Moten v. Bricklayers, Masons and Plasterers, Intern. Union of America

• Decision Date: 27 August 1976
• Docket Number: Nos. 74-1835,74-1837,s. 74-1835
• Citation: 177 U.S.App.D.C. 77,543 F.2d 224
• Parties: 17 Fair Empl.Prac.Cas. 537, 11 Empl. Prac. Dec. P 10,884, 177 U.S.App.D.C. 77 William E. MOTEN, Sr., et al. v. BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, et al. (two cases). Appeal of ANTHONY IZZO COMPANY, INC. Appeal of MASON CONTRACTORS ASSOCIATION OF THE DISTRICT OF COLUMBIA.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 224

543 F.2d 224

17 Fair Empl.Prac.Cas. 537,

11 Empl. Prac. Dec. P 10,884, 177 U.S.App.D.C. 77

William E. MOTEN, Sr., et al. v. BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION OF AMERICA, et al. (two cases) Appeal of ANTHONY IZZO COMPANY, INC Appeal of MASON CONTRACTORS ASSOCIATION OF THE DISTRICT OF COLUMBIA.

Nos. 74-1835, 74-1837.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 28, 1975.

Decided May 6, 1976.

On Motion to Tax Attorneys Fees Aug. 27, 1976.

John M. Bray, Washington, D. C., with whom Allen G. Siegel and Stanley J. Brown, Washington, D. C., were on the pleadings for appellant.

Gary D. Wilson, Washington, D. C., with whom Max O. Truitt, Jr., and Charles E. Hill, Washington, D. C., were on the pleadings for appellee Moten.

Laurence Gold, Washington, D. C., with whom J. Albert Woll and George Kauf mann, Washington, D. C., were on the pleadings for appellee Bricklayers International.

Before: TAMM, ^* LEVENTHAL and ROBINSON, Circuit Judges.

PER CURIAM:

These complex and tangled consolidated appeals arise from the approval by the District Court of a settlement in a class action under Title VII of the Civil Rights Act of 1964 ¹ to redress racial discrimination in the bricklaying industry in the Washington area. Work for bricklayers was divided jurisdictionally between commercial and residential jobs, with the latter being substantially lower paying. Two distinct local unions reflected this jurisdictional split. Local 1, which had jurisdiction over commercial work, was predominantly white, whereas Local 4, which had jurisdiction over residential work, had a membership which was predominantly black. It was alleged that the skills required for each work category were so sufficiently similar that the existence of two distinct locals was merely a vehicle for racial segregation and wages which differed essentially by race.

On May 10, 1971, Moten and others filed discrimination charges with the Equal Employment Opportunity Commission (EEOC), and after unsuccessful attempts at conciliation, suit was brought in the District Court. ² That suit was a class action maintained on behalf of all members of Local 4 against Local 1 and the Bricklayers International Union (International). Two years were consumed in discovery and plaintiffs' unsuccessful summary judgment motion. Just before a pretrial conference, the parties reached agreement in principle, and in due course a stipulation of settlement ³ was agreed upon. District Judge Aubrey E. Robinson preliminarily approved the agreement, and scheduled hearing for June 26, 1974, under Rule 23(e) of the Federal Rules of Civil Procedure. ⁴ The twenty-three page settlement document created an $80,000 back pay fund, designed to recompense those who suffered discrimination, based upon factors of race, years of membership and hours worked. The jurisdictional barrier was to be overcome by merger of the two locals into new Local 6, which was mandated to carry out a strong affirmative action program, setting forth employer-by-employer goals. ⁵

While construction industry employers had earlier not sought to participate in the intra-union squabbles, they argued vigorously at the settlement hearing that they should be party to any agreement, sensing that the substantial change about to be worked in the bricklaying industry was adverse to their interests. In fact, another (but overlapping) class of plaintiffs had brought suit against the chief employer, alleging racial discrimination, and seeking relief wholly apart from the reorganization of the unions. Charles H. Kimber, et al. v. Anthony Izzo Company, Inc. (D.D.C. No. 1337-73, filed July 3, 1973). Following the request of Anthony Izzo Company, Inc. (Izzo) to intervene in the intra-union suit as a party defendant, and to consolidate this case with Kimber, supra, the District Judge did allow Izzo to state its objections to the settlement. Izzo contended that alleged racial discrimination in the unions and by employers (which it said was at union insistence) ought not be treated piecemeal, and that therefore the settlement should not be permitted to go into effect, lacking, as it did, any employer input.

On June 28, 1974, the District Judge entered a final judgment approving the stipulation of settlement and dismissing the action with prejudice. ⁶ Izzo's motions to intervene and to consolidate were denied. The District Court retained jurisdiction to supervise the carrying out of its decision, and the new merged union, Local 6, has since come into being. The International has authorized distribution of the first $30,000 from the back pay fund, but these appeals have prevented completion of the back pay program. Moten further argues that during the pendency of this appeal, Local 6's affirmative action program is being undermined.

No. 74-1835 is the appeal taken by Izzo from the final judgment, challenging the denial of its motions to intervene and to consolidate, as well as attacking the approval of the settlement. The question presented can thus be stated: was Izzo entitled to intervention as of right under Rule 24(a), Federal Rules of Civil Procedure?

No. 74-1837 is the appeal taken by the Mason Contractors Association of the District of Columbia (Masons). While appearing at the hearing, this appellant never even sought to be made a party to the proceedings in the District Court. Masons likewise protest the failure to include employer views in the settlement.

I. MOTION TO DISMISS APPEAL IN NO. 74-1837

We reach first the motion by appellee Moten to dismiss the Masons' appeal in No. 74-1837. While Masons did file papers at the request of the District Court, and were represented by counsel during the Rule 23 hearing, there is no indication in the record that they ever sought intervention as a party, and in fact they stand in a relationship analogous to that of an amicus curiae. This court announced a clear and simple rule in United States v. Seigel, 83 U.S.App.D.C. 88, 168 F.2d 143, 144 (1948): "It has long been settled that one who is not a party to a record and judgment is not entitled to appeal therefrom." This rule has a long history of acceptance, Heilman v. Ginberg, 109 U.S.App.D.C. 105, 106, 284 F.2d 239, 240 (1960); United States v. McFaddin Express, Inc., 310 F.2d 799, 801 (2d Cir. 1962); First Iowa Hydro Electric Coop. v. Iowa-Illinois Gas & Electric Co., 245 F.2d 630, 631 (8th Cir. 1957), and cases in this Circuit permitting post-judgment intervention ⁷ should not be controlling where clear opportunity for pre-judgment intervention (a procedure not formally sought herein) was not taken. As amicus curiae may not appeal from a final judgment, the appeal of Masons must be dismissed for want of jurisdiction.

II. MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY

AFFIRMANCE IN NO. 74- 1835.

This appeal was taken by the Anthony Izzo Company from the District Court's final judgment. Izzo sought and was denied intervention, both permissive and as of right. Denial of intervention as of right is an appealable final order, ⁸ and we review that denial in the instant proceeding.

A. Timeliness of Intervention Sought

Intervention, whether of right or permissive, must be timely. If untimely, it must be denied. NAACP v. New York, 413 U.S. 345, 365-66, 93 S.Ct. 2591, 2602-2603, 37 L.Ed.2d 648, 662-663 (1973). Here Izzo moved in mid-1974 to intervene in a complex suit commenced in 1971 which had proceeded through difficulties to a stipulation of settlement preliminarily approved. However, time elapsed since the inception of the suit is but one factor to be considered. As in Hodgson v. United Mine Workers, 153 U.S.App.D.C. 407, 418, 473 F.2d 118, 129 (1972), we said,

the court should also look to the related circumstances, including the purpose for which intervention is sought, the necessity for intervention as a means of preserving the applicant's rights, and the improbability of prejudice to those already parties in the case. (footnotes omitted)

Here it appears that Izzo's decision not to seek intervention much earlier may have been an informed, tactical one in light of the parallel litigation. Not only had the Moten suit received substantial industry and public attention, but the Kimber suit against Izzo was ten months underway before intervention and consolidation were sought in Moten, and Izzo had not sought to implead the unions in Kimber either. ⁹ Izzo claims that the Kimber plaintiffs failed to give the District Court (and Izzo) notice that their suit was related to the on-going Moten suit. Under the facts of this case, Izzo's delay in intervening is not to be excused on the technical ground of failure of the Kimber plaintiffs to give such formal notice since Izzo did not claim and in all likelihood could not claim that it did not have actual notice. Moreover, it is not shown that any untimeliness must be overlooked to protect Izzo's rights. Izzo can be viewed as exposed to direct liability in the Kimber suit only, and should it lose there, the order sought by the plaintiffs therein (rather than the terms of settlement in Moten ) will likely govern Izzo's future dealings with Local 6.

The third branch of the Hodgson test is most significant as to Izzo. Any measure of timeliness of the motion to intervene must be cast against the backdrop of two years of controversy between the unions which now have reached settlement. The District Court would have been well within the bounds of appropriate judicial discretion had it chosen to deny intervention to avoid risk of the hard-won settlement package becoming undone.

While it thus appears likely from the record that Izzo's motion to intervene was untimely, the final judgment entered by the District Court does not recite the reasons for its denial. ¹⁰ and we proceed to rest our decision additionally upon the absence of a legally sufficient intervention interest.

B. Intervention Interest: Direct

Rule 24(a)(2) of the Federal Rules...