Petition — Courtwright v. Equal Employment Opportunity Commission

supremo UOUTt, Us Mat

EILED’

'} MAR 10 1980

IN THE t FAICHAEL RODAK, 32, CLERW

SESE ee

NS 2 eS

Supreme Court of the Gnited States

4 Sen 4 9 = 1 3 9 p>

HOWARD COURTWRIGHT; SAM CUTRELL; RICHARD

CYR; JIM DOYLE; CARL GUSTAFSON; GENE HINES;

TERRY HUCKINS; DON PETERS; ROGER PIERCE;

ELDON RHODES; JOE RIELLY; JON SCROGGINS;

DENNIS SMITH; WAYNE STALLSWORTH,; GENE

TUGGLE; PAUL ULLERICH; and FRED WOOLSEY,

Petitioners,

|

¥.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION;

SAFEWAY STORES, INC.; DENVER RETAIL GROCERS &

RETAIL CLERKS UNION LOCAL NO. 7,

AMALGAMATED MEAT CUTTERS AND BUTCHER

WORKMEN OF NORTH AMERICA, AFL-CIO, LOCAL

NO. 634; THE INTERNATIONAL UNION OF OPERATING

ENGINEERS LOCAL UNION NO. 1; DELIVERY DRIVERS,

WAREHOUSEMEN AND HELPERS, LOCAL UNION NO.

435: MILK DRIVERS AND DAIRY EMPLOYEES LOCAL

UNION NO. 537; and WAREHOUSE AND DISTRIBUTION

EMPLOYEES UNION, LOCAL UNION NO. 452,

Respondents.

PETITION FOR WRIT OF CERTIORARI

John A. Criswell

3780 South Broadway

Englewood, Colorado 80110

Of Counsel: ah

Counsel for Petitioners

Criswell & Patterson

3780 South Broadway

Englewood, Colorado 80110

303, 761-0800

i

INDEX

Page

1. THE JUDGMENT SOUGHT TO BE

EES rrr |

pM eee eee 2

RMP Se ek 2” Os b 8 2

Me a 2

D. Cee PRES GO BPR RSE oo ci ck cc tcc cee 3

RE 7

EE 9

TABLE OF AUTHORITIES

CASES:

Acha v. Beame, 570 F.2d 57 (2d Cir., 1978) ............ 8

Franks v. Bowman Transportation Co., 424 U.S. 747

ee GAL a ie beds sce ccccccce 6

International Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977) ....... 2, 5, 6, 7, 8,9

Sam Fox Publishing Co. v. United States, 366

EO 8

ce | ar 5

OTHER AUTHORITIES:

Title 28, United States Code, §1254 00.0... ccc cece ceee 2

42 U.S.C. §2000e-2(h); §2000e-5(f) (1) and (3); and

EE SEE 2

RS SS ne nn a

IN THE

Supreme Court of the Anited States

HOWARD COURTWRIGHT; SAM CUTRELL; RICHARD

CYR; JIM DOYLE; CARL GUSTAFSON; GENE HINES;

TERRY HUCKINS; DON PETERS; ROGER PIERCE;

ELDON RHODES; JOE RIELLY; JON SCROGGINS;

DENNIS SMITH; WAYNE STALLSWORTH; GENE

TUGGLE; PAUL ULLERICH; and FRED WOLLSEY,

Petitioners,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION;

SAFEWAY STORES, INC.; DENVER RETAIL GROCERS &

RETAIL CLERKS UNION LOCAL NO. 7, .

“AMALGAMATED MEAT CUTTERS AND BUTCHER

WORKMEN OF NORTH AMERICA, AFL-CIO, LOCAL

NO. 634; THE INTERNATIONAL UNION OF OPERATING

ENGINEERS LOCAL UNION NO. 1; DELIVERY DRIVERS,

WAREHOUSEMEN AND HELPERS, LOCAL UNION NO.

435; MILK DRIVERS AND DAIRY EMPLOYEES LOCAL

UNION NO. 537; and WAREHOUSE AND DISTRIBUTION

EMPLOYEES UNION, LOCAL UNION NO. 452,

Respondents.

PETITION FOR WRIT OF CERTIORARI

Petiticners herein respectfully pray that this Honorable Court

issue its writ of certiorari to review a judgment of the United

States Court of Appeals for the Tenth Circuit and represent the

following:

2

1. THE JUDGMENT SOUGHT TO BE REVIEWED

A copy of the judgment sought to be reviewed is attached as an

appendix to this petition. Petitioners are unaware that the

opinion has, as yet, been officially reported. It has been

unofficially reported at 21 EPD (CCH) para. 30, 456.

2. JURISDICTIONAL BASES

The judgment of the Court of Appeals was rendered on

December 5, 1979. No petition for rehearing was filed with that

Court. The provisions of Title 28, United States Code, §1254

grant jurisdiction to this Court to review that judgment.

3. THE QUESTION PRESENTED

In Petitioners’ view, the question presented by their petition is:

Whether the decision of this Court in International Brother-

hood of Teamsters v. United States, 431 U.S. 324(1977), requires

a United States District Court, having entered a consent decree

modifying, and partially abrogating, a seniority system estab-

lished by collective bargaining, to vacate, pro tanto, the

provisions of such decree upon the petition of employees

adversely affected thereby.

4. STATUTES INVOLVED

The following provisions of Title VII of the Civil Rights Act of

1964 (P.L. 88-352, Title VII, 78 Stat. 252, et seq.; as amended by

P.L. 92-261, Title VII, 86 Stat. 103, et seq.; 42 U.S.C. §2000e, et

seq.) are here involved:

Section 703(h) — “Notwithstanding any other provision of

this title, it shall not be an unlawful employment practice for

an employer to apply different standards of compensation,

or different terms, conditions, or privileges of employment

pursuant to a bona fide seniority system, ... provided that

such differences are not the result of an intention to

discriminate because of race, color, religion, sex, or national

origin ...” (42 U.S.C. §2000e-2(%».

. —__

3

Section 706(g) — “If the [district] court finds that the

respondent has intentionally engaged in or is intentionally

engaging in an unlawful employment practice charged in the

complaint, the court may enjoin the respondent from

engaging in such unlawful employment practice, and order

such affirmative action as may be appropriate...” (42 U.S.C.

§2000e-5(g)).

5. STATEMENT OF THE CASE

In 1976 the Equal Employment Opportunity Commission

(“EEOC”) commenced an action against Safeway Stores, Inc.

(“Safeway”), pursuant to the authority granted to it by Section

706(f) (1) and (3) and (g) of Title VII of the above referenced Act

(42 U.S.C. §2000e-5(f) (1) and (3) and (g)), asserting that Safeway

was engaging in unfair employment practices in its various

facilities located in Denver, Colorado. Joined as parties, pursuant

to the provisions of Rule 19(a) (2), Federal Rules of Civil

Procedure, were several labor organizations which represented

various Safeway employees in separate collective bargaining

units, including Local 435, affiliated with the International

Brotherhood of Teamsters (“Local 435”).

At the time of the commencement of this action, a collective

bargaining agreement between Safeway and Local 435 provided

that the competitive seniority of each employee within Local 435’s

unit was to be determined by such employee’s length of service

within the bargaining unit — no credit was given for any

employment by Safeway in positions outside this unit.

Petitioners are a group of Safeway employees who, prior to the

commencement of the instant litigation, had transferred from

other jobs with Safeway into the Local 435 unit. All are white

males, except one, who is a black male. Each of them, upon his

transfer into the Local 435 unit, “forfeited” his previously

accumulated seniority, in accordance with the contractual

seniority system. None of them were made parties to the

litigation, nor was any formal notice of its pendency given to

them.

4

In September, 1976, the EEOC and Safeway, joined by all the

labor organizations which had been made parties to the action,

entered into a stipulated consent decree, with approval of the

district court, which was designed to dispose of the litigation. This

decree contained extensive provisions relating to various

subjects. Among those provisions were two relating to the

seniority of Safeway employees.

Paragraph I.C.6 of the decree defined seniority as “the length of

continuous employment with the Company ...” (emphasis

supplied).

Paragraph VIII.C provided that:

“... when a [job] vacancy occurs, an employee may transfer

laterally to another job classification within the same facility

in which he or she is employed for which he or she is qualified

or qualifiable without loss of seniority.”

In implementing the terms of this decree, Safeway originally

interpreted them to require it to grant to all of its employees

competitive seniority rights, for purposes of job bidding, layoffs

and recalls, based upon each employee’s length of service within

any bargaining unit. Accordingly, it originally “restored” to

Petitioners the seniority “lost” by them when they previously

transferred into the Local 435 unit.

When Local 435 learned of Safeway’s actions, however, it

sought a clarification of the decree’s terms with the result that the

district court determined that:

“The Decree mandates that the seniority of all employees

who have transferred from one job or facility to another

since the effective dates of the Decree is to be computed for

all purposes (including bidding for trucking runs) on a

“Company-wide basis.” (emphasis supplied).

and

“An employee retains his/her seniority after a transfer ...

provided such transfer occurred after the effective date of the

Decree.” (emphasis supplied).

Under the decree, as thus interpreted, the contractual seniority

system continued to apply to all employees (both majority and

minority) who had transferred into the Local 435 unit before the

decree, but company-wide seniority was granted to all employees

(both majority and minority) who transferred after the decree was

entered.

Between the date of the decree’s entry and the date of the court’s

clarifying order, seven employees transferred into the Local 435

unit and were granted seniority based upon their total length of

service with Safeway. Of these seven, all were males; five were

white; one was black; and one was Spanish-surnamed.!

Shortly after the entry of the clarifying order, when it became

apparent that Local 435 was not, and could not, adequately

represent Petitioners’ interests? Petitioners sought, and were

allowed, to intervene in the action. They asserted, essentially, that

the decree’s provisions respecting seniority were not framed to

accomplish any legitimate purpose under the Act. Such

provisions, they asserted, were being utilized by senior white male

employees to gain enhanced seniority rights to the detriment of

junior minority employees. They alleged, therefore, that the

decree’s pertinent provisions should be amended so as to make

them applicable to all employees, rather than distinguishing

between employees based solely upon the artificial and fortuitous

event of the date the decree was signed, or, in the alternative, to

apply them only to minority employees, under the presumption

that only such employees would have been affected by any past

unfair employment practices.

'The district court held no evidentiary hearing upon the issues raised by Petitioners and,

consequently, made no findings of fact. Various parties filed affidavits with that court,

some of which were factually inconsistent, one with another, although not substantially

so.

>Petitioners do not assert that Local 435 violated its obligations owed to them under the

standards adopted in Vaca v. Sipes, 361 U.S. 171 (1967). The fact that they concede that

Local 435 exercised good faith, however, does not amount to a concession that Local 435

was an adequate judicial representative for them. Note Appendix, at page 4, n. 2.

6

Before Petitioners’ motion was entirely disposed of by the

district court, this Court announced its opinion in /nternational

Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977),

which held, inter alia, that the proviso to Section 703(h) of the Act

prohibited judicial abrogation of a seniority system established

by collective bargaining, absent evidence that its adoption was

motivated by unlawful intent.

In light of the Teamsters decision, both Petitioners and two of

the defendant labor organizations suggested to the district court

that a modification in the decree was dictated, so as to remove

therefrom the blanket grant of company-wide seniority to all

post-decree transferees and so as to substitute therefor provisions

which established a procedure for recognition of the seniority

rights of any minority member ‘mproperly denied job transfers in

the past. See Teamsters, supra, and Franks v. Bowman

Transportation Co., 424 U.S. 747 (1976).

Although requested by several parties to do so, the district

court held no evidentiary hearing upon the issues raised. Rather,

after considering various joint submissions by the parties, that

court merely entered a minute order denying Petitioners’ and two

labor organizations’, motions to modify.’

Petitioners instituted an appeal to the Court of Appeals. While

that appeal was pending, however, all parties petitioned the

district court to amend the decree by deleting therefrom on a

prospective basis, the seniority transfer provisions contained

therein. Such joint request was granted. The court-ordered

seniority system, therefore, was in effect for approximately 18

months.

‘Petitioners’ original motion was filed in April, 1977, some seven months after the

decree’s entry and 30 days after the district court's clarifying order was entered. In July,

1977, the district court provisionally denied Petitioners’ motion, but directed the parties to

present further factual materials to it. This was done in November, 1977, at which time

requests were made for an evidentiary hearing. The court's minute order was entered on

January 12, 1978, approximately nine months after the Petitioners’ original motion was

filed.

6. ARGUMENT

In affirming the district court’s denial of relief to Petitioners,

the Tenth Circuit acknowledged that the decree granted

“enhanced” seniority rights to post-decree transferees, “many of

whom had no more claim to Title VII protection than

[ Petitioners].” (App., p. 4). Likewise, that Court recognized that,

had the consent decree been entered subsequent to the

announcement of the Teamsters opinion, a legitimate issue

respecting the decree’s propriety might have been presented. (Id.,

p. 10).

Nevertheless, it affirmed the district court’s refusal to modify

the decree on three principal bases, as follows:

a. That relief from a final equitable decree under Rule 60(b),

Federal Rules of Civil Procedure, cannot take the form of

retroactive alteration of that decree;

\

b. That Teamsters did not require a different conclusion;

ahd

c. That, in any event, there was no proof presented to the trial

court that Local 435’s contractual seniority system was “bona

fide” within the meaning of the Section 703(h) proviso.

In reaching these conclusions, however, the Court of Appeals

failed to take cognizance of the vital distinctions between the

factual circumstances presented by this case and those involved in

the adjudications relied upon by it. Those distinctions consist of

the following:

a. Petitioners here were not made parties to the original

litigation; they received no formal notice of the same; and they

took no part in preparing the consent decree. They admit, of

course, that, in the “typical” lawsuit, it may well be presumed that

an employee’s collective bargaining agent will provide adequate

representation to him. Here, however, because of Local 435’s

necessary representation of two or more groups of employees

with conflicting interests, Local 435 could not adequately

represent all those interests. Indeed, after the decree’s entry, that

8

labor organization made claims, and took positions, diametrical-

ly opposed to Petitioners’ interests. Thus, in allowing Petitioners

to intervene at the trial level, the district court made a specific

finding that “their interest is not adequately represented by the

existing parties in this suit.”

This being the factual predicate, there exists reasonable

grounds for believing that the district court’s decree, as well as its

later clarifying order, was not “final,” at least under the

traditional concepts of “res judicata,” in any sense binding upon

Petitioners. Sam Fox Publishing Co. v. United States, 366 U.S.

683 (1961). See, also, Acha v. Beame, 570 F.2d 57 (2d Cir., 1978),

approving the vacation of a summary judgment, certified as final

under Rule 54(b), after this Court’s pronouncement in Teamsters,

supra, was published. Given these circumstances, the strictures

upon modification of an equitable decree, contained within Rule

60(b) or otherwise, cannot be applied.

Furthermore, even if it be conceded, arguendo, that only a

prospective modification of the decree is authorized, surely sucha

modification could be effective from the date of the filing of

Petitioners’ motion with the district court — a date nearly one

year prior to the date that the decree was actually modified.

b. The Court of Appeals grounded its opinion, in part, upon its

conclusion that Petitioners had failed to show sufficiently

changed conditions to warrant a modification in the decree’s

terms (App., p. 9). Yet, both Petitioners and the other parties to

the litigation were given no opportunity to present such evidence,

since the district court failed to grant their requests for an

evidentiary hearing. Likewise, the Court of Appeals refused to

remand the matter to the lower court for this purpose.

c. While the language of Section 703(h) does not, literally,

impose any limitation upon a federal court’s authority, that

provision, read in conjunction with the Act’s grant of jurisdiction

to the federal judiciary to enjoin intentional violations of the Act

(42 U.S.C. §2000e-5(g)), constitutes a positive proscription upon

the relief to be granted under Title VII. Ina substantive sense, this

restraint is similar to the restraint against injunctions in actions

9

involving “labor disputes,” which is to be found within the

provisions of the Norris-La Quardia Act (29 U.S.C. $104). Thus

considered, the Teamsters decision involved not merely a matter

of substantive law, but it established parameters for the exercise

of a federal court’s subject matter jurisdiction. If this be an

accurate analysis, that portion of the decree which purported to

affect the contractual seniority system was beyond the power of

the trial court to adopt.

d. The Court of Appeals noted that there had been’ no

determination made that the contractual seniority system was

“bona fide” under Section 703(h). However, the EEOC made no

assertion that it was not “bona fide” in its complaint (filed prior to

Teamsters), nor did any party so contend. On the contrary, Local

435 explicitly contended below that, had it been aware of the

Teamsters’ principle at the time, it would not have joined in

approving the consent decree. Finally, all parties agreed to, and

the trial court approved of, a return to the contractual seniority

system approximately 18 months after the decree’s entry. Surely,

if the EEOC had any questions with respect to the system’s bona

fides, it could not have consented to its reinstitution.

7. CONCLUSION

Petitioners assert that the decision of the Court of Appeals in

this case failed to give to this Court’s decision in Teamsters, supra,

the effect which thi. Court intended. Asa result, its decision is, we

submit, inconsistent with the basic tenets of that decision. This

Court should grant its writ of certiorari to review the judgment of

the Court of Appeals for the purpose of re-emphasizing the

attention which the federal courts must pay to the

Congressionally-approved proviso to Section 703(h) of the Act.

Respectfully submitted,

Of Counsel:

CRISWELL & PATTERSON John A. Criswell

3780 South Broadway 3780 South Broadway

Englewood, Colorado 80110 Englewood, Colorado 80110

303/ 761-0800 Counsel for Petitioners

10

APPENDIX

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Plaintiff-Appellee,

VS.

SAFEWAY STORES, INC.; DENVER RETAIL

GROCERS & RETAIL CLERKS UNION LOCAL

NO. 7; AMALGAMATED MEAT CUTTERS

AND BUTCHER WORKMEN OF NORTH

AMERICA, AFL-CIO, LOCAL NO. 634; THE

INTERNATIONAL UNION OF OPERATING

ENGINEERS LOCAL UNION NO. 1;

DELIVERY DRIVERS, WAREHOUSEMEN

AND HELPERS, LOCAL UNION NO. 435;

MILK DRIVERS AND DAIRY EMPLOYEES

LOCAL UNION NO. 537; and WAREHOUSE

AND DISTRIBUTION EMPLOYEES UNION,

LOCAL UNION NO. 482,

Defendants-A ppellees,

No. 78-1138

VS.

HOWARD COURTWRIGHT; SAM CUTRELL:;

RICHARD CYR; JIM DOYLE; CARL

GUSTAFSON; GENE HINES; TERRY HUCKINS:

DON PETERS; ROGER PIERCE; ELDON

RHODES; JOE RIELLY; JON SCROGGINS;

DENNIS SMITH; WAYNE STALLSWORTH;

GENE TUGGLE; PAUL ULLERICH; and FRED

WOOLSEY,

Intervenors-Appellants.

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. Case No. 75-F-1184)

John A. Criswell of Criswell & Patterson, Englewood, Colorado,

for Intervenors-Appellants.

Martin D. Buckley of Hornbein, MacDonald & Fattor, Denver,

Colorado, for Defendant-Appellee Delivery Drivers, Ware-

housemen and Helpers, Local Union No. 435.

Gregory A. Eurich (with Richard W. Comfort on the brief) of

Holland & Hart, Denver, Colorado, for Defendant-Appellee

Safeway Stores.

Marilyn S.G. Urwitz (with Abner W. Sibal, General Counsel;

Joseph T. Eddins, Associate General Counsel; and Beatrice

Rosenberg, Assistant General Counsel, on the brief), Washing-

ton, D.C., for Plaintiff-Appellee Equal Employment Opportuni-

ty Commission.

Walter Brauer (with Thomas B. Buescher on the brief) of Brauer

& Simons, Denver, Colorado, for Defendant-Appellee Amal-

gamated Meat Cutters and Butcher Workmen of North America

Local No. 634.

Before SETH, Chief Judge, McWILLIAMS and McKAY,

Circuit Judges.

McKAY, Circuit Judge.

This action was instituted by the Equal Employment

Opportunity Commission (EEOC) pursuant to §706 of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§2000e-5(f), (g).

alleging unfair employment practices by Safeway Stores, Inc.

After the filing of initial pleadings, EEOC, Safeway and the

various labor unions made up of Safeway employees joined as

defendants pursuant to Fed. R. Civ. P. 19(a) (2) entered into a '

12

lengthy consent decree. Among other things, the decree provided

for a change in the calculation of seniority upon transfer from one

Safeway labor unit to another: “[W]hen a vacancy occurs, an

employee may transfer laterally to another job classification ...

for which he or she is qualified or qualifiable without loss of

seniority. Selection of applicants for transfer shall be based upon

seniority with the Company.” Record, vol. |, at 28, para. VIII.C.

“Seniority” is defined in the decree as “the length of continuous

employment “ith the Company computed from the date the

employee first reports for work” in any Safeway labor unit

(company seniority). Record, vol. 1, at 17, para. I-C-6. In

contrast, the various collective bargaining agreement with

Safeway provided that seniority would be measured by the length

of an employee’s service “within the bargaining unit” (unit

seniority). Supplemental Record at 31. Therefore, the decree

modified the existing seniority system to allow transfers between

job classifications, and therefore between bargaining units,

without the loss of seniority accrued since the original date of hire

with Safeway.

Safeway initially construed the consent decree to grant

company seniority to all of its employees. One of the involved

unions, Delivery Drivers, Warehousemen and Helpers, Local

Union No. 435, petitioned the district court to enjoin Safeway

from acting on this interpretation, and Safeway requested

clarification of the decree regarding the seniority provisions. In

response, the district Court entered an “Order Interpreting the

Consent Decree and Granting Injunctive Relief.” In pertinent

part, that order determined: “The Decree mandates that the

seniority of allemployees who have transferred from one job... to

another since the effective date of the Decree is to be computed

for all purposes ... on a company-wide basis.” Record, vol. 1, at

171 (emphasis added).

Shortly after the entry of this order, 17 individual members of

Local 435 were allowed to intervene in the suit. The intervenors

had transferred from another Safeway job into Local 435 prior to

the date of the consent decree and, under the court’s interpreta-

tion of the decree, they would not be credited with company

13

seniority. Accordingly, their seniority status was adversely

affected by the enhanced seniority of post-decree transferees,

many of whom had no more claim to Title VII protection than

intervenors.! In a motion for modification, intervenors insisted

that either all employees be accorded company seniority or that

only minority members retain seniority advantages upon

transfer.

In denying the intervenors’ motion, the district court indicated

that it would be willing to modify the decree only upon a strong

showing:

(1) that the goals of the Decree would be substantially

furthered by such a modification, or (2) that the harm to[the

intervenors] outweighs (a) the benefits to minority em-

ployees from prospective application of the transfer

provisions of the Decree, and (b) any harm that may result

from retroactive application of these provisions.

Record, vol. |, at 181. In addition, the court ordered the parties to

meet in an attempt to agree on a modification. When the parties

failed to agree or to convince the court of a compelling need for

modification, intervenors’ further motion for modification was

denied, forming the basis of this appeal.

While this appeal was pending, all parties stipulated to certain

amendments of the original consent decree. Pursuant to this

stipulation, the right to retain company seniority upon transfer

terminated on July |, 1978, approximately a year and a half after

the entry of the decree. Those who transferred after the date of the

decree but before this amendment became effective retained

company seniority.

'One of the intervenors is black and, as of the last available data, two of the post-decree

transferees into Local 435 were Spanish-surnamed. All others are white males.

Apparently, not all of the intervenors were in fact disadvantaged in the seniority system by

transfers under the decree. The evidence on both the numbers and makeup of affected

intervenors and protected transferees is grossly incomplete, but resolution of these

specifics is not necessary to the conclusion we reach.

2Intervenors do not contend that their interests were not fairly represented by Local 435

in the negotiation of the consent decree. See Brief for Intervenor-Appellants at 29 n.10.

See also Bolden v. Pennsylvania State Police, 578 F.2d 912, 918 (3d Cir. 1978).

14

We consider preliminarily whether the district court erred in

interpreting the language of the consent decree to afford company

seniority only to post-decree transferees. It is clear that the

enforcing court has power to interpret a decree when its language

results in confusion. See Pasadena City Board of Education vy.

Spangler, 427 U.S. 424, 438 (1976). Ridley v. Phillips Petroleum

Co., 427 F.2d 19 (10th Cir. 1970), demonstrates the breadth of a

court’s discretion in constructing decrees. We held there that a

court should adopt an interpretation which renders the judgment

“more reasonable, effective, and conclusive.” /d. at 23 (quoting

Pen- Ken Gas & Oil Corp. v. Warfield Natural Gas Co., 137 F.2d

871 (6th Cir. 1943), cert. denied, 320 U.S. 800 (1944)).

The district court’s interpretation of the seniority provisions of

this consent decree was reasonable in light of the language and

purpose of the decree.) The interpretation thus become pari

materia with the decree for purposes of this opinion.

There are two channels through which a consent decree may

later be modified.4 Rule 60(b) allows for relief from a final

judgment, order or proceeding upon a showing that “the

judgment is void,” that “it is no longer equitable that the

judgment should have prospective application,” or for “any other

reason justifying relief.” Fed. R. Civ. P. 60(b) (4), (5), (6). In

addition, a court of equity has continuing jurisdiction to modify a

decree upon changed circumstances, even if the decree was

entered by consent. United States v. Swift & Co., 286 U.S. 106

(1932). However, a court’s power to modify is not to be lightly

exercised to change the settled terms of a consent decree. An

appellate court must be particularly reluctant to alter a decree

because the entering court has broad discretion in the administra-

‘Even if the interpretation of the district court is viewed as a substantive change in the

intention expressed by the original decree rather than a mere clarification, such an

interpretation is within the court's power under the very doctrines the intervenors seek to

have us apply in this appeal.

*The intervenors do not suggest the procedural approach upon which they rely.

ts oe acer eater ne

Renee ae ewe

ones lat al pt

15

tion of such decrees. See Franks v. Bowman Transportation Co.,

424 U.S. 747, 763-64 (1976); EEOC v. American Telephone &

Telegraph Co., 556 F.2d 167, 178 (3d Cir. 1977), cert. denied, 438

U.S. 915 (1978); United States v. Allegheny- Ludlum Industries,

Inc., 517 F.2d 826, 850 (Sth Cir. 1975) cert. denied, 425 U.S. 944

(1976); West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1085-

86 (2d Cir.), cert. denied, 404 U.S. 871 (1971). A trial court’s

ruling on a Rule 60(b) motion will not be disturbed by this court

absent an abuse of discretion. Winfield Associates, Inc. vy.

Stonecipher, 429 F.2d 1087, 1090 (10th Cir. 1970).

Intervenors’ first objection to the decree is that a grant of

enhanced seniority rights to all post-decree transferees rather

than to all employees or to minority transferees only does not

fulfill any legitimate purpose of Title VII. We agree that the

purpose of Title VII is to secure relief to members of a class

those who may be subject to employment discrimination “on the

basis of race, color, religion, sex, or national origin.”5 42 U.S.C.

§2000e-2. But to argue that the terms of a consent decree may not

vary from the statutory limits of Title VII® is to misconceive the

nature of consent decrees and to ignore the strong policy

embodied in Title VII in favor of voluntary settlements.’. See

Alexander v. Gardner- Denver Co., 415 U.S. 36, 44(1974): United

States v. Allegheny- Ludlum Industries, Inc., 517 F.2d 826 (Sth

Cir. 1975), cert. denied, 425 U.S. 944 (1976). Of course. the statute

‘Title VII actions can be brought for the benefit of a potential class of discriminatees

rather than for merely those who can prove they were actually victims of discrimination.

See United States v. Navajo Freight Lines, 525 F.2d 1318, 1324-26 (9th Cir. 1975).

‘Some victims of discrimination within the target of Title VII may not be readily

identified ie., those hampered in emp oyment opportunities by their religious

affiliation or national origin. Consequently, we are unable to detect from intervenors’

figures how many of the post-decree transferees were actually within the literal scope of

litle VII. Some broadening of apparent class limits may be necessary to reach ali those

affected.

“At the core of this consent decree is an agreement between Sateway and the unions

reached in an attempt to comply with Title VII. Some comparison can be made to a

collective bargaining agreement which, according to the Supreme Court, “may go further,

enhancing the seniority status of certain employees for the purposes of furthering public

policy interests beyond what is required by statute, even though this will to some extent be

detrimental to the expectations acquired by other employees under the previous seniority

agreement.” Franks v. Bowman Transportation Co., 424 U.S. 747, 778-79 (1976) (citing

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953)).

16

may provide the broad outlines of the objectives to be reached

and the mechanisms to be used. This court would not

countenance governmental coercion in directions wholly outside

the purview of congressional pronouncement under the aegis of

consent decree negotiations.

It is not the purpose of Rule 60(b) or the inherent powers of

chancery to allow the modification of a consent decree merely

because it reaches a result which could not have been forced on

the parties through litigation. For example, in V.7.A., Inc. v.

Airco, Inc., 597 F.2d 220 (10th Cir. 1979), this court upheld a

consent decree against a Rule 60(b) (4) attack. The appellant

claimed that the relief afforded by the consent decree was in

violation of federal patent law and was therefore void. This court

responded to that “[e]ven if the parties’ consent decree does

technically run afoul of federal patent law principles, the problem

would be relief from an erroneous judgment, not a void one.” /d.

at 226. We held that Rule 60(b) (4) “is not available to correct

mere legal error.” /d. See also Mayberry v. Maroney, 558 F.2d

1159, 1164 (3d Cir. 1977). In United States v. Swift & Co., 286

U.S. 106 (1932), the Supreme Court held that an “injunction,

whether right or wrong, is not subject to impeachment in its

application to the conditions that existed at its making.” /d. at

119. The fact that a consent decree exceeds the law by prohibiting

lawful conduct, Swift & Co. v. United States, 276 U.S. 311, 328-

31 (1928), or by granting an unauthorized remedy, Walling v.

Miller, 138 F.2d 629 (8th Cir. 1943), cert. denied, 321 U.S. 784

(1944), does not render it void. Such efforts may be grounds for

reversal on appeal of the judgment, but they are not grounds for

collateral attack.

Although a consent decree will not be vacated merely because it

is legally erroneous, it may be altered upon a showing of changed

circumstances which have produced “hardship so extreme and

unexpected” as to make the decree oppressive. United States v.

Swift & Co., 286 U.S. 106, 119 (1932); S.E.C. v. San-Dal Oil &

Gas, Inc., 433 F.2d 304, 305 (10th Cir. 1970); Ridley v. Phillips

Petroleum Co., 427 F.2d 19,22 (10th Cir. 1970). We find no abuse

of discretion in the district court’s determination that this decree

eet eee

Oe OL By 2

17

was not rendered inequitable by changed circumstances. There is

no evidence indicating that the facts — e.g., the nature and

makeup of Safeway employees and operations — against which

the decree and the interpreting order were framed have

substantially changed.

Intervenors assert an additional ground for impeaching the

consent decree. They argue that /nternational Brotherhood of

Teamsters v. United States, 431 U.S. 324(1977), decided after the

decree and interpretive order were entered, compels modifica-

tion. In interpreting §703(h) of Title VII, the Supreme Court in

Teamsters held that “an otherwise neutral, legitimate seniority

system does not become unlawful under Title VII simply because

it may perpetuate pre-Act discrimination.” /d. at 353-54. We are

not obliged to decide for this appeal what impact Teamsters

would have on a consent decree reached after Teamsters was

decided or on the outcome of subsequent litigation between these

parties. We decide only that Teamsters does not require

retroactive alteration of the consent decree in this case.

A similar situation was presented in Collins v. City of Wichita,

254 F.2d 837 (10th Cir. 1958). After the original judgment in

Collins became final, the Supreme Court reviewed, in another

case, the statute upon which the judgment was based and found it

unconstitutional. In denying a Rule 60(b) motion based on the

subsequent Supreme Court decision, this court held, “A change in

the law or in the judicial view of an established rule of law” is not

an extraordinary circumstance justifying relief. /d. at 839. The

Third Circuit confronted a similar change in the case law on a

Rule 60(b) motion in Mayberry v. Maroney, 558 F.2d 1159 (3d

Cir. 1977). It concluded that the power to alter decrees “does not

contemplate relief based merely on precedential evolution.” /d. at

1164. See also Chicot County Drainage District v. Baxter State

Bank, 308 U.S. 371 (1940).

There are some situations where a change in the law warrants

modification of an injunctive decree. For instances, in System

Federation No. 91 v. Wright, 364 U.S. 642 (1961), the Supreme

Court balanced the policies of finality and flexibility and

determined that an amendment of the statute underlying an

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earlier decree made prospective enforcement of the decree

inequitable. However, it was the prospective injunctive effect of

the decree at issue in System Federation. The Court did not

purport to erase retroactively the effect of the decree.

Other cases have held that a significant judicial clarification of

the law will justify altering the future application of a decree in

compelling circumstances. See Pasadena City Board of Educa-

tion v. Spangler, 427 U.S. 424(1976); City & County of Denver v.

Denver Tramway Corp., 187 F.2d 410, 417 (10th Cir. 1951);

Coca-Cola Co. v. Standard Bottling Co., 138 F.2d 788 (10th Cir.

1943). No attempt was made in these cases to undo the effects of

past enforcement.’ In contrast, intervenors seek only the

unraveling of seniority already assigned to employees who

transferred in reliance to the decree. Because the decree has now

been amended to delete the transfer provisions, future application

of the decree is no longer in issue.

There is one additional reason why Teamsters does not compel

our alteration of the seniority provisions of this decree. Teamsters

prohibits abrogation of a seniority system only if that system is

bona fide.? Because this case was never litigated, there has been no

determination that Safeway’s seniority system is bona fide.

Intervenors would have us assume at this point the system was

bona fide, or at the least, remand the case for a hearing and

determination. This we decline to do. The policy of voluntary

settlement so important to the enforcement of Title VII would be

seriously undermined if the approving court were required to

establish the facts underlying the parties’ positions before

approving a consent decree. The power to compromise exists

‘Spangler differs from the instant case in one other significant way. In Spangler the

Supreme Court decision which cast doubt on the propriety of continued enforcement of

the consent decree as interpreted was decided after the entry of the original decree but

before the offending interpretation. The question in Spangler, therefore, was not whether

a subsequent case requires modification of an interpretive order already made final.

*In Acha v. Beame, 438 F. Supp. 70(S.D.N.Y. 1977), aff'd, 570 F.2d (2d Cir. 1978), for

instance, the court determined that Teamsters required Rule 60(b) relief from an

injunction when, during the course of the litigation which produced the injunction, it had

been determined that the seniority system involved was “facially neutral ... and followed

the ... dictates of” state law. 438 F. Supp. at 73.

eesti sch ane ie

19

partially because of the uncertainties and expense typical of

adversary hearing and judicial determination of fact. West

Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1085-86 (2d Cir.),

cert. denied, 404 U.S. 871 (1971). We concur with the district

court, “A Consent Decree would be worthless if it could be

attacked on the ground that had the Court made a particular

determination, such relief would then not be statutorily

available.” Record, vol. 2, at 213.

We are unconvinced that the intervenors should obtain the

extraordinary relief they request. The district court did not abuse

its discretion in administering the decree.

AFFIRMED.