The opinion of the court was delivered by: HIGGINBOTHAM
The instant matter involves a series of motions and petitions filed by the parties to this civil rights action, wherein those parties seek to modify or supplement a Consent Decree approved by this Court on January 18, 1973. The intervening defendants (hereinafter "Intervenors") -- the Communications Workers of America (hereinafter "CWA"), the Telephone Coordinating Council TCC-1 (National Bell Council) of the International Brotherhood of Electrical Workers (hereinafter "IBEW"), and the Alliance of Independent Telephone Unions (hereinafter "Alliance") -- have each petitioned this Court to modify the Consent Decree. In their respective petitions, one or more of the intervenors allege that the defendants' use, in purported compliance with the Consent Decree, of an affirmative action override to fill job vacancies in order to meet targets and goals for the employment of women and minorities violates the Consent Decree itself, the intervenors' collective bargaining agreements with the defendants, the requirements of applicable federal law and the Constitution of the United States. The intervenors also object to the use by defendants, pursuant to the decree, of an upgrading and transfer plan for the filling of job vacancies with defendant operating companies. Relying on some or all of these grounds, CWA has moved the Court to preliminarily enjoin the defendants from further use of the affirmative action override and IBEW has moved for summary judgment on the issues raised in its petition to modify.
The plaintiffs -- the Equal Employment Opportunity Commission, the Secretary of Labor and the United States (hereinafter "Government plaintiffs") -- and the defendants -- the American Telephone and Telegraph Company and the operating companies of the Bell System (hereinafter "AT&T") -- have jointly moved the Court to enter a Supplemental Order designed to correct deficiencies in the operating companies' 1973 and 1974 performance of their obligations under the Consent Decree. The Intervenors vigorously oppose the entry of this Supplemental Order, while the Government plaintiffs and AT&T have voiced equally strong objections to the Intervenors' proposed modifications of the Consent Decree.
After hearing extensive oral argument on the matter and after reviewing the voluminous pleadings and memoranda of law filed by the parties, documents that, after a while, enriched the photocopying industry far more than they enlightened the Court, I have concluded that the Government plaintiffs and AT&T should prevail. Accordingly, for reasons that will hereinafter appear, the Intervenors' petitions to modify the Consent Decree will be denied, IBEW's motion for summary judgment will be denied, and the joint motion of the government plaintiffs and AT&T for entry of the proposed Supplemental Order will be granted. Since my decision on the merits of the Intervenors' petitions to modify the Consent Decree effectively disposes of the issues raised in CWA's motion for a preliminary injunction, that motion will be dismissed as moot.
The prior history of this civil rights action is set forth at some length in Equal Employment Opportunity Commission v. American Telephone and Telegraph Company, 365 F. Supp. 1105 (E.D. Pa. 1973), and in Equal Employment Opportunity Commission v. American Telephone and Telegraph Company, 506 F.2d 735 (3d Cir. 1974), affirming in part and remanding in part 365 F. Supp. 1105 (E.D. Pa. 1973). It would unnecessarily extend a rather lengthy opinion to recite that history in detail here. For present purposes, it suffices to say that in the course of proceedings before the Federal Communications Commission, wherein the instant defendants were charged with employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., under the Fair Labor Standards Act of 1938, as amended, the Equal Pay Act of 1963, 29 U.S.C. §§ 201 et seq., and under Executive Order No. 11246, the Government plaintiffs and AT&T embarked on settlement negotiations that resulted in a Memorandum of Agreement between the parties
and a Consent Decree which was approved by this Court on January 18, 1973. Shortly after the entry of the Consent Decree, CWA sought to intervene as a party plaintiff. On October 5, 1973, I denied CWA's motion generally, but did grant it restricted leave to intervene, pursuant to 42 U.S.C. § 2000e-5(f)(1), to litigate the rights of pregnant female employees of defendants. See 365 F. Supp. 1105 (E.D. Pa. 1973). On appeal, the Court of Appeals affirmed my general dismissal of CWA as a party plaintiff, dismissed AT&T's appeal from the limited grant of intervention on the issue of maternity benefits for lack of jurisdiction, and granted CWA the right to intervene as a party defendant in order to seek modification of the Consent Decree insofar as the decree modifies or invalidates provisions of CWA's collective bargaining agreements with AT&T, and impairs or impedes CWA's ability to enforce or protect those provisions. 506 F.2d 735 (3d Cir. 1974). AT&T then renewed its motion to dismiss CWA as a party plaintiff, and I granted that motion in an unreported memorandum opinion and order filed July 3, 1975. In the meantime, CWA had sought and been granted leave to intervene as a party defendant. Doc. #68, filed March 26, 1975. Subsequently, IBEW and the Alliance sought and were granted leave to intervene as parties defendant on the same basis that the Court of Appeals had permitted CWA to intervene, namely, to protect or enforce their collective bargaining agreements with the defendants. Doc. #96, filed July 18, 1975. While these last two labor organizations were seeking to intervene, the Government plaintiffs and AT&T jointly filed with the Court an Interim Report listing the employment goals for minorities, women and white males set pursuant to the original Consent Decree and describing the problems encountered by AT&T's operating companies in their efforts to achieve those goals. At the same time, AT&T and the Government plaintiffs jointly moved the Court to enter a Supplemental Order, agreed to by both parties, which was designed to correct deficiencies in the 1973 and 1974 performance by the operating companies of their obligations under the original Decree. Doc. #73, filed May 13, 1975. Simultaneously with their petitions to intervene, the Intervenors had also requested the Court to modify the Consent Decree. See Doc. #65 (CWA), Doc. #71 (IBEW), Doc. #74 (Alliance). CWA additionally moved for a preliminary injunction to restrain the operation of the Consent Decree pending the disposition, on the merits, of its petition to modify the decree. See Doc. #65. The case took a final procedural turn on June 30, 1975, when IBEW moved for summary judgment on the issues raised in its own petition to modify. See Doc. #89. All of the issues raised in the various petitions and motions were extensively briefed by the parties, then were argued to the Court at great length on July 18, 1975. At oral argument, the Court sought the assistance of counsel on the question of the use by federal courts of "quota" remedies in recent employment discrimination cases. IBEW, the Government plaintiffs and AT&T responded with memoranda of law. See Docs. ##99, 101, 102. While it is probably true that every federal trial judge is always in need of further enlightenment from counsel, it is difficult to imagine a case where the issues have been more thoroughly explored than here. The positions of the various parties are clear; the issues presented by these petitions and motions are surely ripe for decision.
One further comment on the nature of this litigation is appropriate. The instant case is unique. On the broader civil rights issued involved (exclusive of leaves to pregnant women, see 365 F. Supp. at 1126), there was no significant pending litigation in the federal courts when this consent decree was signed or during the critical years when the extensive negotiations that led to the decree took place. I have mentioned previously that CWA particularly had remained intentionally aloof while this critical $38 million settlement was being negotiated. 365 F. Supp. at 1109. Thus, I am not suggesting that a consent decree should never be modified so long as governmental plaintiffs and defendants have agreed to it. For there may be a time when a decree is on its face so grossly inadequate or basically unfair that modification is required. Accordingly, I am limiting my holdings to the facts of this case where, on the present record, I am confident that the modifications sought by the unions are neither required nor in accord with the law or the rationale of Title VII.
THE CLAIMS OF THE PARTIES
In the interest of clarity, it seems advisable to review seriatim and in some detail the claims of the various parties and their respective requests for relief. Without such a review, I suspect that the remainder of this opinion would be largely unintelligible.
CWA is the collective bargaining representative for approximately 600,000 non-management employees of AT&T and its subsidiary operating companies, and is a party to collective bargaining agreements with all but three of the defendant companies.
CWA alleges that these collective bargaining agreements deal with numerous conditions of employment that have been and are directly affected by the Memorandum of Agreement entered into by the plaintiffs and the defendants on January 18, 1973,
and by the Consent Decree entered by this Court in this action on the same date. It further alleges that the defendants, acting under color of that Decree, have violated CWA's rights under those collective bargaining agreements and the past practices of the parties to those agreements, and have violated Part B, Section II, Paragraph D of the Consent Decree itself. Specifically, CWA charges that the defendants have (1) instituted transfer and promotion policies that disregard the seniority of employees CWA represents, and thus have violated the defendants' contractual obligations to these employees, as well as Part A, Section III of the Consent Decree and § 703(h) of the Civil Rights Act of 1964; (2) preferentially promoted and transferred employees solely on the basis of race or sex, thus violating both the defendants' contractual obligations and, since this preferential treatment was not required by the Consent Decree, Title VII of the Civil Rights Act of 1964 as well; (3) denied promotion and transfer opportunities to employees with seniority while hiring persons never previously employed by the defendants, thus violating the defendants' collective bargaining agreements with CWA, the spirit and intent of the Consent Decree, and the requirements of law; (4) limited the number of applications an individual employee may file for transfer or promotion, thus violating the past practices of the parties, their contractual obligations, and the spirit and intent of the Consent Decree; (5) limited the departments or geographical areas from which employees may transfer to other departments or geographical areas; (6) imposed time-in-title requirements
upon the eligibility of employees for promotion, said requirements being more restrictive than the parties' past practices or their contractual obligations, and thus violating Part A, Section III, Paragraph D of the Consent Decree; and (7) imposed testing requirements upon the rights of employees to seek promotion. In its prayer for relief, CWA seeks a temporary injunction restraining the defendants from deviating, in their transfer and promotion policies, from their collective bargaining agreements or the past practices of the parties to those agreements, and further requests that the Consent Decree of January 18, 1973 be specifically modified to (1) require the defendants aggressively to recruit females and minorities for entry-level jobs in which females and minorities are currently under-utilized; (2) restrain the defendants from limiting the number of transfer requests an individual employee may file; (3) restrain the defendants from establishing departmental or geographical limits on transfer or promotion opportunities that are less than coextensive with the relevant bargaining unit; (4) provide for the selection of applicants for a vacancy, whether transfer or promotion, on the basis of Bell System net credited service, so long as the applicants are basically qualified for the position they seek, and provide further that maternity leave be treated as any other temporary disability in the computation of net credited service; (5) restrain the defendants from imposing time-in-title requirements on applicants for transfer or promotion; (6) restrain the defendants from disqualifying from transfer or promotion otherwise qualified applicants for a vacancy because the applicants failed a qualification test within the Bell System; (7) require the defendants to develop and implement, in conjunction with the intervenors, Bell System-wide transfer procedures; and (8) provide that in arbitration proceedings where an arbitrator decides that an alleged conflict between a collective bargaining agreement and the defendants' obligations under a statute, administrative order or court decree is non-existent, the provisions of the collective bargaining agreement shall control.
The Telephone Coordinating Council TCC-1 (National Bell Council), IBEW (herein called "IBEW") is an unincorporated association composed exclusively of those IBEW local unions which are the collective bargaining representatives of approximately 70,000 non-management employees of certain defendant operating companies of AT&T.
In support of its petition to modify the Consent Decree, IBEW alleges that these local unions are parties to collective bargaining agreements with the aforementioned operating companies; that several of these agreements establish seniority as a factor to be considered in the filling of job vacancies by transfer and promotion; that these seniority provisions were neither designed nor intended to disguise discriminatory practices; that portions of the Consent Decree require that, in certain circumstances, job vacancies be filled without regard to seniority; that job vacancies have been filled by the application of this "seniority override" and will continue to be filled by it so long as the Consent Decree remains in effect; that the application of the seniority override may result, and has resulted, in the selection of candidates for job vacancies who have never been discriminated against by the defendants; that such selections will continue so long as the Consent Decree remains in effect; that the use of this seniority override directly conflicts with the collective bargaining agreements mentioned above and with the past practice of the parties under those agreements and changes the terms and conditions of employment of the members of the local unions without the latter's agreement; that the portions of the Consent Decree requiring the use of the seniority override violate the Fifth and Fourteenth Amendments to the Constitution of the United States, Title VII of the Civil Rights Act of 1964, Executive Order No. 11246, the regulations under that order, and the National Labor Relations Act; that the increased utilization of minorities and women in jobs with the operating companies where they are presently under-utilized could be achieved by other affirmative action programs that do not require a seniority override; that certain designations and determinations contained in the Consent Decree directly affect the extent to which the seniority override has been, and will be used;
that these designations and determinations are deficient in rational justification and factual foundation, and resulted from an inadequate procedure; that the application of the seniority override, insofar as it is based upon them, therefore violates the Fifth and Fourteenth Amendments, Title VII, and Executive Order No. 11246 and its accompanying regulations; that the government plaintiffs and AT&T, by applying the seniority override within a one-year time frame, have violated Title VII, and Executive Order No. 11246 and its accompanying regulations; that the Consent Decree established in the defendant operating companies an upgrading and transfer plan for, among other purposes, the filling of vacancies; that this plan was not agreed to by the local IBEW unions, was not required by Title VII or by Executive Order 11246 or its accompanying regulations, and is not the only procedural device for the filling of vacancies which satisfies the requirements of applicable federal law; that the choice of such a procedural device for the filling of vacancies is a proper subject for collective bargaining; and that the Consent Decree, because it incorporated without union approval the aforementioned upgrading and transfer plan, unnecessarily conflicts with employee rights secured under the National Labor Relations Act.
In the prayer for relief of its initial petition, IBEW specifically asks this Court to (1) set aside those portions of the Consent Decree which require or allow the filling of job vacancies in IBEW's Bell System bargaining units on the basis of race, sex or national origin, whether in disregard of seniority standards or not; (2) prohibit any future filling of job vacancies in its Bell System bargaining units on the basis of race, sex or national origin, whether in disregard of seniority standards or not; (3) set aside those portions of the Consent Decree which require or allow the defendants to use an upgrading and transfer plan for the filling of job vacancies in IBEW's Bell System bargaining units where the defendants had not previously used such a plan; and (4) insofar as the upgrading and transfer plan is set aside by this Court, direct the appropriate representatives of defendants to negotiate with IBEW representatives the adoption of an alternate device for the filling of vacancies that would comply with the requirements of Title VII and Executive Order No. 11246.
3. The Claims of the Alliance of Independent Telephone Unions
In its petition to modify and to supplement the Consent Decree, the Alliance alleges that it is a federation of labor organizations which are the collective bargaining representatives of approximately 60,000 non-management employees of certain Bell System operating companies,
that these labor organizations are parties to collective bargaining agreements with the aforementioned operating companies, and that certain provisions of those collective bargaining agreements are directly affected by the January 18, 1973 Memorandum of Agreement between the government plaintiffs and AT&T and by the Consent Decree entered by this Court on the same day. The Alliance further alleges that the defendant operating companies, purportedly acting pursuant to the terms of the Consent Decree, have violated their collective bargaining agreements with the Alliance's member organizations, the established past practices of the parties to those agreements, and Part B, Section II, Paragraph D of the Consent Decree. Specifically, the Alliance charges that: (1) the operating companies have instituted promotion and transfer policies that disregard the seniority of employees represented by the Alliance's members, thus violating the relevant collective bargaining agreements, Part A, Section III of the Consent Decree, and § 703(h) of the Civil Rights Act of 1964; (2) the operating companies have preferentially treated employees in promotions and transfers solely on the basis of race and sex and without regard to seniority, thus violating the relevant collective bargaining agreements in circumstances not required by the Consent Decree, and violating Title VII of the Civil Rights Act of 1964 as well; (3) the operating companies have filled vacancies with new hires rather than through the promotion or transfer of employees with seniority and the requisite ability, in violation of the relevant collective bargaining agreements, of past practices under those agreements, of the spirit and intent of the Consent Decree, and of the requirements of law; (4) the operating companies have limited the number of transfer or promotion applications an individual may file, thus violating established past practices under the relevant collective bargaining agreements, the agreements themselves, and the spirit and intent of the Consent Decree; (5) the operating companies have placed departmental and geographical limits on transfers and promotions; (6) the operating companies have set up time-in-title requirements for promotion that are more restrictive than the provisions of the relevant collective bargaining agreements and the past practices of the parties under those agreements, and that violate Part A, Section III, Paragraph D of the Consent Decree; and (7) the operating companies have imposed testing requirements for promotion, many of which bear little or no relationship to the promotion sought. The Alliance contends that all of those actions violate the spirit and intent of the Consent Decree and are required neither by the Decree nor by applicable federal law, and that the same actions violate both the relevant collective bargaining agreements between the parties and the past practices of the parties under those agreements. According to the Alliance, a number of its member organizations have diligently defended their contractual rights by filing grievances, by demanding arbitration, and by encouraging adversely affected employees to file complaints with the EEOC. To acquiesce in the aforementioned actions of the operating companies, says the Alliance, would breach the duty of fair representation it owes to its members, would constitute a failure to enforce the anti-discrimination provisions of its collective bargaining agreements, and would leave it vulnerable to charges that it had actively participated in or passively accepted discriminatory practices that violate federal law.
In its prayer for relief, the Alliance asks that the Consent Decree be modified to provide that: (1) transfers and promotions by the operating companies be made in accordance with the relevant collective bargaining agreements and the past practices of the parties under those agreements, and without granting preferential treatment to any individual or group on the basis of their race, color, religion, sex or national origin; (2) maternity leave be treated like any other absence for temporary disability in the computation of seniority under those collective bargaining agreements and under the employee benefit plans of the operating companies; (3) the Decree not be construed to demand the imposition of time-in-title requirements for transfer and promotion; and (4) no employee of the operating companies be disqualified from transfer or promotion for failure to pass a Bell System Qualification Test that is not directly related to the job for which transfer or promotion is sought.
4. The Claims of the Government Plaintiffs and AT&T
In support of their joint motion to enter the proposed Supplemental Order, the Government plaintiffs and AT&T filed an Interim Report on the implementation of the Consent Decree. The report states that, after the entry of the decree, the plaintiffs established a Government Co-ordinating Committee (GCC), AT&T enlarged its Human Resources Development Department (HRD), and the GCC and the HRD worked together to assure defendants' compliance with the decree. The report further states that while numerous problems were encountered in 1973, in particular the development of a suitable compliance procedure, the defendant operating companies made substantial progress in fulfilling their obligations under the decree. Nevertheless, the GCC determined that, on the basis of reports submitted to it and of its own on-site reviews, many of the operating companies had not met their intermediate targets for the placement of members of previously under-utilized groups. The GCC attributed these deficiencies to (1) ineffective management control of the program in some operating companies; (2) initially inefficient monitoring procedures; (3) insufficient use by the defendants of the affirmative action override,
(4) inadequate recruitment efforts among previously under-utilized groups; and (5) the failure to adopt the alternate selection procedures where test disqualifications of job applicants from under-utilized minority groups had made it more difficult to meet intermediate employment targets for such groups.
During discussions with the defendants of methods to improve on their 1973 performance, the GCC reviewed their compliance with the decree in 1974 and found it significantly improved, 90% of the 1974 intermediate targets having been achieved by the defendant operating companies. The GCC therefore concluded that no on-site reviews were required to monitor the defendants' 1974 performance. The Government plaintiffs and AT&T then agreed upon a supplemental action program in which target performances for 1973, 1974 and part of 1975 would be aggregated.
This supplemental action program included two adjustments in 1973 target performance. Given the unanticipated difficulties encountered by the operating companies in placing women in outside craft jobs, the parties agreed that performance for such placements would be evaluated on the basis of the acknowledged good faith efforts made by certain operating companies to achieve those targets. The parties also agreed that in the present state of the economy an affirmative action program should not provide a disproportionate number of job opportunities to individuals who are not members of minority groups. The 1973 and 1974 targets in certain job classifications were therefore adjusted to provide comparable opportunities for both minority and non-minority employees and applicants.
At the close of this Interim Report, the government plaintiffs and AT&T jointly moved the Court to enter the proposed Supplemental Order pursuant to its retained jurisdiction under Part B, Section IV, Paragraph A of the Consent Decree.
B. The Proposed Supplemental Order
The Proposed Supplemental Order (hereinafter "PSO") includes carry forward provisions to correct previous deficiencies; provisions for financial compensation to specific individuals and for financial contributions by the defendants to a Bell System Affirmative Action Fund, along with examples of the projects to which the fund may be applied; provisions to compensate for test disqualifications of otherwise qualified candidates for job opportunities; an articulation of the affirmative action override, of the situations in which the defendants shall employ it, and of the steps to be taken if the override is modified in any way by the courts; provisions stating the effect of the PSO, including its impact on any Bell Company's collective bargaining agreements; provisions for the determination of compliance with the PSO; provisions setting forth procedures for compliance with the PSO; provisions for record-keeping by the defendants and for their reporting to the Government plaintiffs under the Consent Decree and the PSO; and, finally, a provision setting forth the effective term of the PSO. The PSO also incorporates three appendices: Appendix A sets forth the operating companies' deficiencies for 1973 and 1974, and the method by which the deficiencies were determined; Appendix B lists the actions the operating companies must take in order to comply with their obligation to make good faith efforts to place women in certain non-traditional jobs; Appendix C is a letter, dated May 6, 1975, from the Government plaintiffs to the defendants, describing the operation of the affirmative action override and stating that its use is required by federal law and that it prevails over any conflicting provision of a Bell System collective bargaining agreement.
For purposes of the petitions and motions presently before the Court, the most important provisions of the PSO are Part I, the carry forward procedure, and Part IV, the affirmative action override. Part I.A provides for the proration by job classification of 1973 deficiencies in performance to establishments that were themselves deficient in placing members of protected race, sex, and ethnic groups in the appropriate job classifications during 1973. Part I.B, insofar as it concerns us here, spells out a placement procedure for non-management employees and applicants in job classifications 5-15 for those establishments that did not meet their 1973 targets. Under this procedure, employees or applicants from deficient groups will receive priority in placement if they had on file in 1973 an application for employment, upgrade or transfer for the same job title they now seek,
if they have not yet received an offer of employment in response to that application and are currently available for employment or assignment, and if they are qualified for the job that is open.
Part I.B of the PSO states further that in any calendar quarter where the process of priority placement described above fills less than 50% of the deficiencies in a particular establishment's deficient (classifications), additional qualified employees or applicants from the deficient (groups) will receive priority placement until the total number of priority placements equals 50% of the deficiencies at the start of the quarter or 50% of the projected job opportunities for the quarter, or until the deficient group achieves its ultimate employment goal under the decree. Should deficiencies continue in a particular establishment where the pools of qualified employees or applicants from deficient groups identified above have been exhausted, each race, sex or ethnic group that is still deficient will share proportionately in the remaining job opportunities, subject to certain limitations not relevant here. Part I.B additionally provides for the termination of the carry forward procedure when a formerly deficient group reaches ultimate goal, and directs the operating companies to notify the Government plaintiffs whenever, in a particular calendar quarter, placements to groups at ultimate goal exceed one-third of the placements in a job classification with deficiencies. Part I.C. of the PSO directs all defendants with carry forward obligations to make all placements in accordance with the Part I.B procedures. Where there are no deficiencies or where they have been eliminated, the defendants must make placements in accordance with goals II percentage allocations. Part I.D of the PSO directs operating companies to make all placements for a specified time period -- from shortly after the entry of the PSO until the effective date of the carry forward procedures -- from deficient groups, to the extent that qualified members of those groups are available or until the deficiencies are eliminated. Finally, Part I.E of the PSO provides that an operating company which has, for two consecutive calendar quarters, made more than one-third of its placements in a particular job classification to groups at ultimate goal may petition the Government plaintiffs and, eventually, this Court for a reduction of the remaining deficiencies in that job classification.
Part IV of the PSO sets forth the affirmative action override. In pertinent part, it provides that, while contractual criteria for the selection of candidates for promotion remain generally in effect, "to the extent any Bell System operating company is unable to meet its intermediate targets in job classifications 5 - 15 using these criteria, the Decree requires that . . . selections be made from among any at least basically qualified candidates for promotion and hiring of the group or groups for which the target is not being met and in accordance with any applicable selection criteria in a collective bargaining agreement or pursuant to Bell System operating company practices as among such candidates."
THE MERITS OF THE PETITIONS TO MODIFY OR SUPPLEMENT THE CONSENT DECREE
A. Preliminary Considerations
1. Promotions and Seniority
in the Bell System.
While I fully realize the importance of seniority to union members, privileges based upon it have not yet acquired the status of constitutional rights. An examination of Bell System employment practices makes this abundantly clear. In the Bell System, management makes all the hiring decisions, Affidavit of Richard W. Hackler, Doc. #88, para. 10, and AT&T's overriding policy has traditionally been that "management retains the prerogative to transfer and promote consistent with the needs of the business." Id., para. 4. Thus, in the relevant collective bargaining agreements, there is no absolute entitlement based on seniority. See Affidavit of Oliver R. Taylor, Doc. #86, Appendix VI, para. 4. Seniority is one, but not the only, consideration in transfers and promotions; it usually functions as "a method of selecting between candidates of equal or approximately equal qualifications." Hackler Affidavit, Doc. #88, para. 4. More specifically, the role of seniority in filling vacancies in Bell System operating companies is as follows:
"Among employees competing for promotion opportunities, the standard calls for selection of the best qualified employee and for consideration of net credited service (company-wide seniority). Where qualifications are substantially equal, net credited service governs."
Doc. #75, at 7, and Attachment III; see Doc. #77, at 5.
The CWA has described this "best qualifications" criterion for filling vacancies as governed by the subjective judgment of management. See Doc. #65, at 8; Doc. #77, at 6.
The intervenors' horror at an override of seniority would lead one to believe that it is an unprecedented departure from past practices within the Bell System. It is not. Consistent with the very collective bargaining agreements that intervenors claim are violated by the override, the defendants have always had the authority to fill, and have from time to time filled, vacancies in jobs above the entry level with new hires or with better qualified, low seniority employees, even though employees with greater seniority were by-passed in the process. Affidavit of Oliver R. Taylor, Doc. #86, Appendix VI, para. 4. This practice was, in essence, a seniority override for reasons of business efficiency. In the instant case, the seniority override is used for a far more important and compelling purpose, the implementation of a significant national policy, the assurance of equality of employment opportunity, as expressed by the national legislature in Title VII and by the national executive in Executive Order No. 11246.
B. Agency Interpretations
The EEOC, the agency charged with the enforcement of Title VII, and the Department of Labor, the agency charged with the implementation of Executive Order No. 11246, are parties to the Consent Decree and the Proposed Supplemental Order. Obviously, they judge the relief provided in the decree and the proposed order to be fully consistent with Title VII and the executive order respectively, and their judgments should not be lightly disregarded by the courts. As the Supreme Court has said, referring specifically to the EEOC, "the administrative interpretation of the Act by the enforcing agency is entitled to great deference." Griggs v. Duke Power Company, 401 U.S. 424, 433-34, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971). The court of appeals for this circuit has stated that the Labor Department's interpretation of Executive Order No. 11246 should be accorded similar respect. Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159, 175 (3d Cir.), cert. denied, 404 U.S. 854, 30 L. Ed. 2d 95, 92 S. Ct. 98 (1971). While neither of these agency interpretations completely forecloses judicial inquiry into the validity of the Consent Decree and the Proposed Supplemental Order, they nevertheless weigh heavily in support of a finding that both the decree and the proposed order are proper exercises of this Court's remedial powers.
C. The Evidentiary Posture of the Case
Because the defendant-intervenors challenge a consent decree and its implementation, the instant case comes before the Court in an unusual evidentiary posture. In their complaint, the government plaintiffs alleged that AT&T had discriminated against women and minority employees in promotions and transfers by a variety of policies and practices. See Doc. #1, para. 14, (a)-(g). According to the government, AT&T's vaguely defined transfer and promotion procedures were not made known to women and minority employees; women and minority employees were placed in job categories where there were disproportionately limited opportunities for upward mobility and advancement as compared to jobs staffed predominately by Caucasian males; AT&T did not provide women and minority employees with equal opportunities for training as compared with Caucasian males; AT&T failed to promote women and minority employees in non-management job categories at a rate comparable to Caucasian males; AT&T preferred new hires over current employees seeking to transfer to higher-paying non-management jobs; AT&T failed to promote women and minority employees into management jobs at a rate comparable to Caucasian males; and AT&T used "net credited service" to determine lay-off and recall rights to the disadvantage of women and minority employees. In its answer, filed the same day, AT&T denied each of these allegations in their totality except the last, and then denied that its use of "net credited service" to determine lay-off and recall rights had in fact disadvantaged women and minority employees. Answer of AT&T, Fourth Defense, Doc. #2, at 4. Still on the same day, January 18, 1973, the parties entered into a consent decree which provided for extensive changes in AT&T's promotion and transfer policies. That consent decree, however, stated that its provisions constituted neither an admission by the defendants nor a finding by this Court that the defendants had in fact discriminated against women and minority employees as the complaint alleged. See Consent Decree, Doc. #3, at 1-2.
To achieve the equality of employment opportunity that is the goal of Title VII, Congress selected cooperation and voluntary compliance as "the preferred means." Alexander v. Gardner-Denver Company, 415 U.S. 36, 44, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974). That these "preferred means" might be used effectively, it created the EEOC and established procedures by which the Commission could "settle disputes through conference, conciliation, and persuasion" prior to litigation. Id. The termination of litigation through settlement is, of course, a judicially favored way of disposing of litigation. Petty v. General Accident Fire & Life Assurance Corp., 365 F.2d 419, 421 (3d Cir. 1966). Accord: Stanspec Corporation v. Jelco, Inc., 464 F.2d 1184, 1187 (10th Cir. 1972); State of West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1085 (2d Cir.), cert. denied, 404 U.S. 871, 92 S. Ct. 81, 30 L. Ed. 2d 115 (1971).
The intervenors, however, seek to eviscerate the Consent Decree, and their attack on the decree has arguable legal merit only because the decree was formulated through a process that fully complied with the express intent of the Congress. If this case had gone to trial, and if the Government plaintiffs had proved, as they alleged in their complaint, that AT&T had in fact discriminated against women and minority employees in its promotion and transfer policies, it is clear that this Court would have had the equitable power to fashion an appropriate remedy for that discrimination, i.e., to order affirmative action in promotions and transfers. See Patterson v. Newspaper and Mail Deliverers' Union of New York and Vicinity, 514 F.2d 767, 775 (2d Cir. 1975); Schaefer v. Tannian, 8 EPD para. 9605 (E.D. Mich. 1974); N.A.A.C.P. v. Civil Service Commission, S.F., 6 EPD para. 8956 (N.D. Cal. 1973). It would surely be incongruous if the use of Congressionally preferred means to achieve a Congressionally desired result would leave that result vulnerable to attack on the ground that the Congressional intent had been violated. Yet that is precisely the kind of ruling that the intervenors seek from this Court.
They conveniently overlook both the general judicial preference for settlement of litigation and the specific Congressional preference for settlement of Title VII litigation.
They appear to say that because no evidence of discrimination was produced here, there was no evidence of discrimination to be introduced. This implicit argument suffers from the same historicity that flaws so many of intervenors' arguments. It ignores, for example, the administrative proceedings before the Federal Communications Commission concerning the same charges alleged in the instant complaint. Those proceedings lasted for more than a year, involved approximately 60 days of hearings, at which 150 witnesses testified and over 200 exhibits were introduced into evidence, and produced a record of more than 8,000 pages.
I took specific note of these proceedings in my earlier opinion in this case. 365 F. Supp. at 1109, 1114.
Indeed, the intervenors themselves have introduced evidence that would tend to support a finding of sex discrimination within the Bell System. See Affidavit of Richard W. Hackler, Assistant to the President of CWA, Doc. #88, para. 9 (traditional job classifications according to sex), para. 10 (pay differentials between traditionally male and traditionally female jobs), para. 13 (infrequency of transfer into traditionally male craft jobs or into traditionally female operator and clerical jobs).
Ultimately, however, I do not rest my rejection of intervenors' evidentiary contentions on the presence in the record of some evidence of racial and sexual discrimination by defendants. A federal court, when it reviews the settlement of an employment discrimination action, may not disregard the public policies embodied in Title VII. See Rios v. Enterprise Association Steamfitters, Local 638, 501 F.2d 622, 628 n.4 (2d Cir. 1974). Moreover, as the court of appeals for the Second Circuit has said in a case substantially similar to the instant action:
"the clear policy in favor of encouraging settlements must also be taken into account, see Florida Trailer & Equipment Co. v. Deal, 284 F.2d 567, 571 (5th Cir. 1960), particularly in an area where voluntary compliance by the parties over an extended period will contribute significantly toward ultimate achievement of statutory goals."
Patterson v. Newspaper & Mail Deliverers' Union of New York and Vicinity, 514 F.2d 767, 771 (2d Cir. 1975). Both considerations are especially relevant to the instant case, where the compliance of the parties, achieved through settlement, will make a significant contribution to the achievement of the goals of Title VII.
As I said in my earlier opinion, 365 F. Supp. 1105, passim, the Consent Decree in the instant case eminently accomplishes the purposes of Title VII. Since it is the product of cooperation and voluntary (though possibly grudging) compliance, it is a particularly striking example of the successful use of the means preferred by Congress for the achievement of Title VII's goals. In my judgment, then, it would frustrate the purposes of Title VII to treat the absence of evidence about AT&T's discrimination in transfer and promotion policies, and AT&T's denial of liability for such discrimination, as insuperable obstacles to the ordering of affirmative action in transfers and promotions. I decline to do so. For the remainder of this opinion, therefore, I shall treat the allegations of the complaint with respect to transfer and promotion as if they had in fact been proved at trial. To approach them in any other way would make a mockery of the "preferred means" chosen by Congress to effectuate the goals of Title VII.
B. The Affirmative Action Override
1. Does the Affirmative Action Override Violate the Consent Decree ?
The affirmative action (or seniority) override whose legality is the central issue in this proceeding is set forth in Part IV of the PSO. See p. 21, supra. The government plaintiffs state that the Consent Decree of January 18, 1973 provides for the application of this override, that its application is required by the Consent Decree, and that the override prevails whenever it conflicts with the provisions of a Bell System Collective bargaining agreement. See Letter of May 6, 1975, Attachment I to Doc. #75.
The threshold question raised by the Intervenors, specifically by CWA, is whether the affirmative action override violates the terms of the Consent Decree that purportedly contains it.