EQUAL EMP. OPP. COM'N v. American Tel. & Tel. Co., Civ. A. No. 73-149.

• Decision Date: 15 September 1976
• Docket Number: Civ. A. No. 73-149.
• Citation: 419 F. Supp. 1022
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al. v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

419 F. Supp. 1022

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al. v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY et al.

Civ. A. No. 73-149.

United States District Court, E. D. Pennsylvania.

August 23, 1976.

As Amended September 15, 1976.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert E. J. Curran, U. S. Atty., Philadelphia, Pa., C. Daniel Karnes, Ethel Ollivierre, Equal Employment Opportunity Commission, Carin Ann Clauss, Karl W. Heckman, Dept. of Labor, James S. Angus, Terence G. Connor, Dept. of Justice, Washington, D. C., for plaintiffs.

Thompson Powers, Jane Lang McGrew, Washington, D. C., Kimber E. Vought, Bernard G. Segal, Philadelphia, Pa., for defendants.

Charles V. Koons, Matthew A. Kane, Washington, D. C., Richard H. Markowitz, Philadelphia, Pa., for Communications Workers of America, intervenor-defendant.

Elihu I. Leifer, Washington, D. C., Louis H. Wilderman, Philadelphia, Pa., for Telephone Coordinating Council TCC-1 and National Bell Council, International Brotherhood of Electrical Workers, intervenor-defendant.

Abraham Weiner, New York City, Ira I. Pechter, Philadelphia, Pa., for Alliance of Independent Telephone Unions, intervenor-defendant.

OPINION

HIGGINBOTHAM, District Judge.

I. INTRODUCTION

The instant matter involves a series of motions and petitions filed by the parties to this civil rights action, wherein those parties seek to modify or supplement a Consent Decree approved by this Court on January 18, 1973. The intervening defendants (hereinafter "Intervenors")—the Communications Workers of America (hereinafter "CWA"), the Telephone Coordinating Council TCC-1 (National Bell Council) of the International Brotherhood of Electrical Workers (hereinafter "IBEW"), and the Alliance of Independent Telephone Unions (hereinafter "Alliance")—have each petitioned this Court to modify the Consent Decree. In their respective petitions, one or more of the intervenors allege that the defendants' use, in purported compliance with the Consent Decree, of an affirmative action override to fill job vacancies in order to meet targets and goals for the employment of women and minorities violates the Consent Decree itself, the intervenors' collective bargaining agreements with the defendants, the requirements of applicable federal law and the Constitution of the United States. The intervenors also object to the use by defendants, pursuant to the decree, of an upgrading and transfer plan for the filling of job vacancies with defendant operating companies. Relying on some or all of these grounds, CWA has moved the Court to preliminarily enjoin the defendants from further use of the affirmative action override and IBEW has moved for summary judgment on the issues raised in its petition to modify.

The plaintiffs—the Equal Employment Opportunity Commission, the Secretary of Labor and the United States (hereinafter "Government plaintiffs")—and the defendants —the American Telephone and Telegraph Company and the operating companies of the Bell System (hereinafter "AT&T") — have jointly moved the Court to enter a Supplemental Order designed to correct deficiencies in the operating companies' 1973 and 1974 performance of their obligations under the Consent Decree. The Intervenors vigorously oppose the entry of this Supplemental Order, while the Government plaintiffs and AT&T have voiced equally strong objections to the Intervenors' proposed modifications of the Consent Decree.

After hearing extensive oral argument on the matter and after reviewing the voluminous pleadings and memoranda of law filed by the parties, documents that, after a while, enriched the photocopying industry far more than they enlightened the Court, I have concluded that the Government plaintiffs and AT&T should prevail. Accordingly, for reasons that will hereinafter appear, the Intervenors' petitions to modify the Consent Decree will be denied, IBEW's motion for summary judgment will be denied, and the joint motion of the government plaintiffs and AT&T for entry of the proposed Supplemental Order will be granted. Since my decision on the merits of the Intervenors' petitions to modify the Consent Decree effectively disposes of the issues raised in CWA's motion for a preliminary injunction, that motion will be dismissed as moot.

II. HISTORY OF THE CASE

The prior history of this civil rights action is set forth at some length in Equal Employment Opportunity Commission v. American Telephone and Telegraph Company, 365 F.Supp. 1105 (E.D.Pa.1973), and in Equal Employment Opportunity Commission v. American Telephone and Telegraph Company, 506 F.2d 735 (3d Cir. 1974), affirming in part and remanding in part 365 F.Supp. 1105 (E.D.Pa.1973). It would unnecessarily extend a rather lengthy opinion to recite that history in detail here. For present purposes, it suffices to say that in the course of proceedings before the Federal Communications Commission, wherein the instant defendants were charged with employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., under the Fair Labor Standards Act of 1938, as amended, the Equal Pay Act of 1963, 29 U.S.C. §§ 201 et seq., and under Executive Order No. 11246, the Government plaintiffs and AT&T embarked on settlement negotiations that resulted in a Memorandum of Agreement between the parties¹ and a Consent Decree which was approved by this Court on January 18, 1973. Shortly after the entry of the Consent Decree, CWA sought to intervene as a party plaintiff. On October 5, 1973, I denied CWA's motion generally, but did grant it restricted leave to intervene, pursuant to 42 U.S.C. § 2000e-5(f)(1), to litigate the rights of pregnant female employees of defendants. See 365 F.Supp. 1105 (E.D.Pa.1973). On appeal, the Court of Appeals affirmed my general dismissal of CWA as a party plaintiff, dismissed AT&T's appeal from the limited grant of intervention on the issue of maternity benefits for lack of jurisdiction, and granted CWA the right to intervene as a party defendant in order to seek modification of the Consent Decree insofar as the decree modifies or invalidates provisions of CWA's collective bargaining agreements with AT&T, and impairs or impedes CWA's ability to enforce or protect those provisions. 506 F.2d 735 (3d Cir. 1974). AT&T then renewed its motion to dismiss CWA as a party plaintiff, and I granted that motion in an unreported memorandum opinion and order filed July 3, 1975. In the meantime, CWA had sought and been granted leave to intervene as a party defendant. Doc. # 68, filed March 26, 1975. Subsequently, IBEW and the Alliance sought and were granted leave to intervene as parties defendant on the same basis that the Court of Appeals had permitted CWA to intervene, namely, to protect or enforce their collective bargaining agreements with the defendants. Doc. # 96, filed July 18, 1975. While these last two labor organizations were seeking to intervene, the Government plaintiffs and AT&T jointly filed with the Court an Interim Report listing the employment goals for minorities, women and white males set pursuant to the original Consent Decree and describing the problems encountered by AT&T's operating companies in their efforts to achieve those goals. At the same time, AT&T and the Government plaintiffs jointly moved the Court to enter a Supplemental Order, agreed to by both parties, which was designed to correct deficiencies in the 1973 and 1974 performance by the operating companies of their obligations under the original Decree. Doc. # 73, filed May 13, 1975. Simultaneously with their petitions to intervene, the Intervenors had also requested the Court to modify the Consent Decree. See Doc. # 65 (CWA), Doc. # 71 (IBEW), Doc. # 74 (Alliance). CWA additionally moved for a preliminary injunction to restrain the operation of the Consent Decree pending the disposition, on the merits, of its petition to modify the decree. See Doc. # 65. The case took a final procedural turn on June 30, 1975, when IBEW moved for summary judgment on the issues raised in its own petition to modify. See Doc. # 89. All of the issues raised in the various petitions and motions were extensively briefed by the parties, then were argued to the Court at great length on July 18, 1975. At oral argument, the Court sought the assistance of counsel on the question of the use by federal courts of "quota" remedies in recent employment discrimination cases. IBEW, the Government plaintiffs and AT&T responded with memoranda of law. See Docs. # # 99, 101, 102. While it is probably true that every federal trial judge is always in need of further enlightenment from counsel, it is difficult to imagine a case where the issues have been more thoroughly explored than here. The positions of the various parties are clear; the issues presented by these petitions and motions are surely ripe for decision.

One further comment on the nature of this litigation is appropriate. The instant case is unique. On the broader civil rights issued involved (exclusive of leaves to pregnant women, see 365 F.Supp. at 1126), there was no significant pending litigation in the federal courts when this consent decree was signed or during the critical years when the extensive negotiations that led to the decree took place. I have mentioned previously that CWA particularly had remained intentionally aloof while this critical $38 million settlement was being negotiated. 365 F.Supp. at 1109. Thus, I am not suggesting that a consent decree should never be modified so long as governmental plaintiffs and defendants have agreed to it. For there may be a time when a decree is on its face so grossly inadequate or basically unfair that modification is required. Accordingly, I am limiting my holdings to the facts of this case where, on the present record, I am confident that the modifications sought by the unions are neither required nor in accord with the law or ...