# Appendix — National Organization for Women, Inc. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1586%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1976 - **Citation:** 425 U.S. 944 ## Text « . 5 = y en py ee eee la Opinion of the District Court, June 7, 1974 Unirep States of America, By William B. Saxse, the At- torney General, on Behalf of Peter J. Brennan the Secretary of Labor, and the Equal Employment Op- portunity Commission, Plaintiff, v. ALLEGHENY-LupLUM INpvustries, INc., et al., Defendants. Civ. A. No. 74-P-339-S United States District Court N. D. Alabama, 8S. D. June 7, 1974 Robert T. Moore, Dept. of Justice, William L. Robinson, Equal Employment Opportunity Commission, William J. Kilberg, Sol. of Labor, Dept. of Labor, Washington, D. C., for plaintiff. Ralph L. MeAfee, Cravath, Swain & Moore, New York City, William K. Murray and James R. Forman, Jr., Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Ala., for defendant Companies. Michael H. Gottesman, Washington, D. C., Jerome A. Cooper, Cooper, Mitch & Crawford, Birmingham, Ala., for defendant Steelworkers. Judith A. Lonnquist, NOW, Chicago, Ill., Jack Green- berg, New York City, Oscar W. Adams, Jr., Adams, Baker & Clemon, Birmingham, Ala., Gerald A. Smith, Baltimore, 2a Opinion of the District Court, June 7, 1974 Md., Bernard D. Marcus, Kaufman & Harris, Pittsburgh, Pa., Arthur J. Mandell, Mandell & Wright, Houston, Tex., William R. Jones, NAACP, New York City, J. Richmond Pearson, Birmingham, Ala., for petitioners for interven- tion. MEMORANDUM oF OPINIOY Pointer, District Judge. After months of negotiations pursuant to the govern- mental conciliation function of Title VII, 42 U.S.C.A. § 2000e et seq., the parties herein reached a tentative agree- ment as to a manner and means for correcting allegedly discriminatory employment practices of a systemic nature at some 240 steel plants and other steel-related facilities throughout the nation. The agreement was reduced to writing in the form of two consent decrees entered into by the United States, through various governmental agencies including the Justice Department, the Labor Department and the Equal Employment Opportunity Commission, as plaintiff, and by nine steel companies and the United Steel- workers of America, as defendants. The proposed decrees were presented to, and entered by, this court on April 12, 1974, resulting in a broad national settlement of Title VII, and related, disputes between the United States and the ten defendants. The provisions reflect a thoughtful and earnest attempt to respond to—and to reconcile competi- tion between—charges of employment discrimination made on behalf of black, female, and Spanish surnamed workers and applicants. Consent Decree I takes the form of an injunction with respect to those matters which, in general, have previously been affected by collective bargaining between the com- 3a Opinion of the District Court, June 7, 1974 panies and the union. The decree provides for a restruc- turing of seniority rules and regulations, primarily using plant continuous service as a base; specifies procedures respecting transfers, promotions, vacancies, layoffs and recalls; and enumerates affirmative action guidelines and goals with respect to trade and craft positions and initial selection and assignment of employees. In recognition that general standards may require tailoring to meet local problems and that experience may indicate the inadequacy of some of the remedial steps, implementation procedures and enforcement tools are established through a structure of Implementation Committees, composed of company, union and minority members, at each affected facility, as well as an Audit and Review Committee which is national in scope. A mechanism for expeditious and co-ordinated resolution of the multitude of pending EEOC charges re- specting these defendants is established. A potential back- pay fund of $30,940,000.00 is created, along with guidelines for calculating and disbursing awards to eleciing indi- vidual employees affected by past discrimination. Juris- diction is retained by the court for a period of at least five years. Consent Decree II takes the form of a general injunc- tion respecting those aspects of employment which are, es- sentially, company-controlled and not normally subject to collective bargaining agreements. The companies are gen- erally enjoined from any form of employment disecrimina- tion and are obligated to institute a program of affirmative action with respect to hiring, initial assignments, and man- agement training programs, as well as affirmative recruit- ment of minorities. See Morrow v. Crisler, 491 F.2d 1053 (CA5 1974); Franks v. Bowman Transportation Co., 495 F.2d 398 (CA5 June 3, 1974). The court retains jurisdic- 4a Opinion of the District Court, June 7, 1974 tion for at least five years; and, as also is true regarding Consent Decree I, the consent decree between the govern- ment and the defendants does not purport to bind any individual employee or to prevent the institution or mainte- nance of private litigation. Shortly after entry of these decrees, various individuals and organizations sought to intervene. A hearing was set for May 20, 1974, with the request that briefs be filed by May 13th and reply briefs by the hearing date. This memo- randum is addressed to the claims for intervention and certain other issues raised thereby and is issued after a study of the motions, briefs, reply briefs, and oral argu- ment presented at the May 20th hearing. INTERVENTION The court concludes that §§ 707(e) and 706 of Title VII, 42 U.S.C.A. 6§ 2000e-6(e) and 2000e-5, confer upon some petitioners a right to intervene within the meaning of Rule 24(a)(1), F.R.Civ.P. This statutory right is provided to a “person or persons aggrieved” within the meaning of Title VII. In this context, the term refers to those in- dividuals with respect to whom alleged discrimination by the defendants is within the scope of a charge which has heretofore been presented to the EEOC, without regard to whether such charge was filed by them, by fellow em- ployees with similar complaints, by an organization on their behalf, or by a member of the EEOC, and without regard to whether or not they are named plaintiffs or actual or putative class members in pending litigation. Most of the individual petitioners—including some who joined in the petitions of the Ad Hoe Committee and of the 5a Opinion of the District Court, June 7, 1974 National Organization of Women'—meet the test for inter- vention of right under Rule 24(a)(1) as just stated. The court concludes that the balance of the individual peti- tioners—-including one who is the principal officer of the Rank and File Committee, the other organizational peti- tioner—should also be allowed to intervene, given the rather limited purpose for which intervention is being allowed, under the provisions of Rule 24(a) (2) or 24(b) (2). The court denies the requests for intervention by the three organizations, the Ad Hoc Committee, NOW, and the Rank and File Committee. While such organizations may have authority to file charges with the EEOC and even to file lawsuits with respect thereto, they are not “persons aggrieved” for the purpose of any statutory right of inter- vention under Rule 24(a)(1). In view of the allowed inter- vention of officers or members of such organizations, it appears that adequate representation is being afforded for any interest the organizations may have. See Rule 24(a)(2) and Hines v. Rapides Parish School Board, 479 F.2d 762 (CA5 1973). Nor, indeed, have the organizations demon- strated a sufficient interest qua organizations to justify the additional problems of management and inconvenience caused by unnecessary intervenors. See Bennett v. Madison County Board of Education, 437 F.2d 554 (CA5 1970) ; Horton v. Lawrence County Board of Education, 425 F.2d 735 (CA5 1970). 10On May 20. NOW was given leave, essentially nune pro tune, to amend its pleadings, which were filed only on behalf of the organization, to name not more than three individual women who were to be allowed to intervene pursuant to Rule 24(a)(1) or (b). Such amended pleadings were filed with the court on June 4, 1974. Ga Opinion of the District Court, June 7, 1974 Such intervention as is allowed is permitted at this time? for the limited purposes of seeking to stay or vacate the consent decrees and to question the contemplated releases of back-pay claims in connection with the payments of back- pay to electing employees under the decree. While the inter- venors are to be bound by the decision made with respect to such limited issues, the court does not consider that such intervenors, or any class which they may represent, are at present bound, as a matter of res adjudicata or collateral estoppel, to the terms of the consent decrees themselves, No evidentiary hearings are needed with respect to the issues on which intervention has been allowed. Based upon responses by counsel to questions posed by the court at the May 20th hearing, it is clear that any additional hearings would merely involve an attempt by intervenors to demon- strate in greater detail the alleged deficiencies and prob- lems presented by the decrees, e. g., that the decrees are somewhat open-ended and that there may be already some understandings or proposals as to the manner in which such details will be resolved.* There was no indication, however, that any evidence would be tendered respecting the basic allegations against the decrees which are not apparent upon the record. Moreover, time weighs heavy in this dispute, for not only must implementation go for- ward to meet timetables in the decree, but also delay would * This is without prejudice to the rights of individuals to seek further intervention, in accordance with the rulings herein, re- specting specifie questions which have arisen or may arise in the future. See Hines v. Rapides Parish Schoo! Board, 479 F.2d 762 (CA5 1973). The limitation upon present intervention is placed so that the resolution of the fundamental questions will not be delayed by disputes over matters which, in essence, are details. *See note 2 supra. Ta Opinion of the District Court, June 7, 1974 adversely affect many of the admittedly prophylactic pro- visions of the decrees to the detriment of the beneficiaries of Title VII. As the court is convinced that the suggested evidence would not materially contribute to the resolution of the limited issues upon which intervention has been allowed, there is no sound reason to schedule an evidentiary hearing. ALLEGED ILLEGALITY or ConsENT DECREE Intervenors attack the consent decree on various grounds of alleged illegality, including vagueness; venue deprival ; lack of advance notice; enforcement by violators; insuffi- ciency of relief; direct interference with rights of indi- viduals to file, maintain or pursue individual remedies; and a renunciation of statutory responsibility by executive agencies. Without here separately listing the considerations in- volved in each of these thrusts, the court concludes that, as attacks on the decrees as a whole, they are due to be denied and overruled, and that the intervenors do not demonstrate or suggest anything illegal, improper or funda- mentally unsound in these decrees, which, it should be em- phasized, are not binding on individual employees. By undertaking to resolve by settlement the myriad of problems regarding employment discrimination in the steel industry—diseussions to which individual employees and their supporting organizations were not privy—the execu- tive agencies have not renounced their statutory responsi- bilities as alleged. Such efforts are consistent, not incon- sistent, with the statutorily mandated duty of conference, conciliation and persuasion embodied in Title VII. It more- 8a Opinion of the District Court, June 7, 1974 over appears that the commitment‘ undertaken by the government with respect to pending or future Title VII litigation involving these defendants does not preclude the government from advocating, and bringing expeditiously into court if a satisfactory resolution is not accomplished through the settlement procedures established, a claim for other relief by an aggrieved employee. The court does recognize that these decrees may, as a practical matter, impede, if not impair, some interests of private litigants. Indeed, it must be assumed that conces- sions during settlement negotiations were motivated in part by the desire of the parties to avoid, by anticipatory cor- rections, future litigation and to provide more expeditious solutions even in matters already in the judicial processes. Justice delayed may, it is said, be justice denied. More- over, it must be kept in mind that resolution in this forum of issues between the government and the defendants does not preclude additional—or even inconsistent—relief in favor of private parties in other litigation. As stressed by Congress in the passage of Title VII and its amendments, settlement offers the principal hope for rapid correction of the ills of employment discrimination, preserving, how- ever-—as here—the right to litigate where the persons aggrieved are not parties to the conciliation agreement and believe the settlement to be unsatisfactory. ‘A letter from the original parties herein was received by the court on June 3, 1974. Such has been filed on record as it serves to clarify the obligations of the United States with respect to future action pursuant to the coiisent deerees. Nor would it be sound to assume that the government can not oppose relief sought by a private litigant: for example, if a particular black plaintiff, due to his own situation, were to seek an occupational seniority rule considered by the EEOC to be generally adverse to the interests of other black employees, it eonld hardly be asserted that the EEOC is bound to advocate such relief. 9a Opinion of the District Court, June 7, 1974 Some of the wording of the consent decrees may on its face improperly affect the maintenance of private actions. For example, the decrees provide for mailing of back-pay notices even to those involved in pending litigation as named plaintiffs or as determined or putative class mem- bers. In view of the court’s retained powers and in view of the presence of the parties to this litigation before other forums, such problems, as they are identified, can be sat- isfactorily resolved, and no doubt there will be a need from time to time for liaison and co-ordination between this court and other forums. The decrees may require clarifica- tion in some particulars and, indeed, as administration of the decrees continues, there will doubtless be problems which were not considered or anticipated by the parties or which run counter to their expectations during negotia- tions. Should such eventualities occur, the court, by virtue of paragraph 20° of Consent Decree I and paragraph 2° of Consent Decree II, has jurisdiction of this cause for the purpose of issuing subsequent orders, consistent with principles of due process, as necessary to further the pur- poses and objectives of these decrows.' 5“90 Retained Jurisdiction—The court hereby retains jurisdic- tion of this cause for the purpose of issuing any additional orders or decrees needed to effectuate, clarify or enforce the full pur ose and intent of this Decree. Anytime after the conclusion of five (5) years from the dat» of this decree, any party may move to dissolve this decree in whole or in part.” ¢“9 The court hereby retains jurisdiction of this cause for the purpose of issuing any additional orders or decrees needed to effectuate, clarify or enforce the full purpose and intent of this decree and/or the agreement attached hereto. Anytime after the conclusion of five (5) years from the date of this decree, any party may move to dissolve this decree in whole or in part.” 7 By leters of June 3, 1974, referred to in note 4 supra, the original parties herein have stated that all parties accept the 10a Opinion of the District Court, June 7, 1974 The court finds nothing illegal respecting the consent decrees themselves, neither in the basic approach to settle- ment reflected therein, the way in which such were negoti- ated and entered, nor the manner in which such will be implemented. Parenthetically, the court notes that the sug- gestion that advance notice was a requirement for the decree—which does not rise to the status of a class action decree—would likely haunt, if adopted by the court, the intervenors and their sponsoring organizations in other litigation. Cf. Eisen v. Carlisle & Jacquelin, 42 U.S.L.W. 4804, —— US. , 94 S.Ct. 2140, 40 L.Ed.2d 732 (May 28, 1974). ALLecep ILuecaALity or Back-Pay RELEASE In connection with the claim of illegality, some inter- venors have raised the question of the binding effect of a release executed by employees who accept back-pay under the deeree. The consent decree, however, while providing for the use of such a release, does not contain a judicial finding or conclusion that such could be efficacious. This is an issue in which all parties have an interest and, as a practical matter, is in need of a present resolution. The basic question is whether a signed release in exchange for the payment of back-pay determined under a settlement court’s view of authority to review any action taken pursuant to the decrees, including actions of the Audit and Review Committee, whether or not any party requests such review. Also, such parties, while perhaps disagreeing with the court as to the limits involved, acknowledge the concept of retained jurisdiction with respect to the effectuation of the full purpose of the decrees. Notwithstanding any such disagreement with the court’s view of such powers, the parties advised the court “that none of them wishes to cancel or revoke its consent or withdraw from the Consent Decrees in the above-captioned case.” lla Opinion of the District Court, June 7, 1974 procedure, as contemplated in paragraph 18(g) of Consent Decree I, can be valid as a matter of public policy. Intervenors cite, among other similar decisions, Schulte v. Gangi, 328 U.S. 108, 66 S.Ct. 925, 90 L.Ed. 1114 (1946), an FLSA case, for the proposition that such a release would be invalid as contravening public policy. Such FLSA cases are, however, distinguishable from the instant case. Relief under the FLSA is defined, 29 U.S.C.A. § 216(e), while Title VII relief is more flexible, 42 U.S.C.A. § 2000e- 5(g). While the amount of back-pay for an FLSA viola- tion is, essentially, a matter of simple calculation subject only to the statutory requirements of the Act, Title VII back-pay awards are much more difficult of ascertainment as such are subject to innumerable variables. Schulte seems to be most concerned with the leverage afforded em- ployers if employees could be persuaded or coerced into waiving statutory pay minimums. The legislative history of Title VII, as well as the Act itself in providing substantial mechanisms for conciliation and settlement, 42 U.S.C.A. §§ 2000e-5(b) and (f), indi- eates a Congressional desire for out-of-court settlement of Title VII violations. In Alexander v. Gardner-Denver Co., 42 U.S.L.W. 4212, 4219, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) the Supreme Court indicates that there presumably may be an effective release of Title VII claims where the parties enter into a voluntary settlement. For such a waiver to be effective, however, the employee’s consent to the set- tlement must be both “voluntary and knowing’’. /d. at 4219 n. 15, 415 U.S. 52, 94 S.Ct. 1021, 39 L.Ed.2d 147. See also Petitway v. American Cast Iron Pipe Co., 494 F.2d 211 at notes 152 and 156a (CA5 1974), in which the Fifth Circuit 12a Opinion of the District Court, June 7, 1974 seems to indicate its approval of voluntary settlement of similar issues, This court concludes that there can be a legal waiver of back-pay claims where, for valuable consideration, a release is signed knowingly and voluntarily, with adequate notice which gives the employee full possession of the facts. Such a ruling, however, is not to be taken as a pro- spective ruling on the question of the efficacy of any par- ticular release, as such would require an individual de- termination of the factual setting in which such a release may be executed. ' ConcCLUSION For the reasons indicated, the court has allowed inter- vention by the individual petitioners for the limited pur- poses of seeking to stay or vacate the consent decrees and of challenging the legal efficacy of settlement releases of back-pay claims and has denied the claims of such inter- venors with respect thereto. Intervention by other peti- lioners or for other purposes has, at present, been denied, By separate document, the order of the court with respect to such matters is filed concurrently herewith. 13a Opinion of the Court of Appeals, August 18, 1975 Unrrep Srates or America, et al., Plaintiff s-A ppellees, v. Arcecueny-LupLum Inxpustnies, Inc., et al., Defendants-A ppellees, Siwney S. Hanais, et al., Intervenors-A ppellants, NationaL Orcanization For Women, Inc., et al., Movants-Appellants. No. 74-3056 United States Court of Appeals Fifth Circuit Aug. 18, 1975 Oscar W. Adams, Jr., Birmingham, Ala., Kenneth L. Johnson, Baltimore, Md., Bernard D. Marcus, Pittsburgh, Pa., Arthur J. Mandell, Gabrielle K. MeDonald, Mark T. McDonald, Houston, Tex., J. Richmond Pearson, Birming- ham, Ala., Nathaniel R. Jones, NAACP, New York City, for S. S. Harris and others. Judith A. Lonnquist, Chicago, Ill., Kenneth L. Johnson, Emily M. Rody, Baltimore, Md., Jack Greenberg, James M. Nabrit, I], Barry L. Goldstein, New York City, for National Organization for Women and others. I4a Opinion of the Court of Appeals, August 18, 1975 William J. Kilberg, Sol. of Labor, U. S. Dept. of Labor, Washington, D. C., Wayman G. Scherrer, U. 8. Atty., Bir- mingham, Ala., Leonard L. Scheinholtz, Pittsburgh, Pa., Robert T. Moore, U. S. Dept. of Justice, Washington, D. C., Francis St. C. O'Leary, Pittsburgh, Pa., William A. Carey, Gen. Counsel, William L. Robinson, Joseph T. Eddins, EEOC, Washington, D. C., for U.S.A. and Wheeling-Pitts- burgh Steel Corp. William K. Murray, James R, Forman, Jr., Birmingham, Ala., for U. S. Steel Corp., Allegheny-Ludlum Industries, Republic Steel, Youngstown Corp., Bethlehem Steel, Wheel- ing-Pittsburgh Steel, Armco Steel, National Steel, Jones- Laughlin. Michael H. Gottesman, Washington, D. C., Jerome Cooper, Birmingham, Ala., for Steelworkers. Carl B. Frankel, Asst. Gen. Counsel, United Steelworke “s of America, Pittsburgh, Pa., Marshall Harris, Asso. Sol. Labor Relations, Civ, Rights, Dept. of Labor, Washington, D. C., Vincent L. Matera, Pittsburgh, Pa., for U. S. Steel Corp. Ralph L. MeAfee, New York City, for Bethlehem Steel. David Scribner, New York City, James H. Logan, Pitts- burgh, Pa., Elizabeth M. Schnieder, Doris Peterson, Center for Constitutional Rights, New York City, for amici curiae. Appeals from the United States District Court for the Northern District of Alabama. Before THornperry, Morcan and Cuark, Circuit Judges. THORNBERRY, Circuit Judge: These appeals present novel and important issues which require us to consider the scope of the federal government’s 15a Opinion of the Court of Appeals, August 18, 1975 authority to encourage and negotiate expeditious and effi- cient settlement of widespread charges of employment dis- crimination in the nation’s steel industry. Some of these issues are procedural in nature; others call into question the substantive legality of the means utilized. Some issues are ripe for decision; others are essentially hypothetical and conjectural. During the interim between the oral argu- ment of these appeals in December, 1974 and the present, we have carefully examined the attacks which have been advanced against the settlement. Our conclusion is that the settlement has not been shown to be in any respect unlawful or improper, and hence its terms, conditions, and benefits must go forward immediately in their entirety. JT. IntTnuvuctTIon AND BacKGROUND On April 12, 1974, a complaint was filed in the federal district court for the Northern District of Alabama. The plaintiffs were the United States, on behalf of the Secre- tary of Labor, and the Equal Employment Opportunity Commission. Nine major steel companies' and the United Steelworkers of America were named as defendants. The suit involved some 240-250 plants at which more than 300,000 persons are employed, over one-fifth of whom are black, Latin American, or female. Alleging massive pat- terns and practices of hiring and job assignment discrim- ination on the bases of race, sex, and national origin, the 1The companies are Allegheny-Ludlum Industries, Ine., Armeo Steel Corporation, Bethlehem Steel Corporation, Jones and Laugh- lin Steel Corporation, National Steel Corporation, Republie Steel Corporation, United States Steel Corporation, Wheeling-Pittsburgh Steel Corporation, and Youngstown Sheet & Tube Company. Ac- cording to one estimate, the complaint reached seventy-three per- cent of the country’s basic steel industry. Brief for the appellee steel companies at 3 n. 2. l6a Opinion of the Court of Appeals, August 18, 1975 complaint sought to enforce the edicts of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and contractual obligations under Executive Order 11246, as amended, 3 C.F.R. 160 et seq. (1974). The complaint charged that the companies had violated Title VII and Executive Order 11246 by hiring and assign- ing employees on impermissible grounds, and by restricting ethnic minorities and females to low-paying and undesir- able jobs with scant opportunities for advancement. The complaint also charged the companies and the union with formulating collective bargaining contracts which estab- lished seniority systems for promotion, layoff, recall and transfer so as to deprive minority and female employees of opportunities for advancement comparable to those enjoyed by white- males. The filing of the complaint culminated more than six months of intensive, hard-fought negotiations between, on one side, the EEOC and Departments of Justice and Labor, and on the other the companies and the union, Simultane- ously with the filing of the complaint, the parties announced to the court that a tentative nationwide settlement had been reached. The parties multilaterally reduced their agree- ment to the form of two extensive written consent decrees. Describing the decrees as “a thoughtful and earnest attempt to respond to—and to reconcile competition between—- charges of employment discrimination made on behalf of black, female, and Spanish surnamed workers and appli- cants,”* District Judge Pointer signed and entered the documents later that same day.* * See United States v. Allegheny-Ludlum Indus., Ine., N.D.Ala. 1974, 63 F.R.D. 1, 3. * The two consent decrees are reprinted in BNA FEP Manual 431 :125—152 (1974). The correct entry date, as reflected in the record, is April 12, 1974, rather than April 15. 17a Opinion of the Court of Appeals, August 18, 1975 Consent Decree I is aimed at the practices of the union as well as those of the steel companies. It permanently enjoins the defendants from “discriminating in any aspect of employment on the basis of race, color, sex or national origin and from failing or refusing to fully implement” the substantive relief set forth therein. The items covered by Consent Decree I are mainly matters historically encom- passed by collective bargaining. The substantive relief falls into three basic categories: (1) immediate implemen- tation of broad plantwide seniority, along with transfer and testing reforms, and adoption of ongoing mechanisms for further reforms of seni~rity, departmental, and line of progression (LOP) structures, all of which are designed to correct the continuing effects of past discriminatory assignments; (2) establishment of goals and timetables for fuller utilization of females and minorities in occupations and job categories from which they were discriminatorily excluded in the past; and (3) a back pay fund of $30,- 940,000, to be paid to minority and female employees injured by the unlawful practices alleged in the complaint.‘ Consent Decree II and its accompanying Agreement deal ‘with aspects of employment which are mainly company- controlled and thus not subject to collective bargaining. The companies again are broadly enjoined from any form of unlawful employment discrimination. Also, Consent De- ‘Paragraph 18(c) of Consent Decree I defines as the affected classes of employees eligible to receive back pay: (1) minority (black and Spanish-American surnamed) employees in Production ° and Maintenance units who were employed prior to January 1, 1968; (2) all females in Production and Maintenance units as of the date of decree entry; and (3) those former employees who retired on pension within the two years preceding entry of the decrees, who, if they were still employed, would be within group (1) or group (2). Provision is also made for payment of back pay to surviving spouses of otherwise eligible deceased employees. 18a Opinion of the Court of Appeals, August 18, 1975 cree IT requires the companies to initiate affirmative action programs in hiring, initial assignments, promotions, man- agement training, and recruitment of minorities and fe-. males. The decrees must be made to function in varying and peculiar situations in accordance with the parties’ ambi- tious objectives. Furthermore, the parties contemplated that unforeseen interpretive issues will inevitably arise and require resolution. With these considerations in mind, the decrees provide for the establishment of implementa- tion and enforcement procedures through a system of Im- plementation Committees. These committees are estab- lished at each major plant to which the decrees are made applicable. Each committee includes at least two union representatives, one of whom is a member of the largest minority group in the piant,® and an equal number of com- pany members. The government is entitled to designate a representative to meet with any Implementation Commit- tee. The Implementation Committees are charged with as- suring compliance with Consent Decree I, including changes in local seniority rules and LOPs, as well as the establish- ment of goals and timetables for affirmative action under * paragraph 10. In addition, it is the Implementation Com- mittees’ responsibility to furnish employees with informa- tion about their rights under the settlement. The Audit and Review Committee, established under paragraph 13 of Consent Decree I, is the hub mechanism in the decrees’ system of continuing review, enforcement, and compliance. It is composed on an industry-wide basis * Paragraph 12 of Consent Decree I provides for a seeond min- ority member at plants in which at least ten percent of the em- ployees comprise a second minority group, unless one of the union representatives is already from that minority group. 19a Opinion of the Court of Appeals, August 18, 1975 of five management members, five union membe1s, and one government member. It meets regularly to oversee com- pliance with the decrees and to resolve disputes which come before it, including any questions that the Implementation Committees have been unable to resolve. Matters which the Audit and Review Committee cannot resolve unan- imously may be brought before the district court. Fur- thermore, all parties to the decrees have stipulated on the record that paragraph 20 of Consent Decree I, which vests the district court with continuing jurisdiction for at least five years, permits the court to review fully and, if nec- essary, correct any action taken pursuant to the decrees, irrespective of whether a party requests such review. Be- ginning no later than December 31, 1975, the Audit and Review Committee will review the entire experience under Consent Decree I. The committee may then propose remedial steps at any plant in order to overcome deficien- cies in either the decree or its results. If the government representative remains dissatisfied with a committee pro- posal, he may take the matter to the district court. Finally, the Audit and Review Committee is responsible at least annually for reviews of the various Implementation Com- mittees’ performance in establishing and fulfilling affirma- tive action goals in job assignment, hiring, promotion and seniority, and minority-female recruitment. As the district court correctly determined, neither de- cree purports “to bind any individual employee or to pre- vent the institution or maintenance of private litigation.” * At the time of the decrees’ entry, hundreds of employment discrimination charges were pending against the defen- dants before the EEOC and federal district courts scattered *63 F.R.D. at 4. 20a Opinion of the Court of Appeals, August 18, 1975 throughout the country. Between twenty and sixty thou- sand minority and female individuals then stood beneath the overlapping umbrellas of these charges as members of putative aggrieved classes in actions seeking systemic in- junctive relief and back pay. Thousands still do, and the problems of administrative and judicial management are truly awesome.’ The consent decrees establish a formula 7A revealing illustration is the purported class action involving United States Steel’s Fairfield Works in Alabama, now pending on appeal before this court, No. 73—3907, Ford, et al. v. United States Steel Corp., et al., partially reported below at 371 F.Supp. 1045 (N.D.Ala. 1973). Approximately 12,000 people are employed at Fairfield Works, around 3,100 of whom are black. Between six and eight private class actions were consolidated for trial. Back pay was awarded to some members of three classes, but denied as to the other classes. A total of sixty-one people, or thirteen percent of the members of the certified private classes, received back pay awards. The other eighty-seven percent, or 403 blacks, were denied back pay. Nonetheless, in anticipation of the appeal, the district court on May 2, 1973 amended the class certification order to re- define the plaintiff class as: (1) all blacks, except those already members of a private class whose rights had been adjudicated, who had been employed at Fairfield Works at any time prior to Jan- uary 1, 1973; and (2) all blacks who had unsuccessfully sought employment at Fairfield Works prior to January 1, 1973. Although we have no reliable estimate on the combined size of the resulting class, subclass (1) alone is sufficiently large to have encouraged the defendants to enter into consent decrees with the government, in which $30.9 million is promised in back pay, “several million dollars” of which represents United States Steel’s allotment, prin- cipally for blacks, but also for female and Spanish-surnamed work- ers at Fairfield Works. Brief for Appellee United States Steel Corp., at 7, No. 73—3907, Ford, et al. v. United States Steel Corp., et al. The Fairfield Works case also involved pattern or practice charges brought by the United States, resulting in an appeal by the govern- ment from denial of certain injunctive relief and denial of back pay to black employees who were not represented in the private class actions. Sinte the government is now admittedly satisfied with the rate retention and back pay provisions of subsequently- negotiated Consent Decree I, paragraphs 8 and 18 thereof respec- tively, it has withdrawn its appeal in Ford pending our decision 21a Opinion of the Court of Appeals, August 18, 1975 for expeditious and coordinated resolution of the multitude of pending charges. With respect to pending cases in which district courts have already entered remedial de- crees, the government, companies, and union have agreed to petition those courts for amendments to conform their relief to that contained in the consent decrees. The same action is being taken with respect to orders of the Secre- tary of Labor, rendered pursuant to Executive Order 11246, which were issued prior to entry of the decrees. In regard to other pending litigation, the parties to the con- sent decrees have agreed that release forms and notices to employees pursuant to subparagraphs 18(g) and (h) of Consent Decree I shall be forwarded to the courts trying the private actions, as well as to Judge Pointer for ap- proval prior to distribution to all other affected employees. The parties have agreed on the record that they will ob- serve any order or instruction issued by any of these courts. Audit and Review Committee Directive No. 1, 5, May 31, 1974. Under introductory paragraph C of each decree, the government has stipulated that in future cases involving private claims for relief, other than back pay, which would be inconsistent with the systemic relief provided by the decrees, the government will suggest to the forum court that the relief sought is unwarranted in the separate pro- as to the validity of the consent decrees sub judice. Stipulation of the Parties, filed July 8, 1974. Last but not least, in an Order filed December 23, 1974, Judge Pointer entered an unopposed amendment in Ford conforming the injunctive relief for Fairfield Works to that provided by the consent decrees, in all minimum respects except back pay. Since the issue of classwide back pay is still on appeal to this court in Ford, Judge Pointer ordered postponement of further back pay availability in that ease until fina! decision of the appeals in Ford and in this case. 22a Opinion of the Court of Appeals, August 18, 1975 ceeding. The government, however, may proceed through the Audit and Review Committee mechanism to recommend that matters raised in the separate proceeding be sub- mitted to Judge Pointer for resolution within the frame- work of the consent decrees. The government concedes, of course, and no one seriously argues contrariwise, that no forum court will be legally obliged to follow any govern- ment recommendation of dismissal, stay, or transfer as to . any separate suit filed in such court. With respect to charges pending at the administrative level at the time of the decrees’ entry, the EEOC has agreed in paragraph 19 to expedite its processing schedule. The Commission will first identify those charges that al- lege violations for which the appropriate remedies are wholly within the seope of the decrees. In those cases, the EEOC will consider the charges settled and so notify the charging party. In addition, it will recommend to the charging party that he or she accept the back pay provided under paragraph 18(c) of Consent Decree I. As discussed, infra, the charging party is free to reject the EEOC’s rec- ommendation and commence a private suit for greater back pay or any other relief. As for pending charges that re- ‘ate to matters which are not wholly within the scope of the decrees, the Commission will conduct the usual in- vestigations and attempt to conciliate the charges. In all such cases, the time in which a charging party must decide whether to claim the back pay under paragraph 18 will be suspended during the administrative proceedings. The overriding goal of the United States, the Secretary of Labor, the EEOC, the companies, and the union is comprehensive, final and fair settlement of charges of un- lawful employment discrimination arising from patterns and practices alleged upon the part of the companies and 23a Opinion of the Court of Appeals, August 18, 1975 the union up to and including the entry date of the consent decrees. Accordingly, introductory paragraph C of each decree provides for binding resolution, between and among the parties to the decrees, of all issues treated by the de- crees, together with all issues which may arise as future effects of the resolved pre-decree discriminations. To the extent the defendants maintain compliance with the de- crees as to issues covered and which through the various procedures may become covered thereby, the government has agreed that it shall deem the defendants to have com- plied with Title VII and Executive Order 11246.* As to matters which originate in discriminations ccecurring prior to and including the entry date, and which are covered by the complaint or the decrees, the settlement is res judicata between and among its signatories. Two important factors, however, warrant clarification at this point. First, no private individual, as such, is a party to the consent decrees. Thus, the consent decrees do not seek by their terms to bind private individuals by way of res judicata or estoppel by judgment. It is only through the acceptance of the back pay and legally effective execu- tion of the release contemplated by paragraph 18(g) of Consent Decree I that a private individual can compro- mise, by virtue of the decrees, any right that he may have. Apart from the $30,940,000 back pay fund, paragraphs 17 and 18 establish mandatory procedures for fully informing private parties of their rights. Paragraph 18 sets up spe- cifie guidelines and standards for computing and delivering back pay awards to electing employees. The Implementa- tion Committees, the Audit and Review Committee, and * Paragraph 16 of Consent Decree I contains a corresponding stipulation on behalf of the Secretary of Labor and the Office of Federal Contract Compliance. 24a Opinion of the Court of Appeals, August 18, 1975 ultimately the district court bear the critical responsibility to insure that individual employees have the opportunity to make free, intelligent decisions whether to accept the back pay under the consent decrees, The second factor relates to the nature of the consent decrees’ finality as contemplated by paragraph C. In that paragraph, the plaintiffs United States, the Secretary of Labor, and the EEOC have stated in so many words that they consider the decrees remedially adequate to bring the defendants into present compliance with federal anti-dis- crimination law and to con:pensate individual employees for the past and continuing effects of the alleged disecrim- inatory practices which the decrees enjoin. Because the plaintiffs believe that the decrees are sufficient to those pur- poses, they have stipulated that the decrees are res judicata with respect to all legal, factual, and remedial issues within the scope of the complaint and the decrees, In other words, the plaintiffs—and we take the parties at their word at oral argument—have merely consented to proceed within the mechanics of the decrees in lieu of filing additional law- suits and seeking additional judgments against the de- fendants with respect to matters covered by the decrees. Also because they believe that the decrees provide ade- quate relief, the plaintiffs have agreed that compliance with the decrees shall be deemed compliance with Title VIT and Executive Order 11246. Nonetheless, it is our understand- ing of the submissions to this court on behalf of all par- ties to the decrees that the government remains entirely free, from and after the date of entry, to police the im- plementation of the decrees for repeated or new violations of the injunctive provisions, and furthermore that the gov- ernment shall be entitled to treat such suspected violations as new violations of Title VII and/or Executive Order 25a Opinion of the Court of Appeals, August 18, 1975 11246, by reason of which the government shall not be barred from bringing the matter to the attention of the district court for new injunctive correction, if necessary. Correspondingly, in light of the parties’ stipulation as to the scope of the district court’s continuing jurisdiction, we construe paragraph 20 of Consent Decree I as authorizing any aggrieved individual to proceed in similar fashion. If the grievance arises from a transaction or episode to which the injunctive provisions of the decrees apply, then we understand the court directly.’ If the grievance involves an allegation of new discrimination occurring subsequent to entry date, then it is our understanding that the individual may file a charge with the EEOC, and/or a lawsuit if he or she chooses, and expect the same quality of administra- tive and judicial consideration to which an employment discrimination complainant would be entitled in any other American industry. Having sketched—by no means exhaustively—the terms of the settlement, the parties’ interpretation thereof, and * Of course, the parties to the decrees will encourage the grievant to proceed initially through Implementation and Audit and Review Committee channels, if the grievant seeks systemic relief. Also, that procedure obviously will be the most viable alternative for employees who reside at a distanee from the Northern District of Alabama. Yet the decrees themselves—and particularly paragraph 20 of Consent Deeree JT, see also paragraph 2 of Consent Decree I!—are open-ended in that they do not purport to impose adminis- trative «x!austion requirements upon the individual in excess of those otherwise imposed by law. Thus, it is quite reasonable to infer that any obstacles which the individual may encounter en route to any given courthouse must arise by virtue of rules of law or compromises that exist independently of the hare terms of the consent decrees, In any event, with respect to questions concerning any matter resolved by the decrees, the parties thereto have stipu- lated that the district court may assume jurisdiction on its own motion, Hence, the deerees do not by their own force attempt to inhibit anyone’s access to judicial process or the availability of judicial review. 26a Opinion of the Court of Appeals, August 18, 1975 our general understanding of what the parties intended by their words and deeds, we turn now to the adversary en- - vironment which produced these appeals. II. Private INTERVENTION : CompLaints, ProceepiIncs, AND APPEALS The consent decrees were entered on April 12, 1974. By May 17, 1974, three organizations, four individuals, and six groups” of plaintiffs in actions pending before various district courts had moved to intervene and to vacate the decrees. The district court invited the movants to file briefs, offer proof, and make oral arguments at the hear- ing conducted on May 20. At the conclusion of the hear- ing, the court narrowed the issues in intervention to two points: (1) whether the decrees should be stayed or va- eated as unlawful or improper in their entirety; and (2) the validity of the contemplated releases of claims for addi- tional relief in connection with the payment of back pay to employees so electing under the consent decrees. The district court granted intervention as of right, in- tendedly pursuant to § 706(f)(1) of Title VII, 42 U.S.C. ©The Harris group, certain members of which are the principal appellants herein, consists of seven sub-groups, the first of which claims to represent all black employees, past, present, and future, of all defendant companies at plants in which the Steelworkers’ Union is the employees’ bargaining representative. The next six sub-groups claim to represent six private classes in pending ac- tions: Harris, et al. v. Republic Steel Corp., et al., N.D.Ala., C.A. No, 74—P—3345; Ford, et al. v. United States Steel Corp., et al., N.D.Ala., C.A.No. 66—625, sce note 7, supra; Taylor, et al. v. Armeo Steel Corp., et al, S.D.Tex., C.A.No.68—129: Walker, et al. v. Republic Steel Corp., et al., 'N.D.Ala., C.A.Nos.71—179, 71—180, 71—-181, 71—185; Lane, et al. v. Bethlehem Steel Corp., et al., s Md., C.A.No. 71-580—H: Rodgers, et al. v. United States Stee! Corp., et al, WD.Pa., C A.No.71—793. 27a Opinion of the Court of Appeals, August 18, 1975 § 2000e-5(f)(1), and F.R.Civ.P. 24(a)(1), to a group of thirty-six individuals with respect to whom charges of discrimination on the part of the defendants had been filed with the EEOC. Thirty-three of these individuals were members of the Harris group. The court also granted per- missive intervention under F.R.Civ.P. 24(b) to the prin- cipal officer of the Rank and File Team, an organization composed of rank and file members of the Steelworkers’ Union. Judge Pointer denied all other motions for inter- vention, including that filed by the National Organization of Women (NOW), appellant herein. Among the thirty- six persons as to whom the court allowed intervention by right, however, three were women specifically appointed by NOW at Judge Pointer’s request, and represented by NOW’s counsel throughout the proceedings." In his memorandum opinion of June 7, 1974, see 63 F.R.D. 1, 5, Judge Pointer refused to stay or vacate the consent decrees and upheld their validity against the intervenors’ attacks. He determined first that no evidentiary hearing was needed, since the intervenors sought mainly to pre- sent legal hypotheses and argument rather than evidence. Next, the court rejected contentions that the government had abdicated or bargained away its responsibilities under Title VII and Executive Order 11246. While recognizing that the decrees may require authoritative construction and clarification from time to time, Judge Pointer deemed such potential difficulties within his control by virtue of the court’s continuing jurisdiction. With respect to the On June 4, 1974, Judge Pointer permitted NOW to file an amended complaint in intervention on behalf of the three women, who represented aggrieved classes of former, present, and future female employees of the defendant steel companies. Judge Pointer also received from NOW extensive briefs concerning the effects of the consent decrees upon the rights of females. 28a Opinion of the Court of Appeals, August 18, 1975 alleged illegality of the back pay settlement releases, Judge Pointer defined the issue as “whether a signed release in exchange for the payment of back-pay determined under a settlement procedure, as contemplated in paragraph 18(g) of Consent Decree I, can be valid as a matter of public policy.” Td. at 7. Relying on recent language by the Su- preme Court,” he held in the affirmative, provided the em- ployee’s consent is both “ ‘voluntary and knowing,’ ” with “adequate notice which gives the employee full possession of the facts.”’ Id. As a procedural matter, Judge Pointer also relaxed his earlier orders denying intervention to the majority of the movants. The final memorandum of June 7 denies such intervention without prejudice to the rights of private par- ties to seek further intervention as to questions which may arise in the future. Similarly, whereas Judge Pointer con- sidered his opinion binding upon those to whom he granted intervention as to the issues therein determined, he stated explicitly that he did not consider any private intervenor or class of private parties bound by principles of res judi- cata to the consent decrees. Id. at 4 n. 2, 5. NOW appeals the district court’s refusal to allow inter- vention by the organization qua organization. It has also filed a brief and presented oral argument on the merits in behalf of the three female appellants to whom Judge Pointer granted intervention. The intervenors from the Harris group appeal the district court’s judgment sustain- ing the overall legality of the consent decrees, although they complain primarily about the back pay features rather than the decrees’ injunctive provisions. No other appeals 12 See Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 & n. 15, 94 S.Ct. 1011, 1021 & n. 15, 39 L.Ed.2d 147, 160 & n. 15 (1974). 29a Opinion of the Court of Appeals, August 18, 1975 are properly before this court.’* For the reasons which follow, we affirm the judgment of the district court insofar as it rejected the contentions of the Harris intervenors and the three females nominated by NOW. We dismiss the appeal of NOW qua organization for want of jurisdiction. Ill. Dentat or NOW’s Motion To INTERVENE Logical analysis of any question concerning intervention in federal court begins with Rule 24 of the Federal Rules of Civil Procedure. The rule establishes ground rules for 13 The record reflects that attorneys for the Harris group also listed the National Ad Hoe Committee of Steelworkers, as to which the district court denied intervention, in the Harris intervenors’ Notice of Appeal. On appeal, however, the Ad Hée Committee has filed only a brief as Amicus Curiae, joined by the District 31 Committee to Defend the Right to Strike along with the Rank and File Team. Of the issues briefed by Amici, only those relating to the alleged illegality of the back pay releases have been presented to this court by the briefs of NOW, the three women represented by NOW, and the Harris intervenors. The other issues briefed by Amici were not raised in the district court, and for that reason we shall not consider them. Cf. Wisconsin Barge Line, Ine. v. Coastal Marine Transport, Inc., 5 Cir. 1969, 414 F.2d 872, 876, and cases cited. 16 Rule 24. Intervention (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (2) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action 30a Opinion of the Court of Appeals, August 18, 1975 two categories of intervention: section (a) establishes the procedures for timely intervention as of right, whereas section (b) recognizes discretion in the district court to permit intervention in two specified situations, again upon timely application. Besides timeliness, Rule 24 details other preconditions to intervention. Under section (a), intervention as of right is authorized (1) when an act of Congress confers an un- conditional right to intervene, or (2) when the applicant claims an interest in the subject matter of the action and shows that the action’s disposition may, as a practical matter, impair or impede the ability to protect that interest, unless the applicant’s interest is adequately protected by other parties to the suit. Thus, (a)(1) intervention pre- supposes reliance on a statute. By contrast, the inquiry under subsection (a)(2) is a flexible one, which focuses on relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the state or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the ad- judication of the rights of the original parties. (ce) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which inter- vention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene. When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action to which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28, U.S.C. § 2403. As amended Dec. 27, 1946, eff. March 19, 1948; Dee. 29, 1948, eff. Oct. 20, 1949; Jan. 21, 1963, eff. July 1, 1963; Feb. 28, 1966, eff. July 1, 1966. 3la Opinion of the Court of Appeals, August 18, 1975 the particular facts and circumstances surrounding each application. Since 1966, we have consistently held that (a)(2) intervention as of right must be measured by a practical rather than technical yardstick. E. g., Martin v. Travelers Indem, Co., 5 Cir. 1971, 450 F.2d 542, 554; Diaz v. Southern Drilling Corp., 5 Cir. 1970, 427 F.2d 1118, 1123-25, cert. denied sub nom., Trefina A.G. v. United States, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115 (1970) ; Atlantis Development Corp. v. United States, 5 Cir. 1967, 379 F.2d 818, 822-29. A denial of an application for inter- vention by right which was timely filed, as here, is subject to the usual scope of our appellate review over questions of law. An erroneous denial will be reversed. Weiser v. White, 5 Cir. 1975, 505 F.2d 912, at p. 916. On the other hand, if the appellate court finds that the claim of right to intervene was without merit, then it must dismiss the appeal for want of judisdiction, since the order denying interven- tion does not constitute a final judgment. Id. See also C. Wright, Federal Courts § 75, at 332 (1970). The rules pertaining to permissive intervention are slightly different. Rule 24(b) authorizes permissive inter- vention (1) when a federal statute confers a conditional right to intervene, or (2) when the application raises a question of law or fact which is material to the main action. In exercising its discretion, the district court is required to consider whether permissive intervention would unduly jeopardize or delay the determination of the original suit. On appeal, the denial of a motion for permissive interven- tion is unreviewable, unless the trial court abused its dis- cretion. Brotherhood of R. R. Trainmen v. Baltimore & Ohio R. R., 331 U.S. 519, 524, 67 S.Ct. 1387, 1390, 91 L.Ed. 1646, 1650 (1947) ; Martin v. Kalvar Corp., 5 Cir. 1969, 411 F.2d 552. If no abuse of discretion is demonstrated, then 32a Opinion of the Court of Appeals, August 18, 1975 once again the district court’s order is not appealable and we must dismiss the appeal for want of a final order. Weiser v. White, supra; C. Wright, supra. NOW’s principal contention asserts an absolute, uncon- ditional right of intervention in favor of the organization. NOW thus seeks to enter the lawsuit under Rule 24(a)(1). NOW argues that this absolute, unconditional right is con- ferred upon it by § 706(f)(1) of Title VII, as amended, Puw.L.No.92-261, § 4(a) (Mareh 24, 1972), 42 U.S.C. § 2000e- 5(f)‘1). Section 706(f)(1), which, as pertinent, contains the procedures for filing charges with the EEOC and the filing of lawsuits by the Commission or charging parties when conciliation fails, confers upon the “person or persons aggrieved” a right to intervene in a civil action brought thereunder by the Commission. NOW contends that since it is a civil rights-oriented feminist organization which has been permitted on occasions to file charges with the EEOC on behalf of women, and since on at least one occasion it has been made as a party-plaintiff in a sex disecrimina- tion lawsuit,’® it should therefore be deemed a “person aggrieved” in its own stead. NOW argues that judicial recogition of an unconditional organizational right of inter- vention would yield socially desirable results, since the organization would receive valuable stature and publicity 1® NOW informs us that it is one of the plaintiffs in a class action employment discrimination suit pending before the federal district court in Maryland, styled Baltimore Chapter of NOW; Cathleen J. Beasley and Catherine N. Lloyd v. Bethlehem Steel Corp., et al., No. M—74—377. Brief for Appellants NOW, et al., at 6. NOW asserts that its filing of charges with the EEOC, for example on behalf of all female employees of United States Steel at Gary, Indiana (Charge No. TCH 4—1985, filed March, 1974), has been instrumental in generating a favorable climate for conciliation and settlement in the steel industry. 33a Opinion f ‘te Court of Appeals, August 18, 1975 which would encourage female workers throughout the nation to seek its assistance. Without drawing any finer distinctions, the district court held that NOW is not a “person aggrieved” within the meaning of § 706(f)(1). In the court’s view, NOW did not demonstrate a sufficiently concrete interest qua orga- nization to justify the additional problems of management and inconvenience to other parties (including, presumably, the beneficiary employees of the consent decrees) that might result from duplicative intervention. The fact that NOW previously had been permitted to designate three female intervenors, whom its counsel ably represented, weighted heavily in Judge Pointer’s calculus. See 63 F.R.D. at 4. While perhaps a court might be persuaded by Judge Pointer’s conclusion that NOW is not a “person aggrieved” within the meaning of § 706(f)(1),’* we defer decision of that question in favor of an approach which we consider 16 Cf. Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1368-69, 31 L.Ed.2d 636, 646 (1972) : The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review ait the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process. The principle that the Sierra Club would have us establish in this case would do just that. (footnotes omitted.) But see Warth v. Seldin, —— USS. . , 95 S.Ct. 2197, 2211, 44 L.Ed. (1975) : There is no question that an association may have standing in its own right to seek judicial relief from injury te itself 34a Opinion of the Court of Appeals, August 18, 1975 more directly dispositive. We hold that this was not a proper case for intervention as of right by any private party or organization pursuant to Rule 24(a)(1). Specif- ically, we hold that intervention as of right was not con- ferred in this proceeding by any act of Congress. We do so because it is plain from a careful examination of the government’s complaint that this was not in substance a § 706 action, but rather a “pattern or practice” action au- thorized by § 707, 42 U.S.C. § 2000e-6, which the EEOC was empowered to institute by virtue of the transfer of functions outlined in §707(c).’’ Insofar as the United States and the Secretary of Labor joined as plaintiffs to enforce the obligations imposed on the defendants by Ex- ecutive Order 11246, the district court’s jurisdiction was hased on 28 U.S.C. § 1345." and to vindicate whatever rights and immunities the associa- tion itself may enjoy. Moreover, in attempting to secure relief from injury to itself the association may assert the rights of its members, at least so long as the challenged infractions adversely affect its members’ associational ties. In Warth the Court described the question of standing as essen- tially a matter of “whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief.” —— U.S. at , 95 S.Ct. at 2207 (footnote omitted). Note that whereas § 706(f) (1) of Title VII creates civil actions and rights of inter- vention in favor of “Person[s] aggrieved,” § 703, 42 U.S.C. § 2000e- 2, makes it unlawful to discriminate against “any individual.” (emphasis added). 17 As of March 24, 1974, the EEOC assumed the full range of “pattern or practice” functions which had belonged to the Justice Department since the effective date of Title VII, July 2, 1965. Accordingly, NOW appears to accept as correct our statement in the text, that this was a § 707 “pattern or practice” action. Brief for Appellants NOW, et al., at 6. 1698 U.S.C. § 1345: “Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all 35a Opinion of the Court of Appeals, August 18, 1975 Nothing in § 707 or in any other federal statute con- ferred an unconditional right of intervention upon any private individual or association thereof. The “pattern or practice” action under § 707, which is conspicuously silent in regard to intervention, must be carefully contrasted with the actions contemplated by § 706. Under § 707, the EEOC (formerly the Attorney General) may institute a “pattern or practice” suit anytime that it has “reasonable cause” to believe such a suit necessary. See United States v. Jacksonville Terminal Co., 5 Cir. 1971, 451 F.2d 418, 438, cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972). Section 707 does not make it mandatory that anyone file a charge against the employer or follow ad- ministrative timetables before the suit may be brought. It was unquestionably the design of Congress in the enact- ment of § 707 to provide the government with a swift and effective weapon to vindicate the broad public interest in eliminating unlawful practices, at a level which may or may not address the grievances of particular individuals. See Rodriguez vy. East Texas Motor Freight, 5 Cir. 1974, 505 F.2d 40, at p. 66; United States v. International Ass’n. of Bridge, Structural, and Ornamental Iron Workers, 7 Cir. 1971, 438 F.2d 679, cert. denied 404 U.S. 830, 92 S.Ct. 75, 30 L.Ed.2d 60 (1971). Rather, it is to those individual grievances that Congress addressed § 706, with its atten- dant requirements that charges be filed, investigations con- ducted, and an opportunity to conciliate afforded the re- spondent when “reasonable cause” has been found. On the civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.” See United States v. Local 189, United Paper- makers, E.D.La.1968, 282 F.Supp. 39, 43, aff'd, 5 Cir. 1969, 416 F.2d 980, cert. denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970). 36a Opinion of the Court of Appeals, August 18, 1975 other hand, the mere fact that some charges were filed, or that efforts were made toward conciliation, does not in our view transform what the government may properly bring and does bring as a § 707 “pattern or practice” action into a § 706 action. See United States v. Lronworkers Local 86, 9 Cir. 1971, 443 F.2d 544, 551-52, cert. denied, 404 U.S. 984, 92 §.Ct. 447, 30 L.Ed.2d 367 (1971). We have studied closely the language of the two sections in reaching the foregoing conclusions. If only the words of the statute were available, one might plausibly argue that § 707(e), 42 U.S.C. § 2000e-6(e), incorporates § 706(f) (1) intervention as of right into “pattern or practice” proce- dure. Section 707(e), enacted as another of the 1972 amend- ments to Title VII, provides that the EEOC shall have the authority, subsequent to March 24, 1972, “to investigate and act on” charges of pattern or practice discrimination filed in behalf of aggrieved individuals. Section 707(e) concludes: “All such actions shall be conducted in ac- cordance with the procedures set forth in section 2000e-5 [§ 706] of this title.” Arguably, these procedures include intervention as of right by aggrieved parties. The legislative history indicates otherwise, however, and in the absence of an express provi- sion for intervention we choose to follow its signals. In the first place, we have discovered no legislative history evincing a favorable congressional attitude toward uncon- ditional private intervention in government “pattern or practice” litigation. In the legislative history which speaks most closely to the point, the Hlouse Committee on Educa- tion and Labor described the enacted precursor to § 707(e) as a measure which merely “[a]ssimilate[d] procedures for new proceedings brought under Section 707 to those now provided for under Section 706 so that the Commission 37a Opinion of the Court of Appeals, August 18, 1975 may provide an administrative procedure to be the counter- part of the present Section 707 action.” (emphasis added)."* Thus, while Congress apparently intended that the EEOC have investigative and conciliatory authority in “pattern or practice” situations comparable to its existing powers in § 706 cases, there is no indication that Congress intended the duplication of procedures to extend beyond the admin- istrative level. The EEOC, of course, may not enact stat- utes, and it is a statute that Rule 24(a)(1) requires. We emphasize that our disposition of the 24(a)(1) as- pect of the intervention question is based primarily on what we find to be the correct construction of § 707 and its legislative history. We are comforted, however, by the Sev- enth Cirenit’s recent decision in EEOC vy. United Air Lines, 7 Cir. 1975, 515 F.2d 946, in which the court reached the same conclusion, though ultimately its affirmance was based on the untimeliness of the intervenors’ application. Also, we find persuasive support for our refusal to effectively imply an unconditional statutory right in the strong judicial policy against nonexpress private intervention in govern- ment enforcement litigation when an adequate private rem- edy is freely accessible. See, ce. g., Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Eid.2d 604 (1961). See also Battle v. Liberty Nat’l. Life Ins. Co., 5 Cir. 1974, 493 F.2d 39, 52, cert. denied, 419 U.S. 1110, 95 S.Ct. 784, 42 L.Ed.2d 807 (1975). This policy likewise ap- plies to applications for intervention by right under Rule 24(a)(2), and applications for permissive intervention un- der Rule 24(b). See SEC v. Everest Mgt. Corp., 2 Cir. 1972, 475 F.2d 1236; United States v. Automobile Mfrs. '? H. Rep. No. 92-238, reporting H.R. 1746, 92d Cong., 2d Sess., 1972 U.S.Code Cong. & Admin.News 2137, at 2164 (reporting § 707(f) of H.R. 1746). 38a Opinion of the Court of Appeals, August 18, 1975 Assn., C.D.Cal.1969, 307 F.Supp. 617, 619, aff'd per curiam, 397 US. 248, 90 S.Ct. 1105, 25 L.Md2d 280 (1970). Cf. NAACP v. New York, 415 U.S, 945, 368, 93 S.Ct. 2591, 2604, 37 L.Kid.2d 648, 664 (1973). Without any aim on our part to denigrate whatever so- cial benefit may accrue from participation in the proceed- ings by organizations such as NOW, or to impose NOW’s motives or sincerity, we note that NOW has offered no commanding legal or policy arguments to warrant a rule allowing its intervention as of right. NOW places much reliance on EKOC vy. American Tel, & Tel. Co., B.D.Pa.1973, i655 F.Supp. 1105, aff'd in part, appeals dismissed im part, 3 Cir, 1974, 506 F.2d 735. There the court granted interven- iion by right, under © 706(f)(1) and Rule 24(a)(1), to a labor union insofar as certain issues raised in the union's application related to grievances with respect to whieh charges had been filed with the KEOC, and to remedy which the Commission had filed a suit that led to an in- dustry wide consent decree, American Tel. & Tel., however, was a suit brought by the Commission pursuant to 4 706. It was not a 4707 “pattern or practice” action. See 506 F.2d at 740. The issue before the court was whether the union could be considered an “aggrieved” party for pur- poses of 4 706(f)(1). The ease is not authority for the proposition sought to be established sub judice. At any rate, we think that a labor union which is party to the col- lective bargaining agreement presents a far stronger case for intervention than does an organization such as NOW, provided that confliets of interest are minimized.” "A labor union is elected to represent in collective bargaining the employees who depend on the eompany for their jobs and livelihood, When the company, as in American Tel. & Tel, enters into a settlement with the government in an effort to resolve eom- 39a Opinion of the Court of Appeals, August 18, 1975 In summary, we have determined that NOW enjoyed no unconditional statutory right to intervene under F.R. Civ.P. 24(a)(1). The matter is mostly ended at this point, but we pause briefly to consider whether the district court could have erred in refusing to grant NOW intervention under Rule 24(a)(2) or (b). With respect to (a)(2) inter- vention as of right, NOW obviously claims an interest in the subject matter of the action. We believe, however, that NOW fails the other two prongs of the test. NOW has not shown that the district court’s decision to enter the consent decrees as between the government and the defendants may, as a practical matter, operate to impair or impede the pro- tection of its interest. Neither NOW nor any of its mem- bers is bound by res judicata or estopped to the consent decrees. See Rodriguez v. Kast Texas Motor Freight, 5 Cir. 1974, 505 F.2d 40 at p. 65; Williamson v. Bethlehem Steel Corp., 2 Cir. 1972, 468 F.2d 1201, 1203, cert. denied, plaints of alleged employment discrimination, the union deriva- tively acquires a mandatery duty to negotiate alternatives to the provisions—e.g., those relating to seniority, or as in the Bell case pregnancy leave—of the existing collective bargaining contract. If the settlement contains features the legality or propriety of which is questionable, then the union may have a definite, cognizable interest qua union in contesting those features. Cf. Kilberg, Cur- rent Cimil Rights Problems in the Collective Bargaining Process: The Bethichem and AT&T Experiences, 27 Vand.1.Rev. 81, 101, 106 (1974). Furthermore, the union’s ability to protect its interest may well be impaired or impeded if it is not allowed to intervene in the settlement formalization proceedings. Id. At the very least, it would be anomalous to assume in such cases that the employees’ bargaining representative's interest is adequately served by the government or the employer. Nevertheless, the union must eare- fully tailor its role in intervention in order not to unduly favor or discriminate against the interests of particular segments of its membership, See EEOC v. American Tel. & Tel. Co., 3 Cir. 1974, 06 F.2d 735, 741. 40a Opinion of the Court of Appeals, August 18, 1975 411 U.S. 931, 93 S.Ct. 1893, 36 L.Ed.2d 390 (1973). See also Sam Fox Publishing Co. v. United States, supra, 366 U.S. at 689-90, 81 S.Ct. at 1313, 6 L.Ed.2d at 609. Furthermore, the district court explicitly qualified the denial of interven- tion as a denial without prejudice to future intervention. Cf. NAACP v. New York, supra. Finally, plenary legal remedies remain fully available to NOW’s membership and perhaps, or so NOW has asserted, to the organization it- self." The policy against private intervention in govern- 21 For that reason, NOW’s reliance on eases such as Trbovich v. UMW, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972), is mis- placed. Trbovich was an action by the Secretary of Labor under § 482(b) of the LMRDA, 29 U.S.C. § 401 et seq., to set aside a union’s election of officers because of alleged violations of Title IV of the Act, § 481 et seq. The statute provided that the suit by the Secretary constituted the exclusive remedy, and union members are barred by law from bringing private actions. Since the Secre- tary thus functioned as the union members’ only advocate for the protection of their valuable rights against the union, and because of the Secretary’s corresponding and potentially conflicting duty to consider the broader public interest, the Court held that the union member who filed the original complaint with the Secretary was entitled to limited intervention under Rule 24(a)(2). Here, by contrast, although the government was obliged to represent the publie interest, the consent decrees do not purport to affect the availability of relief from employment discrimination through pri- vate actions under Title VII, the Civil Rights Act of 1866 (42 U.S.C. § 1981), the labor law duty of fair representation, or any other applicable federal law. Compare Hodgson v. UMW, 1972, 153 U.S. App.D.C, 407, 473 F.2d 118, 122 n. 15, 128-30 (suit by Secretary under Title ITI of LMRDA is res judicata as against union members; Rule 24(a)(2) intervention allowed). Also to be distinguished are cases such as Atlantis Development Corp. v. United States, 5 Cir. 1967, 379 F.2d 818 (title to prop- erty); Martin v. Travelers Indem. Co., 5 Cir, 1971, 450 F.2d 542 (liability insurance coverage); and Nuesse v. Camp, 1967, 128 U.S.App.D.C. 172, 385 F.2d 694 (conflict between federal banking laws and state law), in which courts have granted (a)(2) inter- vention because of the practical disadvantages that would follow from peculiar stare dé cisis effects, if intervention were not allowed. Again contrasting this ease, we have difficulty conceiving of how the consent decrees—products of negotiation rather than contested 4la Opinion of the Court of Appeals, August 18, 1975 ment litigation, noted supra, militates against the allowance of (a)(2) intervention here; NOW makes no colorable showing of inadequacy in the government’s representation of the public interest. In any event, NOW fails the third element of the (a)(2) test. Having participated through its nominees and counsel during these entire proceedings, NOW cannot be heard to complain of the adequacy of the feminist representation. Insofar as NOW’s application may be deemed to have sought permissive intervention under Rule 24(b), no abuse of discretion has been shown in the denial. The district court was clearly justified in determining that the interests of the majority of the effected individuals predominated over NOW’s interest in further delaying implementation of the decrees’ reforms. Such determinations must be viewed in light of the circumstances as they existed at the time. EEOC v. United Air Lines, supra, 515 F.2d at 949. In this case, a full hearing had been held and NOW had received ample opportunity to present its arguments. The court below did not err in denying further intervention. litigation—are likely to carry stare decisis effects measurably ad- verse to NOW or its membership in any future proceeding. A careful analysis of the deerees demonstrates that such an assump- tion would be not only quite premature, but also naively critical of the perceptive abilities of the judiciary. See Judge Motley’s lucid diseussion in Leisner v. New York Tel. Co., S.D.N.Y.1973, 358 F.Supp. 359, 369-70. Cf. Pettway v. American Cast Iron Pipe Co., 5 Cir. 1974, 494 F.2d 211, 221 n. 21; Rodriguez v. East Texas Motor Freight, 5 Cir. 1974, 505 F.2d 40, at p. 65; Dickerson vy. United States Steel Corp., E.D.Pa. 1974, 64 F.R.D. 351. In no respect does this case bear genuine resemblance to the kind of bizarre problems encountered in Caseade Natural Gas Corp. v. El Paso Natura! Ges Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed2da 814 (1967). See Kaplan, Continuing Work of the Civil Committee: [ete.} (7), 81 Harv.L.Rev. 356, 405-06 (1967). 42a Opinion of the Court of Appeals, August 18, 1975 Consequently, NOW’s appeal qua organization must be dismissed.” Ill. Tue Appeats on THE Merits: CHALLENGES To THE ConsENT DecrEES A. Scope of Review Before proceeding with our examination of the appel- lants’ numerous and provocative challenges to the consent decrees, it is appropriate that we outline the rules of law which govern the parameters of our review. Initially, it cannot be gainsaid that conciliation and voluntary settle- ment are the preferred means for resolving employment discrimination disputes. As early as 1968, Judge Bell wrote for this court: “It is thus clear that there is great em- phasis in Title VII on private settlement and the elimina- tion of unfair practices without litigation.” Oatis v. Crown Zellerbach Corp., 5 Cir. 1968, 398 F.2d 496, 498 (emphasis added). Subsequently, in Dent v. St. Louis-San Francisco Ry. Co., 5 Cir. 1969, 406 F.2d 399, 402, Judge Coleman advanced the same thesis: Thus it is quite apparent that the basie philosophy of these statutory provisions is that voluntary compli- 22 Although we have determined that intervention as of right under F.R.Civ.P. 24(a)(1) was not available to the private parties and groups who sought intervention in this case, some of whose applications were granted below on the assumption that § 706(f) (1) of Title VII conferred such right, we proceed nonetheless to consider the merits of the attacks lodged against the consent de- erees by the remaining intervenors-appellants. We do so on the assumption that the district court, having concluded that certain parties ought to be granted intervention either by right or by permission, would have allowed those parties to intervene in any event under either 24(a)(2) or (b). No appellee has suggested by way of cross-assignment or otherwise that we should not go forward to the merits. 43a Opinion of the Court of Appeals, August 18, 1975 ance is preferable to court action and that efforts should be made to resolve these employment rights by conciliation both before and after court action. (emphasis added). In Culpepper v. Reynolds Metals Co., 5 Cir. 1970, 421 F.2d 888, 891, we declared that “the cen- tral theme of Title VII is ‘private settlement’ as an effec- tive end to employment discrimination,” citing Oatis. Next, in Hutchings v. United States Industries, Inc., 5 Cir. 1970, 428 F.2d 303, 309, Judge Ainsworth stated: [I]t is clear that Congress placed great emphasis upon private settlement and the elimination of unfair prac- tices without litigation (citing Oatis) on the ground that voluntary compliance is preferable to court action. (citing Dent). Indeed, it is apparent that the primary role of the EEOC is to seek elimination of unlawful employment practices by informal means leading to voluntary compliance, (emphasis added).” Our recent excursions into this area have not detoured from the foregoing principles, but have emphasized instead their practical value. In the most sweeping of all our em- ployment discrimination decisions, Pettway v. American Cast Iron Pipe Co., 5 Cir. 1974, 494 F.2d 211, 258, we said in regard to the firmly established, but nonetheless thorny and speculative matter of awarding ciasswide back pay: *8 Accord, Guerra v. Manchester Terminal Corp., 5 Cir. 1974, 498 F.2d 641, 650; Airline Stewards and Stewardesses v. Ameri- ean Airlines, Ine., 7 Cir. 1972, 455 F.2d 101, 109; Fekete v. United States Steel Corp., 3 Cir. 1970, 424 F.2d 331, 336; Bowe v. Colgate-Palmolive Co., 7 Cir. 1969, 416 F.2d 711; Jenkins v. United Gas Corp., 5 Cir. 1968, 400 F.2d 28. 44a Opinion of the Court of Appeals, August 18, 1975 Initially, we approve the district court’s intention of referring the back pay claims to a Special Master, Fed. R.Civ.P. 53. United States v. Wood, Wire & Metal Lathers Int. Union, Local 46, 328 F.Supp. 429, 441 (S.D.N.Y. 1971). However, the court and the parties may also consider negotiating an agreement. E. g., Johnson v. Goodyear Tire & Rubber Co., 349 F.Supp. 3, 18 (S.D. Tex. 1972), 491 F.2d 1364 (5th Cir. March 27, 1974); United States v. Wood, Wire & Metal Lathers, Int. Union, Local 46, supra 328 F.Supp. at 444 n. 3. An alternative is to utilize the expertise of the intervening Equal Employment Opportunity Com- mission to supervise settlement negotiations or to aid in determining the amount of the ward. (emphasis added). Nor has the Supreme Court maintained detached silence | in regard to the deference courts should accord the pro- | cesses of voluntary conciliation and settlement. Describing Title VII and the functions of the EEOC, Mr. Justice Powell in Alexander v. Gardner-Denver Co., 415 U.S. 36, — 44, 94 S.Ct. 1011, 1017-18, 39 L.Ed.2d 147, 156 (1974), wrote for the Court: Cooperation and voluntary compliance were selected as the preferred means for achieving [the elimination of unlawful employment discrimination]. To this end, Congress created the Equal Employment Opportunity Commission and established a procedure whereby State and local equal employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit. In the Equal Employment Oppor- 45a Opinion of the Court of Appeals, August 18, 1975 tunity Act of 1972, Pub.L. 92-261, 86 Stat. 103, Con- gress amended Title VII to provide the Commission with further authority to investigate individual charges of discrimination, to promote voluntary compliance with the requirements of Title VII, and to institute civil actions against employers or unions named in a discrimination charge. (emphasis added). In Gardner-Denver the Supreme Court stressed the importance of voluntary settlement in voicing its disapproval of a policy of deferral to binding arbitra- tion. In the Court’s view, such a policy could adversely affect the arbitration system as well as the vindication of individual rights, since the employee—fearful of the arbi- tral forum—might elect to bypass arbitration and file a lawsuit instead. “The possibility of voluntary compliance or settlement of Title VII claims would thus be reduced, and the result could well be more litigation, not less.” 415 U.S. at 59, 94 S.Ct. at 1025, 39 L.Ed.2d at 164. (emphasis added). So far, we have emphasized only one side of the coin— the side which places a premium on the achievement of voluntary compliance. In doing so, we have not overlooked that the “final responsibility for enforcement of Title VII is vested with federal courts,” Gardner-Denver, supra, 415 U.S. at 44, 94 S.Ct. at 1018, 39 L.Ed.2d at 156, and that “Congress gave private individuals a significant role in the enforcement process of Title VII.” Jd. See also Me- Donnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).** Nor ** Statements to the same effect may be found in virtually all of the cases which we have canvassed in stressing the importance of 46. Opinion of the Court of Appeals, August 18, 1975 have we forgotten that “the private right of action remains an essential means of obtaining judicial enforcement of Title VIL” Gardner-Denver, supra, 415 U.S. at 45, 94 S.Ct. at 1018, 39 L.Ed.2d at 156 (emphasis added), and cases cited. We are fully mindful, moreover, that the EEOC’s limited resources permit it to undertake serious conciliation or lawsuits in only a small fraction of the cases on its docket.** For that reason, the congressional scheme con- tinues to depend in substantial measure upon “private at- torneys general” who, through their lawsuits in the federal courts, elicit enunciation of the great bulk of policies and principles which serve to flesh out the basie congressional mandate. Yet we deal here with one of those rare instances in which the government has, to its satisfaction, successfully negotiated a comprehensive voluntary accord. At least os- conciliation and settlement, and in legion others as well. See, e.q., Gamble v. Birmingham Southern R. R., 5 Cir. 1975, 514 F.2d 678, at p. 686. To repeat the citations would be superfluous in view of the Supreme Court's repeated and emphatic recognition of the important enforcement role played by private suitors. 7° According to one fairly recent source, the EEOC—to no one’s surprise—“suffers from a considerable work backlog.” It is re- ported that as of June 30, 1971, some 32,000 cases were backlogged, and that the processing of a charge may consume eighteen to twenty-four months. Further, after the EEOC finds reasonable cause, another six months usually passes before it seeks conciliation. In fiseal 1972, the last year prior to implementation of the 1972 amendments which gave the EEOC power to sue, the Commission found reasonable cause to assert unlawful discrimination against only 1,390 empl yers. Settlement was attempted to some degree with 792 of these employers, but only 268 attempts resulted in a partial or complete success. Note, The Tentative Settlement Class and Class Action Suits Under Title VII of the Civil Rights Act, 72 Mich.L.Rev. 1462, 1463 n. 11, 1464 n. 17 (1974). Another source reports that as of the close of fiscal 1974, the EEOC’s backlog had grown to nearly 98,000 charges. 181 BNA— DLR—D-1, 5 (Sept. 17, 1974). 47a Opinion of the Court of Appeals, August 18, 1975 tensibly, the government has done precisely what it ought to do as a matter of public policy in order to vitiate the need for additional industry-wide litigation. On the other hand, the product of the considerable efforts on behalf of the government, the steel companies, and the union does not purport to foreclose any alternatives that may other- wise exist for individuals who had rather litigate than par- ticipate in the entire settlement.** We say entire because 26In this respect, the consent decrees present a situation some- what analcgous to that recently examined by the Supreme Court in Johnson yv. Railway Express Agency, Inc., US. , 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). In Johnson it was argued that the timely filing of an employment discrimination charge with the EEOC, pursuant to Title VII, should be held to toll the applicable state statute of limitations for a suit under 42 U.S.C. § 1981 on the same cause of action. Rejecting the argument, the Supreme Court reiterated the theme of Gardner-Denver that the various legal remedies for employment discrimination are cumulative and complementary. From the grievant's standpoint, “{u]nder some circumstances, the administrative route may be highly preferred over the litigatory; under others the reverse may be true.” U.S. at ——, 95 S.Ct. at 1720, 44 L.Ed.2d at 302. The most significant feature about Johnson is its emphasis on the principle that the choice over which way to proceed belongs to the grievant: Petitioner argues that a failure to toll the limitation period in this case will conflict seriously with the broad remedial and humane purposes of Title VII. Specifically, he urges that Title VII embodies a strong federal policy in support of con- ciliation and voluntary compliance as a means of achieving the statutory mandate of equal employment opportunity. He suggests that failure to toll the statute on a § 198! claim dur- ing the pendency of an administrative complaint in the EEOC would force a plaintiff into premature and expensive litiga- tion that would destroy all chances for admnistrative concilia- tion and voluntary compliance. We have noted this possibility and, indeed, it is conceivable, and perhaps almost to be expected, that failure to toll will have the effect of pressing a civil rights complainant who values his § 1981 claim into court before the EEOC has com- pleted its administrative proceeding. (footnote omitted). * * * 48a Opinion of the Court of Appeals, August 18, 1975 the injunctive relief provided by the consent decrees ex- tends to all affected steelworkers, regardless whether they elect to accept the back pay and execute the releases. The question at this point, then, is through what lens do we judge the adequacy of the settlement as against the inter- venors’ objections, bearing in mind that Congress and the Supreme Court have expressed a preference for voluntary compliance above all other tools of enforcement? We think the answer was delivered nearly fifteen years ago by Judge (now Chief Judge) Brown in Florida Trailer and Equipment Co. v. Deal, 5 Cir. 1960, 284 F.2d 567, in which an objecting creditor sought to void a referee and district court-approved settlement, reached pursuant to the Bankruptcy Act, between the trustee of the insolvent estate and a lien creditor. There we stated: Of course, the approval of a proposed settlement does not depend on establishing as a matter of legal cer- tainty that the subject claim or counterclaim is or is not worthless or valuable. The probable outcome in But the fundamental answer to petitioner’s argument lies in the faet—presumably a happy one for the civil rights claim- ant—that Congress clearly has retained § 1981 as a remedy against employment discrimination separate from and inde- pendent of the more elaborate and time consuming procedures of Title VII. U.S. at , 95 S.Ct. at 1722, 44 L.Ed.2d at 304. Likewise in this case, individual employees will find themselves faced with the choice whether to timely accept back pay under the consent decrees, for which no litigation will be necessary, or file private charges and /or lawsuits and risk the usual litigatory uncertainties in quests for greater recoveries. We know of no policy or rule of law, however, which forbids the erection of such a choice when its effect is to leave the individual grievant in a position no worse, but in fact better, than that oceupied in the absence of the settle- ment, which, of course, is not binding on the individual unless he or she so desires. 49a Opinion of the Court of Appeals, August 18, 1975 the event of litigation, the relative advantages and disadvantages are, of course, relevant factors for eval- uation. But the very uncertainty of outcome in litiga- tion, as well as the avoidance of wasteful litigation and expense, lay behind the Congressional infusion of a power to compromise. This is a recognition of the policy of the law generally to encourage settlements. This could hardly be achieved if the test on hearing for approval meant establishing success or failure to a certainty. Parties would be hesitant to explore the likelihood of settlement apprehensive as they would be that the application for approval would necessarily result in a judicial determination that there was no escape from liability or no hope of recovery and hence no basis for a compromise. 284 F.2d at 571. Judge Brown continued: Obviously, it would not be a settlement if to obtain approval the Trustee would have to demonstrate that he could not succeed had the preference claim been pressed. All that he must do is establish to the rea- sonable satisfaction of the Referee that, all things con- sidered, (citation omitted), it is prudent to eliminate the risks of litigation to achieve specific certainty though admittedly it might be considerably less (or more) than were the case fought to the bitter end. * * * Id. at 573 (emphasis added). Despite the appearance of an occasional contextual gloss,”” the approach to judicial evaluation of proposed set- 27 FE. g., West Virginia v. Chas. Pfizer & Co., S.D.N.Y.1970, 314 F.Supp. 710, 740, aff'd, 2 Cir. 1971, 440 F.2d 1079, cert. denied, sub nom., Cotler Drugs, Inc. v. Chas. Pfizer & Co., 404 U.S. 871, 50a Opinion of the Court of Appeals, August 18, 1975 tlements announced in Deal has drawn firm adherents among the federal courts. See City of Detroit v. Grinnell Corp., 2 Cir. 1974, 495 F.2d 448, 455-56 (objectors must show clear abuse of discretion in trial court’s approval of settlement); Bryan v. Pittsburgh Plate Glass Co., 3 Cir. 1974, 494 F.2d 799, 803, cert. denied, Abate v. Pittsburgh Plate Glass Company, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974) (settlement not unfair simply because many class members oppose it); Greenspun v. Bogan, 1 Cir. 1974, 492 F.2d 375, 381 (only where one side is so clearly cor- rect that offer in compromise becomes clearly unreasonable does trial court abuse discretion in approving settlement) ; Ace Heating & Plumbing Co., Ine. v. Crane Co., 3 Cir. 1971, 453 F.2d 30, 34 (great weight is accorded the trial judge’s views); West Virginia v. Chas. Pfizer & Co., 2 Cir. 1971, 440 F.2d 1079, 1085-86, cer*. denied, see footnote 27, supra, (appellate court will disturb settlement approval only upon clear showing of abuse of discretion). See also Young v. Katz, 5 Cir. 1971, 447 F.2d 431. Applying the Deal approach to the issues before us, we | align ourselves with certain propositions which were re- cently developed by the Second Circuit in its review of a similar, though less expansive, Title VII settlement, see Patierson v. Newspaper and Mail Deliverers’ Union of New York and Vicinity, 2 Cir. 1975, 514 F.2d 767. In the first place, the scope of our review is narrow and we should interfere with the implementation of the consent decrees only upon a clear showing that the district judge abused his discretion by approving the settlement. Next, to the 92 S.Ct. 81, 30 L.Ed.2d 115 (1971) (“fair, reasonable and ade- quate”) ; “*eCray v. Beatty, D.N.J.1974, 64 F_R.D. 107, 110 (court “would not approve a settlement that appeared inequitable or un- fair to any party to the suit”). . 5la Opinion of the Court of Appeals, August 18, 1975 extent that the settlement may in occasional respects ar- guably fail short of immediately achieving for each affected discriminatee his or her “rightful place,” we must balance the affirmative action objectives of Title VII and Execu- tive Order 11246 against the equally strong congressional policy favoring voluntary compliance. The appropriate- ness of such balancing is especially clear, as here, “in an area where voluntary compliance by the parties over an extended period will contribute significantly to- ward ultimate achievement of statutory goals.” 514 F.2d at 771. Nor should we substitute our notions of fairness and adequacy of the relief for those of the parties and Judge Pointer, absent a strong showing that the district court failed to satisfy itself of the settlement’s overall fair- ness to beneficiaries and consistency with the public in- terest. Finally, and of utmost importance, we are without authority to modify or rewrite the parties’ agreement. Our only alternative, if it were shown that Judge Pointer abused his discretion or overlooked an illegal provision, would be to vacate his approval of the entire settlement and remand for trial of the government’s “pattern or practice” com- plaint. See United States v. Atlantic Ref. Co., 360 U.S. 19, 23, 79 S.Ct. 944, 946, 3 L.Ed.2d 1054, 1057 (1969); Patter- son, supra, 514 F.2d at 772. Cf. United States v. Blue Chip Stamp Co., C.D.Cal. 1967, 272 F.Supp. 432, 440, aff’d per curiam sub nom., Thrifty Shoppers Scrip Co. v. United States, 389 U.S. 580, 88 S.Ct. 693, 19 L.Ed.2d 781 (1968). To the foregoing observations we add a few remarks which we think are particularly pertinent to these appeals. The central issue here is not whether the consent decrees achieve some hypothetical standard constructed by imagin- ing every benefit that might someday be obtained in con- tested litigation. The question which we must decide is whether the responsible government agencies may lawfully 52a Opinion of the Court of Appeals, August 18, 1975 conciliate and settle by consent decree charges of diserim- ination cutting across an entire industry in a manner which assures cooperative defendants that they will not face fu- ture government lawsuits on those claims, and which ac- cords the defendants the opportunity to offer final satis- faction to aggrieved individuals who are willing to accept tenders of back pay and execute the releases. Throughout their arguments, the appellants imply that private suits by thousands of unspecified employees whose grievances are generally covered by the decrees would be virtually certain to achieve far better results thon those obtained by the government. Yet this implication, stripped of its rhet- orice, goes really ouly to back pay insofar as the Harris ap- pellants have challenged seriously the adequacy of the de- crees’ injunctive measures neither in the district court nor in this court.** Only the three female appellants have done 7* The extremely dubious validity of the appellants’ implication is highlighted by certain examples. Although Title VIT had been in effect almost nine years at the time of the consent decrees’ entry, private actions had been instituted at no more than a dozen of the 250 plants covered by the deerees. Of these private actions, only © one had proceeded to final judgment, the Fairfield Works case, sce note 7, supra. In that case sweeping injunctive reforms were