limited to registering complaints in behalf of pregnant women employees against whom the union claimed AT&T had discriminatory policies as to maternity leaves. This issue as to pregnant women employees is either not significantly involved in the instant settlement, or if involved is at most minisculely related.
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.
HISTORY OF THE CASE
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.
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,
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.
The factual backdrop against which CWA's motion to intervene as a plaintiff must be viewed began almost three years ago on November 19, 1970, when AT&T filed with the FCC a revised tariff schedule providing for increases in rates for long distance message telephone service. (Transmittal No. 10989).
This increase was intended to raise AT&T's rate of return from 7.5 percent to 9.5 percent. Less than a month later, on December 10, 1970, EEOC filed a Petition to Intervene in the FCC proceedings, expressing its opposition to the rate increase request and alleging widespread racial and sex discrimination by AT&T. EEOC contended that the employment practices by AT&T violated Sections 201(b), 202(a), 214, 501 and 502 of the Communications Act of 1934, as amended; Sections 21.307 and 23.49 of the FCC's Rules and Regulations; Sections 703(a) and (d) of Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1866; the Equal Pay Act of 1963; Executive Order 11246; and the Fair Employment Practices Acts of numerous States and cities. Similar objections, in the forms of Petitions for Suspension of Rates, Hearing and Declaration of Unlawfulness, were raised by the National Association for the Advancement of Colored People (NAACP), National Organization for Women (NOW), the American Civil Liberties Union (ACLU), the California Rural Legal Assistance, Inc. (CLRA), the Mexican American Legal Defense Fund (MALD), and the American G I Forum.
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.
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."