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March 9, 1984


The opinion of the court was delivered by: CURTIN

Since the inception of this ligigation, the complexity of this case has demanded the innovation of procedural devices to facilitate reconciliation. The present requests by individual Bethleham Steel employees to alter decisions of the Special Master assigned to these complaints and to alter decisions of the Amended Decree Implementation Committee following submission to Committee reconciliation are procedurally unusual, but only because the shape of this litigation has grown beyond ordinary case precedent.

Before addressing the individual requests for de novo review and/or interference, this lawsuit's procedural history must be summarized.

 On April 13, 1970, after a trial on the merits, Bethlehem Steel was permanently enjoined from engaging in a pattern and practice of discrimination against black employees on the basis of race of the Lackawanna, New York, plant. United States v. Bethlehem Steel, 312 F. Supp. 977 (W.D.N.Y. 1970). That decree was amended on October 14, 1971, to incorporate additional remedies prescribed by the United States Court of Appeals for the Second Circuit in United States v. Bethlehem Steel Corp., 446, F.2d 652 (2d Cir. 1971) United States v. Bethlehem Steel, No. 67-432, slip op. (W.D.N.Y. Oct. 14, 1971). The "Amended Decree" modified the senority system in order to provide increased opportunities for black employees hired before October 1, 1967 (the date this suit was filed by the United States Justice Department). Additionally, those black employees had to have been originally assigned to 11 specific departments. Under the provisions of Paragraph 5(a)(4) of that decree, plant senority was prescribed as the measure of continuous service to be used for purposes of promotions, demotions, layoffs, and recalls. This senority was to be employed wherever an affected class member transferee under the decree was in competition for a job in his new unit or department. However, there were certain exceptions concerning recalls and layoffs. Those employees were required to progress in regular steps through lines of progression but could now use their seniority plant date as the measure of competition.

 During 1972, two clarifying orders were issued which included a provision to extend the Amended Decree to Department 311, Plant Patrol. EEOC v. Bethlehem Steel, No. 67-432, slip op. (W.D.N.Y. Feb. 10, 1972 and July 26, 1972) (clarifying orders). However, that department's bargaining agent, Guards Local 23332, AFL-CIO, was not made a party defendant.

 On September 25, 1973, upon joint motion of the parties, this court entered an order establishing an Amended Decree Implementation Committee [ADIC] to resolve complaints and grievances arising from the implementation of the Amended Decree in a manner consistent with that decree. The purpose of the ADIC was to resolve, without resort to the court, any problems which might arise in the effectuation of the decree. Any controlling decision reached by ADIC had to be by unanimous decision.

 On April 12, 1974, the United States, on behalf of the Secretary of Labor and the Equal Employment Opportunity Commission [EEOC] filed a complaint in Alabama Federal Court against nine of the nation's major steel producers and the United Steelworkers of America. United States v. Allegheny Ludlum Industries, Inc., No. 74-P339 (N.D. Ala. April 12, 1974) (complaint filed). Of course, the effects of this suit were felt industry-wide, including Bethlehem Steel's Lackawanna Plant.

 On April 12, 1974, the same day the complaint was formally filed, two consent decrees were entered by the Alabama District Court. The first involved employment practices, to which both the companies and unions were parties, and the second concerned practices under the exclusive control of the companies.

 Consent Decree I required the use of a measure of continuous service which is not less than an employee's plant continuous service. It also established a bidding and transfer system and provided rate retention protection for employees transferring into new units where their initial entry job was compensated at a lower rate than the job for which they transferred. In addition, Consent Decree I created a system or mechanism for the detailed and individualized review and reform of local seniority rules and departments. The provisions of Consent Decree I were designed to correct the continuing effects of past discriminatory hiring, initial assignment, promotion, and transfer practices. Their adequacy and legality, as well as that of other provisions of Consent Decrees I and II, were challenged by three organizations, four individuals, and six groups of plaintiffs. The district court found those challenges to be without merit, and the Fifth Circuit affirmed. United States v. Allegheny Ludlum Industries, Inc., 517 F.2d 826 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S. Ct. 1684, 48 L. Ed. 2d 187 (1976).

 On July 12, 1974, the EEOC was substituted for the United States in this litigation. On July 26, 1974, this court, upon joint motion of the parties, entered an order which made Consent Decrees I and II applicable to the Lackawanna Plant, subject to certain modifications. Under the provisions of that order, Paragraph 5(a) of the Amended Decree remained in effect to the extent that its transfer and rate retention provisions were more beneficial to minorities. Paragraph 7 remained in effect until all pending applications of affected class members for the apprenticeship program reached final action. ADIC took priority over the provisions of Paragraph 10 of Consent Decree I. Existing recall practices and procedures under the Amended Decree remained in effect, and in addition, such rules and practices were made applicable to all employees covered by Consent Decree I. The Amended Decree Implementation Committee [ADIC] remained in place, and a separate Implementation Committee was established under Consent Decree I [CDIC]. Although membership on the two committees was the same, the Alabama District Court had jurisdiction over the CDIC matters, while ADIC disputes belonged before this court. Many of the matters addressed by these committees were the same; yet, the ADIC handled any supervisory and non-bargaining union questions. Additionally, special transfer matters and plant patrol issues were addressed by the ADIC. A committee headed by EEOC representation at the Lackawanna Plant interviewed all grievants and directed them to either the ADIC or the CDIC or, in some cases, directly to Union grievance if the subject matter was not covered by this suit.

 The CDIC's mandate in the July 26, 1974, order went beyond the intent of Consent Decree I by permitting it to function as had the ADIC, which was equipped with broad complaint resolution powers. All unresolved matters within the jurisdicition of the CDIC were to be referred to the Audit and Review Committee and, ultimately, to the Alabama district court for review. However, this court retained jurisdiction over all ADIC matters.

 Before long, CDIC and ADIC complaints and grievances had reached impossibile numbers. For this reason, in March of 1976, the parties initiated a special program by which additional representation of the Company, the Union, and the government was brought to Buffalo to assist the ADIC and the CDIC in reducing the caseloads.

 In May of 1977, the two committees submitted revised procedures to the court. Despite improvements, the backlog of the committees continued to grow. On January 10, 1979, the government filed a motion to modify and restructure the operation of the two committees. After a hearing, this court issued an order which curtailed the activities of both committees.That May 21, 1979, order directed that future CDIC matters would be handled within the grievance procedure. The parties agreed that following October 25, 1979, all unresolved Consent Decree cases would be referred to the Audit and Review Committee. That committee then set up a task force to resolve the approximately 1,000 cases which remained pending on that date. Work progressed in resolving those matters.

 Amended Decree matters remaining unresolved as of October 25, 1979, were referred to Special Master Lawrence E. Seibel (May 21, 1979, Order). He began holding hearings in January, 1980, and has issued decisions on all matters that were referred to him. The May 21, 1979, order also provided that any party or affected employee having objections could file a motion to modify or reject the Special Master's decision. Fed.R.Civ.P. 53. The court designed a pro se motion form to facilitate the process. Twelve such motions were properly filed and are presently before the court.

 In addition, 26 individuals have requested review of unanimous decisions of the ADIC. This is permitted in accordance with a stipulation entered in October, 1979, which agreed to add a paragraph to committee decision letters. This paragraph merely attempted to incorporate the previous unwritten understanding that dissatisfied complainants could have review in the district court.

 In order to review both the 12 Special Master requests and the 26 ADIC requests, this court directed that any of those persons wishing a hearing should inform the court on or before November 26, 1982, and appear before the court on December 10, 1982. One additional individual, Joseph Conner, who wished review of his ADIC determination, was later scheduled for a similar hearing on February 17, 1983.

 In anticipation of this review, in April of 1981, all parties and complainants were asked to respond to this court's concerns about the appropriate standard of review. Submissions have been received from the EEOC, Bethlehem Steel, the United Steelworkers of America, and from a group of supervisors who seek review of grievances originally handled by the ADIC.

 Initially, this court must define the scope of review applicable to both the Special Master appeals and the ADIC appeals. That inquiry must begin with the letter and spirit of the orders ...

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