Ford v. United States Steel Corporation Brief for Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 78-1246

JOHN S. FORD, et al.,
Plaintiffs-Appellants,

SYLVESTER WRIGHT, et al.,
Applicant-Intervenors-Appellants, 
- vs -

UNITED STATES STEEL CORPORATION, et al.,
Defendants-Appellees.

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

Southern Division

BRIEF FOR APPELLANTS

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

Suite 1600 - 2121 Building 
2121 Eighth Avenue North

JACK GREENBERG
10 Columbus Circle 
Suite 2030
New York, New York 10019

BARRY L. GOLDSTEIN
806 15th Street, N.W.
Suite 940
Washington, D.C. 20005

Attorneys for Appellants



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE 
FIFTH CIRCUIT 
NO. 78-1246

JOHN S. FORD, et al.,
Plaintiffs-Appellants,

SYLVESTER WRIGHT, et al.,
Applicant-Intervenors-Appellants,

-vs -
UNITED STATES STEEL CORPORATION, et al.,

Defendants-Appellees.

On Appeal from the United States District Court 
For the Northern District of Alabama 

Southern Division
CERTIFICATE

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

1. JOHN S. FORD, WILLIE CAIN, WILLIE L. COLEMAN,
JOE N. TAYLOR, ROBERT CAIN, DAVID BOWIE, and 
EARL BELL, plaintiffs;



2. The class of black workers of United States Steel 
Corporation, whom plaintiffs represent;

3. SYLVESTER WRIGHT, WESTLEY JOE CHAMBLIN, LEROY JONES, 
JIMMIE BENISON, SAM CROOM, MILTON GIVAN, MORRIS 
CHANEY, JR., WOODROW WILSON, BEN HUDSON, JESSIE 
BANKS, SIMMIE LAVENDER, SCILLIE WILDERS, GEORGE O. 
ALEXANDER, JUNIOUS DAVIS, JR., JIMMY DUNSON, DAVE 
YOUNG, WILLIE G. RUCKER, FRANK TURNER, W. A. 
ARMSTRONG, LUCIOUS FITZPATRICK, W. L. McMICKENS,
NED CRAWFORD, HENRY HINKLE, JOHN T. MILES, CHARLES 
L. PETERSON, MUNICH KINE, SENIOUS MARTIN, GEORGE 
McNEIR, CLARENCE GILBERT, LLOYD ALEXANDER, KING 
SMITH, WASHINGTON JOHNSON, JAMES LEO MONTGOMERY, 
and HENRY FIELD, would be intervenors;

4. United States Steel Corporation, defendant;
5. United Steelworkers of America, defendant;
6. United Steel Workers of America, AFL-CIO Local Unions 

6612, 1013, 1733, 2405, 2122, 1380, 1131, 1489, 1700, 
2210, 2421, 2927, 3662, and 4203, defendants.

Attorney for Appellants

-2-



I N D E X

Table of Authorities ................................  3-
Statement of Questions Presented ...................  i-v

Page

STATEMENT OF THE CASE
A. The Private Litigation ................... 2

B. The Justice Department Suit and 
Consolidated Trial ....................... 5

C. The May, 1973 Decree .................... 6

D. The August 10, 1973 Final Judgment 8

E. The Entry of Nationwide Steel Consent 9

F. The 1976 Decision of this Court and Remand.. 10

ARGUMENT
Summary of Argument

I. The District Court Erred in Awarding 
Attorneys' Fees to the Defendants. ...... 12

II. The District Court Erred When It Decertified 
the Class on the Basis that the Plaintiffs 
Did Not Have the Necessary "Nexus" With the 
Class Members. ........................... 12

III. The District Court Erred When It Failed to 
Follow the Established Law of the Case and 
Decertified the Class........................ 13

•>H The District Court Erred when It Denied 
Intervention. ......................... 14
A. Timeliness .........................
B. Intervention is Proper under Rule 24(a)(2)

and Rule 24(b). ......................
CONCLUSION 51



TABLE OF AUTHORITIES

Cases Page

American Pipe & Construction Co. v. Utah,
414 U.S. 538 ( 1974)......................... 41-2

Bolton v. Murray Envelope Corp., 553 F .2d
881 ( 5th Cir . 1977)......................... 13,28,

30, 33
Christianburg Garment Co. v. Equal Employment 

Opportunity Commission, 98 S.Ct. 694
(1978).........................................  12,16

East Texas Motor Freight v. Rodriquez, 431 U.S.
395 ( 1977)..................................  18

EEOC v Datapoint Corp., No. 76-2862 (5th
Cir. April 7, 1978)......................... 16

EEOC v. United Airlines, Inc., 515 F . 2d
946 ( 7th Cir. 1975)......................... 46

Franks v. Bowman Transportation Company,
424 U.S. 747 (1976)......................... 19

Glus v. G.C. Murphy, 562 F .2d 880
(3rd Cir. 1977).............................  44

Hardy v. United States Steel Corporation,
289 F.Supp. 200 (N.D. Ala. 1967)........... 4

Hodgson v. United Mine Workers of America,
473 F . 2d 118 ( 1972)......................... 48

Huff v. N.D. Cass Co., 485 F.2d 710
(5th Cir. 1973) (en banc).................  17

Jenkins v. United Gas Corporation, 400
F. 2d 28 ( 5th Cir. 1968)....................  17

Lehrman v. Gulf Oil Corporation, 500 F .2d
659 (5th Cir. 1974)...........................  13,28-9

Lopez v. Arkansas County Independent School 
District, 570 F.2d 541 (5th Cir.
1978)........................................ 16

- i -



Page
Oatis v. Crown-Zellerbach Corporation,

398 F . 2d 496 ( 5th Cir. 1968)...............  17-8
Philadelphia Elec. Co. v. Anacanda American 

Brass Co., 43 F.R.D. 452 (E.D.
Pa. 1968)...................................  38

Romasanta v. United Airlines, 537 F .2d 915
( 7th cir . 197 6 ).............................  41

Satterwhite v. City of Greenville, 557
F. 2d 414 (5th Cir. 1977)...................  13,19-20

Stallworth v. Monsanto Co., 558 F .2d
257 (5th Cir. 1977)......................... 14, 35,38-9

Stevenson v. International Paper Company,
432 F . Supp .39 0 (W.D. La. 1977)............. 44-5

Terrell v. Household Goods Carriers' Bureau,
494 F. 2d 16 (5th Cir. 1974)................  29

Terrell v. U.S. Pipe & Foundry Co., 7 E.P.D.
para. 9055 (N.D. Ala. 1973)...............  44

United Airlines, Inc. v. McDonald, 432 U.S.
385 (1977)..................................  14,17,35-8,40-1,48

United States v. Allegheny-Ludlum Industries,
517 F .2d 826 (5th Cir. 1975)
cert denied 96 S.Ct. 1684 ( 1976)........... 9, 18

United States v. Allegheny-Ludlum Industries,
558 F.2d 742 (5th Cir. 1977)
reh. granted 568 F. 2d 1073 (1978).......... 12,15,45-7

49
United States v. United States Steel

Corporation, 520 F .2d 1043 (5th Cir.
1975) reh. denied 525 F.2d 1214
cert denied 429 U.S. 817 ( 1976)............ passim

United States v. United States Steel 
Corporation, 371 F.Supp. 1045
(N.D. 1973).................................  3,9

11



United States v. United States Steel 
Corporation, 5 EPD para. 8619 
(N.D. Ala. 1973).............

Page

United States v. United States Steel 
Corporation, 6 EPD para. 8790 
(N.D. 1973)........................

United States v. Trucking Employers, Inc., 
561 F.2d 313 (D.C. 1977)...........

Walker v. Providence Journal Company,
493 F.2d 82 (1st Cir. 1974).......

Wheeler v. American Home Products, 563
F.2d 1233 ( 5th Cir. 1977).........

White v. Murtha, 377 F.2d 428 (5th
Cir. 1967)..........................

Williamson v. Bethlehem Steel Co., 468 
F. 2d 1201 (2nd Cir. 1972) 
cert denied 411 U.S. 931 (1973)....

Zargaur v. United States, 493 F .2d 447
(5th Cir. 1974)....................

6,8

9

47

34

43

29

47

29

Statutes and Other Authorities

28 U.S.C. §1291 ...........................
Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§2000e et seq.m i  ___
(as .. passim

Rule
amenaea 

23, Federal Rules of Civil Procedure ..... 18-9,30,

Rule 24, Federal Rules of Civil Procedure......
48-9

Rule 25, Federal Rules of Civil Procedure..... . 34

i n



Statement of Questions Presented

1. Whether the district court erred in awarding attorneys' fees 
to the defendants?

2. Whether the district court erred in decertifying the 
class because the Ford plaintiffs did not have a proper 
"nexus" with the class members?

3. Whether the district court erred in reversing its prior 
decision certifying the class which was reviewed by 
this Court and Supreme Court because the certification 
decision was the "law of the case"?

4. Whether the district court erred in denying intervention 
because it was not timely sought?

5. Whether the district court erred in determining that the 
intervention was not one of right pursuant to Rule 24(a)(2) 
or in exercising its discretion to deny intervention 
pursuant to Rule 24(b)?

- iv -

J



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 78-1246

JOHN S. FORD, et al.,
Plaintiffs-Appellants,

SYLVESTER WRIGHT, et al.,
Applicant-Intervenors-Appellants, 

vs.
UNITED STATES STEEL CORPORATION, et al., 

Defendants-Appellees.

On Appeal from the United States District Court 
For the Northern District of Alabama 

Southern Division

BRIEF FOR APPELLANTS

STATEMENT OF THE CASE

This appeal involves, as this Court has previously-
described, "a sharply-contested employment discrimination

1/case." The district court on October 13, 1977 reversed 
its decision, made in 1973 and decertified the class 
represented by the plaintiffs-appellants (R53-62) and

1/ 520 F.2d 1043, 1047, reh. denied 525 F.2d 1214 cert,
denied 429 U.S. 817 (1976)



entered a Final Judgment dismissing the action (R63).
On December 19, 1977, the district court denied the Motion 
to Alter or Amend the Judgment, the Motion to Intervene 
and the Motion for a Substitution of Named Plaintiffs. 
(R61-83). A timely notice of appeal was filed; this Court 
has jurisdiction of the appeal pursuant to 28 U.S.C. §1291.

The Ford action is but a part of the litigation con­
cerning the integration of the racially separate and unequal 
employment system at the massive Fairfield Works of the 
United States Steel Corporation, 520 F.2d at 1047-48. This 
appeal involves the interrelation of the several actions 
filed by black employees and the United States pursuant to 
Title VII of the Civil Rights Act of 1964; accordingly,it 
is necessary to describe in some detail the development of 
that litigation.

A. The Private Litigation
Shortly after Title VII became effective on July 2, 

1965, black employees filed charges with the EEOC. These 
charges led to a series of lawsuits. In 1966, three law­
suits, Hardy, McKinstry and Ford were filed by the same
counsel who represent the Ford class and Wriqht intervenors 

2/
on this appeal. These three actions were brought on behalf 
of classes of black employees at the Fairfield Works facility 
of United States Steel Corporation. There are nine "plants"

2/ Oscar Adams, Jr. of Birmingham and Jack Greenberg have 
represented the plaintiffs in these cases since 1966. Over 
the course of the years they have associated additional counsel.

2



within the Fairfield Works complex which together "form
a single interrelated steel producing operation." United 
States v. United States Steel Corporation, 371 F.Supp. 1045, 
1049 (N.D. Ala. 1973). The United Steelworkers of America 
represent employees throughout all of the plants but there

3/are separate Locals which represent employees in each plant.
In retrospect the class definitions contained in the 

1966 Hardy, McKinstry and Ford complaints were ambiguous.
The plaintiffs in both Hardy and McKinstry alleged that they 
represented all blacks at United States Steel Corporation's 
facilities in Fairfield. However, in another section of 
those complaints the classes of black employees were said to 
include those blacks who were members of Local 1489 (Hardy)
and Local 1013 (McKinstry). The complaint in Ford restricted

4/the class to black workers who were members of Local 1733. 
These class allegations if read broadly would, of course, 
include all the black workers at Fairfield Workers. However, 
even if these class allegations were read narrowly as includ­
ing only the black workers in Locals 1489, 1013 and 1733 the
joint classes would include over 70% of the black workers

1/
at Fairfield Works.

3/ Appendix A attached to this brief lists each of the nine 
plants and the Local Union of the Steelworker which was establish­
ed at each plant by the International Union.
4/ Appendix B lists the private suits by date of filing and 
class definition.
5_/ All of the workers at the two largest plants at Fairfield
Works, Fairfield Steel Plant and Ensley Steel Plant, were 
represented by Locals 1013 and 1489 respectively.

3



In any case the original class allegations were severely
restricted in 1967 by the district court (by the Honorable
Seybourn H. Lynne). Judge Lynne noted that the Hardy and
McKinstry class allegations were "not clear" and that they
could be read to include all of the black workers at Fairfield
Works or just those black workers included in the specified
local unions, Hardy v. United States Steel Corporation, 289
F. Supp. 200, 202 (N.D. Ala. 1967). But Judge Lynne limited
the class definitions in the Ford, Hardy and McKinstry actions

6/
to single departments in the Rail Transportation, Ensley
Steel and Fairfield Steel plants. However, Judge Lynne ruled
that the order limiting the class definition was "without
prejudice to whatever rights plaintiffs may have to amend or
change the designation of the class which they seek to represent,
during the pendency of this action, for proper cause shown."

!_/
Id. at 203.

Subsequently, three additional private suits were brought 
from 1967 to 1969 on behalf of black workers: Brown v. U.S.
Steel Corporation, United Steelworkers of America; Love v .
United States Steel Corporation, United Steelworkers of America,

5/ contd.
Appendix C lists the number of white and black workers,and 

their average hourly wage, by plant as of 1971.
6/ Each plant was subdivided into departments.
7/ The opinions entered by Judge Lynne in Ford and McKinstry 
are, as a practical matter, identical to the one entered in 
Hardy. The opinions in Ford and McKinstry were not reported.

Of course, Judge Lynne's Order limiting the definition 
of the classes was interlocutory and not appealable.

4



Local 1489 and 1013 of the United Steelworkers of America;
and Donald v. United States Steel Corporation, Local 1013 
and the United Steelworkers of America. As in the Ford, 
McKinstry and Hardy suits, the Brown, Love and Donald 
complaints alleged, inter alia, that the assignment, seniority 
and promotional practices of the defendants violated Title VII 
and sought adequate remedy.

B. The Justice Department Suit and Consolidated Trial
On December 11, 1970, the United States filed a "pattern

and practice" lawsuit against United States Steel Corporation,
the United Steelworkers of America and each of the Steelworkers '
Locals at Fairfield Works. The complaint alleged broad
patterns of discrimination in, inter alia, hiring, assignment,
promotion and in the application of the seniority system
against all black employees at Fairfield Works. On June 17,
1971 during a pre-trial conference the Honorable Sam C.
Pointer consolidated the Justice Department's pattern and
practice suit with the private suits. The court further
delineated appropriate pre-trial discovery and other procedures
including the appointment of Oscar Adams as liaison counsel

9/
for plaintiffs' attorneys. The trial of the consolidated

8/ See Appendix B.
An additional lawsuit, Johnson v. United States Steel 

Corporation, alleged that the defendant maintained segregated 
facilities; this suit was found by the district court to be 
moot. One lawsuit, Fillingame v. United Steel Corporation, 
et al. was filed by white employees and involved a claim of 
unfair representation; the district court held that the suit 
was unsupported by the evidence, 5 EPD para. 8619 at 7823
_9/ As part of the court's assignment as liaison counsel, 
attorney Adams in the Ford, McKinstry and Hardy litigation

5



actions commenced on June 20, 1972 and continued on a
intermittent basis for six months. The Record was joint,
evidence introduced in any one of the cases applied to all
of the cases; the district court described the trial as
follows, 371 F.Supp. at 1048:

In December 1972 —  after hundreds of witnesses, 
more than 10,000 pages of testimony, and over 
ten feet of stipulations and exhibits (the bulk 
being in computer or summary form) —  the parties 
rested.... Trial would have been even more 
prolonged but ... for the very professional atti­
tude of all counsel in expediting trial (fn. omitted).

C. The May, 1973 Decree
On May 2, 1973, the district court entered a Decree 

of over 150 pages. The Decree applied to both the private 
actions and the pattern and practice suit; the court entered 
a general injunction, as well as extensive provisions cover­
ing changes in the seniority system, inter-plant transfer, 
training opportunity, and other specific remedial relief. The 
Decree also held that six private actions were "due to be 
maintained as class actions ... in each the prerequisites 
of Federal Rule 23(a) are satisfied and that in addition the 
provisions of Federal Rule 23(b) are applicable."

Most importantly for this appeal the district court 
held the following definition of the Ford class appropriate,
5 EPD para. 8619 at 7822 :

9/contd.
undertook to coordinate pre-trial discovery and attorney Adams 
or one of his partners attended each day of the over 50 trial 
days regardless of whether the evidence presented on that day 
pertained directly to the class employees which they represented pursuant to the Order entered by Judge Lynne.

6



"... all black persons who have at any time 
prior to January 1, 1973, been employed in 
the former Pratt City Car Shop line of pro­
motion; and, for the purposes of this Decree, 
the plaintiffs herein represent a class 
consisting of all black persons who have at 
any time prior to January 1, 1973, been 
employed at the Fairfield Works (except to 
the extent they may be otherwise included as 
a class member under sub-paragraphs (a) 
through (f) [that is, Blacks who had been 
included in any of the private class actions]

II

The district court made this ruling sua sponte in order "to
assure that its ruling adverse to back pay claims of such
persons could be reviewed by the Court of Appeals." (R55)
However, it is important to emphasize that prior to the
issuance of the May 2, Decree, Oscar Adams had informed the
district court in the presence of counsel for the defendants
that his clients, black workers who were employed throughout

10/
Fairfield Works, had authorized him to pursue a back pay 
remedy on their behalf. This discussion took place at a 
chambers conference immediately preceding the May 2, Decree. 
Judge Pointer at this conference indicated his intent to 
deny back pay to all black workers except those in the narrowly- 
defined Ford, McKinstry and Hardy classes. At that time it 
was not clear, as Judge Pointer indicated in his October 13,
1977 Opinion, whether the government would appeal the ruling. 
(R55)

10/ Oscar Adams and his associate counsel had been regularly 
meeting with an organization of black steelworkers employed at 
Fairfield Works, the Ad Hoc Group, which had been instituted 
prior to 1965 to achieve equal employment opportunity; see infra 
at 26-7 for a further discussion of the Ad Hoc Group. In 
addition Oscar Adams in his position as liaison counsel for 
plaintiffs 1 attorneys had repeatedly met with black workers at 
Fairfield Works and the other attorneys who represented the 
Donald, Love and Brown classes.

7



Following Judge Pointer's announcement of his intended 
ruling, attorney Adams stated that (1) the plaintiffs in 
the private actions had maintained that they represented a 
broad cross-section of black workers at Fairfield Works 
and (2) that, in any case, his clients were going to seek 
to insure that their back pay claims were pressed by the 
institution of a new lawsuit. Subsequently, Judge Pointer 
declared, "sua sponte" that a new lawsuit would be unnecessary 
and that the Ford plaintiffs (or indeed the Hardy and McKinstry 
plaintiffs) could properly represent a class of black workers 
throughout Fairfield Works.

The May 2, 1973 decree was not final and appealable, 5 EPD 
para. 8619 at 7823. The district court had indicated that
some class members of the Hardy, McKinstry and Ford (car-shop

11/class ) were entitled to back pay but that further evidence 
and hearings were necessary in order to determine who in the 
class was entitled to back pay and in what amount.

D. The August 10, 1973 Final Judgment and Appeal
After the May 2 Decree, the court during an in-chambers 

conference determined an appropriate formula for computing 
back pay in the three private actions. After defendant 
United States Steel Corporation provided through informal 
discovery proceedings sufficient information to implement 
the proposed formula, a hearing was held on August 6, 1973

11/ The narrow Ford class preliminarily determined in 1967 
by Judge Lynne is listed as the "Car-Shop class" whereas the 
1973 certification by Judge Pointer is listed simply as the 
Ford class.

8



to apply the formula and to determine any appropriate changes. 
After evidence and argument was presented. Judge Pointer made 
several changes in the formula for calculation of back pay,
371 F.Supp. at 1060. Four days later the court issued a Final 
Judgment establishing the precise back awards; 33 out of the 
37 members of the Ford Car-Shop class received an award of back 
pay totaling $112,033.06, 6 E.P.D. para. 8619.

The Ford plaintiffs filed a timely notice of appeal 
from the Final Judgment. Of course, it was unnecessary for 
the black workers who had been originally included in the Hardy 
and McKinstry class definitions to appeal from the limitation 
on the class in these cases because they were now represented 
in the Ford case. The United States also appealed the court's 
denial of back pay and the appeals were consolidated.

E . The Entry of Nationwide Steel Consent Decree
During the pendency of the consolidated appeals, the

United States on April 10, 1974 entered into a consent decree
with United States Steel Corporation, nine other steel companies
and the United Steelworkers of America providing a remedy,
injunctive and back pay, for practices of race and sex dis-

12/crimination. The consent decree applied to Fairfield Works
13/

and some members of the Ford class. Several hundred members 
of the Ford class who were tendered settlement under the consent

12/ See United States v. Allegheny-Ludlum Industries, 517 F.2d 
82*6 (5th Cir. 1975) cert, denied 96 S.Ct. 1684 (1976) for a full 
description of the consent decrees.
_13/ The Ford class includes black workers who were ineligible 
for tenders under the consent decree: black employees who left 
employment prior to April 12,1972, who were hired after January 1, 
1968, or who retired after April 12, 1972 but not on pension. (R 72)

9



clecree rejected the tender in reliance on the district court
14/

certification of the Ford class.
The United States dismissed its appeal in favor of the 

consent decree.

F. The 1976 Decision of this Court and Remand
This Court reversed the district court's denial of back

pay to black workers and held that "we reject [the company s]
argument that appellant Ford lacks standing as a matter of law
to represent any class of black employees broader than the
'original' Ford class, in which his personal back pay claim has 

----  15/
been satisfied," 520 F.2d 1043, 1052. The action was remanded 
for "further proceedings consistent with [the] opinion and other 
controlling authority."

On remand, the Ford plaintiffs acted to both insure the 
effective enforcement of the injunctive sections of the decree 
and commenced formal and informal discovery proceedings 
consistent with the remand order to prepare for trial on the

16/

14/ The district court questioned "whether, in the interest of 
justice, this court ... should on motion require a re-tender 
[under the consent decree]...." (R60 N.9)
15/ The Court's opinion is discussed extensively in Argument III, 
infra.
16/ On numerous occasions counsel for plaintiffs have represented 
members of the class who complained about the operation of the 
Decree. Indeed even after the entry of its October 13 Opinion 
the district court on Motion of the Ford plaintiffs added John 
Hicks, a named plaintiff in the Ford case, to the Implementation 
Committee. This Committee is responsible for the effectuation 
of the injunctive remedy.

10



amount of back pay due to class members. One year and 
eight months after the mandate was issued the defendant 
Steelworkers and United States Steel Corporation moved 
for Summary Judgment (R34-51), maintaining that the 
evidentiary hearing "envisioned" by the Fifth Circuit 
was not "needed." (R53) On October 13, 1977, the district 
court issued an opinion agreeing with the defendants; the 
court found as a matter of law that it had erred in certifying 
the class in 1973 because the Ford plaintiffs had no "nexus" 
with the class. The district court also determined that 
it was not bound by its prior judgment because of the Opinion 
of this Court. (R53-62) The Ford plaintiffs moved to alter 
or amend the judgment and alternatively, moved to intervene 
or to substitute as named plaintiffs thirty-four members of 
the class who had relied on the certification of the Ford 
class (R64-5). On December 19, 1977, the district court 
denied the motion to intervene, the motion to alter and 
amend and the motion to substitute parties. (R69-82).

11



A R G U M E N T

Summary of Argument
I. The district court relied on the dictum in United 

States v. Alleqheny-Ludlum Industries, 558 F.2d 742 (5th Cir. 
1977) providing that the same standard for awarding attorneys' 
fees applies to prevailing defendants and prevailing plaintiffs. 
After the Supreme Court ruled to the contrary, Christianburg 
Garment Co. v. EEOC, rehearing was granted in Allegheny-Ludlum 
and the decision on the attorneys' fees standard was withdrawn. 
Thus, the district court's award of attorneys' fees to the 
defendants should be reversed.

II. When the district court certified the Ford class in 
May 1973, the Ford plaintiffs and the class members had the 
same interest with respect to injunctive relief; that interest 
continues to this day. The only difference that existed in 
May 1973 between the Ford plaintiffs and the Ford class with 
respect to back pay relief was one of timing. The Ford plain­
tiffs proceeded directly to a stage II hearing concerning the 
calculation of monetary relief whereas the class members had 
to await the conclusions of that hearing until they could appeal 
and then proceed to the State II hearing. However, in May 1973 
the Ford plaintiffs had not been awarded any monetary remedy 
and it was unclear whether they would, after the stage II 
determination, appeal with the class members concerning the 
court's determination of back pay. The relevant time frame for 
considering whether the class representatives had a proper

12



nexus" with the class members occurs when the class certifi­
cation issue is presented or considered by the district court. 
Satterwhite v. City of Greenville, 557 F.2d 414 (5th Cir. 1977). 
The court considered the issue in May 1973 when there was a 
proper nexus between the Ford plaintiffs and the class they 
represent. Since the case continues to present a live contro­
versy and the named plaintiffs adequately represent the class, 
the court erred in decertifying the class. Moreover, the dis­
trict court erred when it rendered its decision without holding 
the hearing which had been mandated by this Court, United States 
v. United States Steel Corporation, 520 F.2d 1043 (1975).

III. The district court contravened the law of the case 
doctrine when it reversed its own 1973 certification of the 
class and this Court's determination that the certification was 
appropriate as a matter of law. Bolton v. Murray Envelope Corp. 
553 F.2d 88 (5th Cir. 1977). This Court's decision in Ford I, 
contrary to the analysis of the district court, affirmed that 
"as a matter of Law" the Ford plaintiffs have standing to repre­
sent the class and that the certification was proper. The law 
of the case doctrine "grounded upon the sound public policy that 
litigation must come to an end" requires the reversal of the 
lower court's decision, Lehrman v. Gulf Oil Corporation, 500
F.2d 659 (5th Cir. 1974).

IV. If the ruling decertifying the class is not reversed, 
then the ruling denying intervention must be reversed. The class 
members were included in one or more of the class allegations of

13



the private actions and they relied on these private actions 
to represent their interests in equal employment opportunity 
throughout Fairfield Works. The "critical fact" determining 
timely intervention is how soon after the entry of the Final 
Judgment of an adverse class determination a class member seeks 
to intervene, United Airlines v. McDonald, 432 U.S. 385 (1977). 
The applicants timely filed twelve days after the entry of the 
Final Judgment. Even if the district court's decision that the 
intervention was untimely is not reversed under McDonald, it 
should be reversed because the court improperly applies the 
standards established by this Court for determining whether 
intervention is timely sought. Stallworth v. Monsanto Co., 558 
F.2d 257 (1977).

When measured by a "practical yardstick," the denial of 
intervention impairs the ability of the would-be intervenors 
to adequately protect their interest in the effective implemen­
tation of the Decree and in the attainment of full monetary 
relief. Thus, the district court erred in denying intervention 
as of right pursuant to Rule 24(a) (2). Since the district 
court applied the same erroneous analysis in exercising its 
discretion to grant permissive intervention pursuant to Rule 
24(b) as it did in determining whether intervention was timely 
sought, the court's ruling denying permissive intervention 
should be reversed.

14



I. THE DISTRICT COURT ERRED IN AWARDING ATTORNEYS' FEES TO 
THE DEFENDANTS

There are two separate rulings concerning attorneys' fees. 

In its October 13 opinion decertifying the class, the court 

held that the plaintiffs had prevailed on the appeal and were 

thus entitled to attorneys' fees since they "succeeded in re­

versing a ruling denying back pay, which would have been bind­

ing upon the 'new' Ford class." (R.62) Although the defendants 
prevailed in the post-appeal proceedings the court declined to 
award attorneys' fees to them because of the "unusual context 
of this case —  the plaintiffs and their counsel having involun­

tarily been appointed by the court as class representatives . ." 

(R.62) However, in its decision of December 19, 1977, the court 

stated that the motions for reconsideration and intervention 

filed by the plaintiffs were not done "under the terms of an 
involuntary appointment from the court" and that since the de­

fendants prevailed on these matters they should be entitled to 
attorney fees. (R.81-2)

In its decision to grant attorneys' fees to the defendants 

the district court followed the dictum in United States v. 

Allegheny-Ludlum Industries, 558 F.2d 742 (5th Cir. 1977) that 

there should be no "double standard" in awarding fees to pre­

vailing parties depending on whether they are plaintiffs or 
defendants. But following this opinion the Supreme Court ruled

15



to the contrary:

In sum, a district court may in its 
discretion award attorneys ' fees to 
a prevailing defendant in a Title VII 
case upon a finding that the plaintiff's 
action was frivolous, unreasonable or 
without foundation, even though not 
brought in subjective bad faith.
Christianburg Garment Co. v. Equal 
Employment Opportunity Commission,
98 S.Ct. 694, 700 (1978)

After the decision in Christianburg Garment Co., this 

Court granted rehearing in Allegheny-Ludlum and withdrew that 

portion of the opinion relating to the standard to be applied 

in awarding attorneys' fees to prevailing defendants, 568 F.2d 

1073 (1978). Since the district court relied on the incorrect 

legal standard established in Allegheny-Ludlum the decision
17/

awarding attorneys' fees to the defendants should be reversed.

2 / This court has vacated and remanded other cases for a 
determination as to the appropriateness of an award of attorneys' 
fees to prevailing defendants in light of Christianburg Garment 
Co., Lopez v. Arkansas County Independent School District, 570
F .2d 541, 545 (1978); EEOC v. Datapoint Corp.,___ F.2d ___ ,
(No.76-2862, April 7, 1978).

However, in this case it is so clear that the plaintiffs' 
Motion to Amend and Motion to Intervene were reasonable and 
brought with a substaitial legal foundation the Court should 
simply reverse the decision of the district court to award 
attorney fees to the defendants. Of course, if the court 
reverses the lower court on the merits as presented in Argu­
ments II—IV, then the issue of the award of fees to the de­
fendants is moot since they no longer would be a prevailing 
party.

16



II. THE DISTRICT COURT ERRED WHEN IT DECERTIFIED THE CLASS 
ON THE BASIS THAT THE FORD PLAINTIFFS DID NOT HAVE 
THE NECESSARY "NEXUS" WITH THE CLASS MEMBERS

In the summer of 1968, this court in the initial opinions 
rendered by an appellate court concerning Title V U  class actions 
stated several principles that have guided the subsequent 

development of fair employment law. First, Title VII suits 

while they may be private in form have an important public 

interest, the enforcement of equal employment laws. Second, 
while conciliation is an important method for resolving dis­

crimination complaints, private litigation is a necessary spur 
to cause companies and unions to comply with the Act. Third, 

race discrimination cases are by their very nature class actions. 

Oatis v. Crown Zellerbach Corporation, 398 F.2d 496 (5th Cir. 

1968); Jenkins v. United Gas Corporation, 400 F.2d 28 (5th Cir. 

1968); see also Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 
1973) (en banc). Other circuit courts and then the Supreme Court 
approved these general principles, Albemarle Paper Company v. 
Moody, 422 U.S. 405, 414 N.8 and 421-22 (1975); United Airlines, 

Inc, v. McDonald. 432 U.S. 385, 393 N.13 (1977).

As recognized in Oatis, the named plaintiff must still, of 

course, meet the requirements of Rule 23 and have standing to 

present the issues, 398 F.2d at 499. "We are not unaware that 

suits alleging racial or ethnic discrimination are often by 

their very nature class suits, involving classwide wrongs. But

17



careful attention to the requirements of Fed. Rule Civ. Proc.

23 remains nonetheless indispensable." East Texas Motor Freight 
v. Rodriquez, 431 U.S. 395, 405 (1977).

The six-month trial of this case in 1972 demonstrated the 

appropriateness of the general principles established four 

years earlier by this Court. The termination of discrimination 

by litigation at the massive Fairfield Works implemented the 

public policy of fair employment and acted as a "spur" to 
improving equal employment opportunity throughout the steel 

industry, see United States v . Allegheny-Ludlum Industries, 517 

F.2d 826, cert. denied 96 S.Ct. 1684 (1976). Moreover, the 
broad practices of race discrimination, primarily initial job 

assignment and the seniority system, were remedied by class 

relief, 5 EPD para. 8619. Under these circumstances the district 
court determined that the pending private actions were appropriate 

class actions. The court heeding the guidance of Oatis and 
anticipating the direction of Rodriguez specifically held that 

"the prerequisities of Federal Rule 23(a) are satisfied and that 

in addition the provisions of Rule 23(b)(2) are applicable."

But four and one-half years later the district court reversed 

its position holding that the "prerequisites" of Rule 23(a) were 

not in fact met.

The district court reversed its prior decision on the
18



basis that the Ford named plaintiffs had never had the

"necessary 'nexus'" with the class to satisfy "commonality" 

and "typically" requirements of Rule 23(a)(2) and (3).

(R.57-59). There is no question that the numerosity require­

ment, Rule 23(a)(1) (R.72) and the adequacy of representation

requirement were satisfied, Rule 23(a)(4) (R.57), see also
United States v. United States Steel Corporation, 520 F.2d at 
1051.

Judge Pointer after stating that the Ford plaintiffs "are 

not now —  nor have they ever been —  members of the 'new' Ford 

class" concludes that they do not have a sufficient "nexus under 

Rodriquez" to represent the class. This statement was in error. 

The relevant time-frame for determining whether the necessary 

"nexus" exists between the claims of the named plaintiffs and 
the class is not after the final determination of the merits, 

but, depending on the circumstances of the case, when the class 
allegations are presented, when the motion to certify is made, 

or when the disctrict court determines that a class certifica­
tion is or is not appropriate. Satterwhite v. City of Greenville 
557 F.2d 414, 419-22 (5th Cir . 1977); Franks v. Bowman Trans­

portation Company, 424 U.S. 747, 754-56 (1976). Once the ques­
tion of class certification was before the district court, as 

it was here in May, 1973, the question as to whether the case

19



is an appropriate class action at a later time does not turn 

on the merits of the named plaintiffs' claims, nor on their 

mootness, nor even on their present "nexus" with the claims 

of the class. Rather the issue shifts from "whether the named 
plaintiff in a class action maintains the requisite 'personal 
stake in the outcome' to whether after the named plaintiff's 

claim no longer exists, the class has acquired such a personal 
stake", (footnote omitted) Satterwhite v. City of Greenville, 

supra at 416. The inquiry should concern whether it was appro­
priate to have certified the class, whether a live controversy 

continues in which the class maintains sufficient interest, 
and whether the named plaintiffs still adequately represent the 

interest of the plaintiffs, id. at 423.

There is no question that the interest of the several 

hundred class members in obtaining back pay and in insuring 
the effective implementation of the Decree presents a live con­

troversy. The district court found that there is presently 

adequate representation: "There is no conflict of interest 
between Ford and the black employees in other departments and 
plants of the company, and Ford's counsel are among the country's 
finest and most dedicated attorneys in this type of litigation".

(R.57) The focus of the question is accordingly narrow —  did 

the Ford plaintiffs in May, 1973 have a sufficient "nexus" with

20



the class to properly satisfy the requirements of Rule 23 when 
the issue or class certification was before the district court.

The simple fact of the matter is that at the time of the 
certification of the Ford class in May, 1973 the Ford plaintiffs 

were similarly situated to the class members and as such were 

part of the class: there were questions of law and fact common 

to the named plaintiffs and the class and the claims of the 

named plaintiffs were the same as those of the class. The dis­

trict court's statement that the certification took place “after 
trial of the case, the entire litigation having been tried . . "

is inaccurate. As this Court observed the trial in 1972 was

only the first stage of the trial of the case, 520 F.Ed at 1049-51.
18/In its May Decree the district court held that the defendants 

had violated Title VII and ordered an injunctive remedy that 
applied evenly to all the Ford class members, 5 EPD para. 8619. 
Moreover, the court ordered back pay to be paid to the crane 

hookers, in the Plate Mill of Fairfield Steel Plant, McKinstry 
case, the black workers in Stock House of Ensley Steel, Hardy 

case, and the black workers in the Car Shop of Rail Transporta­

tion, Ford case, "who have been damaged by the discriminatory 

lines of promotion," id. The court stated that "further hearings

18 / The United States Steel Corporation, United Steelworkers 
of America and the Locals of the United Steelworkers.

21



and proceedings" would be held to determine who would receive 

back pay and in what amount, 5 EPD para 8619 at 7822-23.

It is of critical importance that except for the back 

pay hearings to be held in the future the Ford plaintiffs and 

the class of black employees throughout Fairfield Works were 
as of the May Decree in the same position with respect to both 

back pay and injunctive relief. The May Decree did not award 
any back pay to the named Ford plaintiffs. Only after the 

termination of the second stage trial, and the decision of the 

district court, would the Ford plaintiffs know _if they were 

going to be awarded back pay and if so, in what amount.
It was entirely possible that one, two or even all of the 

Ford plaintiffs would be denied back pay or would be awarded 

an amount less than that which would satisfy their claims. On 
August 10, 1973, the district court rendered a final decision 

awarding back pay to 33 of the 37 black workers in the Car Shop, 
see supra at 9. The six named plaintiffs were coincidentally

among the thirty-three black workers who received back pay; in 
May 1973, it was, of course, not clear that the 37 black workers 

in the Ford class would find, as they did on August 10, that an 
appeal was unwarranted after Final Judgment on their claims for 

back pay.

As of the May 3 Decree the Ford plaintiffs like the class

22



members simply had claims for back pay; these claims presented 

similar fact questions concerning the determination of the 

amount of earnings lost as a result of discriminatory practices 

and similar legal questions concerning whether "future" loss 
could be compensated, the legal effect of past job waivers and 
other questions which this Court discussed in its decision on 

the appeal, 520 F.2d at 1054-58. The only difference between 

the Ford plaintiffs and the class was one of timing: when these 

similar law and fact questions would be presented for decision to 

the district court.

As a result of the May Stage I decision the Ford plaintiffs 

proceeded to a Stage II trial adjudicating their back pay 
claims. However, the class members were required to await the 
conclusion of the Stage II trial (since the May Decree was 

interlocutory) to appeal the decision of the district court, 

and then, if successful on appeal (as they were), to proceed 

to Stage II. Importantly, if the district court ruled against 

the named Ford plaintiffs in Stage II, they would have joined 
the class members on the appeal and then on remand be joined 
with the class members in presenting their claims for back pay.

With respect to injunctive relief, the claims and circum­

stances of the class members and the named plaintiffs were 

identical in timing as well as substance. The extensive

23



injunctive relief entered in May, 1973 applied evenly to the
19/

Ford plaintiffs and the class members. Moreover, the Ford 
plaintiffs represented the class of black workers in Fairfield 
Works in the implementation of the Decree. For example, the
Ford plaintiffs represented the black workers in the selection20/
of the black worker members of the Implementation Committee, assist­
ed black workers in understanding the Decree, in processing com­
plaints concerning the effectuation of the Decree and in mon-

21/
itoring the workings of the Decree. Furthermore, the Ford

19/ The Decree provided the following remedy which was applied 
to all of Fairfield Works: General injunction (paragraph 1),
Implementation Committee which contained a representative for all 
the black workers at Fairfield Works (paragraph 2), seniority 
remedy providing for the use of plant seniority within all the 
plants (paragraph 4), right to transfer to salaried positions 
for workers in all the plants (paragraph 5), training oppor­
tunities for workers in all the plants (paragraph 6), affirm­
ative action in the form of goals and timetables available to 
workers in all of the plants (paragraph 7), red-circling avail­
able in all the plants (paragraph 8) and reporting and record­
keeping provisions which covered all the plants (paragraphs 9 
and 10), 5 EPD para. 8619.
20/ The Implementation Committee is described at 5 EPD para.
8619 at 7815-16. The original black worker on the Committee, 
Thomas Johnson, has recently been replaced by one of the named 
Ford plaintiffs, John Hicks.
21/ a copy of all the reports required by the May Decree is 
sent to counsel for plaintiffs. Counsel for the named plain­
tiffs have on numerous occasions represented members of the 
class in informal discussions and negotiations with the defend­
ants concerning the implementation of the Decree.

24



plaintiffs represented the class of black workers in insuring
the appropriate modification of the Decree when the district
court held a hearing concerning the application of the steel

22/
consent decrees, see supra at 9— 10, at Fairfield Works.

In conclusion, the interests and claims of the Ford plain­
tiffs and the class members as of the May 3 certification of 
the class were similar. Neither the plaintiffs nor the class mem­
bers had received the back pay which they claimed; the plain­
tiffs and the class members both sought full and effective 
implementation of the injunctive decree.

The district court not only erroneously applied the law 
in determining that the Ford plaintiffs no longer could pro­
perly represent the class but also failed to follow the specific 
mandate of this Court that "the district court should conduct a 
hearing and take evidence as to the propriety of the 'new'
Ford class . . . ," (R. 53) The failure of the district court
to hold a hearing on the matters specifically directed for

23/
determination by this Court requires reversal.

22/ When the defendants sought to modify the May Decree to 
conform to the nationwide steel industry decree counsel for 
plaintiffs represented the interest of the class members by 
opposing several of the modifications. The plaintiffs were 
successful in their opposition to certain of the defendants’ 
modifications concerning the affirmative action program, the 
Implementation Committee and other matters.
23/ The several factual issues which this Court stated to be 
appropriate for resolution after a hearing are described in 
Section III, infra.

25



Additionally, it is important to note that the failure to 
hold a hearing inevitably led the district court to fail to 
properly consider the facts of the case. For example, the 
district court states that "Most black employees at the various 
plants at Fairfield Works were not class members in any of the 
actions." (R.SS) This is not the case. The complaints filed 
in the private actions purported to include all of the black 
workers at Fairfield works. Even if the class complaints are 
read narrowly (and plaintiffs would maintain improperly) these 
complaints would include well over 50% of the black workers 
at Fairfield Works, supra at 3. Moreover, the plaintiffs, 
if the court had held a hearing, would have been able to show 
that black workers throughout Fairfield Works had relied on 
these private suits from the mid 1960's to the present to re­
present their interests in achieving equal employment opportunity. 
The black employees at Fairfield works had formed the Ad Hoc 
Group in the early 19601s in order to work together to achieve 
equal employment opportunity. At the meetings of the Ad Hoc Group 
held during the 1960's the private litigation was discussed, 
and the purpose of that litigation to end discrimination through­
out Fairfield Works was emphasized.

Furthermore, the Ford plaintiffs at the hearing could have 
demonstrated that they continue to have an interest in the 
litigation because (1) they depend on the effective implementa­
tions of the Decree, just as the class members do, to insure

26



their equal employment opportunity; and (2) they are active 
participants in the Ad Hoc Group, where they have been active 
since its formation, and they are concerned with the achieve­
ment of the goal of the Ad Hoc Group —  the final end of dis­
crimination at Fairfield Works and a fair remedy for those who 
have suffered from that discrimination. The concern of the 
Ford plaintiffs that the Decree effectively terminates discri­
mination is amply shown by the recent appointment of John Hicks, 
a Ford named plaintiff, to the Implementation Committee estab­
lished under the May 1973 Decree.

27



III. THE DISTRICT COURT ERRED WHEN IT FAILED TO FOLLOW THE
ESTABLISHED LAW OF THE CASE AND DECERTIFIED THE CLASS

The application of the "law of the case" doctrine usually 

involves a situation where a lower court is reversed on appeal 
but then on remand questions whether a particular issue was 

actually decided by the appellate court. Here the circumstances 
for the application of the law of the case doctrine is much 
stronger: both the district court and this Court in Ford I held

that "as a matter of law" Ford does not lack standing to represent 
the class, 520 F.2d at 1052. Nevertheless, the district court 

ruled, as a matter of law, that the Ford plaintiffs' lacked standing 

to represent the class since they did not have the "necessary" 
nexus with the class members. Since the lower court ruled as a 

matter of law it felt free to disregard this Court's mandate 
that "on remand the district court should conduct a hearing and 

take evidence as to the propriety of the 'new' Ford class. . . . "

52 O.F.2d at 1051. The district court erred in reversing its 
prior decidion on class certification which was affirmed as being 

legally proper by this Court and by thus failing to follow the 

"laudable" law of the case doctrine. Lehrman v. Gulf Oil 

Corporation, 500 F.2d 659, 662 (5th Cir. 1974); Bolton v. Murray 
Envelope Corp., 553 F.2d 88 (5th Cir. 1977).

This Court has repeatedly stressed the importance of the 

doctrince since it

28



is grounded upon the sound public policy 
that litigation must come to an end. An 
appellate court cannot efficiently perform 
its duty to provide expeditious justice to 
all "if a question, once considered and 
decided by it were to be litigated anew in 
the same case upon any and every subsequent 
appeal." (Footnote omitted)

Lehrman v. Gulf Oil Corporation, supra at 662; Terrell v. House­

hold Goods Carriers' Bureau, 494 F.2d 16, 19 (5th Cir. 1974);
24/Zarqaur v. United States, 493 F.2d 447, 453-54 (5th Cir. 1974); 

White v. Murtha, 377 F.2d 428, 431 (5th Cir. 1967). Accordingly, 
this Court has held that "as a general rule if the issues were 
decided, either expressly or by necessary implication, those 
determinations of law will be binding on remand and on a subse­

quent appeal" (footnote omitted) Lehrman v. Gulf Oil Corporation, 

supra at 663. While the law of the case doctrine is somewhat
2y

more limited than the doctrine of res judicata, those limitations 

do not apply in this case. Rather the district court sought to 

avoid the binding effect of the prior decisions in this case 
through an interpretation of this Court's decision in Ford I.

The lower court erred in its interpretation.

24/ »it is a principle not to be taken lightly for to do so would 
not only encourage judicial inefficiency but also 'panel shopping' 
at the appellate level."
25/ The law of the case doctrine does not apply as does res judicata 
to questions which were present in the case but which were not 
decided. Moreover, the law of the case doctrine will not prevent 
a second review of a question if "considerations of substantial 
justice warrant it." Id.

29



The district court implicitly recognized that if the 

decision of this Court in Ford I did not "relieve" it "from 

being bound by its certification of that class" than the law 
of the case doctrine and this Court's decision in Bolton v.
Murray Envelope Corp., supra, would preclude a reversal of the 

certification decision. (R. 56) The district court only cited 
several lines out-of-context from Ford I in support of the 

decision that it was relieved of the binding effect of its 

prior decision. (R. 56) However, when these remarks are read 
in context it is clear that Ford I affirms both the 

legal standing of the Ford plaintiffs to represent the class and 

the legal appropriateness of the certification of that class after 

the Stage 1 trial on liability.
In Ford I the Court summarized its conclusions in the

beginning of the Cpinion,
On remand the district court should carefully 
redetermine the propriety of the amorphous 
'new' Ford class in light of the consequences 
of binding such a_ group to a final judgment.
520 F .2d at 1048. (Emphasis added.)

The Court was concerned with the scope of the Ford class, the 

manageability of the case, and whether, in fact, the Ford 
plaintiffs could be adequate representatives. The Court was 

further concerned that the lower court use the "flexibility" 

contained in Rule 23 to insure effective and efficient resolu­

tion of the back pay issue. Specifically, the Court pointed

30



out that the district court confronted on remand two separate

problems concerning the speculative nature of the back pay
award: Whether the economic disparity between black and white
workers was the reasonably certain result of the unlawful

conduct and then, if so, to what extent part of the economic
disparity may be attributed to causes other than unlawful

discrimination, 520 F.2d at 1048. The Court then stated that

We believe that both of these difficulties 
[concerning the calculation of back pay] can 
be largely obviated on remand by the funda­
mental expedient of reexamining the scope of 
the "new" Ford class. Id.

The Court recognized that the district court had 
not in May 1973 made the factual analysis required to determine 
specifically how the Ford class action should be managed for 

back pay proceedings because the district court had denied back 
pay to that class. The Court directed the lower court to make 

that analysis:
On remand the district court should conduct 
a hearing and take evidence as to the pro­
priety of the "new" Ford class, its scope 
in terms of the ingredients of the judgment, 
if any, by which it ought to be bound, and 
its size and membership.

* * * *

The question on remand will be comprehensive 
and multifacited: the extent to which the
"new" Ford class is maintainable in a "meaning­
ful and manageable" sense as a class action 
seeking monetary relief. . . .  As a corollary 
matter, the court should consider the adequacy 
of the representation, F.R. Civ. P. 23(a)(4), 
which in this court has been impressive.
(emphasis added), Id. at 1051.

31



The Court clearly was focusing the remand proceedings on 

factual concerns of "manageability", "adequate representation", 

creation of "sub-classes", etc. However, these were fact 

questions, to which, of course, applicable law would be applied.

They were not questions concerning whether the Ford plaintiffs,

as a matter of law and regardless of any further factual findings could
represent the class. These legal questions were raised by the
United States Steel Corporation on appeal and by petition for

26/
certiorari. These questions were settled in Ford I:

Initially, we reject appellee United States 
Steel's argument that appellant Ford lacks 
standing as a matter of law to represent any 
class of black employees broader than the 
"original" Ford class. . . . Nor do we accept 
the argument that the designation of a "new"
Ford class constituted inherent error or an 
unauthorized substitution of parties. Id. at 
1052

Thus, the legal issues concerning the Ford plaintiffs’ 

standing or their appropriateness as Rule 23 class representatives 

were settled in Ford I; the district court was instructed after

a hearing to review the structure, manageability, and even the 

scope" of the Ford plaintiffs’ standing but not to review once again 
the decision of this Court as well as its own decision ccnceming the basic

^2/ United States Steel Corporation's petition for certiorari 
raised questions concerning the standing and adequacy of the 
Ford plaintiffs to represent the class. The petition for 
certiorari was denied, 96 S. Ct. 1684 (1976).

32



legality of the certification of the Ford class. Therefore, 

the district court's decertification of the class runs afoul 

of the law of the case doctrine, see Bolton v. Murray Envelope 
Corp., supra/ and should be reversed.

33



IV. THE DISTRICT COURT ERRED WHEN IT DENIED INTERVENTION
The applicants for intervention are thirty-four

black workers who have worked or are working in every one
22/of the nine plants at Fairfield Works except the Ore

28/
Conditioning and Rail Transportation plants. Further­
more, the applicant group includes former employees who are 
presently retired and who were not in the group of employees 
who received consent decree tenders, see supra at 9-10,as 
well as employees who refused the consent decree tender. 
However, all of these emoloyees had previously been in­
cluded in the Ford class and had been relying on the case
to present their back pay claims and interest in the

2 9/
effective implementation of the Decree.

Within two weeks of the district court's decertifi­
cation of the class action the intervenors filed the motion

27/ Appendix D lists the intervenors by plant.
28/ The Ore Conditioning plant contains only a handful
of black workers, see Appendix C. The Ford plaintiffs are 
employed within the Rail Transportation plant.
29/ In the alternative the intervenors moved for a 
substitution of parties. The district court held that "the 
intervenors' efforts must be tested under the principles 
applicable to intervention, rather than those applicable to 
amendments". (R. 72 n.l) While appellants rely primarily 
on intervention, they maintain that the interest in back pay 
was transferred from the named plaintiffs to them and that 
they properly may be substituted as parties pursuant to Rule 
25(c), Federal Rules of Civil Procedure. Cf. Walker v . 
Providence Journal Company, 493 F.2d 82, 86-7 (1st Cir.
1974).

34



to intervene and complaint in intervention. (R. 64-5)
The district court determined that according to the standards
established by Stallworth v. Monsanto Co., 558 F .2d 257
(5th Cir. 1977) the intervention filed October 25, 1977, in
a case which commenced October 7, 1966, was untimely. (R.
73-79) Additionally, the district court stated that even
if the intervention has been timely sought it would have
denied the intervention within its discretion under Rule 

30/24(b) because it would "have prejudiced the adjudica­
tion of the rights of the original defendants". (R. 80)
The district court erred on both accounts.

A. Timeliness
The district court erred in ruling that the interven­

tion was untimely in two respects: the relevant date for 
determining whether the intervention was timely was October 
13, 1977, when the class was decertified, not the October 5, 
1966 filing date relied on by the district court, United 
Airlines, Inc, v. McDonald, 432 U.S. 385 (1977); the district 
court improperly applied the Stallworth v. Monsanto Co. 
standards.

The Supreme Court in McDonald held that the "critical 
fact" determining whether a class member timely intervenes 
is how soon that intervention is sought from the entry

30/ The district court determined that the invervention 
did not meet the standards of intervention by right, Rule 
24(a)(2), (R. 79)

35



of a final judgment of an adverse class determination when 
it is clear that the named plaintiffs will or cannot con­
tinue to represent the interests of the unnamed class mem­
bers, 432 U.S. at 394, 396. In McDonald the intervenors 
sought to intervene eighteen days after the entry of final 
judgment against the named plaintiffs but over five years 
after the district court had denied class certification.
The Supreme Court held that intervention was timely sought 
pursuant to Rule 24(b).

Judge Pointer noted the application of McDonald but 
misapplied the decision to this case. The court stated 
that the period from May 2, 1973 to October 13 could "not 
be counted against the would-be intervenors" because during 
that period they belonged to the certified class. (R.
73-4) But the court asked "what about the time prior to 
May 2, 1973". The court stated that although it is not 
possible "to fix precise dates" when the intervenors 
knew that they were not being represented by the Ford case 
the period must be "measured in years". Of primary impor­
tance the court states that "the period of inaction [cannot] 
be excused on the basis that intervenors were expecting the 
Ford plaintiffs to press their cause, when ripe, on an 
appeal, for the Ford plaintiff had never sought to repre­
sent employees in other plants". (R. 74)

It is true that the Ford plaintiffs never sought to 
represent emloyees in other plants prior to May 1973 but 
the court dismisses the fact that the plaintiffs in the

36



McKinstry, Hardy, and the other private actions did 
purport to represent blacks throughout Fairfield Works, 
see supra at 3-5. The broad classes set forth in the 
complaints in these private actions had been limited by 
prior court determination, see supra at 4. However,
the class members in these cases like the class members in 
McDonald, where the district court had refused to certify 
the class, had no reason to believe that the named plain­
tiffs would not appeal the court's ruling limiting the 
scope of the class certification. It serves no purpose to 
require putative class members who seek to appeal an 
interlocutory order denying class certifica.tion to move to 
intervene shortly after that order is entered because the 
intervenors would be "superfluous spectators" until after 
final judgment when the order is appealable. United 
Airlines, Inc, v. McDonald supra at 394 n.15. Nor are the 
defendants, United States Steel Corporation or United 
Steelworkers, unfairly surprised or prejudiced by this 
intervention since the complaints in the private actions 
put them on notice of the possibility of broad classwide 
liability, United Airlines, Inc, v . McDonald, supra at 
394-95. Here, unlike McDonald, the government filed a 
broad "pattern and practice" suit in 1970 and the Stage I 
liability trial was, for all practical purposes, identical 
to the trial which would have been held if the private actions 
had not been restricted to narrowly defined classes.
A fortiori, the defendant Company and Union cannot claim 
surprise or prejudice.

- 37 -



There is no reason to distinguish this case from 
McDonald, as the district court did, on the grounds that 
the intervenors were never included in the class sought to 
be represented by the Ford case but rather were included in 
the class sought to be represented by plaintiffs in cases 
which were consolidated with the Ford case. The logic of 
the district court's argument would have required interven­
tion by the unnamed class members in each and every one of 
the six private class actions at the time the opinions 
limiting the class actions were rendered since the named 
plaintiffs in any of the class actions may have been found 
later to be appropriate class representatives. In this 
case no less than in McDonald the unnamed class members may 
fairly have relied on pending litigation to present their 
interests. To require cross-intervention as suggested by 
the disctrict court would result in the "very multiplicity 
of activity which Rule 23 was designed to avoid" and which 
McDonald declared was unnecessary, 432 U.S. at 394 n.15; 
Philadelphia Elec. Co. v. Anacanda American Brass Co. 43 F.R.P.
452, 461 (E.D. Pa. 1968).

The district court's erroneous application of McDonald 
requires reversal of the conclusion that the intervention 
was untimely. Assuming that the decision is not reversed 
on this ground, it must be reversed because the lower court 
misapplied the standards for determining timeliness set 
forth in Stallworth v. Monsanto Co. In Stallworth the 
court noted prior law providing that "timeliness is

38



not a word of exactitude" and that timeliness must "be 
determined from all the circumstances". Nevertheless, the 
Court distilled four factors to be considered in determin­
ing whether the motion to intervene is timely brought, id. 
at 264-66.

Factor 1. The length of time during which the 
would-be intervenor actually knew or reasonably 
should have known of his interest in the case 
before he petitioned for leave to intervene.
Factor 2. The extent of the prejudice that 
the existing parties to the litigation may 
suffer as a result of the would-be intervenor's 
failure to apply for intervention as soon as 
he actually knew or reasonably should have 
known of his interest in the case.
Factor 3. The extent of the prejudice that 
the would-be intervenor may suffer if his 
petition for leave to intervene is denied.
Factor 4. The existence of unusual circum­
stances militating either for or against a 
determination that the application is untimely.
In determining that the intervention was untimely

the district court relied on factors 1, 3, and 4. The
court's reliance on factors 1 and 3 in determining that
the intervention was untimely was erroneous as a matter of
law; in addition the court failed under factor 4 to take
into account "unusual circumstances" in this case which
would have militated in favor of a determination of 

31/timeliness.

3 1/ in its analysis of factor 2, the district court 
determined that the defendants did not suffer prejudice as 
a result of intervenors' failure to apply for intervention 
as soon as they knew of their interest in the case even

39



The district court's analysis of factor 1 is in 
error for the same reason that the court misapplied McDonald.
The time at which the intervenors "should have been aware 
that [their] interest[s]...were not being adequately 
represented" was not as the court rules in 1966 (R. 73-4) 
when the Ford action was filed, nor 1967 when the scope of 
the private actions was limited, but rather October 13,
1977 when the Ford action was decertified and final judg­
ment was entered. Until that time the intervenors were 
included in the classes which the private named plaintiffs 
sought to represent or were included in the 1973 certifica­
tion of the Ford class.

In McDonald, the Supreme Court specifically approved 
a line of decisions of the federal courts where, as here, 
post-judgment intervention is sought for purpose of 
appeal, 432 U.S. at 395-6 n.16. "The critical inquiry in 
every such case is whether in view of all the circumstances 
the intervenor acted promptly after the entry of the final 
judgment", id. at 395-6. There is no question that the 
intervenors Wright, et al., in filing their motion twelve

 ̂V  Cont'd
though the district court wrongfully held that the date the 
intervenors knew or should have known of their interest in 
the case requiring intervention was 1966. (R. 75-7)
Rather as explained supra at 35-6, the date by which the 
timeliness of the intervention should be evaluated is 
October 13, 1977, the day the class was decertified and 
final judgment was entered.

40



days after the entry of final judgment, expeditiously moved 
to intervene.

In applying factor 3, the court concludes that 
"strange as it may seem, any prejudice to the would-be 
intervenors by denial of intervention in the Ford case is 
minimal". (R. 76) The district court acknowledges that it 
might be argued that the denial of intervention would 
deny the intervenors the benefit of the "tolling" of the

d A ̂

applicable limitations period (a very important benefit); 
the argument that tolling applies only to intervention 
cases and not to new litigation would be based on the fact 
that, as Judge Pointer states, "the key Supreme Court 
decisions recognizing such a tolling were cases involving 
intervention". However, Judge Pointer dismisses the 
argument:

The rationale, however, for the American 
Pipe [& Construction Co. v. Utah], 414 
U.S. 538 (1974)] decision, as well as the 
language in the opinion, makes it clear

32/ This denial would adversely affect the intervenors 
whether the "tolling" would apply only to the period during 
the certification of the Ford class as Judge Pointer 
indicates or to the entire period from the filing 
of private class action suits, (see R. 78 n.2). Actually, 
the tolling of the statute of limitations in Title VII 
commences from the filing of the EEOC charges. Romasanta 
v. United Airlines, 537 F.2d 915, 918 n.6 (7th Cir. 1976) 
aff1d as United Airlines v. McDonald, 432 U.S. 385 (1977). 
Whether the tolling commences at the time of the filing of 
the EEOC charge or the private actions makes little dif­
ference here because the Hardy, McKinstry and Ford actions 
were all filed in 1966.

41



that tolling, where appropriate, would 
also be allowed with respect to newly 
instituted litigation. Whatever tolling 
benefits the would-be intervenors could 
obtain on intervention, they could, this 
court is convinced, also obtain in new 
litigation. (R. 78)
The district court did not rely on any authority to

support its 
directly on 
While Judge 
as clear as 
commentator

conviction. Nor could any authority bearing 
the issue one way or the other be found.
Pointer may be right, the issue is not
his opinion states. For example, a prestigious
has stated that the answer is "obscure" and

that, ...there is much in the Court's opinion 
[American Pipe] that suggest that interven­
tion under Rule 24 is the only recourse for 
the class member against whose claim the 
statute has run during the pendency of class 
action. 3B J. Moore, Federal Practice, 1977-78 
Supplement at 178.

Accordingly, it is possible that, contrary to the district 
court's facile conclusion, intervention may, due to the 
tolling of the applicable limitations periods, result in a 
substantially greater recovery of back pay than new litiga­
tion .

Furthermore, the district court acknowledges that the 
would-be intervenors may be harmed by denial of the interven 
tion becaue they might not be able to take advantage of the 
EEOC charges filed by the named plaintiffs. (R. 77) Again 
this is not a simple question to answer. If tolling is per­
mitted in new litigation, then the plaintiffs in that litiga 
tion may receive the benefit of the EEOC charges filed by

42



the named plaintiffs in the Ford and the other private 
actions. However, this is certainly not clearly establish­
ed law; whereas it is established law that intervenors, 
although they have not filed charges, may rely on the EEOC 
charges filed by the original plaintiffs. Wheeler v. 
American Home Products, 563 F .2d 1233 (5th Cir. 1977).

The district court dismisses this potential­
ly serious harm to the intervenors by concluding that, in 
any case, the charge filed by the Ford plaintiffs is not 
sufficiently broad to include the claims of the intervenors. 
(R. 77-8) This is a particularly problematic conclusion.
The district court had found in 1973 that the Ford plain­
tiffs could represent the claims of the intervenors. This 
Court on appeal stated that "as a matter of law" the Ford 
plaintiffs could represent the intervenors and the Supreme 
Court denied the defendants' petition for certiorari. It 
would appear too late in the litigation of this case for the 
district court to determine that the EEOC charges are after 
all too narrow to permit the claims of the intervenors to be 
presented, see Argument III.

33/ The intervenors maintain that it is appropriate to 
look not only at the EEOC charges filed by the Ford plain­
tiffs but at the charges filed by the plaintiffs in the 
other private actions when determining whether the unlawful 
practices at Fairfield Works had been sufficiently brought 
to the attention of the EEOC in order to provide the 
foundation for the broad Ford class.

43



But even assuming that the district court is not
bound by its prior decision the district court should not
have entered this order without holding a hearing on this 

34/question. The district court stated that it had reviewed 
the charges of the Ford named plaintiffs and determined that 
they were too narrowly drawn to cover plants other than the 
Rail Transportation Shop and Steelworkers Locals other than 
Local 1489, R. 78. The district court did not consider 
broad EEOC charges filed by named plaintiffs in the other 
private actions which named other locals and complained 
about practices in other plants. Moreover, the district 
court relied on the fact that there were some local unions 
who were not named in the .charges although the United 
Steelworkers were named. At most this failure to name the 
locals might affect the liability of those locals; the 
failure to name the locals in the charge does not defeat the 
plaintiffs right of action against the Company and the 
International Union. There are factual questions, such as, 
when the locals actually received notice of the claims, and 
the relationship between the International and the locals, 
which would determine the legal effect, if any, of the 
failure to name some of the locals. See e.g., Glus v. G.C. 
Murphy, 562 F.2d 880, 888 (3rd Cir. 1977); Stevenson v .

34/ The plaintiffs requested a hearing to present evi­
dence pursuant to this Court's direction, see Motion to 
Amend or Alter the Judgment.

44



International Paper Company, 432 F.Supp. 390, 397-98 (W.D.
La. 1977); Terrell v. U.S. Pipe & Foundry Co., 7 E.P.D. 
para. 9055 (N.D. Ala. 1973). The district court held no 
hearing on these issues and thus did not consider relevant 
factors in making its determination. It is interesting to 
note, however, that the United Steelworkers entered into 
a nationwide consent decree which affected the local senior­
ity agreements of hundreds of Steelworkers' locals, includ­
ing those at Fairfield Works, without any one of these 
locals being party to the nationwide lawsuit or to the 
consent judgment. United States v. Allegheny-Ludlum 
Industries, 517 F.2d 826 (5th Cir. 1975). Accordingly, it 
is difficult to understand how the failure to name some of 
the locals in the EEOC charges in this case could deprive 
the plaintiffs or intervenors of the right to proceed to 
obtain full relief at least against the Company and the 
International Union.

The district court dismisses additional ways in which 
the denial of intervention harms the intervenors as "hardly 
a significant prejudice". (R. 76) However, the require­
ments for instituting new litigation such as transferring 
the evidence from the Ford case to the new lawsuit, asserting 
and proving collateral estoppel as opposed to res judicata 
or law of the case, and defeating the procedural challenges 
which these defendants, if past performance is any guide, 
will surely raise, will result in significant prejudice

45



especially in light of the complexity of this case. More­
over, new litigation will delay the resolution of the merits 
which, by itself in a case that has been in litigation for 
twelve years, is a significant prejudice.

The district court erroneously applies factor 4. The 
"unusual circumstances" of this case support rather than 
militate against timely intervention. The district court 
states one "unusual circumstance" supporting its decision 
that the intervention was untimely: that the intervenors 
"engaged in —  whether purposefully or not —  'sideline 
sitting'. That is, for almost three years [from the 1970 
filing of the government suit] the would-be intervenors were 
potential beneficiaries of back-pay through the government's 
pattern-and-practice suit, without subjecting themselves to 
the binding effect of an unfavorable decision". (R. 79) 
First, the intervenors were not "sideline-sitting"; they were 
included in the broad class definitions in the private 
class actions which were consolidated with the pattern and 
practice suit, see supra at 3-6. Second, even if the 
intervenors had so wanted they had no express right to 
intervene as a matter of right in the government's Sec­
tion 707 suit, United States v. Allegheny-Ludlum Indus­
tries, supra 517 F.2d at 844; EEOC v. United Airlines, Inc., 
515 F .2d 946 (7th Cir. 1975). Third, the court's ruling 
contravenes the essence of the holding of this and other 
courts of appeal that individuals are not bound by govern-

46



ment pattern and practice actions. United States v, Allecheny- 
Ludlum Industries, 517 F.2d at 845; Williams v. Bethlehem Steel 
Corp., 468 F.2d 1201 (2nd Cir. 1972) cert, denied 411 U.S.
931 (1973); United States v. Trucking Employers, Inc., 561 
F.2d 313, 317 (D.C. 1977). Fourth, and most importantly, 
the intervenors did not seek another "bite at the apple" 
after the district court's decision denying them back pay in 
1973; rather, they sought as members of the Ford class to 
appeal the denial of that award and in fact, if this Court 
had affirmed the district court's denial of back pay, they 
would have been bound by the judgment.

The district court also ignores three unusual circum­
stances in this case which favor intervention. Several 
hundred members of the certified Ford class refused the 
tender of back pay under the nationwide consent decree in, 
at least, partial reliance on the 1973 decision. The 
district court recognized in its October 13 Opinion that 
this creates an inequity, (R. 60), but the court did not 
consider this factor in determining whether to grant the 
intervention in its December 19 Opinion. (R. 78-9) Moreover, 
all the class members in this case have relied on the May 
1973 decision for over four years; they have pursued an 
appeal, sought to implement the decree, and commenced 
discovery to resolve the back pay issue. In relying on the 
1973 decision they did not seek alternative procedural avenues, 
such as intervention, a new lawsuit, or the appeal of
the limited class definitions in the McKinstry, Hardy, Donald,

- 47 -



Brown and Love cases. The passage of four years has, of
course, caused them to have lost the right of appeal in the 
other private actions and caused them at least delay, and 
perhaps more, in commencing new litigation.

Finally, the purpose of the intervention in this case
is not to relitigate any issues covered by the trial but
rather concerns appropriate remedy. The Court of Appeals
for the District of Columbia made the following ruling in a
case similar to this one:

To be sure, appellants' application for 
intervention was made after the action was 
tried, and some seven years after it was 
filed. But the proposed intervenors 
expressly disavowed any desire to reopen 
any previously-litigated question, and 
sought only to participate in the remedial, 
and if necessary the appellate, phase of the 
case. This limited goal does not appear to 
impose any untoward burden on the [original 
parties]. Timeliness presents no automatic 
barrier to intervention in post-judgment 
proceedings where substantial problems in 
formulating relief remain to be resolved.
(footnote omitted) Hodgson v. United Mine 
Workers of America, 473 F.2d 118, 129 (1972).

The Supreme Court expressly approved this and similar cases
in McDonald, supra at 395-96 n.6.

47a



B. Intervention is Proper under Rule 24(a)(2) and 
Rule 24(b)

The district court states that the "disposition of 
the Ford case, seeking relief for a class employed in 
the Car Shop [in 1973] , would not as a legal or practical 
matter have impaired or impeded the would-be intervenors" 
ability to protet their claim for back-pay (and front- 
pay) (R. 79-80) Therefore, the district court rules
that the applicants have no right to intervene pursuant to

35/
Rule 24(a)(2). But the district court misstates the 
question. The issue is not whether a denial of interven­
tion in May 1973 "would have" impaired or impeded the 
ability of the would-be intervenors to protect their 
claims; rather, the issue is the effect of the denial of 
the intervention in December 1978. In May 1973, if the 
applicants were denied intervention in the Ford case, they 
may have been able to protect their interests by taking an 
appeal from the orders limiting the class definitions in 
the other private actions. In December 1978 the applicants 
did not have that option. Moreover, the question concerns 
not just whether the monetary claims of the would-be 
intervenors are as a practical matter "impaired or impeded"

3 5/ There is no question that the would-be intervenors 
meet the other two requirements of Rule 24(a)(2): they 
claim an interest relating to the "transaction which is 
the subject of the action" and, if the Ford plaintiffs 
cannot represent their interests then there is no party 
adequately representing the interests of the would-be 
intervenors.

48



but also whether their claims for injunctive relief through 
the implementation of the Decree are effected. Since May, 
1973 the would-be intervenors and the class members have 
relied on the Ford plaintiffs to present their interests in 
the effective implementation of the Decree. With the 
dismissal of this suit there is no party that represents 
the interests of the would-be intervenors concerning the 
implementation of the Decree.

The right of intervention pursuant to Rule 24(a)
"must be measured by a practical rather than technical 
yardstick". United States v. Allegheny-Ludlum Industries, 
Inc., 517 F .2d at 841. The denial of the intervention will 
as a practical matter impair the would-be intervenors' 
ability to protect their interest in a full injunctive and 
monetary remedy. As described in Section A, the denial of 
intervention may cause the would-be intervenors to lose any 
benefit, which they properly should have, from the "tolling 

^  of the applicable limitations' periods, see supra at 41-2 , 
or from the filing of the EEOC charges by the plaintiffs in 
the private suits, see supra at 42-3. Moreover, the 
filing of a new suit will not provide the would-be inter­
venors with a direct means to enforce the Decree which has 
been entered in this case.

The district court also erred in denying intervention 
pursuant to Rule 24(b)(2). The threshold requirement,

49



whether "the applicants' claim or defense and the main 
action have a question of law or fact in common" has 
certainly been met. (R. 80) The district court properly 
notes that the rules is labelled as permissive; the rule 
provides the court one specific factor to consider in 
exercising its discretion, "namely, 'whether the interven­
tion will unduly delay or prejudice the adjudication of the 
rights of the original parties." (R. 80).

The district court's reason for exercising its 
discretion to deny permissive intervention is simply a 
restatement of its erroneous determination that the inter­
vention was not timely sought. (R. 80-81) The intervention 
must be judged on the basis of its filing in December 1977 
and not, as the district court did, as if it had been filed 
between 1966-1970. Furthermore, the district court did not 
consider the telling equitable considerations peculiar to 
this case which support the grant of permissive intervention 
the reliance by the class members on the private actions 
and the district court's 1973 class certification, supra 
at 47-8; the failure of the class members to appeal the 
orders limiting the class definition because of their 
reliance on the 1973 class certification; the constructive 
role that the class representatives have played in the 
implementation of the Decree; the additional delay and 
complication to this twelve-year old litigation that a new

50



lawsuit will cause; and the limited remedial purpose for 
which this intervention is brought, see supra at 47a.

CONCLUSION
WHEREFORE, for the above-stated reasons the appel­

lants respectfully urge the Court to reverse the lower 
court's decertification of the Ford class or to reverse the 
denial of intervention or the refusal to substitute parties 
and to reverse the district court's award of attorneys' 
fees to the defendants.

Respectfully submitted,

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

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

JACK GREENBERG
10 Columbus Circle 
Suite 2030
New York, New York 10019

BARRY L. GOLDSTEIN
815 15th Street, N.W. 
Suite 940
Washington, D.C. 20005

51



APPENDIX A

LOCALS OF UNITED STEELWORKERS BY PLANT AT 
FAIRFIELD WORKS H/

Plant Local Union
Fairfield Steel Plant 1013
Fairfield Sheet Mill 1131
Ensley Steel Plant 1489
Fairfield Wire Plant 1700
Fairfield Tin Mill 2122
Coke and Coal Chemicals Plant 2405
Bessemer Rolling Mill 2421
Rail Transportation (Shops and Roadway) 1733
Rail Transportation (Conductors and Train Operation) 3662
Ore Conditioning Plant 4203
In addition Local 2927 includes plant protection personnel and 
Local 2210 includes salaried clerical and technical personnell.

Source: Stipulation 3 entered into between the parties„



APPENDIX B

DEFINITIONS OF CLASS IN THE PRIVATE 
ACTIONS

McKinstry v. United Steel Corporation, Civil Action No.
66-343 (original complaint 

filed May 30, 1966, 
amended complaint 
September, 1966)

Paragraph III. "Plaintiffs bring this action 
on their behalf and on behalf of other 
similarly Negro persons employed by United 
States Steel Corporation, at its facilities 
in Fairfield, Alabama pursuant to Rule 23(a) 
and (b) <,..."

Paragraph IVo "Plaintiffs and the class they 
represent are employees of the defendant 
United States Steel Corporation and are 
members of defendant United Steelworkers 
of America and Local Union No. 1013 of 
the United Steelworkers of America."

Hardy v. United States Steel Corporation, Civil Action No.
66-423 (filed July 7, 1966)

Paragraph II. "Plaintiffs bring this action on 
their own behalf and on behalf of other persons 
similarly situated who are employed by United 
States Steel Corporation at its mills, plants 
and/or other manufacturing facilities in the 
State of Alabama and the City of Fairfield 
and who are members of United Steel Workers (sic 
of America, Local 1489, AFL-CIO pursuant to 
Rule 23 (b) (2)___ "

Paragraph IV, B. "Plaintiffs and the class they 
represent are presently employed in United 
States Steel Corporation's Fairfield Works,
North Plant, in the Stock House Department ...."

Ford v. United States Steel Corporation. Civil Action No.
66-625 (filed October 7, 1966)

see Record 2, 13-14.



Brown v. United States Steel Corporation, Civil Action No.
67- 121 (filed February 13, 1967)

Paragraph II. "Plaintiffs bring this action on 
their own behalf and on behalf of others 
similarly situated.... There are common 
questions of law and fact affecting the 
rights of other Negroes seeking equal employ­
ment opportunity ...."

Love v. United States Steel Corporation, Civil Action No.
68- 204 (filed April 15, 1968)

Paragraph II. "Plaintiffs bring this action on 
their own behalf and on behalf of others simi­
larly situated .... There are common questions 
of law and fact affecting the rights of other 
Negroes seeking equal employment opportunity ...

Donald v. United States Steel Corporation. Civil Action No.
69- 165 (filed March 24, 1969)

Paragraph II. "Plaintiffs bring this action on 
their own behalf and on behalf of other simi­
larly situated Negro persons employed by 
United States Steel Corp., at its facilities 
in Fairfield, Alabama ...."

Paragraph IV. "Plaintiffs, and the class they 
represent, are employees of the defendant 
United States Steel Corporation."

Paragraph VII. "Plaintiffs and the class they 
represent have been at all times material to 
this action, members of defendant Local 1013, 
of the United Steel Workers of America, AFL-CIO 
and through their membership in Local 1013 are 
members of the defendant United Steel Workers 
of America, AFL-CIO."



APPENDIX C

BLACK AND WHITE EMPLOYEES BY PLANT AND 
BY AVERAGE WAGE FOR SIX BI-WEEKLY 

PAY PERIODS IN 1970 AND 1971

Plant or 
Division

Ensley Steel Plant

All P&M 
Employees 
# $

White P&M 
Employees 
# $

Black P&M 
Employees 
# $

(a) 1466 4.22 835 4.55 631 3.79

(b) Bessemer Rolling Plant 127 3.91 36 4.27 91 3.77

(c) Fairfield Steel Plant 3836 4.52 2532 4.84 1304 3.91

(d) Coke & Coal Chemical Plant 558 4.32 304 4.54 254 4.07

(e) Fairfield Sheet Plant 660 4.32 420 4.52 240 3.97

(f) Fairfield Tin Plant 1413 4.81 1200 4.95 213 4.01

(g) Fairfield Wire Plant 262 4.18 111 4.38 151 4.04

(h) Rail Transportation 610 4.45 384 4.69 226 4.07

(i) Ore Conditioning 252 3.90 232 3.94 20 3.43

*;y  source: Request No. 2 of the Government served on U.S. Steel
Corporation and U.S. Steel Corporation^ response thereto; this 
was Government exhibit 102 in the consolidated trial.



APPENDIX D

THE INTERVENORS LISTED BY PLANT AND 
EMPLOYMENT STATUS ±/

active retired
Fairfield Steel George 0. Alexander 

Junious Davis 
Jimmy Dunson 
Dave Young 
Willie G. Rucker 
Henry Hinkle 
Charlie L. Peterson

Jessie Banks 
Frank Turner

Wire Mill Westley Joe Chamblin Leroy Jones
Bessemer Rolling Mill Jimmie Benison Sam Groom
Fairfield Sheet Mill Morris Chaney, Jr. Lucious Fitzpatrick 

W. L. McMickens
Tin Mill Woodrow Wilson 

Simmie Lavender 
Scillie Wilder 
Clarence Gilbert 
Lloyd Alexander

John T. Miles 
King Smith

Coke and Coal Chemical W .A . Armstrong 
Munich Kine 
Senious Martin

George McNeir

Ensley Steel Washington Johnson 
James Leo Montgomery

Henry Field

*'/ Interveners Milton Givan, Sylvester Wright, Ben Hudson and Ned 
Crawford are not listed.



CERTIFICATE OF SERVICE

I hereby certify that on the 16th day of May, 1978,

I served two copies of the foregoing Brief for Plaintiffs- 

Appellants and Applicant-Intervenor-Appellants upon the 
following counsel of record by depositing same in the United 
States mail, postage prepaid.

James R. Forman, Jr., Esq. 
Thomas, Taliaferro, Forman, 

Burr & Murray
1600 Bank for Savings Building 
Birmingham, Alabama 35203

Jerome A. Cooper, Esq.
Cooper, Mitch & Crawford 
409 North 21st Street 
Birmingham, Alabama 35203

Attorney for Appellants