Unites States of America v. Allegheny-Ludlum Industries Brief Intervenors-Appellants

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 76-1607

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

-vs-
ALLEGHENY-LUDLUM INDUSTRIES, et al.,
• Defendants-Appellees,
SIDNEY HARRIS, et al..

Interveners-Appellants.

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

i BRIEF FOR INTERVENORS-APPELLANTS

OSCAR W, ADAMS 
JAMES K. BAKER 
U.W. CLEMON

2121 Building
2121 Eighth Avenue North
Birmingham, Alabama 35203

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
DEBORAH M. GREENBERG 
ERIC SCHRAPPER

10 Columbus Circle 
Suite 2030
New York, New York 10019



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 76-1607

UNITED STATES OF AMERICA, et al..
Plaintiffs-Appellees,
- vs -

ALLEGHENY-LUDLUM INDUSTRIES, et al.,
Defendants-Appellees, 

SIDNEY HARRIS, et al.,
Intervenors-Appellants.

CERTIFICATE REQUIRED BY FIFTH CIRCUIT 
__________LOCAL RULE 12(a)___________

The undersigned, counsel of record for Intervenors- 
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 disqualification or recusal 
pursuant to Local Rule 12 (a).

(a) Defendants who might be required to afford 
certain additional injunctive relief:



Allegheny-Ludlum Industries, Inc.
Armco Steel Corporation
Bethlehem Steel Corporation
Jones & Laughlin Steel Corporation
National Steel Corporation
Republic Steel Corporation
United States Steel Corporation
Wheeling-Pittsburgh Steel Corporation
Youngstown Sheet & Tube Company
United Steelworkers of America, AFL-CIO-CLC.

(b) Appellants who might be entitled to certain
additional injunctive relief, and/or intervention 
Sidney S. Harris, Willie J. Fonville,
Paige A. Millhouse, Bernard Lane, Ellis Lewis, 
Levy Mazyck, George Mercer, Robert Skates,
Jimmie L. Rodgers, John A. Turner, John Taylor, 
Luther Reden, C.L. Garland, L.C. Waker, James L. 
Allen, Joseph Kimbrough, Joe Bryant, Joseph 
Faulkner, Isaiah Hayes, III., K.D. Pender,
Charles R. Brown Sr., Robert L. Hill, William 
R. Tilshman.

-  2 -



The class of all black steelworkers who 
the above-named individuals represent or seek 
to represent who are employed by the defendant 
companies, who have been employed, or who may 
in the future be so employed in the plants 
in which the named individuals are employed 
or have been employed.

Attorney Hoc Intervenors-Appellants

- 3



I N D E X

Pages

Table of Authorities............................
Statement of the Questions Presented............
Statemert of the Case............................
ARGUMENT ........................................

I. THE DISTRICT COURT'S APPROVAL OF THE 
AMENDMENT OF CONSENT DECREE I WAS 
ERRONEOUS UNDER THE LAW APPLICABLE 
TO THE MODIFICATION OF FINAL JUDGMENTS..
A. Introduction and Summary .........
B. Paragraph 20 of Consent Decree I 

Does Not Authorize the Amendment...
C. The Consent Decree Was A Final 

Judgment and Defendants' Motion to 
Amend Did Not Meet the Requirements 
of Rule 60(b) for Modification of
a Judgment........................

1. A Motion Rule 60(b) Was
Untimely....................

2. Amendment By An Independent 
Action Was Barred By Res Judicata

D. The Defendants Having Selected Not to
Modify Consent Decree I During 
Allegheny-Ludliom I, Nor To Submit 
Clarifying Evidence, Nor to Petition 
This Court for Rehearing May Not Now 
Reopen the Final Judgment............

X
viii
1
10

10
10

17

20

23

26

32



Pages

II. THE DISTRICT COURT ERRED IN APPROVING 
THE AMENDMENT TO CONSENT DECREE I 
BECAUSE IT UNLAWFULLY REQUIRED AN EMPLOYEE 
WHO ACCEPTS THE BACKPAY TENDER TO WAIVE 
HIS RIGHT TO SUE FOR FULL RELIEF FROM 
EMPLOYMENT DISCRIMINATION................. 36

III. THE DISTRICT COURT ERRED IN DENYING INTER­
VENTION TO BLACK WORKERS WHO SOUGHT TO 
ASSERT THEIR RIGHT TO A FULL REMEDY FROM 
DISCRIMINATORY EMPLOYMENT PRACTICES.......  51

A. The Decisions in Allegheny-Ludlum I 
Require the Appellants to Be Considered
as Intervenors.........................  51

B. The District Court Erroneously Denied 
Intervention Under Rule 24(a)(2)
and Rule 24(b) ........................  53

CONCLUSION .......................................... 63

Appendix A, Motion to Clarify Consent 
Decrees Regarding Waivers

Appendix B, A & R Directive No. 3. 
Certificate of Service



TABLE OF AUTHORITIES

Cases Pages

Albemarle Paper Company v. Moody, 422 U.S.
405 (1976)................................. 41,42

Alexander v. Gardner-Denver Co., 415 U.S.
36 (1974).................................. 38,43

Atlantis Development Corp. v. United States,
379 F.2d 818 (5th Cir. 1967)   56,60

American Bakeries Co. v. Vining, 80 F.2d
932 (5th Cir. 1936)........................ 27

American Surety Co. v. Baldwin, 287 U.S.
156 (1932)................................  27

Beasley v. Bethlehem Steel Corp., C.A. No.
HM-74-377 (D. Maryland)...................  58

Bros. Incorporated v. W.E. Grace
Manufacturing Company, 320 F.2d
594 (5th Cir. 1963)........................ 21,25,26

Burkett V. Shell Oil Company, 487 F.2d 1308
(5th Cir. 1973)...........................  33

Carroll v. Bethlehem Steel Corp., C.A.
No. M-75-374 (D. Maryland)...............  58

Commissioners v. Sunnen, 333 U.S. 591 (1958).... 21,34

-  1  -



Pages

Culpepper v. Reynolds Metals Company, 421
F.2d 888 (5th Cir. 1970)...............

Diaz V. Southern Drilling Corp., 427 F.2d 
1118 (5th Cir. 1970) cert, denied 400 
U.S. 878 (1970)........................

Dickerson v. United States Steel Corporation, 
C.A. No. 73-1291 (E.D. Penn. March 
24, 1976)...............................

Franks v. Bowman Transportation Company,
U.S. , 44 U.S.L.W. 4356

(March 24, 1976).......................

Green v. New Kent County School Board, 391
U.S. 430 (1968)........................

Griggs v. Duke Power Co., 420 F.2d 1225
(4th Cir. 1970) rev'd on other grounds 
401 U.S. 424 (1971).................... .

Harris, et al. v. Republic Steel Corp­
oration, C.A. No. 74-P-3345 (N.D. Ala.)..

Head v. Timken Roller Bearing Company,
486 F.2d 870 (6th Cir. 1973)........... .

In re Casco Chemical Co., 335 F.2d 645
(5th Cir . 1964)........................ .

Kessler & Co. v. Equal Employment Opportunity 
Comm'n, 472 F.2d 1147, 1152 (5th Cir. 
1973) (en banc) cert, denied 412 U.S.
939 (1973)..............................

60

56

58

3,41,49

40

48

45

23,26

59

- XI -



Pages
Lane v. Bethlehem Steel Corporation,

C.A. No. 71-580-H (D. Md.)................  7

Local 189 V. United States, 416 F.2d 980 
(5th Cir. 1969) cert, denied 397
U.S. 919 (1970)............................ 39

Long V. Georgia Kraft Company, 450
F.2d 557 (5th Cir. 1971)..................  46

Louisiana v. United States, 380 U.S.
145 (1965)................................. 40

Martin v. Travelers Indemnity Company,
450 F.2d 542, (5th Cir. 1971).............  57

Neusse v. Camp, 385 F.2d 694 (D.C. 1967)...... ’. 55,56,57

New York Piob. I.R.G., Inc. v. Regents of 
Univ. of New York, 516 F.2d 350 
(2nd Cir. 1975)............................

NLRB V. Brown & Root, Inc., 206 F.2d
73 (8th Cir. 1953)........................

Pettway v. American Cast Iron Pipe Co.,
494 F.2d (5th Cir. 1974)..................  3,39,45

Rodgers v. United States Steel Corporation,
C.A. No. 71-793 (W.D. Penn.)..............  7,58

Rodriquez v. East Texas Motor Freight, 505
F.2d 40 (5th Cir. 1974)...................  55

56

33

-  x i i  -



Pages

28,29, 31, 32

27

Swann v. Charlotte-Mechlenburg Bd. of
Education, 402 U.S. 1 (1971)..............  40,41,44

Taylor v. Armco Steel Corporation,
C.A. No. 68-129 (S.D. Texas)..............  7

Thompson v. Maxsell Land-Grant and Railway
Company, 95 U.S. 391 (1877)...............

Toledo Scale Co. v. Computing Scale Co.,
261 U.S. 399 (1923).......................

Transit Casualty Company v. Security Trust
company, 441 F.2d 788 (5th Cir. 1971).....  24

United States v. Allegheny-Ludlum Industries,
517 F.2d 826 (5th Cir.’1975), cert, denied 
No. 75-1008 (April 19, 1976)..............  passim

United States v. Armour & Co., 402 U.S.
673 (1971)...................................  18,33

United States v. Bethlehem Steel Corporation,
446 F.2d 652 (2nd Cir. 1971)..............  39

United States v. City of Jackson, 519 F.2d
1147 (5th Cir. 1975).........................  59,61

United States v. Duke, 332 F.2d 759
(5th Cir. 1964)...........................  48

United States v. Hayes International
Corporation, 415 F.2d 1038 (5th Cir. 1969).. 60

- X V  -



Pages

United States v. Hayes International
Corporation, 456 F.2d 112 (5th Cir. 1972),

United States v. RCA, 46 F.Supp. 654
(D. Del. 1942), appeal dismissed on 
Government's motion, 318 U.S. 796 
(1943)....................................

United States v. United States Steel
Corporation, 371 F.Supp. 1045 (N.D. Ala. 
1973) vac. and rem. on other grounds,
520 F.2d 1043 (5th Cir. 1975) rehearing 
denied 525 F.2d 1214 (1976) cert. pending 
Nos. 75-1475, 75-1478 .................. .

United States v. Swift, 286 U.S.
105 (1932)................................

Waker v. Republis Steel Corporation,
C.A. Nos. 71-179 et seq. (N.D. Ala.).... .

Watson V. Memphis, 373 U.S. 526 (1963)....... .

Webb V. Webb, 36 Eng. Rep. 1011 (Ch. 1676)....

Weiser v. White, 505 F.2d 912 (5th Cir. 1975)
cert, denied 421 U.S. 993 (1975)........ .

West Virginia Oil & Gas Co. v. George 
& Breece L^amber Co., 213 F.2d 702 
(5th Cir. 1954)..........................

Wetzel V. Liberty Mutual Insurance Co.,
508 F.2d 239 (3rd Cir. 1975).............

46,48

21

39,48

20

40

28

56

27,28,30,31,33

42

- V -



Pages

Williamson v. Bethlehem Steel Corp., 468
F.2d 1201 (2nd Cir.) cert, denied 411 
U.S. 931 (1973).......................

Wisconsin v. Michigan, 295 U.S. 455 (1935)..

S T A T U T E S
28 U.S.C. §1291 ...........................
28 U.S.C. §1291(a)(1)......................
42 U.S.C. §2000e et seq.. Title VII fo 

the Civil Rights Act of 1964 
(as amended 1972).....................

OTHER AUTHORITIES
Developments in the Law - Res Judicata.

65 Harv. L. Rev. 818 (1952)...........

Federal Rule of Appellate Procedure, Rule40 ....................................

Federal Rules of Civil Procedure, Rule
24(a) (2)...............................

Federal Rules of Civil Procedure,
Rule 24 (b).............................

Federal Rules of Civil Procedure, Rule 60(b)
7 Moore's Federal Practice, ^[60.28 (2) [ 8] at 

400-01, no.40.........................

28,29,30,31

10
10

passim

21

33

53-66,59-62

51,53,54,62 
22,23,24,26,28

24

- VI -



Pages

7 Moore's Federal Practice. 50.30 [3]
at 429, n.27.................................  25

7 Moore's Federal Practice, ^60.31 at
501, n. 9.................................. 26

7 Moore's Federal Practice, ?[60.73[2] at 628.... 26

Note, Flexibility and Finality in Antitrust 
Consent Decrees, 80 Harv. L. Rev.
1303 (1967)................................ 18

Wright & Miller, Federal Practice and
Procedure, §1908, p. 514..................... 55,56

- yii -



STATEMENT OF THE QUESTIONS PRESENTED

Whether the district court erred in granting relief 
from a final judgment seventeen months after it was 
entered by permitting the defendants to amend the 
release provision of consent decree I after that 
specific provision had been the focus of litigation 
in the district and appellate courts and despite the 
fact that the defendants never sought to submit 
evidence or otherwise clarify that provision during 
the original litigation?
Whether the district court erred in permitting the 
amendment to the release provision of consent decree 
I because the amendment unlawfully requires employees 
as a condition of obtaining backpay to waive their 
prospective rights to sue for a full remedy from
employment discrimination?
Whether the district court erred in not (a) treating 
the appellants as already Intervenors because of the 
court's prior ruling in Allegheny-Ludlum I or (b) 
granting the appellants motion to intervene pursuant 
to Rule 24(a)(2) or Rule 24(b), FRCP, to contest the 
legality of the defendants' Motion to Amend Consent 
Decree I?

viii -



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 76-1607

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

-vs-
ALLEGHENY-LUDLUM INDUSTRIES, et al.,

Defendants-Appellees, 
SIDNEY HARRIS, et al..

Interveners-Appellants

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

BRIEF FOR INTERVENORS-APPELLANTS

STATEMENT OF THE CASE

This case involves important questions concerning 
judicial implementation of consent decrees entered into 
between the government and private industry, which pur­
port to remedy widespread practices of employment dis-



crimination: (1) the appropriate standards for judicial 
review and modification of the decrees; (2) the legality of 
a release provision which includes a waiver of the right 
to sue for full injunctive relief; and (3) the right of 
black workers affected by the discrimination to intervene 
in order to assert their right to be free from dis­
crimination.

This appeal arises from continued litigation con­
cerning the district court's approval of two consent decrees
negotiated by the Equal Employment Opportunity Commission

1/(EEOC), the Departments of Labor and Justice, nine major 
steel companies, and the United Steelworkers of America.
The legality and the appropriate judicial implementation 
of the consent decrees has previously been heard by this 
Court, United States v. Allegheny-Ludlum Industries, 517 
F.2d 826 (5th Cir. 1975), cert, denied No. 75-1008 (April 
19, 1976) ("Allegheny-Ludlum I”). In its Opinion the 
Court extensively described the consent decrees and 
appellants will generally limit their statement to pro- 
cedures svibsequent to Allegheny-Ludlum I.

ly The three goyernmental plaintiffs are referred to 
collectively as the "Government".

-  2 -



The consent decrees provided that certain remedial 
measures were to be taken in the plants covered; these pro­
visions were to be implemented in two stages. First, the 
consent decrees themselves provided for some general in­
junctive relief, e.g., the limited use of plant seniority. 
Second, the consent decrees provided that "as soon as 
possible, but in no event later than January 1, 1975" the 
implementation committees would review the employment
practices at each plant to determine if any changes in the1/ ^seniority units (or LOPs), seniority pools, departments.

2 / The consent decrees did not provide that vacancies
would be posted plant wide and filled on the basis of plant 
seniority, but rather that plant seniority would be used to 
implement a three-step bidding procedure, whereby a vacancy 
is filled from within the line of progression in which it 
occurs, then the entry job in the line of progression is 
filled from within the department, and finally the job 
left vacant in the department is posted plantwide. Nor did 
the consent decrees provide for "job-skipping", "advance- 
level" entry or other specific remedies designed to insure 
that affected employees would move to their "rightful place" 
as quickly as the demands of business necessity would permit. 
See Consent Decree I, para. 4, 40a-43a. This is the 
standard that has been repeatedly ordered by this Court. 
Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 248-49 
I5th Cir. 1974)(and cases cited therein); cf. Franks v. 
Bowman Transportation Company, U.S. , 44 U.S.L.W.
4356 (March 24, 1976). See generally Section II, infra.
3 / An "implementation committee" was established at each plant covered by the decrees. United States v. Alleqheny- 
Ludlum Industries. Inc., supra at 835.
^  Consent Decree I, para. 4(a)(2), 41a-42a.
^  Consent Decree I, para. 6, 43a-44a.

- 3 -



or in the definition of "vacancies" were "necessary" in
Vorder to provide full relief. The district court

approved an amendment to Consent Decree I, dated
December 27, 1974, extending the January 1, 1975 deadline
to March 15, 1975 "or such other date as the Audit and

8/Review Committee determines is necessary...."
The consent decrees also provided for an award of 

backpay to certain affected employees. In order to receive 
backpay, an affected employee is required to execute a 
release. (Consent Decree I, para 18(g), 68a-9a) The 
legality of the release, and its proper scope, was a major 
issue in Allegheny-Ludlum I. This court held that,

^  Consent Decree I, para. 7(d), 45a.
7/ Similarly the consent decrees themselves did not terminate 
or alter any testing program at any of the 250 plants covered 
by the decrees. (56a-8a) The decrees only stated that the 
companies agreed to abide by the testing Guidelines 
established by the EEOC and the Labor Department, see 
Section II, infra at 50, n.71.
8/ Counsel for the Harris Interveners have reviewed the 
minutes of the Audit and Review Committee (see Alleaheny- Ludlum I. supra at 835-36, for a description of the committee) 
which have been filed with tne district court prxor to the 
taking of this appeal. It is unclear from these minutes 
whether any deadline has yet been set by the A & R Com­
mittee. There is no svimmary or description of the results 
of the reviews, if they have in fact occurred at all the 
plants, in the minutes filed with the district court. See 
Section II, infra at 49-50.
9/ The award includes $30.9 million which averages to 
approximately $500 for each of the affected employees.

- 4 -



Reduced to their simplest terms, the items 
to be released by electing employees pursuant 
to paragraph 18(g), in return for backpay, are:
(1) all claims (subject to an exception not now 
germane) asserting unlawful employment dis­
crimination by the defendants and/or their 
agents or privies insofar as such claims are 
based on acts or practices, within the scope of 
the government's complaint or the consent decrees, 
which were completed on or before the date of the 
decrees' entry; and (2) claims for damages in­
curred at any time because of continued effects 
of complaint or decree-covered acts or practices 
which took place on or before the entry date of 
the consent decrees. Id_. at 853.

Of paramount importance for this appeal this Court ex­
pressly ruled that.

The release will not bar an employee from 
suing in the future for additional injunctive 
relief if the reforms contemplated by the 
decrees do not eliminate continued effects which 
are causally grounded in past acts or practices 
of discrimination. Id.
On December 11, 1975, four months after the Court's 

ruling, the defendant companies and Unions filed a Motion 
for Amendment of Consent Decree I, which, in effect, sought

wto reverse the determination of this Court. (94a-98a)

10/ Specifically, the defendants sought to change the 
third sentence of paragraph 18(g) which now reads:
" . . .  Such a release will also bar recovery of any 
damages suffered at any time after the date of entry of 
this Decree by reason of continued effects of any such 
discriminatory acts which occurred on or before the date 
of entry of this Decree".

As amended the sentence reads: " . . .  Such release 
will also bar claims for additional relief of any kind, 
including injunctive relief and damages, based on alleged 
injury suffered at any time after the date of entry of this 
Decree by reason of continued effects of any such dis­
criminatory acts which occurred on or before the date of 
entry of this Decree."

- 5 -



This Motion, which the Government did not join, explicitly 
provides (contrary to Allegheny-Ludlum I) that an employee 
who signs the release waives his right to sue for further 
relief to remedy the continuing effects of prior dis­
crimination which are not remedied by the consent decrees. 
The defendants filed a statement and two affidavits in 
support of their motion.

Also on December 11, 1975, all the parties to the 
consent decrees filed a Motion For Aproval of Back Pay 
Release and Notice Forms and the Government filed a Motion 
for Approval of EEOC Letters to Affected Employees With 
Pending EEOC Charges. (114a-144a) On that same day the 
district court ordered that any person seeking to respond 
to the three Motions must file the responses by December 29; 
the Court scheduled a hearing, on the motions for January 
2, 1976. (145a)

11/ The defendants filed a statement and two affidavits by 
their lawyers and/or representatives in support of the 
Motion which represent that it was the intention of the 
parties to include a waiver of the right to sue for in­
junctive relief to remedy the continuing effects of prior 
discrimination. (99a-113a) The Harris Intervenors main­
tain that this evidence is inadmissible since the defendants 
obviously had it in their possession during the litigation 
of Allegheny-Ludlum I and it can in no way be termed 
"newly-discovered" evidence and accorded admissibility 
after a final judgment has been rendered.

-  6 -



12/
The Harris Interveners, twenty-three black workers

13/
who represent six groups of black workers, filed a 

14 / 15/
timely motion to intervene. All of the Harris Interveners

12/ The term applies collectively to all the applicants 
for intervention below.
13/ Three groups of the interveners sought to intervene 
on behalf of black workers whom they presently represent 
in certified class actions: Jimmie L. Rodgers and John
A. Turner, represent a class of black workers at United 
States Steel Corporation's plant in Homestead, Penn­
sylvania, Rodgers v. United States Steel Corporation,C.A..NO. 71-793 (W.D. Penn,); John Taylor, Luther Reden 
and C.L. Garland represent a class of black workers at 
Armco Steel Corporation's Houston Works, Taylor v .
Armco Steel Corporation, C.A. No. 68-129 (S.D. Texas);
L.C. Waker, James L. Allen, Joseph Kimbrough, Joe Bryant, 
Joseph Faulkner and Isaiah Hayes represent a class of 
black workers at Republic Steel Corporation's plant in 
Gadsden, Alabama, Waker v. Republic Steel Corporation,
C.A. Nos. 71-179, et seq. (N.D. Ala.)

Two groups of the intervenors sought to intervene on 
behalf of classes whom they purport to represent in actions 
which have not yet been certified as class actions: Bernard 
Lane, Ellis Lewis, Levy Mazyck, George Mercer, and Robert 
Skates purport to represent black workers at the Sparrows 
Point plant of Bethlehem Steel Corporation, Lane v.
Bethlehem Steel Corporation, C.A. No. 71-580-H (D. Maryland); 
Sidney S. Harris, Willie J. Fonville, and Paige A. Millhouse 
purport to represent black workers at Republic Steel Corp­
oration's plant in Birmingham, Alabama, Harris, et al v. 
Republic Steel Corporation, C.A. No. 74-P-3345 (N.D. Ala.)

The sixth group of intervenors, K.D. Pender, Charles 
R. Brown, Sr., Robert L. Hill, and William R. Tilshman, are 
black employees who are or were employed at Armco's plant 
in Baltimore, Maryland. At the time of the district court's 
order there was no pending litigation at this plant, 
although Brown and Hill had pending EEOC charges. The "Pender" group sought to intervene on behalf of the past,
present and future black workers at the Baltimore plant.
14/ See Transcript of Hearing, 243 a.
15 ./ Footnote on the following page.

- 7 -



on this appeal had previously been granted intervention 
by the district court in Allegheny-Ludlum I; this Court 
approved the grant of the right to intervene. United 
States V. Allegheny-Ludlum Industries, supra at 846, n.22.

A hearing was held on the various Motions on January 
2, 1976. On that same day the district court orally 
indicated its rulings on the Motions; the district court 
entered a written Opinion and Order on January 6, 1976. 
(411a-417a)

The district court divided the intervention into two 
parts: intervention to oppose the amendment and intervention 
to object to the notice and release forms. After having 
indicated that intervention would be allowed as of right 
and by permission, the district court reversed its fxeld 
and denied intervention under Rules 24(a) and 24(b), except

15/ 146a-154a. The interveners filed a complaint in inter­
vention, 155a-186a, filed objections to the notice and release 
forms, 18'fe-223a, and filed a memorandum in opposition 
to the motion to amend consent decree I. In addition the 
interveners moved for leave to take discovery in the event 
that the district court rejected their arguments that the 
consent decree could not lawfully be amended.

The interveners sought discovery directed to two 
issues: (1) whether the injunctive relief was sufficiently 
adequate and (2) whether the original intent of all the 
parties was indeed to provide for a waiver of the right to 
sue for full injunctive relief, 224a-227a.
16/ See Section infra.

-  8 -



that the applicants for intervention would be allowed to 
file a Motion to Reconsider the Order approving the amend­
ment limited "to the facts for granting the amendment" and 
to discover these limited facts. (Tr. of Hearing 290a, see 
also 400a-40la; Order at 411a; Opinion at 414a-15a).

The intervenors alternatively maintained that they 
were already before the court on the question of the amend­
ment to the consent decree because they had been granted
intervention to challenge the legality and scope of the

17/
release provision. The intervenors argued that having been 
granted intervention to contest the form of release and, 
in fact, having prevailed, at least in part, they could not 
now be denied their day in court on the same question.
The district court disagreed but stated no grounds for its 
decision.

The district court denied the motion to intervene to 
object to the form of notices and release except for the 
Pender group because "the proposed intervenors [other than 
the Pender group] will ... have the opportunity to be heard 
in the court where [their] litigation is pending...."
416a; 412a)

17/ See Section III,A, infra

- 9 -



The district court then approved the amendment to the 
consent decree, (4l3a-14a), approved the notice forms al­
though it ordered several changes in the forms in response

18/
to the objections of the interveners, and approved the

19/
release form and the EEOC letters.

A timely notice of appeal was filed by the Harris 
Interveners and this Court has jurisdiction of this appeal 
pursuant to 28 U.S.C. §§1291 and 1292(a)(1).

A R G U M E N T  
I.

THE DISTRICT COURT'S APPROVAL OF THE 
AMENDMENT OF CONSENT DECREE I WAS ERRONEOUS 
UNDER THE LAW APPLICABLE TO THE MODIFICATION 

OF FINAL JUDGMENTS________________
A. Introduction and Summary

The issues posed on appeal proceed from a unique 
litigation history.

2 0/

18/ 415a; see 418a-30a.
19/ The EEOC agreed to alter its letters, and in fact 
altered its plans to distribute some letters, in response 
to the objections of the intervenors.
20/ The appellants could find no case which even approaches this situation: The amendment of a decree in the district 
court to accomplish the ends of some parties after the 
issue had been litigated and decided by the Court of Appeals.

-  10



One of the principal issues in the Harris-Interveners
challenge to the consent decrees in Allegheny Ludlum I
was the scope and validity of the release. At the hearing
held by the district court to determine, inter alia, whether

22/
certain provisions of the consent decrees were lawful, 
the Harris Intervenors raised the problems created by the 
deliberate vagueness in the provisions of the consent decrees. 
The district court agreed that there were substantial pro­
blems of vagueness:

THE COURT: Don't the problems of vagueness 
and obviously there —  this is the most sig­
nificant effect when it comes to the provisons 
dealing with waivers ..., isn't that the rea1 
problem with the vagueness, (emphasis added)

The district court in colloquy with counsel added

21/ Specifically, the Intervenors questioned whether the 
release provision applied to a waiver of the right to sue 
for full injunctive relief from the continuing effects of 
past discrimination which were not remedied by the consent 
decrees; and, if so, whether the provision was lawful.
22/ The hearing was held on May 20, 1974, see United 
States V. Alleqheny-Ludlum Industries, supra at 839.
23/ Transcript of Hearing, May 20, 1974, at p. 76.

-  11 -



Suppose I go back to this paragraph 20 about 
retained jurisdiction, and the question of 
additional order[s]. To the extent there 
are vagueness problems is there not a possibility 
of vagueness being rectified through a clarify­
ing order?24/

The defendants at the May 20, 1974 Hearing neither sought
to clarify the vagueness of the provision nor to submit any
evidence relating to the parties' intent in preparing the
provision. The district court in its opinions upholding
the release provision did not clarify the provision, and
most importantly, simply referred to the legality of the

25/
"back-pay release". The Harris Interveners then moved.

24/ Transcript of Hearing, May 20, 1974, at p. 77.

2 5/ "This Court concludes that there can be a legal 
waiver of back-pay claims where, for valuable consideration, 
a release is signed knowingly and voluntarily, with adequate 
notice which gives the employee full possession of the 
facts", 63 F.R.D. 1, 7 (N.D. Ala. 1974)(emphasis added).

Similarly, in its opinion rendered from the bench on 
May 20, 1974, the district court stated, "[t]he question 
of the binding effect of a release for back pay is one that 
all the parties haye an interest in and which needs 
resolution.... It is my conclusion after a study of the 
matters, that there can be an effective waiver or settle­
ment a_ back pay situation". (emphasis added) Opinion of 
May 20, 1974 at 7-8, App. to Appeal No. 74-3056 at 157a-58a.

See also Memorandum of Opinion, July 17, 1974, App. 
to No. 74-3056 at 206a-07a.

-  12 -



as the district court had suggested in the May 20, 1974 
hearing, for a clarification concerning whether the releases 
included a waiver of the right to sue for full injunctive 
relief; the intervenors pointed out that the district court 
previously limited the provision to providing for the re­
lease of certain rights to sue for back pay, that there 
was considerable disagreement among the parties to the 
consent decrees, and that "[i]f this misunderstanding is
not cleared up now, it will unnecessarily complicate pro-

26/
ceedings in the Fifth Circuit on appeal...."
None of the parties to the consent decrees (Government, 
Companies, or Union) responded to the intervenors' Motion 
for Clarification. Nor did those parties file any motion 
or submit any evidence to clarify the release provision.
The district court declined the rule on the Motion filed 
by the Harris Intervenors. Transcript of Hearing of July 
23, 1974, p. 22.

On appeal to this Court, the Harris Intervenors sought 
clarification of the release provision. Section 18(g) of 
the consent decree. To this end the Intervenors posed the 
following question in their reply brief (in No. 74-3056):

26/ Harris Intervenors' Motion to Clarify Consent Decrees 
Regarding Proposed waivers, filed July 23, 1974, attached 
hereto as Appendix "A".

- 13 -



" (1) Does the release contemplated by 
Section 18(g) waive an employee's riqht to 
sue for additional or inconsistent injunctive 
relief if the Consent Decrees do not eliminate 
the continuing effects of past discrimination?"

At the oral argument before the Court on December 6, 1974,
Mr. Gottesman, counsel for the Steelworkers, stated on
behalf of all the parties to the consent decrees that it
was their understanding that such a waiver of the right to
sue for injunctive relief was included in the release.

However, after consideration of the language of §18(g),
the Record and the representations of the parties the27/
Court held to the contrary:

The release will not bar an employee from 
suing in the future for additional injunctive 
relief if the reforms contemplated by the 
decrees do not eliminate continued effects 
which are causably grounded in past acts or 
practices of discrimination. 517 F.2d supra 
at 853.

Four months after the appellate decision, the defendant 
Companies and Union moved the district court pursuant to

27/ The Court specifically stated, "Lest we be thought to 
decide more than is necessary for purposes of this contro­
versy, we simply note that our construction of paragraph 
18(g), just advanced, does not wholly comport with the views 
of either the government, the steel companies, the union, 
the Harris appellants, or the three female appellants.
Nor do those parties' interpretation —  even among the 
appellees —  reflect total consistency". (emphasis added) 517 F.2d, supra at 856.

- 14 -



28/
paragraph 20 of Consent Decree I, to change the release
provision to include a waiver of the right to sue for full
injunctive relief and thus to directly reverse the decision
of this Court. The district court in granting the Motion
did not rely on paragraph 20, but rather based its decision
on contract law. (Op. 413a-14a; Tr. 287a-79a) The district
court stated that it could reform a contract where "the
written record is by mutual mistake of the parties contrary

2 9/
to what they actually agreed upon". (Id.)

28/ Paragraph 20 states as follows: "The Court hereby 
retains jurisdiction of this cause for the purpose of 
issuing any additional orders or decrees needed to 
effectuate, clarify or enforce the full purpose and intent 
of this Decree". (71a)
2 9/ It should be noted that the government expressly 
declined to join in the motion to amend. (Tr. 254a)

There was no new "contract" or "consent decree" 
proposed by the parties. As the court stated: "I would 
agree that there is no full meeting of the minds as of 
today [January 2, 1975] on what the Court should so as 
the decree [motion to Amend]". (Tr. 259a)

- 15 -



The amendment to the release provision of consent 
decree is contrary to the "intent and purpose" of the 
decree as expressed therein and/accordingly, the decree may 
not be modified by that amendment pursuant to Paragraph 20. 
(See Infra at B). The consent decree is a final judgment, 
not a private contract. The defendants' motion to amend 
did not meet the requirements set forth in Rule 60(b),
FRCP, for modifications of final judgments and the motion 
is thus barred by res judicata (See Infra at C). Finally, 
the defendants may not now seek to introduce evidence which 
purports to show their intent in drafting the release pro­
vision which they deliberately chose not to present when the 
issue of the scope of the provision and its vagueness was 
in litigation before both the district court and this Court; 
nor did they present this evidence in a petition for re­
hearing of Alleqheny-Ludlum I as they should have if they 
were to contend that the interpretation of the release pro­
vision was contrary to their intent. Not having done so, 
they are now barred from reopening the matter. (See Infra 
at D) .

- 16 -



B . Paragraph 20 of Consent Decree I Does Not Authorize 
the Amendment

The defendants sought to amend the final judgment 
pursuant to paragraph 20 of the Consent Decree by v^ich 
the district court retained jurisdiction to "effectuate, 
clarify or enforce the full purpose and intent of this 
Decree". (71a) Paragraph 20 not only does not support the 
district court's approval of the amendment it actually 
requires the reversal of the district court.

The "purpose" of the consent decree must be determined
from "the four corners" of the consent decree and not, as
the defendants argue, from the self-serving statements of

30/
some of the parties.

Naturally, the agreement reached normally 
embodies a compromise; in exchange for the 
saving of cost and elimination of risk, the 
parties each give up something they might have 
won had they proceeded with the litigation.
Thus the decree itself cannot be said to have 
a purpose; rather the parties have purposes, 
generally opposed to each other, and the re­
sultant decree embodies as much of these oppos­
ing purposes as the respective parties have the 
bargaining power and skill to achieve. For 
these reasons, the^scope of a consent decree 
must be discerned within its four corners, 
and not by reference to what might satisfy 
the purposes of one of the parties to it.
(footnote omitted)

30/ Accordingly the "evidence" siibmitted by the defendants 
in support of their motion, affidavits and a statement pur­
porting to demonstrate the intent of the negotiators, is 
irrelevant to the issue.

17 -



United States v. Armour & Go.. 402 U.S. 673, 681-82 (1971); 
see also United States v. Allegheny-Ludlum Industries, Inc., 
supra at 853, 873.

The "purpose" the defendants seek to invoke is their 
private purpose —  to obtain from black workers a waiver 
of the right to sue for full injunctive relief and thereby 
thwart further suits to remedy systemic and individual 
discrimination. But this is not the "purpose" of the consent 
decree. The consent decree plainly states that " . . .  This 
Decree and Consent Decree II are being entered v/ith the 
intent and purpose to protect the rights and interests of 
employees . . . with respect to the matters within the scope 
of these Decrees". (23a ;77a) This is the "intent and pur­
pose" for which the district court has retained jurisdiction

31/to implement under paragraph 20.
The district court previously ruled that paragraph 20 

must be read in light of the "intent and purpose" section 
on page 3 of the consent decree:

31/ It is entirely appropriate that where the "intent and 
purpose" of a consent decree is set forth within the 
instrument, then that provision should govern any judicial 
interpretation of the "purpose" of the decree. Cf. Note, 
Flexibility and Finality in Antitrust Consent Decrees,
80 Harv. L. Rev. 1303, 1315 (1967), cited with approval 
in United States v. Armour & Co., supra at 682, n.lO.

- 18 -



I do read, however, paragraph 20 of the consent 
decree No. 1 as retention of jurisdiction for 
the purpose of issuing any additional orders or 
decrees needed to effectuate, clarify or enforce 
the full purpose and intent of this decree. That 
in turn is defined back in paragraph b or para­
graph c. It is really on page 3. Intent and 
purpose to protect the rights and interests of 
employees and future applicants for employment.

Transcript of May 20, 1974, Hearing, p. 74.

Counsel for the Companies agreed with this inter­
pretation :

THE COURT: Before you do that, I would like 
to hear your comment upon paragraph 20, the 
scope of the provision dealing with retained 
jurisdiction.
MR. MURRAY: Well, paragraph 20 is the 
retained jurisdiction. It relates to para­
graph 3 which states the purpose, and para­
graph 20 says that the Court has jurisdiction 
to do things necessary to carry out the purpose.
I believe that means that the Court is confined 
to the four corners of the consent decree and 
cannot modify it, but can implement the purpose 
stated therein.

Transcript of May 20, 1974, Hearing, p. 175.

The amendment or modification sought by the defendants 
is not only inconsistent with the purpose and intent of 
the consent decree, but it is antagonistic to that purpose. 
The requirement that an employee waiver his right to full 
injunctive relief is contrary to the stated purpose of the 
consent decree —  "to protect the rights and interests 
of employees".

- 19 -



C. TTne Consent Decree Was A Final Judgment and 
Defendants' Motion to Amend Did Not Meet the 
Requirements of Rule 60(b) for Modification of 
a Judgment.

The district court erred when it modified the consent
decree, a final judgment of that court, as if it were a
private contract. The Supreme Court has categorically-
stated that " [w] e reject the arg\iment . . . that a decree
entered upon consent is to be treated as a contract and not
a judicial act". United States v. Swift, 286 U.S. 105, 115
(1932). The district court reasoned to the contrary:

That the written agreement has received the 
imprimatur of the court33/ should not change 
the right of the parties to obtain a correction, at least if intervening rights 
of innocent persons have not accrued during 
the interim. (Footnote added) (414a)

A consent decree when entered by a district court be­
comes a final judgment of that court subject to the rules 
applicable to final judgments; it may not be changed, or 
modified upon motion of some parties to the consent decree

M /as if it were a private contract.

33/ The pertinent provision was not only given the 
"imprimatur" of the district court, but also received 
the considered construction of this Court.
34/ A final judgment or injunction may be modified in 
appropriate circumstances whether the judgment or injunction 
results from a litigated action or a consent decree.
See United States v. Swift, 286 U.S. 105 (19 32 ) . However, 
the applicable standards are not those of contract law.

-  20 -



A principal aspect of a final judgment is the
principle of res ludicata. "Once a party has fought out
a matter in litigation with the other party, he cannot
later renew that duel". Commissioners v. Sunnen. 333 U.S.

36/
591, 598 (1958). Here one of the principal issues in 
litigation was the scope and validity of the release pro­
vision. The vagueness of the release provision was pre­
sented by the Intervenors at the May 20, 1974, Hearing and 
acknolwedged by the district court, supra at 11-12.
After the district court rendered its several opinions 
indicating that the release required only the waiver of the 
right to sue for certain claims of back pay, the intervenors

35/ "The desire that judicial determinations be conclusive 
between the parties has been fundamental in all systems of 
law that have contributed to our jurisprudence".
Developments in the Law - Res Judicata, 65 Harv. L. Rev.
818, 820 (1952).
36/ "Hearkening as we should to the principle epitomized in 
Justice Story's apothegm that 'It is for the public interest and policy to make an end to litigation * * *' so that 
'* * * suits may not be immortal while men are mortal,'" 
Bros. Incorporated v. W.E. Grace Manufacturing Company,320 F.2d 594, 597-98 (5th Cir. 1963).

There is no question that the doctrine of res judicata 
applies to consent decrees. See United States v. RCA. 46 
F.Supp. 654 (D. Del. 1942) appeal dismissed on Government's 
motion. 318 U.S. 796 (1943). In fact the parties to the 
consent decrees expressly incorporated the doctrines of res 
judicata and collateral estoppel. Consent Decree I, p. 4 
(24a); Consent Decree II, p. 4 (78a)

-  21 -



filed a motion to clarify the release provision, supra at 13<
During this entire period the parties to the consent decrees
never sought to clarify, much less modify, the provision in
order to establish its scope beyond all question; nor did
they seek to present the evidence which they presented more
than seventeen months later in support of the defendants'

37/motion to amend.
The defendants seek to modify the final judgment of

the district court dated June 7, 1974 when it denied the
Interveners' motion to set aside the consent decrees entered38/
on April 12, 1974. (R. 110-111) The Harris Interveners
have argued that this modification (or amendment) is barred 
by res judicata. While under certain conditions, parties 
may escape the finality of judgment, these conditions are 
not presented in this litigation.

The general procedure for relief from a judgment is 
set forth in Rule 60, FRCP. The applicable provision.
Rule 60(b), provides two methods for a party to seek review

37/ The evidence presented by the defendants in support of 
their motion to amend, see supra at 6, set forth only 
the intentions of those who negotiated the consent decrees 
on behalf of the defendants. This evidence of course is 
in no way "newly discovered" and was in the possession of 
the defendants since the entry of the consent decree.
38/ "R. ," refers to the page of the Record filed with
this Court upon the docketing of this appeal.

-  22 -



of a final judgment: by motion in the court which entered
it or by an independent action filed in that court or in
another court. A party may file a motion seeking relief
from a final judgment under six separate provisions of
which only the first is relevant:

"On motion and upon such terms as are just, 
the court may relieve a party or his legal 
representative from a final judgment . . .  
for the following reasons: (1) mistake, 
inadvertence, surprise, or excusable neglect--."

Rule 60(b) also provides that relief from judgment may be
sought by an independent action because

The saving provision of Rule 50 (b)... 
is intended "to preserve the power of 
the courts to entertain remedial actions 
for relief in circ\amstances where the old 
writs, now abolished, would have been 
available...." which, although putting "an 
end to the inceties of the writs ... re­
tains their sxobstance ..." so that "relief 
is now available, either by motion or in an 
independent action, in any situation in which 
it could have been had by one of these common 
law remedies". 3 Barron & Holtzoff §1331 
at 430.

In re Casco Chemical Co., 335 F.2d 645, 652 (5th Cir. 1954). 
1. A Motion Under Rule 60(b) Was Untimely 
The defendants by moving to amend the consent decree 

sought relief from the final judgement, in effect, by motion

- 23 -



39/
under Rule 60(b) (1). However, the district court was
without jurisdiction to hear the motion for two reasons.
Rule 60 provides that the "motion shall be made within a
reasonable time, and for reasons (1), (2), and (3) not more
than one year after the judgment ... was entered...."
The judgment was entered on June 7, 1974 and accordingly
the Motion, filed on December 11, 1975, was time-barred.

40/
The one-year time period may not be enlarged. 7 Moore's
Federal Practice para. 60.28[2] at 400-01. The time for
filing the motion was not enlarged by the Harris Intervenors

41/appeal from the June 7 Judgment.

39/ The defendants styled their motion as one under para­
graph 20 of Consent Decree I, but the court did not grant 
it pursuant to this provision, as it could not (see supra 
at B); rather the court properly treated it as a motion to 
amend the judgment, but improperly reviewed that motion 
according to contract law rather than the law relating to 
final judgments.
40/ The Advisory Committee in its May, 1954 Draft of 
amendments to the Rules, proposed to amend the time pro­
vision of Rule 60 (b) to state that motions filed under 
sections (1), (2) or (3) "shall be made . . . not more than
one year after the [judgment] grounds therefore have accrued 
and are known to the moving party". The amendment was 
not adopted. See 7 Moore's Federal Practice para. 60.28[8] 
at 401, n.40.
41/ See transit Casualty Company v. Security Trust 
Company, ^41 F.2d 788, 791 (5th Cir. 1971).

- 24 -



Furthermore, the district court did not have the 
power to approve a Rule 60(b) motion because "after an 
earlier appeal and the issuance of a mandate by a court of 
appeals, permission to file a 60(b) motion in the trial 
court must first be granted by the appellate court".
Bros. Incorporated v. W.E. Grace Manufacturing Company,
320 F.2d 594, 607 (5th Cir. 1963). In this case an appli­
cation to this Court would not have been a formalism but
would have permitted the Court the opportunity to determine

43/the merits of the motion seeking relief from the judgment.

42/ This statement is dictum in Bros. Incorporated, but see the authorities cited i^. at 607, n.32.
The Advisory Committee in its May 1954 Draft proposed 

to dispense with the necessity of seeking leave from the 
appellate court to file a Rule 60(b) motion. This proposal 
was not adopted. 7 Moore's Federal Practice para.
60.30[3] at 428-29.
43/ Professor Moore supports the rule requiring application 
to the Court of Appeals for just this reason, see 7 Moore's Federal Practice para. 60.30[3] at 429, n.27.

- 25 -



2. Amendment By An Independent Action Was 
Barred By Res Judicata. 44/

Although the district court could not have considered 
the motion pursuant to Rule 60(b) (1), it could have con­
sidered a modification of the judgment in an "independent

45/
action" nominally filed pursuant to Rule 60(b). There is
no time limit as to when a district court may entertain such
an action. But Rule 60(b) neither restricts nor expands the
scope of the ancillary procedures for relief from final46/
judgment formerly provided by the equitable writs, the 
scope of the independent action under Rule 60(b) must be 
gauged by the breadth of the relief formerly provided by 
those writs. In re Casco Chemical Co., supra at 652;

44/ If the Court rejects the Appellants' argument that a 
motion under Rule 60(b) was untimely then the argument in 
this section would apply to that Motion and accordingly 
the motion would be barred by res judicata.
45/ The district court may disregard the particular style 
of a pleading and treat a motion under Rule 60(b) as the 
institution of an independent action. Bros. Incorporated 
V. W.E. Grace Mfg. Co., supra; see also 7 Moore s Federal 
Practice para. 60.73[2] at 628. Without conceding the point, 
the Harris Intervenors assume that the same rule applies 
to the Defendants' Motion to Amend filed herein in order to 
fully set forth the considerations for allowing relief from 
a judgment.
46/ It is doubtful that the Federal Rules of Civil Procedure 
could eliminate the rights to such relief developed by 
chancery. See 7 Moore's Federal Practice, para. 60.31 
at 501, n.9.

- 26 -



West Virginia Oil & Gas Co. v. George & Breece Lumber Co.,
213 F.2d 702, 706 (5th Cir. 1954).

While permitting independent actions under the equitable 
writs to secure relief from final judgment, the courts have 
consistently ruled that parties are precluded by res judicata 
from relitigating in those actions issues that were present 
or open to litigation in the prior action where the party 
had a fair opportunity to make his claim or defense. Toledo 
Scale Co. v. Computing Scale Co.. 261 U.S. 399, 424-25 (1923); 
American Surety Co. v. Baldwin. 287 U.S. 156, 168-69 (1932); 
Cf. American Bakeries Co. v. Vinina. 80 F.2d 932, 933 (5th 
cir. 1936). In this case the issue concerning the scope of 
the release provision was repeatedly contested by the Harris 
Intervenors. The defendants had ample opportunity to clarify 
the provision and to submit evidence, such as they eventually 
did in support of their motion to amend. Accordingly, the 
defendants should not now at this late date be permitted to 
relitigate the scope of the release provision.

Having ruled that consent decrees are practically 
identical to contracts, the district court infers that final 
judgments resulting from consent decrees may more readily

47/ No one contests, as they could not, that the evidence 
was "newly discovered".

- 27 -



be modified or amended than other final judgments. In fact,
the courts have applied stricter standards to actions in
which relief is sought from final judgments derived from
consent decrees. This practice has its roots in the rules
of chancery. In one early English case involving a consent

48/decree, one party to the decree filed a bill of review
seeking relief from the judgment; the Chancellor ruled:

I immediately dismissed the bill, and would 
hear no more of it; for there can be no error 
in a decree by consent, consensus tillit 
errorem; there can be no injustice in a decree 
by consent, volenti non fit injuria.

Webb V. Webb. 36 Eng. Rep. 1011 (Ch. 1676).
The rule announced in Webb was adopted by the Supreme

Court in Thompson v. Maxwell Land-Grant and Railway Company.
49/

95 U.S. 391, 398 (1877). In Thompson the Supreme Court re­
stated the Webb rule:

A decree carrying out a settlement and 
compromise of a suit is certainly not, of 
itself, erroneous. When made by consent, 
it is presumed to be made in view of the

48/ The bill of review was one of the ancillary writs 
for seeking relief from a final judgment which were in­
corporated into Rule 60(b), FRCP.
49/ Mr. Moore who represented the Government in the January 
2, 1976 hearing cited three cases, including Thompson, to 
the district court and stated that the court "may find [them] 
instructive". Mr. Moore did not state his interpretation 
of the cases, whether they would support the motion to amend 
or not, but rather "decline[d] to either join or oppose the 
defendants' motion but leave the issue to the Court". (254a) 
The other cases cited by Mr. Moore, Wisconsin v. Michigan,
295 U.S. 455 (1935); West Virginia Oil and Gas Company v . 
Breece Lumber Company. 213 F.2d 702 (5th Cir. 1954), are discussed above.

- 28 -



existing facts, and that these were in the 
knowledge of the parties. In the absence 
of fraud in obtaining it, such a decree can­
not be impeached. I^. at 398.

This case dealt with the disputed disposition of certain 
land contained in an estate. The parties seeking review 
of the consent decree maintained that the decree had been 
in error concerning the interest in the land, and that this 
was demonstrated by newly discovered evidence. Although the 
Supreme Court noted again that the bill of review to "reverse, 
modify and reconstruct" the consent decree cannot be sus­
tained" by any law of procedure which may be invoked in its 
support" (and accordingly reversed the lower court's grant 
of the bill), it nevertheless remended to the lower court 
for amendment of the pleadings and the offer of new proof.
The Court was directly influenced by the purpose to which 
the bill was addressed, the quieting of title to the land 
in question, at 399, and by the fact that there was sub­
stantial doubt as to whether the decree had actually been 
executed, apparently because of the error involved, at 400,

The scope of what may properly be altered in a consent 
decree after it is entered as a final judgment because of 
mutual mistake was further explained in Wisconsin v. Michigan, 
295 U.S. 455 (1935). This case, one of original jurisdiction 
in the Supreme Court, concerned at first a dispute over the 
proper state boundary on an island in Lake Michigan. After

- 29 -



the Supreme Court announced its decision the parties agreed 
to a decree to effectuate that decision, id. at 460. How­
ever, in setting forth the boundary in the decree, the parties 
omitted to state whether the boundary line dividing the bays 
between the states was the geographical middle of the waterway 
or in the middle of the navigable channel. The Supreme Court 
ruled that the first decree could be amended to resolve this 
issue since,

the location of the boundary line dividing 
the waters of the bay between the states 
was not in issue. No evidence was offered 
for the determination of that question. It 
was all addressed to the controversy con­
cerning the islands —  the matter then in 
dispute. 460.

This Court had an opportunity to consider the effect 
of the Supreme Court's decisions in Wisconsin and Thompson. 
West Virginia Oil & Gas Co. v. George & Breece Lumber Co.,
213 F.2d 702 (5th Cir. 1954). The question presented was 
similar to the narrow issues presented in the two Supreme 
Court cases. The parties had agreed by a consent decree to 
divide certain property. However, a "substantial interest 
in [the] property [had] allegedly been decreed to the wrong 
litigant", Ld. at 705, and in fact the decree had so 
flagrantly negated the intentions of the parties that they 
had for several years "lived under the judgment and exercised 
rights under the judgment, not as adjudicated therein but as

- 30 -



intended by the parties" (emphasis added). This Court then
ruled that the necessity for finality could be overcome
"where it is against conscience to execute that judgment
and where that judgment was rendered without fault or neglect
on the part of the party seeking to reform it", at

50/
704.

These three cases do not in any way support the amendment 
of the final judgment in this case because of alleged mistake 
of the parties. The courts in all three cases were concerned 
with the strong p\iblic policy favoring the "quieting" of 
title to land; here there is a strong public policy favoring 
the award of full injunctive relief in employment dis- 
crimination cases which militates against amendment of 
consent decree I to include a broad waiver of relief.
Moreover, neither in Thompson, Wisconsin, nor Breece Lumber 
Co. was the issue of the division of land actually litigated 
in the district court much less in the Court of Appeals, as 
the scope of the waiver was litigated in this case. Finally, 
the decree in this case was hardly "against conscience" when 
it, as defined in Allegheny-Ludlum I, protects the rights

50/ In Breece Lumber Co. the mistake in the judgment only 
came to light when new gas drilling created new interest 
in the land in question.

Here the defendants had repeated opportunities to 
clarify the language and present evidence in both the 
district court and this Court. There was no "newly 
discovered" evidence as in Breece.
51 / See infra at 40-41.

- 31 -



of workers to sue to remedy continuing discrimination. Finally 
there was no flagrant error in the distribution of land 
(or other right or property) as in Breece or Thompson which 
manifestly resulted in the unjust enrichment of one of the 
parties to the decree.

D . The Defendants Having Selected Not to Modify
Consent Decree I During Allegheny-Ludlum I, Nor 
To Submit Clarifying Evidence, Nor to Petition 
This court for Rehearing, May Not Now Reopen the 
Final Judgment.
The defendants chose not to clarify the release provision 

during the litigation of Allegheny-Ludlum I. As fully set
forth in Section A, supra. the defendants did not respond to

. ■>
the district court's statement at the first hearing in the 
consent decree litigation on May 20, 1954 that a clarification 
of the release provision would probably be necessary; nor 
did they respond to the Harris Intervenors' Motion for 
Clarification; nor did they at any time seek to submit 
clarifying evidence concerning thier intent. Rather the 
defendants were satisfied to submit a decree to the court 
which was vague; they relied on the courts to structure the 
decree as the demands of subsequent litigation would require. 
This is not surprising; parties who have conflicting views 
and interests often can only agree on general language and 
in order to avoid immediate litigation among themselves 
agree in effect to allow the courts by means of a consent

- 32 -



decree to implement the parties general agreement. See 
United States v. Armour & Co., supra at 681-82.

The defendants may not alter their position after 
having submitted the consent decree to the court, and litigated 
its scope and legality in the district and appellate courts 
without submitting evidence or otherwise seeking to 
clarify the vague provisions of the decree.

The defendants' last opportunity to clarify the decree 
was in a petition for rehearing. If the defendants contended 
that this Court in its August, 1975 Opinion "misapprehended" 
the construction of the release provision they should pro- 
perly have filed a petition for rehearing. The Steel­
workers and the Comapnies did not present this Court with a 
rehearing petition but sought four months subsequent to the 
decision to alter its consequence by amendment in the dis­
trict court. Such manipulation of the prescribed procedures 
should not be countenanced by the Court. Cf. Burkett v.
Shell Oil Company. 487 F.2d 1308, 1317 (5th Cir. 1973).

52/ The purpose of Rule 40, FRAP "is to direct the Court's 
attention to some material matter of law or fact which it 
has overlooked in deciding a case, and which, had it been 
given consideration, would probably have brought about a
different result". NLRB v. Frown ^ Root,_Tnc., 206 F.2d
73,74 (8th Cir. 1953) .

The defendants in their motion to amend before the 
district court argued, in effect, that this Court had 
"overlooked" a material consideration —  the intent of the 
parties to the coneent decrees. This properly should have 
been presented to this Court in a petition for rehearing.

- 33 -



The Steelworkers' and Companies' strategy of relitigat­
ing the scope of the waiver after a decision by this Court 
directly contravenes the basic grounds upon which the 
doctrine of estoppel by judgment rest: "Considerations of 
economy of judicial time and public policy favoring the 
establishment of certainty in legal relations". Commissioner 

V. Sunnen, supra at 597. In Allegheny-Ludlum I all the 
parties agreed that the expedition of the litigation was 
"imperative". The Court agreed and granted the Harris

M /Interveners' Motion to Expedite the Appeal. The Court 
emphasized the need for clarity in defining the scope of the 
waiver by carefully spelling out exactly what was not included 
in the provision.. United States v. Allegheny-Ludlum 
Industries,Inc.. supra at 853-56.

The defendants, by re-litigating the scope of the release 
provision, have not only unnecessarily increased this already 
extensive litigation, and the concomitant demand on the time 
of the judiciary, but they have thrown what was once clarified

53/ The Union termed such expedition "imperative". Union's 
Support of Motion for Expedited Appeal, p. 5, filed in No. 74-3056.
54/ The Motion was granted by Order entered in No. 74-3056 on September 6, 1974 per Judges Goldberg and Gee.

- 34 -



by the Court into a state of confusion. The Court not 
having previously ruled on the validity of a waiver of the 
right to sue for full injunctive relief because of its 
definition of the release provision will now have to consider 
this question, see Section II, infra. if the Court affirms 
the district court's grant of the Motion to Amend.

A consent decree is not a temporary resolution of some 
difficulties between the parties subject to modification 
when some of those parties contend that their interests 
are threatened. The return of the defendants to the district 
court, to modify a final judgment, undercuts the imperative 
need for finality in judicial decrees.

In conclusion, it should be noted that it is strange 
indeed that the parties to the consent decree did not 
directly and explicitly state that the release provision 
included a waiver of the right to sue for full injunctive 
relief from the continuing effects of discrimination, if it 
was their intent to formulate such a waiver. The problem 
of the continuing effects of past, systemic discrimination 
pervades Title VII law. Even when the vagueness of the pro­
vision was raised in the litigation and its scope placed in 
question the defendants did not seek to clarify it. It re­
mained for this Court to clarify and define the scope of the 
release provision. It may have been the hope of some of the 
parties that the release would be read to include a waiver

- 35 -



of the right to sue for full injunctive relief, but it may- 
have been the intention of the parties to avoid a precise 
formulation because of the arguable legality of such a waiver. 
In any case the parties chose not to clarify or amend the 
cx)nsent decree but rather to allow its scope to be determined 
by ligitation. It would be contrary to all considerations 
of the need for finality in litigation to permit the defendants 
now to alter their course and reverse the opinion of -this 
Court by subsequent amendment of the final judgment in the 
district court. If the district court's ruling stands, con­
sent decrees, contrary to all prior law, may no longer be 
treated as final judgments and it will be practically im­
possible to rely on their terms since those terms may be 
readily altered when there is a change in the interests 
of the parties.

II.
THE nCSTRICT COURT ERRED IN APPROVING THE 
AMENDMENT TO CONSENT DECREE I BECAUSE IT 
UNLAWFULLY REQUIRED AN EMPLOYEE WHO ACCEPTS 
THE BACKPAY TENDER TO WAIVE HIS RIGHT TO SUE 
FOR FULL RELIEF FROM EMPLOYMENT DISCRIMINATION

In Alleqheny-Ludlum I this Court extensively reviewed
55/the scope and legality of the backpay waiver. The Court

55/ United States v. Alleqheny-Ludlum Industries, Inc., 
supra at 851-64.

- 36 -



was then concerned with numerous effects of the release
provision concerning the waiver of the right to sue for
claims of backpay as well as for the right to sue for full

56/
injunctive relief. Here the question concerning the release 
provision of consent decree I is straightforward: may a 
black worker who is adversely affected by the employment 
practices of the defendants lawfully be required to waiver 
his right to sue for full injunctive relief if the acts taken 
subsequent to the effective date of the entry of the consent 
decree do not in fact eliminate the adverse effects of the
discriminatory practices which pre-dated the consent decrees

56/ See Brief for Intervenors-Appellants in United States v. 
Allegheny-Ludlum Industries, Inc., No. 74-3056 at 5-6.
57/ The Harris Intervenors raised this issue in Allegheny- 
Ludlum I. However, the Court did not reach this issue because 
of its construction of the consent decree, see supra at 5.

In Allegheny-Ludlum I the Harris Intervenors raised a 
further issue concerning the release of the right to sue for 
injunctive relief: the right of those workers who accepted the 
tender and execute releases to sue to enforce the consent 
decrees if the defendants fail to comply with the consent decrees,

The Court answered affirmatively: "Any employee who feels 
aggrieved by the defendants' palpable disobedience of the 
terms of the decrees may sue, in effect,to enforce them", 
id. at 854.

This issue is not now before the Court. However, it is 
pertinent to note that the parties are in disagreement con­
cerning the Court's ruling. The defendants interpret the 
Court's ruling as providing that a member of the affected 
class, who, for example, worked in a plant in California, 
may sue to enforce the consent decree in the Northern District of Alabama but not in the California district court.

-  3 7  -



The amendment is illegal. The provision amounts to a 
"prospective" waiver of Title VII rights because an employee 
is barred from contesting future acts committed by the 
defendants which will have adverse racial consequences. The 
Supreme Court has expressly held that "there can be no pro­
spective waiver of an employee's rights under Title VII". 
Alexander v. Gardner-Denver Co., 415 U..S. 35, 51 (1974). 
This Court has held that Alexander does not bar an employee 
from agreeing to settle his unliquidated claim for money 
restitution. United States v. Allegheny-Ludlum Industries. 
Inc.. suora at 858-59. Similarly, under Alleahenv-Ludlum I 
an employee may waive his right to further injunctive relief 
for discriminatory acts or practices which "were completed
on or before the date of the decrees' entry". 853. 5 ^

57/ [Continued]
The Harris Intervenors maintain that the affected class 
members have the right to file suit in the local district 
court to enforce the consent decrees because if this was not 
the case, class members would be required to engage in an 
expensive and complex form of "air-shuttle" litigation which 
would be impossible for most employees. ^

The issue is complicated by the fact that if the 
defendants prevail on this appeal (the motion to amend is 
upheld) affected class members will be confronted with the 
possibility that if a local district court rules that it has 
jurisdiction to hear a suit to enforce the consent decrees then 
the defendants will once again move the district court in 
Birmingham to amend the consent decree to preclude suits 
for enforcement in other district courts.
58/ The Harris Intervenors admit that there is dicta in 
Allegheny-Ludlum I which indicates that an employee may

- 38 -



But this is not the type of waiver presently before 
this Court. The form of discrimination which most widely 
and adversely affects black workers is segmented seniority 
systems built upon past practices of job allocation by race.
See e.g, United States v. United States Steel Corporation,
371 F.Supp. 1045 (N.D. Ala. 1973) vac, and rem. on other 
grounds. 520 F.2d 1043 (5th Cir. 1975) rehearing denied 525 
F.2d 1214 (1976); cert pending Nos. 75-1475, 75-1478, United 
States V. Bethlehem Steel Corporation. 446 F.2d 652 (2nd 
Cir. 1971); see generally Local 189 v. United States. 416 F.2d 
980 (5th Cir.1969) cert, denied 397 U.S. 919 (1970) As this
Court has repeatedly emphasized Title VII requires that the Courts 
must utilize a number of forms of relief limited only by
"business necessity" which will permit those affected by 
discriminatory seniority systems to move to their rightful 
place "as quickly as possible". See Pettway v. American 
Cast Iron Pipe Co., 494 F.2d 211, 248-249 (5th Cir. 1974)
(and citations therein).

58/ [Continued]
waive his right to sue for 
continuing effects of prior 
at 852, 853, n.30. However 
of the release provision to 
holding that employees may 
of which are equivalent to 
compensable, effects of pas 
it considered such a waiver

full injunctive relief from the 
discriminatory practices. Id.
, the Court's narrow construction 
exclude such a waiver and its 

sue for future acts "the effects 
the otherwise compromised, non- 
t discriminations" indicate that 
invalid, i^. at 854-56.

The Court's ambiguity is understandable since its 
treatment of this question, as it emphatically pointed out, 
was dicta, id. at 856. Accordingly, the Court did not have 
to delve into the sometimes complex question of what con­
stitutes a "future" act and what therefore constitutes a 
"prospective" waiver.

- 39 -



whenever, a senior black employee is denied the oppor­
tunity to bid on a job vacancy obtained by a junior white 
employee because of the initial job assignment by race than that 
discrimination reasserts itself. If the defendants continue 
s\ibsequent to the entry of the decrees to assign, promote 
or transfer employees in a manner which causes the initial 
discriminatory assignments to affect job opportunity then 
the defendants have engaged in future (in terms of the entry 
of the consent decrees) unlawful conduct. This is not an 
abstract question but rather a pragmatic one which will re­
solve whether an entire generation of black steelworkers 
will finally receive full and equal opportunity or whether 
they will be consigned to an inferior position.

The Supreme Court has repeatedly stressed that where 
racial discrimination is concerned "the court has not merely 
the power but the duty to render a decree which will so far 
as possible eliminate the discriminatory effects of the past 
as well as bar like discrimination in the future".
Louisiana v. United States. 380 U.S. 145, 154 (1965); Watson 
V. Memphis. 373 U.S. 526, 539 (1963); Green v. New Kent 
County School Board. 391 U.S. 430, 438 (1968); Swann v.

59/ The practical effects of this question given the 
inadequate provisions in the consent decrees cannot be 
overemphasized. See infra at 45-50.

- 40 -



Charlotte-Mecklenburq Bd. of Education. 402 U.S. 1, 15 
(1971). The Supreme Court has recently applied this principle 
to the standard courts should apply in awarding injunctive 
relief under Title VII; the denial of injunctive relief is 
permissible,

"only if for reasons which, if applied 
generally, would not frustrate the central 
statutory purposes of eradicating dis­
crimination throughout the eocnomy and making 
persons whole for injuries suffered through past discrimination".

Franks v. Bowman Transportation Co.. 44 U.S.L.W 4356,4363 (March 
24, 1976) citing Albemarle Paper Company v. Moody, 422 U.S.
405, 421 (1976).

The appoval of the release provision as amended would 
frustrate each part of the Franks standard. The denial by 
waiver of a black employee's right to sue for full relief 
would, as a matter of definition preclude making him "whole" 
if, in fact, the consent decrees do not afford full relief.
The consent decrees themselves do not provide for full relief 
but rather depend upon acts to be undertaken after their 
entry. See infra at 45-50. If these future acts are not un­
dertaken then having signed a waiver the victim of dis­
crimination must, if the waiver is approved, finish his 
working career hindered by racial discrimination.

Moreover, the approval of this amendment to the consent 
decree would seriously obstruct the eradication of dis-

- 41 -



crimination throughout the economy. The defendants now 
having concluded these consent decrees providing for some 
relief and having secured releases from a majority of the 
employees and free from the "spur and catalyst" of private 
litigation, will have little incentive to undertake the 
future acts which will rid the steel plants of the effects 
of discrimination. Similarly, Companies and Unions in other 
industries are likely to jump on the bandwagon, establish 
industry-wide consent decrees which provide a modicum of 
relief, buy releases for $500 from affected class members, 
and insure themselves from liability under Title VII for 
failure to take steps to fully terminate all the effects 
of discrimination.

It is likely that these industries, as it is apparently
the case in steel, will be successful in obtaining signed
releases from a large majority of the affected class. The
workers were tendered in a "one-step process", a lengthy

62/
notice of rights , a check drawn to their name in the amount 
of the tender and containing a waiver inscribed on the back

60/ See Albemarle Paper Company v. Moody, supra at 417-18, 
See also Wetzel v. Liberty Mutual Insurance Co.. 508 F.2d 
239, 254 (3rd Cir. 1975).
61/ Counsel for the Harris Intervenors have been informed 
by counsel for the Government that it is their best guess 
that a substantial majority of steelworkers tendered the 
backpay have accepted the tender and executed the release.
62/ See 114a-129a; 418a-30a.

- 42 -



63/
of the check. The Harris Intervenors objected to the 
form and content of the notices and to the one-step pro­
cedure which provides the employee with the loaded choice

6 ^
of, in effect, burning the check or spending the cash.
This Court should not allow the effective implementation of
Title VII to be limited by the buying of releases purporting
to waive employees' rights to be free from discrimination.

The Supreme Court's ruling in Alexander was designed to
prevent this type of purchase of immunity from violation 

65/
of Title VII. The appellees seek to avoid Alexander by

63/ 428a-29a. The waiver placed on the back of the check
contains over 250 words.
64/ The objections to the Notice is set forth at 187a-223a.
The Harris Intervenors have not sought to litigate the 
legality of the notice provision on this appeal because 
(1) the notices have gone out to all the affected employees 
not in covered by pending litigation (as well as in some 
pending litigation), (2) the district court specifically 
did not approve the form of the notice to be sent to employees 
covered by pending litigation, (3) the issue of the form 
of the notice will accordingly be litigated in the pending 
cases and (4) an employee who signs the waiver may challenge 
its validity because the choice was not knowingly and 
voluntarily made. United States v. Allegheny-Ludlum 
Industries. supra at 853.
65/ In Alexander the disputed conduct occurred prior to 
the purported waiver —  the employee's commitment to accept 
only so much relief as the arbitrator provided. Nevertheless, 
the waiver was held to be prospective. A fortiorari the holding 
in Alexander applies to this waiver. Not only is an 
employee asked to limit himself to such seniority relief 
as the government chooses to negotiate for him, the employee 
is asked to do so with regard to seniority problems which, 
as a result of unforeseeable patterns of vacancies, layoffs, 
and attrition, may only arise several years in the future.

- 43 -



asserting that the only "act of discrimination" was the 
creation prior to 1974 of black and white departments and 
that the application of a rule which gives preference to 
employees of the all-white department is not an "act of 
discrimination", but merely a "continued effect of past 
discrimination." Since the "discrimination" occurred in 
the "past," respondents reason that the waiver is retro­
spective even vdien applied to events transpiring in 1980 
or later. But Alexander cannot be distinguished by such 
semantic sleight of hand. The problem presented by this 
proposed waiver is not unlike a case in which a school 
board, having assigned pupils on the basic of race in a de 
jure segregated school system, obtained from parents a waiver 
of their right to the disestablishment of racially 
identifiable schools. No court in the land would uphold 
releases signed by the parents of school age children pur- 
purting to relinquish their right "to eliminate from the 
public schools all vestiges of state imposed segregation". 
Swann v. Charlotte-Mecklenburq Board of Education, 402 
U.S. 1, 15 (1971).

- 44



A brief analysis of the "bare bones" relief provided 
by the consent decrees indicates the prospective nature 
of the amended release provision. The consent decrees 
provide for only limited use of plant seniority. The pro­
cedure has been termed "three-step" bidding, but in fact 
it will usually require an affected class member to make 
more than three successful bids in order to reach his
"rightful place". When a vacancy arises in a line of pro-

66/gression (LOP) the vacancy is not posted plant-wide but
rather the vacancy is first filled from the workers in the
job below the vacant job in the LOP; for example,

A black with 30 years employment and a white 
with only 5 years apply for promotion to a 
job in a line of progression in department 
A. Both already work in that line. The 
white, however, has a job higher up in the 
line because the black, initially assigned, 
on the basis of race prior to 1974 to an 
all black department has only recently 
suceeded in transferring into this pre­
viously all-white department. Both applicants 
are fully qualified to fill the vacancy. The 
white is given the job because of a rule 
giving preference to employees with higher 
ranking jobs in the line of progression.

66/ This Court has held that the district court should post 
vacancies plant-wide whenever feasible in order to remedy 
discriminatory seniority systems. Pettway v. American Cast 
Iron Pipe Co., supra at 248; see Head v. Timken Roller 
Bearing Company, 486 F.2d 870, 878-79 (6th Cir. 1973).

- 45 -



A black with 30 years employment and a 
white with only 1 year apply for promotion 
to a job in a line of progression in de­
partment A. The white already works in 
that line of progression; the black works 
in the same department but in an all-black 
line to which he was assigned on the basis 
of race before 1974. Both applicants are 
fully qualified to fill the vacancy. The 
white is given the job because of a rule 
giving preference to employees from the 
same line of progression as that in which 
the job exists.

Of course, this discriminatory job placement is repeated
§1/

for each job progression in the LOP.
The so-called "second-step" bid pertains to the posting

of an entry-level job in an LOP within the department and
not plant-wide; for example,

A black with 30 years employment and a 
white with only 1 year apply for promotion 
to a job in department A. The white already 
works in department A; the black works in 
department B, an all black department to which 
he was assigned on the basis of race before 
1974. Both applicants are fully qualified to 
fill the vacancy. The white is given the job 
because of a rule giving preference to em­
ployees frctn the same department as that in 
which the job exists.

67/ This Court has required that the district courts pro­
vide "advance-level entry" and "job-skipping" whenever 
feasible in order to overcome the continued filling of 
vacancies on a discriminatory basis when there is a step- 
by-step procedure. United States v. Hayes International 
Corporation, 456 F.2d 112, 116-119 (5th Cir. 1972); Long v. 
Georgia Kraft Company, 450 F.2d 557, 562 (5th Cir. 1971).

- 46 -



Finally, the vacancy in the entry-level job in the
department is posted plant-wide in the "third step".
(40a-3a) The obstacles to movement to "rightful place"
presented by the "three-step" process are increased by
the method of implementation of the system. The Audit
and Review Committee in its Directive No. 3 stated that,

In order to accomplish the objectives of 
this paragraph 4(a) and of paragraph 6 
below [of Consent Decree I] it is nec­
essary that existing lines of progression, job incumbency ssytems or other promotional 
practices be described in seniority units 
where they are not presently described, or 
developed in any units where they do not 
exist. Where lines of progression and/or 
promotional practices do not new exist and 
must therefore be developed and described 
such lines and practices shall be so de­
veloped and described and copies shall be 68/
siibmitted to the Audit and Review Comm.ittee.. . .

As a result of this interpretation and implementation 
of the consent decree local Implementation Committees may 
establish more rigid step-by-step promotional sequences 
than in fact existed in the past. It is unlawful for 
defendants who had previously excluded blacks from jobs 
on the basis of race and/or by a discriminatory seniority 
system to continue to exclude those blacks on the basis of

69/ Directive No. 3 is attached hereto as Appendix "B".

- 47 -



some criteria other than that applied to whites during
69/

the period of the discriminatory practices.
Moreover, the "incumbency" system serves to directly

perpetuate past discriminatory assignment practices by
basing future job placement on those practices.

A black with 30 years employment and a 
white with only 5 years are available for 
placement to a higher-paying job than either 
of them is working at the present time.
The job, however, was previously worked by 
the white during a period when jobs were 
assigned on the basis of race. Both workers 
are fully qualified to fill the vacancy.
Even though the white has not worked the job 
for several years he is given the job be­
cause of the rule giving preference to prior 
incumbents.

This filling of future job positions on the basis of prior 
incumbency may, as this Court has stated, be unlawful. 
United States v. Haves International Corp., 455 F.2d 112, 
119 (1973); see United States v. United States Steel Corp­
oration, supra, 371 F.^upp. at 1056-57.

69/ See Frank v. Bowman Transportation Co., supra 44 
U.S.L.W. at 4363, n.32; Griggs v. Duke Power Co., 420 
F.2d 1225, 1230-31, 1235-37 (1970) rev'd on other grounds, 
401 U.S. 424 (1971); cf. United States v. Duke, 332 F.2d 
759, 769 (5th Cir. 1964).

- 48 -



Finally, the consent decrees provide no seniority 
relief for the black worker discriminatorily denied hire;

A black applies for a job in 1965 and is 
rejected because of his race; he is sub­sequently hired in 1968. A white employee 
hired in 1966 works at the same job. In 
layoffs from this job or in promotions to 
the next job in the line of progression 
the white is given a preference because 
he is a senior by 2 years. Compare Franks 
V. Bowman Transportation Co. supra.

The release provision as modified would bar any form
of relief in the above-listed situations when they occur
in 1977 or 1980, and would immunize the defendants from
legal action to alter these preferential rules. It should
be noted that the consent decrees contain some "open-ended" 

70/provisions that may be used by the defendants to correct 
some of the substantial inadequacies of the remedy provided, 
However, if these future acts taken by the defendants are 
inadequate to allow blacks to promote to their rightful

70/ See supra at 3-4

- 49 -



place then the release provision as amended would, if 
it is upheld as lawful, preclude blacks from seeking full

71/equal employment opportunity.

71/ The Harris Intervenors filed a motion for leave to 
take discovery in order to determine the extent to which 
relief had been provided under the consent decrees. (224a-227a) 
The Intervenors maintained that the amendment to the 
release provisions was unlawful, but that if the district 
court was going to consider the amendment the court should 
examine the relief actually being provided under the decrees. 
Cf. United States v. Alleqheny-Ludlum Industries, Inc., 
supra at 874. The district court denied the motion.
(414a-l5a)

It is relevant to note that the consent decrees them­
selves did not in fact change or modify any testing pro­
cedure at any of the 250 plants. The decrees only stated 
that the Companies agreed to abide by the testing 
Guidelines established by the EEOC and the Department of 
Labor and that they would submit data concerning the use 
of tests to the government. (56a-8a; 88a)
There was nothing in the Record to indicate what review 
of the testing practices had been undertaken, and what 
changes, if any, had been accomplished.

- 50 -



III.

A.

THE DISTRICT COURT ERRED IN DENYING 
INTERVENTION TO BLACK WORKERS WHO SOUGHT 
TO ASSERT THEIR RIGHT TO A FULL REMEDY FROM DISCRIMINATORY EMPLOYMENT PRACTICES________

The Decisions in Allegheny-Ludlum I Require the 
Appellants to Be Considered as Interveners

The district court ruled separately on the application
for the intervention to oppose the amendment to consent
decree I and to oppose the form of the notices and the72/
release, suura at 8-9. The appellants argue here only the
lower court's denial of their intervention to challenge the73/
amendment to the consent decree.

72/ district court only permitted intervention pursuant
to Rule 24(b), FRCP, by one group of the Harris Intervenors to 
challenge the form of the notice and release. See supra 
at 9.
73/ The district court denied intervention to appellants to 
assert that the amendment to the consent decree was barred by 
res judicata, applicable law regarding the judicial implemen­
tation of consent decrees, or the legality of the amendment. 
These are the issues raised on this appeal.

However, the district court stated that upon a Motion 
to Reconsider it would allow the Harris Intervenors to 
intervene for the sole purpose of taking discovery and con­
testing whether it was the original intent of the parties 
to include a waiver of injunctive relief, supra at 8-9.
The Harris Intervenors had argued before the district court 
that this discovery like the statements filed by the 
defendants in support of their motion to amend were irrelevant, 
supra at 6, n.ll. But the Harris Intervenors maintained that 
if the Court was going to rely on the self-serving statements 
of the defendants then there should, at least, be an oppor­
tunity to discover the context of those statements and, per­
haps, svibject the affiants and other individuals to cross- 
examination.

- 51 -



The Harris Interveners filed their motion to intervene 
on December 29, 1975, as a precautionary measure. In 
Alleqheny-Ludlum I they had moved to intervene to contest 
the legality and the scope of the waiver, and were granted 
this limited intervention, see infra at 61. Accordingly, 
the Harris Intervenors maintained that since defendants'
Motion to Amend concerned the very issue for which they 
had been granted intervention, there was no requirement that 
they once again be allowed to intervene for the same issue.

The question of the legality and the scope of the re­
lease provision v/as initially raised by the Harris Inter­
venors, supra at. Section I,A. The district cci;--;'.- did not rule 
specifically on the scope and legal _y of the waiver of the 
right to sue for full injunctive (as opposed to backpay) 
relief, i^. The Harris Intervenors appealed these issues, 
to this Court, and after full argument, this Court ruled on 
the scope of the release.

In effect, the position advanced by the Harris Inter­
venors was sustained: the release provision was read as 
not requiring black workers to waive their right to sue for 
full relief. As fully set forth, in Section I, infra, the 
defendants in their motion to amend have sought to counter­
mand the prior opinion of this Court. The Harris Intervenors 
contend that this procedure is illegal. Section I, infra; 
it is patently unfair to deny the Harris Intervenors the

- 52 -



right to even assert their interest in this issue which 
they have litigated for two years in the district court and 
this court.

It should be noted that the district court actually 
heard the arguments of the Harris Intervenors. It was not 
until after argviment on the legality of the motion to amend 
the waiver that the district court reversed its earlier 
rulings and denied intervention, infra at 61-2. The practical 
effect of the district court's denial of intervention is to 
create an artificial obstacle to the consideration by this 
Court of the important questions presented by this appeal.
The Harris Intervenors having been properly granted inter­
vention to litigate issues concerning the release provision 
in Alleqheny-Ludlum I may not now, after having successfully 
litigated the question in this Court, be, in effect, thrown 
out of court, and denied the right to uphold this Court's 
prior opinion; nor may this Court, by the expedient of the 
district court's denial of intervention, be denied jurisdiction 
to consider the merits of the claims of the Harris Inter­
venors, especially since these claims are so inextricably 
tied to a prior ruling of this Court.

B . The District Court Erroneously Denied Intervention
Under Rule 24(a)(2) and Rule 24(b)
Although the district court had previously allowed 

intervention by the appellants in Alleqheny-Ludlum I,

- 53 -



the district court denied the appellants' motion to intervene 
in order to challenge the legality of the defendants'
Motion to Amend without making any findings of fact or 
setting forth any conclusions of law. The district court 
erroneously denied intervention because the (1) court 
stated no reasons why the intervention should be denied,
(2) the appellants satisfied the requirements for intervention 
pursuant to Rule 24(a)(2) and Rule 24(b), and (3) the district 
court abused its discretion when it denied intervention here 
when previously in Allegheny-Ludlum I it had allowed inter­
vention under identical circumstances.

Under Rule 24(a) (2) an applicant for intervention must 
satisfy a three-part test: (1) claim an interest in the sub­
ject matter of the action; (2) that the disposition of the 
action may as a practical matter impair or impede his ability 
to protect that interest; and (3) that his interest is not 
adequately represented by the existing parties. In addition 
the intervention must be timely filed.

The district court ruled that the motion to intervene 
was timely filed. (243a) Similarly, there is no question 
that the Harris Intervenors claim an interest in the subject 
matter. The intervenors have as direct an interest in this 
issue as any of the original parties: the right to full 
relief from racial discrimination and the ability to pursue

- 54 -



74/
that right pursuant to Title VII. It is now well-
established that the interests of private plaintiffs in
Title VII cases are different from those of the federal
government in a §707 pattern and practice suit. Williamson
V. Bethlehem Steel Corp., 468 F.2d 1201, (2nd Cir.), cert. denied
411 U.S. 931 (1973); Rodriquez v. East Texas Motor Freight,
505 F.2d 40, 65 (5th Cir. 1974). Accordingly, the interests
of the Harris Intervenors are not adequately protected by
the plaintiffs, the EEOC, Labor and Justice Departments.

The third requirement, that as a practical matter, the
disposition of this issue will impair or impede the Harris
Intervenors' ability to protect their interest, "must be
measured by a practical rather than a technical yardstick".
United States v. Allegheny-Ludlum Industries, Inc., supra
at 841. Rule 24(a) (2) was liberalized in 1966 in order
"to allow intervention by those who might be practically
disadvantaged by the disposition of the action and to
repudiate the view . . . that intervention must be limited
to those who would be legally bound as a matter of res 75/
ludicata". Wright & Miller, Federal Practice and Procedure,

74/ In Allegheny-Ludlum I, supra at 845, the Court held in 
an identical situation that NOW "obviously claims an interest 
in the subject matter of the action".
75/ The breadth by which the rulemakers intended amended 
Rule 24(a) (2) to be applied is indicated by their change of 
an early draft of the rule from "substantially impair or 
impede" to the present version which omits the word "sub­
stantially". See Neusse v. Camp, 385 F.2d 694, 701 (D.C. 1967)

- 55 -



§1908, p. 514. The appellate courts have regularly re­
versed the denial of intervention by district courts when 
those courts have too rigidly applied Rule 24(a)(2).
Atlantis Development Corp. v. United States, 379 F.2d 818 
(5th Cir. 1967); Diaz v. Southern Drilling Corp., 427 F.2d 
1118 (5th Cir. 1970), cert. denied 400 U.S. 878 (1970); 
Neusse v. Camp., 385 F.2d 594 (D.C. 1971); New York Pub. 
I.R.G., Inc. V. Regents of Univ. of New York, 516 F.2d 350 
(2nd Cir. 1975); cf. Weiser v. White, 505 F.2d 912 (5th 
Cir. 1975) cert, denied 421 U.S. 993 (1975).

Measured against this practical standard, the interest 
of the Harris Intervenors will clearly be impaired or im­
peded by the determination in this litigation that the 
amendment to the release provision is lawful. In a leading 
case concerning intervention under Rule 24(a)(2), this 
Court stated that in appropriate circumstances the effect of 
stare decisis may, by itself, cause the practical dis­
advantage that is required for intervention under Rule 
2 4(a) (2). Atlantis Development Corp. v. United States, 
supra. The Court must take the

Intellectually straightforwarded, realistic 
view that the first decision will in all 
likelihood be the second and the third and 
the last one. Even the possibility that the 
decision might be overturned by en banc ruling 
or reversal on certiorari does not overcome 
its practical effect, not just as an obstacle, 
but as the forerunner of the actual outcome.

- 56 -



Id. at 829; Martin v. Travelers Indemnity Company, 450 
F.2d 542, 554 (5th Cir. 1971); Neusse v. Camp, supra at 702.

Here the effect of stare decisis has just such a practical 
disadvantage. This case involves many complex and technical 
issues; this Court in Allegheny-Ludlum I generally commended 
the district court's implementation of the consent decrees.
In these circumstances other district courts which preside 
over Title VII litigation involving plants covered by the 
consent decree are not only going to give substantial stare 
decisis effect to the decisions of Judge Pointer but, in 
many instances, are not even going to consider issues 
determined by Judge Pointer. This is especially true where, 
as here, the issue concerns an application of the consent 
decree that will apply generally to all the plants and 
employees and which will not be affected by local cir­
cumstances .

The substantial disadvantage of the stare decisis effect 
of Judge Pointer's decision has already been amply demon­
strated by the decisions in five cases. Judge Teitelbaum 
in refusing to consider the legality of the release pro­
vision stated:

Certainly, Judge Pointer did not intend that 
each concerned district court throughout the 
country undertake a fresh and totally in­
dependent review of the legality and adequacy 
of the nationwide settlement embodied in the 
Decreee and I have neither the right nor the

- 57 -



temerity to accede to plaintiffs' apparent 
request that this Court embark upon such a 
venture.

Accordingly, we start from the premise 
that the following issues have been litigated 
and decided in an appropriate forum, and are 
not now before me in the instant proceeding:

4. The siabstantive legality of the 
release. (footnote omitted)

Rodgers v. United States Steel Corporation, Civil Action
No. 71-793 (V7.D. Penn, March 8, 1976) , Slip Opinion at
4-5. Two Judges sitting as a panel approved the tender of
backpay in three separate cases "for reasons exoressed by

7 ^Judge Teitelbaum [in the above-cited Rodgers opinion]".
See also Dickerson v. United States Steel Corporation,

11/C.A. No. 73-1291 (E.D. Penn. March 24, 1976). As a
18/practical matter the Harris Intervenors or other black

76/ Lane v. Bethlehem Steel Corp., C.A. No. 71-580-M;
Beasley v. Bethlehem Steel Corp., C.A. No. HM-74-377;
Carroll v. Bethlehem Steel Corp., C.A. No. M-75-374 
(D. Maryland, April 6, 1976) Slip Opinion at 1.
77/ "Nevertheless, most aspects of the Consent Decree are 
not appropriately before this Court, despite the plaintiffs' 
assertions to the contrary. The fairness and adequacy of the 
Consent Decree in general has been thoroughly considered by 
Judge Pointer and by the Fifth Circuit...." supra, Slip 
Opinion at 3.
78/ Some of the Harris Intervenors are plaintiffs in two 
of the above-cited cases. Lane v. Bethlehem Steel Corp., 
supra; Rodgers v. United States Steel Corp., supra.

- 58 -



steelworkers will have a difficult, if not impossible, 
task to litigate the legality of the release provision

79/other than on this appeal.
The interest of black steelworkers will be dis­

advantaged in additional respects. Because of the com­
plexity and difficulty of Title VII litigation the "courts 
of this Circuit have ... found that competent lawyers are 
not eager to enter the fray in behalf of a person who is 
seeking redress under Title VII". Kessler & Co. v. Equal 
Employment Opportunity Comm'n., 472 F .2d 1147, 1152 (5th Cir. 
1973) (en banc) cert. denied 412 U.S. 939 ( 1973 ) . It will
assuredly be more difficult for black workers to obtain 
legal counsel if a difficult question concerning the waiver 
of rights will have to be confronted before the merits of the

79/ The Court's decision in United States v. City of 
Jackson, 519 F.2d 1147 (1975) is not inconsistent with the 
position taken by the Harris Intervenors. In City of 
Jackson the Court stated that possible stare decisis effects 
will not "automatically" require the ^rant of intervention 
pursuant to Rule 24(a)(2), id. at 1151. In that case 
applicants for intervention sought to challenge a consent 
decree solely in order to litigate the inadequacy of the 
amount of backpay that individual members of the class were 
to receive. The Court stated that in this situation the 
courts would recognize the "special characteristics and pur­
poses of consent decrees", and understand that there was 
"no definitive statements" of the relief to which the parties 
were entitled.

This is completely different from the issue presented 
on this appeal where the Harris Intervenors seek to litigate 
the legality of a provision of the consent decree and the 
appropriate implementation of the consent decree; issues 
which were specifically before the lower court.

- 59 -



lawsuit are even reached. Moreover, for those who have 
counsel, the waiver issue will considerably delay the 
litigation, perhaps require an appeal, and increase its 
costs and difficulty. Such delay will prolong the period 
until full injunctive relief is granted and cause the con­
tinued denial of equal employment opportunity which, as 
this Court has held, results in irreparable injury. United 
States V. Hayes International Corporation, 415 F.2d 1038, 
1045 (1969); Culpepper v. Reynolds Metals Company, 421 F.2d 
888, 894 (1970).

Finally the failure to grant intervention and once and 
for all determine the legality of the release provision runs 
counter to one of the principal public policy considerations 
behind Rule 24(a) (2): the "disposition at a single time of 
as much of the controversy to as many of the parties as is 
fairly consistent with due process". Atlantis Development 
Corp. V. United States, supra at 824.

The Harris Interveners in this appeal seek to intervene 
to contest the legality of the release provision, —  the 
same issue for which they were granted intervention in 
Alleqheny-Ludlum I. At the hearing on intervention in 
Alleqheny-Ludlum I, Judge Pointer stated:

- 60 -



"In the case[s], however, of Mr. Harris ...
I believe that their intervention should be 
permitted and are due to be permitted for 
a limited purpose under Rule 24(a)(2)...."

Oral Opinion of May 20, 1974, Appendix to Appeal No. 3056
at 154a. The district court in its written opinion further
defined the intervention:

Such intervention ... is permitted at this 
time for the limited purpose[s] to question 
the contemplated release of back-pay claims.
(footnote omitted)

United States v. Alleqheny-Ludlum Industries, Inc., 63 
F.R.D. 1, 4-5 (N.D. Ala. 1974) aff'd 517 F.2d 826, 846, 
n.22 (5th Cir. 1975).

At the start of the hearing on January 2, 1976, the 
district court stated, as logic would indicate, that it would 
follow its ruling in Alleqheny-Ludlum I and that it was 
"prepared to permit the proposed intervenors to intervene 
under Rule 24(a) (2)". (245a-46a) After counsel for the Com­
panies referred the court to United States v. City of Jackson,
supra, the court noted "some degree of incompatibility be-

8 ^
tween ... Allegheny-Ludliam . . . and . . . City of Jackson" and 
stated that it was "going to sidestep that issue [whether in­

tervention is appropriate under Rule 24(a)(2)] by allowing it under

80/ As set forth in note 79, supra, there is no "incom­
patibility" between Alleqheny-Ludlum I and City of Jackson.

- 61 -



24(b)". (250a-51a) Finally, the district court denied81/
the appellants intervention pursuant to Rule 24(a)(2). 
(414a-15a; 411a; 400a-01a)

The district court neither explained its denial of inter­
vention nor its reversal from the position it took in 
Alleqheny-Ludlum I. The failure of a district court to 
enter findings in support of its determination of a complex 
procedural matter is in itself grounds for the appellate
court to reverse and remand. Cf. United States v. United82/
States Steel Corporation, supra, 520 F.2d at 1051.

81/ Harris Intervenors were allowed to file a Motion to 
Reconsider in order to file discovery concerning the 
original intent of the parties, supra at 9.
82/ The argument set forth above in terms of Rule 24(a)(2) 
applies equally to appellants Motion to intervene pursuant 
to Rule 24(b)(2). The claims of the Harris Intervenors 
plainly have common questions of law and fact with the 
defendants' motion to amend. There is no prejudice or delay 
to the parties since the waivers have already been sent out 
and the intervention cannot thereby cause any delay.

- 62 -



C O N C L U S I O N

WHEREFORE, for the foregoing reasons the appellants 
respectfully request that this Court rule that they may 
intervene in this action, or that for the purpose of con­
testing the release provision that they are already inter- 
venors, and rule that the lower court's approval of the 
motion to amend consent decree I to include a waiver of the 
right to sue for full injunctive relief was unlawful.

Respectfully submitted.

JACK ckEE^ERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
BARRY L. GOLDSTEIN 
ERIC SCHNAPPER 
DEBORAH M. GREENBERG

10 Columbus Circle - Suite 2030 
New York, New York 10019

OSCAR W, ADAMS, JR.
JAMES K. BAKER U.W. CLEMON

2121 Building - Suite 1600 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

GERALD SMITH 
KENNETH JOHNSON 
NORRIS RAMSEY

711 St. Paul Street 
Baltimore, Maryland 21201

BERNARD D. MARCUS
415 Oliver Building 
Pittsburgh, Pennsylvania 15222

SIDNEY RASKIND
1901 First National 

Life Building 
Houston, Texas 77002

GABRIELLE K. MCDONALD 
MARK T. MCDONALD

1834 Southmore Blvd. 
Houston, Texas 77004

Attorneys for Applicants for Intervention

- 63 -



CERTIFICATE OF SERVICE

I hereby certify that on this the 23 day of April, 
1976, I served copies of BRIEF AND APPENDIX FOR 
INTERVENORS-APPELLANTS upon counsel for all parties 
as listed below by depositing same in the United States 
mail adequate postage prepaid:

William K. Murray, Esq.
Thomas, Taliaferro, Forman,

Burr & Murray
1600 Bank for Savings Building 
Birmingham, Alabama 35203
Michael H. Gottesman, Esq.
Bredhoff, Cushman, Gottesman & Cohen 
1000 Connecticut Avenue, N.W. 
Washington, D.C. 20036
Jerome A. Cooper, Esq.
Cooper, Mitch & Crawford 
409 North 21st Street 
Birmingham, Alabama 35203
Robert T. Moore, Esq.
U.S. Department of Justice 
Civil Rights Division 
Washington, D.C.

a,
Attorney for Intervenors-Appellants



APPENDIX "A"

IN TflE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF ALABAI-IA 

SOUTHERN DIVISION

UNITED STATES OF AMERICA, et al.,
Plaintiffs,

V.

ALLEGHENY-LUDLUM INDUSTRIES, INC., et al.,

SIDNEY HARRIS, et al..

I; -

Defendants,

Interveners ,

CIVIL ACTION 
No. 74-P-339-S

MOTION TO CLARIFY CONSENT DECREES 
REGARDING PROPOSED VJAIVERS

Interveners move this Court for an order clarifying the
Consent Decrees v;ith regard to the proposed waivers.

There appears to he some uncertainty as to the scope of proposed waivers. The opinions of this
Court upholding the waivers consistently assume that all an 
employee will be asked to v/aive is certain rights to sue for 
pay over and above that tendered under the Decrees. On May 
1974, the Court stated:

The question of the binding effect of a release 
for back pay is one that all the parties have 
an interest in and which needs resolution. .,.
It is my conclusion after a study of the matters, 
that there can be an effective waiver or settle­
ment in a back pay situation.

Transcript of Hearing of May 20, 1974, pp. 6-7.
The Memorandum Opinion of June 7 held similarly:

This Court concludes that there can be a legal 
waiver of back-oav claims where, for valuable 
consideration, or release is signed knov/ingly and voluntarily, with adequate notice which 
gives the employee full possession of the facts.

Slip Opinion,- p. 9. (Emphasis added) .

back
0 ,



similarly, the Memorandum Opinion of July 17, 1974, states:
Assuming, arguendo, that the proposed ba'ck-oav 

_ releases should be declared invalid by the Fifth 
Circuit, rhere is no suggestion that all 
minority steelworkers will sign such releases 
or that there may be a lack of class representa­
tives to pursue pending or future litigation. 
Additionally, v/hile some class members may 
choose to execute a back-oav release in exchange 
for a tender of immediate back-apy, such would 
not prevent continued litigation by the exist­
ing class representatives. ... Indeed, it appears 
that a decision by the Fifth Circuit which would 
invalidate the release procedure after paymerts 
had been made /̂/ould adversely affect only the 
defendants herein, as they would have paid for 
something less than that' v;hich v;as expected in 

I! return— a valid release of back oav claims.
;i Slip Opinion, pp. .3-4 (em.phasis added).I I
j! The United States and the Corroanies aoeear to concur v’ith
. j'■ tliis Court's understandings th..at the only thing to be released by 
I; the waivers v.’ould be back pay claim,a. '̂ he gover.nment' s brief c£

the validity of the v;aivers dealsIj May 20, 1974, in support
exclusively with waivers of back-pay claim,s. Reply of Plaintiffs 

[ j  to Briefs on Motions for Leave to Intervene, pp. 8-10. The 
government refers to the notice required by paragraph 18 as "the 
back-pay v/aivor notices." _Id., p. 10. The Companies' brief 
refers to a waiver of "accrued" claims. Memorandum of the 
Defendant Companies In Opposition to Motions to i n t e r v e n e , pp. 8, 
38, 40. Only claims for m.oney "accrue" in a legal sense. The 
Companies asserted that applicants for intervention, by refusing 
to execute waivers, would retain their right to assert elsewhere 
"whatever claims for back oav the movants may have." Id., p. 31 
(emphasis added).

The Union, however, construes the Consent Decrees quite 
differently; it suggests that the waiver is to include, not only 
waiver of any claims for back pay, but also a waiver of any right 
to sue for injunctive relief if the Decrees do not succeed in end­
ing racial discrimination in the steel industry. In the view of 
the Union, minority em.ployees, in order to obtain back pay accru­
ing prior to the entry of the Decrees, will have to abandon any

-  2 -



.'■,.jJLU'Ai.n vr 1.1.r

right to seek injunctive relief froni this or any other court to 
01(3 the continuing effects of discrimination. Union's Response 
to Motion to Intervene, pp. 7-S.

In sum, it appears that the union construes the waiver pro­
vision of Decree I differently than this Court, the United States 
or the Companies. The waiver of injunctive relief which the 
union advocates is quite different from the waiver of back pay 
approved by this Court. If this misunderstanding is not cleared 
up nov/, it v/ill unnecessarily complicate proceedings i.n the Fifth 
Circuit on aoneal, in this Court regarding hov; the waiver should

|ii! be v^orded, and in other courts regardina the effect of the \;aiver.ilj| Furthermore, in order for affected class members to make a
j| "voluntary" and "knov.’ing" v;aiver, it is essential for them to
jcleiirly undei or clad which t’loy S ^  S ’.75  2

V?e would urge the Court to issue a clarifying order providing 
il that as a condition of receiving back pay under the Decree
employees v;ill be required to waive only their right to any fur­
ther accrued back pay.

Respectfully submitted.

JACK GREEkoDRGy>^
JAMES M. MABRr'k, III 
CHARLES STEPdlEN RALSTON 
BARRY L. GOLDSTEIN 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, N. Y. 10019 

*SIDNEY S. HARRIS, WILLIE J. FOWILLE, 
PAIGE A. MILLHOUSE, JOffi.'I S. FORD, 
WILLIE CAIN, WILLIE L, COLEMAN, JOE 
N. T.AYLOR,. ROBERT CAIN, DAVID BOWIE, 
EARL BELL, L. C. WAKER, JAMES L. 
ALLEN, JOSEPH ICIMEROUGII, JOE BRYANT^ 
JOSEPH FAULKNER and ISAIAH HAYES, III
BY:

OSCAR W. ADAMS, JR.
JAMES K. BAKER 
U. W. CLEMON 
CARYL P. PRIVETTAdams, Baker & demon 

2121 Building - Suite 1722 
2121 Eighth Avenue, North 
Birmingham, Alabama 35203

3 -



6.
APPENDIX ;lB'

V

V..

Further discussion was had of the definition of "in­
cumbency" and the manner in v;hich plant seniority was to be 
implemented in the terms of existing lines of progression 
and other seniority practices, resulting in the adoption of
the following Directive No. 3, all parties assenting:

AUDIT AND REVIEW CONNITTEE 
DIRECTIVE no. y

On Jxme 20, 1974, the Audit and Review Committee, 
as created pursuant to paragraph 13 of Consent Decree I 
entered in United States v. Allegheny-Ludlum. Industries, 
Inc,, et al., Civil Action No. 74-P-339, United States 
District Court for the Northern District of Alabama, 
agreed to and adopted the follov;ing rules and procedures 
for the implementation of paragraphs 4(a) and 4(a)(1) and
otlier provisions of Consent Decree I.

X, Paragraphs 4 (a) and 4 (a)(1) of Consent Decree

I state
4. LENGTH OF PL̂ î 'T CONTINUOUS SERVICE —  
(a) Except v;here a Basic Labor Agreement 

OX" other acreements entered into netv.een one 
or more of the Companies and the Union pro/i — 
for the use of Company continuous service or 
some greater measure of service length tnan 
plant continuous service, plant continuous 
service (hereinafter plant service) snail -̂ e 
used beginning on the first day referred^ ^o 
in paragrach 3(b), for all purposes in v.v.ich 
a m.easure of continuous service is presently 
being utilised; provided hov.*ever tha>_.

(1) The change to plant service shall 
be accomolished v.’itnout that cnange in and 
of itself affecting the relative position 
of any e:r.ployee v.'ithin a seniority unit or 
line of progression. In oth.or \;ords, 
there shall be no leap froeging o^or or 
rolling or bumping between cr.ployeos sole- 
Iv as a result of instituting the cn.ange 
bo d a n t  service as a continuous ser\ ̂ .ce 
lcn*gth measure. Nov.-ever, all future^pro- 
r.otions, step-ups, demotions, lay-oifs. 4



V,

recalls and other practices affected by 
c;p̂ nior-5tv shall be in accordance wioh _ Plant seivico provided that, (a) derr.otions, 
la5-ofl“  and bther. reductions in forces 
shall be nade in descending job order starting v;rtn the hxg*:es>- a^i.ect.ed 
iob and v;ith the er.ployee on such 30b ̂ 
L v i n g  the least length of plant 
and (b) the sequence on a recall shall
made in the reverse  ̂ ^  ®same experienced people shal_ return^o 
jobs in the same positrons rela_rve u another that existed prior to o*.ereductions. The irrplementation Cormnittee 
(described hereinafter) ,agree in writing to preserve an exis^ng 
p?ocedure varying ^ fof the proviso con-aix.eu^ rn .̂x.e p-v. - _ j 
sLtene'e whera it is not inconsrstont 
with the puroose of tnis Decree. x..e pre
servation of such an 
shall

existing procecure 
be subject to approval by the Union 

P.smber and by the Company---------repre­
senting the subject pran^. on ---Ind Review Committee and by t>.e Govern­
ment member of that COxmmittee.

In order to accomplish the ^^^Gctives 
of this oa.ragraph 4(a) and ô . paragx.a_̂ i- 
belov:, it is necessary that exrsti.ng^lrnes 
of proerressioa, job incrc.bcncy ^
l x  other orcrr.otionel practices ce oascryed 
in senioritv Units v.'here they are ̂ nox. px.ê  
sently~described, or developed
in any units where they co exr^t.

S - - s t
the?efo‘re be developedliTifne; pn'’ practices snail be so dei-io^^c ^jnd deschbod and cooios .shall be subrattea
to the Audit and Revrev: Ccm..xi v-_tee. In tne 
event local agreement has net ocen^ con­
summated on this matter prr^ 
date referred to in paragrap

to the fi3 
3 (b), the

•s t



8.

matter shall be referred to toe Audit 
and Reviev; Committee ior settler._nt 
prior to such date., . •

2. The ”first date referred to in paragraph 3(b) 
is July 28, 1974 for all plants and facilities listed in 
paragraph 3(c) which are on bi-wee)-.ly payroll periods, 
one of which periods begins on that date. For all other 
plants and facilities listed in paragraph 3(c), the 
"first date referred to in paragraph 3(b)" shall be 
August 4, 1974. Hereinafter, such date, as appropriate 
for the plant involved, shall be referred to as the 
"effective date,"

3. In order to implement the "no leap^ frogging 
over or rolling or burr,ping" provision of paragraph 4(a)(1) 
of Consent Decree I and t-he restrictions on reshuffling 
of employees during a restoration in forces following a 
layoff or other reduction which are contained in provis­
ion 4 (a)(1)(a) and (b) of that paragraph, it is necessary
that all of the follov/ing steps be taken;

a. Identify and have described all existxng
lines of progression. VJiere lines of progression do not 
now exist and are necessary for the orderly inplementation 
of plant service, they must be developed and described 
and submitted to the Audit and Review Com-.ittoe. Inhere

c
i



9.

agreement concerning the existence, the development or the need 

for any line of progression is not reached by the Chairmen of the 

Implementation Committee prior to July 1, 197^, the disagreement shall 

be submitted by that date to the Audit and Review Cormittee for 

resolution. Such submission shall includd the details of each 

party's position v/i th a specific description of how the job 

•incumbency system or other promotional practice they propose is 

presently implemented, i f now in existence, and how it v/ould be 

implemented on and after the effective date referred to above with 

the use of plant service, or somie greater length of continuous 

service, as the continuous service measure. In complying with this 

paragraph 3(a) and the subsequent paragraphs of this Directive, 

the jobs involved, their job class and the applicable rules 

and/or proposed rules shall be specifically identified.

b. Identify and have described in writing and report 

to the Audit and Revie\v Committee, by July 10, 197^,* all job 

incumbency systems and promotional practices which are presently 

followed with specific indications of the rules, or lack of rules, 

applicable to the following questions:

1. In a line of progression or seniority unit where 

the controlling measure of service is other than occupation 

or job service, the rights of an employee who has frozen 

on a job and allowed a younger employee to promote around 

him:

a. To reclaim the higher job from the younger 

employee at any time.

V
2.̂  At those plants and facilities where the Implementation Committee 

has been instructed to report bv June 23, 197 ,̂ such date shall 
be substituted for July 10, \̂ lU in this paragraph and all 
following paragraplis of tlii s Directive.



V

b. To reclaim the higher job from the younger 

employee upon a subsequent new scheduling of the unit.

c. To reclaim the higher job over the younger 

employee during a restoration in forces follo-./ing a 

reduction in force which had caused the younger employee 

to be bumped or rolled from the higher job.

d. To remain, during a reduction in forces, on 

the job upon which he froze and not be bumped or 

rolled therefrom by a more senior employee (displaced 

from a higher job) who had never previously been 

regularly assigned to that job.

2. The employee looked to for purposes of filling 

a permanent vacancy in a job within a line of progression 

or seniority unit, other than a permanent vacancy.in an 

entry level job in such line or unit (e.g., em.ployees on 

next lower job, all employees in the unit, LOP, dept., -

'̂tc * ) •
3, The rights of an employee in a line of progression 

or seniority unit to exercise his continuous service on 

tower or equal rated jobs in that line or unit to which 

he had never previously been regularly assigned.

k. In implementing paragraph L(a)(l) of Consent 

Decree I, no broader definition of incurr.bents (e.g., 

no employee shall be found to have incumbency status 

who meets a lesser standard) than the following shall

used:

i-



11 ►

a. For purposes of reduction of forces and recalis 

to jobs in lines of promotion, an employee v/ho has 

been assigned and regularly v/orked on a permanent 

vacancy and who has not voluntarily relinquished his 

rights to such job, has incumbency rights on that job 

over other employees who have not held and regularly 

worked that job on a permanent vacancy basis.

b. When a recall to a job occurs, the demoted 

incumbent with the longest plant continuous service 

•shall be recalled to that job. When a reduction

occurs the employee with the least plant service shall 

be first demoted.
c. When a recall occurs on a job and there are 

no demoted incumbents to that job, the job shall then 

be filled as a permanent vacancy in accordance with 

local seniority agreements or practices with the con­

tinuous service factor being not less than plant 

service.
d. Where during the payroll period following the 

effective date there are employees who are incumbents 

of jobs as defined above who do not work the highest 

rated of the jobs to which they hold incum.bency 

status, and who are not on vacation or other absence,

• or working another job at Management's convenience, such 

employees and the higher rated jobs to which they 

hold incumbency status shall be identified, as well 

• as the date(s) on which they first established such 

incumbency status, and the specific reasons given
i



V whey they did not work such jobs during the payroll 

period.

k. Where any agreement is reached to change prior to 

August k, 197^^ any existing line of progression, seniority unit, 

incumbency system or other promotional practice, such shall be 

reported immediately, but in no event later than July 10, \Slk, to 

the Audit and Revie.-/ Committee v/i th a full explanation of the changes.

5. Prior to July 10, 197^j each Implementation Committee 

shall report to the Audit and Review Committee (1) whether ”tv/o- 

step bidding" or "three-step bidding" has been adopted, and (2)

the administrative rules adopted for purpose of posting vacancies 

for bidding.

6. If departmental structures do not presently exist 

and must be developed pursuant to paragraph 7 of Consent Decree I, 

the departmental structures so developed shall be reported to the 

Audit and Review Committee prior to July 10, 197^*

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