Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73 C 972 - Hubert L. Will, Judge.
Cummings, Pell and Bauer, Circuit Judges.
In 1973, the United States, through the Attorney General,*fn1 filed a complaint under Section 707 of Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e-6 (Supp. V 1975)), against United Air Lines, Inc. (United), the International Association of Machinists (IAM), and four other labor unions having collective bargaining agreements with United. As amended in 1974, the complaint alleged that United violated Title VII by discriminating against minorities*fn2 and women in hiring and recruitment practices, assigning them to less desirable jobs, failing to promote them on the same basis as white male employees, and requiring employees to pass certain non job-related tests that contributed to the exclusion of a disproportionate number of minorities. The complaint also alleged that the collective bargaining agreements between the unions and United "contain provisions, including provisions for promotion, demotion, transfer and layoff based on job seniority, which discriminate against represented employees on the basis of race, national origin, and sex." These provisions in the IAM agreement assertedly required minorities and women to forfeit their accumulated seniority upon transfer to higher-paying IAM positions from which they had formerly been excluded. The Government sought injunctive relief and back pay.
On September 16, 1975, at the close of plaintiff's case, the district court orally denied the defendants' motion to dismiss except as to discrimination against Asian-Americans. In so ruling, the court stated that it disagreed with United's contention that a prima facie case could not be made out by the Government by using evidence with respect to statistical disparities between the mix of United's work force for various job classifications in the ten largest cities served by United and by using United States census statistics for those cities. Judge Will pointed out that in "large part, this is not true on all counts, stewardesses or flight attendants are apparently hired on a broader base, but generally speaking, I think you look at the area in which the hiring takes place, for a prima facie case, with respect to statistical demonstration of discrimination." The court also discounted United's suggestion that its job applications figures should be used because, as the EEOC had pointed out, lack of applications may "simply be an indicia of the effectiveness" of discriminatory practices. The judge remarked that the Government had submitted evidence in addition to statistics in attempting to make a prima facie case of discrimination against blacks, Spanish-surnamed Americans and women, but that a prima facie case had not been made with respect to Asian-Americans. Viewing the evidence most favorably to the Government, as required on defendants' motion to dismiss, he concluded that the EEOC had made a prima facie case as to women and minorities. He found that the discriminations had occurred "pursuant to and consistent with * * * IAM contracts," so that defendant IAM was as much involved as United. In closing, he added that "IAM has at least gone along * * * if not proposed or promoted the idea" of the discriminations but that he would have "to wait and see all the evidence before [the Court] can have an opinion as to whether the IAM has participated in discrimination." (Tr. of Sept. 16, 1975.)
The district judge subsequently suggested that the parties seriously attempt to negotiate a settlement under close court supervision. Many conferences among counsel for United and the Government ensued.*fn3 On January 20, 1976, at an extensive in-chambers conference, all parties were represented when a draft consent decree was presented to the court. IAM objected to proposed changes in seniority provisions with respect to IAM jobs. Negotiations were resumed to resolve the IAM objections and an additional court conference took place on March 10. On April 13, 1976, a revised consent decree was presented to the court below. At the conference with the court, IAM presented an objection only to paragraph 2 of Section VII, which is not involved in this appeal. Since the district judge considered the IAM objection dropped by the end of the conference, April 30 was set for the entry of the consent decree. On that day, for the first time, counsel for IAM insisted that IAM seniority*fn4 be substituted for company-wide seniority in Paragraph 1 of Section VII of the decree. The basis for this objection was that it had "always been IAM's view, based on the fact that all of the Government's evidence related to employees who transferred from one IAM job to another, that the term 'company seniority' referred only to the total time employed by [United] in a job in one of the bargaining units represented by IAM. To make sure that our understanding was the same as [United's], a meeting was scheduled for April 26, 1976, during which [United] stated that their interpretation was that 'company seniority' meant total time employed by [United] irrespective of whether an employee worked in a unit represented by IAM. This raised a crucial question since IAM could not enter into a consent decree on that basis * * *." (Opposition of IAM to Proposed Decree at 2.)*fn5
Paragraph 1 of Section VII of the decree provides as follows:
1. All job classifications covered by the United-IAM Ramp and Stores, Food Services, Mechanic, Dispatchers and Guards Agreements, as well as those jobs covered by United's agreements with TWU and ALPA, shall henceforth be governed by company seniority for purposes of determining priorities in layoffs and recalls. Employees in promoted positions holding seniority under the Mechanic, Ramp and Stores, Food Services, Dispatcher and Guard Agreements or thereafter promoted to such positions shall, upon return to a position under one of the Agreements in which he holds seniority, be credited for the purposes of layoffs and recalls with a company seniority date equivalent to the seniority they held while in the promoted position pursuant to the seniority provisions of the collective bargaining agreements."
Judge Will responded as follows after the IAM presented its objection to the use of company seniority in the foregoing portion of the decree:
"I talked about company seniority because it seemed to me that United, rightly, ought to recognize length of service as a consideration in layoff and that it was outrageous to take somebody who had been with them for 25 years, and because they had moved from one position to another within the last two, three, four years, say you're junior to somebody who has been with us four years, or five years, whatever it is, and therefore you get laid off notwithstanding your 25 years of service, and I don't care whether you are a union member or nonunion member. It seems to me the whole concept of recognition of length of service as a factor in layoff, makes it inescapable it is not going to be union seniority, whatever the union may be, or unorganized employee seniority. That it is going to be what we have talked about, all along, company seniority.
"What we were going to correct was the inequities resulting from a historic pattern of alleged discrimination in job assignment, and promotion, and hiring. We were going to correct that by giving company-wide seniority so that seniority in grade was not going to be the criterion in terms of layoff, but seniority, company-wide, would be a factor at least to be taken into consideration in layoff.
"The whole theory of the company-wide seniority was there was company-wide discrimination; therefore, in order to redress that, you had to get company-wide seniority. So that the fact that you were a black, and didn't get moved from the counter to something else, didn't prohibit you from staying on the job when, as, and if there was a layoff because some white who was there originally was hired for a higher job, or was promoted earlier, had longer seniority in grade, in job.
"The whole proof in the case was that at various levels, union and non-union, blacks had been deterred in job assignments and job promotion, and therefore, you had to do something, even though they had worked for United for a long period of time, you had to do something to give them some ...