THORNBERRY, Circuit Judge:
These appeals present novel and important issues which require us to consider the scope of the federal government's authority to encourage and negotiate expeditious and efficient settlement
I. INTRODUCTION AND BACKGROUND
On April 12, 1974, a complaint was filed in the federal district court for the Northern District of Alabama. The plaintiffs were the United States, on behalf of the Secretary of Labor, and the Equal Employment Opportunity Commission. Nine major steel companies
The complaint charged that the companies had violated Title VII and Executive Order 11246 by hiring and assigning employees on impermissible grounds, and by restricting ethnic minorities and females to low-paying and undesirable jobs with scant opportunities for advancement. The complaint also charged the companies and the union with formulating collective bargaining contracts which established seniority systems for promotion, layoff, recall, and transfer so as to deprive minority and female employees of opportunities for advancement comparable to those enjoyed by white males.
The filing of the complaint culminated more than six months of intensive, hard-fought negotiations between, on one side, the EEOC and Departments of Justice and Labor, and on the other the companies and the union. Simultaneously with the filing of the complaint, the parties announced to the court that a tentative nationwide settlement had been reached. The parties multilaterally reduced their agreement to the form of two extensive written consent decrees. Describing the decrees as "a thoughtful and earnest attempt to respond to—and to reconcile competition between—charges of employment discrimination made on behalf of black, female, and Spanish surnamed workers and applicants,"
Consent Decree I is aimed at the practices of the union as well as those of the steel companies. It permanently enjoins the defendants from "discriminating in any aspect of employment on the basis of race, color, sex or national origin and from failing or refusing to fully implement" the substantive relief set forth
Consent Decree II and its accompanying Agreement deal with aspects of employment which are mainly company-controlled and thus not subject to collective bargaining. The companies again are broadly enjoined from any form of unlawful employment discrimination. Also, Consent Decree II requires the companies to initiate affirmative action programs in hiring, initial assignments, promotions, management training, and recruitment of minorities and females.
The decrees must be made to function in varying and peculiar situations in accordance with the parties' ambitious objectives. Furthermore, the parties contemplated that unforeseen interpretive issues will inevitably arise and require resolution. With these considerations in mind, the decrees provide for the establishment of implementation and enforcement procedures through a system of Implementation Committees. These committees are established at each major plant to which the decrees are made applicable. Each committee includes at least two union representatives, one of whom is a member of the largest minority group in the plant,
The Audit and Review Committee, established under paragraph 13 of Consent Decree I, is the hub mechanism in the decrees' system of continuing review, enforcement, and compliance. It is composed on an industry-wide basis of five management members, five union members, and one government member. It meets regularly to oversee compliance with the decrees and to resolve disputes which come before it, including any questions that the Implementation Committees have been unable to resolve. Matters which the Audit and Review Committee cannot resolve unanimously may be brought before the district court. Furthermore, all parties to the decrees have stipulated on the record that paragraph 20 of Consent Decree I, which vests the district court with continuing jurisdiction for at least five years, permits the court to review fully and, if
As the district court correctly determined, neither decree purports "to bind any individual employee or to prevent the institution or maintenance of private litigation."
Under introductory paragraph C of each decree, the government has stipulated that in future cases involving private claims for relief, other than back pay, which would be inconsistent with the systemic relief provided by the decrees, the government will suggest to the forum court that the relief sought is unwarranted in the separate proceeding. The government, however, may proceed through the Audit and Review Committee mechanism to recommend that matters raised in the separate proceeding be submitted to Judge Pointer for resolution within the framework of the consent decrees. The government concedes, of course, and no one seriously argues contrariwise, that no forum court will be legally obliged to follow any government recommendation of dismissal, stay, or transfer as to any separate suit filed in such court.
With respect to charges pending at the administrative level at the time of the decrees' entry, the EEOC has agreed in paragraph 19 to expedite its processing schedule. The Commission will first identify those charges that allege violations for which the appropriate remedies are wholly within the scope of the decrees. In those cases, the EEOC will consider the charges settled and so notify the charging party. In addition, it will recommend to the charging party that he or she accept the back pay provided under paragraph 18(c) of Consent Decree I. As discussed, infra, the charging party is free to reject the EEOC's recommendation and commence a private suit for greater back pay or any other relief. As for pending charges that relate to matters which are not wholly within the scope of the decrees, the Commission will conduct the usual investigations and attempt to conciliate the charges. In all such cases, the time in which a charging party must decide whether to claim the back pay under paragraph 18 will be suspended during the administrative proceedings.
The overriding goal of the United States, the Secretary of Labor, the EEOC, the companies, and the union is comprehensive, final and fair settlement of charges of unlawful employment discrimination arising from patterns and practices alleged upon the part of the companies and the union up to and including the entry date of the consent decrees. Accordingly, introductory paragraph C of each decree provides for binding resolution, between and among the parties to the decrees, of all issues treated by the decrees, together with all issues which may arise as future effects of the resolved pre-decree discriminations. To the extent the defendants maintain compliance with the decrees as to issues covered and which through the various procedures may become covered thereby, the government has agreed that it shall deem the defendants to have complied with Title VII and Executive Order 11246.
Two important factors, however, warrant clarification at this point. First, no private individual, as such, is a party to the consent decrees. Thus, the consent decrees do not seek by their terms to bind private individuals by way of res judicata or estoppel by judgment. It is
The second factor relates to the nature of the consent decrees' finality as contemplated by paragraph C. In that paragraph, the plaintiffs United States, the Secretary of Labor, and the EEOC have stated in so many words that they consider the decrees remedially adequate to bring the defendants into present compliance with federal anti-discrimination law and to compensate individual employees for the past and continuing effects of the alleged discriminatory practices which the decrees enjoin. Because the plaintiffs believe that the decrees are sufficient to those purposes, they have stipulated that the decrees are res judicata with respect to all legal, factual, and remedial issues within the scope of the complaint and the decrees. In other words, the plaintiffs—and we take the parties at their word at oral argument—have merely consented to proceed within the mechanics of the decrees in lieu of filing additional lawsuits and seeking additional judgments against the defendants with respect to matters covered by the decrees.
Also because they believe that the decrees provide adequate relief, the plaintiffs have agreed that compliance with the decrees shall be deemed compliance with Title VII and Executive Order 11246. Nonetheless, it is our understanding of the submissions to this court on behalf of all parties to the decrees that the government remains entirely free, from and after the date of entry, to police the implementation of the decrees for repeated or new violations of the injunctive provisions, and furthermore that the government shall be entitled to treat such suspected violations as new violations of Title VII and/or Executive Order 11246, by reason of which the government shall not be barred from bringing the matter to the attention of the district court for new injunctive correction, if necessary. Correspondingly, in light of the parties' stipulation as to the scope of the district court's continuing jurisdiction, we construe paragraph 20 of Consent Decree I as authorizing any aggrieved individual to proceed in similar fashion. If the grievance arises from a transaction or episode to which the injunctive provisions of the decrees apply, then we understand that the individual may approach the court directly.
Having sketched—by no means exhaustively—the terms of the settlement, the parties' interpretation thereof, and our general understanding of what the parties intended by their words and deeds, we turn now to the adversary environment which produced these appeals.
II. PRIVATE INTERVENTION: COMPLAINTS, PROCEEDINGS, AND APPEALS
The consent decrees were entered on April 12, 1974. By May 17, 1974, three organizations, four individuals, and six groups
The district court granted intervention as of right, intendedly pursuant to § 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1), and F.R.Civ.P. 24(a)(1), to a group of thirty-six individuals with respect to whom charges of discrimination on the part of the defendants had been filed with the EEOC. Thirty-three of these individuals were members of the Harris group. The court also granted permissive intervention under F.R.Civ.P. 24(b) to the principal officer of the Rank and File Team, an organization composed of rank and file members of the Steelworkers' Union. Judge Pointer denied all other motions for intervention, including that filed by the National Organization of Women (NOW), appellant herein. Among the thirty-six persons as to whom the court allowed intervention by right, however, three were women specifically appointed by NOW at Judge Pointer's request, and represented by NOW's counsel throughout the proceedings.
In his memorandum opinion of June 7, 1974, see 63 F.R.D. 1, 5, Judge Pointer refused to stay or vacate the consent decrees and upheld their validity against the intervenors' attacks. He determined first that no evidentiary hearing was needed, since the intervenors sought mainly to present legal hypotheses and argument rather than evidence. Next, the court rejected contentions that the government had abdicated or bargained away its responsibilities under Title VII and Executive Order 11246. While recognizing that the decrees may require authoritative construction and clarification from time to time, Judge Pointer deemed such potential difficulties within his control by virtue of the court's continuing
As a procedural matter, Judge Pointer also relaxed his earlier orders denying intervention to the majority of the movants. The final memorandum of June 7 denies such intervention without prejudice to the rights of private parties to seek further intervention as to questions which may arise in the future. Similarly, whereas Judge Pointer considered his opinion binding upon those to whom he granted intervention as to the issues therein determined, he stated explicitly that he did not consider any private intervenor or class of private parties bound by principles of res judicata to the consent decrees. Id. at 4 n. 2, 5.
NOW appeals the district court's refusal to allow intervention by the organization qua organization. It has also filed a brief and presented oral argument on the merits in behalf of the three female appellants to whom Judge Pointer granted intervention. The intervenors from the Harris group appeal the district court's judgment sustaining the overall legality of the consent decrees, although they complain primarily about the back pay features rather than the decrees' injunctive provisions. No other appeals are properly before this court.
III. DENIAL OF NOW'S MOTION TO INTERVENE
Logical analysis of any question concerning intervention in federal court begins with Rule 24 of the Federal Rules of Civil Procedure.
Besides timeliness, Rule 24 details other preconditions to intervention. Under section (a), intervention as of right is authorized (1) when an act of Congress confers an unconditional right to intervene, or (2) when the applicant claims an interest in the subject matter of the action and shows that the action's disposition may, as a practical matter, impair or impede the ability to protect that interest, unless the applicant's interest is adequately protected by other parties to the suit. Thus, (a)(1) intervention presupposes reliance on a statute. By contrast, the inquiry under subsection (a)(2) is a flexible one, which focuses on the particular facts and circumstances surrounding each application. Since 1966, we have consistently held that (a)(2) intervention as of right must be measured by a practical rather than technical yardstick. E. g., Martin v. Travelers Indem. Co., 5 Cir. 1971, 450 F.2d 542, 554; Diaz v. Southern Drilling Corp., 5 Cir. 1970, 427 F.2d 1118, 1123-25, cert. denied sub nom., Trefina A.G. v. United States, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115 (1970); Atlantis Development Corp. v. United States, 5 Cir. 1967, 379 F.2d 818, 822-29. A denial of an application for intervention by right which was timely filed, as here, is subject to the usual scope of our appellate review over questions of law. An erroneous denial will be reversed. Weiser v. White, 5 Cir. 1975, 505 F.2d 912, at p. 916. On the other hand, if the appellate court finds that the claim of right to intervene was without merit, then it must dismiss the appeal for want of jurisdiction, since the order denying intervention does not constitute a final judgment. Id. See also C. Wright, Federal Courts § 75, at 332 (1970).
The rules pertaining to permissive intervention are slightly different. Rule 24(b) authorizes permissive intervention (1) when a federal statute confers a conditional right to intervene, or (2) when the application raises a question of law or fact which is material to the main action. In exercising its discretion, the district court is required to consider whether permissive intervention would unduly jeopardize or delay the determination of the original suit. On appeal, the denial of a motion for permissive intervention is unreviewable, unless the trial court abused its discretion. Brotherhood of R. R. Trainmen v. Baltimore & Ohio R. R., 331 U.S. 519, 524, 67 S.Ct. 1387, 1390, 91 L.Ed. 1646, 1650 (1947); Martin v. Kalvar Corp., 5 Cir. 1969, 411 F.2d 552. If no abuse of discretion is demonstrated, then once again the district court's order is not appealable and we must dismiss the appeal for want of a final order. Weiser v. White, supra; C. Wright, supra.
NOW's principal contention asserts an absolute, unconditional right of intervention in favor of the organization. NOW thus seeks to enter the lawsuit under Rule 24(a)(1). NOW argues that this absolute, unconditional right is conferred upon it by § 706(f)(1) of Title VII, as amended, Pub.L.No.92-261, § 4(a)
Without drawing any finer distinctions, the district court held that NOW is not a "person aggrieved" within the meaning of § 706(f)(1). In the court's view, NOW did not demonstrate a sufficiently concrete interest qua organization to justify the additional problems of management and inconvenience to other parties (including, presumably, the beneficiary employees of the consent decrees) that might result from duplicative intervention. The fact that NOW previously had been permitted to designate three female intervenors, whom its counsel ably represented, weighed heavily in Judge Pointer's calculus. See 63 F.R.D. at 4.
While perhaps a court might be persuaded by Judge Pointer's conclusion that NOW is not a "person aggrieved" within the meaning of § 706(f)(1),
Nothing in § 707 or in any other federal statute conferred an unconditional right of intervention upon any private individual or association thereof. The "pattern or practice" action under § 707, which is conspicuously silent in regard to intervention, must be carefully contrasted with the actions contemplated by § 706. Under § 707, the EEOC (formerly the Attorney General) may institute a "pattern or practice" suit anytime that it has "reasonable cause" to believe such a suit necessary. See United States v. Jacksonville Terminal Co., 5 Cir. 1971, 451 F.2d 418, 438, cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972). Section 707 does not make it mandatory that anyone file a charge against the employer or follow administrative timetables before the suit may be brought. It was unquestionably the design of Congress in the enactment of § 707 to provide the government with a swift and effective weapon to vindicate the broad public interest in eliminating unlawful practices, at a level which may or may not address the grievances of particular individuals. See Rodriguez v. East Texas Motor Freight, 5 Cir. 1974, 505 F.2d 40, at p. 66; United States v. International Ass'n. of Bridge, Structural, and Ornamental Iron Workers, 7 Cir. 1971, 438 F.2d 679, cert. denied 404 U.S. 830, 92 S.Ct. 75, 30 L.Ed.2d 60 (1971). Rather, it is to those individual grievances that Congress addressed § 706, with its attendant requirements that charges be filed, investigations conducted, and an opportunity to conciliate afforded the respondent when "reasonable cause" has been found. On the other hand, the mere fact that some charges were filed, or that efforts were made toward conciliation, does not in our view transform what the government may properly bring and does bring as a § 707 "pattern or practice" action into a § 706 action. See United States v. Ironworkers Local 86, 9 Cir. 1971, 443 F.2d 544, 551-52, cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971).
We have studied closely the language of the two sections in reaching the foregoing conclusions. If only the words of the statute were available, one might plausibly argue that § 707(e), 42 U.S.C. § 2000e-6(e), incorporates § 706(f)(1) intervention as of right into "pattern or practice" procedure. Section 707(e), enacted as another of the 1972 amendments to Title VII, provides that the EEOC shall have the authority, subsequent to March 24, 1972, "to investigate and act on" charges of pattern or practice discrimination filed in behalf of aggrieved individuals. Section 707(e) concludes: "All such actions shall be conducted
Arguably, these procedures include intervention as of right by aggrieved parties. The legislative history indicates otherwise, however, and in the absence of an express provision for intervention we choose to follow its signals. In the first place, we have discovered no legislative history evincing a favorable congressional attitude toward unconditional private intervention in government "pattern or practice" litigation. In the legislative history which speaks most closely to the point, the House Committee on Education and Labor described the enacted precursor to § 707(e) as a measure which merely "[a]ssimilate[d] procedures for new proceedings brought under Section 707 to those now provided for under Section 706 so that the Commission may provide an administrative procedure to be the counterpart of the present Section 707 action." (emphasis added).
We emphasize that our disposition of the 24(a)(1) aspect of the intervention question is based primarily on what we find to be the correct construction of § 707 and its legislative history. We are comforted, however, by the Seventh Circuit's recent decision in EEOC v. United Air Lines, 7 Cir. 1975, 515 F.2d 946, in which the court reached the same conclusion, though ultimately its affirmance was based on the untimeliness of the intervenors' application. Also, we find persuasive support for our refusal to effectively imply an unconditional statutory right in the strong judicial policy against nonexpress private intervention in government enforcement litigation when an adequate private remedy is freely accessible. See, e. g., Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961). See also Battle v. Liberty Nat'l. Life Ins. Co., 5 Cir. 1974, 493 F.2d 39, 52, cert. denied, 419 U.S. 1110, 95 S.Ct. 784, 42 L.Ed.2d 807 (1975). This policy likewise applies to applications for intervention by right under Rule 24(a)(2), and applications for permissive intervention under Rule 24(b). See SEC v. Everest Mgt. Corp., 2 Cir. 1972, 475 F.2d 1236; United States v. Automobile Mfrs. Assn., C.D. Cal.1969, 307 F.Supp. 617, 619, aff'd per curiam, 397 U.S. 248, 90 S.Ct. 1105, 25 L.Ed.2d 280 (1970). Cf. NAACP v. New York, 413 U.S. 345, 368, 93 S.Ct. 2591, 2604, 37 L.Ed.2d 648, 664 (1973).
Without any aim on our part to denigrate whatever social benefit may accrue from participation in the proceedings by organizations such as NOW, or to impugn NOW's motives or sincerity, we note that NOW has offered no commanding legal or policy arguments to warrant a rule allowing its intervention as of right. NOW places much reliance on EEOC v. American Tel. & Tel. Co., E.D.Pa.1973, 365 F.Supp. 1105, aff'd in part, appeals dismissed in part, 3 Cir. 1974, 506 F.2d 735. There the court granted intervention by right, under § 706(f)(1) and Rule 24(a)(1), to a labor union insofar as certain issues raised in the union's application related to grievances with respect to which charges had been filed with the EEOC, and to remedy which the Commission had filed a suit that led to an industry-wide consent decree. American Tel. & Tel., however, was a suit brought by the Commission pursuant to § 706. It was not a § 707 "pattern or practice" action. See 506 F.2d at 740. The issue before the court was whether the union could be considered an "aggrieved" party for purposes of § 706(f)(1). The case is not
In summary, we have determined that NOW enjoyed no unconditional statutory right to intervene under F.R.Civ.P. 24(a)(1). The matter is mostly ended at this point, but we pause briefly to consider whether the district court could have erred in refusing to grant NOW intervention under Rule 24(a)(2) or (b). With respect to (a)(2) intervention as of right, NOW obviously claims an interest in the subject matter of the action. We believe, however, that NOW fails the other two prongs of the test. NOW has not shown that the district court's decision to enter the consent decrees as between the government and the defendants may, as a practical matter, operate to impair or impede the protection of its interest. Neither NOW nor any of its members is bound by res judicata or estoppel to the consent decrees. See Rodriguez v. East Texas Motor Freight, 5 Cir. 1974, 505 F.2d 40 at p. 65; Williamson v. Bethlehem Steel Corp., 2 Cir. 1972, 468 F.2d 1201, 1203, cert. denied, 411 U.S. 931, 93 S.Ct. 1893, 36 L.Ed.2d 390 (1973). See also Sam Fox Publishing Co. v. United States, supra, 366 U.S. at 689-90, 81 S.Ct. at 1313, 6 L.Ed.2d at 609. Furthermore, the district court explicitly qualified the denial of intervention as a denial without prejudice to future intervention. Cf. NAACP v. New York, supra. Finally, plenary legal remedies remain fully available to NOW's membership and perhaps, or so NOW has asserted, to the organization itself.
Insofar as NOW's application may be deemed to have sought permissive intervention under Rule 24(b), no abuse of discretion has been shown in the denial. The district court was clearly justified in determining that the interests of the majority of the affected individuals predominated over NOW's interest in further delaying implementation of the decrees' reforms. Such determinations must be viewed in light of the circumstances as they existed at the time. EEOC v. United Air Lines, supra, 515 F.2d at 949. In this case, a full hearing had been held and NOW had received ample opportunity to present its arguments. The court below did not err in denying further intervention. Consequently, NOW's appeal qua organization must be dismissed.
III. THE APPEALS ON THE MERITS: CHALLENGES TO THE CONSENT DECREES
A. Scope of Review
Before proceeding with our examination of the appellants' numerous and provocative challenges to the consent decrees, it is appropriate that we outline the rules of law which govern the parameters of our review. Initially, it cannot be gainsaid that conciliation and voluntary settlement are the preferred means for resolving employment discrimination disputes. As early as 1968, Judge Bell wrote for this court: "It is thus clear that there is great emphasis in Title VII on private settlement and the elimination of unfair practices without litigation." Oatis v. Crown Zellerbach Corp., 5 Cir. 1968, 398 F.2d 496, 498 (emphasis added). Subsequently, in Dent v. St. Louis-San Francisco Ry. Co., 5 Cir. 1969, 406 F.2d 399, 402, Judge Coleman advanced the same thesis:
Our recent excursions into this area have not detoured from the foregoing principles, but have emphasized instead their practical value. In the most sweeping of all our employment discrimination decisions, Pettway v. American Cast Iron Pipe Co., 5 Cir. 1974, 494 F.2d 211, 258, we said in regard to the firmly established, but nonetheless thorny and speculative matter of awarding classwide back pay:
Nor has the Supreme Court maintained detached silence in regard to the deference courts should accord the processes of voluntary conciliation and settlement. Describing Title VII and the functions of the EEOC, Mr. Justice Powell in Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017-18, 39 L.Ed.2d 147, 156 (1974), wrote for the Court:
(emphasis added). In Gardner-Denver the Supreme Court stressed the importance of voluntary settlement in voicing its disapproval of a policy of deferral to binding arbitration. In the Court's view, such a policy could adversely affect the arbitration system as well as the vindication of individual rights, since the employee—fearful of the arbitral forum—might
So far, we have emphasized only one side of the coin—the side which places a premium on the achievement of voluntary compliance. In doing so, we have not overlooked that the "final responsibility for enforcement of Title VII is vested with federal courts," Gardner-Denver, supra, 415 U.S. at 44, 94 S.Ct. at 1018, 39 L.Ed.2d at 156, and that "Congress gave private individuals a significant role in the enforcement process of Title VII." Id. See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).
Yet we deal here with one of those rare instances in which the government has, to its satisfaction, successfully negotiated a comprehensive voluntary accord. At least ostensibly, the government has done precisely what it ought to do as a matter of public policy in order to vitiate the need for additional industry-wide litigation. On the other hand, the product of the considerable efforts on behalf of the government, the steel companies, and the union does not purport to foreclose any alternatives that may otherwise exist for individuals who had rather litigate than participate in the entire settlement.
We think the answer was delivered nearly fifteen years ago by Judge (now Chief Judge) Brown in Florida Trailer and Equipment Co. v. Deal, 5 Cir. 1960, 284 F.2d 567, in which an objecting creditor sought to void a referee and district court-approved settlement, reached pursuant to the Bankruptcy Act, between the trustee of the insolvent estate and a lien creditor. There we stated:
284 F.2d at 571. Judge Brown continued:
Id. at 573 (emphasis added).
Despite the appearance of an occasional contextual gloss,
Applying the Deal approach to the issues before us, we align ourselves with certain propositions which were recently developed by the Second Circuit in its review of a similar, though less expansive, Title VII settlement, see Patterson v. Newspaper and Mail Deliverers' Union of New York and Vicinity, 2 Cir. 1975, 514 F.2d 767. In the first place, the scope of our review is narrow and we should interfere with the implementation of the consent decrees only upon a clear showing that the district judge abused his discretion by approving the settlement. Next, to the extent that the settlement may in occasional respects arguably fall short of immediately achieving for each affected discriminatee his or her "rightful place," we must balance the affirmative action objectives of Title VII and Executive Order 11246 against the equally strong congressional policy favoring voluntary compliance. The appropriateness of such balancing is especially clear, as here, "in an area where voluntary compliance by the parties over an extended period will contribute significantly toward ultimate achievement of statutory goals." 514 F.2d at 771. Nor should we substitute our notions of fairness and adequacy of the relief for those of the parties and Judge Pointer, absent a strong showing that the district court failed to satisfy itself of the settlement's overall fairness to beneficiaries and consistency with the public interest. Finally, and of utmost importance, we are without authority to modify or rewrite the parties' agreement. Our only alternative, if it were shown that Judge Pointer abused his discretion or overlooked an illegal provision, would be to vacate his approval of the entire settlement and remand for trial of the government's "pattern or practice" complaint. See United States v. Atlantic Ref. Co., 360 U.S. 19, 23, 79 S.Ct. 944, 946, 3 L.Ed.2d 1054, 1057 (1959); Patterson, supra, 514 F.2d at 772. Cf. United States v. Blue Chip Stamp Co., C.D.Cal. 1967, 272 F.Supp. 432, 440, aff'd per curiam sub nom., Thrifty Shoppers Scrip Co. v. United States, 389 U.S. 580, 88 S.Ct. 693, 19 L.Ed.2d 781 (1968).
To the foregoing observations we add a few remarks which we think are particularly pertinent to these appeals. The central issue here is not whether the consent decrees achieve some hypothetical standard constructed by imagining every benefit that might someday be obtained in contested litigation. The question which we must decide is whether
B. Alleged Illegality of Back Pay Releases
The subject of back pay is treated in paragraph 18 of Consent Decree I.
Eschewing as premature any ruling on the validity of any particular employee's release, the district court concluded that the appellants' arguments were lacking in merit as attacks on the decrees as a whole. Judge Pointer held that "there can be a legal waiver of back-pay claims where, for valuable consideration, a release is signed knowingly and voluntarily, with adequate notice which gives the employee full possession of the facts."
Reduced to their simplest terms, the items to be released by electing employees pursuant to paragraph 18(g), in return for back pay, are: (1) all claims (subject to an exception not now germane) asserting unlawful employment discrimination by the defendants and/or their agents or privies insofar as such claims are based on acts or practices, within the scope of the government's complaint or the consent decrees, which were completed on or before the date of the decrees' entry; and (2) claims for damages incurred at any time because of continued effects of complaint or decree-covered acts or practices which took place on or before the entry date of the consent decrees.
There are certain potential rights, however, with respect to which we do not understand paragraph 18(g) to envision a compromise. That is because a waiver of these rights either does not follow from a fair reading of paragraph 18(g) (number (1)), or else they are "prospective" and employees may not waive them (numbers (2) and (3)). We list them as follows:
(1) The release will not bar an employee from suing in the future for additional injunctive relief if the reforms contemplated by the decrees do not eliminate continued effects which are causally grounded in past acts or practices of discrimination. For example, suppose a minority or female employee had been assigned to a lowly job in an undesirable LOP or pool at some point prior to April 12, 1974. At that point the employee became "locked" into a departmental seniority system whereby, in bidding for more desirable vacancies in other departments against white males with less plant seniority, the minority or female employee would be denied the new job for want of superior departmental seniority,
(2) Any employee who feels aggrieved by the defendants' palpable disobedience of the terms of the decrees may sue, in effect, to enforce them. Although the defendants' promise to comply runs directly to the government, rather than to employees, the defendants readily concede that an episode of nonadherence to the decrees may conceivably constitute a new violation of the law and give rise to a new cause of action under Title VII or other applicable law. Whether a particular instance of noncompliance may give rise to a new claim for damages, injunctive relief, or perhaps both or neither, will again depend on the circumstances. If, for example, a minority or female individual could show that the company failed to fulfill an affirmative action goal for promotion to higher-paying trades and crafts, see paragraph 2(a)(1) of the Agreement accompanying Consent Decree II; that such failure was due to discrimination; and that he or she was qualified and would have been promoted at an earlier date but for the discrimination, then arguably the employee would be entitled to the first promotional vacancy and some amount of money for the period during which promotion was denied. On the other hand, the company may be able to show that no one was promoted during the relevant period, or that the promotions which did occur were based on unusual needs or other business necessities. Under those circumstances the employee may be entitled, if at all, to no more than a right of first refusal when the next vacancy occurs.
(3) Clearly apart from compliance or noncompliance with the decrees, the release cannot preclude a suit for any form of appropriate relief for subsequent injuries caused by future acts or undertakings the effects of which are equivalent to the otherwise compromised, noncompensable effects of past discriminations covered by the complaint or the decrees. Thus, the defendants are responsible for their conduct relating to job assignments, tests, qualification requirements, transfers, layoffs, and collective bargaining to the extent these items are carried out after April 12, 1974. If
This last aspect of the release can have no other acceptable meaning, for notwithstanding that the systemic reforms contained in the decrees have been put into operation, thereby undertaking to break the chains of past causation as it were, the defendants have an ongoing statutory responsibility independent of the decrees to see that the corrective measures and goals established thereunder are maintained and updated so that the effects of past discrimination will be wiped out as quickly as due diligence and business necessity permit. See Pettway, supra, 494 F.2d at 248. This is especially the case with regard to the elimination of discriminatory departmental seniority structures, tests, and other customs that can unlawfully restrict the mobility of minorities and females within and between LOPs. On the other hand, neither the decrees nor the laws impose upon the defendants an impossible burden to insure that each victim arrives at his or her "rightful place" at once. In cases like this, involving large numbers of workers, it can rarely be determined how much a given employee would have earned or what job he or she would have occupied during a particular period but for the effects of systemic discrimination. Pettway, supra, at 260, 262. Seldom can more than speculative back pay relief be obtained simultaneously with seniority reform, for despite massive court-ordered competitive advantages and objective criteria-based affirmative action, many aggrieved employees will not immediately achieve their "rightful places," but only a more favorable start on the road toward better jobs. See, e. g., Pettway, supra, 494 F.2d at 249, 258 (back pay normally stops accruing when reformed seniority goes into effect); Johnson v. Goodyear Tire & Rubber Co., 5 Cir. 1974, 491 F.2d 1364, 1375, 1379 (same; individual circumstances vary and not all class members are automatically entitled to back pay); United States v. Georgia Power Co., 5 Cir. 1973, 474 F.2d 906, 927.
Lest we be thought to decide more than is necessary for purposes of this controversy, we simply note that our construction of paragraph 18(g), just advanced, does not wholly comport with the views of either the government, the steel companies, the union, the Harris appellants, or the three female appellants. Nor do those parties' interpretations—even among the appellees—reflect total consistency. Therefore, it was appropriate that we examine and indicate the meaning of paragraph 18(g), insofar as that meaning can be gathered from the provision's plain language in light of certain limitations which the law imposes upon the defendants' ability to enforce an employee-executed waiver. To be sure, other issues—legal and factual—will arise as the consent decrees are implemented, notices furnished, back pay accepted, releases executed, and lawsuits filed. It is sufficient for our purposes, however, to observe that ample opportunities will exist in other cases to grapple with those issues under, inter alia, the law of contracts. See generally A. Corbin, Contracts § 1292 (1962). Our present inquiry is confined to the narrower question whether paragraph 18(g) reflects such illegality or impropriety that the district court's approval of the consent settlement should be set aside.
Paragraph 18(g) would provide for an unlawful procedure only if it contemplated a release by employees of prospective rights. Such a proscribed device has been characterized by the Supreme Court as "a waiver in advance of a controversy." Wilko v. Swan, 346 U.S. 427, 438, 74 S.Ct. 182, 188, 98 L.Ed. 168, 177 (1953). Cf. Alexander v. Gardner-Denver Co., supra, 415 U.S. at 51, 94 S.Ct. at 1021, 39 L.Ed.2d at 160. Here, all the ingredients of controversy to be compromised under paragraph 18(g) have their operative and legally consequential origin in acts, patterns, and practices which were performed by the defendants up to and including April 12, 1974. Those operative ingredients are thus antecedent to any possible compromise, not prospective. Accordingly, it will be feasible for the Audit and Review Committee, the Implementation Committees, and the EEOC in the case of parties with pending charges, to furnish eligible employees with comprehensive, relevant information about their rights (for example, their putative membership in pending private class actions) before any back pay is delivered and before any releases are signed. Such information is calculated to insure that each electing employee settles knowingly and voluntarily, and with an understanding of the manner and extent to which the decrees remedy his or her grievance.
Yet the appellants contend that an intelligent, voluntary compromise of even an unliquidated, antecedent claim is unenforceable against the employee as a matter of law and public policy. They argue that since Congress attached the highest priority to the eradication of employment discrimination, and since Congress established a variety of independent remedies for making whole its victims, then a settlement of a claim in one forum or proceeding cannot be raised by the same defendant in bar to another proceeding for more back pay. They maintain that the employee's voluntary release in settlement of a claim for a disputed and concededly uncertain sum
This is a novel and ingenious line of argument. It is calculated to circumvent the dicta in Gardner-Denver, supra, 415 U.S. at 52 & n. 15, 94 S.Ct. at 1021 & n. 15, 39 L.Ed.2d at 160 & n. 15, and to gain maximum possible mileage from the FLSA and related cases led by Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296 (1945).
The appellants attempt to obfuscate the issues by mixing several distinct ideas, including election of remedies, prospective waiver, liquidated as opposed to unliquidated damages, and congressional policies underlying different statutes. The most egregious element in this mixture is the appellants' fallacious equation of the principles of election of remedies and release of a cause of action. They correctly cite Gardner-Denver for the propositions that Congress has created parallel and overlapping remedies to combat employment discrimination, that the employee may pursue those remedies in separate forums, and that "an employee's rights under Title VII are not susceptible to prospective waiver." 415 U.S. at 51, 94 S.Ct. at 1021, 39 L.Ed.2d at 160. They fail to recognize, however, that Gardner-Denver does not hold or imply that an aggrieved employee may freely seek additional relief in other forums after he has voluntarily released in one forum his claims arising from the same operative factual complex, for valuable consideration. A full and adequate compensation for a wrong, founded in various remedial measures, is one thing; a succession of compensations, each seeking to be full and adequate, quite another.
Gardner-Denver holds only that "an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement." 415 U.S. at 48, 94 S.Ct. at 1020, 39 L.Ed.2d at 158. Eviscerating Dewey v. Reynolds Metals Co., 6 Cir. 1970, 429 F.2d 324, 332, aff'd by equally divided Court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971), the Supreme Court explained quite succinctly the basis for its decision. Arbitration is a collective right; a Title VII cause of action is a personal right. When the employee submits a grievance to arbitration, he or she is pursuing a contract right which flows from the collective bargaining agreement. The rights asserted in a Title VII suit flow, by contrast, from an act of Congress independent of the traditional labor-management bargaining process. Most fundamentally, however, the Supreme Court recognized that the congressional policy behind the various Title VII remedies for aggrieved workers (charges, investigations,
The appellees rely heavily on certain language in Gardner-Denver, which concededly is dicta. Still Justice Powell's statements appear carefully-considered, and, given the apparent unanimity with which the Justices accepted them, we agree with Judge Pointer that appellees' reliance is well-taken. The Court stated:
Footnote 15 is as follows:
415 U.S. at 52 & n. 15, 94 S.Ct. at 1021 & n. 15, 39 L.Ed.2d at 160 & n. 15.
The appellants attack this language with other nondecisional language found in footnote 14. There the Court suggested that in cases where the employee prevails at arbitration but later seeks judicial relief, courts are capable of adjusting their remedies to prevent duplicative recoveries. The Court added that if the employee obtained relief at arbitration "fully equivalent to that obtainable under Title VII," then there would be no need for a lawsuit or additional relief from the courts.
We believe that any apparent conflict is wholly superficial, and that the two statements are easily reconciled by reference to what was at issue in Gardner-Denver, and what was not. In the first place, Gardner-Denver did not involve the volitional release of a cause of action. It did involve the question whether an employee's resort to binding arbitration operates as a binding election of remedies. For reasons mentioned previously the Court answered that question in the negative, and footnote 14 is fully consistent therewith. This consistency is reinforced by the remainder of footnote 15: "In no event can the submission to arbitration of a claim under the nondiscrimination clause of a collective-bargaining agreement constitute a binding waiver with respect to an employee's rights under Title VII." (emphasis added).
In no respect does footnote 14, or anything else in Gardner-Denver, support the assertion that an aggrieved employee who freely settles his or her unliquidated demand with the employer or the union may reciprocate by suing the same defendant at a later date on the same cause of action, merely because the employee grows dissatisfied with the payment for which he or she settled. Very frankly, we cannot conceive of how
Neither O'Neil nor Schulte held that employees may not accept compromise payments and waive their claims for further relief in situations where the fact of liability or the amount thereof is disputed. In O'Neil, for example, the Supreme Court expressly limited as the issue before it "whether in the absence of a bona fide dispute between the parties as to liability" an employee could waive the liquidated damages to which the statute entitled him. 324 U.S. at 704, 65 S.Ct. at 900, 89 L.Ed. at 1307. The Court took great care not to decide "what limitation, if any . . . the Act places on the validity of agreements between an employer and employee to settle claims arising under the Act if the settlement is made as a result of a bona fide dispute between the two parties, in consideration of a bona fide compromise and settlement." 324 U.S. at 714, 65 S.Ct. at 905, 89 L.Ed. at 1313.
In Schulte the Court held that where the only bona fide dispute concerned whether the employer was covered by the FLSA, the employee was not bound to his or her compromise for less than the statutory liquidated reparation. The Court reasoned very simply that in the absence of any dispute other than mere coverage, an employer covered by the Act should not be able to escape its statutory obligation on the theory that coverage was not altogether clear. Again, however, the Court noted that it was not passing on the quite different question whether a covered employer could enter into a settlement with its employees where a bona fide dispute existed as to liability or amount.
Subsequent to O'Neil and Schulte, the courts of appeals dismissed the argument that those decisions somehow forbade voluntary compromises, executed pursuant to consent judgments, with respect to sums the amount of or liability for which was disputed. See, e. g., Urbino v. Puerto Rico Ry. Light & Power Co., 1 Cir. 1947, 164 F.2d 12 (employees settled for minimum FLSA wage plus overtime but not liquidated damages; release constitutes effective bar to subsequent suit for liquidated damages; "the rule of the Schulte case goes to the verge of the law and this being our view we decline to extend that rule any further"); Bracey
Nor did the decisions of the Supreme Court on similar questions under other statutes yield any indication that the O'Neil-Schulte strict FLSA approach would be extended. In Callen v. Pennsylvania R.R., 332 U.S. 625, 68 S.Ct. 296, 92 L.Ed. 242 (1948), the Court considered the possible validity of a release under a statute which specifically prohibited any contract for an employer's exemption from liability for injuries to employees. (§ 5, Federal Employers' Liability Act, 45 U.S.C. § 55). The Court ruled that a release could be valid because
332 U.S. at 631, 68 S.Ct. at 298, 92 L.Ed. at 246. The later case of Boyd v. Grand Trunk Western R.R., 338 U.S. 263, 70 S.Ct. 26, 94 L.Ed. 55 (1949), upon which appellants rely, is not to the contrary. There the Court explained that Callen correctly distinguishes "a full compromise enabling the parties to settle their dispute without litigation, which we held did not contravene the Act, from a device [exclusive venue contract] which obstructs the right of the [FELA] plaintiff to secure the maximum recovery if he should elect judicial trial of his cause." 338 U.S. at 266, 70 S.Ct. at 28, 94 L.Ed. at 58. (emphasis added). Cf. also Duncan v. Thompson, 315 U.S. 1, 7, 62 S.Ct. 422, 424, 86 L.Ed. 575, 579 (1942).
In Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942), the Court held that benefits conferred upon seamen by the law of admiralty and the Jones Act, 46 U.S.C. § 688, may be released if it is shown by the proponent that the waiver "was executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights."
To be sure, the appellants' public policy position is tenable insofar as the O'Neil-Schulte line of cases once stood rather inflexibly for the idea that certain benefits under protective legislation would be sold for a song unless safeguarded by extraordinary measures. Yet it remains that those cases were tied closely to the mandatory terms of particular statutes, the labor conditions that produced those statutes, and what the Court believed was a clearly discernible congressional intent. Since then, courts have declined in most instances to fashion comparable doctrine from whole cloth, the stronger reasoning being that the rubric of "unequal bargaining power" all too often tempts the judiciary to promulgate social values which, at best, intrude upon the legislative sphere, and at worst reflect imprecise apprehensions of economics and desirable public policy. See, e. g., Walling v. Portland Terminal Co., 330 U.S. 148, 155, 67 S.Ct. 639, 643, 91 L.Ed. 809, 814 (1947) (Jackson, J., concurring) ("Interminable litigation, stimulated by a contingent reward to attorneys, is necessitated by the present state of the Court's decisions").
So sharply undercut by Congress even in their immediate ambit, O'Neil and Schulte inescapably provide no support to appellants. Nor do the FELA, Truth-in-Lending Act, or other cases briefed by appellants cast the slightest shadow of doubt upon Congress' selection of voluntary conciliation and compliance as the preferred means—or means at least as viable as any other—for the vindication of Title VII rights. Though the appellants' contentions may possibly have vitality in rare situations where amounts due "may be mathematically calculated by simple arithmetic," e. g., Watkins v. Hudson Coal Co., 3 Cir. 1945, 151 F.2d 311, 314, we agree with Judge Pointer and the appellees that they will seldom apply, if ever, to Title VII seniority cases, which are inevitably attended by "the impossibility of calculating the precise amount of back pay." Pettway, supra, 494 F.2d at 260. Accordingly, we hold that paragraph 18(g) does not violate public policy.
Appellants next assert that an average of $500 per eligible employee in immediate, litigation-free back pay is a priori inadequate and that the consent decrees therefore must be vacated. Our limited scope of review neither requires nor permits us to decide this question in a manner which resolves each and every doubt, as if that were possible in any event.
The second argument is clearly without merit in two respects. In the first place, the burden—if one is to be assigned—is upon the appellants to demonstrate abuse of discretion in Judge Pointer's acceptance of the decrees. More substantially, however, appellants have assumed that virtually every back pay claimant would succeed in court, either in a private suit or on the coattails of a government suit. The experience of the one contested suit which they cite—the Fairfield Works case, see footnotes 7 and 28, supra—does not support the assumption. Nor may the appellants reasonably assume that the government would sue every defendant at every affected plant and department for back pay in the absence of, or simultaneously with, the private litigation which they seek to pursue. As we discuss, infra, the government labors under no legal obligation to sue any particular party upon any given occasion. In any event, the Fairfield Works case illustrates a variety of other factors—mainly considerable delay and expense to all parties—which subtract from appellants' preference for litigation over voluntary compliance. That much we may assuredly say without commenting one way or the other about the merits of the back pay issues which are presently on appeal in the Fairfield case.
Moreover, to the extent appellants contend that the average claimant's recovery in Fairfield exceeded the average award under the consent decrees, their argument is misleading. They note that around sixty employees recovered $201,000, or an average of $3,350 per successful employee. They do not mention, however, that more than 3,000 other employees were held entitled to no back pay, with the result that the average award per claimant came to around sixty dollars, or $440 less than under the consent decrees. Nor do they mention that the Fairfield awards were based on a 150 percent-of-actual loss theory, the additional fifty percent representing an estimate for unmatured future effects of past discrimination. See 371 F.Supp. at 1060. It is also useful to note that within the three departments in which the sixty (or sixty-one) successful claimants worked, there were some 298 other members of these classes who received no back pay, and that holding was not appealed. Nor were appeals taken from the classwide denials of back pay in the other private actions, which involved about 105 employees. Without saying more about the Fairfield case, we may candidly observe that it is far from clear that any particular employee would be better off if he or she awaited contested litigation in lieu of accepting the back pay provided by the consent decrees.
C. Alleged Unlawful Abdication of Responsibilities By Agencies of Government
Apart from the items just discussed, the appellants level a series of attacks against selected provisions of the consent decrees which relate to the mechanics and procedures of ongoing enforcement. Though their specific targets vary, these attacks share a common theme: the argument that the involved government agencies and the court below have both
We begin with introductory paragraph C of each decree, which—insofar as appellants challenge it—provides:
Appellants charge that this promise by the government constitutes an unlawful "disestablishment" of Title VII's enforcement structure. Their argument is premised on the assumption that "[t]he limited resources available to [the EEOC] are appropriated solely to support litigation on behalf of minority employees."
At the outset, we should emphasize what paragraph C does not do, contrary to appellants' apparent belief. First, it does not obligate the government to appear in private actions to oppose or seek transfer of claims for back pay in excess of the sums to be tendered under the consent decrees. Thus, if an aggrieved employee chooses to decline the back pay tendered under paragraph 18(g) of Consent
Moreover, paragraph C does not commit the government to oppose even requests for additional or inconsistent systemic relief on their merits. Through the Audit and Review Committee and the right of each of its parties to take a given matter before the court, the consent decrees contain an internal mechanism for generating additional systemic remedies when and if they are needed.
That, in summary, is what the parties bargained for. To us it represents nothing unlawful or improper; indeed, the government in all likelihood could file similar advice with forum courts even if there were no consent decrees.
63 F.R.D. at 5 n. 4. And in any case, we may not reasonably assume that the administration of paragraph C will produce improper consequences—such as venue deprival. Such a problem is not now before us in the form of an actual controversy.
Appellants further contend that the consent decrees illegally restrict the EEOC's power to sue under § 706 of Title VII. Proceeding from their assumption, noted earlier,
We think the appellants are again incorrect, for we are convinced
The EEOC's decision not to select individual charges against the steel companies and the union for suit by the agency under § 706 was a reasonable exercise of discretion, particularly since the most serious and pervasive of those charges were properly within the scope of a "pattern or practice" complaint. The backlog of charges is such that the Commission must choose its cases for maximum impact.
We conclude, therefore, that no individual has a "right" to prosecution of his or her case by the EEOC upon any given occasion. In the present case the agency has obtained major systemic relief for minorities and females through voluntary compliance. Because any employee who remains dissatisfied with that relief retains his or her private right of action, the appellants miss the point when they assert that the EEOC has "surrendered private rights," and that it has "traded off" the rights of some employees in return for benefits to others. Paragraph C constitutes neither of those horribles, but merely an exercise by the agency of its discretion to decide what actions it will leave to private enforcement.
Making substantially the same arguments which they advanced against
Again emphasizing the first half of the government's undertaking but omitting to deal with the second, appellants assert that the EEOC has unlawfully relinquished its statutory duty to conciliate charges of discrimination for which "reasonable cause" exists. See § 706(b) of Title VII, 42 U.S.C. § 2000e-5(b). This would be a serious complaint if it had a firmer foundation, for § 706(b) does say that the Commission "shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." (emphasis added). Although we have held that "an effort to conciliate by the EEOC is not in any sense a condition precedent to the charging party's right to seek judicial consideration of his grievance,"
We have determined, however, that this case does not require us to attempt to settle these intricate questions in terms of congressional intent with respect to jurisdiction. For one thing, the appellants do not couch this portion of their argument in those terms. For another, any duty to conciliate as a matter of the EEOC's power to sue was fully satisfied during the six months of negotiations which led to the consent decrees. Appellants equate "conciliation" with give-and-take bargaining; nowhere do they assert that the decrees are not clearly the products of give-and-take bargaining. Nor do they advance any sort of attack directly against paragraph 19(b), which plainly does contemplate that the Commission will attempt to conciliate
Thus, we are left very narrowly with a contention that paragraph 19(a) illegally obligates the EEOC to drop all efforts to conciliate certain charges which were pending at the time of decree entry: namely, those which allege "unlawful employment practices wholly within the scope" of the decrees. The resolution of this issue is not difficult; it follows from a careful consideration of the descriptive terminology "wholly within the scope." For once, the two sides in this dispute are fundamentally close together on the correct result. Appellants suggest that in cases where the Commission concludes that the decrees will in fact resolve an employee's problems, it should so advise the employee. They add that where the Commission thinks an employee needs additional or inconsistent relief, it should seek to conciliate an agreement on that basis.
Subject to one area of qualification, which we think is well taken, the appellees agree. Accordingly, we construe paragraph 19 to mean that a charge is "wholly within the scope of the Decree" if the decree both encompasses the nature of the charged discrimination and contains a remedy which the EEOC deems adequate and appropriate for the particular grievance. Unless the Commission is satisfied that each of these conditions is met, then it has not only the right but also the duty to conciliate the charge separately under subparagraph (b) in lieu of advising the grievant to settle or accept an immediate right-to-sue letter.
Nevertheless, it is important to stress that the question whether a given charge lies "wholly within the scope" of the decrees is ultimately a matter committed to the sound judgment of the EEOC, although we do not suggest that the agency's exercise of judgment would be entirely unreviewable in every conceivable circumstance. Yet appellants seem to believe that the agency is duty-bound to seek precisely the relief desired by every charging party. That is not so. The EEOC does not stand in a lawyer-client posture vis-a-vis the persons who are protected by Title VII.
The final installment in this series of objections concerns the relationship of paragraph C of each decree and paragraph 16 of Consent Decree I to the functions of the Secretary of Labor and the Office of Federal Contract Compliance under Executive Order 11246. Insofar as is presently material, paragraph C of each decree provides that, as to all plaintiffs—including the Secretary, the decrees are res judicata and resolve all issues of employment discrimination to which the decrees are directed. Paragraph 16 of Consent Decree I adds that
Appellants broadly assert that these provisions are unlawfully calculated to relieve the companies of their duty to comply with the Executive Order, and moreover to dispense with the OFCC's responsibility to police government contractors' efforts to achieve and maintain compliance. Appellants suggest that paragraph 16 has or will have several purported illegal effects: abolition or dilution of compliance reviews; lax reporting and review of mandatory affirmative action plans; failure by the government to cancel or refuse to award contracts due to noncompliance with the Executive Order; compliance audits by violators; violation by the OFCC of its own regulations concerning enforcement hearings; and lack of jurisdiction in the district court.
These contentions are meritless, singly and collectively. Paragraph 16 neither states nor implies that the companies are excused from compliance with Executive Order 11246. In fact they are not. Paragraph 16 merely designates the government representatives to the Implementation Committees and the government member of the Audit and Review Committee as compliance officers for the purposes of compliance reviews. Such designation is specifically authorized by § 401 of Executive Order 11246.
Under paragraph 16 of Consent Decree I, the OFCC will rely on the government's continuing audit of the companies as adequate for purposes of the Executive Order, as long as they remain in compliance with the decrees. If the government concludes that the companies have violated the decrees, then not only may it seek judicial enforcement on behalf of the Secretary,
Substantively, the decrees are replete with indications of how compliance with the decrees is tied directly to compliance with the Executive Order. Paragraph 3(b) of the Agreement incorporated into Consent Decree II requires an affirmative
Under these circumstances, we fail to see how the appellants can seriously argue that the consent decrees have diminished either the companies' obligation to comply or the Secretary's duty (or ability) to enforce.
In conclusion, the appellants' contention regarding the jurisdiction of the district court is frivolous and due to be rejected.
D. Adequacy of Judicial Supervision
This aspect of the appeal raises the question whether the district court abused its discretion by entering the consent decrees without simultaneously ordering the periodic preparation and submission of detailed progress reports independent of the information to be generated under the decrees. The appellants concede, at least arguendo, that the court has unlimited supervisory powers pursuant to its retained jurisdiction, but they ask us to presume that it will lack sufficient information upon which to properly assess the decrees' viability in practice.
Reference to the law and the record demonstrates that appellants' fears are overwhelmingly speculative and inconsequential as a ground for vacating the decrees. It appears to us that their complaint originates from a basic misconception of the nature of the parties' agreement. The Supreme Court has explained that:
United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256, 262 (1971) (emphasis in original and footnote omitted).
In a large number of cases which have gone to contested judgments under Title VII
Consequently, we deem as the sole issue presently before us whether the mechanics of information compilation and production established by the decrees are fundamentally sufficient and serviceable to assist, rather than subvert, the district court's role. The appellants would have the steel companies file detailed periodic reports concerning a number of items: (1) all promotions, including identities of bidding employees and the races of successful bidders; (2) identities and ethnic information regarding all "helpers" who qualified for apprenticeship training; (3) similar information as to all employees who received such training; (4) identities and raises of all persons hired for clerical and technical jobs; (5) names and races of all persons enrolled in management training programs; (6) names and races of all persons appointed to supervisory positions; (7) names and ethnic information about employees affected by force reductions; and (8) "detailed information" about retained wage rates among LOP transferees. They flatly assert that "[n]one of this information will be provided to the District Court under the Consent Decrees."
We think the appellants are clearly wrong. In the first place, paragraph 15 of Consent Decree I and paragraph 5 of Decree II's Agreement expressly obligate the companies to maintain complete records on virtually every item listed by the appellants, plus information as to sex. Under paragraph 15(b), the government (on its own motion or at the court's instance) need only ask for these records in order to obtain them. Moreover, appellants seemingly have ignored certain key provisions of Directive No. 1 of the Audit and Review Committee, dated May 31, 1974, which is in the record and copies of which were
In a last-ditch effort, appellants imply that Directive No. 1 is but a mere subterfuge—that the parties to the decrees did not sincerely mean what they said. Appellants ask us to presume that the Audit and Review Committee will repeal Directive No. 1, perhaps next week, maybe next month, in an effort to conceal information from the district court. We need only mention that the record contains absolutely no evidence to that effect, and hence we respectfully decline to indulge in that presumption. The district court possesses plenary authority to deal with such contingencies as they may arise. The appellants' claim of inadequate judicial supervision is purely and simply without merit.
E. Lack of Prior Notice
The final contention raised by all appellants is that the decrees should be invalidated on the ground that interested private parties and their counsel were not invited to participate in pre-decree negotiations, nor were they given advance formal notice and opportunity to intervene prior to entry of the decrees by the district court. To eliminate much confusion at the outset, we repeat that we are concerned with a consent judgment between agencies of the federal government, nine steel companies, and a union. This judgment, in the form of an industry-wide settlement of disputes relating to employment discrimination, was reached after months of conciliations among the parties and the filing of an undisputedly proper § 707 "pattern or practice" complaint by the government. To the extent appellants believe that the absence of prior notice and opportunity to intervene abridged an unconditional right of intervention, that belief should be dispelled by part II of our opinion, supra.
Moreover, we know of nothing in § 707 or in any other statute, order, or regulation which suggests that the parties must permit private individuals to participate in their conferences before the government may finalize a "pattern or practice" consent decree. Cf. Hadnott v. Laird, 1972, 149 U.S.App.D.C. 358, 463 F.2d 304, 308. For reasons explained heretofore, private rights do not rise and fall on the outcome obtained by the government. "In short, the Government's right and duty to seek an injunction to protect the public interest exist
The appellants' demand for notice and hearing prior to judicial approval of the consent decrees is not well taken. Assuming arguendo that the 1972 amendments to Title VII did not affect the capacity of private persons to maintain a "pattern or practice"-type cause of action,
Actually, any further consideration of appellants' theory in terms of joinder of parties becomes hopelessly distorted and unproductive. It appears to us—though again the argument is utterly vague and conclusory
Even so, in connection with awards of classwide back pay we have suggested that some form of notice should be distributed in order to overcome "the problem of binding unidentified class members." Pettway, supra, 494 F.2d at 257. But experience teaches that such notice may come late in the litigation. Id. Moreover, in view of Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 n. 14, 94 S.Ct. 2140, 2152 n. 14, 40 L.Ed.2d 732, 748 n. 14 (1974), and Sosna v. Iowa, 419 U.S. 393, 396 n. 4, 95 S.Ct. 553, 556 n. 4, 42 L.Ed.2d 532, 539 n. 4 (1975), we must approach skeptically the notion that such notice must issue at all—at least at the expense of someone other than a volunteer—in class actions other than (b)(3) actions. In Eisen the Supreme Court carefully laid aside the dual problem of what notice, if any, might someday be necessary in favor of a (b)(1) or (b)(2) class's absent members, and who would be responsible for the expense. In Sosna, however, the Court indicated quite plainly that since the suit sought injunctive and declaratory relief, but not monetary relief, "the problems associated with a Rule 23(b)(3) class action, which were considered by this Court last
Nevertheless, some private parties were allowed to intervene and attack the decrees' legality subsequent to their entry. Certainly that factor alone did not moot the complaints about the absence of prior notice, but we have determined that those complaints lack merit. With respect to the party scope of the subsequent intervention, only NOW complains, and we have already rejected NOW's contentions. The dispute over participation by aggrieved employees thus reduces to the settled principle "that intervention will not be allowed for the purpose of impeaching a decree already made." United States v. California Coop. Canneries, 279 U.S. 553, 556, 49 S.Ct. 423, 424, 73 L.Ed. 838, 841 (1929). Naturally the rule is not inflexible, and we think the district court acted wisely in allowing the intervention that took place. See Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721 (1968). Yet the court clearly was entitled to limit the issues as it did, and to deny vacation of the decrees absent a convincing showing that they operated to violate substantial rights of the intervenors. See generally 3B. J. Moore's Federal Practice ¶¶ 24.16, 24.16, at 24-595-96, 24-651-52 (1974). They do not, and that decides this point.
IV. RELIEF FOR WOMEN
On behalf of the three female appellants whom it was permitted to appoint as intervenors, NOW complains of certain alleged deficiencies in the items of relief afforded women under the consent decrees. These objections go squarely to the adequacy-in-fact of the decrees' remedial provisions, and therefore our limited scope of review precludes substitution of our judgment for that of the parties. We find none of these alleged shortcomings fatal to the decrees' legality, nor did their possible existence render Judge Pointer's approval of the decrees an abuse of discretion. We briefly discuss these objections.
First, NOW claims that the nation's female workforce is severely underrepresented in the steel industry. Conceding at least "tokenism" by the steel companies in the hiring of women since Title VII took effect on July 2, 1965, NOW nevertheless contends that gross under-representation persists—mainly in production and maintenance jobs and in trades and crafts—because many more women would be engaged in such occupations today but for alleged wholesale discharges and bans on new female hires in the post-war 1940's. NOW thus asserts that today's shortage of females in traditionally "male" jobs is a "present effect" of 1940's sex discrimination; that each of its victims should be identified and immediately hired or reinstated with full constructive seniority and back pay from two years prior to the filing of the first such charge; and that the consent decrees are defective as a matter of law because they do not provide this relief.
We may assume that NOW is correct on all the facts and most of the law, but the consent decrees stand. Assuming, for example, that massive discrimination in the 1940's survived the effective date of Title VII, that constructive seniority could properly be awarded, and that its recipients could show themselves
Next, NOW attacks paragraph 10(a) of Consent Decree I, which provides that affirmative goals for female promotion into trades and crafts shall be based on the percentage of females in production and maintenance jobs. Proceeding once more from the alleged historic exclusion of women from both types of jobs, NOW maintains that paragraph 10(a) "makes a mockery" out of any obligation on the companies' part to promote females into trades and crafts.
NOW has simply overlooked paragraph 2(a)(1) of the Agreement incorporated into Consent Decree II. That paragraph establishes as an interim goal, subject to annual review, that twenty percent of all new hires in production and maintenance shall be female. That goal, together with mandatory utilization analyses, is likewise to be submitted to the OFCC for approval pursuant to Executive Order 11246.
NOW's final exclusively-feminist contention is a challenge to the decrees' failure to provide seniority carryover and rate retention for women who may seek to transfer from a technical, clerical, or plant security job into production and maintenance. NOW asserts that such relief is mandated by Bing v. Roadway Express, Inc., supra, where we held that a black "city" driver who had been discriminatorily excluded from a higher-paying "road" position was entitled to "road" seniority from the date at which he would have transferred, based on his qualifications, but for racial discrimination. We believe NOW places far too general a reliance on BING. Truck driving is essentially truck driving, though firms sometimes require more experience for "road" positions. By contrast, secretarial work and rail straightening are, at least in obvious respects, quite different. At any rate, the female appellants did not introduce any evidence into the record which might enable a court to develop this point in greater detail. Accordingly, we assume from our common experience that clerical-technical-plant security and production-maintenance are basically unrelated occupations. Of course, even if we are incorrect, and we know there are some similar jobs—e. g., production record-keeping, the present state of affairs is not irrevocable; the
We would be remiss if we failed to mention the decision of the Supreme Court in Albemarle Paper Co. v. Moody, ___ U.S. ___, 95 S.Ct. 2362, 45 L.Ed.2d 280, which was handed down on June 25, 1975, as we neared completion of our work in this case. We have reviewed Moody carefully—indeed with great particularity its repeated emphasis that one of Title VII's paramount purposes is "to make persons whole for injuries suffered on account of unlawful employment discrimination." At p. ___, 95 S.Ct. at p. 2372. This emphasis is entirely consistent with the opinions from our circuit which we have cited or discussed herein. Furthermore, we are fully mindful that Moody reaffirms as "`[t]he general rule . . . that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury.'" Id. at ___, 95 S.Ct. at p. 2372, quoting Wicker v. Hoppock, 73 U.S. 94, at 99, 6 Wall. 94, at 99, 18 L.Ed. 752.
Yet Moody does not affect our thinking about this case. The critical portion of the Court's rejection of "good faith" as a general defense to liability for back pay—a rejection already accomplished in a number of our decisions—begins on page ___ of the opinion, 95 S.Ct. at p. 2373, viz: "It follows that, given a finding of unlawful discrimination. . . ." (emphasis added). We may reasonably assume that the Court chose its words cautiously, for shortly thereafter it discussed in some detail the meaning of "clearly erroneous" in the context of other issues presented by Moody. Here, of course, we have no judicial finding of unlawful employment discrimination, only two consent decrees. To our knowledge they are governed by rules of law substantially less rigorous than those which govern contested litigation. Correspondingly, the scope of our appellate review is narrower, though no less deliberate. In sum, we adhere to our conclusions that these consent decrees are consistent with the public interest, that they represent a sound and reasonable exercise of the discretion possessed by the executive agencies, and that they implement the policies of Title VII and related laws to an exceptionally thorough degree. Unless settlement is to be held unlawful, we do not think the decrees may be struck down.
For the reasons assigned heretofore, the judgment of the district court is
The Fairfield Works case also involved pattern or practice charges brought by the United States, resulting in an appeal by the government from denial of certain injunctive relief and denial of back pay to black employees who were not represented in the private class actions. Since the government is now admittedly satisfied with the rate retention and back pay provisions of subsequently-negotiated Consent Decree I, paragraphs 8 and 18 thereof respectively, it has withdrawn its appeal in Ford pending our decision as to the validity of the consent decrees sub judice. Stipulation of the Parties, filed July 8, 1974.
Last but not least, in an Order filed December 23, 1974, Judge Pointer entered an unopposed amendment in Ford conforming the injunctive relief for Fairfield Works to that provided by the consent decrees, in all minimum respects except back pay. Since the issue of classwide back pay is still on appeal to this court in Ford, Judge Pointer ordered postponement of further back pay availability in that case until final decision of the appeals in Ford and in this case.
But see Warth v. Seldin, ___ U.S. ___, ___, 95 S.Ct. 2197, 2211, 45 L.Ed.2d 343 (1975):
In Warth the Court described the question of standing as essentially a matter of "whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief." ___ U.S. at ___, 95 S.Ct. at 2206 (footnote omitted). Note that whereas § 706(f)(1) of Title VII creates civil actions and rights of intervention in favor of "Person[s] aggrieved," § 703, 42 U.S.C. § 2000e-2, makes it unlawful to discriminate against "any individual." (emphasis added).
Also to be distinguished are cases such as Atlantis Development Corp. v. United States, 5 Cir. 1967, 379 F.2d 818 (title to property); Martin v. Travelers Indem. Co., 5 Cir. 1971, 450 F.2d 542 (liability insurance coverage); and Nuesse v. Camp, 1967, 128 U.S.App.D.C. 172, 385 F.2d 694 (conflict between federal banking laws and state law), in which courts have granted (a)(2) intervention because of the practical disadvantages that would follow from peculiar stare decisis effects, if intervention were not allowed. Again contrasting this case, we have difficulty conceiving of how the consent decrees—products of negotiation rather than contested litigation—are likely to carry stare decisis effects measurably adverse to NOW or its membership in any future proceeding. A careful analysis of the decrees demonstrates that such an assumption would be not only quite premature, but also naively critical of the perceptive abilities of the judiciary. See Judge Motley's lucid discussion in Leisner v. New York Tel. Co., S.D.N.Y.1973, 358 F.Supp. 359, 369-70. Cf. Pettway v. American Cast Iron Pipe Co., 5 Cir. 1974, 494 F.2d 211, 221 n. 21; Rodriguez v. East Texas Motor Freight, 5 Cir. 1974, 505 F.2d 40, at p. 65; Dickerson v. United States Steel Corp., E.D.Pa.1974, 64 F.R.D. 351.
In no respect does this case bear genuine resemblance to the kind of bizarre problems encountered in Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967). See Kaplan, Continuing Work of the Civil Committee: [etc.] (I), 81 Harv.L.Rev. 356, 405-06 (1967).
In fiscal 1972, the last year prior to implementation of the 1972 amendments which gave the EEOC power to sue, the Commission found reasonable cause to assert unlawful discrimination against only 1,390 employers. Settlement was attempted to some degree with 792 of these employers, but only 268 attempts resulted in a partial or complete success. Note, The Tentative Settlement Class and Class Action Suits Under Title VII of the Civil Rights Act, 72 Mich.L.Rev. 1462, 1463 n. 11, 1464 n. 17 (1974).
Another source reports that as of the close of fiscal 1974, the EEOC's backlog had grown to nearly 98,000 charges. 181 BNA-DLR-D-1, 5 (Sept. 17, 1974).
The most significant feature about Johnson is its emphasis on the principle that the choice over which way to proceed belongs to the grievant:
421 U.S. at 465, 95 S.Ct. at 1722, 44 L.Ed.2d at 304. Likewise in this case, individual employees will find themselves faced with the choice whether to timely accept back pay under the consent decrees, for which no litigation will be necessary, or file private charges and/or lawsuits and risk the usual litigatory uncertainties in quests for greater recoveries. We know of no policy or rule of law, however, which forbids the erection of such a choice when its effect is to leave the individual grievant in a position no worse, but in fact better, than that occupied in the absence of the settlement, which, of course, is not binding on the individual unless he or she so desires.
Furthermore, the Fairfield order provided affirmative relief only to blacks. The consent decrees provide such relief to females and Spanish-surnamed Americans as well. Consent Decree II, for example, establishes as an interim affirmative goal that twenty percent of all new hires in production and maintenance departments shall be females.
Also, the order in Fairfield provided for rate retention only to blacks who transferred within three years of the date of the order. Consent Decree I creates a rate retention remedy which applies to all female and minority employees with plant seniority as of January 1, 1968, and who may wish to transfer at any time in the future. The rate retention in Fairfield lasted for only one year following transfer; the retention period under Consent Decree I continues for up to two years.
Finally, the time factor alone is illuminating as it surfaces in these cases. It took six months to try the Fairfield suit. The relief eventually ordered there is no more impressive than the reforms which were hammered out by the government, the steel companies, and the union during six months of negotiations. If we consider back pay, then the Fairfield relief per capita is far less than under the decrees. The appellants here do not dispute the steel companies' estimate that if an equivalent amount of time were used to litigate the issues at each of the 250 plants covered by the decrees, it would take at that rate ten years to try just the liability issues. If after trial the back pay issues were referred to a special master for individualized computations, after giving consideration to various defenses, including lack of qualification, voluntary freezing, refusal to bid, and physical fitness, and if one hour were allotted each of 60,000 claimants, over twenty-eight years of trial time could be consumed. Brief for appellee steel companies at 11 n. 14.
* * * * * *
(footnote omitted). Cf. Miller v. Mackey International, Inc., 5 Cir. 1975, 515 F.2d 241, at p. 244 (F.R.Civ.P. 23(b)(3) class action; Bell, J., specially concurring; arguing for opt-in class actions when large numbers of putative members are involved).
1 CCH Emp. Prac. Guide ¶ 1680.02, at 1449 (1973) (emphasis added).
The legislative history of the 1972 amendments to Title VII leaves no doubt that persons who execute such conciliation agreements may not thereafter maintain lawsuits against respondents.
H.Rep.No.92-238, reporting H.R. 1746, 92d Cong., 2d Sess., 1972 U.S.Code Cong. & Admin.News, 2137, at 2148 (reporting § 715 of H.R. 1746). See also Leisner v. New York Tel. Co., S.D.N.Y.1973, 358 F.Supp. 359, 367.
505 F.2d at p. 65 (emphasis added). See also Pettway v. American Cast Iron Pipe Co., supra, 494 F.2d at 267 (Bell, J., specially concurring) (encouraging use of consent decrees to settle back pay claims); United States v. Georgia Power Co., N.D.Ga. Jan. 31, 1974, No. 12355, at 14 ("Amended and Final Decree" following our remand; employees must execute "general release" as condition of obtaining back pay in government pattern or practice suit; approved in Pettway, supra, 494 F.2d at 262 n. 152, 264 n. 156a).
The relatively small total membership (approximately 360) of those three classes made the reconstruction method feasible on an individualized basis by virtue of the court's assumption of blacks' equal fitness for promotion when competing with whites in the line, and devotion of each flow chart to a single LOP. With this group of blacks, but especially with a larger group, other methods of classwide distribution might have been used, see note 29, supra, but no one complained on appeal about the method selected by Judge Pointer. Interestingly, if the court had used a pro rata schedule, the average recovery per claimant—assuming some recovery by each claimant—would have been somewhat as follows: the Hardy class—154 blacks at $280 each; the McKinstry class—170 blacks at $270 each; the Ford class—35 blacks at $3,200 each. In summary, although precise comparison is impossible absent data on the numbers of class members who were hired after 1967 and are thus ineligible for back pay under the Consent Decree, it remains reasonably clear that of the three successful classes, only the smallest—the Ford group—benefitted on the average per claimant from contested litigation. Of course, since the decree does not offer settlement of back pay claims to post-1967 black male hires in the steel industry, the presence of such hires in the Fairfield private classes should cancel out for purposes of comparing per claimant average recoveries under both the Fairfield decree and the Consent Decree. In other words, the average recovery per eligible claimant still should be greater under the decree. If the fifty percent "future pay" increment used by Judge Pointer in Fairfield is factored out, then the difference increases accordingly.
455 F.2d at 109.
63 F.R.D. at 6. (footnotes omitted). This pronouncement, of which no one complains, came on the heels of a stipulation by all parties to the decrees that the district court "will have the full panoply of powers traditionally enjoyed by equity courts in enforcing consent decrees—powers which are substantial. See, e. g., United States v. Swift [& Co.], 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999, 1005 (1932); United States v. Armour & Co., 402 U.S. 672, 674-5, 91 S.Ct. 1752, 29 L.Ed.2d 256 and note two thereat, [402 U.S. 673, 675, 91 S.Ct. 1752, 1754 n. 2, 29 L.Ed.2d 256, 259 n. 2] (1971). . . ." The stipulation was precipitated by Judge Pointer's earlier indication in open court that he would not approve an agreement which restricted the judicial role to administration of a "dry trust arrangement." Appendix at 160. Nonetheless, in addition to joining the stipulation, each party to the decrees affirmatively disclaimed any desire to withdraw from the settlement.
Similarly, appellants are incorrect in contending that the court below lacked jurisdiction to approve the decrees. Appellants rely on an assumption that a federal court is without authority to enjoin the United States into performance of its promise in paragraph C, or to hold the government in contempt for failure to so perform. We need not decide this question, for the res judicata effect of paragraph C constitutes ample "case or controversy" consideration for the settlement. If appellants' point were some day sustained, then perhaps one could say that the defendants lost on part of the bargain (though no defendant suggests that it expects ever to seek an injunction or contempt order against the government). That, however, would not destroy nunc pro tunc the court's jurisdiction to enter the decrees. See notes 17 and 18, supra, and accompanying text.
Joinder of Persons Needed for Just Adjudication
Appendix at 168a.