filed as amended november 9 1977.: August 8, 1977.
On Appeal from the order dated April 29, 1976 of the United States District Court for the Western District of Pennsylvania (Civil Action No. 71-264).
Adams, Biggs and Hunter, Circuit Judges.
This case raises a number of difficult questions regarding contribution between the defendants in actions brought under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. and the Equal Pay Act of 1963 (Equal Pay Act), 29 U.S.C. §§ 201 et seq.
The appeal and cross-appeal before us began as a class action brought by 19 named plaintiffs on behalf of all females in the employ of appellee-cross appellant G. C. Murphy Co. (Murphy) since 1964. Named as defendants were Murphy; the Retail, Wholesale and Department Store Union, Local # 940 (Local 940); and the International Union of Wholesale and Department Store Union, AFL-CIO (International). In the first count of their complaint plaintiffs alleged, inter alia, that Murphy, Local 940, and the International had violated Title VII by maintaining under collective bargaining agreements entered into by the defendant labor organizations and Murphy separate job classifications, pay scales, and seniority systems for male and female employees of Murphy's McKeesport, Pennsylvania, warehouse.
In the second count of their complaint plaintiffs alleged that Local 940 and the International violated their duty of fair representation imposed upon them by the National Labor Relations Act and the Labor-Management-Relations Act in acquiescing and joining in the discriminatory practices which formed the basis of their Title VII complaint.
After Murphy, the International and Local 940 filed answers to the plaintiffs' complaint. Murphy filed a cross claim on August 19, 1971, for a judgment that if there be liability to the plaintiffs the defendant labor organizations were solely liable and that judgment be entered for Murphy over and against Local 940 and the International for any amount recovered by the plaintiffs against Murphy. The basis of Murphy's cross claim was that the allegedly discriminatory practices were the result of demands made by the unions in the course of collective bargaining and were acceded to in good faith by Murphy.
On July 14, 1972 the district court granted class status and certified the class as being "all females who were employed at the G. C. Murphy Company warehouse and who were included in the unit covered by the labor union contracts at any time between July 1, 1965 and June 30, 1971." At the same time the court approved a notice of settlement between Murphy and the plaintiffs. The court further ordered a hearing concerning the proposed settlement on October 2, 1972 which "any person may attend to inform the Court of any matter pertaining to these proceedings . . . ."
The terms of the settlement provided that Murphy would pay $548,000 to the plaintiffs and an additional $100,000 in attorneys' fees to plaintiffs' counsel. The payment was to be made in three instalments with 6 per cent interest on the deferred payments. Also, pursuant to the settlement agreement plaintiffs amended their complaint to include a claim only against Murphy for violation of the Equal Pay Act of 1963. (68a). $100,000 of the $548,000 settlement was allocated to the Equal Pay Act claim. The remaining $448,000 was allocated to the Title VII claim.
A hearing was held on October 2, 1972 concerning the proposed settlement. Present at the hearing, in addition to plaintiffs' and Murphy's counsel, was Joseph M. Maurizi, Esquire, a member of the bar, representing both Local 940 and the International. The Court inquired whether there was any objection to the settlement. Mr. Maurizi did not object.
Murphy proceeded on its claim for contribution, and ultimately settled its claim against Local 940 for $4,146, the total amount in Local 940's treasury.
Trial was held on the remaining issue, Murphy's claim for contribution against the International and Teamster's Local 249.*fn1
Upon the conclusion of the trial the district court found both Murphy and the International equally responsible for the complained of sex discrimination. The district court based its finding on evidence that the International participated in the collective bargaining of the 1965 and 1968 contracts through one Burberg, the International Representative. Burberg, as the "International Representative" signed the collective bargaining agreement;*fn2 and also participated in Local 940's affairs including grievance procedures. With regard to Burberg's participation in the negotiations of the discriminatory agreements the district court found:
"Burberg may be appropriately characterized as the most experienced person on the Union's side of the 1965 and 1968 negotiating table. (Tr. 204) [410a]. It may also be concluded that because Local 940 did not have an attorney who participated in the 1965 and 1968 negotiations, the union turned to Burberg for counseling on the legality of the negotiations. (Tr. 206, 268) [413a, 475a]. The attorney counseling Murphy at the contract negotiations occasionally met privately with Burberg to discuss union matters. (Tr. 206) [413a]. And during the negotiations, union officials would privately consult Burberg for his opinion on the various aspects of the negotiations (Tr. 268) [475a], and Burberg's opinion generally was adopted by the union at the negotiation table."
141a-142a.*fn3 The district court further found Burberg to be acting within the scope of his agency or representative status of the International. 142a-145a.
The court determined that Murphy and the Labor organizations, the International and Local 940, which had settled, were equally at fault, and so apportioned the Title VII share of the settlement with the plaintiffs. 176a.*fn4 The district court excluded the $100,000 from the amount to be allocated for contribution ruling that a labor organization could not be liable under the Equal Pay Act. The court found the settlement between Murphy and the plaintiffs to span a period of time beginning July 1, 1965 and ending June 30, 1971, a period of 72 months. 177a. The court found the union collectively liable for $224,000, 50% of the plaintiffs' $448,000 Title VII recovery. Id. The International's share of the responsibility for the Title VII recovery was 67/72 since it was for 67 months of the 72 month period that the International and Local 940 represented Murphy's employees. Id. Thus, the International's liability for the Title VII claim was $208,444, or 67/72's of $224,000. Id. For the purpose of contribution attorneys' fees were ...