# Petition — Retail, Wholesale & Department Store Union v. G. C. Murphy Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0478%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 949 ## 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, v. 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 cot ctcvebabnndsaldvascebtssseceusssedsospesonsenne Ne onl ssuapanenbomabibnane 16 19 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 iv . 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, v. 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). 2 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 3 with the Commission or within thirty days after ex- piration of any period of reference under subsection (c) or (d) of this section, the Commission has been 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- 4 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. 5 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.’’ 7 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. 8 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 ae 9 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. 10 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. 11 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’”’ 12 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- 13 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.] 14 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 15 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 16 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.} 17 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. 18 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 19 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. 20 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 21 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. 22 (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). 23 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. 24 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- 25 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). 26 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 la 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 2a 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. I, 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,- 3a 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. 4a 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. oa 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. 6a contribution exists in the federal common law arising from Title VII. It is to this claim that we now turn. A. 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 7a 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. B. As we noted above, no right of contribution is expressly provided for in Title VII. This does not, however, end our 8a 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 9a 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. C. 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. D. 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 A, 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. B. 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. C. 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. D. 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. we 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 ). an 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0478%3A1. Public record. Not legal advice.