508 F.2d 152 (3rd Cir. 1975), 74-1815, Rodgers v. United States Steel Corp.

Docket Nº:74-1815, 74-1816 and 74-2063.
Citation:508 F.2d 152
Party Name:Jimmie L. RODGERS and John A. Turner, Appellants, v. UNITED STATES STEEL CORPORATION et al. (two cases). Jimmie L. RODGERS and John A. Turner, Petitioners, v. UNITED STATES STEEL CORPORATION et al. Honorable Hubert I. Teitelbaum, United States District Judge, NominalRespondent.
Case Date:January 24, 1975
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 152

508 F.2d 152 (3rd Cir. 1975)

Jimmie L. RODGERS and John A. Turner, Appellants,

v.

UNITED STATES STEEL CORPORATION et al. (two cases).

Jimmie L. RODGERS and John A. Turner, Petitioners,

v.

UNITED STATES STEEL CORPORATION et al.

Honorable Hubert I. Teitelbaum, United States District

Judge, NominalRespondent.

Nos. 74-1815, 74-1816 and 74-2063.

United States Court of Appeals, Third Circuit

January 24, 1975

        Argued Oct. 24, 1974.

         As Amended Feb. 21, 1975.

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        William T. Coleman, Jr., Dilworth, Paxson, Kalish, Levy & Coleman, Philadelphia, Pa., Bernard D. Marcus, Kaufman & Harris, Pittsburgh, Pa., Jack Greenberg, James M. Nabrit, III, Morris J. Baller, Barry L. Goldstein, Deborah M. Greenberg, Eric Schnapper, New York City, for appellants.

        Carl B. Frankel, Rudolph L. Milasich, Jr., Asst. Gen. Counsels, United Steelworkers of America, Pittsburgh, Pa., Michael H. Gottesman, Bredhoff, Cushman, Gottesman & Cohen, Washington, D.C., for United Steelworkers of America, AFL-CIO and its Local 1397; Bernard Kleiman, Kleiman, Cornfield & Feldman, Chicago, Ill., Leonard L. Scheinholtz, Walter P. DeForest, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., S. G. Clark, Jr., Pittsburgh, Pa., of counsel.

        On appeals from the United States District Court for the Western District of Pennsylvania and on Petition for Mandamus (D.C. Civil No. 71-793).

        Before KALODNER, GIBBONS and WEIS, Circuit Judges.

       OPINION

        GIBBONS, Circuit Judge.

        These consolidated cases, two appeals and a petition for mandamus, bring before us aspects of a rapidly developing problem area in the law respecting the administration and prosecution of class action litigation. The successful efforts of the Equal Employment Opportunity Commission in achieving massive industry-wide consent decrees has already resulted in a burgeoning number of cases in which labor unions have contended that the decrees have imposed obligations on employers inconsistent with those seniority and job bidding practices for which they had bargained. 1 In this instance, however, a civil rights organization representing the alleged victims of racial discrimination in the steel industry contends that a consent decree entered in another court is in fact nothing more than a 'sweetheart contract' which affords black workers too little relief and which, it argues, will have the practical effect of impeding its efforts to achieve more beneficial results through a class action instituted earlier in the Western District of Pennsylvania. This is because by the time the litigation has proceeded to judgment, many of the class members will have opted out in favor of the relief afforded by the consent decree. Unfortunately, the posture in which the cases are now before us does not permit this Court to contribute much, if anything, to the development of

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techniques for the balancing of the competing interests involved.

        Rodgers and Turner, the appellants in No. 74-1815 and No. 74-2063, and the petitioners in No. 74-1816, are black employees of the defendant United States Steel Corporation and members of the defendant Unions, Local 1397, United Steelworkers of America, and United Steelworkers of America, AFL-CIO. In August 1971 they commenced suit in the Western District of Pennsylvania under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. seeking injunctive relief and back pay to remedy racial discrimination at the Homestead Works of the United States Steel Corporation. 2 Rodgers and Turner sought to maintain the case as a class action pursuant to Rule 23(b)(2) Fed.R.Civ.P. on behalf of a class of more than 1200 black workers at that plant. The parties stipulated that for purposes of money liability the plaintiff class would be defined as all black persons who have been or would be employed at the Homestead Works at any time from August 24, 1971 until May 1, 1973 on jobs in the unit represented by Local 1397, while for purposes of injunctive relief the class would be defined as all such blacks who actually worked in the Homestead Works any time after August 24, 1971 on jobs in the unit represented by the Local. Armed with this stipulation, the plaintiffs moved on May 25, 1972 pursuant to Rule 23(c)(1), Fed.R.Civ.P. for the court to designate the action as a class action. Despite the stipulation as a class action. Despite the stipulation the court did not act on plaintiffs' motion. It was renewed on April 17, 1974. The renewed motion was prompted by the filing of two consent decrees on April 12, 1974, in the Northern District of Alabama which resulted from negotiations between the Equal Employment Opportunity Commission, the major steel companies and the United Steelworkers of America, AFL-CIO, the parent union of Local 1397. 3 Plaintiffs' moving papers disclosed that they objected to some of the terms of the consent decrees and that they intended to intervene in the Alabama action and oppose those terms. They also sought leave to send a notice of the pendency of the class action in the Western District of Pennsylvania informing potential class members of the nature of the relief sought and of their right to opt out pursuant to Rule 23(c)(2). At the same time, since the consent decree in the Alabama case provided for a back pay remedy for certain black employees in the steel industry, available only upon the signing of a release, they moved for a protective order preventing communication from the defendants to the stipulated potential class members in the instant lawsuit with respect to the Alabama consent decree.

        The Western District of Pennsylvania has adopted Local Rule 34 supplementing Rule 23 Fed.R.Civ.P., and providing in part: 4

        '(c) Within 90 days after the filing of a complaint in a class action, unless this period is extended on motion for good cause appearing, the plaintiff shall move for a determination under subdivision (c)(1) of Rule 23, Federal Rules of Civil Procedure, as to whether the case is to be maintained as a class action. In ruling upon such a motion, the Court may allow the action to be so maintained, may disallow and strike the class action allegations, or may order postponement of the determination pending discovery of such other preliminary procedures as appear to be appropriate and necessary in the circumstances. Whenever possible, where it is held that the determination should be postponed, a date will be fixed by the Court for renewal of the motion before the same judge.

        (d) No communication concerning such action shall be made in any way

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by any of the parties thereto, or by their counsel, with any potential or actual class member, who is not a formal party to the action, until such time as an order may be entered by the Court approving the communication.'

        At a hearing on September 29, 1973, on a motion by plaintiffs for leave to communicate with potential class members for discovery purposes, the court ruled that plaintiffs

        'can't contact people who are not named as parties until an order of Court. No person is to be contacted without my permission. As to the specific individual concerned after giving notice to the defendants who the individual is and what you expect to learn from him, then we can determine whether this is sufficient reason to change the general rule.

        The transcript of this conference will take the place of and will be considered the order of this Court . . ..' (Appendix at 85a).

        Thus, although Rodgers and Turner, or perhaps more precisely their attorneys, who are connected with the NAACP Legal Defense and Educational Fund, Inc., 5 had already prosecuted the Western District of Pennsylvania case for nearly three years, at the time the Alabama decree was filed they had not yet been able to communicate in any form with the stipulated potential class members. The Alabama decree provided for communication to those members, 6 and for the solicitation of releases in order to receive back pay. 7

        The renewed motion for class action determination came before the district court in Pennsylvania on April 24, 1974. At that hearing the defendants agreed that they would not make any written communication to the potential class members with respect to the back pay provisions of the Alabama consent decrees without first showing it to counsel for the plaintiffs. In addition, if counsel objected to its language, the defendants agreed to afford plaintiffs time to apply to the court for a protective order. Upon that agreement the motion for a protective order prohibiting the defendants from communicating with the potential class members was withdrawn without prejudice to its renewal. The renewed motion for class action determination and a class action notice was not acted upon. Thus, as of April 24, 1974, the defendants were free to communicate with potential class members concerning back pay provisions of the Alabama consent decrees if they first cleared the communication with the attorney for plaintiffs. However, plaintiffs were still subject to the strictures of the September 29, 1973 order and the prohibition in Local Rule 34(d).

        Plaintiffs moved to intervene in the Alabama action for the purpose of seeking to stay or vacate the consent decrees. The Alabama district court granted intervention but denied a stay and rejected their objections to the terms of the decree. 8 The plaintiffs appealed to the Fifth Circuit. That appeal is currently pending.

        On June 26, 1974 plaintiffs moved before the district court for leave to communicate with six named individual members of the potential class, and for permission for their counsel to meet with the Homestead Chapter of the NAACP. The moving papers...

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