629 F.2d 248 (3rd Cir. 1980), 79-1507, Glus v. G. C. Murphy Co.

Docket Nº:AFL-CIO, Appellant in No. 79-1507.
Citation:629 F.2d 248
Party Name:Dec. P 31,062 Joanne GLUS, Kathleen Swanson, Louise Zyla, Constance Simm, Mary A. Geissler, Lois Ann Podbesek, Joan E. Hornfeck, Maxine Bray, Joanne L. Romesburg, Mary Kahler, Stella Walny, Carlene M. Falco, Bernice M. Shrum, Sandra K. Evans, Rose Marie Adamcik, Alicia A. Ukasik, Karen L. Rossason, Virginia Anderson, Donna Craig v. The G. C. MURPHY
Case Date:June 27, 1980
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 248

629 F.2d 248 (3rd Cir. 1980)

Dec. P 31,062

Joanne GLUS, Kathleen Swanson, Louise Zyla, Constance Simm,

Mary A. Geissler, Lois Ann Podbesek, Joan E. Hornfeck,

Maxine Bray, Joanne L. Romesburg, Mary Kahler, Stella Walny,

Carlene M. Falco, Bernice M. Shrum, Sandra K. Evans, Rose

Marie Adamcik, Alicia A. Ukasik, Karen L. Rossason, Virginia

Anderson, Donna Craig

v.

The G. C. MURPHY COMPANY, Retail, Wholesale and Department

Store Union, Local #940 and International Union of

Wholesale and Department Store Union, AFL-CIO,

G. C. Murphy Company, Appellant in No. 79-1508,

International Union of Wholesale and Department Store Union,

AFL-CIO, Appellant in No. 79-1507.

Nos. 79-1507, 79-1508.

United States Court of Appeals, Third Circuit

June 27, 1980

Argued Nov. 15, 1979.

Certiorari Denied Nov. 3, 1980.

See 101 S.Ct. 351.

Page 249

[Copyrighted Material Omitted]

Page 250

Robert H. Stevenson (argued), Anderson, Moreland & Bush, Pittsburgh, Pa., for The G. C. Murphy Co.

Joseph Mark Maurizi (argued), Balzarani, Walsh & Maurizi, Pittsburgh, Pa., Robert Markewich, Markewich, Rosenhaus, Markewich & Freidman, New York City, for Intern. Union of Wholesale and Department Store Union, AFL-CIO.

Before GIBBONS, HIGGINBOTHAM and SLOVITER, Circuit Judges.

OPINION

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

The International Union of Wholesale and Department Store Union, AFL-CIO (the International) appeals for a second time from an order of the district court which holds it liable in contribution to The G. C. Murphy Company (Murphy) for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17 (Title VII). Murphy cross-appeals challenging the district court's calculations of the International's liability. We agree with the district court that Murphy has a right of contribution. We will affirm.

I.

These appeals arise out of a class action brought in 1971 on behalf of all females employed by The G. C. Murphy Company from July 1965 to January 1971. The plaintiffs in that action named as defendants Murphy; the International; the Retail, Wholesale and Department Store Union, Local 940 (Local 940); and Teamster's Local 249 (Local 249), the successor collective-bargaining agent of Local 940. They alleged, inter alia, that Murphy and the unions had violated Title VII and the Equal Pay Act of 1963, 29 U.S.C. § 206, by agreeing to and maintaining a collective-bargaining agreement that provided for separate job classifications, pay scales, and seniority systems for male and female employees.

After the filing of answers, Murphy filed a cross-claim against the unions in which it asserted that the unions were solely liable for the discrimination complained of and that if Murphy was found liable, it had a right of contribution against the unions. Prior to trial a settlement was reached by Murphy and the plaintiff class. The settlement was approved by the district court. It provided for the payment of $548,000 in damages and $100,000 in attorneys' fees. The payment was to be made in three installments with six percent interest on the deferred payments; $100,000 of the $548,000 was allocated to the Equal Pay Act charge.

Murphy continued to press for contribution from the unions and eventually settled with Local 940 for $4,146, the total amount in Local 940's treasury. Trial proceeded on

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Murphy's claim against the International and Local 249. The district court concluded that Murphy and the defendant unions had violated Title VII and that they were equally liable for the discrimination and thus equally responsible for the financial loss of the plaintiffs. After dividing the damages, the court entered judgment against the International in the amount of $242,337. Glus v. G. C. Murphy Co., Civ. No. 71-264 (W.D.Pa. Apr. 29, 1976), reprinted in Joint Appendix at 124a-78a (hereinafter Glus I ).

The International appealed from that judgment asserting that the district court did not have jurisdiction over it under Title VII because the International had not been named in the complaint filed by the plaintiffs with the Equal Employment Opportunity Commission (EEOC). It also asserted that no right of contribution could be claimed for violations of Title VII or the Equal Pay Act. In the first appeal we held that Murphy had no right of contribution under the Equal Pay Act, Denicola v. G. C. Murphy Co., 562 F.2d 889 (3d Cir. 1977), but remanded for further proceedings on the issue of whether the district court had jurisdiction under Title VII. Glus v. G. C. Murphy Co., 562 F.2d 880 (3d Cir. 1977). On remand the district court found that the plaintiff had not named the International in the EEOC complaint but that the omission did not result in an absence of jurisdiction. Glus v. G. C. Murphy Co., Civ. No. 71-264 (W.D.Pa. Feb. 14, 1979), reprinted in Joint Appendix at 833a-40a (hereinafter Glus II ). The International appeals for a second time challenging the district court's conclusions on jurisdiction and challenging the district court's earlier decision on the right of contribution. Murphy cross-appeals arguing that the district court did not properly calculate the amount due under the right of contribution.

II. Title VII Jurisdiction

In the first appeal we enumerated four factors that should be considered in determining whether the district court had jurisdiction under Title VII. They were:

1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named (party) are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.

562 F.2d at 888. This four-prong test is not a mechanical one; no single factor is decisive. Instead each factor should be evaluated in light of the statutory purposes of Title VII and the interests of both parties. The district court applied these factors and concluded that it had jurisdiction. We agree.

The interests of Local 940, which was named in the EEOC complaint, and the International are identical in all significant aspects, and thus the International was not harmed by its absence from the EEOC proceedings. Their liability arises from their participation in the same collective-bargaining agreements. The International was the sole union signatory to the collective-bargaining agreement for a portion of the period where discrimination was found to have taken place; later both the International and Local 940 signed the agreements. The International's representative was the chief union negotiator at many of the negotiation sessions. The International's interests were vigorously litigated by Local 940 at the EEOC proceedings. Local 940 stood firm in its denial of liability. Further, both the International and Local 940 were represented by the same attorney, Emil E. Narick, Esq., in the district court proceeding until Murphy filed its claim for contribution.

The plaintiffs' interests were not harmed by the International's absence in the EEOC process. If a settlement had been reached during the EEOC proceeding, complete relief

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could have been obtained from the defendants then present. We also note the finding of the district court that the close relationship between the International and Local 940 could have led the plaintiff to reasonably assume that the interests of both unions were to be represented by Local 940. Glus II, App., at 838a-39a. Finally, we agree with the district court that the conciliation process was not rendered less effective because of the absence of the International. The settlement agreement was not reached until the federal court action had begun, at which time the International was a party to the litigation.

We will therefore affirm the district court's decision on the jurisdictional issue. 1

III. Right to Contribution

In its cross-claim Murphy requested contribution for what it asserted was the International's share of the damages Murphy had paid in the settlement agreement. By its express terms Title VII does not provide for a right of contribution. Murphy asserts that nevertheless a right of contribution exists in the federal common law arising from Title VII. It is to this claim that we now turn.

A.

At the outset we note our disagreement with the International and the dissent that no right of contribution exists in the federal common law because there is an "established rule that contribution would not be implied in the absence of a statutory provision." At 267. Initially most American courts held that there was no right of contribution under the common law, relying on the English decision Merryweather v. Nixan, 8 Term R. 186, 101 Eng.Rep. 1337 (K.B.1799). See, e. g., Union Stock Yards Co. v. Chicago, Burlington, & Quincy Railroad Co., 196 U.S. 217, 25 S.Ct. 226, 49 L.Ed. 453 (1905). This prohibition resulted from the belief that a wrongdoer should not be able to shift the responsibility of his actions to the shoulders of another. The rule prohibiting contribution has come into disrepute. It is now widely recognized that fundamental fairness demands a sharing of the liability. Without a right of contribution a wrongdoer may escape liability for his actions because of the happenstance of the plaintiff's choice of defendants. See Prosser, The Law of Torts, § 50 (4th ed. 1971). See also Sellers, Contribution in Antitrust Damage Actions, 24 Vill.L.Rev. 829, 855-63 (1979) (reviewing state law...

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