Petition — Retail, Wholesale & Department Store Union v. G. C. Murphy Co.

Supreme Court brief1980

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Text

| Supre

me Court, U.S.

FILED

80-461 sEP 22 1980

No. —— MICHAEL RODAK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1979

Reram, WHOLESALE AND DEPARTMENT

Store Union, AFL-CIO,

Petitioner,

THe G. C. Murpuy Company,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Ropert MarRKEWIcH | LAURENCE Gop

Markewich, Rosenhaus, 815 16th Street, N.W.

Markewich & Friedman Washington, D.C. 20006

350 Fifth Avenue .

New York, N.Y. 10001 JosePH M. Maurizi

Balzarini, Carey & Maurizi

3303 Grant Building

Pittsburgh, Pa. 15219

Attorneys for Petitioner

SS ————————————eee

Ses <r

QUESTIONS PRESENTED

1. Whether an employer found to be monetarily liable

to employees for establishing sex-based job classifications

and pay scales in violation of Title VII of the Civil Rights

Act of 1964 has a cause of action for contribution from a

labor union that allegedly participated in the violations?

2. Whether the requirement of §706(f)(1) of Title VII

that suit may be brought only against a party named in an

EEOC charge is satisfied with respect to an international

union by a charge filed against one of its locals, when the

international was afforded no notice of or opportunity to

participate in the EEOC conciliation proceedings con-

ducted pursuant to the charge, and was not named in the

‘‘right to sue’’ letter issued by the EEOC to the charging

party?

TABLE OF CONTENTS

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NE UIIINE MUONS cc cccrcccevedccscovsccceccccessoccsvccsescbosseseee

The First District Court Decision .............cceseeeeeees

The First Court of Appeals Decision ................000

The District Court’s Decision on Remand ................

The Court of Appeals’ Second Decision (The De-

cision From Which Certiorari Is Now Sought)

Judge Sloviter’s Dissent ........scssscsssssssssessesssessesseesee

Reasons for Granting the WTit 00.00.0000... ccc ccseseeseeeeeees

I. THIS CASE SQUARELY PRESENTS A

Il.

QUESTION—WHETHER THERE IS A

TITLE VII RIGHT OF CONTRIBUTION—

WHICH IS RELATED TO AND SHOULD

BE HEARD WITH THE EQUAL PAY ACT

CONTRIBUTION QUESTION ACCEPTED

FOR DECISION IN THE NORTHWEST

AIRLINES CASE (NO. 79-1056) AND THE

ANTITRUST CONTRIBUTION QUESTION

OF THE WESTVACO CASE (NO. 79-972)

THE RULING BELOW AS TO WHETHER

NAMING A LOCAL UNION IN AN EEOC

CHARGE IS SUFFICIENT TO OPEN ITS

INTERNATIONAL UNION TO SUIT UN-

DER TITLE VII IS IN SQUARE CONFICT

WITH A DECISION OF THE SEVENTH

CIRCUIT AND INVOLVES AN IMPOR-

TANT AND RECURRING QUESTION OF

IEIEE TEAMED > cot ctcvebabnndsaldvascebtssseceusssedsospesonsenne

Ne onl ssuapanenbomabibnane

iii

TABLE OF AUTHORITIES

Page

Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405

PCO Lines crcvslesitasnipihabinaubuicliinasdciaisctiiapasbiipiabendiincaneee 17

Back v. Baker & Confectionery Workers, 16

FEP Cases 120 (S.D. Ohio, 1977) ...... desiiaesieen 22

Butler v. Local No, 4, Laborers Int’l. Union, 308

F.Supp. 528 (N.D.. TUL. 10GB) ...cccscsoccocersccessicsscncees 22

Cook v. Mountain States Telephone & Telegraph

Co., 397 F.Supp. 1217 (D. Ariz. 1975) .............. 22

Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417

Shs See TD -Llawistnesisiieulsineptadsciasnptatuaielalaniiens 14

Denicola v. G. C. Murphy Co., 562 F.2d 889 (3rd

CIOS: POD weliniai ceidtnadanckali itasitedhblantabadbienad aipecheahoneclen 5

Donnell v. General Motors Corp., 15 FEP Cases

BEB CISA Pes PEED ctcdcctcessceciectsdstdcnleasechapetudasoion 21

Evans v. Sheraton Park Hotel, 503 F.2d 177

a Sis IR ie haoeahhsdenaccctinbitcogmnsiniinnt Siiadlhactghte 21

Gibson v. Local 40, Supercargoes &€ Checkers,

etc., 543 F.2d 1259 (9th Cir. 1976) 00... cesses 21

Guerra v. Manchester Terminal Corp., 489 F.2d

| BRENNAN Coer eO 21

Halcyon Lines v. Haenn Ship Ceiling & Refitting

Cg Di Ss ee RED sansteiescecccentttnsansceressionnse 14

Harden v. Illinois Bell Tell. Co., No. 74 C 1505 »

COPCIns Ss AOUEMED cedtiassh:chatinennsnseenshidissidesndicendiosanitine 17

Holiday v. Red Ball Motor Freight, Inc., 399

FAO A CRP. TOs TRTG) : ocecttscesssscchorcesinscsicese 21

Jamison v. Olga Coal Co., 335 F. ‘Supp. 454 (S.D.

We iy BRITE iasetpicetiaatacgaiancipninsiennecsctepiieisiniatdsccbchteaiss 21

Le Beau v. Libbey-Owens-Ford Co., 484 F.2d

TOD i MOTE nid snthcennelicndiin 20, 22

McLean v. Alexander, 449 F.Supp. 1251 (D. Del.

1978), rev’d on other grounds, 599 F.2d 1190

STNG SO SUPE -chinconnitvinabtbcakdstantasiehanbiareacbiadiectimads 11

. Page

Northwest Airlines v. Transport Workers Union,

20 FEP Cases 969 (D. D.C. 1977), affirmed in

part and vacated in part on other grounds, 606

F.2d 1350 (D.C. Cir. 1979), cert. granted, No.

, & _RNER ADORE SONI A CAR eT 16, 17, 18, 19, 24

Olson Farms v. Safeway Stores, [1979] 2 Trade

Cas. (CCH) { 62,995 (10th Cir. 1979) ............ 17

Professional Beauty Supply, Inc. v. National

Beauty Supply, Inc., 594 F.2d 1179 (8th Cir.

NUTT sicntasbdisscktios-dcatangnicieouunasintin ilabcansboarasdiinaseeniiansiiois 17

Ruckel v. Essex International, Inc., 14 FEP

Coreen G06 Cir. Tine, BOE): ccviciccsccsnsescosicssscincoctese 22

Sokolowski v. Smith and Co., 286 F.Supp. 775

CER. DOM, RIMIOD sciicniicceddctiepicaintenneccsansainnapnniatenaie 22

Stevenson v. International Paper Co., 432 F.

Bene, BIO CW. Tah, 1GTT). cescreccocesiecscocesiccccressenin 21, 22

Textile Workers v. Lincoln Mills, 353 U.S. 448

EIU Ldschebsinessncucwnstbsisiialitah asleasiatpmcbeseeonsd-tanpteiehnialaiiaalan 12

Tippett v. Liggett € Myers Tobacco Co., 11 FEP

Cate TS00 CRD. IOC. TTB) ccsnsccnscccssccinctsccsistciins 22

Westvaco Corp. v. Adams Extract Co., cert.

granted, No. * sian ciiaaliihad Schad aie wcll 16, 19, 24

Williams v. Southern Bell Tell. & Tell. Co., 464

F.Supp. 367 (S.D. Fla. 1979) ..........cccsccscsssssseres 22

Wilson P. Abraham Construction Corp. v. Texas

Industries, Inc., 604 F.2d 897 (5th Cir. 1979),

petition for cert. pending sub nom. Tezas In-

dustries, Inc. v. Radcliff Materials, Inc., No.

79-1144 (filed Jan. 24, 1980) (U.S.L.W. 3579) 16

Younger v. Glamorgan Pipe & Foundry Co., 418

F.Supp. 743 (W.D. W.Va. 1976), vacated and

remanded on other grounds, 561 F.2d 563 (4th

Ss, METD ccitacthielsedechenanbcanmesdonebiantbaettiies tniadiade t= 17

Statutes:

Civil Rights Act of 1964, Title VII:

Section 706(b), 42 U.S.C. § 2000€-5 (1D) sescssessssseee

Section 706(f)(1), 42 U.S.C. ¢ 2000e-5(f)(1) ....3

Fair Labor Standards Act:

Section 16(b), 29 U.S.C. § 216(D) .......ccccsscscseesees

Labor-Management Relations Act:

UM OU le)

Miscellaneous:

Administrative Office of the U.S, Courts, 1979 An-

nual Report of the Director (1979) ......ccccsccsseeseees

Page

» 9, 20

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. ——

Retart, WHOLESALE AND DEPARTMENT |

Store Union, AFL-CIO,

Petitioner,

Tue G. C. Murpoy Company, :

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Retail, Wholesale and Department Store Union, AFL-

CIO, respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the

Third Circuit entered in this case on June 27, 1980.

OPINIONS BELOW

The original opinion of the district court is unreported,

and is reprinted herein as App. F (66a-120a). The first

opinion of the court of appeals is reported at 562 F.2d 880

(3rd Cir. 1977), and is reprinted herein as App. E (48a-

65a). The second district court decision is reported at 23

F.E.P. Cases 83 (W.D. Pa. 1979), and is reprinted herein as

App. D. (41a-47a). The second court of appeals decision

—the decision from which certiorari is sought—is reported

at .... F.2d ...., 23 F.E.P. Cases 86 (3rd Cir. 1980), and

is reprinted as App. A (1la-37a).

JURISDICTION

The court below entered judgment on June 27, 1980, App.

B (38a-39a). A timely petition for rehearing was denied

on July 21, 1980, App. C (40a). This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

Section 706, Civil Rights Act of 1964, Title VII, as

amended 42 U.S.C. § 2000e-5, provides in pertinent part

as follows:

(b) Whenever a charge is filed by or on behalf of

a person claiming to be aggrieved, or by a member of

the Commission, alleging that an employer, employ-

ment agency, labor organization, or joint labor-man-

agement committee controlling apprenticeship or other

training or retraining, including on-the-job training

programs, has engaged in an unlawful employment

practice, the Commission shall serve a notice of the

charge (including the date, place and circumstances

of the alleged unlawful employment practice) on

such employer, employment agency, labor organiza-

tion, or joint labor-management committee (herein-

after referre dto as the ‘‘respondent’’) within ten

days, and shall make an investigation thereof... .

If the Commission determines after such investigation

that there is reasonable cause to believe that the charge

is true, the Commission shall endeavor to eliminate any

such alleged unlawful employment practice by informal

methods of conference, conciliation, and persuasion. ...

(e) A charge under this section shall be filed within

one hundred and eightly days after the alleged unlaw-

ful.employment practice occurred and notice of the

charge (including the date, place and circumstances

of the alleged unlawful employment practice) shall be

served upon the person against whom such charge is

made within ten days thereafter, .. .

(f)(1) If within thirty days after a charge is filed

with the Commission or within thirty days after ex-

piration of any period of reference under subsection

unable to secure from the respondent a conciliation

agreement acceptable to the Commission, the Commis-

sion may bring a civil action against any respondent

not a government, governmental agency, or political

subdivision named in the charge. .. . If a charge filed

with the Commission pursuant to subsection (b) of this

section is dismissed by the Commission, or if within

‘one hundred and eighty days from the filing of such

charge or the expiration of any period of reference

under subsection (c) or (d) of this section, whichever

is later, the Commission has not filed a civil action

under this section . . . or the Commission has not

entered into a conciliation agreement to which the

person aggrieved is a party, the Commission, . . . shall

so notify the person aggrieved and within ninety days

after the giving of such notice a civil action may be

brought against the respondent named in the charge

(A) by the person claiming to be aggrieved...

(g) If the court finds that the respondent has inten-

tionally engaged in or is intentionally engaging in an

unlawful employment practice in the complaint, the

court may enjoin the respondent from engaging in such

unlawful employment practice, and order such affirma-

tive action as may be appropriate, which amy include,

but is not limited to, reinstatement or hiring of em-

ployees, with or without back pay (payable by the

employer, employment agency, or labor organization,

as the case may be, responsible for the unlawful em-

ployment practice), or any other equitable relief as

the court deems appropriate. Back pay liability shall

not accrue from a date more than two years prior to

the filing of a charge with the Commission. Interim

earnings or amounts earnable with reasonable diligence

by the person or persons discriminated against shall

operate to reduce the back pay otherwise allowable.

allowanble. No order of the court shall require the ad-

mission or reinstatement of an individual as a member

of a union, or the hiring, reinstatement, or promotion

of an individual as an employee, or the payment to him

of any back pay, if such individual was refused admis-

sion, suspended, or expelled, or was refused employ-

ment or advancement or was suspended or discharged

for any reason other than discrimination on account

of race, color, religion, sex, or national origin or in

violation of section 2000e-3(a) of this title.

STATEMENT

The Relevant Events

On July -2, 1969, Joanne Glus, who was employed at a

warehouse of G. C. Murphy Co. (‘‘the Company’’), filed a

charge with the Equal Employment Opportunities Commis-

sion (‘‘EEOC’’) against the Company alleging that she had

been the victim of sex discrimination in her employment.

On September 9, 1969, Glus filed an amended EEOC charge,

naming ‘‘ Retail, Wholesale and Department Store Union,

Local No. 940, AFL-CIO”’ (‘‘Local 940’’) as an additional

respondent and alleging that ‘‘Local 940 supports’’ the

Company’s discrimination. App. 43a, 73a; Joint Appendix

in Third Circuit, pp. 734a, 738a.

The EEOC found probable cause to believe that a viola-

tion had occurred, and initiated conciliation proceedings

pursuant to §706(b) of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-5(b). In those conciliation pro-

ceedings, monetary settlement proposals were exchanged,’

but no agreement was reached. App. 45a.

The petitioner herein, Retail, Wholesale and Department

Store Union (the International’’) is the international union

with which Local 940 is affiliated. The International was not

named as a respondent in the EEOC charges, nor did it

*The Company offered $50,000. The charging party sought

$500,000. App. 45a.

receive notice that those charges had been filed. The Inter-

national was not notified of nor aware of the conciliation

proceedings, and perforce did not participate therein. App.

43a; 62a, n. 13; 74a.

When the concilation proceedings failed to produce a

settlement, the EEOC issued a right-to-sue letter, pursuant

to § 706(f) (1), 42 U.S.C. § 2000e-5(f) (1), against the Com-

pany and Local 940; ‘‘no right to sue letter issued against

the International.’’ App. 43a, 74a.

Glus, together with other female employees of the Com-

pany’s warehouse, thereupon instituted this action pur-

suant to Title VII and the Equal Pay Act.? Their complaint

named as defendants not only the Company and Local 940,

but also the International. (It also named as a defendant

Teamsters Local 249 (hereinafter ‘‘ Local 249’’), which had

recently won an NLRB election and succeeded Local 940

as the bargaining representative of the warehouse employ-

ees). The case was certified as a class action on behalf of

all women employed in the warehouse. App. 2a, 53a.

The Company cross-claimed against each of the unions,

alleging that the unions were solely responsible for the

violations complained of and that if the Company were

held liable for backpay it had a right to contribution from

the unions. App. 2a.

Prior to trial, the Company entered into a settlement

with the plaintiffs, agreeing to pay $100,000 to the plain-

tiff class for the Equal Pay Act violations, $448,000 for the

Title VII violations, and $100,000 in attorney’s fees. The

settlement agreement provided that plaintiffs’ action

against the unions would be terminated, but that the Coin-

?The original complaint alleged violations only of Title VII,

but was later amended to allege violations of the Equal Pay Act

as well. App. 67a.

pany reserved its right to pursue its course of action for

contribution against the unions. App. 70a, 71a.

The First District Court Decision

After a trial on the contribution claim, the district court

ruled, in pertinent part, as follows: (1) the Company can-

not be awarded contribution for its Equal Pay Act viola-

tions, because Congress chose not to make unions liable for

backpay under 29 U.S.C. § 216(b) (App. 103a-106a); (2)

but federal courts do have the authority to award contribu-

tion to Title VII violators because ‘‘Title VII gave the

federal district courts a full panoply of equitable powers,’’

and an award of contribution would vindicate ‘‘the Act’s

goal of securing complete justice by whatever equity de-

mands’’ (App. 11la, 113a); (3) even though not named in

the EEOC charge the International can be held liable for

contribution under Title VII;* (4) on the merits, the collec-

tive bargaining agreement between the Company and Local

940, which the International had participated in negotiating

and had signed, violated Title VII (App. 82a-91a) ; and (5)

one-half the Title VII backpay should be assessed against

the unions, and judgment in favor of the Company against

the International should be entered in the amount of $242,-

337 (App. 91a, 102a-103a, 120a).

The First Court of Appeals Decision

The International appealed the Title VII contribution

award, and the Third Circuit reversed and remanded for

*The district court expressed uncertainty as to whether the

International had been named in the charge, and assumed arguendo

that it had not been, App. 74a.

The charge named as respondents the Company and ‘Retail,

Wholesale, and Department Store Union, Local 940, AFL-CIO.’’

further proceedings consistent with its opinion. App. 65a.*

In its opinion, the Court rejected the district court’s hold-

ing that the Company could obtain contribution from the

International even if the plaintiffs had not perfected their

right to sue the International under Title VII. In the

Court’s view, jurisdiction over the Company’s contribution

claim against the International existed only if jurisdiction

had existed over Glus’ action for backpay against the Inter-

national, i.e. only if Glus’ EEOC charge named the Interna-

tional or was otherwise sufficient to have conferred juris-

diction over a backpay claim against the International.

App. 57a-61a. Noting that 4 701(f)(1) authorizes suit only

against ‘‘the respondent named in the charge,’’ and declar-

ing that ‘‘the requirements set forth in the 706(f)(1) of

Title VII are jurisdictional,’’ App. 57a, the Court remanded

to permit the district court to decide (1) whether the Inter-

national in fact had been named in Glus’ charge (the Court

noting that the district court had not decided this factual

question) and (2) if not, whether Glus’ charge against

Local 940 sufficed to confer jurisdiction over Glus’ claim

tor backpay against the International. App. 6la-65a. With

respect to the latter question, the Court listed four factors

which ‘‘the district court should look to’’:

The court reasoned that ‘‘[t]}he designation ‘AFL-CIO’ in the

amended charge could . . . refer to either Local 940 or the Inter-

national.’’ App. 74a.

*Local 940 also appealed the Title VII contribution award.

It did not, however, challenge the district court’s ruling that con-

tribution can be awarded under Title VII; it challenged only the

_ finding on the merits that contribution was appropriate on the

facts. The Third Circuit affirmed. Denicola v. G. C. Murphy Co.,

562 F.2d 889, 892 (8rd Cir. 1977).

The Company appealed the district court’s denial of contribu-

tion for monies paid under the Equal Pay Act. The Third Cireuit

affirmed both as to the International, App. 65a, and as to Local 940,

Denicola, supra, 562 F.2d at 892-395.

1) whether the role of the unnamed party could through

reasonable effort by the complainant be ascertained at

the time of the filing of the EEOC complaint; 2) wheth-

er, under the circumstances, the interests of a named

are so similar as the unnamed ai Be that for the ©

of obtaining voluntary conciliation and com-

pliance it would be unnecessary to include the un-

named party in the EEOC proceedings; 3) whether its

absence from the EEOC proceedings resulted in actual

prejudice to the interests of the unnamed party; 4)

whether the unnamed party has in some way repre-

sented to the complainant that its relationship with the

complainant is to be through the named party. [ App.

64a.

The Court expressly refrained ‘‘at this time’’ from ad-

dressing ‘‘the other contentions raised by the parties.’’

App. 65a.

The District Court’s Decision on Remand

On remand, the district court found that ‘‘the Interna-

tional was not actually named in the charge before the

EEOC.”’ App. 43a. Nevertheless, ‘‘[b]ased on our conclu-

sions regarding the four inquiries mandated by the re-

mand, we find .. . that the plaintiff should not be held to

strict compliance to the procedural requirement that the

International be named in the charge before the EEOC.”’

App. 42a. The court found, with respect to the first inquiry

(Glus’ knowledge of the role of the International) that Glus

‘knew of the International’s involvement with the discrim-

inatory acts alleged’’—a finding which ‘‘ suggests exclusion

of the International as a defendant.’’ App. 44a. But, the

court concluded, the other three inquiries pointed the other

way. With respect to the second inquiry (‘‘similarity of

interests’’) the International and Local 940 had ‘‘identical’’

interests, since their liability rested on the same ground:

‘*aequiescence to discriminatory provisions of collective

bargaining agreements with Murphy.’’ App. 44a-45a. With

respect to the third inquiry (‘‘actual prejudice’’), the court,

after acknowledging that the ‘‘question .. . is difficult to

answer,’’ App. 45a, reasoned as follows:

The International argues that exclusion from con-

ciliation is eo ipso actual prejudice. However, persua-

sive this argument may be, such a finding is incon-

sistent with the remand. In the usual EEOC case an

unnamed party is excluded from conciliation. If we

were to accept the argument of the International,

actual prejudice would automatically be present, and

: hag as to prejudice could ever arise as a matter

-of law. ;

We consider the question of actual prejudice to re-

quire a finding whether, had the unnamed party been

named and made a party to conciliation, conciliation

could have been effective. This is, of course, a difficult

finding to make, for the effect of another party on

negotiations involves many subtle elements, and the

judgments of many persons.

Despite problems attendant fo the issue, it is proba-

ble that even if the International had been a party to

conciliation, settlement would not have been reached.

[ App. 45a-46a. |

Finally, with respect to the fourth inquiry (whether there

were ‘‘representations of the International] to plaintiffs that

{the local] would represent the International’’), the court

found ‘‘no direct statement by any International represen-

tative that the International was to be represented by

Local 940 for purposes of plaintiffs’ complaints’’ but found

that ‘‘([t]he nature of the relationship between the Inter-

national and Local was such that a member of the Local

could have concluded that a charge against the Local would

also include the International.’’ App. 46a. In the court’s

view, this was the equivalent of a direct representation

within the intendment of the Court of Appeals’ fourth in-

quiry. Id.

The court then addressed the question whether these

findings sufficed to confer jurisdiction over the backpay

claim against the International. Reasoning that the first

and fourth inquiries both were addressed to the same ques-

tion—whether the failure to name the International was

“‘excusable’’—the court concluded that satisfying either

one would confer jurisdiction despite the absence of a

charge against the International. App. 46a-47a. Accord-

ingly, the court reinstated the judgment.

The Court of Appeals’ Second Decision

(The Decision From Which Certiorari Is Now Sought)

The International appealed. The Court of Appeals

affirmed by a 2-1 vote (Higginbotham, J., joined by Gib-

bons, J.; Sloviter, J., dissenting).

‘he majority opinion first addressed the issue which had

been remanded by its prior decision: the existence of juris-

diction over the contribution claim against the Internation-

al. Declaring that its ‘‘four-prong test is not a mechanical

one; no single factor is decisive,’’ App. 4a, the majority

agreed with the district court that in the circumstances as

found on remand, Glus’ naming Local 940 in the charge

sufficed to confer jurisdiction over the International. App.

4a-5a.°

Having satisfied itself that there was jurisdiction over

the Company’s contribution claim, the Court of Appeals

5 The Court declined to decide the Company’s alternative claim,

advanced for the first time on the second appeal—that even if juris-

diction were lacking under Title VII it could be premised on 28

U.S.C. § 18331—‘‘ because jurisdiction exists under Title VII and

because [the Company] failed to plead section 1331 as a jurisdic-

tional base.’’ App. 5a, n. 1.

turned to the substantive question whether defendants in

Title VII actions can obtain contribution and held

that a federal common law right of contribution exists

when a defendant charged with a violation of Title VII

settles with a plaintiff prior to trial for the full amount

of damages and requests contribution from a non-set-

tling co-defendant who is jointly liable. [App. 14a.]

The lower court recognized that ‘‘[b]y its express terms

Title VII does not provide for a right of contribution,”’

App. 5a, and that the legislative history contains no evi-

dence of Congressional consideration of contribution claims,

App. 12a. This silence ‘‘reflects the probability that contri-

bution, although of considerable importance, was not con-

templated by the drafters of the legislation.’’ App. 8a.

But, that court declared, ‘‘fundamental fairness demands

a sharing of the liability,’’ App, 6a, and it is the ‘‘responsi-

bility of federal courts to define the body of federal com-

mon law which arises from the interstices of federal law,’’

App. ‘8a. The majority below noted its ‘‘disagreement with

the International and the dissent that no right of contribu-

tion exists in the federal common law because there is an

‘established rule that contribution would not be implied in

the absence of a statutory provision’,’’ App. 6a.

The lower court acknowledged that a ‘‘scholarly debate

... rages’’ about ‘‘the power of the federal courts to recog-

nize common law claims . . . and the extent to which it can

he exercised.’’ App. 8a.

Yet, in spite of the stridency of the debate, two prin-

ciples firmly and resolutely emerge. First, there is a

federal common law .. . Second, in some circumstances

federal common law causes of action arise from the

interstices of congressional acts. [App. 8a.]

The majority below reasoned that, as ‘‘the litigants be-

fore us have tendered the issue ... we must make a choice’”’

between rejecting or adopting a contribution rule, and it

disputed the dissent’s assertion that in making that ‘‘ policy

choice’’ it was performing a legislative, rather than ju-

dicial, function:

The dissent argues that by choosing, in this case, the

rule of decision which we believe the better one we are

unjustifiably performing a legislative function. ... The

dissent’s complaint is that ... we are invading the

exclusive preserve of Congress. If we were to announce

a federal rule of decision implied from a constitutional

provision, and thus arguably beyond the future control

of Congress there might be some merit to the dissent.

... But the rule of decision which we have found to be

preferable could be changed by Congress tomorrow.

There are countervailing arguments, and the policy

choice is a difficult one. But the litigants before us

have tendered the issue, and its closeness does not

absolve us from the obligation to decide it. Nor does

our action become an impermissible encroachment on

the legislative branch, merely because of the difficulty

of the issue presented. Whether we reject or adopt a

contribution rule we must make a choice.

If we were to be convinced that a rule prohibiting

contribution better served the purpose of Title VII our

adoption of that rule would stand in relationship to

Congress on exactly the same footing. The logic of the

argument that adoption of a rule prohibiting rather

than permitting contribution would be less legislative

escapes us. Certainly the party whose claim for con-

tribution was rejected would not think we acted any

less legislatively in rejecting it. Reliance on deference

to the legislative process cannot conceal the fact that

the dissent has made such a choice, [App. 14a-16a.]

The Court’s ‘‘policy choice’’ was to adopt a rule of

contribution as a matter y Wieser common law,’’ be-

eause in the Court’s view that rule would effectuate the

purposes of Title VII in several ways: (1) it would

achieve the apportionment of liability which Congress

expressly contemplated could result at the end of a con-

tested Title VII action in which both employer and un-

ion were sued by the plaintiffs; (2) it would enhance

Title VII’s ‘‘prophylactic’’ purpose by making clear to all

wrongdoers that they cannot escape backpay for their

wrongs by the fortuity of ‘‘the employee’s predilections as

to whom to sue’’; and (3) it would ‘‘serve the Title VII

policy of favoring conciliation and settlement’’ by assuring

a wrongdoer that settlement would permit subsequent

claims for contribution against other wrongdoers. App.

12a-13a.°

Judge Sloviter’s Dissent

Judge Sloviter dissented from the majority’s holding

that contribution can be awarded in Title VII cases, declar-

ing that the majority’s ruling ‘‘assumes unto the judiciary

the authority to make a federal common law of contribution

for a claim arising out of a federal statute which does not

expressly provide for contribution, does not imply that con-

tribution is authorized, and does not require contribution

for the effectuation of its purposes.’’ App. 20a.

Judge Sloviter agreed that there is a ‘‘federal common

law,’’ but saw its sweep as much narrower than the ma-

jority supposed. She believed that courts exercise such

‘‘lawmaking power’’ (App. 20a) only in limited instances:

®The Court acknowledged in a footnote that ‘‘some critics’’

believe that ‘‘contribution in fact serves to restrict settlements’’

because ‘‘a . . . defendant may be fearful of settling and being

held liable in contribution for a portion of an award assessed

against a co-defendant who went to trial,’’ but responded:

We do not agree that the potential for this problem should

destroy the right altogether. That problem has been dealt with

by courts who have been faced with requests for contribution

involving settlements in other areas of the law. See, e.g.,

McLean v. Alexander, 449 F.Supp. 1251 (D. Del. 1978),

rev’d on other grounds, 599 F.2d 1190 (3rd Cir. 1979) (se-

curities law). [ App. 14a, n. 2.]

those ‘‘where the federal courts have been given exclusive

jurisdiction by the Constitution, but where Congress has

not legislated to supply a rule of law’’ (principally dis-

putes between states, maritime cases, and causes of action

directly on the Constitution), App. 21a; those involving the

rights and duties of the United States, App. 23a; those in-

volving relations with foreign nations, App, 23a; and

those where ‘‘federal common law must be created or de-

termined because a federal statute supplies federal juris-

diction but does not supply the substantive rule of law (a

category which consists principally, if not exclusively, of

Section 301 of the LMRA, 29 U.S.C. §185, see Textile Work-

ers Vv. Lincoln Mills, 353 U.S. 448 (1957)), App. 24a.

Judge Sloviter thought the majority to be in error in

perceiving the decisions which imply private causes of ac-

tion for damages for violations of federal statues to be in-

stances of ‘‘lawmaking,’’ viz. of judicial articulation of

‘‘federal common law.’’ In her view, these are simply ex-

amples of statutory interpretation:

[T}here is no need to make law, as such. .. . The judi-

cial function is simply the ascertainment of legislative

intent, .. . Indeed, some policy analysis is needed but

it is policy analysis in the context of articulated legis-

lative action. [ App. 26a.]

Similarly, in ‘‘filling in statutory interstices’’ with respect

to statutes regulating private parties, the courts are not

fashioning a ‘‘federal common law,’’ but implementing the

will of Congress:

[I]t would be imparting too much to the Court’s inter-

pretive function to view the process as one of law-

making. It is impossible for the legislature to antici-

pate every possible issue of interpretation that may

arise in the application of a statutory scheme, and

hence it is inevitable that there will be unintended gaps

in legislation. . .. The nature and importance of the

gaps may vary. But the touchstone of judicial respon-

sibility in dealing with such stautory gaps is to ascer-

tain, to the best extent possible, the Congressional in-

tent, and to interpret the statute in light of the statu-

tory scheme. There is a fixed reference point — the

statutory provision, other language in the statute, and

the legislative intent—which delimits the parameter of

judicial action. [ App. 27a.]

In Judge Sloviter’s view, therefore, there is no room for

judicial authority to create a cause of action for contribu-

tion as a matter of ‘‘federal common law.’’ Such a cause of

action exists only if Congress intended that it exist. Absent

such intent, the matter is simply one about which Congress

has not legislated, and it is not the courts’ province to

initiate such legislation. App. 28a-3la.

In the case of Title VII, Judge Sloviter concludéd, it

could affirmatively be said that Congress did not intend to

create a right of contribution:

Turning to the statute at hand, it is questionable

whether there even exists in Title VII of the Civil

Rights Act of 1964 the statutory interstice found by the

majority. The statute establishes a comprehensive pro-

gram designed to eliminate discrimination of the type

specifically addressed. It establishes the rule of law,

administrative agency enforcement, private rights of

action, and specified procedures which must be fol-

lowed. It can operate effectively, and indeed has op-

erated effectively since its enactment, without a right

of contribution iy one defendant against another de-

fendant....

Even if we were to apply the statutory interpretive

rules used when there are, in fact, interstices, they do

not lead to the implication of a right of contribution

in Title VII. Congress, at the time of its enactment,

was well aware that the traditional rule applicable in

federal courts was that no right of contribution existed.

This had been established by the Supreme Court when

it said, ‘‘In the absence of legislation, courts exercising

a common law jurisdiction have generally held that

they cannot on tieir initiative create an enforceable

right of the pag omic 4 among joint tortfeasors.”’

Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp.,

342 U.S. 282, 285 (1951) [*]....

The rule of no cont¢ibution in antitrust actions has

been consistently followed by the federal courts, with

but one recent exception. [Citing cases]

Congress was not unaware that, in order to provide

for contribution in a claim based on a federal statute,

it must make explicit provision for such in the statute

itself. That is precisely what Congress did in the

Securities Act of 1933... . 15 U.S.C. § 77k(f) (1976).

Provisions for contribution similar to this also appear

in the Securities Exchange Act of 1934. See 15 U.S.C.

§§ 78i(e), 78r(b) (1976). atever force there may be

in the argument that the subsequent enactment of a

specific statutory provision in the Securities statutes

cannot shed light on Congressional intent as to the

antitrust laws, enacted more than two decades earlier,

it is inapplicable to Title VII which was itself enacted

substantially after Congress framed the specific provi-

sions for contribution in the Securities Laws.

... One can assume in the absence of contrary indi-

cation, that when it enacted Title VII Congress both

was aware of and relied on the established rule that

contribution would not be implied in the absence of a

statutory provision. [ App. 31a-34a, footnotes omitted. ]

Judge Sloviter’s conviction that Congress did not intend,

in enacting Title VII, to create a cause of action for con-

tribution, was confirmed by two additional considerations :

™ Judge Sloviter did not regard the subsequent decision in

Copper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106 (1974),

to have ‘‘in any way’’ undercut this central message of Halcyon:

In Cooper, the court was applying the well-established mari-

time rule allowing contribution between joint tortfeasors. Id.

at 106. Cooper belongs to that category of maritime and admi-

ralty cases where the Court is free to make law or, as it did

there, follow well-established precedent. [App. 32a.}

First, there are innumerable legislative judgments which

must be made in creating a right to contribution.

For example, if contribution is to be implied, should

it be equal contribution or should it be based on pro-

portionate fault? Should responsibility be allocated in

some fashion among intentional and unintentional

joint tortfeasors ... 1 Should the settling defendant

protected from liability for contribution to later

sued defendants? [App. 34a.]

Because these issues are ‘‘on their face, hardly suitable for

judicial determination,’’ id., it is unlikely that Congress

would have intended a right of contribution without pro-

viding guideposts for their resolution.

Second, not only is contribution not necessary to the ful-

fillment of Title VII’s purposes, it is possible that contribu-

tion would be detrimental to those purposes:

It might deter settlement if a settling defendant would

remain liable to nonsettling defendants for contribu-

tion, since it would preclude the most meaningful char-

acteristic of settlement: final and complete termina-

tion of involvement in the case. ... On the other hand,

a rule against contribution might very well encourage

deterrence because potential violations would be more

likely to refrain from violations if they knew that any

injured party could impose the full burden of recovery

on any one of them even though it played only a rela-

tively minor part in the activity. ... fide. 36a. ]

Because ‘‘the arguments as to the effect of a rule of con-

tribution are inconclusive’’ and ‘‘may cut either way,”’

they involve ‘‘policy judgments and considerations, which

Congress should evaluate and adjust,’’ App. 36a. It is ‘‘law-

making as a naked exercise of power’’ for the courts ‘‘to

weigh the competing policy considerations and to make an

essentially legislative judgment ... without the benefit of

the various competing interests which, by design, appro-

priately occurs within the legislative arena .. .’’ App. 37a.

REASONS FOR GRANTING THE WRIT

I. THIS CASE SQUARELY PRESENTS A QUES-

TION—WHETHER THERE IS A TITLE VII RIGHT

OF CONTRIBUTION—WHICH IS RELATED TO

AND SHOULD BE HEARD WITH THE EQUAL

PAY ACT CONTRIBUTION QUESTION ACCEPT-

ED FOR DECISION IN THE NORTHWEST AIR-

LINES CASE (NO. 79-1056) AND THE ANTITRUST

CONTRIBUTION QUESTION OF THE WESTV ACO

CASE (NO. 79-972).

It is manifest that the question whether an employer

found to have violated Title VII may obtain contribution

from a labor union is one that should be decided by this

Court. The Court has so recognized by granting certiorari

in Northwest Airlines, Inc. v. Transport Workers Union,

No. 79-1056, where the second question presented is:

Whether an employer has a right to contribution

from a labor union that is directly liable to employees

for violations of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., for participating in a

discriminatory collective bargaining agreement. [Peti-

tion For A Writ Of Certiorari, No. 79-1056, p. 2.]

Indeed, the authority of the federal courts to award

contribution is an issue of pressing importance in a num-

ber of federal statutory contexts. The first question pre-

sented in Northwest Airlines is the validity of a suit for

contribution under the Equal Pay Act. And this Court

has of course also granted certiorari to determine whether

an action for contribution lies among joint violators of the

federal antitrust laws. Westvaco Corp. v. Adams Extract

Co., No. 79-972." Moreover, as the dialogue between the

® The law in the courts of appeals is in disarry. Contrast, Wilson

P, Abraham Construction Corp. v. Texas Industries, Inc., 604 F.2d

897, 902-03 (5th Cir. 1979) petition for cert. pending sub nom. Texas

majority and dissenter below (the essence of which we set

out at pp. 8-16 supra) demonstrates, the analytic problems

attendant to answering the question whether contribution is

available (and if so under what circumstances) are formid-

able.

There is no area in which prompt resolution of the con-

tribution issue is more important than Title VII. More than

5,000 employment discrimination suits are filed each year

in the federal courts. Administrative Office of the U.S.

Courts, 1979 Annual Report of the Director, Table 30, p. 71

(1979). In the vast majority of cases in which violations are

found, the standards announced in Albemarle Paper Co. v.

Moody, 422 U.S. 405, 415, 417-422 (1975) require that back-

pay and attorney’s fees be awarded. Because so many work-

forces are unionized, there are frequently two potential

defendants: the employer and the union, And because em-

ployees do not always sue both, and, even when they do,

one defendant may settle without the other, questions of

contribution frequently arise.

Thus, on every count the Title VII contribution issue is

one uniquely requiring decision by this Court. However,

Northwest Airlines does not squarely raise the Title VII

Industries, Inc. v. Radcliff Materials, Inc, No. 79-1144 (filed Jan. 24,

1980) (48 U.S.L.W. 3579) and Olson Farms v. Safeway Stores,

[1979] 2 Trade Cas. (CCH) § 62,995 (10th Cir. 1979), with Pro-

fessional Beauty Supply, Inc. v. National Beauty Supply, Inc., 594

F.2d 1179 (8th Cir. 1979).

The district courts similarly are divided. Contrast Younger

v. Glamorgan Pipe & Foundry Co., 418 F.Supp. 743, 796-97 (W.D.

Va. 1976) (Widener, J.), vacated and remanded on other grounds,

561 F.2d 563 (4th Cir. 1977), and Harden v. Illinois Bell Tell. Co.,

No. 74 C 1505 (N.D. Tl. 1975), with Northwest Airlines v. Trans-

port Workers Union, 20 FEP Cases 969 (D.D.C. 1977), affirmed in

part and vacated in part on other grounds, 606 F.2d 1350 (D.C.

Cir. 1979), cert. granted, No. 79-1056, and cases cited therein.

contribution question. In that case, the employer initiated

an independent lawsuit against two unions, seeking contri-

bution to a judgment entered against the employer under

the Equal.Pay Act and Title VII. The district court dis-

missed the claim for contribution under the Equal Pay Act,

holding that Congress’ failure to authorize employer dam-

age suits against unions precluded employer contribution

against unions. But the district court denied the motions to

dismiss the claim for contribution under Title VII, conclud-

ing that in appropriate circumstances contribution is avail-

able under Title VII. The district court entered partial

judgment under Rule 54(b) on the Equal Pay Act claim,

and certified it sruling on the Title VII claim for interlocu-

tory appeal.

The D.C. Circuit affirmed the Equal Pay Act ruling,

but did not reach or decide the Title VII issue. The unions

having raised a laches claim for the first time on appeal,

and the EEOC having filed an amicus curiae brief support-

ing that claim, the Court ‘‘decline[d] to resolve a complex

and sensitive question when the claim which forms the basis

for the appeal may suffer from some other defect’’ (606

F.2d at 1356). Its disposition was as follows:

Accordingly, we remand that portion of the district

court’s order which grants contribution or indemnifica-

tion under Title VII and instruct the trial court to

make a determination on the laches question. If the

trial court finds that laches is not a bar, the defendants’

appeal may be renewed. [/d. at 1356.]

With the case in this posture, Northwest filed the petition

for certiorari which this Court granted. The Equal Pay

Act issue is, of course, squarely presented in Northwest, but

the ruling on that issue may not resolve the Title VII

issue (because the Equal Pay Act is different from Title VII

in that employees are not entitled under the former to sue

unions for damages). And this Court may well not reach

the Title VII issue, for it may conclude either to affirm the

Court of Appeals’ disposition (deciding nothing, and re-

manding for consideration of the laches claim), or hold that

laches bars contribution claims and thus remand without

reaching the broader issue.

By contrast, the issue whether contribution can be ob-

tained under Title VII unquestionably is presented in the

instant case, and it is presented in the context of a fully.

litigated record rather than a motion to dismiss. Aceord-

ingly, we urge the Court to grant certiorari and set this

case for argument with the Westvaco and Northwest cases.*

U. THE RULING BELOW AS TO WHETHER NAMING

A LOCAL UNION IN AN EEOC CHARGE IS SUF-

FICIENT TO OPEN ITS INTERNATIONAL UNION

TO SUIT UNDER TITLE VII IS IN SQUARE CON-

FLICT WITH A DECISION OF THE SEVENTH

CIRCUIT AND INVOLVES AN IMPORTANT AND

RECURRING QUESTION OF FEDERAL LAW.

This case also presents a second major question—one

which happens in this instance to arise in a contribution

context but has far broader ramifications.” Section 706(f)

* In order to facilitate the latter, we have moved to expedite the

consideration of this petition, and have signified therein our will-

igness to abide by an accelerated briefing schedule.

‘The court below found the requirement of § 706(f)(1)

described in the text to be a ‘‘jurisdictional prerequisite’’ to a

Title VII suit (App. 57a), and ruled that a suit for contribution

would not lie against a party whom the plaintiff could not sue for

failure to satisfy this ‘‘ prerequisite.’ The Company's ability to

sue the International was thus dependent upon whether plaintiffs

had satisfied § 706(f)(1) with respect to the International. The

issue whether naming the Local in the EEOC charge is sufficient

to support a suit against the International is accordingly the same

as if it had arisen directly in a Title VII action rather than in a

secondary action for contribution.

(1) of Title VII permits suit only against ‘‘the respondent

named in the [plaintiff’s prior EEOC] charge.’’ As this case

shows, frequently persons alleging Title VII violations file

an EEOC charge naming a local union as respondent, and

then later attempt to sue both the local and the international

union with which the local is affiliated. The Courts of Ap-

peals are in square conflict as to whether, and if so in what

circumstances, an international can be sued on the basis of

a charge against a local.

The court below has held that an international can be

sued even though it was not named in the EKOC charge,

had no notice of the charge, and was neither notified of nor

afforded an opportunity to participate in the administrative

proceedings on the charge. It is sufficient, in the opinion

of that court, that the charging party’s failure to name

the international did not reflect a deliberate decision to

exonerate the international, that the international’s alleged

wrong was similar to the local’s, and that more likely than

not the international suffered no ‘‘actual prejudice’’ by rea-

son of its exclusion from the administrative process (on

the theory that the international might not have supple-

mented the company’s monetary offer by enough to have

caused a settlement in the conciliation proceedings).

The decision below is in square conflict with the Seventh

Cireuit’s decision in Le Beau v. Libbey-Owens-Ford Co.,

484 F.2d 798 (7th Cir. 1973), where the Court would not

permit suit against the international on the basis of charges

against the local:

None of the Ay romps before the EEOC named

the International Union as a respondent and that Un-

ion never appeared or participated before the Com-

mission. Title VII employment discrimination suits are

permitted only ‘‘against the respondent named in the

charge’’ before the EEOC. 42 U.S.C. § 2000e-5(f) (1).

This policy decision is based on the Congressional pur-

pose of encouraging conciliation and voluntary settle-

ment of disputes and is supported by a long line of

authority. [/d. at 799.]

See also Evans v. Sheraton Park Hotel, 503 F.2d 177 (D.C.

Cir. 1974) (permitting joinder of non-charged international

only as a Rule 19 defendant necessary for relief)."* The

Fifth Circuit, declaring the issue ‘‘important,’’ has noted

the conflict. Guerra v. Manchester Terminal Corp., 489 F.2d

641, 647 n. 6 (5th Cir. 1974). Not surprisingly, in light of the

disagreement among the Circuits, the decisions of the dis-

trict courts are divided.”

The decision below, moreover, is, we believe, unsound.

The purpose of the charge-filing requirement, and of the

Tt should be emphasized hat this is not a case in which the

international, although not named in the charge, received timely

notice of the charge and participated fully in the EEOC pro-

ceedings. The Ninth Circuit has held that such notice and actual

participation fulfills the purpose of the charge-filing requirement,

and thus permits suit against the international as if it had been

formally named in the charge. Gibson v. Local 40, Supercargoes &

Checkers, etc., 543 F.2d 1259, 1263 n. 1 (9th Cir. 1976).

12*Mhe district courts have divided sharply on the issue.’

Stevenson v. Internatibnal Paper Co., 432 F.Supp. 390, 397 (W.D.

La. 1977). Several have ruled that a charge against a local cannot

support jurisdiction of a suit alleging violations by an interna-

tional. See, e.g., Jamison v. Olga Coal Co., 335 F.Supp. 454, 460-

461 (S.D. W.Va. 1971) ; Donnell v. General Motors Corp., 15 FEP

Cases 242, 244 (E.D. Mo. 1977); Holiday v. Red Ball Motor

Freight, Inc., 399 F.Supp. 81 (S.D. Tex. 1974). Others have held

that an exception is permitted only if the international had actual

notice of the charge and was afforded an opportunity to participate

in the administrative proceedings. Stevenson, supra, 432 F.Supp.

at 397-398; Back v. Bakery & Confectionery Workers, 16 FEP

Cases 120, 123 (S.D. Ohio, 1977) ; Ruckel v. Essex International,

Inc., 14 FEP Cases 403, 405-406 n. 2 (N.D. Ind. 1976). One court

has followed the Third Cirecuit’s ‘*four-prong’’ Glus standard.

limitation of suit to those against whom charges were

filed, is to implement ‘‘the Congressional purpose of en-

couraging conciliation and voluntary settlement of dis-

putes’’ through the EEOC pre-suit conciliation proce-

dures. Le Beau, supra. That purpose is undermined by

permitting suit against the International in this case. That

the victim’s failure to name the International was somehow

‘‘excusable’’ (App. 47a.)—even if that were true here, and

it is not *—is beside the point, as is the similarity of the

wrongs allegedly committed by the Local and the Inter-

national. The purpose of conciliation is not to determine

guilt, but to see if a settlement can be reached. While the

Local, in asserting its own innocence, might coincidentally

be asserting the/innocence of the International as well, the

Local’s failure (indeed, in this case financial inability, App.

72a) to offer any significant amount of money toward

Williams v. Southern Bell Tell. & Tell Co., 464 F.Supp. 367 (S.D.

Fla. 1979). Others have adopted different rationales for exceptions,

based upon agency principles, affinity between local and interna-

tional, degree of joint complicity in the violations alleged, etc. See,

e.g., Cook v. Mountain States Telephone & Telegraph Co., 397

F.Supp. 1217, 1224-25 (D. Ariz., 1975); Tippett v. Liggett &

Myers Tobacco Co., 11 FEP Cases 1290, 1292 (M.D.N.C. 1973). See

also Sokolowski v. Swith and Co., 286 F.Supp. 775, 782 (D. Minn.

1968) ; Butler v. Local No. 4, Laborers Int’l. Union, 308 F.Supp.

528, 530-531 (N.D. Ill. 1969).

Underlying the conflict, as the opinions reflect, are disagreements

on two points: (1) whether § 706(f)(1) is truly ‘‘jurisdictional,’’

or whether it merely reflects policy considerations which can be

outweighed in particular cases by countervailing policy considera-

tions; and (2) whether the purpose of § 706 (f)(1) is to protect

the prospective defendant, the prospective plaintiff, or the EEOC.

18 TIn its first opinion, the court below identified two factors as

indicia of such ‘‘excusability’’: that the charging party was

unaware of the international’s participation in the wrongs, and/or

that the international had designated the local as its agent to de-

settlement is no indication whatever of what the Interna-

tional might have offered had it been aware of the charge

and a participant in the conciliation proceedings. And the

court’s conclusion that the International suffered no ‘‘ac-

tual prejudice’’—i.e. that settlement ‘‘probably’’ would

not have been reached even had the International partici-

pated in the conciliation proceedings—is, as it acknowl-

edged, the sheerest speculation, a finding ‘‘ difficult to make’’

(App. 45a). Thus, the district court speculated that the

International might have offered $50,000 to settle, but sur-

mised that the charging party, having rejected the $50,000

would have rejected a combined Company-International

$100,000 settlement offer as well. Jd. That conclusion hardly

follows.

In view of the frequency with which the issue arises,

and the square conflict among the lower courts, this Court

should decide whether, and if so in what circumstances, an

international union may be sued under Title VII although

only an affiliated local was named in the EEOC charge.

fend it against charges of wrongdoing (App. 64a) .On remand,

the district court found both absent: the charging party knew

of the International’s participation, and had not been told that the

International had designated the Local as its agent to defend against

her charges (App. 44a, 46a). The district court however, found ex-

eusability on yet a third basis: that ‘‘the nature of the relationship

was such that a member of the Local could have concluded that a

charge against the Local would also include the International’’

(App. 46a). The court of appeals found this sufficient, but without

explaining why (App. 4a, 5a).

CONCLUSION

For the reasons set forth hereinabove, certiorari should

be granted, and this case should be set for argument in

tandem with Westvaco Corp. v. Adams Extract Co., No. 79-

972 and Northwest Airlines, Inc. v. Transport Workers

Union, No. eet

Respectfully submitted,

Rospert MarRKEWICH | LAURENCE GOLD

Markewich, Rosenhaus, 815 16th Street, N.W.

Markewich & Friedman Washington, D.C. 20006

350 Fifth Avenue

: JosEPH M. Maurizi

ati ba N.Y. 10001 Balzarini, Carey & Maurizi

al aa 3303 Grant Building

Pittsburgh, Pa. 15219

Attorneys for Petitioner

APFENDIX A

United States Court of Appeals

FOR THE THIRD CIRCUIT

Nos. 79-1507 and 79-1508

JOANNE Guus, KATHLEEN Swanson, Louise Zyta,

Constance Simm, Mary A. GerissLer, Lois ANN PopBEsEK,

Joan FE, Hornreck, MAXxINeE Bray, JOANNE L, ROMEsBuRG,

Mary Kan.er, STe.ta Wauyy, CarLeNE M. Fatco,

Bernice M. Surum, Sanpra K. Evans, Rose Marre

Apvamotk, Auicia A. UKAsIK, Karen L. Rossason,

VIRGINIA ANDERSON, Donna CRAIG

Vv.

Tue G. C. MurpHy Company, Retar., WHOLESALE AND

DEPARTMENT SrorE Union, Loca 940 anp

INTERNATIONAL UNION oF WHOLESALE AND

DEPARTMENT STORE Union, AFL-CIO

G. C. Murpuy Company,

Appellant in No. 79-1508

INTERNATIONAL UNION OF WHOLESALE AND

DEPARTMENT STorE Union, AF'L-CIO,

Appellant in No. 79-1507

On APPEAL FROM THE UnitTep Srares Distrricr Court

FOR THE WESTERN District or PENNSYLVANIA

(D.C. Crvm. No. 71-0261)

Argued November 15, 1979 Before

Grsons, HIGGINBOTHAM AND SLOVITER,

Circuit Judges

Filed June 27, 1980

OPINION OF THE COURT

A. Leon HicornsotuaM, Jr., Circuit Judge.

The International Union of Wholesale and Department

Store Union, AFL-CIO (the International) appeals for a

second time from an order of the district court which holds

it liable in contribution to The G. C. Murphy Company

(Murphy) for violations of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000g (Title

VII). Murphy cross-appeals challenging the district court’s

calculations of the International’s liability. We agree with

the district court that Murphy has a right of contribution.

We will affirm.

These appeals arise out of a class action brought in

1971 on behalf of all females employed by The G. C. Mur-

phy Company from July 1965 to January 1971. The plain-

tiffs in that action named as defendants Murphy; the In-

ternational; the Retail Wholesale and Department Store

Union, Local 940 (Local 940); and Teamster’s Loca] 249

(Local 249), the successor collective-bargaining agent of

Local 940. They alleged, mter alia, that Murphy and the

unions had violated Title VII and the Equal Pay Act of

1963, 29 U.S.C. § 206, by agreeing to and maintaining a

collective-bargaining agreement that provided for separate

job classifications, pay scales, and seniority systems for

male and female employees.

After the filing of answers, Murphy filed a cross-claim

against the unions in which it asserted that the unions

were solely liable for the discrimination complained of and

that if Murphy was found liable, it had a right of contribu-

tion against the unions. Prior to trial a settlement was

reached by Murphy and the plaintiff class, The settlement

was approved by the district court. It provided for the pay-

ment of $548,000 in damages and $100,000 in attorneys’

fees. The payment was to be made in three installments

with six percent interest on the deferred payments; $100,-

000 of the $548,000 was allocated to the Equal Pay Act

charge.

Murphy continued to press for contribution from the

unions and eventually settled with Local 940 for $4,146, the

total amount in Local 940’s treasury. Trial proceeded on

Murphy’s claim against the International and Local 249.

The district court concluded that Murphy and the defen-

dant unions had violated Title VII and that they were

equally liable for the discrimination and thus equally re-

sponsible for the financial loss of the plaintiffs. After divid-

ing the damages, the court entered judgment against the

International in the amount of $242,337. Glus v. G. C.

Murphy Co., Civ. No. 71-264 (W.D.Pa, Apr. 29, 1976), re-

printed in Joint Appendix at 124a-78a [hereafter Glus I].

The International appealed from that judgment assert-

ing that the district court did not have jurisdiction over

it under Title VIT because the International had not been

named in the complaint filed by the plaintiffs with the Equal

Employment Opporiunity Commission (EEOC). It also as-

serted that no right of contribution could be claimed for

violations of Title VII or the Equal Pay Act. In the first

appeal we held that Murphy had no right of contribution

under the Equal Pay Act, Denicola v. G. C. Murphy Co.,

562 F.2d 889 (3d Cir. 1977), but remanded for further pro-

ceedings on the issue of whether the district court had

jurisdiction under Title VII. Glus v. G. C. Murphy Co., 562

F.2d 880 (3d Cir. 1977). On remand the district court found

that the plaintiff had not named the International in the

EOC complaint but that the omission did not result in an

absence of jurisdiction. Glus v. G. C. Murphy Co., Civ. No.

71-264 (W.D. Pa. Feb. 14, 1979), reprinted in Joint Appen-

dix at 833a-40a [hereinafter Glus II]. The International

appeals for a second time challenging the district court’s

conclusions on jurisdiction and challenging the district

court’s earlier decision on the right of contribution. Murphy

eross-appeals arguing that the district court did not prop-

erly calculate the amount due under the right of contri-

bution.

II. Title VII Jurisdiction

In the first appeal we enumerated four factors that should

be considered in determining whether the district court

had jurisdiction under Title VII. They were:

1) whether the role of the unnamed party could through

reasonable effort by the complainant be ascertained

at the time of the filing of the EEOC complaint; 2)

whether, under the circumstances, the interests of a

named [party] are so similar as the unnamed party’s

that for the purpose of obtaining voluntary conciliation

and compliance it would be unnecessary to include the

unnamed party in the EEOC proceedings; 3) whether

its absence from the EEOC proceedings resulted in

actual prejudice to the interests of the unnamed party;

4) whether the unnamed party has in some way repre-

sented to the complainant that its relationship with the

complainant is to be through the named party.

562 F.2d at 888. This four-prong test is not a mechanical

one; no single factor is decisive. Instead each factor should

be evaluated in light of the statutory purposes of Title VII

and the interests of both parties. The district court ap-

plied these factors and concluded that it had jurisdiction.

We agree.

The interests of Local 940, which was named in the EEOC

complaint, and the International are identical in all signifi-

cant aspects, and thus the International was not harmed by

its absence from the EEOC proceedings. Their liability

arises from their participation in the same collective-bar-

gaining agreements. The International was the sole union

signatory to the collective-bargaining agreement for a por-

tion of the period where discrimination was found to have

taken place; later both the International and Local 940

signed the agreements. The International’s representative

was the chief union negotiator at many of the negotiation

sessions. The International’s interests were vigorously liti-

gated by Local 940 at the EEOC proceedings. Local 940

stood firm in its denial of liability, Further, both the Inter-

national and Local 940 were represented by the same attor-

ney, Emil EF. Narick, f'sq., in the district court proceeding

until Murphy filed its claim for contribution.

The plaintiffs’ interests were not harmed by the Inter-

national’s absence in the EEOC process. If a settlement

had been reached during the EEOC proceeding, complete

relief could have been obtained from the defendants then

present. We also note the finding of the district court that

the close relationship between the International and Local

940 could have led the plaintiff to reasonably assume that

the interests of both unions were to be represented by

Local 940. Glus II, App., at 838a-39a. Finally, we agree with

the district court that the conciliation process was not ren-

dered less effective because of the absence of the Inter-

national. The settlement agreement was not reached until

the federal court action had begun, at which time the Inter-

national was a party to the litigation.

We will therefore affirm the district court’s decision on

the jurisdictional issue.’

III. Right to Contribution

In its cross-claim Murphy requested contribution for

what it asserted was the International’s share of the dam-

ages Murphy had paid in the settlement agreement. By its

express terms Title VII does not provide for a right of

contribution. Murphy asserts that nevertheless a right of

1 For the first time Murphy argues that even if the district court

erred by concluding that it had jurisdiction under Title VII we

should hold that the district court had jurisdiction because

Murphy’s claim sounds in federal common law and thus an inde-

pendent basis for jurisdiction exists in 28 U.S.C. § 1331. As our

discussion below indicates, we agree that Murphy’s right to con-

tribution arises from the federal common law. As such section 133)

might have provided the basis for jurisdiction. See Illinois v. Mil-

waukee, 406 U.S. 91, 98-102 (1972). But see Northwest Airlines,

Inc. v. Transport Workers Union of America, 606 F.2d 1350, 1356

(D.C. 1979), petition for cert. filed, 48 U.S.L.W. 3453 (Jan. 16,

1980) (court’s jurisdiction over right of contribution for Title VII

claim may depend on timeliness of the suit). We do not decide

that issue because jurisdiction exists under Title VII and because

Murphy failed to plead section 1331 as a jurisdictional base.

contribution exists in the federal common law arising from

Title VII. It is to this claim that we now turn.

At the outset we note our disagreement with the Inter-

national and the dissent that no right of contribution exists

in the federal common law because there is an ‘‘established

rule that contribution would not be implied in the absence

of a statutory provision.’’ Typescript Opinion at 39. Ini-

tially most American courts held that there was no right

of contribution under the common law, relying on the Eng-

lish decision Merryweather v. Nixan, 8 Term R. 186, 101

Eng.Rep. 1337 (K.B. 1799). See, e.g., Union Stock Yards

Co. v. Chicago, Burlington, € Quincy Railroad Co., 196 U.S.

217 (1905). This prohibition resulted from the belief that a

wrongdoer should not be able to shift the responsibility of

his actions to the shoulders of another. The rule prohibiting

contribution has come into disrepute. It is now widely rec-

ognized that fundamental fairness demands a sharing of

the liability. Without a right of contribution a wrongdoer

may escape liability for his actions because of the happen-

stance of the plaintiff’s choice of defendants. See Prosser,

The Law of Torts, §50 (4th ed. 1971). See also Sellers,

Contribution in Antitrust Damage Actions, 24 Vill.L.Rev.

829, 855-63 (1979) (reviewing state law on contribution).

The vast majority of the states have now rejected the pro-

hibition either by statute, e.g., Del. Code tit. 10, §¢ 6301-08;

Pa. Cons. Stat. Ann. tit. 42 §§ 8323-27 (Purdon 1979), or

by judicial action. £.9., Knell v. Feltman, 174 F.2d 662 (D.C.

Cir. 1949); State Farm Auto Insurance Co. v. Continental

Casualty Co., 264 Wis. 493, 59 N.W.2d 425 (1953).

The International argues that the prohibition still exists

in federal law, relying on Halcyon Lines v. Haenn Ship

Ceilmy & Refitting Corp., 342 U.S. 282 (1952). Cf. Olson

Farms, Inc. v. Safeway Stores, Inc., 1979 — 2 Trade Cases

f 62,995 (10th Cir. 1979) (relying on Halcyon Lines to deny

contribution under federal anti-trust laws). We do not

agree. Halcyon Lines was an action for contribution arising

under the admiralty jurisdiction of the federal courts. The

Court found the claim inconsistent with the Longshore-

men’s and Harbor Workers’ Compensation Act, 33 U.S.C.

§§ 901-944. It denied the claim and stated, ‘‘{I]n the ab-

sence of legislation, courts exercising a common law juris-

diction have generally held that they cannot on their own

initiative create an enforceable right of contribution as

between joint tortfeasors.’’ 342 U.S. at 285. For a number

of years this language was relied upon to deny claims for

contributions brought under federal law. See, e.g., Gold-

lawr, Inc. v. Shubert, 276 F.2d 614, 616 n.3 (3d Cir. 1960)

(antitrust law). However, in 1974 the Supreme Court held

that its holding was not as far-reaching as the language

suggests. In Cooper Stevedoring Co., Inc. v. Fritz Kopke,

Inc., 417 U.S. 106, 111-13 (1974), the Court explained that it

had denied contribution in Halcyon Lines only because un-

der the facts of that case contribution was inconsistent with

the Harbor Workers’ Act. It stated:

[We think Halcyon stands for a more limited rule

than the absolute bar against contribution. ... On the

facts of this case, then, no countervailing considera-

tions detract from the well-established maritime rule

allowing contribution between joint tortfeasors.

The Supreme Court has yet to review a contribution

claim in a case outside of the admiralty context since Cooper

Stevedoring. But a number of lower courts have read

Cooper Stevedoring as supporting rights of contribution in

federal common law claims. F.9., Professional Beauty Sup-

ply Inc. v. National Beauty Supply, Inc., 594 F.2d 1179 (8th

Cir. 1979) (anti-trust law); Kohr v. Allegheny Atrlines

Inc., 504 F.2d 400 (7th Cir. 1974), cert. denied, 421 U.S. 978

(1975) (aviation law). But see Olson Farms, Inc. v. Safe-

way Stores, Inc. (denying right of contribution in anti-trust

law). Thus, Cooper Stevedoring provides positive support

for our conclusion that a federal common law right of con-

tribution exists.

As we noted above, no right of contribution is expressly

provided for in Title VII. This does not, however, end our

inquiry. For this does not necessarily reflect a congressional

intention to deny a right of contribution. Rather it reflects

the probability that contribution, although of considerable

importance, was not contemplated by the drafters of the

legislation. We must therefore inquire into the interstices

of Title VIT to respond to Murphy’s claim.

The responsibility of federal courts to define the body

of federal common law which arises from the interstices of

federal legislation has been established by a number of

Supreme Court decisions. F.g., Illinois v. Milwaukee, 406

U.S. 91 (1972) (federal common law right of nuisance rec-

ognized and applied to the pollution of interstate waters) ;

Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957) (fed-

eral labor law); Texas ¢ Pacific Railway v. Rigsby, 241

U.S. 33 (1916) (Safety Appliance Act).

The scholarly debate about the power of the federal

courts to recognize common law claims rages as does the

debate on the source of that power and the extent to which

it can be exercised. See, e.g., Ely, The Irrepressible Myth

of Erie, 87 Harv.L.Rev. 693 (1974); Friendly, Jn Praise of

Erie—And the New Federal Common Law, 39 N.Y.U.L.Rev.

383 (1964); Bickel & Wellington, Legislative Purpose and

the Judicial Process, 71 Harv.L.Rev. 1 (1957). Yet, in

spite of the stridency of the debate, two principles firmly

and resolutely emerge. First, there is a federal common

law. Illinois v. Milwaukee, 406 U.S. at 98-102. Second, in

some circumstances federal common law causes of action

arise from the interstices of congressional acts. See e.g.,

Textile Workers v. Lincoln Mills. Common law actions aris-

ing from federal legislation have been recognized in a va-

riety of circumstances, including instances when the com-

mon law establishes remedies and standards not set forth

in the legislation, but necessary for the fulfillment of the

legislative purpose, e.g., Illinois v. Milwaukee; Textile

Workers v. Lincoln Mills, and instances where the common

law provides a cause of action for an individual who has

been harmed by the violation of the federal statute. E.g.,

J. I. Case Co. v. Borak, 377 U.S. 426 (1964); Teras & Pacific

Railway v. Rigsby. In our review of the literature and the

case law we discern two types of cases which establish the

framework for our determination of whether a common

law right of contribution arises from the interstices of

Title VII.

The first are cases in which the common law provides

remedies or standards when legislation related to the peti-

tioner’s claim does not address the specific situation pre-

sented. These cases are illustrated by the seminal decision,

Textile Workers Union v. Lincoln Mills. In Lincoln Mills

the plaintiff union charged Lincoln Mills with violating a

collective-bargaining agreement. The Supreme Court held

that the standards for evaluating the claim were to be found

in the federal common law. The Court reasoned that when

Congress granted to the federal courts jurisdiction over

controversies involving labor organizations in the Labor

Management Relations Act, 29 U.S.C. §§ 141-187, it wanted

those controversies te be resolved by a federal common law.

The Court argued that a uniform federal law was necessary

to achieve the purposes of the Act. Although it made no

extensive analysis of the source of its power to fashion this

body of common law, it noted, ‘‘[i]t is not uncommon for

federal courts to fashion federal law where federal] rights

are concerned.’’ 353 U.S. at 457. The exact contours of this

body of common law was to be determined by a review of

the applicable legislation.

The Labor-Management Relations Act expressly fur-

nishes some substantive law. It points out what the

parties may or may not do in certain situations. Other

problems will lie in the penumbra of express statutory

mandates. Some will lack express oe —

but will be solved by looking at the policy of the le

lation and fashioning a remedy that will effectuate

policy. The range of judicial inventiveness will be ae.

termined by the nature of the problem.

Id.

A similar analysis was used in /llinois v. Milwaukee. In

that case the Supreme Court was presented with a ecom-

mon law nuisance action brought by the State of Illinois.

10a

Illinois brought the action against four cities of Wisconsin,

the Sewerage Commission of the City of Milwaukee, and

the Sewerage Commission of the County of Milwaukee in.

an attémpt to abate the alleged pollution of Lake Michigan,

a body of interstate water. The Court found that Congress

had a strong interest in ‘‘the quality of the aquatic environ-

ment as it affects the conservation and safeguarding of fish

and wilkdlife,’’ 406 U.S. at 102, evidenced by legislation such

as the Federal Water Pollution Control Act, 62 Stat. 1155,

as amended (presently codified at 33 U.S.C. §§ 1251 et seq.)

and the Fish and Wildlife Act of 1956, 70 Stat. 1119, 16

U.S.C. §742a. Undaunted by the absence of an express

cause of action in any of these acts covering Illinois’ claim,

the Court held that one existed in the federal common law.

It stated :

The remedy sought by Illinois is not within the precise

scope of remedies prescribed by Congress. Yet the rem-

edies which Congress provides are not necessarily the

only federal remedies available. ‘It is not uncommon

for federal courts to fashion federal law where federal

rights are concerned.’ Textile Workers v. Lincoln Mills,

353 U.S. 448, 457.

Id. at 103. See also National Sea Clammers Association v.

City of New York, No. 79-1360 (3d Cir. Feb. 5, 1980) (After

considering the rationale of [llinois v. Milwaukee, this court

concluded that there is a ‘‘federal common law of nuisance

{which] may be enforced by private plaintiffs.’’ Slip Op.

at 26.) |

The second group of cases are similar yet distinctive.

They deal with the specific issue of whether a federal com-

mon law action may be brought by an individual who has

been harmed by a violation of legislation designed to pro-

tect that individual. The earliest Supreme Court decision

of that nature seems to be Terasdé Pacific Ratlway v. Rigs-

by. The Rigsby Court held:

A disregard of the command of the statute is a wrong-

ful act, and where it results in damage to one of the

class for whose especial benefit the statute was enacted,

the right to recover the damages from the party in

lla

default is implied, according to a doctrine of the com-

mon law.

241 U.S. at 39. See generally Note, Implied Civil Liability

and the Trust Indenture Act, 52 Tul.L.Rev. 299, 309 (1978).

This issue has been the subject of a number of Supreme

Court decisions, and the applicable analysis has become

highly developed. In Cort v. Ash, 422 U.S. 66 (1975), the

Supreme Court set forth a four-prong test :

First, is the plaintiff ‘‘one of the class for whose

especial benefit the statute was enacted’’-—that is, does

the statute create a federal right in favor of the plain-

tiff? Second, is there any indication of legislative in-

tent, explicit or implicit, either to create such a remedy

or to deny one? Third, is it consistent with the under-

lying purposes of the legislative scheme to imply such

a remedy for the plaintiff? And finally, is the cause of

action one traditionally relegated to state law, in an

area basically the concern of the States, so that it would

be inappropriate to infer a cause of action based solely

on federal law?

Id, at 78 (emphasis in original; citations omitted). As we

have noted, the four-prong analysis of Cort v. Ash is de-

signed to ‘‘guide the courts in determining legislative in-

tent.’’ National Sea Clammers Association v. City of New

York, Slip Opinion at 15, citing, Touche, Ross & Co. v.

Redington, 442 U.S. 560 (1979), and Trans America Mort-

gage Advisors, Inc. v. Lewis, 100 S.Ct. 242 (1979). The in-

quiry in a right to contribution claim is somewhat different

because the party requesting contribution, by definition, will

never be a member of the class protected by the legislation.

Indeed that party will always be a member of the class

from whom the ‘‘especial’’ class was to be protected. North-

west Airlines, Inc. v. Transport Workers, 606 F.2d 1350,

1354 (D.C. Cir. 1979), cert. granted, 48 U.S.L.W. 820 (June

16, 1980).

Although the question presented in each of these cases is

different from Murphy’s claim we find them helpful in our

analysis. For in each of these cases the Court turns to the

relevant legislation to determine whether the common law

action exists, and ascertains the congressional intent as to

Pre

12a

both the underlying goals of the legislation and the specific ,

action presented. It is this methodology which we will use

in our evaluation of Murphy’s contribution claim.

In our review of the legislative history of Title VII we

have not found any materials which explicitly indicate

whether or not Congress intended for a right of contribu-

_tion to exist. The absence of such an explicit reference does

not end our inquiry, for ‘‘the legislative history of a statute

that does not expressly create or deny a private remedy

will typically be equally silent or ambiguous on the ques-

tion.’’ Cannon v. University of Chicago, 441 U.S. 677, 694

(1979). As we are ‘‘obliged to find an answer [we] must

resort to materials from which the congressional intent can

only be inferred.’’ United Parcel Service, Inc. v. United

States Postal Service, 604 F.2d 1370, 1383 (3d Cir. 1979)

(Higginbotham, J., dissenting).

The express terms of Title VII demonstrate a con-

gressional intent that unions be held financially liable with

employers for unlawful employment practices. Section

703(a), 42 U.S.C. § 2000e-2(a), proscribes employer dis-

crimination, and section 703(c)(3), 42 U.S.C. § 2000e-2

(c)(3), holds a union liable not only for discriminatory

actions in which it independently engages, but also when it

‘*cause[s] or attempt[s] to cause an employer to discrim-—

inate against an individual . . .’’ Furthermore, section

706(g) expressly states that a court may award damages

for ‘‘back pay (payable by the employer, employment

agency, or labor organization), ...’’ 42 U.S.C. § 2000e-5(g).

Under these provisions the union and the employer may be

held jointly liable when the unlawful activity was a joint

undertaking. See Evans v. Sheraton Park Hotel, 503 F.2d

177 (D.C. Cir. 1974) (employer, local union and interna-

tional held jointly liable for back pay and attorneys’ fees) ;

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364 (5th

Cir. 1974) (company and union held jointly liable for back

pay and attorney’s fees); Commonwealth of Pennsylvania

13a

v. Local 542, International Union of Operating Engineers,

469 F.Supp. 329 (E.D. Pa. 1978) (union and company held

jointly liable for injunctive relief). These provisions reflect

a statutory policy that the responsibility for monetary relief

should be borne by both unions and employers to the extent

that they are responsible for violations of Title VII. A right

of contribution would achieve this goal. In contrast, a hold-

ing that there is no right of contribution under Title VII

would release some individuals from liability.

Other policies underlying Title VII would be served by

a right of contribution. In Albemarle Paper Co, v. Moody,

422 U.S. 405, 417 (1975) (footnote omitted), the Supreme

- Court emphasized that Title VII’s ‘‘ primary objective [is]

a prophylactic one.’’ The Court stated:

It is the reasonably certain prospect of a back pay

award that ‘‘provide[s] the spur or catalyst which

causes employers and unions to self-examine and to

self-evaluate their employment practices and to en-

deavor to eliminate, so far as possible, the last vestiges

of an unfortunate and ignominious page in this coun-

try’s history.’’

Id. at 417-18, quoting United States v. N. L. Industries, Inc.,

479 F.2d 354, 379 (8th Cir. 1973). Under a rule of contribu-

tion ‘*{b]oth union and employer will know that they both

must be vigilant to eschew unlawful discrimination and that

the employee’s predilections as to whom to sue will not

insure either immunity from the mandates of the law.”’

Northwest Atrlines Inc. v. Transport Workers Union of

America, 14 E.P.D. 1.7730, 5596 (D.D.C. 1977), rev’d on

other grounds, 606 F.2d 1350 (D.C. Cir. 1979), cert. granted,

48 U.S.L.W. 3820 (June 16, 1980). Cf. Globus, Inc. v. Law

Research Service, Inc., 318 F.Supp. 955, 958 (S.D.N.Y.),

aff’d, 442 F.2d 1346 (2d Cir. 1971), cert. denied, 404 U.S.

941 (1971) (implied right of contribution would strengthen

‘*the deterrent impact of the securities law’’).

A right of contribution would also serve the Title VII

policy of favoring conciliation and settlement of these

claims. ‘‘[C]ooperation and voluntary compliance... [are]

l4a

the preferred means for achieving’’ the goal of equality of

employment opportunities. Alexander v. Gardner-Denver

Co., 415 U.S. 36, 44 (1974). This is shown by the facts of

this case. If Murphy had felt that it had no right of con-

tribution against the unions it might have been unwilling

to reach a settlement with the plaintiffs. It might have

chosen instead to proceed with the litigation so that the

unions would be held responsible for a share of the dam-

ages. Further, the contribution rule prevents a plaintiff

from becoming unjustly enriched either by collusive activity

with one of the defendants, or by threatening one defen-

dant that the suit will be brought only against it, thereby

forcing an unjustified settlement. See Note, Settlement in

Joint Tort Cases, 18 Stan.L.Rev. 486, 490 (1966) .?

A right of contribution would implement the congression-

al intent to hold both unions and employers liable for un-

lawful employment practice and would aid the conciliation

and settlement goals of Title VII. Thus, we hold that a

federal common law right of contribution exists when a

defendant charged with a violation of Title VII settles with

a plaintiff prior to trial for the full amount of damages

and requests contribution from a non-settling co-defendant

who is jointly liable.

The dissent argues that by choosing, in this case, the rule

of decision which we believe to be the better one we are

unjustifiably performing a legislative function. It concedes

2 Some critics of the contribution rule argue that contribution in

fact serves to restrict settlements. They assert that a settling

defendant may be fearful of settling and being held liable in con-

tribution for a portion of an award assessed against a co-defendant

who went to trial We do not agree that the potential for this prob-

blem should destroy the right entirely. That problem has been dealt

with by courts who have been faced with requests for contribution

involving settlements in other areas of the law. See e.g., McLean v.

Alexander, 449 F.Supp. 1251 (D.Del. 1978), rev’d on other

grounds, 599 F.2d 1190 (3d Cir. 1979) (securities law).

15a

that we are dealing with a subject matter requiring a uni-

form federal rule of decision. Thus we and the dissent agree

that adoption of a contribution rule is no invasion of an

area which state lawmaking authority, legislative or judi-

cial, can claim as its own. The dissent’s complaint is that

by adopting what we think is the better rule of decision we

are invading the exclusive preserve of Congress. If we were

to announce a federal rule of decision implied from a con-

stitutional provision,’ and thus arguably beyond the future

control of Congress there might be some merit to the dis-

sent. See Monaghan, Forward: Constitutional Common

Law, 89 Harv. L. Rev. 1 (1975). But the rule of decision

which we have found to be preferable could be changed by

Congress tomorrow.

The difficulty with the dissent’s argument on legislative

function is that it concedes ‘‘If it was clear, as my col-

leagues apparently believe, that a right of contribution

would strengthen the deterrent impact of Title VII, then

there might be a judicial responsibility to make those rules

which are needed to effectuate the significant national pol-

icy represented by the statute.’’ Typescript Opinion at 41.

There are countervailing arguments, and the policy choice

is a difficult one. But the litigants before us have tendered

the issue, and its closeness does not absolve us from the

obligation to decide it. Nor does our action become an

impermissible encroachment on the legislative branch,

merely because of the difficulty of the issue presented.

Whether we reject or adopt a contribution rule we must

make a choice.

If we were to be convinced that a rule prohibiting con-

tribution better served the purpose of Title VII our adop-

tion of that rule would stand in relationship to Congress

on exactly the same footing. The logic of the argument

that adoption of a rule prohibiting rather than permitting

5 See, e.g., Riley v. Chester, 612 F.2d 708 (3d Cir. 1979) (im-

plying a federal common law press privilege from the first amend-

ment).

16a

contribution would be less legislative escapes us. Certainly

the party whose claim for contribution was rejected would

not think we acted any less legislatively in rejecting it.

Reliance on deference to the legislative process cannot

conceal the fact that the dissent has made such a choice.

IV. Calculation of Inability

Each of the parties argues that if we hold that a right

of contribution exists we should order a modification of

the judgment because the district court did not apply the

correct rules of law when it calculated the International’s

liability. We do not agree.

Using the $648,000 settlement figure which had been

reached by Murphy and the class members as the starting

point of its calculations, the district court allocated $529,752

to the Title VII claim. It held Murphy responsible for

$264,876 of the Title VII liability and the unions—the

International, Local 940 and Local 249—jointly responsible

for the remaining $264,876. The court then subtracted from

the unions’ share a proportion which it allocated to Local

249, $18,393, and the $4,146 which Local 940 had paid

Murphy.‘ Judgment against the International was entered

in the amount of $242,337.

* We summarized the calculiations in the first appeal as follows:

The district court excluded the $100,000 from the amount to be

allocated for contribution ruling that a labor organization

could not be liable under the Equal Pay Act. The court found

the settlement between Murphy and the plaintiff to span a

period of time beginning July 1, 1965 and ending June 30,

1971, a period of 72 months. The court found the union col-

leetively liable for $224,000, 50% of the plaintiffs’ $448,000

Title VII recovery. The International’s share of the responsi-

bility for the Title VII recovery was 67/72 since it was for

67 months of the 72 month period that the Internationa! and

Local 940 represented Murphy’s employees. Thus, the Inter-

nation’s liability for the Title VII claim was $298,444, or

67/72’s of $224,000. For the purpose of contribution attorneys’

fees were apportioned. The district court determined that of

the $100,000 attornevs’ fees $81,752 was attributable to the

17a

The International argues that it should have been as-

sessed for only 50% of the liability which was attributed

to the unions because it had been held equally liable with

the local unions. We do not agree. The district court found

Murphy responsible for half of the Title VII liability and

the union’s collectively responsible for the other half. The

court held the unions liable as a group for half of the

damages because they had acted jointly in the collective-

bargaining negotiations with Murphy. It was therefore

reasonable when it became apparent that Local 940 could

pay only $4,146, for the court to hold the International’s

responsible for the remaining portion.

Murphy argues that the district court should have in-

cluded in its calculations the interest Murphy paid because

it paid the plaintiffs in three installments. We do not agree.

The deferred payment schedule benefitted Murphy as it

had use of the money during that period. It would have

Title VII claims. This was done by taking the ratio of the

Title VII recovery, or $448,000, to total recovery, or $548,000,

and the total amount of attorneys’ fees.

Title VII Recovery ($448,000)

Total Recovery ($548,000)

Title VII Attorneys’ Fees

Total Attorneys’ Fees ($100,000)

The International’s contribution to the attorneys’ fees for the

Title VII recovery was based on the same percentage, 67/72

used to determine its Title VII contribution. Thus, the court

below found the International liable for $38,039, 67/72’s of

$40,876, 50% of the Title VII attorneys’ fees, or $38,039.

Credited against the International’s liability was the $4,146

settlement Murphy received from Local 940. A judgment in

favor of Murphy and against the International was entered in

the sum of $242,337 on April 29, 1976.

Glus v. G. C. Murphy Co., 562 F.2d at 884 (footnote and cita-

tions omitted).

18a

been improper for the court to have permitted Murphy to

recoup from the International the monies it paid the plain-

tiffs for that benefit.

Murphy also objects to the district court’s decision not

to award it pre-judgment interest. The general rule is that

when the damages are ascertainable ‘‘with mathematical

precision pre-judgment interest is awardable as of right.’’

Eazor Express, Inc. v. International Brotherhood of Team-

sters, 520 F.2d 951, 973 (3d Cir. 1975), cert. denied, 424

U.S. 935 (1976). If, however, the claim is not for a liquidat-

ed sum, the decision on whether to award interest is within

the sound discretion of the court. Id.; Thomas v. Duralite

Co., Inc., 524 F.2d 577, 589 (3d Cir. 1975). The district

court did not abuse its discretion by not awarding pre-

judgment interest. The International did not unduly delay

the litigation. An award of interest here would punish the

International unfairly because it exercised its right to pro-

ceed to trial.

The International argues that its liability should be re-

calculated because the damage settlement included monies

for all females who were employed from July 2, 1965 to

January 31, 1971, even though a number of those employees

had terminated their employment in the years 1965 through

1968. For the first time in this litigation it argues that the

claims of these terminated female employees were errone-

ously computed into the settlement because those employees

could not have filed timely chagges in July of 1969 when

the EEOC charges underlying this case were filed. The

International argues that these claims must be excluded

from any back pay calculations since those former em-

ployees cannot be members of the plaintiff class relying on

Wetzel v, Liberty Mutual Insurance Co., 508 F.2d 239, 246

(3d Cir.), cert. denied, 421 U.S. 1011 (1975). This case is

distinguishable from Wetzel because here the International

19a

stated explicitly on the record that it had ‘‘ ‘no objection

to the amownt of the settlement and/or as to the determina-

tion of the legal fees...’ ’’ Glus I, App., at 173a. (emphasis

added). By agreeing to the amount of the settlement

(though of course contesting its liability) the International

shrewdly limited its maximum exposure to Title VII dam-

ages. The company could have argued that the Equal Pay

Act settlement of should have been less and the Title VII

damages more than $448,000. We adopt the trial judge’s

response that it is now ‘‘too late to raise such an objection.’’

The International’s objections must be rejected. On

October 2, 1971, at the hearing held by the court on

the consent decree, the International, on the record,

stated that it had ‘‘no objection to the amount of the

settlement and/or as to the determination of the legal

fees ...’’ while it, of course, reserved the right to chal-

lenge Murphy’s claim for contribution (Tr. 11). At

the hearing, Local 249 indicated that it was adopting

the same position. Both of these unions had notice of

every hearing and conference held by the court on the

settlement procedures, and no objection of any kind

was lodged. It is too late to raise such an objection.

Id.

Further, the settlement figure does not reflect a detailed

calculation of the damages due each member of the class

as would have been required at a trial. The district court

noted that, if calculated, the defendants’ liability may have

been as high as $800,000. 7d. at 176a. The settlement reflects

a compromise reached by Murphy and the plaintiff class

and it reflects not only mathematical calculations on lost

wages, but also the strengths and weaknesses of the legal

arguments which could have been made for either party or

varying members of the class. We therefore will affirm the

district court’s reliance on the settlement figure in its

calculation.

For the foregoing reasons, we will affirm the judgment

of the district court.

20a

Stoviter, Circuit Judge, dissenting.

I depart from the opinion of my colleagues because it

assumes unto the judiciary the authority to make a federal

common law of contribution for a claim arising out of a

federal statute which does not expressly provide for con-

tribution, does not imply that contribution is authorized,

and does not require contribution for the effectuation of

its purposes. I do not disagree with the majority regarding

the existence of judicial power to formulate common law.

The explanation that Justice Brandeis’ broad statement

‘‘[t]here is no federal general common law’’’ has opened

the way to ‘‘specialized federal common law’’? is now well

established. Nor do I disagree with the assumption im-

plicit in the majority opinion that the need for uniformity

in application of this federal statute requires us to look to

federal, rather than state, law. However, I believe the ju-

dicial task of establishing, formulating or discovering

federal common law is qualitatively different from the

judicial task of filling in the interstices of congressional

acts. It is a difference which the majority has not addressed.

It underlies my different interpretation of the relevant

precedent and leads me to a different result in this case.

I believe it will be useful to begin analysis by some re-

view, however cursory, of the instances in which the Su-

preme Court has assumed lawmaking power. This should

assist in placing in perspective the question as to whether

exercise of such power is appropriate in this situation.

Without undertaking to make a comprehensive categoriza-

tion, it is frequently suggested or posited that federal

common law has been undertaken in the following in-

stances: (1) where the Constitution provides exclusive

jurisdiction in the federal courts and no federal statute

‘ Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

? Friendly, In Praise of Erie—And of the New Federal Common

Law, 39 N.Y.U. L. Rev. 383, 405 (1964).

3 See, e.g., cases referred to in Rules of Decision in Nondiversity

Cases, 69 Yale I. J. 1428, 1424 (1960).

2la

supplies the rule of law; (2) where a federal statute pro-

vides federal jurisdiction but does not supply the rule of

law; (3) where a federal statute provides the rule of law

but is silent on the existence of a private cause of action;

and (4) where a federal statute provides both a cause of

action and the rule of law, but has left what has been

denominated as ‘‘interstices.’’ *

(1) Disputes Within Exclusive Federal Jurisdiction.

The circumstances in which the establishment of federal

common law is the most inevitable arise where the federal

courts have been given exclusive jurisdiction by the Con-

stitution, but where Congress has not legislated to supply

a rule of law. Historically, this has arisen most frequently

in instances of disputes between states and in maritime

cases.

Disputes between the states have often concerned their

respective rights to water resources or controversies over

boundary lines. One example suffices to illustrate why

establishment of federal common law was required as a

matter of sheer necessity. In attempting to resolve the

dispute between Kansas and Colorado regarding their re-

spective rights in the waters of the Arkansas river, the

Court articulated not only the necessity of making a judi-

cial decision but also of formulating federal common law.

The Court recognized that if the two states were indepen-

dent nations, their dispute over whether Colorado could

divert river water which arose in that state could he settled

by force. Resort to force was eliminated under our federal

system of government, so the solution to the dispute must,

of necessity, be made hy judicial determination. Kansas vv.

Colorado, 206 U.S. 46, 97 (1907). Since disputes between

the states are within the exclusive jurisdiction of the fed-

eral courts, there was no other judicial forum which could

have heard the dispute.

* These categories are in large part a paraphrase of those re-

ferred to in Friendly, note 2 supra, at 421.

22a

Although establishment of federal common law was not

strictly mandated, because presumably the Court could

have decided to follow an already established fixed refer-

ence point, as a practical matter there was no such fixed

reference point. Each state recognized opposing legal prin-

ciples. Kansas recognized the common law of riparian

rights, while Colorado recognized public ownership of flow-

ing waters. Accordingly the Court determined to ‘‘apply

Federal law, state law, and international law, as the exi-

gencies of the particular case may demand.’’ Kansas v,

Colorado, 185 U.S. 125, 147 (1902), The Court recognized

that through these successive disputes between the states

and its own decisions, it was ‘‘practically building up what

may not improperly be called interstate common law.’’

Kansas v. Colorado, 206 U.S. at 98. Subsequent cases have

followed that lead. Even when the same rule of common

law was applied in both states, the Court held that it was

not bound to follow that rule as part of the federal common

law. Connecticut v. Massachusetts, 282 U.S. 660, 670 (1931).

Neither the statutes nor decisions of either state can be

conclusive on the issue of apportionment between the two

contesting states because the question is one of federal

common law. Hinderlider v. La Plata River & Cherry Creek

Ditch Co., 304 U.S. 92, 110 (1938).

If the interstate nature of a controversy makes it in-

appropriate that the law of a particular state should gov-

ern, a fortiori the necessity to make law in admiralty cases

also requires search for a broader base. The Court has fre-

quently stated that ‘‘Congress has largely left to this Court

the responsibility for fashioning the controlling rules of ad-

miralty law.’’ United States v, Reliable Transfer Co., 421

U.S. 397, 409 (1975) (quoting Fitzgerald v. United States

Lines Co., 374 U.S. 16, 20 (1963)). See also Moragne v.

States Marine Lines, Inc., 398 U.S. 375, 405 n. 17 (1970);

Kermarec v. Compagnie Gerale Transatlantique, 358 U.S.

625, 630-32 (1959). In such cases, because of the absence

of statutory law, the Court is required to make law, and it

‘«leems itself free to formulate flexible and fair remedies in

23a

the law maritime. United States v. Reliable Transfer Co.,

421 U.S. at 409.

A similar construction of federal common law has been

found necessary when the suit involves the rights and duties

of the United States in the issuance of commercial paper,

because the application of state law would subject the rights

and duties of the United States to exceptional uncertainty.

Clearfield Trust Co. v. United States, 318 U.S. 363, 367

(1943). See also Priebe & Sons, Inc. v. United States, 332

U.S. 407, 411 (1947) ; National Metropolitan Bank v. United

States, 323 U.S. 454, 456 (1945); United States v. Standard

Rice Co., 323 U.S. 106, 111 (1944). The Court has also

stated that federal law should be applied where property

rights of the United States are litigated. United States v.

Standard Oil Co., 332 U.S. 301, 306 (1947). |

In yet another area, the Court has iterated the power of

the federal courts to make law. In a judicial dispute affect-

ing relations with foreign nations, the Court noted the

‘*uniquely federal’’ nature of the problems involved. Banco

Nacional de Cuba v. Sabbatino, 376 U.S. 398, 424 (1964).

As in the other instances of establishment of federal

common law which fall into this category, the Court

might have turned to state law to supply the rule of deci-

sion. In the Sabbatino case, the state of New York had pre-

viously enunciated the act of state doctrine, which was the

doctrine ultimately reaffirmed by the Court in its deter-

mination of federal common law. Nonetheless, the Court

emphatically asserted that the issue was one of federa!

law and it undertook to make the substantive law decision:

However, we are constrained to make it clear that

an issue concerned with a basic choice regarding the

competence and function of the Judiciary and the Na-

tional Executive in ordering our relationships with

other members of the international community must be

treated exclusively as an aspect of federal law. It seems

fair to assume that the Court did not have rules like

the act of state doctrine in mind when it decided Erie

R. Co. v. Tompkins. Soon thereafter, Professor Philip

-C. Jessup, now a judge of the International Court of

24a

Justice, recognized the potential dangers were Erte

extended to legal problems affecting international rela-

tions. He cautioned that rules of international law

should not be left to divergent and perhaps parochial

state interpretations. His basic rationale is equally

applicable to the act of state doctrine.

Id. at 425 (footnotes omitted).

The conclusion which emerges from a reading of these

eases is that establishment of a federal common law in this

category of cases was compelled by considerations of fed-

eralism and the constitutional distribution of powers be-

tween the federal government and the states.

(2) Disputes for which Federal Statutes Create Jurisdic-

tion.

A situation somewhat analogous to that posed by cases

in the first category is presented when federal common law

must be created or determined because a federal statute

supplies federal jurisdiction but does not supply the sub-

stantive rule of law. The principal example of this arose

from section 301(a) of the Labor-Management Relations

Act of 1947 which, as construed in Textile Workers Union

v. Lincoln Mills, 353 U.S. 448 (1957), obliged the courts to

fashion substantive federal law from the policy of our

national labor law.5 The Court construed its task and its

reference point as follows:

The range of judicial inventiveness will be determined

by the nature of the problem. Federal interpretation of

the federal law will govern, not state law. But state

law, if compatible with the purpose of § 301, may be

* It may be possible to view the statute giving the federal courts

jurisdiction of maritime claims ‘‘saving to suitors in all cases all

other remedies to which they are otherwise entitled’’, 28 U.S.C.

§ 1333 (1976), as another instance of Congressional authorization

to the judiciary to fashion federal common law. However, the fed-

eral courts were vested with jurisdiction of admiralty claims by

Article III, section 2 of the Constitution, and hence the need to

undertake fashioning appropriate rules of law would be the same

even without the federal statute.

25a

resorted to in order to find the rule that will best effec-

tuate the federal policy. Any state law applied, how-

ever, will be absorbed as federal law and will not be

an independent source of private rights.

Id. at 457 (footnotes omitted).

Justice Frankfurter dissented not because he thought

state law should be applied, but because he believed that

the allocation of institutional function was seriously wrong.

Id. at 464-65. The Court might have refused to perform the

function imposed on it by Congress because of the non-

judicial nature of that function,* and presumably, Congress

would then have been forced to fill the gap either by creat-

ing statutory substantive law or selecting a fixed reference

point. However, having failed to do so, the nature of the

Court’s task in formulating federal common law is not

substantially different from that required of it in the situa-

tions which come within category 1 above.

(3) Implication of a Federal Cause of Action.

The third category of cases which have sometimes been

referred to as those in which the courts create federal com-

mon law deals with the question of the circumstances under

which the courts should imply a federal cause of action. In

its most frequent form, the question arises as to the impli-

cation of a federal cause of action when a statute creates

obligations and a substantive rule of conduct, but is silent

on whether a private right of action should be permitted

for violation of the rule of conduct. The majority opinion

refers to the analysis of Cort v. Ash, 422 U.S. 66 (1975), as

helpful because the Court turned to the relevant legislation

to determine whether ‘‘the common law action exists.’’

* See Bickel and Wellington, Legislative Purpose and the Judt-

cial Process: The Lincoln Mills Case, 71 Harv. L. Rev. 1, 14-35

(1957), where the authors suggest that the appropriate disposi-

tion of Lincoln Mills in view of the institutional incapability of the

court to perform the function placed on it by Congress would have

been to dismiss the suit for lack of jurisdiction without questioning

the constitutional basis for the statutory section.

26a

Typescript op. at pp. 12-13. However, analytically, the

judicial task in framing, creating or uncovering federal

common law which must be performed under the instances

falling within categories 1 and 2 above is substantially

different from that which is required in deciding whether

a private right of action should be implied. In the latter

situation, there is no need to make law, as such. The fixed

reference point is given, since it is the statute which creates

the obligation itself. The judicial function is simply the

ascertainment of legislative intent, and the rules for its

ascertainment have been established by the Court. Indeed,

some policy analysis is needed but it is policy analysis in

the context of articulated legislative action. However diffi-

cult the task may be to divine legislative intent from some-

times obscure origins, the result of the inquiry as to whether

a federal cause of action should be implied is a one-word

answer, either ves or no. Having decided on that answer,

no further judicial legislation is needed.

(4) Filling in Statutory Interstices.

On any given day in which opinions are announced, the

Supreme Court must decide numerous issues of statutory

construction. Selecting at random a recent day, February

20, 1980, six of the eight opinions announced involved a

Congressional statute and required that the Justices at-

tempt to clarify an issue left unresolved by the statutory

language. For example, in Stafford v. Briggs, 48 U.S.L.W.

4138 (U.S. Feb. 20, 1980), the issue was whether a ‘‘civil

action’’ as used in section 2 of the Mandamus and Venue

Act of 1962, 28 U.S.C. § 1591(e), providing expanded choice

of venue in suits against federal officers, was limited to

mandamus-type actions. Chief Justice Burger, writing for

the majority, noted the familiar tenet of statutory con-

struction that. in interpreting a statute, ‘‘the court will not

look merely to a particular clause in which general words

may be used, but will take in connection with it the whole

statute .. . and the object and policy of the law. .. .’’

(quoting Brown v. Duchesne, 60 U.S. 183, 194 (1857)). In

27a

Seatrain Shipbuilding Corp. v. Shell Oil Co., 48 U.S.L.W.

4149 (U.S. Feb. 20, 1980), the Court was obliged to deter-

mine whether Section 506 of the Merchant Marine Act,

1936, 46 U.S.C. § 1151 et seq., gave the Secretary of Com-

merce authority to release subsidized vessels from the

foreign-trade only requirement upon full repayment of the

subsidy. Despite the absence of any explicit statutory lan-

guage to that effect, the Court determined that the deletion

of the prior explicit authorization did not represent a con-

sidered congressional judgment that the transaction should

be prohibited. In California Brewers Association v. Bryant,

48 U.S.L.W. 4156 (U.S. Feb. 20, 1980), the Court had to

determine the meaning of the words ‘‘seniority system’’

used in Section 703(h) of Title VII of the Civil Rights Act

of 1964, which are not comprehensively defined in either

the statute or the legislative history. In United States v.

Euge, 48 U.S.L.W. 4184 (U.S. Feb. 20, 1980), the language

of a section of the Internal Revenue Code, 26 U.S.C. § 7602,

requiring persons summoned to ‘‘appear’’ and ‘‘give testi-

mony,’’ was construed to authorize the obligation to pro-

vide handwriting exemplars although the section does not,

by its tern’s, compel such production.

In each of these cases one could contend that there were

statutory interstices. Certainly, no statutory language re-

solved the issue definitively. However, it would be impart-

ing too much to the Court’s interpretive function to view

the process as one of lawmaking. It is impossible for the

legislature to anticipate every possible issue of interpreta-

tion that may arise in the application of a statutory scheme,

and hence it is inevitable that there will be unintended gaps

in legislation. Other gaps may result from a legislative

unwillingness or inability to resolve a delicate issue. The

nature and importance of the gaps may vary. But the

touchstone of judicial responsibility in dealing with such

statutory gaps is to ascertain, to the best extent possible,

the Congressional intent, and to interpret the statute in

light of the statutcry scheme. There is a fixed reference

point—the statutory provision, other language in the sta-

Poa,

28a

tute, and the legislative intent—which delimits the para-

meter of judicial action.

One need only compare that limited task with the one

assumed by the Supreme Court when it makes federal com-

mon law to see the magnitude of the difference. When the

courts act as lawmakers they are free to roam through the

fields of scholarly lore and policy considerations to select

rules they deem appropriate. When the issue is not con-

trolled by statutory or constitutional provisions or by past

decision, the court is free to select the rule which it believes

is the fairest and easiest to apply administratively. See

Texas v. New Jersey, 379 U.S. 674, 677 (1965). It can accept

those arguments it deems sound, and, by judicial fiat, im-

pose that law on the parties. See United States v. Reliable

Transfer Co., 421 U.S. 397 (1975).

There is no such freedom in the judicial task of filling in

interstices of federal statutes where we must follow the

lodestar of Congressional intent. The difference between

the two tasks is in large part a function of different con-

stitutional underpinnings. When the federal courts fashion

federal common law as lawmakers, they are acting to assert

the supremacy of national law which is a fundamental rock

on which our federal system is hewn. On the other hand,

when the federal courts fill in interstices or attempt to de-

termine if a private right of action should be implied from

a federal statute, the courts are acting on a far different

basis—that which stems from the constitutional allocation

of power among the branches of government.

In the cases which fall within categories 3 and 4, there is

no issue whether federal law should govern. That decision

was already made by Congress, whose intent must be car-

ried out if the separation of powers given to each branch of

government are to be observed. In contrast, the formulation

of federal common law does not on its face raise any issue

of allocation of powers. In fact, in these cases where com-

mon law has been made, one may consider the courts’ law-

making as implicitly authorized hy Congress because it

29a

failed to fill in the gap left by the constitutional grants of

jurisdiction. Congress could act, if it deemed it appropriate

to do so, since it is unlikely that the federal judiciary has

broader lawmaking power in federal matters than Congress

has.’ Although there has been some suggestion that the

Court’s opinion in Sabbatino was asserting judicial power

to make law independent of the other branches of the

national government, there are other more conservative

bases on which to read that opinion.’

The majority opinion relies on the decision in [/linois v.

City of Milwaukee, Wisconsin, 406 U.S. 91 (1972), as au-

thority for the power it asserts to make common law when

‘‘necessary for the fulfillment of the legislative purpose.’’

Typescript op. at p. 9. It appears that the majority reads

that decision as one falling within the category authorizing

courts to fill in statutory interstices. I do not read the case

that way, but instead believe that it falls within the cate-

gory 1 cases where there is federal jurisdiction but no

applicable federal statute. In that case, Illinois sued Mil-

waukee to abate the public nuisance caused by its discharge

of pollution into Lake Michigan, a body of interstate water.

There was no federal statute which applied. Had there

been, the issile might have been whether private ‘suit was

authorized, as in Cort v. Ashe, but there would have been

no occasion for the Court to decide whether it had original

jurisdiction on the basis of plaintiff’s status as a state.

Furthermore, if there had been an applicable statute,

that statute would have qualified as a ‘‘law’’ of the United

States within the meaning of 28 U.S.C. §1331(a) (1976),

and there would have been no occasion for the Court to

decide that federal common law is within the meaning of

‘‘laws’’ for purposes of §1331(a). Although there were

several congressional statutes which touched upon the field

of water pollution, their inapplicability obliged the Court

7 See Friendly, note 2 supra at 395.

® See Henkin, The Foreign Affairs Power of the Federal Courts:

Sabbatino, 64 Colum. L. Rev. 805 (1964).

30a

to decide whether there was a federal common law of

nuisance. It did so by relying on the cases previously dis-

cussed here in connection with category 1: ‘‘When we deal

with air and water in their ambient or interstate aspects,

there is a federal common law .. .,’’ id. at 103.° The Court

specifically recognized the inapplicability of any federal

statute:

It may happen that new federal laws and new federal

regulations may in time pre-empt the field of federal

common law of nuisance. But until that comes to pass,

federal courts will be empowered to appraise the equi-

ties of the suits alleging creation of a public nuisance

by water pollution. ... There are no fixed rules that

overn; dean will be equity suits in which the in-

ormed judgment of the chancellor will largely govern.

Id. at 107-08 (footnotes omitted). The basic difference be-

tween the situation in Illinois v. City of Milwaukee, Wis-

consin and that in the cases of statutory interstices, such

as we have here, is that in the latter category, federal

courts are not free to ‘‘appraise the equities,’’ but must

leave that function to Congress.

In fulfilling our function as interpreters, we must be

guided by the principle that we must not overstep into the

legislature’s domain, for reasons of both principle and

pragmatics. As Judge Friendly has commented:

{T]he legislature’s superior resources for fact gather-

ing; its ability to act without awaiting an adventituous

concatenation of the determined party, the right set

of facts, the persuasive lawyer, and the perceptive

court; its power to frame pragmatic rules departing

from strict logic, and to fashion a broad new regime

or to bring new facts within an existing one; its prac-

*The courts of appeal have divided over whether the federal

common law of nuisance can be applied to intrastate pollution of

navigable waters. Compare Illinois v..Outboard Marine Corp., No.

79-1341 (7th Cir. Mar. 28, 1980) with Committee for the Consid-

eration of the Jones Falls Sewage System v. Train, 539 F.2d 1006

(4th Cir. 1976) and Reserve Mining Co. v. EPA, 514 F.2d 492

(8th Cir. 1975).

31a

tice of changing law solely for the future in contrast

to the general judicial reluctance so to proceed; and,

finally, the greater assurance that a legislative solution

is not likely to run counter to the popular will: all

these give the legislature a position of decided ad-

vantage, if only it will use it.’®

Turning to the statute at hand, it is questionable whether

there even exists in Title VII of the Civil Rights Act of

1964 the statutory interstice found by the majority. The

statute establishes a comprehensive program designed to

eliminate discrimination of the type specifically addressed.

It establishes the rule of law, administrative agency en-

forcement, private rights of action, and specified proce-

dures which must be followed. It can operate effectively,

and indeed has operated effectively since its enactment

without a right of contribution by one defendant against

another defendant. None of the compulsion that requires

the courts to act, either as legislators or as interpreters, is

applicable here. Although the refusal to take action is, of

course, in itself action, there is a substantial difference

between the affirmative action needed to make Jaw or in-

terpret equivocal statutory language and the action which

consists merely of declining to alter the status quo.

Even if we were to apply the statutory interpretive rules

used when there are, in fact, interstices, they do not lead

to the implication of a right of contribution in Title VIT.

Congress, at the time of its enactment, was well aware that

the traditional rule applicable in federal courts was that

no right of contribution existed. This had heen established

by the Supreme Court when it said, ‘‘In the absence of

legislation, courts exercising a common law jurisdiction

have generally held that they cannot on their initiative

create an enforceable right of contribution among joint

tortfeasors.’’ Halcyon Lines v. Haenn Shin Ceiling & Re-

fitting Corp., 342 U.S. 282, 285 (1951). The then prevalent

1° Friendly, The Gap in Lawmaking—Judges Who Can’t and

Legislators Who Won’t, 63 Colum. L. Rev. 787, 791-92 (1963)

(footnotes omitted ).

32a

view was articulated by this court when it arose, as it

frequently did, in the context of a claim for contribution

under the federal] antitrust laws:

Since both sets of claimed torts are declared in the

complaints to be actionable solely by reason of federal

law there would seem to be strong justification for ap-

pellee’s contention that the tort asserted to lie in the

third party complaint is governed by federal common

law with no right of contribution between tort feasors.

Goldlawr, Inc. v. Shubert, 276 F.2d 614, 616 (3d Cir. 1960)

(footnotes omitted).

The rule of no contribution in antitrust actions has been

consistently followed by the federal courts, with but one

recent exception. Olson Farms v. Safeway Stores, [1979]

2 Trade Cas. (OCH) {62,995 (10th Cir. 1979); Beef In-

dustry Antitrust Litigation v. Meat Price Investigators

Association, 607 F.2d 167 (5th Cir. 1979); Wilson P. Abra-

ham Construction v. Texas Industries, Inc., 604 F.2d 897

(Sth Cir. 1979); El Camino Glass v. Sunglo Glass Co.,

[1977] 1 Trade Cas. (CCH) { 62,533 (N.D. Cal. 1976);

Sabre Shipping Corp. v. American President Lines, Ltd.,

298 F.Supp. 1339 (S.D.N.Y. 1969); contra, Professional

Beauty Supply, Inc. v. National Beauty Supply, Inc., 594

F.2d 1179 (8th Cir. 1979).1! See Sellers, Contribution in

Antitrust Damage Actions, 24 Vill. L. Rev. 829 (1979).

I do not view the decision in Cooper Stevedoring Co. v.

Frite Kopke, Inc., 417 U.S. 106 (1974), as in any way incon-

sistent withthe general principle that contribution is usu-

ally to be found in a statute, if at all. In Cooper, the Court

was applying the well-established maritime rule allowing

contribution between joint tortfeasors. Id. at 106. Cooper

™ Suit by an employer against an employee for indemnification

for antitrust penalties, damages and expenses incurred because of

the employer’s antitrust liability based on the employee’s activi-

ties was permitted in Wilshire Oil Co. v. Riffe, 409 F.2d 1277

(10th Cir. 1969). See Paul, Contribution and Indemnification

Among Antitrust Coconspirators Revisited, 41 Fordham L. Rev.

67 (1972).

33a

belongs to that category of maritime and admiralty cases

where the Court is free to make law or, as it did there,

follow well-established precedent. In fact, the Court in

Cooper cited Halcyon as reflecting the Court’s disinclina-

tion to allow contribution where it might be inconsistent

with the balance struck by Congress in enacting legislation.

Id, at 112.

Congress was not unaware that, in order to provide for

contribution in a claim based on a federal statute, it must

make explicit provision for such in the statute itself. That

is precisely what Congress did in the Securities Act of

1933, when it provided that ‘‘All or any one or more of

the persons specified in subsection (a) of this section shall

be jointly and severally liable, and every person who be-

comes liable to make any payment under this section may

recover contribution as in cases of contract from any

person who, if sued separately, would have been liable to

make the same payment... .’’ 15 U.S.C. § 77k(f) (1976).

Provisions for contribution similar to this also appear in

the Securities Exchange Act of 1934. See 15 U.S.C, §§ 783

(e), 78r(b) (1976). Whatever force there may be in the

argument that the subsequent enactment of a specific statu-

tory provision in the Securities statutes cannot shed light

on Congressional intent as to the antitrust laws, enacted

more than two decades earlier,” it is inapplicable to Title

VII which was itself enacted substantially after Congress

framed the specific provisions for contribution in the

Securities Laws.

The Supreme Court has recently had occasion to con-

sider the propriety of changing a judicially created rule

on which Congress may have relied when enacting legisla-

12Tn Professional Beauty Supply, Inc. v. National Beauty Sup-

ply, Inc., 594 F.2d 1179, 1183-84 (8th Cir. 1979), the court opined

that ‘‘the presence of contribution provisions in the security laws

is some indication that if the question were presented today, Con-

gress would include a right to contribution as part of the antitrust

laws.’’

34a

tion. In Edmonds v. Compagnie Generale Transatlantique,

443°U.S. 256 (1979), the Court was asked to impose a pro-

portionate-fault rule in maritime law. After determining

that it could not find such an intent in the congressional

statute, the Court was obliged to determine whether it

should nonetheless make the change in light of ‘‘sound

arguments supporting division of damages between parties

before the court on the basis of their comparative fault.’’

Id. at 27. It declined to do so. It was ‘‘mindful that here

we deal with an interface of statutory and judge-made

law,’’ Id. at 272, and concluded:

Once Congress has relied upon conditions that the

courts have created, we are not as free as we would

otherwise be to change them. A change in the conditions

would effectively alter the statute by causing it to reach

different results than Congress envisioned.

Id. at 273. One can assume in the absence of contrary indi-

cation, that when it enacted Title VII Congress both was

aware of and relied on the established rule that contribu-

tion would not be implied in the absence of a statutory

provision.

Imposition by the judiciary of a rule of contribution in

Title VII cases would raise numerous administrative ques-

tions which we are ill-equipped to decide. For example, if

contribution is to be implied, should it be equal contribu-

tion or should it be based on proportionate fault? Should

responsibility be allocated in some fashion among inten-

tional and unintentional joint tortfeasors, such as was

formerly found in the Uniform Contribution Among Tort-

feasors Act? See 129 Uniform Laws Ann. 233 (1975).

Should the settling defendant he protected from liability

for contribution to later sued defendants? Although the

majority attempts to face some of these issues, they are

on their face, hardly suitable for judicial determination in

the context of a fixed statutory scheme. As Justice Brennan

commented recently in another context, ‘‘To suggest the

elements of such a test, however, is to expose how ill-suited

a court is to define them adequately. It is Congress which

35a

has the resources and responsibility to fashion a rule...

that comports with the objectives of the... Act.’’ Kiss-

inger v. Reporters Committee for Freedom of the Press,

48 U.S.L.W. 4223, 4229 (U.S. Mar. 3, 1980) (concurring

and dissenting).

In his respected and often cited article on judicial law-

making and statutory interpretation, Justice Schaefer rec-

ognized that it is inevitable that judges should make law.

However, it may have been the difficulties of balancing the

equities and administrative decisions required to formulate

a law of contribution that led Justice Schaefer to use con-

tribution as an illustration of a situation in which the

courts should refrain from acting in the absence of legisla-

tive command. He writes:

Two more commonplace situations may also serve

as illustrations. With respect to both of them I think

there would be general agreement as to the unsatis-

factory quality of the existing rule. At common law

there is no contribution among joint tortfeasors. When

the negligence of more than one person contributes to

the injury to the plaintiff, each of the guilty parties is

liable for the full extent of the resulting damage, re-

ardless of the degree to which the damage resulted

rom his negligence. And the plaintiff may have his

choice among the defendants. One joint tortfeasor, per-

haps least responsible morally and legally, but typical-

ly most responsible financially, can be called upon to

satify the entire judgment. And, having done so, he has

no right to call upon his codefendant to shoulder a part

of the burden. In a few jurisdictions the problem has

been met by provisions requiring contribution among

joint tortfeasors. So far as I am aware, that change

im the law has always been accomplished by statute.

The reason, I think, is that the problem is not self-

contained. It cannot be satisfactorily solved by judi-

cial announcement of a rule requiring contribution

among joint tortfeasors. To operate satisfactorily a

system of comparative negligence would be necessary

with resulting complication as to jury verdicts. The

other common-law rule is that a judgment against two

joint tortfeasors is to be regarded as a unit. If the judg-

ment is set aside as to one defendant, it must be set

36a

aside as to all. That doctrine is obviously unsatisfac-

tory, and courts have not hesitated to depart from it.

The problem is self-contained, and the rule with respect

to the joint judgment can be eliminated without affect-

ing other areas.

Schaefer, Precedent and Policy, 34 U. Chi. L. Rev. 3, 13

(1966) (footnotes omitted) (emphasis added).

If it was clear, as my colleagues apparently believe, that

a right of contribution would strengthen the deterrent im-

pact of Title VII, then there might be a judicial responsi-

bility to make those rules which are needed to effectuate

the significant national policy represented by the statute.

In that situation we would be acting in a manner consistent

with our interpretation of congressional intent, rather than

legislating a rule which the majority believes is demanded

by ‘‘fundamental fairness.’’ Typescript op. at 7. However,

I do not share the belief that contribution is required for

this purpose. There is a possibility that it would have the

opposite effect. It might deter settlement if a settling de-

fendant would remain liable to nonsettling defendants for

contribution, since it would preclude the most meaningful

characteristic of settlement: final and complete termination

of involvement in the case. See Sabre Shipping Corp. v.

American President Lines, Ltd., 298 F.Supp. at 1346. On

the other hand, a rule against contribution might very well

encourage deterrence because potential violators would be

more likely to refrain from violations if they knew that any

injured party could impose the full burden of recovery on

any one of them even though it played only a relatively

minor part in the activity. See Professional Beauty Supply,

Inc. v. National Beauty Supply, Inc., 594 F.2d at 1189

(dissenting opinion), quoted in Olson Farms, Inc. v. Safe-

way Stores, Inc., [1979] 2 Trade Cas. {| 62995 at 79,703.

In sum, the arguments as to the effect of a rule of con-

tribution are inconclusive. They may cut either way. They

encompass policy judgments and considerations which Con-

gress should evaluate and adjust. While I believe my two

colleagues are at least as able to perform that task as are

37a

many of the legislators, they have not been given the re-

sponsibility to do so under our constitutional allocation of

powers, I agree with Judge Gibbons’ comments when he

argued we should refuse to create a federal common law

of immunity for army surgeons: ‘‘Instead of deferring to

future Congressional judgment on the creation of absolute

immunity in this kind of suit, the majority has chosen to

weigh the competing policy considerations and to make an

essentially legislative judgment. It has done so, however,

without the benefit of the interplay of the various compet-

ing interests which, by design, appropriately occurs within

the legislative arena... .’’ Martinez v. Schrock, 537 F.2d

765, 775 (3d Cir. 1976) (dissenting).

Under the circumstances presented in this case, we should

not engage in lawmaking as a naked exercise of power

where we have neither constitutional nor statutory au-

thority, but should leave to Congress any action which

would drastically change the current rule.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

38a

APPENDIX B

United States Court of Appeals

FOR THE THIRD CIRCUIT

Nos. 79-1507 and 79-1508

Joanne Guvs, et al.,

Tue G. C. Murpuy Company, Retar., WHOLESALE AND

Department Srore Union, Loca 940 anp

INTERNATIONAL Union OF WHOLESALE AND

DepartMENT Store Union, AFL-CIO

INTERNATIONAL UNION OF WHOLESALE AND

Department StorE Union, AFL-CIO,

Appellant in No. 79-1507

G. C. Murpxry,

Appellant in No. 79-1508

(D.C. Crvm No. 71-0264)

On APPEAL From THE Unrrep States District Court

FOR THE WESTERN DistTrict or PENNSYLVANIA

PRESENT :

Grssons, HicctnsoTHAM AND SLOVITER,

Circuit Judges

JUDGMENT

This cause same on to be heard on the record from the

United States District Court for the Western District of

Pennsylvania and was argued by counsel on November 15,

1979.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

39a

trict Court, filed February 15, 1979, be, and the same is

hereby affirmed. Costs taxed against appellant in each case.

ATTEST:

M. Exvizasera Fercuson

Chief Deputy Clerk

June 27, 1980

Certified as a true copy and issued in lieu of a formal man-

date as to No. 79-1507 on July 29, 1980.

Test: Satty Mrvos

Clerk, United States Court of Appeals for the Third Circuit

40a

APPENDIX C

United States Court of Appeals

FOR THE THIRD CIRCUIT

No. 79-1507

JoaNNE Guvs, et al.,

Tue G. C. Murpny Company, Retart, WHOLESALE AND

DeparRTMENT SrorE Union, Loca 940 anp

INTERNATIONAL UNION OF WHOLESALE AND

DEPARTMENT Store Union, AFL-CIO

Appellant

SUR PETITION FOR REHEARING

PRESENT:

Serrz, Chief Judge; ALpIsert, ADAMs, GrBBoNs,

Rosenn, Hunter, Weis, Gartu, HicGInBsoTHAM AND

Stovirer, Circuit Judges

THE PETITION FOR REHEARING FILED BY

Tue [INTERNATIONAL UNION oF WHOLESALE AND

DEPARTMENT STorE Union, AFL-CIO,

Appellant

in the above entitled case having been submitted to the

judges who participated in the decision of this court and to

all the other available circuit judges of the circuit in reg-

ular active service, and no judge who concurred in the

decision having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not

having voted for rehearing by the court in bane, the petition

for rehearing is denied.*

By the Court,

A. Leon HicornsorHam

Dated: July 21, 1980 Circuit Judge

* Judges Garth and Sloviter would grant the petition for re-

hearing.

4la

APPENDIX D

United States Bistrict Court

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

NO. 71-264

JOANNE Guvs, et al.,

Plaintiffs

Tue G. C. Murpuy Company, RetatL, WHOLESALE AND

DeparRTMENT SrorE Union, Loca 940 anp

INTERNATIONAL UNION OF WHOLESALE AND

DEPARTMENT SToRE Union, AFL-CIO

’ Defendants

OPINION

Barron P. MoCunsz, District Judge, February 14, 1979

We consider in this opinion the remand of this case by

the United States Court of Appeals for the Third Circuit.

One determination is required by the remand; whether the

defendant, the International Union of Wholesale and De-

partment Store Union, AFL-CIO (International) can be

held liable in an action brought pursuant to Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., even

though the International was not named in the charge to

the Equal Fmployment Opportunity Commission (FEOC)

or made a party to EEOC conciliation. The background of

this protracted action is set forth in the opinion of the

Court of Appeals, Glus v. G. C. Murphy Co., 562 F.2d 880

(3rd Cir. 1977) (remand or the remand opinion), and will

not be repeated here. We confine our consideration solely

to the two factual issues posed by the Court of Appeals;

whether the International was actually named in the charge

before the EEOC, and if not named, whether plaintiff

should be held in strict compliance with the requirement

that the International be named in the charge to the EEOC.

42a

A hearing was held on the issues posed by the Court of

Appeals on September 12, 1978. Evidence was presented by

the International and G. C. Murphy Company (Murphy).’

Because Murphy has entered into a settlement agreement

with the plaintiff class, Murphy took the position at the

hearing which normally would be taken by the plaintiff class

representative.

After consideration of the evidence presented and the

briefs and argument of the parties, we find the Interna-

tional was not named in the charge before the EEOC. Based

on our conclusions regarding the four inquiries mandated

by the remand, we find, however, that the plaintiff should

not be held to strict compliance to the procedural require-

ment that the International be named in the charge before

the EEOC. The International is subject to the jurisdiction

of this court and must contribute to the settlement with the

plaintiff class. :

Whether the International was actually named

before the EEOC.

The remand opinion instructs this court initially to deter-

mine whether ‘‘ plaintiffs, in fact, named the International

in the charge to the EEKOC.’’ 562 F.2d 889. The Scalera

1 Trial on the issue of the liability of the International was held

before the Honorable Ralph F. Scalera. Appeal was taken from

the post-trial opinion filed by Judge Scalera on April 29, 1976.

Glus v. G. C. Murphy Co., C.A. No. 71-264 (W.D. Pa., filed April

29, 1976) (Scalera Opinion). Subsequent to the filing of the

Scalera Opinion, Judge Scalera resigned his commission as district

judge. The remand of this case was thus reassigned to us. A hear-

ing was therefore necessary. Although we give deference to the

findings of Judge Scalera, we have found no reason to diverge

from those findings after an independent consideration of the evi-

dence adduced at the hearing and the record as a whole. Judge

Scalera had found the International liable for one-half of the

damages which Murphy had agreed to pay the plaintiff class on

Murphy’s claim for contribution.

43a

opinion was found by the Court of Appeals inconclusive as

to this fact. Judge Scalera found that ‘‘[w]hether the In-

ternational was, in fact, named in the amendment cannot

be conclusively determined from the record.’’ Slip op. at 9.

No evidence was adduced at the September 12th hearing

which would materially after the conclusion.

The actual amended charge before the EEOC does not

include the formal name of the International. Only one un-

ion is named, the ‘‘ Retail, Wholesale, and Department Store

Union, Local 940, AFL-CIO.’’ Although the acronym AFL-

CIO is properly a part of the International’s name, the

acronym could refer to either the Local or the International

union. Given the fact that the charged union title includes

‘*Local 940,’’ it is most reasonable to conclude that the local

is referred to by the charge. The EEOC interpreted the

charge in this manner. The International was not made a

party to conciliation and no right to sue letter issued

against the International. In light of all these facts, it must

be concluded that the International was not ‘‘in fact...

named in the charge to the EEOC.”’

Whether the plaintiff should be held to strict compliance

with the requirement that the International be named

before the FEOC.

Since we find that the International was not actually

named in the charge before the EEOC, we turn to the sec-

ond question posed by the remand: whether the Interna-

tional may nonetheless be retained as a defendant in this

action. The Court of Appeals directs our consideration to

four issues:

‘*1, Whether the role of the unnamed party could

through reasonable effort by the complainant be ascer-

tained at the time of the filing of the EEOC complaint;

2. Whether, under the circumstances, the interests of

a named are so similar as the unnamed weet that for

the purpose of obtaining voluntary conciliation and

44a

compliance it would be unnecessary to include the un-

named party in the EEOC proceedings;

3. Whether its absence from the EEOC proceedings

resulted in actual prejudice to the interests of the un-

named party ;

4. Whether the unnamed party has in some way rep-

resented to the complainant that its relationship with

the complainant is to be through the named party.’’

Each issue will be individually discussed.

1. Ascertainment of the role of the International.

Murphy concedes that Joanne Glus, the class representa-

tive who authored the charge to the EEOC, knew of the

International’s involvement with the discriminatory acts

alleged. She stated that she, in fact, intended to name both

the International and Local 940 in the amended charge, An

EEOC investigator advised the joining of both unions. The

charge itself was, however, inadequately written. The evi-

dence leads to a conclusion that the inadequacy of the

charge was due to inadvertence, not lack of knowledge on

the part of the charging party. This suggests exclusion of

the International as a defendant.

2. Similarity of Interests.

The interests of the International and Local 940, a named

party, are identical. Their liability arises out of the same

acts. The principal discriminatory acts of the Local center

about the acquiescence to discriminatory provisions of col-

lective bargaining agreements with Murphy. The liability

of the International] is based on the same contracts.

The International initially was the certified bargaining

representative of the employees at the Murphy warehouse

in question. Soon after certification of the International,

Local 940 was formed and became a signatory to the col-

lective bargaining agreement. Thereafter, both the interna-

tional representative and representatives of Local 940 were

signatory to all collective bargaining agreements, including

those complained of in this action. The representative of

45a

the International for Western Pennsylvania served as the

chief negotiator of the agreements and signed them as the

International representative. Although the agreements do

not name the International as a party to the agreements,

the presence of the International representative as chief

negotiator establishes the acquiesence of the International

to the violations contained in the agreement.

Since the International’s liability rests on the same

ground as that of Local 940, the presence of the Local in the

conciliation proceedings before the EEOC adequately pro-

tected the interests of the International.

3. Actual Prejudice.

The question of whether the International was actually

prejudiced by plaintiffs’ failure to name it is difficult to

answer. The International argues thut exclusion from con-

ciliation is eo tpso actual prejudice. However, persuasive

this argument may be, such a finding is inconsistent with

the remand. In the usual EEOC case an unnamed party is

excluded from conciliation. If we were to accept the argu-

ment of the International, actual prejudice would auto-

matically be present, and no issue as to prejudice could ever

arise as a matter of law.

We consider the question of actual prejudice to require

a finding whether, had the unnamed party been named and

made a party to conciliation, conciliation could have been

effective. This is, of course, a difficult finding to make, for

the effect of another party on negotiations involves many

subtle elements, and the judgments of many persons.

Despite problems attendant to the issue, it is probable

that even if the International had been a party to concilia-

tion, settlement would not have been reached. During con-

ciliation the largest offer made by Murphy was $50,000.00.

The lowest demand by plaintiffs was $500,000.00. It is un-

likely the International would have contributed more than

Murphy to the settlement. It was only after this action was

brought and a class certified that Murphy was able to settle

46a

the claim to which the International is subject. The settle-

ment was made for $548,000.00 at a time when the Interna-

tional was a party. The International did not offer to enter

into that settlement. In light of these facts, the exclusion

of the International from conciliation did not result in

actual prejudice.

4, Representations of the International to plaintiffs that

named parties would represent the International.

The record evidences no direct statement by any Interna-

tional representative that the International was to be rep-

resented by Local 940 for purposes of plaintiffs’ com-

plaints. The practice of the International was, however, to

use Local 940 as its representative in relations with the

members of the Local. The relationship between the Local

and International was a close one. The International rep-

resentative * served the Local as a negotiator and partici-

pated in the grievance procedure. When secretarial help

was needed by the Local, it was often performed by the

secretary of the International representative. The nature of

the relationship between the International and Local was

such that a member of the Local could have concluded that

a charge against the Local would also include the Interna-

tional.

Ill

Annalysis and Conclusions

We have found that three of the considerations posed by

the Court of Appeals, when applied to the facts presented

here, suggest the propriety of retaining the International

as a defendant and one suggests exclusion. The remand

opinion is silent with respect to the weight to be accorded

each consideration. We thus must consider the absence of

No. 1 in light of the central issue for determination.

The controlling issue, of which the four considerations

2 There was an International representative stationed in Pitts-

burgh by the name Burberg. He was an advisor to the Local.

47a

are only elements, is whether a plaintiff should be held to

strict compliance with the requirement that the Interna-

tional be named in the charge. Considerations No. 1

(knowledge of the International’s role) and No. 4 (state-

ments by the International indicating that the Local rep-

resented it), supra, as posed by the Court of Appeals, ap-

pear to focus upon whether the failure to name the de-

fendant should be excused. Considerations No. 2 (similarity

of interests) and No. 3 (actual prejudice), supra, appear

to go to the question of whether the defendant was

prejudiced by not being named in the charge. The four con-

siderations, therefore, appear to go to only two questions;

whether plaintiffs’ failure to name a defendant is excusa-

ble, and whether the defendant is prejudiced by not being

named. Proof of justifiable excuse and no prejudice would

appear to be necessary before the International could be

made liable in this action. In terms of the considerations

posed by the Court of Appeals, for Murphy to prevail, No.

1 or No. 4 should be found, as well as No. 2 or No. 3. Since

we have found No. 3 (no actual prejudice) and No. 2 simi-

larity of interests) to be present as well as No. 4 (state-

ments concerning representation) Murphy’s should there-

fore prevail.

Barron P. McoGuneg

Unrrep States District JupGr

Dated: February 14, 1979.

ec: Counsel of record.

® »

48a

APPENDIX E

United States Cowt of Appeals

FOR THE THIRD CIRCUIT

JoaNNE Guus, et al.,

Plaintiffs

G. C. Murpnry,

Defendant, Appellee-Cross Appellant

AND

Rerar., WHOLESALE AND DEPARTMENT

Stone Union, Locat 940

Defendant

AND

INTERNATIONAL UNION oF WHOLESALE AND

DEPpaRTMENT StTorE Union, AFL-CIO,

Defendant, Appellant-Cross Appellee

Nos. 76-1864 and 76-1865

Argued February 22, 1977

Decided August 8, 1977

As Amended November 9, 1977

Female employees brought sex discrimination class ac-

tion under the Civil Rights Act of 1964 against employer

and local and international unions. A cross claim was filed

by the employer against unions. Following approval of a

settlement between plaintiffs and the employer, trial was

held on the remaining issue of contribution. An appeal and

cross appeal were taken from a judgment entered by the

United States District Court for the Western District of

Pennsylvania. The Court of Appeals, Biggs, Circuit Judge,

held that (1) the district court did not have ancillary juris-

diction over the cross claim by employer against the inter-

49a

national union (which plaintiffs had failed to charge before

the Equal Employment Opportunity Commission), and (2)

in determining whether plaintiffs should have foreseen at

the EEOC stage the necessity and desirability of adding

the international union as a party, the factors to be con-

sidered included whether the role of the unnamed party

could through reasonable effort by the complainant be as-

certained at the time of filing the EEOC complaint;

whether, under the circumstances, the interests of a named

party were so similar to the unnamed party that for the

purpose of obtaining voluntary conciliation and compliance

it would be unnecessary to include the unnamed party in

the EEOC proceeding; whether its absence from the pro-

ceedings resulted in actual prejudice to its interests; and

whether the unnamed party in some way represented to the

complainant that its relationship with the complainant was

to be through the named party.

«Remanded for further proceedings.

1. CivilRights 38

Filing requirements set forth in Title VII of the Civil

Rights Act of 1964 are jurisdictional. Civil Rights Act of

1964, § 706(e) as amended 42 U.S.C.A. § 2000e-5(f) (1)..

2. CivilRights 38

A charge against a party must be filed with the Equal

Employment Opportunity Commission before an action in

the district court can be commenced. Civil Rights Act of

1964, § 706(e) as amended U.S.C.A. § 2000e-5(f) (1).

3. Federal Civil Procedure 40

Federal Rules of Civil Procedure cannot be used to ex-

pand the subject matter jurisdiction of the district courts.

Fed. Rules Civ.Proe. rule 82, 28 U.S.C.A.

4. Federal Courts 24

Although subject matter jurisdiction of the district

courts cannot be expanded by the federal rules, the doctrine

50a

of ancillary jurisdiction may be applied to a cross claim or

impleader. Fed.Rules Civ.Proc. rules 13(g), 14, 82, 28

U.S.C.A.

5. Federal Courts 20

Ancillary jurisdiction is based on the concept that once

the court has jurisdiction over a claim it may also adjudi-

eate claims arising from the same transaction or occur-

rence withcut an independent basis for jurisdiction.

6. Federal Courts 24

District court, in sex discrimination class action brought

under the Civil Rights Act of 1964 against employer and

local and international unions, did not have ancillary juris-

diction over cross claim by employer against international

union (which plaintiffs had failed to charge before the

Equal Employment Opportunity Commission), since grave

doubt exists as to whether ancillary jurisdiction may be

extended to situations where there is no independent basis

for subject matter jurisdiction over a party, and since the

instant case did not present either of the typical situations

for ancillary jurisdiction. Civil Rights Act of 1964, § 701

et seq. as amended 42 U.S.C.A. § 2000e et seq.

7. Federal Courts 941

When a district court fails to make a necessary finding

of fact, the Court of Appeals will be required to remand

the case unless an alternative means to reach a full resolu-

tion is available.

8. Civil Rights 38

Jurisdictional requirements for bringing suit under Title

VII of the Civil Rights Act of 1964 should be liberally con-

strued. Civil Rights Act of 1964, § 701 et seq. as amended

42 U.S.C.A. § 2000e et seq.

9. CivilRights 38

In enacting Title VII of the Civil Rights Act of 1964,

5la

Congress could not have intended that a person filing

charges should accurately ascertain, at the risk of later

facing dismissal of his or her suit, at the time the charges

were made, every separate entity which in some way may

have violated Title VII. Civil Rights Act of 1964, § 701 et

seq. as amended 42 U.S.C.A. § 2000e et seq.

10. Civil Rights 41

In determining whether employee, whose Equal Employ-

ment Opportunity Commission complaint charged employer

and local union with sex discrimination, should have fore-

seen the necessity of adding international union as a party,

factors to be considered were whether the unnamed party’s

role could through reasonable effort by complainant be as-

certained at time of filing EEOC complaint; whether a

named party’s interests were so similar to the un-named

party’s that for the purpose of obtaining voluntary con-

ciliation and compliance it would be unnecessary to include

the unnamed party in the EEOC proceedings; whether its

absence resulted in actual prejudice to its interests; and

whether the unnamed party in some way represented to

complainant that its relationship with the complainant was

to be through the named party. Civil Rights Act of 1964,

§ 701 et seq. as amended 42 U.S.C.A. § 2000e et seq.

Robert Markewich, Markewich, Rosenhaus, Markewich &

Friedman, New York City, for Joanne Glus et al., plain-

tiffs.

J. M. Maurizi, Balzarini, Walsh & Maurizi, Pittsburgh,

Pa., for appellant-cross appellee, Intern. Union of Whole-

sale and Dept. Store Union, AFL-CIO.

Robert H. Stevenson, Anderson, Moreland & Bush, Pitts-

burgh, Pa., for appellee-cross appellant, G. C. Murphy Co.

Before ADAMS, BIGGS and HUNTER, Cireuit Judges.

OPINION OF THE COURT

BIGGS, Cireuit Judge.

This case raises a number of difficult questions regarding

52a

contribution between the defendants in actions brought un-

der Title VII of the Civil Rights Act of 1964 (Title VII),

42 U.S.C. § § 2000e et seg. and the Equal Pay Act of 1963

(Equal Pay Act), 29 U.S.C. § § 201 se seq.

I, FACTS

The appeal and cross-appeal before us began as a class

action brought by 19 named plaintiffs on behalf of al!

females in the employ of appellee-cross appellant G. C.

Murphy Co. (Murphy) since 1964. Named as defendants

were Murphy; the Retail, Wholesale and Department Store

Union, Local #940 (Local 940) ; and the International Un-

ion of Wholesale and Department Store Union, AFL-CIO

(International). In the first count of their complaint plain-

tiffs alleged, inter alia, that Murphy, Local 940, and the In-

ternational had violated Title VII by maintaining under

collective bargaining agreements entered into by the de-

fendant labor organizations and Murphy separate job

classifications, pay scales, and seniority systems for male

and female employees of Murphy’s McKeesport, Pennsyl-

vania, warehouse.

In the second count of their complaint plaintiffs alleged

that Local 940 and the Internationa] violated their duty of

fair representation imposed upon them by the National

Labor Relations Act and the Labor-Management-Relations

Act in aequiescing and joining in the discriminatory prac-

tices which formed the basis of their Title VII complaint.

After Murphy, the International and Local 940 filed an-

swers to the plaintiffs’ complaint. Murphy filed a cross

claim on August 19, 1971, for a judgment that if there be

liability to the plaintiffs the defendant labor organizations

were solely liable and that judgment be entered for Mur-

phy over and against Local 940 and the International for

any amount recovered by the plaintiffs against Murphy.

The basis of Murphy's cross claim was that the allegedly

discriminatory practices were the result of demands made

by the unions in the course of collective bargaining and

were acceded to in zood faith by Murphy.

53a

On July 14, 1972 the district court granted class status

and certified the class as being ‘‘all females who were em-

ployed at the G. C. Murphy Company warehouse and who

were included in the unit covered by the labor union con-

tracts at any time between July 1, 1965 and June 30, 1971.”’

At the same time the court approved a notice of settlement

between Murphy and the plaintiffs. The court further

ordered a hearing concerning the proposed settlement on

October 2, 1972 which ‘‘any person may attend to inform

the Court of any matter pertaining to these proceed-

ings. ef Did

The terms of the settlement provided that Murphy would

pay $548,000 to the plaintiffs and an additional $100,000

in attorneys’ fees to plaintiffs’ counsel. The payment was

to be made in three installments with 6 per cent interest on

the deferred payments. Also, pursuant to the settlement

agreement plaintiffs amended their complaint to include a

claim only against Murphy for violation of the Equal Pay

Act of 1963. (68a). $100,000 of the $548,000 settlement was

allocated to the Equal Pay Act claim. The remaining $448,-

000 was allocated to the Title VII claim.

A hearing was held on October 2, 1972 concerning the

proposed settlement. Present at the hearing, in addition to

plaintiffs’ and Murphy’s counsel, was Joseph M. Maurizi,

Esquire, a member of the bar, representing both Local 940

and the International. ‘Che Court inquired whether there

was any objection to the settlement. Mr. Maurizi did not

object.

Murphy proceeded on its claim for contribution, and ulti-

mately settled its claim against Local 940 for $4,146, the

total amount in Local 940’s treasury.

Trial was held on the remaining issue, Murphy’s claim

for contribution against the International and Teamster’s

Local 249.'

1 Teamster’s Local 249 was the successor collective bargaining

agent of Local 940. A class action was brought against Murphy

54a

Upon the conclusion of the trial the district court found

both Murphy and the International equally responsible for

the complained of sex discrimination. The district court

based its finding on evidence that the International partici-

pated in the collective bargaining of the 1965 and 1968 con-

tracts through one Burberg, the International Represen-

tative. Burberg, as the ‘‘International Representative’’

signed the collective bargaining agreement ;* and also par-

ticipated in Local 940’s affairs including grievance pro-

cedures. With regard to Burberg’s participation in the

negotiations of the discriminatory agreements the district

court found:

‘‘Burberg may be appropriately characterized as the

most experienced person on the Union’s side of the

1965 and 1968 negotiating table. (Tr. 204) [410a]. It

may also be concluded that because Local 940 did not

have an attorney who participated in the 1965 and 1968

negotiations, the union turned to Burberg for counsel-

ing on the legality of the negotiations. (Tr. 206, 268)

[413a, 475a]. The attorney counseling Murphy at the

contract negotiations occasionally met privately with

Burberg to discuss union matters. (Tr. 206) [413a].

And during the negotiations, union officials would pri-

vately consult Burberg for his opinion on the various

aspects of the negotiations (Tr. 268) [475a], and Bur-

berg’s opinion generally was adopted by the union at

the negotiation table.’’

and Local 249 for inter alia, sex discrimination in violation of

Title VII based on the failure to retroactively rectify disparate pay

scales between Murphy’s male and female employees and Local

249’s refusal to accept Murphy’s offer of retroactive parity.

Murphy’s setlement with the plaintiffs in the instant case included

a settlement with the plaintiffs in the action involving Title VIT.

The district court joined the two cases for the purpose of Murphy's

action for contribution. There was a judgment for Murphy (1248

et seq.): Loeal 249 has appealed. Murphy was cross-appealed. For

disposition of this case, see order in Denicola v

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