Williamson v. Bethlehem Steel Corporation, 58

• Decision Date: 03 November 1972
• Docket Number: No. 58,Docket 72-1420.,58
• Citation: 468 F.2d 1201
• Parties: George H. WILLIAMSON, Jr., et al., Plaintiffs-Appellants, v. BETHLEHEM STEEL CORPORATION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

468 F.2d 1201 (1972)

George H. WILLIAMSON, Jr., et al., Plaintiffs-Appellants, v. BETHLEHEM STEEL CORPORATION et al., Defendants-Appellees.

No. 58, Docket 72-1420.

United States Court of Appeals, Second Circuit.

Argued September 29, 1972.

Decided November 3, 1972.

Russell Specter, Washington, D.C. (Paul J. Spiegelman, Washington, D.C., Richard Lipsitz and Carmin R. Putrino, Buffalo, N.Y., of counsel), for appellants.

Martin Slate, Washington, D.C., for Equal Employment Opportunity Commission, amicus curiae.

Ralph L. McAfee, New York City, for defendant-appellee Bethlehem Steel Corporation.

Michael H. Gottesman, Washington, D.C. (Thomas Krug, Buffalo, N. Y., of counsel), for Union defendants-appellees.

Before MANSFIELD, OAKES and TIMBERS, Circuit Judges.

OAKES, Circuit Judge:

Appellants are six black employees at appellee Bethlehem Steel Corporation's (hereinafter "Bethlehem") Lackawanna, New York, plant. All six have at least 15 years' seniority. They filed a motion below seeking a preliminary injunction against Bethlehem and the named appellee locals of the United Steelworkers (hereinafter collectively "the Union") enjoining the recall of laidoff employees on what they claim is a racially discriminatory basis. The complaint proper alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. as amended, 1972 U.S.Code Cong. & Admin.News, p. 814 et seq., and of the Civil Rights Act of 1866, 42 U.S.C. § 1981, in regard not only to layoff recalls but also to hiring, referral, transfer, assignment procedures, and advancement opportunities. The district court denied the appellants' motion for a preliminary injunction on the ground that in a previous case brought by the Attorney General against the defendants in this circuit, United States v. Bethlehem Steel Corp., 312 F.Supp. 977 (W.D.N.Y. 1970), modified, 446 F.2d 652 (2d Cir. 1971), the relief sought here was considered but not granted. We reverse and remand to the district court for findings and an order in accordance with this opinion.

The district court proceeded upon the erroneous assumption that it was bound as against these appellants by the modified order in the earlier Title VII case. That case involved seniority and transfer provisions of the collective bargaining agreements between Bethlehem and the Union which both the trial and appellate courts found discriminatory, one form of discrimination consisting of assignment in the past of black employees to 11 of the less desirable departments of the Lackawanna plant. The seniority system, based upon departmental rather than plantwide service, was found to have helped perpetuate the discrimination by "locking in" black employees to the less desirable departments and jobs. The question of recall from layoff was touched upon only to clarify that it was an issue which was not decided in that case. The Attorney General had originally urged that plant seniority be used "for all purposes," although the specific relief sought related only to retention of earlier pay rates and seniority carry-over for employees transferring from one department to another and then only in the situation of a vacancy occurring in the other department. In Bethlehem's and the Union's answering briefs on appeal they had urged that use of a plantwide seniority system would result in permitting laidoff black employees to move into jobs they had never held before the layoff ahead of both black and white employees who had held such jobs. Meeting this argument, the Government in its reply brief on appeal contended that the relief it sought related only to vacancies caused by death, retirement or transfer and that it would be acceptable if on recall after layoff "all employees shall assume the same positions relative to each other as they held immediately prior to the layoff." Reply Brief for the Appellant at 19, United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971). In other words, the Government expressly did not seek the very relief plaintiff-appellants seek here.

In the court's opinion Judge Feinberg noted that most of Bethlehem's and the Union's concerns over the effect of seniority carry-over could be "met by the carefully limited order suggested by the Government", 446 F.2d at 663, and, after noting the Government's suggested exception for recall after layoff, pointed out that the suggested exception would limit "the unsettling effects of seniority carryover during periods of layoff and recall." Id. at 664. The court's order adopted the Government's suggestion. Id. at 666. It is thus true as Judge Henderson said below that this court "considered" the question of recall after layoff, but only to point out that in accordance with the Government's "moderate" prayer for relief, id. at 659, the question was not in contention. Indeed, the United States, now acting through the Equal Employment Opportunity Commission ("EEOC") as amicus curiae, takes the position that this court should grant the relief the United States previously did not seek.¹ The EEOC goes on to point out that between 1968 and 1972 Bethlehem laid off about 50 per cent of its workers, so that arguably a change of circumstance has occurred since suit was first instituted by the Government and new relief is justified. We need not, however, rest our decision on that narrow ground.

For purposes of res judicata or collateral estoppel, the private citizens in this case are not bound by the Attorney General's action in the former case since they neither were parties to it, NLRB v. Lannom Manufacturing Co., 226 F.2d 194, 199 (6th Cir. 1955), rev'd on other grounds sub nom. Amalgamated Meat Cutters v. NLRB, 352 U.S. 153, 77 S.Ct. 159, 1 L.Ed.2d 207 (1956), nor have interests such as to be in privity with the Attorney General. Cf. Trbovich v. United Mine Workers, 404 U.S. 528, 538-39, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) (intervention by union members permitted in Labor-Management Reporting and Disclosure Act litigation brought by the Secretary of Labor). Therefore, the judgment in the previous case does not have conclusive force here. See Restatement of Judgments § 93 et seq. (1942); 1B J. Moore, Federal Practice ¶ 0.4111 (2d ed. 1965). See also Hartford Accident & Indemnity Co. v. Jasper, 144 F.2d 266, 267 (9th Cir. 1944).

Nor, for the reasons explained above — namely, that the Government did not seek relief in the case of recall after layoff — does the earlier decision bind us on the basis of stare decisis. O'Donoghue v. United States, 289 U.S. 516, 550, 53 S.Ct. 740, 77 L.Ed. 1356 (1933); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399-400, 5 L.Ed. 257 (1821); 1B J. Moore, supra at ¶ 0.4022.

Under Title VII since its inception, moreover, the individual has played a significant role in its enforcement. Jenkins v. United Gas Corp., 400 F.2d 28, 32 (5th Cir. 1968). This is equally true after the amendment of Title VII by the Equal Employment Opportunity Act of 1972, 1972 U.S.Code Cong. & Admin.News, p. 814 et seq. While the 1972 amendments authorize the Equal Employment Opportunity Commission to bring a Title VII suit in the name of the Government, individuals party to Commission conciliation proceedings in the same action may intervene in such suits, and in those brought by the Attorney General, id. § 706(f)(1), 1972 U.S.Code Cong. & Admin.News pp. 817-18,² and presumably individuals not party to the Commission proceedings may institute a suit despite any legal action taken by the Commission or the Attorney General.

The purpose of permitting the individual who has been discriminated against to seek relief where the Government has omitted to do so — possibly for reasons such as its lack of knowledge, legal strategy, or lack of enforcement staff — is plainly to make certain that the individual employee is protected. Indeed, in the case of the Bethlehem Lackawanna plant, when the Attorney General instituted the earlier case in 1967 only 3.8 per cent of the nation's workforce was unemployed. U.S. Bureau of Labor Statistics, Dep't of Labor, 19 Employment & Earnings 20 (Sept. 1972). The very first case involving the issue of discriminatory seniority and transfer systems was decided only in January of 1968. Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D.Va. 1968). The discriminatory impact of a departmental seniority recall system where there have been a multitude of layoffs may not have been foreseen by Government counsel in the earlier suit, especially where the Government was concerned with establishing a favorable precedent in the case of interdepartmental transfers. Thus, this case is one which properly seeks an extension of the relief sought and obtained in the earlier case. The individual plaintiffs, we hold, are entitled to bring it. This being true, we are required to reverse the decision below so that the trial court may proceed to the merits of the case.

We do not ourselves, however, grant the preliminary relief sought. True, the scope of relief to be afforded is "so far as possible, to eliminate the present effects of past discrimination", Long v. Georgia Kraft Co., 450 F.2d 557, 561 (5th Cir. 1971). Accord, Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 720-21 (7th Cir. 1969). True also, the court's powers under Title VII are "broad," Vogler v. McCarty, Inc., 451 F.2d 1236, 1238 (5th Cir. 1971), and, of course, include the power to grant preliminary relief. United States v. Hayes International Corp., 415 F.2d 1038, 1044-45 (5th Cir. 1969). Moreover, the findings of past discrimination by the district court in United States v. Bethlehem Steel Corp., supra, 312 F.Supp. 977, at 979-86, and the Bethlehem stipulation in the earlier case that until October 1, 1967, black employees were assigned on account of race to 11 of the 82 departments at the Lackawanna plant, in which the hottest, dirtiest and lowest-paying jobs were located, are together fairly conclusive of past discrimination here which cannot be frozen into...