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October 5, 1973


Higginbotham J.

The opinion of the court was delivered by: HIGGINBOTHAM



 Presently before the Court is a union's petition -- Communications Workers of America (CWA) -- challenging the implementation of the largest and most impressive civil rights settlement in the history of this nation. This monumental settlement was hammered out through the mutual, tenacious and lengthy efforts of the Equal Employment Opportunities Commission (EEOC), the United States Department of Labor, the United States Department of Justice, International Brotherhood of Electrical Workers (IBEW), and American Telephone and Telegraph Company (AT&T). *fn1"

 This settlement is not the typical innocuous Consent Decree replete with pious platitudes that merely imply the parties promise not to discriminate again. Instead, this Consent Decree goes to the very heart of the system -- money, goals, timetables, affirmative action programs, employee information programs, compliance monitoring, pay adjustments, new transfers and immediate promotion options. *fn2" Estimates of this landmark settlement are conservatively projected to cost AT&T $38,000,000 -- $15,000,000 allocated as back wages to the victims of AT&T's purported discriminatory employment practices, and the remaining $23,000,000 to be expended for additional benefits created by the Decree. *fn3"

 The parties labored long and arduously for almost two years to work out this Decree. In December 1970, the EEOC initiated administrative litigation before the Federal Communications Commission (FCC). Thereafter more than sixty days of hearings were conducted, entailing 150 witnesses, hundreds of exhibits and a record in excess of 8,000 pages.

 While these efforts were being made to deal with the fundamentals of discrimination, CWA remained persistently aloof until two or three days before the Decree was signed. The aloofness was wilful and by choice, for CWA had been asked to participate in the negotiations leading to the Consent Decree, but it had steadfastly refused to become involved on any of the policy issues. *fn4"

 Yet now CWA seeks to intervene as a plaintiff in this action pursuant to Rule 24 (a) of the Federal Rules of Civil Procedure *fn5" and to deny enforcement of the Consent Decree until it can reach an independent agreement with the company on issues affecting wages, hours and conditions of employment. CWA would, furthermore, want to enjoin AT&T from enforcing the provisions of the Consent Decree should such implementation deviate in any way from the practices and procedures in operation under existing collective bargaining agreements negotiated with CWA. Thus, in not too subtle language, CWA seeks to delay the disbursement of $38,000,000 in funds and the implementation of thousands of new opportunities. CWA desires to stop these parties from correcting the deprivations which were sanctioned or tolerated during much of CWA's past association with AT&T.

 Predicating its motion for intervention upon its status as the certified or recognized collective bargaining representative for approximately 600,000 non-management employees *fn6" of the named defendants, CWA asserts that it is a "person aggrieved" and thus under 42 U.S.C.A. § 2000e-5(f) (1) *fn7" it has a statutorily conferred right to intervene unconditionally in this matter. Alternatively, CWA contends that none of the named parties in this suit adequately protect the interest of the union and consequently without intervention CWA's interest, as the exclusive bargaining agent for the aforementioned members and employees, would be substantially impaired and significantly undermined.

 Despite the greatness of our country for many of its noble accomplishments, this nation, like most others, has also tragically failed, until most recently, to assure substantially equal options for women, blacks and many other groups. Where for two years CWA has been begged to enter the administrative arena to negotiate and litigate for the rights of those members who have presumably endured deprivations by reason of their sex or race, should CWA now be able to delay even for one hour the implementation of those rights which the union has consistently abdicated from pressing through the federal administrative options available? While I applaud the union's concern about the rights of pregnant women, its efforts in behalf of pregnant women is no basis to deprive the non-pregnant from having their rights protected. Since the non-pregnant have waited far too long for even a modest implementation of equal employment opportunities, I hold that on the facts of this record CWA cannot impede the enforcement of this very settlement for which it previously refused to seek or litigate.

 I am not oblivious to the union's concern and sensitivity about maternity benefits for its female members. The union will be granted leave to intervene in this action to litigate the rights of pregnant female employees of AT&T, but such intervention will not operate to stay in any way the enforcement and implementation of the other provisions of the Consent Decree. Under the facts of this case and in view of the ample safeguards enunciated in the Consent Decree, CWA's motion for intervention as a matter of right is DENIED, except for the limited intervention granted pursuant to 42 U.S.C.A. § 2000e-5(f) (1).

 When deciding this issue we are approaching uncharted seas without clear markings as to the rights of intervention. Thus in making this ruling I am not attempting to spell out for all time to come any definitive guidelines as to the right to intervene for those factual milieus which are significantly different than the present record. My holding must be limited to the unique facts of the instant litigation history, with consideration given to the extraordinary efforts which were made for almost two years to get CWA to act with the EEOC to participate in the administrative process.



 A. Preliminary Overview.

 Any exposition of the legal questions herein posited will be more clearly illuminated and enhanced when the chronology of events preceding this litigation is recited and the Court's rulings today are placed in a proper factual, as well as legal, perspective.

 The CWA advances arguments of its purported desire now (at this late date) to participate in the formulation, fashioning and effectuation of remedies which would bring AT&T and its subsidiary companies into complete compliance with the relevant federal statutes. These arguments, though vigorously pressed, are in no slight degree belied and negatived by its past conduct and actions. As the facts are divulged one gleans from the record that the soundness of CWA's legal position, as respects the timely intervention under Rule 24 (a) (2), cannot entirely be divorced and isolated from the union's consistent refusals to participate actively and to become involved extensively in the lengthy negotiations of the various Government officials and AT&T culminating in this historic civil rights settlement on January 18, 1973.

  As the record conclusively establishes and as was previously noted at the outset, notwithstanding the repeated pleas, communicated by EEOC and other agencies, imploring CWA to undertake a more aggressive role during the two years of administrative litigation, it was not until January 16, 1973, two days before the entry of the Consent Decree that CWA manifested any indication that it might be abandoning its announced policy of non-intervention. In a letter of that date from Joseph A. Beirne, President of CWA, to Rex R. Reed, Vice-President, Labor Relations for AT&T, CWA demanded "immediate negotiations to commence at the American Telephone and Telegraph level" with regard to such matters as a transfer plan program, the job bidding and posting program and the promotional pay plan program, all items which had been subjects of the Government sessions. *fn8" Actually, it can be more correctly observed that CWA's demand for immediate negotiations with AT&T is also consonant with a finding of CWA's continuing preference for non-intervention in the Government proceedings. From the general tenor of the January 16th letter, it was demonstrably evident that CWA preferred to maintain its status as the exclusive bargaining agent for the employees of AT&T, and would rather stand off from the multi-party negotiations including governmental agencies as well as AT&T. Yet, apparently CWA does not now feel that its motion to intervene as a plaintiff should be rendered suspect or its ability to reach satisfactory agreements with AT&T will be impeded and hampered even though EEOC, the Department of Labor and the Department of Justice are also plaintiffs in this action.

 Equally important, the wording of the Consent Decree and the Memorandum of Agreement makes it indisputably obvious that CWA's rights were not infringed and in fact were more than adequately protected. The union's right to negotiate alternatives which are in full compliance with the applicable federal statutes is categorically preserved. Consistent with and in furtherance of this position AT&T is legally obligated to bargain in good faith with CWA and to endeavour to consider legally acceptable alternatives. Moreover, while there may have been some unilateral revisions of CWA's current contracts, *fn9" the changes were essential in order to rectify violations by AT&T of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended; and Executive Order 11246, 30 Fed. Reg. 12319, as amended.

 B. The FCC Litigation and Related Developments.

 In its Memorandum Opinion and Order of January 21, 1971, the FCC outlined and commented on its rules and regulations which demonstrated its long-standing concern that the communications common carriers adhere to a policy of non-discrimination. But it remarked in paragraph 8 of its Memorandum Opinion that:

". . . [No] showing has been made as to any logical or functional relationship between rate levels and the company's policies and practices in the matter of equal employment opportunity. The EEOC has claimed, in Appendix A to its petition, that Section 202(a) of the Communications Act of 1934, as amended, 47 U.S.C. 202(a), prohibits, 'on its face ', employment discrimination by a carrier. We do not agree. The language in Section 202(a) is designed to protect the users of telecommunications services against discriminatory rates; it does not apply to the employees of a carrier except insofar as they may be discriminated against through rates and charges as users of the system. *fn11"
Accordingly, we feel that the petitions by the EEOC and others raising the issues of discriminatory employment practices should not be introduced in the subject rate hearing referred to above."

 Nevertheless, the FCC concluded that the charges of the intervenors were not frivolous and should not go unheeded:

"9. We reaffirm our position that in divorcing these claims from the subject rate proceeding we are not intimating that they are without merit. On the contrary, we feel that the claims made by the EEOC and the other aforementioned organizations raise serious questions under those provisions of our rules requiring common carriers to show nondiscrimination in their hiring and employment policies. Accordingly, as we have already mentioned in our decision in Docket No. 19129 we are setting this matter down for a separate hearing to allow us to determine the outstanding questions of law and fact. We are including an issue herein as to whether and in what manner any of the alleged practices, if proved, affect revenues, expenses, and rates of AT&T. At the same time we are retaining jurisdiction in our proceeding in Docket No. 19129 to enable us to take any conclusions we may reach on the subject into account before finally disposing of the issues raised therein. Such procedures are designed to afford the petitioners full opportunity to make any relevant showing while at the same time ensuring due and orderly dispatch of our responsibilities to all interested parties."

 The issues to be examined specifically in the separate FCC proceeding were:

"(A) Whether the existing employment practices of AT&T tend to impede equal employment opportunities in AT&T and its operating companies? Contrary to other purposes and requirements of the Commission's Rules and the Civil Rights Act of 1964.
"(B) Whether AT&T has failed to inaugurate and maintain specific programs, pursuant to Commission Rules and Regulations, insuring against discriminatory practices in the recruiting, selection, hiring, placement and promotion of its employees?
"(C) Whether AT&T has engaged in pervasive, system-wide discrimination against women, Negroes, Spanish-surnamed Americans, and other minorities in its employment policies?
"(D) Whether any of the employment practices of AT&T, if found to be discriminatory, affect the rates charged by that company for its services, and if so, in what ways is this reflected in the present structure?
"(E) To determine, in light of the evidence adduced pursuant to the foregoing issues, what order, or requirements, if any, should be adopted by the Commission?" *fn12"

 CWA intentionally mislabels and mischaracterizes the proceedings arising out of FCC Docket No. 19143 as being essentially a rate case. *fn13" This mischaracterization by CWA is urged on the Court notwithstanding the separate FCC designation of Docket No. 19143 for scrutiny of the discrimination claims against AT&T. Such a distorted reading by CWA of the FCC Memorandum Opinion does not comport with the actual facts as I perceive them. *fn14"

 During March 1971, David Copus, the EEOC attorney who spearheaded and coordinated the administrative litigation against AT&T, contacted CWA relative to intervention in the FCC proceedings. Once again, CWA stated it would not participate formally. Copus, however, did maintain additional conversations with CWA between March, 1971 and December, 1971, pertaining to the transfer and promotion policies of AT&T and what modifications might be necessary for compliance with Title VII. During this period Copus associated with Charles McDonald, an administrative assistant to CWA's President, in preparing a questionnaire to be sent by the CWA to a random sample of union members recently employed at AT&T. The questionnaire was mailed by CWA in October, 1971 and the results were tabulated by the CWA for EEOC. In November, 1971 McDonald also agreed to testify for EEOC in FCC Docket No. 19143 as to the results of the questionnaire.

 On December 14, 1971, CWA's President wrote a letter to Robert D. Lilley, President of AT&T, noting his concern particularly about sex discrimination by AT&T and suggesting that they "begin discussions on this vital matter promptly." *fn16" Rex R. Reed, Vice-President, Labor Relations for AT&T, replied to this letter on January 24, 1972, acknowledging AT&T's willingness to explore the subject further. While informal meetings occurred between AT&T and CWA over the next year and although AT&T continually apprised and updated CWA regarding the former's progress with EEOC, as was previously mentioned, it was not until January 16, 1973, that CWA insisted that immediate negotiations be initiated at the AT&T level.

 Between August 11, 1971, and January 25, 1972, settlement discussions of EEOC and AT&T failed to resolve satisfactorily the employment discrimination questions and the FCC adversary hearing in Docket No. 19143 began officially on January 31, 1973. The proceedings, which extended over a year, involved approximately 60 days of hearings, the testimony of about 150 witnesses, the introduction into evidence of over 200 exhibits, and a record of about 8,100 pages.

 While the foregoing hearings were being conducted, Copus (EEOC) met with Richard Hackler (an assistant to the President of CWA) on May 11, 1972, to discuss the impact AT&T's proposed Model Affirmative Action Program and Upgrade and Transfer Plan would have on CWA's collective bargaining agreements. EEOC disclosed then that it regarded the proposals by AT&T as having their shortcomings and being inadequate. CWA reaffirmed its earlier position that it did not wish to participate formally in FCC Docket No. 19143 and that any proposed changes by AT&T relative to CWA's contracts would have to be "grieved and arbitrated." Further, CWA was not willing to submit any substantive proposals which EEOC could analyze as alternatives.

 On September 15, 1972, Copus conferred with Leonard Sprague, Chairman of the Negotiation Committee for the Boston unit of IBEW, about the above proposals submitted by AT&T and their effect on IBEW's collective bargaining agreements with New England Telephone and Telegraph Company. IBEW subsequently filed a motion with FCC to intervene as a plaintiff in Docket No. 19143, which motion was granted on October 17, 1972.

 On September 20, 1972, the General Services Administration (GSA), acting as the contract compliance agency enforcing Executive Order 11246 (and Revised Order No. 4 of the Office of Federal Contract Compliance), approved, with some modifications, AT&T's Model Affirmative Action Program and Upgrade and Transfer Plan. However, on September 28, 1972, Philip J. Davis, Acting Director of the Office of Federal Contract Compliance (OFCC), the agency within the United States Department of Labor which is charged with administering the Executive Order 11246 contract compliance program, notified an official of GSA that, pursuant to OFCC regulations 41 CFR 60-1.25, the OFCC was assuming jurisdiction of the matter involving AT&T and its operating companies' compliance with Executive Order 11246, as amended, and the Order's implementing rules and regulations including 41 CFR Part 60-2. On the same date, Mr. Davis also advised AT&T that in addition to the assumption of jurisdiction, OFCC's preliminary review indicated that the Affirmative Action Program submitted by AT&T to GSA did not appear to conform with the requirements of 4l CFR Part 60-2.

 On October 6, 1972, Copus met again with Sprague and other IBEW representatives. At that time, a written proposal prepared by IBEW was considered, which, as applied to New England Telephone and Telegraph Company, would modify AT&T's proposals. EEOC, too, informed IBEW that the relief the former sought in FCC Docket No. 19143 exceeded that which was initially sanctioned by GSA on September 20, 1972, but since rejected and countermanded by OFCC.

 After thoroughly reviewing the GSA-approved Agreement and Affirmative Action Program, William J. Kilberg, Associate Solicitor for Labor Relations and Civil Rights, United States Department of Labor, met on October 10, 19 and 24, 1972, with representatives of the Division of Fair Labor Standards of the Solicitor's Office, U.S. Department of Labor, which has the responsibility for enforcing the Equal Pay Act of 1963, and representatives of EEOC to discuss the issues surrounding the compliance posture of AT&T and the Bell Telephone System with Title VII of the Civil Rights Act of 1964; the Equal Pay Act of 1963 and Executive Order 11246. *fn17"

 On October 17, 1972, Copus received a letter from AT&T requesting that negotiations to settle Docket No. 19143 be resumed. On the same day, he telephoned John Morgan, an assistant to Joseph Beirne, and informed him that further negotiations with AT&T were imminent and that these negotiations would concern modification of the Bell Telephone System plans approved by GSA on September 20, 1972. By letter dated October 17, 1972, a copy of a document drafted by Copus entitled "EEOC Analysis of Bell System Plans Approved by GSA" was transmitted to Mr. Morgan.

 During the telephone conversation between Messrs. Morgan and Copus on October 17, 1972, discussions centered on how the EEOC's views as to remedy would require revision of both the GSA plan and the current Bell System transfer and promotion practices, including those contained in agreements with the CWA. Mr. Morgan was additionally informed that the IBEW had petitioned the FCC to intervene in Docket No. 19143 and had submitted a written proposal to modify the Bell System Model Plans as they affected New England Telephone and Telegraph Company. Mr. Morgan ...

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