OAKES, Circuit Judge:
Appellants are six black employees at appellee Bethlehem Steel Corporation's (hereinafter "Bethlehem") Lackawanna, New York, plant. All six have at least 15 years' seniority. They filed a motion below seeking a preliminary injunction against Bethlehem and the named appellee locals of the United Steelworkers (hereinafter collectively "the Union") enjoining the recall of laidoff employees on what they claim is a racially discriminatory basis. The complaint proper alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. as amended, 1972 U.S.Code Cong. & Admin.News, p. 814 et seq., and of the Civil Rights Act of 1866, 42 U.S.C. § 1981, in regard not only to layoff recalls but also to hiring, referral, transfer, assignment procedures, and advancement opportunities. The district court denied the appellants' motion for a preliminary injunction on the ground that in a previous case brought by the Attorney General against the defendants in this circuit, United States v. Bethlehem Steel Corp., 312 F.Supp. 977 (W.D.N.Y. 1970), modified, 446 F.2d 652 (2d Cir. 1971), the relief sought here was considered but not granted. We reverse and remand to the district court for findings and an order in accordance with this opinion.
The district court proceeded upon the erroneous assumption that it was bound as against these appellants by the modified order in the earlier Title VII case. That case involved seniority and transfer provisions of the collective bargaining agreements between Bethlehem and the Union which both the trial and appellate courts found discriminatory, one form of discrimination consisting of assignment
In the court's opinion Judge Feinberg noted that most of Bethlehem's and the Union's concerns over the effect of seniority carry-over could be "met by the carefully limited order suggested by the Government", 446 F.2d at 663, and, after noting the Government's suggested exception for recall after layoff, pointed out that the suggested exception would limit "the unsettling effects of seniority carryover during periods of layoff and recall." Id. at 664. The court's order adopted the Government's suggestion. Id. at 666. It is thus true as Judge Henderson said below that this court "considered" the question of recall after layoff, but only to point out that in accordance with the Government's "moderate" prayer for relief, id. at 659, the question was not in contention. Indeed, the United States, now acting through the Equal Employment Opportunity Commission ("EEOC") as amicus curiae, takes the position that this court should grant the relief the United States previously did not seek.
For purposes of res judicata or collateral estoppel, the private citizens in this case are not bound by the Attorney General's action in the former case since they neither were parties to it, NLRB v. Lannom Manufacturing Co., 226 F.2d 194, 199 (6th Cir. 1955), rev'd on other grounds sub nom. Amalgamated Meat Cutters v. NLRB, 352 U.S. 153, 77 S.Ct. 159, 1 L.Ed.2d 207 (1956), nor have interests such as to be in privity with the Attorney General. Cf. Trbovich v. United Mine Workers, 404 U.S. 528, 538-39, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) (intervention by union members permitted in Labor-Management Reporting and Disclosure Act litigation brought by the Secretary of Labor). Therefore, the judgment in the previous case does not
Nor, for the reasons explained above — namely, that the Government did not seek relief in the case of recall after layoff — does the earlier decision bind us on the basis of stare decisis. O'Donoghue v. United States, 289 U.S. 516, 550, 53 S.Ct. 740, 77 L.Ed. 1356 (1933); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400, 5 L.Ed. 257 (1821); 1B J. Moore, supra at ¶ 0.402.
Under Title VII since its inception, moreover, the individual has played a significant role in its enforcement. Jenkins v. United Gas Corp., 400 F.2d 28, 32 (5th Cir. 1968). This is equally true after the amendment of Title VII by the Equal Employment Opportunity Act of 1972, 1972 U.S.Code Cong. & Admin.News, p. 814 et seq. While the 1972 amendments authorize the Equal Employment Opportunity Commission to bring a Title VII suit in the name of the Government, individuals party to Commission conciliation proceedings in the same action may intervene in such suits, and in those brought by the Attorney General, id. § 706(f)(1), 1972 U.S.Code Cong. & Admin.News pp. 817-18,
The purpose of permitting the individual who has been discriminated against to seek relief where the Government has omitted to do so — possibly for reasons such as its lack of knowledge, legal strategy, or lack of enforcement staff — is plainly to make certain that the individual employee is protected. Indeed, in the case of the Bethlehem Lackawanna plant, when the Attorney General instituted the earlier case in 1967 only 3.8 per cent of the nation's workforce was unemployed. U.S. Bureau of Labor Statistics, Dep't of Labor, 19 Employment & Earnings 20 (Sept. 1972). The very first case involving the issue of discriminatory seniority and transfer systems was decided only in January of 1968. Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D.Va. 1968). The discriminatory impact of a departmental seniority recall system where there have been a multitude of layoffs may not have been foreseen by Government counsel in the earlier suit, especially where the Government was concerned with establishing a favorable precedent in the case of interdepartmental transfers. Thus, this case is one which properly seeks an extension of the relief sought and obtained in the earlier case. The individual plaintiffs, we hold, are entitled to bring it. This being true, we are required to reverse the decision below so that the trial court may proceed to the merits of the case.
We do not ourselves, however, grant the preliminary relief sought. True, the scope of relief to be afforded is "so far as possible, to eliminate the present effects of past discrimination", Long v. Georgia Kraft Co., 450 F.2d 557, 561 (5th Cir. 1971). Accord, Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 720-21 (7th Cir. 1969). True also, the court's powers under Title VII are "broad," Vogler v. McCarty, Inc., 451 F.2d 1236, 1238 (5th Cir. 1971), and, of course, include the power to grant preliminary relief. United States v. Hayes International Corp., 415 F.2d 1038, 1044-45 (5th Cir. 1969). Moreover, the findings of past discrimination by the district court in United States v. Bethlehem
But we do not delineate the precise extent of the preliminary (or final)
Some other questions which will occur to the district court in fashioning full, fair, just and adequate relief may include:
1. To what class should any relief extend? E. g., should only black employees hired before the October 1, 1967, date that marked the apparent end of discriminatory hiring be assisted? Subsidiarily, of what class are the plaintiffs here representative? The Union suggests that many black employees would oppose the relief sought here.
3. Should laidoff white employees also be treated as having plantwide seniority? If they were, would this have the effect of recalling white employees to positions held before layoff by black employees, and, if so, would this be consistent with Title VII?
Thus, in remanding to the district court, we do so for the purpose of enabling it further to explore the facts and adjust the relief accordingly, recognizing that we are not dealing in absolutes that require an appellate court to be the bull in a china shop of complex inter-employee and plant relations. At the same time we know that the district court is aware of our own injunction, so well expressed in Judge Feinberg's opinion, that "[i]f relief under Title VII can be denied merely because the majority group of employees, who have not suffered discrimination, will be unhappy about it, there will be little hope of correcting the wrongs to which the Act is directed." 446 F.2d 652, at 663.
The district court on remand, we are confident, will act, in the phrase of Charles V, with an "iron hand in a velvet glove."
Reversed and remanded.
A. Laidoff employees have been recalled to or assigned into pool jobs, usually entry-level jobs, on the basis of plant service;
B. Employees have been recalled from pool jobs to higher rated jobs in their seniority unit on the basis of unit, not plant service, except as to
C. Black employees who had transferred out of the 11 "black" departments, as to whom plant service of all competing employees is used to determine the order of recall.
Apparently also Bethlehem has decreased the number of job pools from 36 to 6, thus permitting easier transfer since transfers between departments in the same pool were apparently permissible. See Brief for Appellee Bethlehem Steel Corp. at 8.