ON APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA AND ON PETITION FOR MANDAMUS (D.C. Civil No. 71-793). (D.C. Civil No. 71-793).
Kalodner, Gibbons and Weis, Circuit Judges. Weis, Circuit Judge, Concurring.
These consolidated cases, two appeals and a petition for mandamus, bring before us aspects of a rapidly developing problem area in the law respecting the administration and prosecution of class action litigation. The successful efforts of the Equal Employment Opportunity Commission in achieving massive industry-wide consent decrees has already resulted in a burgeoning number of cases in which labor unions have contended that the decrees have imposed obligations on employers inconsistent with those seniority and job bidding practices for which they had bargained.*fn1 In this instance, however, a civil rights organization representing the alleged victims of racial discrimination in the steel industry contends that a consent decree entered in another court is in fact nothing more than a "sweetheart contract" which affords black workers too little relief and which, it argues, will have the practical effect of impeding its efforts to achieve more beneficial results through a class action instituted earlier in the Western District of Pennsylvania. This is because by the time the litigation has proceeded to judgment, many of the class members will have opted out in favor of the relief afforded by the consent decree. Unfortunately, the posture in which the cases are now before us does not permit this Court to contribute much, if anything, to the development of techniques for the balancing of the competing interests involved.
Rodgers and Turner, the appellants in No. 74-1815 and No. 74-2063, and the petitioners in No. 74-1816, are black employees of the defendant United States Steel Corporation and members of the defendant Unions, Local 1397, United Steelworkers of America, and United Steelworkers of America, AFL-CIO. In August 1971 they commenced suit in the Western District of Pennsylvania under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. seeking injunctive relief and back pay to remedy racial discrimination at the Homestead Works of the United States Steel Corporation.*fn2 Rodgers and Turner sought to maintain the case as a class action pursuant to Rule 23(b)(2) Fed. R. Civ. P. on behalf of a class of more than 1200 black workers at that plant. The parties stipulated that for purposes of money liability the plaintiff class would be defined as all black persons who have been or would be employed at the Homestead Works at any time from August 24, 1971 until May 1, 1973 on jobs in the unit represented by Local 1397, while for purposes of injunctive relief the class would be defined as all such blacks who actually worked in the Homestead Works any time after August 24, 1971 on jobs in the unit represented by the Local. Armed with this stipulation, the plaintiffs moved on May 25, 1972 pursuant to Rule 23(c)(1), Fed. R. Civ. P. for the court to designate the action as a class action. Despite the stipulation the court did not act on plaintiffs' motion. It was renewed on April 17, 1974. The renewed motion was prompted by the filing of two consent decrees on April 12, 1974, in the Northern District of Alabama which resulted from negotiations between the Equal Employment Opportunity Commission, the major steel companies and the United Steelworkers of America, AFL-CIO, the parent union of Local 1397.*fn3 Plaintiffs' moving papers disclosed that they objected to some of the terms of the consent decrees and that they intended to intervene in the Alabama action and oppose those terms. They also sought leave to send a notice of the pendency of the class action in the Western District of Pennsylvania informing potential class members of the nature of the relief sought and of their right to opt out pursuant to Rule 23(c)(2). At the same time, since the consent decree in the Alabama case provided for a back pay remedy for certain black employees in the steel industry, available only upon the signing of a release, they moved for a protective order preventing communication from the defendants to the stipulated potential class members in the instant lawsuit with respect to the Alabama consent decree.
The Western District of Pennsylvania has adopted Local Rule 34 supplementing Rule 23 Fed. R. Civ. P., and providing in part:*fn4
"(c) Within 90 days after the filing of a complaint in a class action, unless this period is extended on motion for good cause appearing, the plaintiff shall move for a determination under subdivision (c)(1) of Rule 23, Federal Rules of Civil Procedure, as to whether the case is to be maintained as a class action. In ruling upon such a motion, the Court may allow the action to be so maintained, may disallow and strike the class action allegations, or may order postponement of the determination pending discovery of such other preliminary procedures as appear to be appropriate and necessary in the circumstances. Whenever possible, where it is held that the determination should be postponed, a date will be fixed by the Court for renewal of the motion before the same judge.
(d) No communication concerning such action shall be made in any way by any of the parties thereto, or by their counsel, with any potential or actual class member, who is not a formal party to the action, until such time as an order may be entered by the Court approving the communication."
At a hearing on September 29, 1973, on a motion by plaintiffs for leave to communicate with potential class members for discovery purposes, the court ruled that plaintiffs
"can't contact people who are not named as parties until an order of Court. No person is to be contacted without my permission. As to the specific individual concerned after giving notice to the defendants who the individual is and what you expect to learn from him, then we can determine whether this is sufficient reason to change the general rule.
The transcript of this conference will take the place of and will be considered the order of this Court . . . ." (Appendix at 85a).
Thus, although Rodgers and Turner, or perhaps more precisely their attorneys, who are connected with the NAACP Legal Defense and Educational Fund, Inc.,*fn5 had already prosecuted the Western District of Pennsylvania case for nearly three years, at the time the Alabama decree was filed they had not yet been able to communicate in any form with the stipulated potential class members. The Alabama decree provided for communication to those members,*fn6 and for the solicitation of releases in order to receive back pay.*fn7
The renewed motion for class action determination came before the district court in Pennsylvania on April 24, 1974. At that hearing the defendants agreed that they would not make any written communication to the potential class members with respect to the back pay provisions of the Alabama consent decrees without first showing it to counsel for the plaintiffs. In addition, if counsel objected to its language, the defendants agreed to afford plaintiffs time to apply to the court for a protective order. Upon that agreement the motion for a protective order prohibiting the defendants from communicating with the potential class members was withdrawn without prejudice to its renewal. The renewed motion for class action determination and a class action notice was not acted upon. Thus, as of April 24, 1974, the defendants were free to communicate with potential class members concerning back pay provisions of the Alabama consent decrees if they first cleared the communication with the attorney for plaintiffs. However, plaintiffs were still subject to the strictures of the September 29, 1973 order and the prohibition in Local Rule 34(d).
Plaintiffs moved to intervene in the Alabama action for the purpose of seeking to stay or vacate the consent decrees. The Alabama district court granted intervention but denied a stay and rejected their objections to the terms of the decree.*fn8 The plaintiffs appealed to the Fifth Circuit. That appeal is currently pending.
On June 26, 1974 plaintiffs moved before the district court for leave to communicate with six named individual members of the potential class, and for permission for their counsel to meet with the Homestead Chapter of the NAACP. The moving papers explained that two of the six had communicated with Mrs. Elizabeth Smith, Assistant Labor Director of the National Association for the Advancement of Colored People in New York, requesting information and assistance with respect to their claims of employment discrimination at the Homestead Works, and that she had referred them to the Legal Defense Fund attorneys. The Homestead Chapter of the NAACP had independently invited counsel to attend a chapter meeting and discuss the subject of discrimination at the Homestead Works. In support of their motion, the plaintiffs contended that the September 29, 1973 order and Local Rule 34(d), as construed by the district court, violated constitutionally protected rights of speech and association. At the same time the plaintiffs renewed their motion for permission to communicate with potential class members. They also made a motion to compel answers to interrogatories and for production of documents. At a hearing on these motions on June 27, 1974 the court, without a written order, specifically forbade the plaintiffs' attorneys from attending a meeting of the Homestead Chapter NAACP, scheduled for July 7. It reserved decision on the communication motions pending briefing of the first amendment issues. It ruled on the discovery motions that all discovery would be stayed until January 15, 1975, stating:
"THE COURT: There is not the slightest possibility of getting this action disposed of here, anyway, by that time [January 15, 1975] because of our commitments. Class actions by their nature are drawn out types of procedures. Therefore, to have six months to find out the effect of that [Alabama] decree doesn't seem to me to be unreasonable.
MR. MARCUS: Are we ordered not to continue discovery until January 15th?
THE COURT: That is what I said. If we find there is a legitimate contention that we ought to have a class action, we will permit you to make that discovery." (Appendix at 188a-89a).
No written order was made either with respect to the July 7th NAACP chapter meeting, or with respect to the staying of discovery. The plaintiffs thereafter moved that the court enter a written order with respect to these rulings and make a certification pursuant to 28 U.S.C. § 1292(b) so that they could pursue an interlocutory appeal.
On July 19 the court orally ruled on the pending motions:
"THE COURT: Now, as to the motions to certify questions to the Court of Appeals, in the exercise of what I consider to be sound discretion, that is denied.
As to the motion to communicate with the NAACP, that is denied at this time without prejudice to renewal of that motion at a time which would appear to be more appropriate to me.
Now, as to the motion to communicate with individuals who have requested that they discuss matters with counsel, that motion is granted. However, the previous order forbidding solicitation and requiring prior Court approval of all communications with any other individuals is left intact. You may talk to those six individuals, but you may not solicit anybody else, nor may you make any communications with anybody else except pursuant to Court approval." (Appendix at 259a-60a).
At this same hearing, the attorneys for the defendants called to the court's attention the fact that only two of the six persons supposedly seeking advice had spoken directly to Mrs. Smith at the NAACP's New York office. The court ruled that the attorneys could speak to the other four only if they obtained affidavits from them (or any other ...