Petition for Writ of Certiorari — Safir v. Blackwell
Supreme Court brief1973
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IN THE
Supreme Court of the Anited Sot arvay's: 202% JR.6
MAR 21 1974
OCTOBER TERM, 1973.
No. 73-1416
TRANS WORLD AIRLINES, INC. AND
AMERICAN AIRLINES, INC..
Petitioners.
VS.
ANNE B. ZIPES, PATRICIA A. SANTINI, PAMELA J.
DAILING, DARLENE PRESTON, BONNIE PULSKAMP,
SUSAN PRASCIUNAS, MARSHA JIMERSON, PHYLLIS
STILL, ELISABETH KORENGOLD. CHERYL ROSSI,
AND AIR LINE STEWARDS anD STEWARDESSES
ASSOCIATION, LOCAL 550, TWU, AFL-CIO,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
JaMES A. VELDE
One First National Plaza
Chicago, Illinois 60670
Attorney for Petitioners
Of Counsel
JAMES H. DOUGLAS
LAURENCE A. CARTON
ELiLiot M. SCHNITZER
GARDNER, CARTON, DOUGLAS,
CHILGREN & WauD
Gunthorp-Warren Printing Company, Chicago e@ 346-1717
we re > oe
satiate het ial es ee
TABLE OF CONTENTS
PAGE
I III Sra cra ear uly Grp ahwce: Sik aren nose ee 2
Statutory Provisions Involved ................2e0005s 2
Or oc cs vav dk hee ew ek a vee es 3
Rensons Sor Granting Wet ... 2.5 2c ccc ce eeees -oe
I. The Decision Below Failed to Give Effect to a
Union's Representative Authority to Make a Settle-
ment in Litigation Under Title VII and Rule 23..... 9
A. Union Had Authority Under Federal Law to
Represent Conflicting Seniority Interests in
Negotiating Settlement. and Airlines Were
Required to Negotiate with Union .......... 10
B. Congressional Intention Misinterpreted in Denial
pT I, ks 8 oa oA ocean cs 16
(1) Use of Wrong Criterion of Interpretation.. 16
(2) Congressicnal Intention in Both Railway
Labor Act and Title VII Can Be Given
Effect Without Destroying Union Author-
ity to Make a Court Approved Settlement 17
C. Rule 23(a)(4) Does Not Forbid Union Repre-
sentation of Conflicting Interests ........... 24
D. Aijrline Reliance on Union Authority ........ 26
Il. The Decision Misinterprets Rule 23 in Holding Class
Actions Should Have Been Brought Under Subdivi-
Se Waka pda s ae eee re nase has 29
A. Clear Language of Rule 23 Shows Class Actions
Were Under Subdivision (b)(2) of Rule 23 .. 30
B. Authorities Are All Contrary to Court of
Appesis’ Interpretation .........0..00550- 33
C. Serious Effect on Decided Cases ............ 36
IN stort Sale ee a ee ee 37
Appendix:
A. Court of Appeals Opinion ................ Al
B. Excerpts from Railway Labor Act .......... Al5
C. Excerpts from Title VII-Equal Employment
Opportunity, Civil Rights Act of 1964 ...... Al7
D. Rule 23. Federal Rules of Civil Procedure .... A22
CASES
Alexander v. Gardner-Denver Co., . _ o eee
A, ae es Os NEE 4S ene c senha eee b wos se 22-3
ALSSA v. American Airlines, 455 F. 2d 101 (C. A. 7,
SE I ke kia es kei keel ehennewn ines i es 5
Arkansas Education Assn. v. Board of Education, 446
Fe ee es a Es Cras ca eee re eke aes 33
Brandt v. Owens-Illinois, Inc., F. Supp. , CON
Fed. Sec. L. Rep. © 94.355 (S. D. N. Y. 1974)...... 33
Cleveland Board of Education v. LaFleur... U.S. ...........,
ea. Oe ee re A CPD oro vis cae ew eeness 20n
Conley v. Gibson, 355 U. S. 41 (1957) .............. 15
Cox v. United States Gypsum Co.. 284 F. Supp. 74 (N. D.
ee re rs Pret: 22
Elgin. Joliet & Eastern Railway Co. v. Burley, 325 U. S.
711 (1945) reh. 327 U.S. 661 (1946) ........ 12, 15, 26
Federal Maritime Commission v. Seatrain Lines, 411 U. ».
Fay Pe te LEED cin ek te ccuens Anew s 17
Ford Motor Co. v. Huffman, 345 U. S. 330 (1953) ..... 13
Gerstle v. Continental Airlines, 50 F. R. D. 213 (D. Colo.
ac San te ee eae ew eae cane ea baw ee eee
Hansberry v. Lee, 311 U.S. 32 (1940) .............. 25
Humphrey v. Moore, 375 U. S. 335 (1964) .......... 13, 24
NO ET Seer IE ENING Pas ce aes
itl
International Chemical Workers Union v. Planters Mfg.
Co., 259 F. Supp. 365 (N. D. Miss. 1966) .......... 27n
International Union v. Hoosier Cardinal Corp., 383 U. S.
ee er re ee Pye rer ee 27n
Jenkins v. United Gas Corp.. 400 F. 2d 28 (C. A. 5, 1968) 33
Local 179 v. Federal Paper Stock Co., 461 F. 2d 849
Si. SUPE oe hae oe bak ete a ee ain oes 27n
Local 186 v. Minnesota Mining & Mfg. Co., 304 F. Supp.
eo ee 3 eee er ee rer eer 27n
Masterson v. Pergament, 203 F. 2d 315 (C. A. 6, 1953)... 25
Mullane v. Central Hanover Bank & Trust Co.. 339 U. S.
SE ors oo vos ea a ER Ee eee Rea 25
Mungin v. Fiorida East Coast Railway Co.. 318 F. Supp.
ee a PO xa ss cera nae aes 33
National Airlines v. International Assoc. of Machinists, 478
ee es a FD <8 eens pe een cage eae 15, 26
Phillips v. Martin Marietta Corp.. 400 U.S. 542 (1971).. 20n
Porter v. Warner Co., 328 U.S. 395 (1946) ........... 31n
Pyzynski v. New York Central, 421 F. 2d 854 (C. A. 2,
ely Da ee aw ee ON whe eens + eee 14, 26
Robinson v. Lorillard Corp.. 444 F. 2d 791 (C. A. 4,
EE ia sine as ob a cola aie Maan ae wlacion eee pax waar 33
Rodriguez v. Swank, 318 F. Supp. 289 (N. D. Ill. 1970)... 33
Rosen v. Public Service Electric & Gas Co., 409 F. 2d 775
ee a dpa oka saan ed wah 6 ace ae 27n
Sibbach v. Wilson & Co., 312 U.S. 1 (1941)
Silver v. New York Stock Exchange, 373 U. S. 341 (1963) 16
Sprogis v. United Air Lines, 444 F. 2d 1194 (C. A. 7,
SNe eas va aL cka ee car eee eee on yies 6n
iV
State of Alabama v. United States, 304 F. 2d 583 (C. A.
es et at a te Ee ee gene ue ae art 3in
Steele v. Louisville & N. R. Co., 323 U. S. 192 (1944). .11, 24
United Founders Life Ins. Co. v. Consumers Nat. Life Ins.
Co. SOF FH, 26 OG CA. Fy AGTD oc cccectecscces 19n
United States v. Borden Co., 308 U. S. 188 (1939) ..... 16
Van Gemert v. Boeing Co., 259 F. Supp. 125 (S. D. N. Y..
REE Rs ee rere eee rarer pre ne ay pe ene 33, 34
Virginian Railway Co. v. System Federation, 300 U. S.
Pe OD oc ks cia edn S evened iukiereese® 11, 28
STATUTES AND RULES
Civil Rights Act of 1964, Title VII, 42 U. S. C. § 2000e
Wak 5x55 bas cose 2, 3, 8-10, 16-19, 21-23, 28, 30
UT oo. ota tar tain Pere ULES 9 Ste ip Rarer 17
ie eae S CRN ca ee CO aes ae ae 17
I oe hack nara he eae wey CR Oe 17, 20n
eter e ea ara Ca ke iss We oak RS OG 4,18
ENS en eee aia aie Guide aa Se eo A OF 3, 27n
fy PAR er eer eS re ee 18, 20n, 31
Federal Rules of Civil Procedure:
ss lrg La bea ate age wee ara em ee 27n
ER ety aden ic Ll hate wig uw Ret 10, 23, 25
I sc ace ae a ew eae aie ie 24
clone age tale ya A er AA A 33
EE os co wae d weds uh eos eww ee 2, 6, 8, 29-37
Paes enema per ee eer 2, 6, 7, 8, 29-37
EE ALS. wind tay GW ya G6 wae ee aoa A: 29n
I a a rag ea Aa ana gt a ieee Ae ar 2
Judicial Code, § 1254(1), 28 U. S.C. § 1254(1)...... 2
Labor Management Relations Act, 29 U.S.C. § 185(b).. 27n
a
ae eee ee ee ee eee
Vv
National Labor Relations Act, 29 U. S.C. § 160(c)..... 18
Railway Labor Act, 45 U.S.C. § 151 et seq. ..........
Pee Ea ERE eee eee Sales 2, 3, 10-12, 15-18, 21, 27, 28
MISCELLANEOUS
42 American Jurisprudence 2d 745 (1969) ........... 31
Kaplan, 1966 Amendments of the Federal Rules of Civil
Procedure (1), 81 Harv. L. Rev. 356 (1967)......... 34
Levine and Moritz, The Resolution of Pilot Seniority Prob-
lems in Airline Merger Cases, 24 CCH Labor L. Journal
Ee Ee: babies oe sa eU ene keh eesaeer bes crue 18
Moore, Federal Practice (1969)... ...... ccc cece cece 35
1 Restatement of Agency, 2d § 8, pp. 30-31 (1958) ..... 28
Rosenfield, Air Line Mergers: The Public Interest in Labor
Protective Provisions, 61 Ky. L. J. 429 (1973) ...... 18
Wright & Miller, Federal Practice and Procedure (1972)
ee URE PETE E SOUR ET Eee Eee 9, 27n, 31, 35
Note, Collateral Attack on the Binding Effect of Class
Action Judgments, 87 Harv. L. Rev. 589 (Jan. 1974)... 37
baal
bus Te Reet sete ed no aint ote
Supreme Court of the Gnited States
OCTOBER TERM, 1973.
No.
TRANS WORLD AIRLINES, INC. AND
AMERICAN AIRLINES, INC.,
Petitioners,
VS.
ANNE B. ZIPES, PATRICIA A. SANTINI, PAMELA J.
DAILING, DARLENE PRESTON, BONNIE PUL»KAMP,
SUSAN PRASCIUNAS, MARSHA JIMERSON, PHYLLIS
STILL, ELISABETH KORENGOLD, CHERYL ROSSI,
AND AIR LINE STEWARDS and STEWARDESSES
ASSOCIATION, LOCAL 550, TWU, AFL-CIO,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
Petitioners Trans World “Aictines, Inc. and American Air-
lines, Inc. respectfully r.ay that a writ of certiorari issue to
review the judgmeni of the United States Court of Appeals for
the Seventh Circuit entered December 21, 1973 in four con-
solidated cases numbered 72-1335, 1336, 1399, and 1503.
A separate petition for a writ of certiorari, s.eking review of
the same judgment, was filed in Case No. 73-1240 in this Court
on February 12, 1974, Air Line Stewards and Stewardesses
Association, Local 550, TWU, AFL-CIO, Petitioner v. Anne
B. Zipes et al., Respondents.
FEE WA LIL RTT ae Peart Bee orang
PRB AOE ERE INRA I
2
The Court of Appeals’ opinion, not yet reported, is in
Appendix A to this petition.
This Court's jurisdiction is invoked under 28 U. S. C.
$ 1254(1). This petition is being filed within 90 days after
December 21, 1973, the date of the Court of Appeals’ judg-
ment.
QUESTIONS PRESENTED
1. Did a labor union, which was a statutory representative
of employees with conflicting interests agd which brought class
actions on their behalf under Title VII of the 1964 Civil Rights
Act, have authority to negotiate a binding settlement of Title
VII claims and remedies with the employer subject to court
approval under Rule 23(e) of the Federal Rules of Civil
Procedure?
2. Was a class action seeking remedies under Title VII
of the 1964 Civil Rights Act not within subdivision (b)(2)
but within subdivision (b)(3) of Rule 23 of the Federal Rules
of Civil Procedure?
STATUTORY PROVISIONS INVOLVED
Excerpts from the Railway Labor Act (45 U. S. C. 151
et seq.) and Title VII of the Civil Rights Act of 1964 (42
U. S. C. 2000e et seg.) and the entire Rule 23 of the Federal
Rules of Civil Procedure are printed as Appendices B, C, and D.
STATEMENT OF THE CASE
The two petitioner airlines are air carriers subject to the
Railway Labor Act.* The union that has filed a separate
certiorari petition, Air Line Stewards and Stewardesses Asso-
ciation, Local 550, TWU, AFL-CIO, was and is the certified
bargaining representative under the Railway Labor Act for
thousands of stewardesses acting as flight attendants in the
employ of the airlines.
After Title VII of the 1964 Civil Rights Act** became ef-
fective in July 1965, almost 600 stewardesses of the two air-
_lines were terminated for pregnancy or related grounds pursu-
ant to an established practice (II Supp. App. 163, 289). In
June 1970 the union filed charges with the Equal Employment
Opportunity Commission under Title VII against both airlines
claiming the practice was unlawful sex discrimination. The
union’s charges named terminated stewardesses of both airlines
as representative class members (I Jd. 115-122), some of whom
had filed grievances under the labor agreements (II /d. 172,
242). The EEOC later notified the union it could institute court
actions under $ 706(e) of Title VII (1 /d. 135,136).
Two Federal District Court actions, one against each airline,
were filed in August 1970, alleging the pregnancy practice vio-
lated Title VII (I Supp. App. 1-11). The union and five
stewardesses were plaintiffs in the TWA complaint. and the
union and 12 stewardesses in the American Airlines’ complaint.
Each complaint alleged the union was “a labor union and a
representative of employees as defined in the Railway Labor
Act”. Each complaint stated it was brought “pursuant to Rule
*45 U. S.C. 151 et seq. § 201 of the act so provides. See
Appendix B, p. A15S, for excerpts from the act.
** 78 Stat. 253; 42 U. S. C. 2000e er seq. See Appendix C, p.
A17, for excerpts.
4
23(b)(2)” of the Federal Rules of Civil Procedure on behalf
of all stewardesses, employed after the Civil Rights Act, who
had been or would become pregnant. Prayers for relief included
a declaration of rights, an injunction, a “mandatory injunction”
for “affirmative action” to eliminate the effects of the violations,
back pay, costs, and attorneys’ fees. The airlines’ answers (I /d.
12, 17) denied the class action allegations and alleged the
pregnancy practice was not unlawful sex discrimination under
the act; was based on economic, medical, and operational con-
siderations that were described in detail; and was a “bona fide
occupational qualification reasonably necessary to the normal
operation” of the airlines’ business under ¢ 703(e) of Title VII.
In October 1970 both airlines and the union amended their
labor agreements to eliminate pregnancy as a ground for ter-
mination and to allow maternity leave and subsequent return to
work (I Supp. App. 126-34).
In July 1971 the airlines and union officials entered into
settlement agreements covering the claims of the terminated
stewardesses (I Supp. App. 33, 37, 44, 48). The agree-
ments provided that terminated stewardesses would be placed
on a preferential hiring list to give them reemployment rights to
fill vacancies: they would retain their seniority on the date of
termination; and they would have maternity leave if pregnant on
reemployment (I Supp. App. 44, 48). The agreements provided
they would become effective only on final judgment approving
them and dismissing all other claims with prejudice.
On July 16, 1971 the District Court entered orders directing
a hearing to be held on the compromise on August 30; finding
the action “properly maintained as a class action”; defining the
class to consist of terminated stewardesses; and ordering a
notice to be given them (I Supp. App. 27). Notices explaining
the compromise, sent to 240 class members by American Air-
lines and 346 class members by TWA, stated that court ap-
proval of the compromise would bind all class members and bar
further action against the airlines (I Jd. _ )-2, 41-2, 52). In
PO AMA E OR A S O ao - a Sete AE
5
August 1971 the Equal Employment Opportunity Commission
filed a motion for leave to intervene in opposition to the com-
promise, primarily on the ground of the inadequacy of the notice
(1 Supp. App. 38-9). On the District Court's denial of the
motion, the EEOC appealed to the Court of Appeals for the
Seventh Circuit, which stayed the compromise hearing pending
the appeal. In January 1972 the Court of Appeals affirmed the
District Court's denial of intervention, Air Lines Stewards and
Stewardesses Assuciation, Local 550 v. American Airlines, 455
F. 2d 101 (C. A. 7, 1972).
In February 1972 a new notice for a hearing in March, or-
dered by the District Court, was mailed to class members (I
Supp. App. 55, Il /d. 189,342). A terminated American stew-
ardess, Darlene Preston, wrote American class members, stating
her dissatisfaction with the compromise and asking them to re-
turn forms setting forth their views (I /d. 99,102; II Jd. 186).
She also filed a new class action in the same District Court,
charging the union with breach of its duty of fair representation
(I Id. 60). A terminated TWA stewardess, Anne B. Zipes,
wrote TWA class members that TWA had no defense to the
claims; stated her opposition to the compromise for not provid-
ing seniority since termination and also back pay; and requested
the return of a form to that effect (I /d. 104-5). She also, by
her attorneys, filed objections to the compromise and the union’s
representation of employed and terminated stewardesses, claim-
ing they had conflicting interests and that the class action should
be under subdivisions (b)(2) and (b)(3) of Rule 23 (I Id.
78-87). On March 6 a California attorney filed a notice on
behalf of six stewardesses who had filed a class action under
Title VII in July 1971 against American Airlines in the United
States District Court, Central District of California (I Jd. 73).
The notice claimed these stewardesses had “opted out” of the
class in these present cases.
Hearings on the settlement were held in the District Court
between March 10 and 17, 1972 (II Supp. App. 141-522).
ee ee eee Ses
6
Counsel for the union and other plaintiffs testified that, under
the settlement, all terminated stewardesses could return to
work whether they had voluntarily resigned, resigned by coercion,
or been terminated for violation of a rule prohibiting conceal-
ment of pregnancy; the return would be to the base of their
choice regardless of where terminated; they would retain their
termination seniority; the main concession to the airlines was the
dismissal of the claim for back pay: and without the settlement
it would take five years to litigate the cases to a conclusion be-
cause of the many different factual situations involved in de-
termining individual remedies (II /d. 155-7, 168-9). Of nine
stewardesses testifying in opposition to the compromise, some
indicated their unwillingness to return to work and all objected
that the compromise failed to include “full” seniority and back
pay to the time of rehiring (II /d. 183-191, 212-7, 226, 230).
The District Judge’s oral decision on March 17, 1972 (II
Supp. App. 500-3) noted the difference between termination on
pregnancy and on marriage, which had been involved in a prior
case he had decided*. After discussing the issues of seniority and
back pay, he concluded the compromise was “excellent” be-
cause it would return the stewardesses to work immediately. He
overruled all objections and denied the objectors’ motion to re-
align the class members and create a (b) (3) class in addition to
the (b)(2) class under Rule 23. Orders found the class actions
to be under Rule 23(b) (2); held plaintiffs to be “adequate repre-
sentatives” of the class of terminated stewardesses; approved the
compromise and held it binding on all class members (I Supp.
App. 88-9). The Preston action filed against the union in the
same court was dismissed (I Jd. 93).
On appeals by objecting stewardesses, the Court of Appeals’
opinion in December 1973 (Appendix A of this petition) re-
versed the orders approving the compromises in the two actions
* His holding that the rule terminating a stewardess on marriage
was unlawful sex discrimination was affirmed in Sprogis v. United Air
Lines, 444 F. 2d 1194 (C. A. 7, 1971).
Seo EER re ee RS AT CO hd FTA ARE TIS Oe ID Se ee oo Nee
7
against the airlines; held the union had no authority to repre-
sent the class of terminated stewardesses and settle their rights
under Title VII; ruled the actions should have been treated as
(b)(3) class actions to allow class members to exclude them-
selves from the class. The remanding provision of the opinion
(p. Al4) directed the District Court to permit one or more
named plaintiffs or class members to replace the union as the
representative of the class: to create sub-classes if it appeared
desirable for adequate representation: to send notices giving
class members the opportunity to exclude themseives from the
class; and to proceed with the litigation to a conclusion unless
a settlement was approved by the court. The judgment dismissing
the Preston action was reversed.
The respondents named in this petition, in addition to the
union, are stewardesses who filed objections in the District Court
and appealed to the Court of Appeals.
PAAR SURG Shaan Pots SB “
REASONS FOR GRANTING WRIT
There are unusually strong reasons for the exercise of this
Court's power of review on the two separate questions stated in
this petition. The questions in the petition of the stewardesses’
labor union are too narrow to present adequately the problems
created by the Court of Appeals’ decision.
The basic policy in favor of prompt disposition of litigation
has already been defeated in this case.* In July 1971 the airlines
‘* and the union negotjated a settlement, subject to court approval,
of the remedies of/al rminated stewardesses in class
actions under, e VII of the Civil Rights Act. The District
ed the settkement in March 1972. Appeals by
stewardesses, sustained in the Court of Appeals
in December 1 have resulted in a big setback that reverses
the District Court's approval of the settlement and remands the
litigation to its June 1971 status.
This is not because the settlement was found unfair. The
Court of Appeals, without discussing the fairness of the settle-
ment, nullified it on two grounds. First, that the union had no
authority to negotiate the settlement because the stewardesses
had conflicting seniority interests. Second, that the class action,
treated throughout the litigation as within subdivision (b) (2)
of Rule 23 of the Federal Rule of Civil Procedure, was within
subdivision (b)(3) so that class members were denied a right
to exclude themselves from the class. The decision on these
grounds, which are reflected above in the two “Questions Pre-
sented” and below in Points I and II, destroys a long established
function of labor unions and ignores the rationale of Rule 23,
as this petition demonstrates. The decision will greatly prolong
this litigation. It will produce confusion and delay in much
Title VII and other federal litigation, particularly in administer-
ing “the big case”.
9
The first question, whether a labor union has authority to
negotiate a class action settlement in Title VII cases subject to
court approval, is “an important question of federal law which
has not been, but should be. settled by this court.” (Rule 19(b)
of this Court. third clause).
The second question, involving the proper classification of
class actions and their binding effect, is of equal importance for
decision by this Court, since it affects class actions in all kinds
of federal litigation. not merely under Title VII. The Court of
Appeals’ decision on this second question conflicts with de-
cisions of Courts of Appeals of the Fourth, Fifth, and Eighth
Circuits* (Rule 19(b). first clause).
I.
THE DECISION BELOW FAILED TO GIVE EFFECT TO A
UNION’S REPRESENTATIVE AUTHORITY TO MAKE A
SETTLEMENT IN LITIGATION UNDER TITLE VII AND
RULE 23
The Court of Appeals’ opinion applies a conclusive presump-
tion. The conflicting seniority interests among stewardesses are
held to destroy the union’s authority to make a binding settle-
ment though approved by the District Court. The starting point
of the court's reasoning is the union attorney's admission that
the seniority granted terminated stewardesses in a settlement
would be detrimental to the seniority of the employed stew-
ardesses (p. A7). The defect in the union’s power is so extreme
that it is held per se unlawful. The factual adequacy of the
union’s authority was expressly adjudicated when the settlement
and the union’s authority were approved after a contested hearing
in the District Court.** The Court of Appeals thus conclusively
* See below, p. 33. _
** The District Court’s adjudication of the adequacy of a class
representative under Rule 23 is a matter of judicial discretion, re-
viewable only for abuse. 7 Wright & Miller, Federal Practice and
Procedure, § 1765 at 623.
10
presumed that the union’s authority was invalid as a matter of
law even though seniority was involved in only one of the
issues in the litigation.
The Court of Appeals concedes that the union, as a certified
collective bargaining representative under the Railway Labor
Act, may represent antagonistic interests in making binding
settlements under many decisions of this Court (pp. A8-10). But
this federal substantive law is held not to apply. The employee's
right to redress under Title VII of the 1964 Civil Rights Act
is said to be “individual” (/d.). Since that would prevent any
settlement of Title VII remedies on a collective basis, it is
inconsistent with the court’s remanding direction that a class
representative chosen by the District Court may make an ap-
propriate settlement (p. Al4). Also, the union’s “adequacy
as a representative party” and its “unique authority to com-
promise the rights of its members” are said not to exist “in
a Class suit when such rights do not arise out of collective
bargaining agreements” (p. All). The union’s disqualification
is thus based on the nature of Title VII remedies and Rule 23
of the Federal Rules of Civil Procedure. The court below thus
refused, in a class action under Title VII, to apply the basic
provisions of federal law that authorize a union to represent
conflicting seniority interests and favor the settlement of em-
ployment disputes.
A. Union Had Authority Under Federal Law to Represent
Conflicting Seniority Interests in Negotiating Settlement,
and Airlines Were Required to Negotiate with Union
The Court of Appeals’ opinion greatly underestimates the
purposes, meaning, and effect of Railway Labor Act provisions
concerning the settlement of disputes and the legal relationships
among the union, employees, and the carrier.*
* See Appendix B, pp. A15-6, for excerpts from Railway Labor
Act.
“ a
Sek eT aaa wen
11
The Railway Labor Act's express provisions require air car-
riers and union representatives to negotiate and encourage them
to make binding settlements of disputes despite conflicting
interests among employees. The act's first operative provision
requires carriers and employees to “exert every reasonable
effort” to make agreements “concerning rates of pay. rules, and
working conditions” and to “settle all disputes. whether aris-
ing out of the application of such agreements or otherwise”
(§ 2 First, 45 U. S. C. 152 [emphasis added]). Disputes are
required to be considered, not in individual dealings with em-
ployees, but “in conference between representatives designated
and authorized so to confer . . . by the carrier or carriers and
by the employees thereof interested in the dispute” ($§ 2 Sec-
ond). The employees’ “representative” must be chosen by the
“majority” of the “craft or class of employees” ($ 2 Fourth).
The specific meaning of these general! provisions is indicated
by illustrative decisions in which this Court has emphasized the
extremely strong public policy in favor of union authority to
negotiate the settlement of controversies involving conflicting
interests of employees.
The statutory direction to the carrier to “treat with the rep-
resentative so certified as the representative of the craft or
class” ($ 2, Ninth) requires the carrier not merely to meet with
the union but “to make reasonable efforts to compose differences
—in short, to enter into a negotiation for the settlement of labor
disputes such as is contemplated by § 2, First”. Virginian Rail-
way Co. v. System Federation No. 40, 300 U. S. 515, 548
(1937).
The union is not only authorized, but required, to represent
craft or class members with conflicting interests and whether
or not they are union members. The leading case of Steele v.
L. & N. R. Co., 323 U. S. 192 (1944), found the word “rep-
resentative” in the act “plainly implies that the representative
is to act on behalf of all the employees which, by virtue of the
statute, it undertakes to represent” (p. 199). $2 Second of
the act, requiring carriers to bargain with the chosen repre-
De AEL IAEA SP A UE RP EE AO ne SM EMER SE CL
12
sentative, “operates to exclude any other from representing a
craft” (p. 200) and the designated representative is “responsi-
ble” for “those who are not members of the represented organi-
zation, as well as those who are members” (p. 201). This
Court went so far in Steele as to say that Congress in the
Railway Labor Act “has seen fit to clothe the bargaining repre-
sentative with powers comparable to those possessed by a legis-
lative body both to create and restrict the rights of those whom
it represents” (p. 202). A “corresponding duty” was also held
to exist. The opinion said that Congress had intended to im-
pose on the representative “the duty to exercise fairly the power
conferred upon it in behalf of all those for whom it acts, without
hostile discrimination against them”. But this duty, it was said,
does not bar the representative “from making contracts which
may have unfavorable effects on some of the members of the
craft represented” (p. 203).
A union’s authority to make a binding settlement of ten
employees’ back pay claims, though limited in a first opinion
as involving mere “grievances”, was held sustainable absent
contrary proof in a second opinion on rehearing, Elgin, Joliet
and Eastern Ry. Co. v. Burley, 325 U. S. 711 (1945) and 327
U. S. 661 (1946). The first opinion indicated a union had
exclusive authority to make a binding settlement of a “major”
dispute but not a “minor” one, i.e., a grievance (325 U. S.
724-5). Justice Frankfurter’s dissent for four Justices contended
the union had binding authority over grievance settlements.
On rehearing, granted after amicus briefs stated that settled
labor practice was invalidated by the first opinion, the second
majority opinion emphasized that the Railway Labor Act “im-
poses correlative affirmative duties upon the carrier, the collec-
tive agent and the aggrieved employee to make every reasonable
effort to settle the dispute”; and said it would be inconsistent
for the act to require the carrier and the union to negotiate
concerning a settlement “while withholding power from them
to make that settlement effective finally as against the employee”
(327 U. S. 665). The case was remanded for factual deter-
= = DSLR ETS SEER RE AN - eens
13
mination of the employees’ contentions that the union lacked
authority to represent them.
The settlement of conflicting seniority interests by a union,
the very matter here held to be beyond the union’s authority in
a class action under Title VII, was generally sustained in Ford
Motor Co. Vv. Huffman, 345 U. S. 330 (1953). Citing Steele,
the opinion explained that the union had a “statutory obligation
to represent all members of the appropriate unit” (p. 337)
and stressed the likelihood of seniority conflicts among repre-
sented employees (pp. 338-9):
“Inevitably differences arise in the manner and degree to
which the terms of any negotiated agreement affect indi-
vidual employees and classes of employees . . . The com-
plete satisfaction of all who are represented is hardly to
be expected . . . Differences in wages, hours and condi-
tions of 2mployment reflect countless variables. Seniority
rules governing promotions, transfers, lay-offs and similar
matters may, in the first instance, revolve around length
of competent service. Variations acceptable in the dis-
cretion of bargaining representatives, however, may well
include differences . . .”
Another union settlement of a dispute over conflicting senior-
ity interests was sustained in Humphrey v. Moore, 375 U. S.
335 (1964), where one union representing the employees of
two merged companies entered into an agreement fixing the
relative seniority rights of the two employee groups. A state
court held the agreement invalid because of “antagonistic inter-
ests of two sets of employees represented by the same union
advocate” (p. 341). Reversing, this Court said that the duty of
fair representation was not breached when the union had taken
“a good faith position contrary to that of some individuals whom
it represents” and “in supporting the position of one group of
employees against that of another” (p. 349). The opinion ex-
plained the public interest in the union’s negotiating authority
despite the conflicts between different groups of employees:
“Just as a union must be free to sift out wholly frivolous
grievances which would only clog the grievance process,
fae INE LEAN wRE Bt ED SRE
14
sO it must be free to take a position on the not so frivo-
lous disputes. Nor should it be neutralized when the
issue is chiefly between two sets of employees. Conflict
between employees represented by the same union is a
recurring fact. To remove or gag the union in these cases
would surely weaken the collective bargaining and griev-
ance processes” (pp. 349-50) (Emphasis added).
Two recent Court of Appeals’ decisions in the Second and
Fifth Circuits illustrate how far the Court of Appeals in the
present case has failed to give effect to a union’s authority as
an employee's representative.
Pyzynski v. New York Central Railroad Company, 421 F.
2d 854 (C. A. 2, 1970), emphasized the strong public policy
in favor of a union’s power to settle even One employee's claim.
The employee had been denied reemployment after an injury;
had authorized the union to file a grievance proceeding, which
he lost; and the union and the employer then negotiated a
settlement for his return to work without back pay. He sued
for back pay in a District Court, denying the union’s authority
to settle. The trial court's decision for him was reversed. The
Court of Appeals’ opinion, written 25 years after the Burley
case, explained how this Court's decisions in the intervening
years had indicated the strong reasons why a union has broad
authority to represent an employee's individual interests:
“At the time the Burley decisions were written the duty
of fair representation had only recently been developed
in Steele v. Louisville & N. R. R. Co., 323 U. S. 192
(1944) ... It has since been recognized that the duty
of the collective representative to represent fairly all those
for whom it acts is broadly applicable to all facets of
the employee’s relationship with his collective agent includ-
ing particularly the settlement of grievances [citing cases].
This duty is enforceable in the federal courts . . . and
provides a more effective means of protecting the employee
against arbitrary abuses of settlement procedures than
those envisaged in the Burley case . . . It is more realistic
to require the collective agent to represent an employee's
individual interests in good faith than to assume that the
ae Re NIE: SV SE eae Re SO 2
]
a
employee, if left in control of his grievance, can act in his
own behalf to safeguard his rights.” (pp. 862-3)
In National Airlines Vv. International Association of Machinists,
478 F. 2d 1062 (C. A. 5, 1973), an airline and a union
entered into an agreement covering almost 1000 employees
“entitled to reinstatement and, or back pay” because of the air-
line’s illegal discharges after a wildcat strike. A number of
employees, dissatisfied because their interim earnings were de-
ducted from a back pay allowance, contended their collective
representative had “no authority to reso've and settle individual
claims for back pay”. The Court of Appeals rejected this con-
tention on two grounds. The union had “exclusive authority”
to bind objecting employees because the back pay issue was
“an integral part” of the discharge following the wildcat strike,
which the Court characterized as “a major dispute” (p. 1065).
And the employees had “allowed the company and the union to
negotiate for nearly a year without registering any objections to
being bound by whatever agreement was finally reached” (p.
1066) so that the second Burley opinion supported the binding
effect of the settlement.
The federal substantive law, created by the Railway Labor
Act and these court decisions, has a pervasive effect on the re-
lationships among carriers, employees, and the employees’ statu-
tory representative. Under that law these relationships are a
“continuous process”, involving “day-to-day adjustments in the
contract and other working rules . . . and the protection of
employee rights already secured by contract”. Conley v. Gibson,
355 U. S. 41, 46 (1957). The policies favoring the union’s
representation of conflicting interests and the settlement of dis-
putes are so strong that they should be held to have been
reversed by Congress only if required by express legislation
declaratory of a much stronger contrary public purpose.
ee 24 eet eee
16
B. Congressional Intention Misinterpreted in Denial
of Union Authority
(1) Use of Wrong Criterion of Interpretation
in denying the union’s Railway Labor Act authority to make
a court-approved settlement in this case, the Court of Appeals
looks to Title VII to see if it adopts the provisions of the earlier
statute. Title VII is said not to “»ecessarily recognize” a union's
power of exclusive representation, and “policy reasons” of Title
VII are said not to “militate” in favor of the same representa-
tive status for the union under Title VII that it has under the
Railway Labor Act (p. Al0). The Court of Appeals treats
Title VII as repealing the earlier statutory authority to the ex-
tent Congress did not expressly incorporate the prior law in
Title VII. The reverse reasoning process, apparently overlooked
by the Court of Appeals, is required by basic decisions of this
Court.
The right method, which is to see whether the new statute
necessarily forbids what the earlier statute permits or requires,
was explained in Chief Justice Hughes’ much quoted statement
in United States v. Borden Co., 308 U. S. 188, 198 (1939).
The “cardinal principle” is that “repeals by implication are not
favored”. When there are two acts on the same subject, “the rule
is to give effect to both if possible”. The Congressional intention
to repeal “must be clear and manifest”.* As a result, the first
inquiry is whether the provisions of both acts can be given
effect rather than whether the later repeals the earlier. Accord-
ingly Silver v. New York Stock Exchange, 373 U.S. 341 (1963),
reversed a Court of Appeals’ holding that conduct forbidden by
the Sherman Act was exempted from it by the 1934 Securities
Exchange Act. There being no express exemption in the later
statute, the opinion of Justice Goldberg noted that “any re-
* Justice Story was quoted to the effect that there must be “a
positive repugnancy between provisions of the new law and those
of the old; and even then the old law is repealed by implication only
pro tanto to the extent of the repugnancy” 308 U. S. at 199.
17
pealer of the antitrust laws must be discerned as a matter of
implication”. “Repeal”, he said, “is to be regarded as implied
only if necessary to make the Securities Exchange Act work,
and even then only to the minimum extent necessary. This is the
guiding principle to reconciliation of the two statutory schemes”
(p. 357). See also Federal Maritime Commission v. Seatrain
Lines, 411 U. S. 726, 36 L. Ed. 2d 620, 626-7 (1973).
(2) Congressional Intention in Both Railway Labor Act and Title
VII Can Be Given Effect Without Destroying Union Authority
to Make a Court Approved Settlement
The first relevant inquiry on the relationship of the Railway
Labor Act to Title VII, whether both can be given effect. is
readily answered. A union's authority under the Railway Labor
Act to represent terminated stewardesses. despite the conflicting
seniority interests of employed stewardesses, will further the pur-
poses and aid the administration of Title VII. If this were not
true, as the Court of Appeals apparently assumed, the next
question would be whether Congress intended in Title VII to
repeal Railway Labor Act provisions that granted such authority.
Title VII would have such an effect only if “necessary” to make
Title VII “work”. It is clear that Congress did not intend such
a repeal.
Title VII is a labor relations act. It recognizes the wide scope
of a union’s representation authority by defining it as an organ-
ization existing “for the purpose. in whole or in part, of dealing
with employers concerning grievances. labor disputes. wages,
rates of pay. hours, or other terms or conditions of employment”
($ 701[d]). The racial, sex, or ethnic discrimination forbidden
by the act is outlawed by calling it an “unfair employment
practice”. a term used repeatedly in the act ($ 703).* The
two substantive liability issues in Title VII cases [i.e.. as here,
whether the airlines’ pregnancy practice was sex discrimination
under § 703(a) and not “a bona fide occupational qualification
* Quoted in Appendix C. p. A17. i a are
Ne a tet es ee.
reasonably necessary to the normal operation” of the airlines
under § 703(e)] affected the entire “craft or class” of all the
thousands of airline stewardesses and were suitable for union-
management consideration and settlement. Reinstatement, sen-
iority, and wages are rights that are remedied by the relief
provisions in § 706(g) of Title VII. which authorizes the
District Court to enjoin an unlawful employment practice and
order “such affirmative action as may be appropriate, which may
include reinstatement or hiring of employees. with or without
back pay.” The source of these rights is the collective bargain-
ing agreement in the case of carriers subject to the Railway
Labor Act. The s 706(g) remedies were copied* by Congress
from the relief provisions of ¢ 10(c) of the National Labor
Relations Act (29 U. S. C. 160(c)).
It seems likely, if not certain, that Congress did not intend to
forbid unions, exercising their regular authority despite conflict-
ing interests, to negotiate with carriers and settle Title VII claims
of unlawful employment practices involving thousands or hun-
dreds of employees. A basic provision of the Railway Labor Act
directs unions and carriers to settle all disputes ($ 2 First, 45
U. S. C. 152). Unions and their attorneys are experts in the
often complicated rights to reinstatement, seniority,** and back
pay which, whether involved in Title VII actions or otherwise,
have their origin in collective bargaining contracts. Congress
would not lightly discard the use of such a large supply of expert
knowledge and skill that would be beneficial in enforcing and
administering the provisions of Title VII. The purposes of
Title VII will be furthered if the union's statutory authority and and
* See interpretative memorandum introduced by Senator Joseph
Clark, 110 Cong. Rec. 7214 (1964).
** Union officials in the airline industry are particularly cxperi-
enced in dealing with seniority problems. which often present great
difficulties in airline mergers. See: Rosenfield, Air Line Mergers: The
Public Interest in Labor Protective Provisions, 61 Ky. L. J. 429
(1973); Levine and Moritz. The Resolution of Pilot Seniority Prob-
lems in Airline Merger Cases. 24 CCH Labor L. Journal 617
(1973).
19
the legal principles that favor the settlement of disputes are
applied in Title VII litigation. The principles of the Steele,
Humphrey, and other cases noted above* can be applied easily
in Title VII actions by permitting a union to make a binding
settlement despite the inevitable conflicts in its statutory rep-
resentation.
The safeguards against favoritism by the union to one em-
ployee group over another include. in addition to the union's
liability for breach of its duty of fair representation, court scrut-
ing of any settlement since court approval is required when, as
here, the Title VII action is a class action under Rule 23.
The benefits to be derived from the union's exercise of its
representative powers in a Title VII action are illustrated by
the course of these cases. Stewardesses complained to the union
early in 1970 that the airlines’ pregnancy practice was unlawful
sex discrimination. The union, after filing charges with the
EEOC and obtaining its permission, filed suit in August. In
October it negotiated an amendment of the collective bargain-
ing agreement to eliminate pregnancy as a ground for termina-
tion. By July 1971 the union and the airlines had agreed to a
settlement of the rights of almost 600 terminated stewardesses.
The settlement obtained their prompt return to work with ter-
mination seniority but without back pay.** The complex litiga-
tion that was avoided .by this settlement was testified to at the
hearing in the trial court (II Supp. App. 169). Many legal and
factual uncertainties about the probable recoveries were involved
in the settlement.***
*Pp. 11-5.
** On the first appeal in these cases the Court of Appeals em-
phasized the policy in favor of the settlement of Title VII cases.
455 F. 2d at 109. This is not mentioned in the second opinion.
*** The District Court’s approval of the merits of the settlement
under Rule 23(e). reversible only for “a clear showing . . . of an
abuse of discretion” [United Founders Life Ins. Co. v. Consumers
Nat. Life Ins. Co., 447 F. 2d 647, 655 (C. A. 7, 1971)] and not
disturbed by the Court of Appeals. depended on the uncertainties
if the litigation were contested (/d.). Here there was serious
20
Strong practical reasons make it unlikely that Congress in-
tended in Title VII to exclude unions from the negotiation of
remedies, at least in class actions. If all disputes under the act
must be litigated individually to completion without union
participation, proceedings under the act will be certain to be
complicated and protracted. In class actions involving the
entire “craft or class”, ordinary representatives under Rule
23(a)(4) would be unable to act for conflicting interests. Sub-
classes would have to be provided with the probability that
uncertainty that the stewardesses, who fly for only “a very short
period of time” (II Supp. App. 168), would ever obtain any
remedy, at least comparable to the certainty of prompt reinstate-
ment provided by the settlement in July 1971. Recovery would be
denied completely unless the airlines’ pregnancy practice were found
to be unlawful “sex discrimination” within the intention of Congress
in § 703(a) of Title VII; rules governing the pregnancy of state em-
ployees were recently held to violate substantive due process rather
than the prohibition of sex discrimination in the Equal Protection
Clause, Cleveland Board of Education v. LaFleur, .... U.S. .....
42 U. S. L. W. 4189 (Jan. 1974); and this Court’s only interpreta-
tion of the sex provision of § 703(a), requiring “persons of like quali-
fications” to be given the same employment opportunities irrespective
of sex, would not make the pregnancy practice unlawful, Phillips v.
Martin Marietta Corp., 400 U. S. 542 (1971). If the pregnancy
practice were sex discrimination under $703(a), it was still not un-
lawful if it embodied a “bona fide occupational qualification rea-
sonably necessary” to airline operation; the economic, medical, and
operational considerations for the airlines’ pregnancy practice were
alleged in the answers (I Supp. App. 13-4, 18-9). The legislative
history does not support a broad interpretation of the sex discrimina-
tion provisions of Title VIT because sex discrimination was hurriedly
inserted in Title VII on the floor of Congress without committec
hearings or reports. 110 Cong. Rec. 2577, 2581, 2584, 2720
(1964). The EEOC’s guidelines on sex discrimination did not origi-
nally (1965) treat the airlines’ pregnancy practice as sex discrimina-
tion (30 Fed. Reg. 14926) and in fact did not set forth a policy
relating to pregnancy until March 31, 1972 (37 Fed. Reg. 6835),
which was after the approval of the settlement in the trial court in
this litigation. There were many doubts about the likelihood of re-
covery of the several kinds of affirmative relief under $ 706(g) by
many stewardesses because of their termination for causes other
than claimed sex discrimination: because of the discretion granted the
trial court to order reinstatement “with or without back pay”; because
of the deduction from back pay of “interim . . . amounts earnable
with reasonable diligence”; and because of limitations provisions (II
Supp. App. 154).
a
21
representatives would be chosen by District Court judges, as
the remanding order of the Court of Appeals in this case would
require. One unlawful employment practice by one employer
affecting cae large group of employees would produce many
cases filed in many District Courts with many different results.
The Court of Appeals would supplant the statutory representa-
tive elected by a majority of the craft with a representative whose
choice depends on who happens to file a class action. Congress
would not have intended such a result, which its prior statutes
prevent, without careful provision for it in Title VII.
It is true that some provisions of the Railway Labor Act are
probably affected by the provision of § 703(c) of Title VII
making it an unlawful employment practice for a union to
engage in specified acts of race, sex, etc. discrimination. The
union's position when it is charged with unlawful discrimina-
tion would be inconsistent with its duty to represent the em-
ployees making the charges. Then, under the principle of the
Silver case noted above.* the statutory provision for the union’s
authority would be held to have been impliedly repealed “to the
minimum extent necessary” to make § 703(c) “work”. That is
not the situation here where the union filed charges against the
carriers with the EEOC and then filed the two class actions
against the carriers.
The Court of Appeals’ opinion (p. Al3), attempting to show
the individuality of the employee's remedies, exaggerates the
significance of a*statement in the opinion on the first appeal,
which was an answer to an EEOC contention. The EEOC
claimed a right to intervene because § 706(a) requires it to seek
to eliminate an alleged discriminatory practice by conciliation.
The first opinion said this EEOC interest was insufficient to
justify intervention because the employee was the “real party in
interest in conciliation endeavors” and was completely free “to
accept or reject the proposals of union or employer as well as the
position taken by the Commission”. The Congressional provi-
°F. ©
Pee EE BL we
SONA SP, Dy MRO OK
oe)
sion for administrative conciliation indicates no intention about
exclusion of the union from a settlement of a later District
Court proceeding. And the reference to a union was to a fe-
spondent charged with an unlawful employment practice, not
a union negotiating for an employee. The Cox case cited in the
earlier opinion (445 F. 2d at 106 n. 10) so indicates. *
There is thus no basis in Congressional intention for the
Court of Appeals’ refusal to give effect to a union’s representa-
tive authority in seeking class action remedies for unlawful dis-
crimination under Title VII. The two basic statutes involved,
the Railway Labor Act and Title VII, did not create exclusive
legal domains. They can be well administered together. If there
is any conflict between the two as the Court of Appeals loosely
indicated, the provisions of Title VII should yield to the older and
more comprehensive federal labor laws enacted by Congress and
developed by this Court. This is because, at least with respect
to the union’s authority to sue and participate in litigation as a
representative of employees with conflicting interests, Congress
did not intend to repeal the federal law that permits and even
requires such representation.
Alexander v. Gardner-Denver Co., ..... U. S. ......, 42
U.S. L. W. 4214 (decided February 19, 1974, while this cer-
tiorari petition was being written) does not hold that Congress
had a contrary intention. There a single employee. claiming
wrongful discharge because of racial discrimination, had been
unsuccessful in an arbitration proceeding under a labor contract.
He was held not to have waived his remedy under Title VII. In
the present case the employees urged the union to take their
claims to arbitration in early 1970 (II Supp. App. 152). That
was not done. The union persuaded them to file a charge with the
* Cox v. United States Gypsum Co., 284 F. Supp. 74 (N. D. Ind.
1968). aff'd 409 F. 2d 289 (C. A. 7, 1969), rejected an em-
ployer’s contention, based on ambiguous statutory language, that its
agreement to an EEOC conciliation proposal thereby barred em-
ployees from a District Court suit under § 706(g) against both
the employer and the union.
a > eae
a
EEOC, and the Title VII class actions followed. The present
litigation involves, not the effect of labor law remedies outside
Title VII as in the Alexander case, but the capacity of a
federal statutory representative to exercise his function in the
prosecution of District Court actions authorized by § 706(e)
and (g) of Title VII.
Another contrast with the Alexander case is that the present
case involves a class action on behalf of almost 600 terminated
stewardesses brought under Rule 23 of the Federal Rules of
Civil Procedure. It seems certain that the opinion in the Alex-
ander case, in emphasizing the individuality of an employee’s
rights under Title VII, was not intended to forbid the prosecution
of remedies in class actions under Rule 23. The Courts of
Appeals have noted that a class action is a particularly appro-
priate procedure in prosecuting remedies under Title VII.*
The opinion of the Court of Appeals in the present action permits
the class action to continue and even indicates that the affirma-
tive remedies of reinstatement, seniority, and back pay could
be disposed of by a settlement (p. Al4). If the opinion
in the Alexander case does raise a question about the propriety
of a class action or the settlement of class action claims under
Rule 23(e). it is particularly important that this Court review
the present cases in order to clarify the law in a very important
area.
A footnote in the Alexander opinion** criticizes union power
in stating that arbitration is a less appropriate forum for Title
VII issues than the Federal Courts. These remarks do not apply
to class actions in the District Court under Rule 23 where
objecting employees are protected by the necessity of court ap-
proval of the settlement. Further, it is significant that Congress
in Title VII, while expressly making a union liable for unlaw-
ful discrimination, did not expressly forbid it in Title VII actions
* “* Oatis Vv. ‘Crown Zellerbach Corp., 398 F. 2d 496, 498 (C. A.
5, 1968); Bowe v. Colgate-Palmolive Co., 416 F. 2d 711, 719
(C. A. 7, 1969).
** 42 U.S. L. W. 4220 n. 19.
Dt Sit RA AREAS PEALE SO SS ART CREE. PI PIOELL AN Teale - . No tet em re
24
to exercise its statutory powers and duties as the representative
of the majority of the craft of employees.
C. Rule 23(a)(4) Does Not Forbid Union Representation of
Conflicting Interests
The Court of Appeals’ opinion overlooked an important
distinction in the language of Rule 23(a)(4). The court held
that the union’s representation of conflicting seniority interests
violated the requirement of subdivision (a)(4) that “the
representative parties will effectively and adequately protect the
interests of the class’ (quoted p. A22. emphasis added). This
provision does not specify a conflict of interests as a disquali-
fication. A representative may act for a class with conflicting
interests if he will adequately protect class interests. Congress
has made the union a special statutory protector of the conflicting
interests of union members with a substantive duty of fair
representation of such interests, as held by Steele, Humphrey
and other cases discussed above.* This special union representa-
tion satisfies the criterion of subdivision (a) (4). contrary to the
Court of Appeals’ ruling, unless there is proof of ineffective or
inadequate class protection; and here, as explained above,** the
District Court adjudicated the union’s effectiveness and adequacy
as a representative.
This interpretation of Rule 23 is supported by additional con-
siderations. When the Court of Appeals stated (p. All) that
the union’s adequacy as a class suit representative must be
“tested and judged in the ordinary way”, the court held that
subdivision (a)(4) had overridden the federal substantive law
that created the union’s regular role. Under the Rules Enabling
Act [48 Stat. 1064 (1934); 28 U. S. C. 2072] a procedural
provision could not validly modify substantive federal law.
25
should be interpreted to sustain its validity. Further, in resorting
to a class action under Rule 23, the union submitted itself to
judicial supervision of its performance as a representative, includ-
ing the scrutiny of any settlement by reason of the requirement
of court approval in subdivision (e). This, combined with the
union’s liability for breach of its substantive duty of fair repre-
sentation, provides double assurance that the union “will effec-
tively and adequately protect the interests of the class”.
The Court of Appeals’ opinion (p. A8) raises a possible viola-
tion of procedural due process, citing Hansberry v. Lee, 31}
U. S. 32. 45 (1940), for a statement “that a judgment in a
class action can only bind absent class members where the
representative's interests coincide with those of the balance of
the class”. The basic due process protections of a notice* and a
hearing were accorded the objectors in the present cases (I
Supp. App. 55). Their attorneys (other than the union's) ap-
peared at and participated fully in the hearings held in March
1972 (II Jd. 141). In Masterson v. Pergament, 203 F. 2d 315,
330 (C. A. 6, 1953), cert. den. 346 U. S. 832, rejecting con-
tentions that a settlement under former Rule 23(c) was invalid
because of inadequate notice and the dual role of lawyers repre-
senting class members. the Court of Appeals explained that the
District Judge. in granting his approval, was “a third party to
the compromise” and that the objection of class members to
inadequate representation at the hearing could not be sustained.
Thus, in the present case, if a due process question is raised
by the statutory agent's representation of conflicting employee
interests. the employees are protected by the two safeguards of
the union’s duty of fair representation and judicial review of
the representation.
* On the first appeal the Court of Appeals’ opinion, after review-
ing the provisions of the July 1971 notice, later duplicated in the
February 1972 notice, concluded (455 F. 2d at 108) that it “suf-
ficiently conveyed the required information,” citing Mullane v. Cen-
tral Hanover Bank & Trust Co., 339 U. S. 306 (1950).
CONNER RENN RL RRC SIT RON RE Lk
26
D. Airline Reliance on Union Authority
The airlines negotiated with the union and made a binding
settlement in reliance on representations that the union had
authority to act. The representations were made by the air-
lines’ opponents in the litigation, the union and the stewardesses
for whom it acted. The Court of Appeals, after stating that in
some cases class members could so clearly acquiesce in their
union’s efforts that “they would be estopped” from excluding
themselves from a settlement, concluded, “Nothing revealed in
this record puts these cases in that posture”.* This conclusion
is based on a faulty analysis of the conduct by the union and its
members in dealing with the carriers.
The carriers’ reliance on representations of union settlement
authority has been held to be an important factor in consider-
ing union authority that might otherwise be in doubt. In the
second Burley opinion, the majority said that the employee
could not “stand by with knowledge or notice of what is going
on with reference to his claim”, “allow matters to be thrashed
out to a conclusion”, “and then come in for the first time to
assert his individual rights” (327 U. S. 666-7). Twenty-five
years later the Second Circuit said in the Pyzynski case (421
F. 2d at 859-860),
“The Burley decisions may be said to have held that
a carrier may rely on the authority of a union to
negotiate a conclusive settlement . . . if it can be shown
either that the union acted upon a basis of actual authority,
whether individually given or to be gathered from the
union constitution or bylaws or from custom and usage
or that the employee had notice or knowledge of the
actions taken by the union in his behalf and took no steps
to negate the union’s authority”.
In the National Airlines case, involving a settlement of remedies
for the illegal discharge of 1000 employees, the Fifth Circuit
held that 28 objecting employees, “having allowed the I. A. M.
*P. Al3.
TRL SR TT ms 0 ,
eS GRATE ERE, OE
27
[the union] to negotiate with the result that the company bar-
gained under the assumption that all claimants including these
twenty-eight would be bound by the settlement, may not now
declare that this agreement is null and void with respect to them”
(478 F. 2d at 1066).
In the present controversy, the stewardesses and the union
repeatedly used the processes and practices of federal labor
law to pursue their Title VII remedies. In early 1970, when
several terminated stewardesses took action against the pregnancy
practice, they did so by filing grievances with the union, their
statutory representative under the RLA (II Supp. App. p. 151).
The union as their representative negotiated the dispute, unsuc-
cessfully, with the airline employers. When the union as the
stewardesses’ statutory representative filed charges with the
EEOC (I /d. 115), the EEOC authorized the union to file
actions under Title VII (I 7d. 135). In the District Court
complaints filed in August 1970 the union did not sue as a
person discriminated against by the pregnancy practice but as
“a representative of employees as defined in the Railway Labor
Act, 45 U. S. C. 151” (I Id. 2, 7). The union had broad
authority to sue on behalf of employees on several grounds.*
The settlement set aside by the Court of Appeals was negotiated
* A union has been held capable of bringing an action under
§ 706(e) of Title VII as a “person aggrieved”, and the EEOC has
authorized such suits by unions as it did in these cases. /nternational
Chemical Workers Union v. Planters Mfg. Co., 259 F. Supp. 365.
366 (N. D. Miss. 1966); Local 186 v. Minnesota Mining & Mfg.
Co., 304 F. Supp. 1284, 1293 (N. D. Ind. 1969); Local 179 v.
Federal Paper Stock Co., 461 F. 2d 849, 851 (C. A. 8, 1972):
Rosen v. Public Service Electric & Gas Co., 409 F. 2d 775, 780
(C. A. 3, 1969) and 477 F. 2d 90, 94 (C. A. 3, 1973). A union
also has broad powers to sue “in behalf of” employees under
§ 301(b) of the Labor Management Relations Act (29 U. S. C.
185(b)) which, unlike other provisions of the statute, does not
exclude persons covered by the Railway Labor Act. A union also
has capacity to sue without joining the employees it represents under
several clauses of Rules 17(a) and (b) of the Federal Rules of Civil
Procedure. See International Union v. Hoosier Cardinal Corp., 383
U. S. 696, 700 (1966); 6 Wright and Miller, Federal Practice and
Procedure, § 1552, pp. 689-91 (1971).
ROA RETR GO ARAN re ota < 2 ENE DAR Bi Ue VD
28
by union officers and the labor relations officers of the airlines
in July 1971 (II Supp. App. 326). Copies of the labor con-
tract with a notice explaining its binding effect went to the
hundreds of terminated stewardesses in August 1971 (I 7d.
41-52). Yet, as the union's certiorari petition explains (pp.
16-17), no objection was made to the union’s authority until
February 28, 1972.
In addition to the airlines’ justified reliance on Railway Labor
Act authority, the principle of apparent authority in the common
law of agency provided the basis for a binding settlement. Ap-
parent authority “results from a manifestation by a person that
another is his agent, the manifestation being made to a third
person”; and if it exists, “the third person has the same rights
with reference to the principal as where the agent is authorized”,
1 Restatement of Agency, 2d § 8, pp. 30-31 (1958). This
principle is different from the doctrine of estoppel (/d. 32-3).
The reasonableness of the airlines’ reliance on the union’s
authority is evident. The agent chosen by the stewardesses to
act for them in their claims of an unlawful employment prac-
tice under Title VII was not an interloper but their statutory
labor representative. The airlines were aware that the stew-
ardesses had conflicting seniority interests, but that does not
disqualify a labor representative under the Railway Labor Act.
The reasonableness of the union’s exercise of its authority was
apparent because, with the actions brought as class actions
under Rule 23, the required court approval of the settlement
would give any employee an opportunity to litigate objections.
It was reasonable of the airlines to negotiate with the union,
as the statute required it to do. Virginian Railway Co., 300
U. S. at 548.
™ eT a ee ed ~~ _ ~~
29
II.
THE DECISION MISINTERPRETS RULE 23 IN HOLDING
CLASS ACTIONS SHOULD HAVE BEEN BROUGHT UNDER
SUBDIVISION (b) (3)
The Court of Appeals’ holding that the class actions for
terminated stewardesses were under Rule 23(b)(3) has two
important results. Since (b)(3) class members must be given
a notice to permit them to exclude themselves from the class*
and since such a notice was not given, the judgment approving
the settlement is a nullity under the Court of Appeals’ ruling;
and the settlement itself is nullified because the right of exclu-
sion is contrary to the provision of the settlement that it is
binding on all class members. This result destroys a disposition
of the litigation by settlement years after it was made. As a
precedent, the misapplication of Rule 23, treating a (b)(3)
class as an exclusive alternative to (b)(1) and (b)(2) classes,
will have far-reaching results in other cases. The Court of
Appeals’ (b) (3) classification and the resulting limitation on the
binding effect of class action judgments are contrary to the
language and purposes of Rule 23 and all relevant legal authority.
In its certiorari petition, the union accepts this Court of
Appeals’ ruling that the terminated stewardesses should have
been in a (b)(3) class with a right of exclusion and implies
(p. 17, n16) that the airlines were wholly responsible for
treating the class as (b)(2) in the District Court. On the con-
trary. as the record makes clear,** the union and the other plain-
* Appendix D, p. A22, contains the text of Rule 23. Subdivision
(c)(2), p. A23, requires a notice only in a (b)(3) class that
permits a class member to exclude himself.
| ** Both complaints filed by the union and representative steward-
' esses alleged without ambiguity that the actions were brought
“pursuant to Rule 23(b)(2)” (I Supp. App. 2, 8) with clear
factual allegations for a (b)(2) class. The same allegations were
made by objecting terminated stewardesses in independent litigation
(Supp. Rec. 1; I Supp. App. 62, 63). The airlines’ answers denied
the class action allegations (I Supp. App. 12, 17; par. 4). Attorneys
for the union and other plaintiffs approved in writing July 1971
orders that the actions were properly maintainable as class actions (I
SORE OEE MOL Te a ORL PIN
30
tiffs treated the class as (b)(2) beginning with the filing of the
litigation in August 1970. The union’s contention, made in this
Court for the first time, that the class is (b)(3) and that class
members may exclude themselves is a repudiation of its lower
court position that affected the entire course of the litigation.
A. Clear Language of Rule 23 Shows Class Actions Were
Under Subdivision (b)(2) of Rule 23
The Court of Appeals’ narrow application of Rule 23(b) (2)
may seem superficially sound. In these Title VII actions the
stewardesses sought remedies under § 706(g) which authorizes
the District Court to “enjoin the respondent” from an unlawful
employment practice and also “to order such affirmative action
as may be appropriate, which may include reinstatement of
hiring of employees, with or without back pay”. The employed
stewardesses were believed entitled to an injunction only, and
subdivision (b)(2) was held applicable to them by the Court
of Appeals.* Subdivision (b) (2) describes a (b) (2) class action
as one in which the party opposing the class “has acted .
on grounds generally applicable to the class”, and then men-
tions the remedies for the conduct, “thereby making appropriate
final injunctive relief or corresponding declaratory relief with
respect to the class as a whole”. But subdivision (b) (2) was held
not applicable to the terminated stewardesses because such a
stewardess sought affirmative relief under § 706(g), “reinstate-
ment, back pay and accrued seniority” that “would depend on
facts peculiar to her” (p. Al2). They were held within sub-
division (b)(3), which applies when “questions of law or
fact common to members of the class predominate over any
Id. 28- 9); ‘February 1972 notices to class members that they would
request the court to find the action to be under Rule 23(b)(2)
(I Jd. 58, 59); and notices in July 1971 and February 1972 that
the court had ruled the actions maintainable as class actions for
terminated stewardesses with “final judgment . . . binding upon all
members of the class” (I /d. pp. 30-31 and 55-56).
* Page Al2.
31
questions affecting only one member”. However, this interpreta-
tion is shown, on analysis, to be contrary to the intended meaning
of Rule 23.
First, mandatory injunctions are overlooked by the Court of
Appeals’ interpretation. When subdivision (b)(2) refers to
“appropriate final injunctive relief", it includes the affirmative
remedies provided for in § 706(g). The very word “affirmative”
used in § 706(g) is commonly used to describe the relief pro-
vided in a mandatory injunction. A mandatory injunction is
granted when “some affirmative act or acts” are “essential to
restore the status quo”, § 16, 42 Am. Jr. 2d 745 (1969). The
provisions for injunctions in Rule 65 of the Federal Rules of
Civil Procedure include mandatory injunctions, although the
word “mandatory” is not used in the rule. The same is true of
a statute.* In a Title VII action the ordering of “such affirma-
tive action as may be appropriate”. including “reinstatement . . .
with or without back pay” as provided in $ 706(g) is thus within
the description of the (b)(2) class as one where the party has
acted against the class generally, “thereby making appropriate
final injunctive relief . . . with respect to the class as a whole”.
The newest treatise on the federal rules says of this (b)(2)
provision, “Injunctive relief embraces all forms of judicial orders,
whether they be mandatory or prohibitory.” 7A Wright &
Miller. Federal Practice and Procedure, § 1775, p. 21 (1972).
* In Porter v. Warner Co., 328 U. S. 395, 397 (1946). a statute
forbidding the collection of rents in excess of a stated formula
provided for “an order enjoining such acts or practice”. It was
held that affirmative relief was permitted in addition to the prohibi-
tion of future conduct. “Nothing’ is more clearly a part of a subject
matter of a suit for an injunction than the recovery of that which
has been illegally acquired . . .” ‘To the same effect under the Civil
Rights Act of 1957, see State of Alabama v. United States, 304 F. 2d
583, 590 (C. A. 5, 1962):
“Mandatory injunctions affirmatively compelling the doing of
some act, rather than merely negatively forbidding continua-
tion of a course of conduct, are a traditional tool of equity . . .
Certainly the order may command affirmative action where the
enabling statute provides, as this one does. for the use of an
injunction ‘or other order’ ™
32
Second, the language of Rule 23(b) as a whole indicates that
the (b)(1) and (b)(2) classes are both within the description
of the (b)(3) class and that subdivision (b)(3), the last al-
ternative, does not apply if the class is within subdivision (b) (1)
or (b)(2). Class (b)(1) is described as one in which the prose-
cution of separate actions would create a risk of inconsistent or
varying adjudications that would establish “incompatible stand-
ards of conduct for the party opposing the class” or “adjudica-
tions with respect to individual members” that would “be dis-
positive of the interests of the other members not parties”. The
(b)(1) class, formed to avoid varied adjudication, and the
(b)(2) class, in which an opponent's conduct is generally
applicable to the class, are likely to be within the broader
description of the (b)(3) class. i.e., one in which (1) ques-
tions of law or fact common to members of the class must
predominate over questions affecting only individual members
and (2) the class action must be superior to other available
methods of adjudicating the controversy fairly and efficiently.
Whatever the class, the same relief is likely to be available, such
as the prohibitory and affirmative remedies under § 706(g)
of Title VII in the present case.
The correct reading of Rule 23(b) is thus clear. Subdivisions
(b)(1), (b)(2), and (b)(3) overlap. When a class is within
subdivisions (b)(1) or (b)(2), it is so treated; class members
may not exclude themselves; and the final judgment is binding
on the class members whether the judgment follows a contested
trial or a settlement. If the class is not within subdivision (b) (1)
or (b)(2), but is within the looser and broader subdivision
(b) (3), the members may exclude themselves from the class
but the judgment after a trial or settlement is binding on mem-
bers who have not excluded themselves from the class.
The Court of Appeals uses the reverse of the required reason-
ing in applying the rule. Finding the class to be within (b) (3),
it holds the class is therefore not within (b)(2). But the class is
intended to be confined to (b)(2) even though it is also within
33
(b)(3). A wealth of authority shows the errors in the Court
of Appeals’ interpretation.
B. Authorities Are All Contrary to Court of
Appeals’ Interpretation
The court decisions are all one way, holding that, if an action
is classifiable as (b)(3) as well as (b)(1) or (b)(2), it should
be classified as (b)(1) or (b)(2). Decisions to that effect
are cited in a footnote,* showing that this result achieves the
purposes of Rule 23 “to avoid a multiplicity of suits, provide
common binding adjudication, and prevent inconsistent or vary-
ing adjudications” (Mungin, 318 F. Supp. 730). In the pioneer
decision (Van Gemert), Chief Judge Ryan perceived that “vir-
tually every class action that meets the requirements of 23(b) (1)
or 23(b)(2) will also meet the less severe requirements of
23(b)(2)"; and he added that “Rule 23(b)(3) is not appli-
cable” where “the stricter requirements of 23(b)(1) and 23
(b)(2) are squarely presented by the plaintiffs’ claims”. This
Court denied full review in two of the cases in 1971 (Rodriguez,
Mungin). Two of the cases were Title VII class actions (Jenkins,
Robinson), the Fourth Circuit saying in the latter that, since
“the defendants’ liability for back pay is rooted in grounds
applicable to all members of the defined class”, “the award
of back pay, as one element of the equitable remedy, conflicts
in no way with the limitations of Rule 23(b)(2)”. The ruling
of the Court of Appeals for the Seventh Circuit in the present
cases is contrary to decisions of the Fourth (Robinson), Fifth
(Jenkins), and Eighth (Arkansas Education) Circuits.
* Van Gemert Vv. Boeing Co., 259 F. Supp. 125, 130-1 (S. D.
N. Y. 1966); Jenkins v. United Gas Corp., 400 F. 2d 28, 34 (C. A.
5, 1968); Rodriguez v. Swank, 318 F. Supp. 289, 294-5 (3 judge
court, N. D. Ill. 1970), aff'd. memo. op. 403 U. S. 901 (1971);
Mungin v. Florida East Coast R. Co., 318 F. Supp. 720, 730 (D. C.
M. D. Fla. 1970), aff'd 441 F. 2d 728 (C. A. 5, 1971), cert. den.
sub nom. Howard v. Florida East Coast R. Co., 404 U. S. 897
(1971); Robinson v. Lorillard Corp., 444 F. 2d 791, 801-2 (C. A.
4, 1971); Arkansas Education Assn. Vv. Board of Education, 446
F. 2d 763, 768 (C. A. 8, 1971); Brandt v. Owens-Illinois, Inc.,
snes F. Sapp. ........ CCH Fed. Securities L. Rep. € 94,355 (S. D.
N. Y. 1974).
34
In the notes on the 1966 amendments to the Federal Rules of
Civil Procedure, this Court’s Advisory Committee indicated the
particular relevance of a (b)(2) class in a Title VII action.
The committee’s notes stated, citing seven Court of Appeals
cases:
“Illustrative [of subdivision (b)(2)] are various actions
in the civil-rights field where a party is charged with dis-
criminating unlawfully against a class, usually one whose
members are incapable of specific enumeration”. 39
F. R. D. 69, 102.
The comment on subdivision (b)(3) siated that “class-action
treatment is not as clearly called for as in those described above
[classes (b)(1) and (b)(2)], but it may nevertheless be con-
venient and desirable depending upon the particular facts”
(/d.).
Professor Benjamin Kaplan, reporter to the Advisory Com-
mittee on the Federal Rules of Civil Procedure from 1960 to
1966, has explained why a class should be held (b)(1) or (2)
rather than (b)(3) in order to forbid exclusion and make the
judgment binding on all class members. 1966 Amendments
of the Federal Rules of Civil Procedure (1), 81 Harv. L. Rev.
356, 375-400 (1967). Under the federal equity practice before
the rules, the result in a class action was generally held binding
on all class members.* The so-called “spurious” class action
under the 1938 rule became “snarled” because class members
“could remain outside the action if the determination were ad-
verse to their interests and in that event they would not be
bound” (p. 385). Under the 1966 amendments, Professor
Kaplan noted, “It will be found that cases satisfying (b)(1) or
(b)(2) will also pass muster under (b)(3)”; and then, citing
Judge Ryan’s Van Gemert opinion he added, “the cases should
*Professor Kaplan quoted Justice Story’s statement in his treatise
that the decree in a class action “will ordinarily be held binding upon
all other persons standing in the same predicament, the Court taking
care, that sufficient persons are before it, honestly, fairly and fully
to ascertain and try the general right in contest”, 81 Harv. L. Rev.
at 377, n. 72.
35
then ordinarily be treated under the former provisions [(b) (1)
or (2)] rather than the latter [(b)(3)]” (p. 390, n. 130).
To the same effect are the two great modern treatises on
federal practice: 3B Moore's Federal Practice, © 23.31(2}-(3],
pp. 23-526, 527 (1969):
“The three types of class suits are not always mutually ex-
clusive. Indeed, at times there is much overlap. And while
a class action of the third type may qualify less frequently
as a type one or type two class suit; a class action that
meets the requirements of either or both of the first two
types may well satisfy the requirements of the third type.”
* * * * *
“If an action can be maintained under (b)(1) and/or
(b) (2), and also under (b) (3), the court should order that
the suit be maintained as a class action under (b)(1)
and or (b)(2), rather than under (b)(3), so that the
judgment will have res judicata effect as to all the class
(with no member having the right to opt out), and not
defeat the policy underlying the (b)(1) and (b)(2)
class suits”.
7A Wright and Miller, Federal Practice and Procedure, § 1777,
p. 49 (1972):
“Since the common question standard of Rule 23(b) (3)
is in some ways much less demanding than that of either
Rule 23(b)(1) or Rule 23 (b)(2). actions that are
maintainable under either of these provisions also fre-
quently satisfy the requirements for subdivision (b) (3).
However, . . . when a particular action qualifies under
another portion of Rule 23(b) as well as Rule 23(b) (3),
it should be treated as if it had been brought exclusively
under the other provision. This will mean that the special
procedural provisions applicable to Rule 23(b)(3) suits
and the privilege to opt-oui of the action should be operable
only when the class action is maintainable under that sub-
section alone”.
The Court of Appeals cites only one inconclusive opinion,
and no other authority, for its holding that the terminated
stewardesses must be in a (b)(3) class, Gerstle v. Continental
Airlines, Inc., 50 F. R. D. 213 (D. Colo., 1970). There an
EL A a aw
36
airline stewardess brought a Title VII class action against her
employer claiming sex discrimination and an unlawful discharge
under an abandoned airline rule terminating stewardesses on
marriage. In the cited report the District Court conditionally
held the class action could be maintained, although the dis-
cussion of the class as (b)(3) in the opinion was not reflected
in the order (p. 220). The class was said to be (b)(3) “in
that the claim under Title VII is not only a common question
in this case, it is the predominant question in the litigation”
(p. 219, original emphasis).* The reason given for this 1970
statement in the Gerstle opinion was wholly illogical as a basis
for a (b)(3) rather than a (b)(2) class because in a (b)(2)
action the common questions also predominate over those af-
fecting only individuals. The Gerstle opinion, as that of the
Court of Appeals in the present case, mentioned none of the
cases or other contrary authorities described above.
(C) Serious Effect on Decided Cases
The practical consequences of the Court of Appeals’ error
in its unique holding that a class is (b)(3), regardless of
whether it is also (b)(1) or (b)(2), are far reaching. Almost
every (b)(1) or (b)(2) class can be shown to be within sub-
division (b)(3), but the right of exclusion on notice exists only
in (b)(3) cases. For that reason, as Professors Wright and
Miller say, the privilege to opt-out “should be operable only
when the class action is maintainable under that subsection
[(b)(3)] alone”. The Court of Appeals’ contrary holding
opens the door to widespread direct and collateral attacks on
(b)(2) class action judgments in all kinds of cases, a much
* There was no mention of the possible application of sub-
division (b) (2). Later the class was “declassified” when it appeared
to consist of only 14 members, as shown in the later report of the
same case, 466 F. 2d 1374 (C. A. 10, 1972). The litigation was
finally dismissed on the merits, for failure to prove that the alleged
sex discrimination was the cause of the discharge of the two plain-
tiffs, as held in the still later report of the same case, 358 F. Supp.
545 (D. C. Colo. 1973).
et ee won
37
wider field than Title VII litigation. The decision will permit
class members in a disposed of (b)(1) or (b)(2) case to seek
to vacate a prior judgment on the ground that the class was
properly (b)(3), that exclusion notices were not given, and
that the judgment is not binding. And without direct attack of
this kind, class members disappointed with a (b) (2) class action
judgment are enabled by the Court of Appeals’ ruling to sue on
their own account and defeat the plea of res judicata on the same
ground. See Note, Collateral Attack on the Binding Effect of
Class Action Judgments, 87 Harv. L. Rev. 589 (Jan. 1974).
CONCLUSION.
For the foregoing reasons, this Court is urged to issue a Writ
of Certiorari to review the judgment of the Court of Appeals for
the Seventh Circuit as prayed.
Respectfully submitted,
JAMES A. VELDE
One First National Plaza
Chicago, Illinois 60670
Of Counsel
JAMES H. DOUGLAS
LAURENCE A. CARTON
ELLioT M. SCHNITZER
GARDNER, CARTON, DOUGLAS,
CHILGREN & WAUD
March 1974.
ene eve a
PORTE Re are
Al
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
SEPTEMBER TERM, 1973
Nos. 72-1336, 72-1503
AIR LINE STEWARDS AND STEWARD-
ESSES ASSOCIATION, LocaL 550,
TWU, AFL-CIO et al.,
Plaintiffs,
Vv.
AMERICAN AIRLINES, INC.,
Defendant,
DARLENE PRESTON, et al.,
Appellants in No. 72-1336,
BONNIE PULSKAMP, et al.,
Appellants in No. 72-1503.
No. 72-1335
Arr LINE STEWARDS AND STEWARD- \
ESSES ASSOCIATION, LocaL 550,
TWU, AFL-CIO et al..
Plaintiffs,
Vv.
TRANSWORLD AIRLINES, INC.,
Defendant,
Patricia A. SANTINI, et al.,
Appellants.
No. 72-1399
DARLENE PRESTON, et al.,
Plaintiffs-A ppellants,
Vv.
AMERICAN AIRLINES, INC., et al..
Defendants-A ppellees. J
SEPTEMBER SESSION, 1973
Appeals from the
United States Dis-
trict Court for the
Northern District
of Illinois, Eastern
Division.
J. SAM PERRY,
Judge.
70 C 2069
Appeal from the
United States Dis-
trict Court for the
Northern District
of Illinois, Eastern
Division.
J. SAM PERRY,
Judge.
70 C 2071
Appeal from the
United States Dis-
trict Court for the
Northern District
of Illinois, Eastern
Division.
J. SAM PERRY.
Judge.
72 C 498
ARGUED SEPTEMBER 11. 1973—DECIDED DECEMBER 2'. 1973
Before KILEY, FAIRCHILD, and STEVENS, Circuit Judges.
MM A es RS. n ee
A2
FAIRCHILD, Circuit Judge. These appeals form a sequel to
Air Lines Stewards, etc., Loc. 550 vy. American Airlines, Inc.,
455 F. 2d 101 (7th Cir., 1972), and some of the background
facts appear there. That decision, affirming denial of interven-
tion by EEOC, was filed January 18, 1972. Thereafter notices
of hearing in the district court on approval of the settlement,
referred to at 455 F. 2d 103, were mailed to members of the
class in each action. A hearing was held. Plaintiff union
(ALSSA) and the defendants supported the settlement, and the
support of several individual members of the class was made
known. Objections on behalf of dissatisfied members of the
classes, including several named individual plaintiffs, were filed
or made known-at the hearing.
On March 17, 1972, a judgment was entered in each action
(American Airlines, Inc., and Trans World Airlines, Inc., being
the respective defendants), approving the settlement, ordering it
implemented, and dismissing the action on the merits. Appeals
were filed by members of the classes. including certain named
plaintiffs, in each case. A relate action against American and
ALSSA was also dismissed, and those plaintiffs appealed.
Appellants contend that the district court should not have
approved the settlements because ALSSA (certified bargaining
agent for airlines cabin attendants under the Railway Labor
Act), which negotiated the settlements disposing of the interests
of members of the class, had interests antagonistic to them.
Appellants also maintain that they were entitled to exclude
themselves from the action and avoid the binding effects of the
judgments. Other arguments are urged in addition.
Until October, 1970, defendant airlines followed the practice
of discharging, permanently, a stewardess who became pregnant.
On August 18, 1970, ALSSA and 12 stewardesses who had lost
their jobs under this policy commenced an action against Ameri-
can challenging this practice as unlawful sex discrimination, in
violation of 42 U. S. C. § 2000e, et seq. The complaint asserted
that the action was within Rule 23(b)(2), F. R. Civ. P., and
~
A3
that the class consisted of all present and former American
stewardesses employed at any time since July 2, 1965, the effec-
tive date of the Civil Rights Act of 1964, who had been, desired
to be, or would in the future desire to be, pregnant. The com-
plaint sought declaratory, injunctive, and monetary relief. On
the the same day, ALSSA and five individuals filed a similar
action against TWA.
Counsel for ALSSA signed the complaint as attorney for the
plaintiffs and conducted the litigation and negotiations for settle-
ment. He did not consult the individual plaintiffs nor any other
men.vers of the class concerning the terms of settlement.
By October, 1970, ALSSA and the airlines had made collec-
tive bargaining agreements which eliminated the challenged
practice prospectively. Thus, although the class defined by the
complaints included currently employed stewardesses who,
presumably, had an interest in the declaratory and injunctive
relief sought, that segment of the class had little further interest
in the action, except for such interest as the junior among them
would have adverse to the reinstatement of previously discharged
stewardesses. Since the currently employed stewardesses were
more actively the constitutents of ALSSA, the change of cir-
cumstances made ALSSA at least a less adequate representative
of the remaining members of the class than it may have been
considered for the entire original class.
In July, 1971, counsel agreed on a settlement, subject to
court approval. The proposed terms required discharged stew-
ardesses who desired re-employment to notify the airline within
60 days from court approval. They would then be placed on a
preferential hiring list, to be employed to fill vacancies before
others were hired. When offered a job, a stewardess must accept
within 10 days and meet specified standards of physical condi-
tion. The airline would have no liability whatsoever to any
stewardess who failed, timely, to give the notice of desire to be
re-employed or notice of acceptance of an offer. If re-employed,
the stewardess would start with the same seniority as she had
RE LO POE RENTER (hs LEE ON 2 OR ST Sea a ates Candie,
Se RSE SEWER AS
A4
* up to the date of termination, in the case of TWA, or that
seniority plus 90 days additional in the case of American. Under
the agreement, an order would be entered defining the class, in
each case, as all former stewardesses who were removed from
the payroll because of pregnancy, between July 2, 1965 and
July 31, 1969, in the case of TWA, and August 11, 1970, in the
case of American. If approved the settlement and resulting
judgment, would bind all members of the class.
It does not appear that the district court made any order
concerning the maintenance of these actions as class actions,
pursuant to Rule 23(c)(1), until July 16, 1971, after the
settlement had been proposed. On that date, the court ordered
that the class in each action be redefined in accordance with the
settlement agreement, and that the action be maintained as a
class action. The order did not expressly address the fulfillment of
the prerequisites listed in Rule 23(a) nor of any additional re-
quirement of Rule 23(b). Presumably the court did not consider
(b)(3) applicable, as it did not order a notice pursuant to
(c)(2).! Notices of hearing on approval of the settlement were
1. Rule 23(b)(3) provides:
“An action may be maintained as a class action if the pre-
requisites of subdivision (a) are satisfied, and in addition:
(3) the court finds that the questions of law or fact com-
mon to the members of the class predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for the fair and efficient
adjudication of the controversy. The matters pertinent to the
findings include: (A) the interest of members of the class in
individually controlling the provecution or defense of separate
actions; (B) the extent and nature of any litigation concerning
the controversy already commenced by or against members of
the class; (C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; (D) the
difficulties likely to be encountered in the management of a
class action.”
Rule 23(c)(2) provides:
“(2) In any class action maintained under subdivision (b)
(3), the court shall direct to the members of the class the best
notice practicable under the circumstances, including individual
i ee ee ee
-AS
sent out, both in July, after which the hearing was delayed
by the appeal, and again the next February.*
At or before the March, 1972, hearing on approval of the
settlement, opposition to it was manifested by some of the named
plaintiffs and by other members of the class in each action.
With some variations, the objectors wanted all, or more nearly
all, of the “whele loaf”, i.e., reinstatement with seniority accrued
to date, anu back pay. Several members of the American class,
the appellants here in No. 72-1503, had brought their own action
July 14, 1971 in the Central District of California. They had
attempted to opt out of the instant action, their California action,
meanwhile, having been stayed. The district court heard object-
ing plaintiffs and class members, and their attorneys, only in
the capacity of objectors, and in effect recognized ALSSA as the
sole representative plaintiff, representing all class members, in-
cluding the individual named plaintiffs.
The judgments entered as a result of the hearings determined
that “Plaintiffs”, without distinguishing between ALSSA and
other plaintiffs, are adequate representatives of the class and have
adequately represented them; that the action is a Rule 23(b) (2)
class action:* that the judgment is binding on all members of
notice to all members who can be identified through reasonable
effort. The notice shall advise each member that (A) the court
will exclude him from the class if he so requests by a specified
date; (B) the judgment, whether favorable or not, will include
all members who do not request exclusion; and (C) any mem-
ber who does not request exclusion may, if he desires, enter
an appearance through his counsel.”
2. Rule 23(e) requires a notice to class members of a proposed
settlement. The appellants contest the adequacy and accuracy of
the notice procedures used here. In light of our disposition of the
balance of the case, we do not reach this issue.
3. Rule 23(b)(2) provides:
“An action may be maintained as a class action if the pre-
requisites of subdivision (a) are satisfied, and in addition:
“(2) the party opposing the class has acted or refused to
act on grounds generally applicable to the class, thereby making
appropriate final injunctive relief or en, declaratory
relief with respect to the class as a whole; or .
Cte a ee ET a + ee ee ee
A6
the class; and that the settlement is fair, reasonable, and adequate
for all.
On February 28, 1972, Darlene Preston, a plaintiff in the
action against American, above referred to, had brought a new
class action against American and ALSSA predicated upon a
claim of unlawful discrimination similar to that in the earlier
complaint, and upon a claim that ALSSA failed to fulfill its duty
of fair representation. Judgment was entered March 20, 1972
dismissing the complaint, apparently on the ground that the
claims had been adjudicated by the judgment of March 17, 1972.
1. ALSSA’s Representation of the Class.
Mr. Feldman, counsel for ALSSA, and attorney of record for
all the plaintiffs, testified in support of the settlement.
He took into consideration the proposition that the answer to
the ultimate question of liability, common to all members of the
class, i.e., whether the discharge policy was a violation of the
Act, was less than a certainty. He felt that about 90% of the
members of the class faced a serious legal question as to recovery
because they had been terminated long before any complaint was
filed with EEOC and these stewardesses might not be able to
rely on the later filing by other members of the class. He noted
that the circumstances of termination varied and that these differ-
ences might raise questions concerning recovery by members of
the class. The airlines had terminated some on the ground of
pregnancy, and others on the ground that they had concealed
pregnancy, in violation of a company rule. Others had volun-
tarily resigned after becoming pregnant, and others resigned, but
claimed they were coerced.
Mr. Feldman testified that ALSSA made the decision to agree
to the settlement. One advantage was that it afforded an op-
portunity to every member of the class to return to work, in-
cluding those against whom the statute of limitations defense
might have been urged. as well as those whose claim did not
have that problem; those whose termination had clearly been
A7
grounded on pregnancy, as well as those who had less clearly
been terminated for that cause.
Mr. Feldman conceded that ALSSA had obligations to groups
which had conflicting interests. Junior currently employed
stewardesses would be harmed by immediate reinstatement of
former stewardesses, and the settlement did not provide such
reinstatement. Seniority has a very important effect on stew-
ardesses’ trip assignments and the like. Thus the former stew-
ardesses who were reemployed pursuant to the settlement would
want seniority to accrue during the period they had been out of
the job, but the greater the seniority awarded to them, the larger
the number of currently employed stewardesses who would be
put to disadvantage. Mr. Feldman testified that the extent of
seniority agreed on represented a compromise of the interests
of the various groups.
The airlines said they were unwillir, to negotiate concerning
back pay. Mr. Feldman conceded that if the matter were liti-
gated and liability established, there would probably be in-
dividual members of the class who could establish back pay
claims. He estimated that full litigation would consume about
five years. ALSSA decided to subordinate the interest of those
who wanted to recover money to the interest of those who de-
sired to return to work. This, he said. was an example of
bargaining agent responsibility, to resolve in good faith the
conflict in interest between groups. both of which are repre-
sented by the union.
Rule 23(a)(3) requires that the claims of a representative
plaintiff be typical of the claims of the class and (4) requires
that the representative plaintifi ill fairly and adequately protect
the interests of the class. It has been indicated “that the reasons
for requiring an individual plaintiff in a class action to be a
member of the class do not necessarily preclude an association
from representing a class where its raison d'etre is to represent
the interest of that class. ™ Tt seems clear, however, that unless
4. Norwalk Cc ORE v. Norwalk Redev elopment Agency, 395 F.
2d 920, 937 (2d Cir.. 1968).
Se ee ae SS
A8
ALSSA’s status as certified bargaining agent under the Rail-
way Labor Act alters the situation, it cannot, under the cir-
cumstances, be treated as the equivalent of a group of former
stewardesses terminated on account of pregnancy, and thus mem-
bers of and adequate representatives of. the class.
ALSSA admittedly considered and to some extent protected
the interests of the currently employed stewatwesses in working
out the settlement. They. who are presently presumably in
control of ALSSA. are not members of the class as now defined,
and they have antagonistic interests. In Hansberry v. Lee, 311
U. S. 32. 45 (1940). the Supreme Court held that a judg-
ment in a class action can only bind absent class members
where the representative's interests coincide with those of the
balance of the class.
Counsel for ALSSA apparently would concede that if
ALSSA were deemed merely an association of presently em-
ployed stewardesses, or even of both presently and formerly
employed stewardesses, it would not be deemed an adequate
representative of the class. Counsel argues. however, that
ALSSA’s role as an exclusive collective bargaining agent for
the stewardesses employed by these airlines gives it the power
to accommodate and adjust the rights of present and former
stewardesses which spring from Title VII, subject only to its
obligation of fair representation. If this position were adopted,
it need only be shown that ALSSA acted in good faith and in a
manner which could be deemed fair. in making the choices in-
volved in the settlement. Approval of the settlement could then
be set aside only if the findings of good faith and fairness were
found clearly erroneous.
In Steele v. Louisville & Nashville R. R. Co.. 323 U. S.
192, 200 (1944). the Supreme Court held that the Railway
Labor Act. in requiring the carrier to bargain with the chosen
representative. operated to exclude any other representative. and
deprived minority members of the craft of the right to choose
a different representative or to bargain individually as to mat-
~~ i PORE es a DE RBA) es
A9
ters which are properly the subject of collective bargaining.
It follows that the representative may make contracts having
unfavorable effects on some of those represented, but the repre-
sentative has “the duty to exercise fairly the power conferred
upon it in behalf of all those for whom it acts, without hostile
discrimination against them.” A similar holding was reached
under the National Labor Relations Act in Ford Motor Co. Vv.
Huffman, 345 U. S. 330, 336 (1953).
In Humphrey v. Moore, 375 U. S. 335 (1963), the Supreme
Court dealt with challenges to the resolution of grievances
pursuant to a multi-party collective bargaining agreement. At
p. 349, the Court said, concerning the antagonistic interests of
two groups, that “both groups [were] represented by the same
union, whose president supported one group and opposed the
other at the hearing before the Joint Conference Committee.
But we are not ready to find a breach of the collective bargaining
agent’s duty of fair representation in taking a good faith position
contrary to that of some individuals whom it represents nor
in supporting the position of one group of employees against
that of another.”
In Vaca v. Sipes, 386 U. S. 171 (1967), a union member
who had been discharged sued the union for its refusal to take
the grievance to arbitration under the collective bargaining
agreement. The Supreme Court found no evidence of personal
hostility or bad faith on the part of the union officers, and set
aside a verdict in favor of the plaintiff. “Having concluded that
the individual employee has no absolute right to have his griev-
ance arbitrated under the collective bargaining agreement at
issue, and that a breach of the duty of fair representation is not
established merely by proof that the underlying grievance was
meritorious, we must conclude that’that duty was not breached
here.” p. 194.
Counsel suggests that accommodation of the Railway Labor
Act with Title VII of the Civil Rights Act of 1964 requires
that the collective bargaining representative be accorded the
EHF OES P ERO Se PEN ee Be SF Pete . REELED 5. WE Pee
Ald
same power and held to the same degree of duty as the cases
just cited accord it in the formulation and administration of
collective bargaining agreements and the rights of individual
employees thereunder. We are unable to agree.
Title VII. unlike the National Labor Relations Act and Rail-
way Labor Act, does not create nor necessarily recognize powers
of exclusive representation, either for those currently employed
in the unit nor for a group which would include those claiming
to have been unlawfully discharged. The situation is not parallel,
and it does not seem to us that policy reasons militate in favor
of similar status for the bargaining representative. An individual
who claims to have been the victim of unlawful discrimination
has the right to redress individually, whether the discrimination
was an isolated act or a general practice.
“The real party in interest in conciliation endeavors
is the employee alleged to have been discriminatorily
treated. He is completely free to accept or reject the pro-
posals of union or employer as well as the position taken
by the [Equal Employment Opportunities] Commission.”
Air Lines Stewards, etc. Loc. 550 v. American Airlines,
Inc., 455 F. 2d 101, 106 (7th Cir., 1972).
Surely the fact that a labor organization is defined in 42
U. S. C. § 2000e and made a potential defendant in unlawful
employment practice cases does not. as counsel seems to sug-
gest, indicate an intention on the part of Congress that a col-
lective bargaining representative play a special role in Title VII
actions to redress unlawful employment practices by an em-
plover.
We think a union may serve its members by being plaintiff in
a suit to vindicate their civil rights. “There is nothing in the
law which precluded the Union from recognizing the injustice
done to a substantial minority of its members and from moving
to correct it.” Bowe v. Colgate-Palmolive Company, 416 F. 2d
711, 719 (7th Cir., 1969). When it espouses the interest of
one group of its members, it doubtless has an obligation of
fairness to any members whose interests are in conflict. But
ee | ee
All
except for the area of collective bargaining and its necessary
incidents, the union has no unique authority to compromise the
rights of its members. Its adequacy as a representative party
in a class suit, and its authority to compromise the rights of its
members in a class suit when such rights do not arise out of
collective bargaining agreements are to be tested and judged in
the ordinary way.°
2. The Right of Class Members to Exclude Themselves from
the Actions Originally Brought.
Appellants argue that the district court must offer the mem-
bers of the class the opportunity to “opt out”, or exclude them-
selves from the class. Rule 23(c)(2) requires that such op-
portunity, and an alternative opportunity to enter an appearance
through counsel, must be afforded in any class action maintained
under Rule 23(b) (3). Unless a class action is maintained under
Rule 23(b) (3), no right to opt out exists. All members of the
class are bound by the judgment.
5. See Cook County College Teachers U., Loc. 1600, A. F. T.
v. Byrd, 456 F. 2d 882, 885 (7th Cir., 1972); Mungin v. Florida
East Coast Ry. Co., 318 F. Supp. 720 (M. D. Fla., 1970), aff'd
441 F. 2d 728 (Sth Cir., 1971), cert. denied 404 U. S. 897;
Amalgamated Meat Cutters of No. Am. Vv. Safeway Stores, Inc., 52
F. R. D. 373, 375 (D. Kan., 1971). Amalgamated Meat Cutters
is similar to the present case. There, certain of the defendant's
female employees and their union filed a class action alleging that
the defendant had failed to pay men and women the same wage for
the same work, a violation of 42 U. S. C. § 2000e-5(e). The union
and the employer negotiated a compromise and sought the court's ap-
proval under rule 23(e). Certain of the class members, including
one of the individual named plaintiffs, objected to the compromise
as unfair. The district court refused to approve the settlement and
ordered independent counsel appointed for the dissenting class mem-
bers. The court observed that:
“However, counsel for the plaintiffs has appeared in a dual
capacity—that is, both the Union's attorney and attorney for
the Class members. It is apparent from the communications in
the file, as well as the expressions in open court, that the in-
terests of the Union as a plaintiff, and the interests of at least a
portion of the members of the Class are in conflict and not
identical.” 52 F. R. D. at 375.
Al2
On July 16, 1971, when the first orders dealing with the
actions as class actions were entered, the court did not expressly
address the question whether or not they fell under Rule 23
(b)(3). In the judgments, the court held they fell under Rule
23(b) (2), thus foreclosing the opportunity of any member of
the class to exclude herself.
Rule 23(b)(2) applies to class actions in which
“the party opposing the class has acted or refused to act
on grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declara-
tory relief with respect to the class as a whole... .”
When these actions were filed, the class included both stew-
ardesses who had been terminated for pregnancy and those who
might in the future be terminated for that cause. The latter
were primarily, perhaps solely, interested in a declaration that
the practice of termination for that reason is unlawful and an
injunction against it. As to that group, (b)(2) would clearly
be applicable.
Subdivision (b)(3) applies where:
“the court finds that the questions of law or fact common
to members of the class predominate over any questions
affecting only individual members, and that a class action
is superior to other available methods for fair and efficient
adjudication of the controversy.”
All the stewardesses share the common question of whether
the discharge-for-pregnancy policy was lawful. Those who had
aleady been discharged were interested in reinstatement with or
without back pay, and assuming a favorable decision on the
cemmon question, the entitlement of any particular former
stewardess to reinstatement, back pay, and accrued senior-
ity would depend on the facts peculiar to her. The amount of
back pay would be computed separately for each, and reduced
by her interim earnings.” Mr. Feldman’s testimony shows other
6. 42U.S.C. § 2000e-5(g).
De NP NEO at ODES ea ~ ee
Al3
differences among individual cases. Some who had not filed
with EEOC might have difficulty in establishing that right to
rely on the filings of others. The manner and stated cause of
termination of employment varied.
As to the discharged stewardesses, the class actions would,
even at the beginning, have had to be maintained under (b)(3),
with each such stewardess having the right to exclude herself,
or appear through counsel.
When the airlines ended their discharge policy, the actions
became virtually moot as far as the currently employed steward-
esses were concerned, and purely prospective relief against the
practice became of litthe moment. The (b)(3) character of
the actions, while always present as to the discharged steward-
esses, became even more obvious.
In Gerstle v. Continental Airlines, Inc., 56 F. R. D. 213
(D. Colo., 1970), a former stewardess brought a class action,
seeking injunctive relief, back pay. and reinstatement for
stewardesses terminated because of marriage. The airline had
dropped the policy after terminating plaintiff. The court held
that in view of the change in policy there was no case for in-
junctive relief, but that the action should proceed under (b) (3)
as to the other types of relief. The present actions are similar.
We have no doubt that even in a class action subject to
(b)(3), situations could arise where individual members of a
class so clearly acquiesced in and accepted the efforts of their
union or other plaintiff for so long a period and under such
circumstances that they wouid be estopped from exercising their
right to exclude themselves and “spoiling” a settlement obtained
by such efforts. Nothing revealed in this record puts these cases
in that posture.
The actions originally brought against the two airlines should
have been, and should henceforth be treated as (b)(3) class
actions with the attendant right of a class member, for a rea-
sonable interval, to exclude herself or appear through counsel
pursuant to Rule 23(c)(2).
RAS IN Se <e <s PANE ASS RI ite YAR ELD
Al4
3. Remand of the Actions Originally Brought Against the
Two Airlines.
On remand, the district court should:
(1) Permit one or more of the named plaintiffs or other
members of the class in each action to replace ALSSA as the
representative of the class. If it should appear desirable for
adequate representation of all class members, subclasses, each
with its own representative, may be created.
(2) Require that notices, pursuant to Rule 23(c)(2) be
sent, offering to each member of the class the opportunity to
exclude herself from the class or appear through counsel.
(3) Proceed with the litigation unless settlement as to some
or all issues is agreed on by the appropriate parties, and ap-
proved, on notice, by the court.
4. The Preston Action Brought in February, 1972.
We express no conclusions with respect to this action except
that, since it was dismissed on the theory that the claims therein
had been adjudicated by a judgment now being reversed, the
judgment dismissing it should also be reversed.
The judgments appealed from are reversed and the causes
remanded for further proceedings consistent with this opinion.
Circuit Rule 23 shall apply on remand.
eatin! es ee
AlS5
APPENDIX B
EXCERPTS FROM RAILWAY LABOR ACT
(May 20, °926, ch. 347, 44 Stat. 577 as amended, 45 U. S. C.
151 et seq., 1964 Edition)
§ 151. Definitions
When used in this chapter and section 225 of Title 28 and for
the purposes of said chapter and section—
<< + * -
Sixth. The term “representative” means any person or per-
sons, labor union, organization, or corporation designated either
by a carrier or group of carriers or by its or their employees,
to act for it or them..
a * 7 ~
This chapter may be cited as the “Railway Labor Act” (May
20, 1926 ch. 347, $ 1. 44 Stat. 577).
= oa = = =
§151a. General Purposes
The purposes of the chapter are: . . . (4) to provide for the
prompt and orderly settlement of all disputes concerning rates
of pay, rules or working conditions; (5) to provide for the
prompt and orderly settlement of all disputes growing out of
grievances or out of the interpretation or application of agree-
ments covering rates of pay, rules. or working conditions. (May
20, 1926, ch. 347, § 2, 44 Stat. 577: June 21, 1934, ch. 691,
$ 2, 48 Stat. 1186).
§ 152. General duties
First. Duty of carriers and employees to settle disputes.
It shall be the duty of all carriers, their officers, agents, and
employees to exert every reasonable effort to make and main-
RAL RI ERT cya
Al6
tain agreements concerning rates of pay, rules, and working
conditions, and to settle all disputes, whether arising out of the
application of such agreements or otherwise, in order to avoid
any interruption to commerce or to the operation of any carrier
growing out of any dispute between the carrier and the em-
ployees thereof.
Second. Consideration of disputes by representatives.
All disputes between a carrier or carriers and its or their
employees shall be considered, and, if possible, decided, with
all expedition, in conference between representatives designated
and authorized so to confer, respectively, by the carrier or car-
riers and by the employees thereof interested in the dispute.
of tk on * a
Fourth. Organization and collective bargaining; .. .
Employees shall have the right to organize and bargain col-
lectively through representatives of their own choosing. The
majority of any craft or class of employees shall have the right
to determine who shall be the representative of the craft or class
for the purposes of this chapter. . . (May 20, 1926, ch. 347,
$ 2, 44 Stat. 577...)
x * * * *
181. Application of sections 151, 152, and 154-163 to
PP
carriers by air.
All of the provisions of sections 151, 152, and 154-163 of
this title are extended to and shall cover every common carrier
by air engaged in interstate or foreign commerce, and every
carrier by air transporting mail for or under contract with the
United States Government, and every air pilot or other person
who performs any work as an employee or subordinate official of
such carrier or carriers, subject to its or their continuing au-
thority to supervise and direct the manner of rendition of his
service. (May 20, 1926, ch. 347, § 201 as added Apr. 10,
1936, ch. 166, 49 Stat. 1189).
Frets ew eine
Al7
APPENDIX C
EXCERPTS FROM TITLE VII—EQUAL EMPLOYMENT
OPPORTUNITY, CIVIL RIGHTS ACT OF 1964.
Public Law 88-352, 78 Stat. 253, ff.; 42 U. S. C. § 20006 et seq.
(1972 Amendments Not Included)
[255] Discrimination Because of Race, Color, Religion, Sex,
or National Origin
SEc. 703. (a) It shall be an unlawful employment practice
for an employer—
(1) to fail or refuse to hire or to discharge any individ-
ual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race,
color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees in any
way which would deprive or tend to deprive any individual
of employment opportunities or otherwise adversely affect
his status as an employee, because of such individual's race,
color, religion, sex, or national origin.
(b) It shall be an unlawful employment practice for an
employment agency to fail or refuse to refer for employment, or
otherwise to discriminate against, any individual because of his
race, color, religion, sex, or national origin, or to classify or
refer for employment any individual on the basis of his race,
color, religion, sex, or national origin.
(c) Itshall be an unlawful employment practice for a labor
organization—
(1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individual because of
his race, color, religion, sex. or national origin;
ene ee a ID wea 8 wre SI SAE NS EEA UTR A
Al8
(2) to limit, segregate, or classify its membership, or
to classify or fail or refuse to refer for employment any
individual, in any [256] way which would deprive or tend
to deprive any individual of employment opportunities, or
would limit such employment opportunities or otherwise
adversely affect his status as an employee or as an appli-
cant for employment, because of such individual's race,
color, religion, sex, or national origin; or
(3) to cause or attempt to cause an employer to dis-
criminaie against an individual in violation of this section.
* us 6 * *
(e) Notwithstanding any other provision of this title, (1) it
shall not be an unlawful employment practice for an employer
to hire and employ employees, for an employment agency to
classify, or refer for employment any individual, for a labor or-
ganization to classify its membership or to classify or refer for
employment any individual, or for an employer, labor organiza-
tion, or joint labor-management committee controlling appren-
ticeship or other training or retraining programs to admit or
employ any individual in any such program, on the basis of his
religion, sex, or national origin in those certain instances where
religion, sex, or national origin is a bona fide occupational
qualification reasonably necessary to the normal operation of
that particular [256] business or enterprise, and (2) it shall not
be an unlawful employment practice for a school, college, uni-
versity, or other educational institution or institution of learning
to hire and employ employees of a particular religion if such
school, college, university, or other, educational institution or
institution of learning is, in whole or in substantial part, owned,
supported, controlled, or managed by a particular religion or by
a particular religious corporation, association, or society, or if
the curriculum of such school, college, university, or other edu-
cational institution or institution of learning is directed toward
the propagation of a particular religion.
a ~ i eee
a
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[259] Prevention of Unlawful Employment Practices
SEC. 706. (a) Whenever it is charged in writing under oath
by a person claiming to be aggrieved, or a written charge has
been filed by a member of the Commission where he has reason-
able cause to believe a violation of this title has occurred (and
such charge sets forth the facts upon which it is based) that an
employer, employment agency, or labor organization has en-
gaged in an unlawful employment practice, the Commission
shall furnish such employer, employment agency or labor organ-
ization (hereinafter referred to as the “respondent”) with a
copy of such charge and shall make an investigation of such
charge, provided that such charge shall not be made public by
the Commission. If the Commission shall determine, 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. Nothing said or
done during and as a part of such endeavors may be made public
by the Commission without the written consent of the parties.
or used as evidence in a subsequent proceeding. Any officer or
employee of the Commission, who shall make public in any
manner whatever any information in violation of this subsection
shall be deemed guilty of a misdemeanor and upon conviction
thereof shall be fined not more than $1,000 or imprisoned not
more than one year.
* * * * *
(d) A charge under subsection (a) shall be filed within
ninety days after the alleged unlawful employment practice oc-
curred, except that in the case of an unlawful employment prac-
tice with respect to which the person aggrieved has followed the
procedure set out in subsection (b), such charge shall be filed
by the person aggrieved within two hundred and ten days after
the alleged unlawful employment practice occurred, or within
thirty days after receiving notice that the State or local agency
A20
has terminated the proceedings under the State or local law,
whichever is earlier, and a copy of such charge shall be filed by
the Commission with the State or local agency.
(e) If within thirty days after a charge is filed with the
Commission or within thirty days after expiration of any period
of reference under subsection (c) (except that in either case
such period may be extended to not more than sixty days upon
a determination by the Commission that further efforts to secure
voluntary compliance are warranted), the Commission has been
unable to obtain voluntary compliance with this title, the Com-
mission shall so notify the person aggrieved and a civil action
may, within thirty days thereafter, be brought against the re-
spondent named in the charge (1) by the person claiming to
be aggrieved, or (2) if such charge was filed by a member of
the Commission, by any person whom the charge alleges was
aggrieved by the alleged unlawful employment practice. Upon
application by the complainant and in such circumstances as the
court may deem just, the court may appoint an attorney for
such complainant and may authorize the commencement of
the action without the payment of fees, costs, or security. Upon
timely application, the court may, in its discretion, permit the
Attorney General to intervene in such civil action if he certifies
that the case is of general public importance. Upon request, the
court may, in its discretion, stay further proceedings for not more
than sixty days pending the termination of State or local pro-
ceedings described in subsection (b) or the efforts of the Com-
mission to obtain voluntary compliance.
(f) Each United States district court and each United States
court of a place subject to the jurisdiction of the United States
shall have jurisdiction of actions brought under this title. Such
[261] an action may be brought in any judicial district in the
State in which the unlawful employment practice is alleged to
have been committed, in the judicial district in which the em-
ployment records relevant to such practice are maintained and
administered, or in the judicial district in which the plaintiff
rl ans Ee ee ers >
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would have worked but for the alleged unlawful employment
practice, but if the respondent is not found within any such
district, such an action may be brought within the judicial district
in which the respondent has his principal office. For purposes
of sections 1404 and 1406 of title 28 of the United States Code,
the judicial district in which the respondent has his principal
office shall in all cases be considered a district in which the action
might have been brought.
(g) If the court finds that the respondent has intentionally
engaged in or is intentionally engaging in an unlawful employ-
ment practice charged in the complaini, the court may enjoin
the respondent from engaging in such unlawful employment
practice, and order such affirmative action as may be appropriate,
which may include reinstatement or hiring of employees, with
or without back pay (payable by the employer, employment
agency, or labor organization. as the case may be, responsible
{261] for the unlawful employment practice). Interim earnings
or amounts earnable with reasonable diligence by the person
or persons discriminated against shall operate to reduce the back
pay otherwise allowable. No order of the court shall require
the admission 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 admission, suspended, or expelled or was
refused employment or advancement or was suspended or dis-
charged for any reason other than discrimination on account of
race, color, religion. sex or national origin or in violation of
section 704(a).
PELE SIRE LBA II SE A ST
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APPENDIX D
RULE 23, FEDERAL RULES OF CIVIL PROCEDURE
CLASS ACTIONS.
(a) Prerequisites to a Class Action. One or more members
of a class may sue or be sued as representative parties on behalf
of all only if (1) the class is so numerous that joinder of all
members is impracticable, (2) there are questions of law or fact
common to the class, (3) the claims or defenses of the repre-
sentative parties are typical of the claims or defenses of the class,
and (4) the representative parties will fairly and adequately
protect the interests of the class.
(b) Class Actions Maintainable. An action may be main-
tained as a class action if the prerequisites of subdivision (a) are
satisfied, and in addition:
(1) the prosecution of separate actions by or against indi-
vidual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to
individual members of the class which would establish incom-
patible standards of conduct for the party opposing the class, or
(B) adjudications with respeci to individual members of the
class which would as a practical matter be dispositive of the
interests of the other members not parties to the adjudications or
substantially impair or impede their ability to protect their inter-
ests; or
(2) the party opposing the class has acted or refused to act
on grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole; or
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(3) the court finds that the questions of law or fact common
to the members of the class predominate over any questions
affecting only individual members, and that a class action is
superior to other available methods for the fair and efficient
adjudication of the controversy. The matters pertinent to the
findings include: (A) the interest of members of the class in
individually controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation concerning
the controversy already commenced by or against members of
the class; (C) the desirability or undesirability of concentrating
the litigation of the claims in the particular forum; (D) the
difficulties likely to be encountered in the management of a class
action.
(c) Determination by Order Whether Class Action to be
Maintained; Notice; Judgment; Actions Conducted Partially as
Class Actions.
(1) As soon as practicable after the commencement of an
action brought as a class action, the court shall determine by
order whether it is to be so maintained. An order under this
subdivision may be conditional, and may be altered or amended
before the decision on the merits.
(2) In any class action maintained under subdivision (b)
(3), the court shall direct to the members of the class the best
notice practicable under the circumstances, including individual
notice to all members who can be identified through reasonable
effort. The notice shall advise each member that (A) the court
will exclude him from the class if he so requests by a specified
date; (B) the judgment, whether favorable or not, will include
all members who do not request exclusion; and (C) any mem-
ber who does not request exclusion may, if he desires, enter an
appearance through his counsel.
(3) The judgment in an action maintained as a class action
under subdivision (b)(1) or (b)(2), whether or not favorable
to the class, shall include and describe those whom the court
finds to be members of the class. The judgment in an action
SE SUE EI
NSERC Pris Hin TE AT RS ASIN Nk x 0 Rs Ie 6 Se —
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maintained as a class action under subdivision (b) (3), whether
or not favorable to the class, shall include and specify or de-
scribe those to whom the notice provided in subdivision (c) (2)
was directed, and who have not requested exclusion, and whom
the court finds to be members of the class.
(4) When appropriate (A) an action may be brought or
maintained as a class action with respect to particular issues, or
(B) a class may be divided into subclasses and each subclass
treated as a class, and the provisions of this rule shall then be
construed and applied accordingly.
(d) Orders in Conduct of Actions. In the conduct of actions
to which this rule applies, the court may make appropriate
orders: (1) determining the course of proceedings or prescrib-
ing measures to prevent undue repetition or complication in the
presentation of evidence or argument; (2) requiring, for the
protection of the members of the class or otherwise for the fair
_conduct of the action, that notice be given in such manner as the
court may direct to some or all of the members of any step in
the action, or of the proposed extent of the judgment, or of the
opportunity of members to signify whether they consider the
representation fair and adequate, to intervene and present claims
or defenses, or otherwise to come into the action; (3) imposing
conditions on the representative parties or on intervenors; (4)
requiring that the pleadings be amended to eliminate therefrom
allegations as to representation of absent persons, and that the
action proceed accordingly; (5) dealing with similar procedural
matters. The orders may be combined with an order under Rule
16. and may be altered or amended as may be desirable from
time to time.
(e) Dismissal or Compromise. A class action shall not be
dismissed or compromised without the approval of the court,
and notice of the proposed dismissal or compromise shall be
given to all members of the class in such manner as the court
directs.
As amended Feb. 28, 1966, eff. July 1, 1966.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.