly did not occur.

28/ Historically a pittance was a gift or bequest to a religious 
house or order to provide anniversary masses for one deceased, 
and extra allowances of food or drink for the occasion. It later

-17-



Regardless of the standard applied, theDistrict

Court could not properly have approved the waiver procedure 
on the present record. The evidence before the District 
Judge revealed that a black assigned because of his race as 

a city driver rather than a road driver, received an average 
of $3,000 a year less inv\ages. See p. 10, supra. The com­
pensation procedure offered roughly $50 a year now, and an 
additional $100 a year when and if the employee was able to 
transfer into a road driver job. This is approximately 1.6/ 
on the dollar now, and another 3.3/ on the dollar in the 

event of a transfer. Because of the seniority problem 

minority employees do not yetbave a realistic chance of 

transferring; whether, because of that issue, and the rate 

of vacancies, many employees would ever receive more than 

the initial 1.6/ was unknown to the District Court. Whatever 

the standard of reasonableness by which government sponsored 
settlements are to be measured, surely the amount involved 

in this case is so small as to approach in significance the 

proverbial peppercorn.
In approving the waiver, the District Court compared 

this case to United States v. Allegheny-Ludlum Industries, 517 
F.2d 826 (5th Cir. 1975), asserting that it had considered "the 
average compensation to which each employee will become entitled

28/ cont'd.
came to mean the individual portion of food or drink so allowed. 
The secondary meaning of the term, now more common, is a charity 
gift or dole especially if food. Webster's Unabridged Inter­
national Dictionary offers as a tertiary meaning "a portion or 
dole," specifically "a. A small allowance of food. b. A very 
small amount of money." The District Court presumably used the 
phrase "mere pittance" in this last sense, but how much money 
is more than "a mere very small amount of money" is not abundantly 
clear.

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. . . in the context of the overall provisions of the

Consent Decree". This case is clearly distinguishable

from Allegheny-Ludlum. First, the District Court had no 

way of knowing what the "average award would be, since it 

could not foresee whether employees would ever get more 

than the initial 1.6/ on the dollar, or the number of 

workers hired after 1969 and 1971. Second, the Court 
could not assess the money in the context of the injunctive 

relief, assuming arguendo that would be relevant, because 
the most important element of the ultimate injunctive 
relief —  seniority reform —  was and is unknown. Third, 
the District Judge in appraising the reasonableness of the 
offer could not rely on any particular expertise in the 
problems of discrimination in the trucking industry, whereas 

the judge in Allegheny-Ludlum had just such expertise re­

garding the steel industry.
While disapproval of the waiver procedure would 

be required on the present record, we think the original 

parties are entitled to an opportunity to offer evidence 

in support thereof. The signatories to the decree offered 

no evidence whatever when they first sought judicial ap­
proval of the decree, or later in response to the motion 
to disapprove the waiver. Inasmuch as that failure may 
have been grounded in a mistaken belief that the District 
Court was required to approve the waiver procedure regardless 

of the facts, the original parties should be allowed on remand to 
present testimony or documentary evidence in support of a re­

newal request for such approval.

29/ Memorandum of January 19, 1976.
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II. THE WAIVERS ARE INVALID PER SE

Even if these waivers could be signed by minority

workers under circumstances rendering them knowing and

voluntary, that would be 'insufficient to assure their validity.
A waiver, like any contract, must be invalidated despite
the consent of the parties if it contravenes public policy.

As the Supreme Court pointed out in Brooklyn Savings Bank v.

O'Neil, 324 U.S. 697 (1945),
It has been held in this and other courts 

that a statutory right conferred on a private 
party, but affecting the public interest, may 
not be waived or released if such waiver or 
release contravenes the statutory policy.
Mid-State Horticultural Co. v. Pennsylvania R .
Co., 320 U.S. 356, 361; A.J. Phillips Co. v.
Grant Truck Western R. Co., 236 U.S. 662, 667,
Cf. Young v. Higbee Co., 324 U.S. 204, ante,
890. Where a private right is granted in the 
public interest to effectuate legislative policy 
waivers of a right so charged or colored with 
the public interest will not be allowed where 
it would thwart the legislative policy it was 
designed to effectuate.

324 U.S. 704-706.
The federal courts have repeatedly invalidated 

waivers which purported to limit the rights or remedies 
under Title VII. In Alexander v. Gardner-Denver Company,

415 U.S. 36 (1974), the minority employee, claiming
that he had been fired because of his race, voluntarily 

submitted his claim for arbitration under the collective 
bargaining agreement in force at his plant. The agreement 
provided that, where arbitration was sought, the decision

-20-



of the arbitrator would be binding on the employee. After
the arbitrator ruled against him, the employee filed a
complaint with the E.E.O.C. and thereafter brought suit in -

federal court. The Supreme Court held invalid any agreement

by an employee establishing arbitration, rather than the

federal courts, as the forum in which his claims would be
finally adjudicated. 39 L.Ed. 2d at 147. In Chastang v. Flynn

and Emrich Company, 365 F.Supp. 957 (D.Md. 1973),the plaintiff
employees had on several occasions execuited releases waiving
any right to sue arising in connection with their employment.

The District Court held the releases invalid
F & E argues that the re-execution of the 
documents after the effective date of 
Title VII prevents plaintiffs from relying 
upon Title VII to sue the company since they 
were aware of the Act at the time they re- 
executed the releases. The simple answer to 
this is that the parties cannot agree to per­
form an illegal act. United Mine Workers v. 
Pennington, 381 U.S. 657 . . . (1965); United
Brotherhood of Carpenters and Joiners of 
America v. United States, 330 U.S. 395,
(1947) A statutory right conferred upon a 
private party, but affecting the public 
interest may not be waived or released, if 
such waiver or release contravenes public 
policy. Brooklyn Savings Bank v. O'Neil,
324 U.S. 697, 704 ... (1945).

365 F. Supp. at 968. In Rosen v. Public Service Electrical 

and Gas Company, 328 F.Supp. 454 (D.N.J. 1970), the employer 

argued that any discrimination in its pension plans had been 
waived when the employees, through their union, agreed to 

that plan through collective bargaining. The court held that 

any such contractual agreement to the plan was unenforceable.

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328 F.Supp. at 464. The Fourth Circuit rejected a similar

argument in Robinson v. Lorillard Corporation, 444 F.2d 791,

799 (4th Cir. 1971): "The rights assured by Title VII are
not rights which can be bargained away —  either by union, by

an employer, or by both acting in concert." In Moss v. Lane

Company, 50 F.R.D. 122 (W.D. Va. 1970), the plaintiff sued
on behalf of himself and his fellow minority employees. The
employer thereafter served affidavits from all other minority

employees disclaiming any authority from them to commence the

suit. The court refused to dismiss the class action aspect

of the case despite these waivers.
By such dismissal, I would be saying that 
either there is no racial discrimination 
practiced by the defendant against the other 
members of the class or that the other Negro 
employees want to be racially discriminated 
against. Clearly the latter is unacceptable, 
and, certainly, the former would be an improper 
determination at this stage of the suit.

50 F.R.D. at 126.
(1) In enacting the Civil Rights Act of 1964 Congress 

indicated a general intent to accord parallel or overlapping 
remedies against discrimination. Alexander v. Gardner- 
Denver Company, 415 U.S. 36, 47-49 (1964). Among
the multiplicity of independent remedies established by 

law are (1) private litigation under Title VII, 42 U.S.C. 
§2000e-5(f); (2) investigation by the EEOC, followed by

conciliation efforts if the agency finds there is probable 

cause to conclude there is discrimination, 42 U.S.C. §2000e-5(b) 

(3) "pattern or practice" suits by the United States, originally

-22-



prosecuted by the Department of Justice and now handled 

by the EEOC; (4) enforcement of Executive Order 11246 and 

42 C.F.R. Chapter 60 by the Office of Federal Contract 

Compliance and the Secretary of Labor. In enacting Title 
VII in 1964 Congress expressly rejected an amendment which 
would have made Title VII the exclusive federal remedy for 
most employment discrimination. 110 Cong. Rec. 13650-52 (1964) 

Senator Clark, one of the sponsors of the 1964 Act, stressed 
that Title VII "is not intended to and does not deny to any 

individual rights and remedies which he may pursue under other 
federal and state statutes" 110 Cong. Rec. 7207 (1964).

Despite this clear legislative history, employers urged 
repeatedly but unsuccessfully in the years after the enactment 
of Title VII that the consideration of a charge of discrimina­
tion in one forum precluded consideration of the same charges 
in another. See United States v. Operating Engineers, Local 3,

4 EPD 57944 (N.D. Cal. 1972); Williamson v. Bethlehem Steel 

Corporation, 468 F.2d 1201 (2d Cir. 1972), cert. denied 411 

U.S. 911 (1973); Leisner v. New York Telephone Company, 358 

F.Supp. 359 (S.D.N.Y. 1973). The federal courts have rejected 

a variety of other attempts to curtail the independence of these 
overlapping remedies. In Boles v. Union Camp Corp., 5 EPD 
58051 (S.D. Ga. 1972), the company unsuccessfully contended 

that it was not subject to suit under Title VII because its 
seniority practices had been developed under the supervision 
and with the approval of the Office of Federal Contract 

Compliance. The Fifth Circuit rejected a similar defense

-23-



of O.F.C.C. approval in Pettway v. American Cast Iron Pipe
Company, 494 F.2d 211, 221, n.21 (5th Cir. 1974). In 
E.E.O.C. v. Eagle Iron Works, 367 F.Supp 817, (S.D. Iowa
1973), the court held that the Commission could maintain a suit 

regarding charges which had already been the subject of an 

unsuccessful private Title VTI action. 367 F.Supp. at 821. 

Three circuits have rejected the contention that adjudication 
of a charge of discrimination under the national labor laws 

precludes litigation regarding the same alleged discrimination 
under Title VII. Taylor v. Armo Steel Corporation, 429 F.2d 

498 (5th Cir. 1970); Tipler v. E.I. du Pont Co., 432 F.2d 125 
(6th Cir. 1971); Norman v. Missouri Pacific Railroad, 414 F.2 

73 (8th Cir. 1969). The Supreme Court has repeatedly rejected 
the argument that a finding by the EEOC of no probable cause 

precludes an employee from litigating the merits of the same 
charge in federal court. McDonald Douglas Corp. v. Green,
411 U.S. 792, 798 (1973); Alexander v. Gardner-Denver Company, 
39 L.Ed. 2d 147, 157 (1954); see also Robinson v. Lorillard 
Corp., 444 F .2d 791 (4th Cir. 1971); Beverly v. Lone Star

Lead Const. Corp., 437 F.2d 1136 (5th Cir. 1971). As the 
Supreme Court indicated in Alexander, the general rule in 
employment discrimination litigation is that "submission of 

a claim to one forum does not preclude a later submission to 

another," 39 L.Ed. at 158. Within the last several years 
Congress has rejected repeated efforts to limit this structure

-24-



of independent remedies.
Although Congress clearly intended to afford 

minority employees relief in both private and government 
litigation, the intent and effect of the proposed waiver 

is to force each employee afforded back pay to choose 
between those remedies. If an employee wants back pay 
relief under the government action , he must relinquish in part 

his statutory right to bring a private action. If an 
employee wants to preserve the right to pursue private litiga­
tion, he must relinquish his right to back pay relief under 

the government action. The result is essentially that 
rejected by Congress in 1970-72, to make either government 

litigation or private litigation the exclusive remedy available. 

In Hutchins v. United States Industries, Inc., 428 F.2d 303 

(5th Cir. 1970), the employer argued that an aggrieved employee 

was or could be required to chose between his remedy under 

Title VII and his union grievance procedure. The Fifth 
Circuit rejected that argument:

If the doctrine of election or remedies is 
applicable to all Title VII cases, it applies 
only to the extent that the plaintiff is not 
entitled to duplicate relief in the private 
and public forums which would result in an 
unjust enrichment or windfall to him.

428 F .2d at 314. In Alexander v. Gardner-Denver, the Supreme

Court noted that the doctrine of election of remedies was

30/

30/ Hearings before a Subcommittee of the House Committee 
on Education and Labor, 91st Cong., 2d Sess., pp. 36-37 
(1969-70); Hearings before a Subcommittee of the Senate 
Committee on Labor and Public Welfare, 92nd Cong., 1st Sess., 
p.63 (1971).

-25-



inapplicable to suits under Title VII, since it "refers to 

situations where an individual pursues remedies that are 
legally or factually inconsistent." At least 4 other circuits 
have refused to apply the doctrine of election of remedies 
to Title VII actions. See Bowe v. Colgate-Palmolive Co.,
416 F.2d 711, 714-715 (7th Cir. 1969); Voutsis v. Union 
Carbide Corp., 452 F.2d 889, 893-894 (2d Cir. 1971), cert. 

denied 406 U.S. 918; Newman v. Avco Corp., 451 F.2d 743, 746, 

n.l (6th Cir. 1971) ; Qubichon v. North American Rockwell 
Corp., 482 F .2d 569, 572-573 (9th Cir. 1973).

(2) The rights waived by a release must be the same 

rights which were the subject of the compromise resulting 

in the offer of compensation. Thus, if in an ordinary 

Title VII race case the parties agreed to a monetary settle­
ment based on the probable or alleged size of the class mem­
bers claims for racial discrimination, the release employed 
could not also include waivers of the employees' rights for 
violation of the minimum wage laws, for physical injuries 
giving rise to workmen's compensation, or for discrimination 
on the basis of sex or age. The inclusion of such an extran­
eous element in the release would be unlawful both because 
there would be no consideration for this additional forfeiture, 
and because the agreed upon amount would no longer bear a 
reasonable relationship to the rights being waived.

The instant waiver suffers from such a defect.

The underlying monetary compromise is obviously of claims 

of minority employees who were unlawfully prevented from 
becoming road drivers. The notice to employees begins

-26-



"The purpose of this notice is to 
inform you of your opportunity to trans­
fer to an over-the-road job and, in addition, 
to offer you an opportunity to receive mone­
tary compensation . . . .  31/

The money is offered to employees who work at locations
32/

where road drivers were or are domiciled, and to minority
road drivers. To get one-third of the total applicable
amount the employees must state an interest in transferring

to a road driver job by placing their names on the Road

Driver Transfer List and meet the road driver qualifications
required by DOT regulations. To obtain the remaining two-

thirds the employee must actually transfer to a road driver 
33/

job. The amount of the offer is a function of the number 
of years when the employee was unable to transfer to a road 

driver job, approximately $150 a year for subsequent trans­

ferees. Minority employees who already hold road driver 
jobs get between 1/3 and h of the sum paid to employees who 

were only able to transfer after entry of the partial consent 

decree.
While the underlying proposal is thus a compromise

negotiated by the government of claims based on discriminatory
denial of road driver jobs, the release is far more broad.

34/
The employee is required to waive all his accrued monetary

31/ Notice of Monetary Compensation Procedure, p. 1* App.

32/ Id.
33/ Id., p. 2.

34/ As of March 20, 1974.

-27-



claims for unlawful discrimination on the basis of race or 

national origin. The complaint itself alleges that the 

defendants have engaged in other forms of discrimination 
unlawfully exclusing blacks and Spanish-surnamed Americans 

from jobs as "apprentice mechanic and mechanic, office and 

clerical and supervisor." The partial consent decree is 

directed at yet other types of illegal conduct, including 

discrimination in promotion, demotion, training and dismissal, 
and use of discriminatory standards which are not job-related. 
Not only is the compromise underlying the waiver totally 
unrelated to these types of discrimination, but the procedures 
for obtaining the full amount tendered are obviously unrea­
sonable as applied to the victim of other forms of discrimina­
tion. The scope of the waiver must be restricted to release 
of the rights which are the subject of the compromise at issue 
—  i.e. the right to be free from discrimination in trans­

ferring to road driver jobs.

-28-



CONCLUSION

For the above reasons the orders of the District 

Court of February 14 1975, January 19, 1976 and March 18
1976, insofar as they approve the use or solicitation of 

waivers of Title VII or other rights, should be reversed.
Respectfully submitted,

JACK GREENBERG 
0, PETER SHERWOOD 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

WILEY BRANTON
Dolphin, Branton, Stafford & Webber 
Suite 500
McLachlen Bank Building 
Washington D.C. 20001

Counsel for Appellants

-29-