Judith A. Lonnquist, Chicago, Ill., Kenneth L. Johnson, Emily M. Rody, Baltimore, Md., Jack Greenberg, James M. Nabrit, III, Barry L. Goldstein, New York City, for National Organization for Women and others.

William J. Kilberg, Sol. of Labor, U. S. Dept. of Labor, Washington, D. C., Wayman G. Sherrer, U. S. Atty., Birmingham, Ala., Leonard L. Scheinholtz, Pittsburg, Pa., Robert T. Moore, U. S. Dept. of Justice, Washington, D. C., Francis St. C. O'Leary, Pittsburgh, Pa., William A. Carey, Gen. Counsel, William L. Robinson, Joseph T. Eddins, EEOC, Washington, D. C., for U.S.A. and Wheeling-Pittsburgh Steel Corp.

William K. Murray, James R. Forman, Jr., Birmingham, Ala., for U. S. Steel Corp., Allegheny-Ludlum Industries, Republic Steel, Youngstown Corp., Bethlehem Steel, Wheeling-Pittsburgh Steel, Armco Steel, National Steel, Jones-Laughlin.

Michael H. Gottesman, Washington, D. C., Jerome Cooper, Birmingham, Ala., for Steelworkers.

Carl B. Frankel, Asst. Gen. Counsel, United Steelworkers of America, Pittsburgh, Pa., Marshall Harris, Asso. Sol. Labor Relations, Civ. Rights, Dept. of Labor, Washington, D. C., Vincent L. Matera, Pittsburgh, Pa., for U. S. Steel Corp.

Ralph L. McAfee, New York City, for Bethlehem Steel.

David Scribner, New York City, James H. Logan, Pittsburgh, Pa., Elizabeth M. Schnieder, Doris Peterson, Center for Constitutional Rights, New York City, for amici curiae.

Appeals from the United States District Court for the Northern District of Alabama.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

These appeals present novel and important issues which require us to consider the scope of the federal government's authority to encourage and negotiate expeditious and efficient settlement of widespead charges of employment discrimination in the nation's steel industry. Some of these issues are procedural in nature; others call into question the substantive legality of the means utilized. Some issues are ripe for decision; others are essentially hypothetical and conjectural. During the interim between the oral argument of these appeals in December, 1974 and the present, we have carefully examined the attacks which have been advanced against the settlement. Our conclusion is that the settlement has not been shown to be in any respect unlawful or improper, and hence its terms, conditions, and benefits must go forward immediately in their entirety.

On April 12, 1974, a complaint was filed in the federal district court for the Northern District of Alabama. The plaintiffs were the United States, on behalf of the Secretary of Labor, and the Equal Employment Opportunity Commission. Nine major steel companies1 and the United Steelworkers of America were named as defendants. The suit involved some 240-250 plants at which more than 300,000 persons are employed, over one-fifth of whom are black, Latin American, or female. Alleging massive patterns and practices of hiring and job assignment discrimination on the bases of race, sex, and national origin, the complaint sought to enforce the edicts of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and contractual obligations under Executive Order 11246, as amended, 3 C.F.R. 169 et seq. (1974).

The complaint charged that the companies had violated Title VII and Executive Order 11246 by hiring and assigning employees on impermissible grounds, and by restricting ethnic minorities and females to low-paying and undesirable jobs with scant opportunities for advancement. The complaint also charged the companies and the union with formulating collective bargaining contracts which established seniority systems for promotion, layoff, recall, and transfer so as to deprive minority and female employees of opportunities for advancement comparable to those enjoyed by white males.

The filing of the complaint culminated more than six months of intensive, hard-fought negotiations between, on one side, the EEOC and Departments of Justice and Labor, and on the other the companies and the union. Simultaneously with the filing of the complaint, the parties announced to the court that a tentative nationwide settlement had been reached. The parties multilaterally reduced their agreement to the form of two extensive written consent decrees. Describing the decrees as "a thoughtful and earnest attempt to respond to and to reconcile competition between charges of employment discrimination made on behalf of black, female, and Spanish surnamed workers and applicants,"2 District Judge Pointer signed and entered the documents later that same day.3

Consent Decree I is aimed at the practices of the union as well as those of the steel companies. It permanently enjoins the defendants from "discriminating in any aspect of employment on the basis of race, color, sex or national origin and from failing or refusing to fully implement" the substantive relief set forth therein. The items covered by Consent Decree I are mainly matters historically encompassed by collective bargaining. The substantive relief falls into three basic categories: (1) immediate implementation of broad plantwide seniority, along with transfer and testing reforms, and adoption of ongoing mechanisms for further reforms of seniority, departmental, and line of progression (LOP) structures, all of which are designed to correct the continuing effects of past discriminatory assignments; (2) establishment of goals and timetables for fuller utilization of females and minorities in occupations and job categories from which they were discriminatorily excluded in the past; and (3) a back pay fund of $XX-XXX-XXX, to be paid to minority and female employees injured by the unlawful practices alleged in the complaint.4

Consent Decree II and its accompanying Agreement deal with aspects of employment which are mainly company-controlled and thus not subject to collective bargaining. The companies again are broadly enjoined from any form of unlawful employment discrimination. Also, Consent Decree II requires the companies to initiate affirmative action programs in hiring, initial assignments, promotions, management training, and recruitment of minorities and females.

The decrees must be made to function in varying and peculiar situations in accordance with the parties' ambitious objectives. Furthermore, the parties contemplated that unforeseen interpretive issues will inevitably arise and require resolution. With these considerations in mind, the decrees provide for the establishment of implementation and enforcement procedures through a system of Implementation Committees. These committees are established at each major plant to which the decrees are made applicable. Each committee includes at least two union representatives, one of whom is a member of the largest minority group in the plant,5 and an equal number of company members. The government is entitled to designate a representative to meet with any Implementation Committee. The Implementation Committees are charged with assuring compliance with Consent Decree I, including changes in local seniority rules and LOPs, as well as the establishment of goals and timetables for affirmative action under paragraph 10. In addition, it is the Implementation Committees' responsibility to furnish employees with information about their rights under the settlement.

The Audit and Review Committee, established under paragraph 13 of Consent Decree I, is the hub mechanism in the decrees' system of continuing review, enforcement, and compliance. It is composed on an industry-wide basis of five management members, five union members, and one government member. It meets regularly to oversee compliance with the decrees and to resolve disputes which come before it, including any questions that the Implementation Committees have been unable to resolve. Matters which the Audit and Review Committee cannot resolve unanimously may be brought before the district court. Furthermore, all parties to the decrees have stipulated on the record that paragraph 20 of Consent Decree I, which vests the district court with continuing jurisdiction for at least five years, permits the court to review fully and, if necessary, correct any action taken pursuant to the decrees, irrespective of whether a party requests such review. Beginning no later than December 31, 1975, the Audit and Review Committee will review the entire experience under Consent Decree I. The committee may then propose remedial steps at any plant in order to overcome deficiencies in either the decree or its results. If the government representative remains dissatisfied with a committee proposal, he may take the matter to the district court. Finally, the Audit and Review Committee is responsibile at least annually for reviews of the various Implementation Committees' performance in establishing and fulfilling affirmative action goals in job assignment, hiring, promotion and seniority, and minority-female recruitment.

As the district court correctly determined, neither decree purports "to bind any individual employee or to prevent the institution or maintenance of private litigation."6 At the time of the decrees' entry, hundreds of employment discrimination charges were pending against the defendants before the EEOC and federal district courts scattered throughout the country. Between twenty and sixty thousand minority and female individuals then stood beneath the overlapping umbrellas of these charges as members of putative aggrieved classes in actions seeking systemic injunctive relief and back pay. Thousands still do, and the problems of administrative and judicial management are truly awesome.7 The consent decrees establish a formula for expeditious and coordinated resolution of the multitude of pending charges. With respect to pending cases in which district courts have already entered remedial decrees, the government, companies, and union have agreed to petition those courts for amendments to conform their relief to that contained in the consent decrees. The same action is being taken with respect to orders of the Secretary of Labor, rendered pursuant to Executive Order 11246, which were issued prior to entry of the decrees. In regard to other pending litigation, the parties to the consent decrees have agreed that release forms and notices to employees pursuant to subparagraphs 18(g) and (h) of Consent Decree I shall be forwarded to the courts trying the private actions, as well as to Judge Pointer for approval prior to distribution to all other affected employees. The parties have agreed on the record that they will observe any order or instruction issued by any of these courts. Audit and Review Committee Directive No. 1, P 5, May 31, 1974.

Under introductory paragraph C of each decree, the government has stipulated that in future cases involving private claims for relief, other than back pay, which would be inconsistent with the systemic relief provided by the decrees, the government will suggest to the forum court that the relief sought is unwarranted in the separate proceeding. The government, however, may proceed through the Audit and Review Committee mechanism to recommend that matters raised in the separate proceeding be submitted to Judge Pointer for resolution within the framework of the consent decrees. The government concedes, of course, and no one seriously argues contrariwise, that no forum court will be legally obliged to follow any government recommendation of dismissal, stay, or transfer as to any separate suit filed in such court.

With respect to charges pending at the administrative level at the time of the decrees' entry, the EEOC has agreed in paragraph 19 to expedite its processing schedule. The Commission will first identify those charges that allege violations for which the appropriate remedies are wholly within the scope of the decrees. In those cases, the EEOC will consider the charges settled and so notify the charging party. In addition, it will recommend to the charging party that he or she accept the back pay provided under paragraph 18(c) of Consent Decree I. As discussed, infra, the charging party is free to reject the EEOC's recommendation and commence a private suit for greater back pay or any other relief. As for pending charges that relate to matters which are not wholly within the scope of the decrees, the Commission will conduct the usual investigations and attempt to conciliate the charges. In all such cases, the time in which a charging party must decide whether to claim the back pay under paragraph 18 will be suspended during the administrative proceedings.

The overriding goal of the United States, the Secretary of Labor, the EEOC, the companies, and the union is comprehensive, final and fair settlement of charges of unlawful employment discrimination arising from patterns and practices alleged upon the part of the companies and the union up to and including the entry date of the consent decrees. Accordingly, introductory paragraph C of each decree provides for binding resolution, between and among the parties to the decrees, of all issues treated by the decrees, together with all issues which may arise as future effects of the resolved pre-decree discriminations. To the extent the defendants maintain compliance with the decrees as to issues covered and which through the various procedures may become covered thereby, the government has agreed that it shall deem the defendants to have complied with Title VII and Executive Order 11246.8 As to matters which originate in discriminations occurring prior to and including the entry date, and which are covered by the complaint or the decrees, the settlement is res judicata between and among its signatories.

Two important factors, however, warrant clarification at this point. First, no private individual, as such, is a party to the consent decrees. Thus, the consent decrees do not seek by their terms to bind private individuals by way of res judicata or estoppel by judgment. It is only through the acceptance of the back pay and legally effective execution of the release contemplated by paragraph 18(g) of Consent Decree I that a private individual can compromise, by virtue of the decrees, any right that he may have. Apart from the $XX-XXX-XXX back pay fund, paragraphs 17 and 18 establish mandatory procedures for fully informing private parties of their rights. Paragraph 18 sets up specific guidelines and standards for computing and delivering back pay awards to electing employees. The Implementation Committees, the Audit and Review Committee, and ultimately the district court bear the critical responsibility to insure that individual employees have the opportunity to make free, intelligent decisions whether to accept the back pay under the consent decrees.

The second factor relates to the nature of the consent decrees' finality as contemplated by paragraph C. In that paragraph, the plaintiffs United States, the Secretary of Labor, and the EEOC have stated in so many words that they consider the decrees remedially adequate to bring the defendants into present compliance with federal anti-discrimination law and to compensate individual employees for the past and continuing effects of the alleged discriminatory practices which the decrees enjoin. Because the plaintiffs believe that the decrees are sufficient to those purposes, they have stipulated that the decrees are res judicata with respect to all legal, factual, and remedial issues within the scope of the complaint and the decrees. In other words, the plaintiffs and we take the parties at their word at oral argument have merely consented to proceed within the mechanics of the decrees in lieu of filing additional lawsuits and seeking additional judgments against the defendants with respect to matters covered by the decrees.

Also because they believe that the decrees provide adequate relief, the plaintiffs have agreed that compliance with the decrees shall be deemed compliance with Title VII and Executive Order 11246. Nonetheless, it is our understanding of the submissions to this court on behalf of all parties to the decrees that the government remains entirely free, from and after the date of entry, to police the implementation of the decrees for repeated or new violations of the injunctive provisions, and furthermore that the government shall be entitled to treat such suspected violations as new violations of Title VII and/or Executive Order 11246, by reason of which the government shall not be barred from bringing the matter to the attention of the district court for new injunctive correction, if necessary. Correspondingly, in light of the parties' stipulation as to the scope of the district court's continuing jurisdiction, we construe paragraph 20 of Consent Decree I as authorizing any aggrieved individual to proceed in similar fashion. If the grievance arises from a transaction or episode to which the injunctive provisions of the decrees apply, then we understand that the individual may approach the court directly.9 If the grievance involves an allegation of new discrimination occurring subsequent to entry date, then it is our understanding that the individual may file a charge with the EEOC, and/or a lawsuit if he or she chooses, and expect the same quality of administrative and judicial consideration to which an employment discrimination complainant would be entitled in any other American industry.

Having sketched by no means exhaustively the terms of the settlement, the parties' interpretation thereof, and our general understanding of what the parties intended by their words and deeds, we turn now to the adversary environment which produced these appeals.

II. PRIVATE INTERVENTION: COMPLAINTS, PROCEEDINGS, AND APPEALS

The consent decrees were entered on April 12, 1974. By May 17, 1974, three organizations, four individuals, and six groups10 of plaintiffs in actions pending before various district courts had moved to intervene and to vacate the decrees. The district court invited the movants to file briefs, offer proof, and make oral arguments at the hearing conducted on May 20. At the conclusion of the hearing, the court narrowed the issues in intervention to two points: (1) whether the decrees should be stayed or vacated as unlawful or improper in their entirety; and (2) the validity of the contemplated releases of claims for additional relief in connection with the payment of back pay to employees so electing under the consent decrees.

The district court granted intervention as of right, intendedly pursuant to § 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1), and F.R.Civ.P. 24(a)(1), to a group of thirty-six individuals with respect to whom charges of discrimination on the part of the defendants had been filed with the EEOC. Thirty-three of these individuals were members of the Harris group. The court also granted permissive intervention under F.R.Civ.P. 24(b) to the principal officer of the Rank and File Team, an organization composed of rank and file members of the Steelworkers' Union. Judge Pointer denied all other motions for intervention, including that filed by the National Organization of Women (NOW), appellant herein. Among the thirty-six persons as to whom the court allowed intervention by right, however, three were women specifically appointed by NOW at Judge Pointer's request, and represented by NOW's counsel throughout the proceedings.11

In his memorandum opinion of June 7, 1974, see 63 F.R.D. 1, 5, Judge Pointer refused to stay or vacate the consent decrees and upheld their validity against the intervenors' attacks. He determined first that no evidentiary hearing was needed, since the intervenors sought mainly to present legal hypotheses and argument rather than evidence. Next, the court rejected contentions that the government had abdicated or bargained away its responsibilities under Title VII and Executive Order 11246. While recognizing that the decrees may require authoritative construction and clarification from time to time, Judge Pointer deemed such potential difficulties within his control by virtue of the court's continuing jurisdiction. With respect to the alleged illegality of the back pay settlement releases, Judge Pointer defined the issue as "whether a signed release in exchange for the payment of back-pay determined under a settlement procedure, as contemplated in paragraph 18(g) of Consent Decree I, can be valid as a matter of public policy." Id. at 7. Relying on recent language by the Supreme Court,12 he held in the affirmative, provided the employee's consent is both " 'voluntary and knowing,' " with "adequate notice which gives the employee full possession of the facts." Id.

As a procedural matter, Judge Pointer also relaxed his earlier orders denying intervention to the majority of the movants. The final memorandum of June 7 denies such intervention without prejudice to the rights of private parties to seek further intervention as to questions which may arise in the future. Similarly, whereas Judge Pointer considered his opinion binding upon those to whom he granted intervention as to the issues therein determined, he stated explicitly that he did not consider any private intervenor or class of private parties bound by principles of res judicata to the consent decrees. Id. at 4 n. 2, 5.

NOW appeals the district court's refusal to allow intervention by the organization qua organization. It has also filed a brief and presented oral argument on the merits in behalf of the three female appellants to whom Judge Pointer granted intervention. The intervenors from the Harris group appeal the district court's judgment sustaining the overall legality of the consent decrees, although they complain primarily about the back pay features rather than the decrees' injunctive provisions. No other appeals are properly before this court.13 For the reasons which follow, we affirm the judgment of the district court insofar as it rejected the contentions of the Harris intervenors and the three females nominated by NOW. We dismiss the appeal of NOW qua organization for want of jurisdiction.

Logical analysis of any question concerning intervention in federal court begins with Rule 24 of the Federal Rules of Civil Procedure.14 The rule establishes ground rules for two categories of intervention: section (a) establishes the procedures for timely intervention as of right, whereas section (b) recognizes discretion in the district court to permit intervention in two specified situations, again upon timely application.

Besides timeliness, Rule 24 details other preconditions to intervention. Under section (a), intervention as of right is authorized (1) when an act of Congress confers an unconditional right to intervene, or (2) when the applicant claims an interest in the subject matter of the action and shows that the action's disposition may, as a practical matter, impair or impede the ability to protect that interest, unless the applicant's interest is adequately protected by other parties to the suit. Thus, (a)(1) intervention presupposes reliance on a statute. By contrast, the inquiry under subsection (a)(2) is a flexible one, which focuses on the particular facts and circumstances surrounding each application. Since 1966, we have consistently held that (a) (2) intervention as of right must be measured by a practical rather than technical yardstick. E. g., Martin v. Travelers Indem. Co., 5 Cir. 1971, 450 F.2d 542, 554; Diaz v. Southern Drilling Corp., 5 Cir. 1970, 427 F.2d 1118, 1123-25, cert. denied sub nom., Trefina A.G. v. United States, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115 (1970); Atlantis Development Corp. v. United States, 5 Cir. 1967, 379 F.2d 818, 822-29. A denial of an application for intervention by right which was timely filed, as here, is subject to the usual scope of our appellate review over questions of law. An erroneous denial will be reversed. Weiser v. White, 5 Cir. 1975, 505 F.2d 912, at p. 916. On the other hand, if the appellate court finds that the claim of right to intervene was without merit, then it must dismiss the appeal for want of jurisdiction, since the order denying intervention does not constitute a final judgment. Id. See also C. Wright, Federal Courts § 75, at 332 (1970).

The rules pertaining to permissive intervention are slightly different. Rule 24(b) authorizes permissive intervention (1) when a federal statute confers a conditional right to intervene, or (2) when the application raises a question of law or fact which is material to the main action. In exercising its discretion, the district court is required to consider whether permissive intervention would unduly jeopardize or delay the determination of the original suit. On appeal, the denial of a motion for permissive intervention is unreviewable, unless the trial court abused its discretion. Brotherhood of R. R. Trainmen v. Baltimore & Ohio R. R., 331 U.S. 519, 524, 67 S.Ct. 1387, 1390, 91 L.Ed. 1646, 1650 (1947); Martin v. Kalvar Corp., 5 Cir. 1969, 411 F.2d 552. If no abuse of discretion is demonstrated, then once again the district court's order is not appealable and we must dismiss the appeal for want of a final order. Weiser v. White, supra ; C. Wright, supra.

NOW's principal contention asserts an absolute, unconditional right of intervention in favor of the organization. NOW thus seeks to enter the lawsuit under Rule 24(a)(1). NOW argues that this absolute, unconditional right is conferred upon it by § 706(f)(1) of Title VII, as amended, Pub.L.No.92-261, § 4(a) (March 24, 1972), 42 U.S.C. § 2000e-5(f)(1). Section 706(f)(1), which, as pertinent, contains the procedures for filing charges with the EEOC and the filing of lawsuits by the Commission or charging parties when conciliation fails, confers upon the "person or persons aggrieved" a right to intervene in a civil action brought thereunder by the Commission. NOW contends that since it is a civil rights-oriented feminist organization which has been permitted on occasions to file charges with the EEOC on behalf of women, and since on at least one occasion it has been named as a party-plaintiff in a sex discrimination lawsuit,15 it should therefore be deemed a "person aggrieved" in its own stead. NOW argues that judicial recognition of an unconditional organizational right of intervention would yield socially desirable results, since the organization would receive valuable stature and publicity which would encourage female workers throughout the nation to seek its assistance.

Without drawing any finer distinctions, the district court held that NOW is not a "person aggrieved" within the meaning of § 706(f)(1). In the court's view, NOW did not demonstrate a sufficiently concrete interest qua organization to justify the additional problems of management and inconvenience to other parties (including, presumably, the beneficiary employees of the consent decrees) that might result from duplicative intervention. The fact that NOW previously had been permitted to designate three female intervenors, whom its counsel ably represented, weighed heavily in Judge Pointer's calculus. See 63 F.R.D. at 4.

While perhaps a court might be persuaded by Judge Pointer's conclusion that NOW is not a "person aggrieved" within the meaning of § 706(f)(1),16 we defer decision of that question in favor of an approach which we consider more directly dispositive. We hold that this was not a proper case for intervention as of right by any private party or organization pursuant to Rule 24(a)(1). Specifically, we hold that intervention as of right was not conferred in this proceeding by any act of Congress. We do so because it is plain from a careful examination of the government's complaint that this was not in substance a § 706 action, but rather a "pattern or practice" action authorized by § 707, 42 U.S.C. § 2000e-6, which the EEOC was empowered to institute by virtue of the transfer of functions outlined in § 707(c).17 Insofar as the United States and the Secretary of Labor joined as plaintiffs to enforce the obligations imposed on the defendants by Executive Order 11246, the district court's jurisdiction was based on 28 U.S.C. § 1345.18

Nothing in § 707 or in any other federal statute conferred an unconditional right of intervention upon any private individual or association thereof. The "pattern or practice" action under § 707, which is conspicuously silent in regard to intervention, must be carefully contrasted with the actions contemplated by § 706. Under § 707, the EEOC (formerly the Attorney General) may institute a "pattern or practice" suit anytime that it has "reasonable cause" to believe such a suit necessary. See United States v. Jacksonville Terminal Co., 5 Cir. 1971, 451 F.2d 418, 438, cert. denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972). Section 707 does not make it mandatory that anyone file a charge against the employer or follow administrative timetables before the suit may be brought. It was unquestionably the design of Congress in the enactment of § 707 to provide the government with a swift and effective weapon to vindicate the broad public interest in eliminating unlawful practices, at a level which may or may not address the grievances of particular individuals. See Rodriguez v. East Texas Motor Freight, 5 Cir. 1974, 505 F.2d 40, at p. 66; United States v. International Ass'n. of Bridge, Structural, and Ornamental Iron Workers, 7 Cir. 1971, 438 F.2d 679, cert. denied 404 U.S. 830, 92 S.Ct. 75, 30 L.Ed.2d 60 (1971). Rather, it is to those individual grievances that Congress addressed § 706, with its attendant requirements that charges be filed, investigations conducted, and an opportunity to conciliate afforded the respondent when "reasonable cause" has been found. On the other hand, the mere fact that some charges were filed, or that efforts were made toward conciliation, does not in our view transform what the government may properly bring and does bring as a § 707 "pattern or practice" action into a § 706 action. See United States v. Ironworkers Local 86, 9 Cir. 1971, 443 F.2d 544, 551-52, cert. denied, 404 U.S. 984, 92 S.Ct. 447, 30 L.Ed.2d 367 (1971).

We have studied closely the language of the two sections in reaching the foregoing conclusions. If only the words of the statute were available, one might plausibly argue that § 707(e), 42 U.S.C. § 2000e-6(e), incorporates § 706(f)(1) intervention as of right into "pattern or practice" procedure. Section 707(e), enacted as another of the 1972 amendments to Title VII, provides that the EEOC shall have the authority, subsequent to March 24, 1972, "to investigate and act on" charges of pattern or practice discrimination filed in behalf of aggrieved individuals. Section 707(e) concludes: "All such actions shall be conducted in accordance with the procedures set forth in section 2000e-5 (§ 706) of this title."

Arguably, these procedures include intervention as of right by aggrieved parties. The legislative history indicates otherwise, however, and in the absence of an express provision for intervention we choose to follow its signals. In the first place, we have discovered no legislative history evincing a favorable congressional attitude toward unconditional private intervention in government "pattern or practice" litigation. In the legislative history which speaks most closely to the point, the House Committee on Education and Labor described the enacted precursor to § 707(e) as a measure which merely "(a)ssimilate(d) procedures for new proceedings brought under Section 707 to those now provided for under Section 706 so that the Commission may provide an administrative procedure to be the counterpart of the present Section 707 action." (emphasis added).19 Thus, while Congress apparently intended that the EEOC have investigative and conciliatory authority in "pattern or practice" situations comparable to its existing powers in § 706 cases, there is no indication that Congress intended the duplication of procedures to extend beyond the administrative level. The EEOC, of course, may not enact statutes, and it is a statute that Rule 24(a)(1) requires.

We emphasize that our disposition of the 24(a)(1) aspect of the intervention question is based primarily on what we find to be the correct construction of § 707 and its legislative history. We are comforted, however, by the Seventh Circuit's recent decision in EEOC v. United Air Lines, 7 Cir. 1975, 515 F.2d 946, in which the court reached the same conclusion, though ultimately its affirmance was based on the untimeliness of the intervenors' application. Also, we find persuasive support for our refusal to effectively imply an unconditional statutory right in the strong judicial policy against nonexpress private intervention in government enforcement litigation when an adequate private remedy is freely accessible. See, e. g., Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961). See also Battle v. Liberty Nat'l. Life Ins. Co., 5 Cir. 1974, 493 F.2d 39, 52, cert. denied, 419 U.S. 1110, 95 S.Ct. 784, 42 L.Ed.2d 807 (1975). This policy likewise applies to applications for intervention by right under Rule 24(a)(2), and applications for permissive intervention under Rule 24(b). See SEC v. Everest Mgt. Corp., 2 Cir. 1972, 475 F.2d 1236; United States v. Automobile Mfrs. Assn., C.D.Cal.1969, 307 F.Supp. 617, 619, aff'd per curiam, 397 U.S. 248, 90 S.Ct. 1105, 25 L.Ed.2d 280 (1970). Cf. NAACP v. New York, 413 U.S. 345, 368, 93 S.Ct. 2591, 2604, 37 L.Ed.2d 648, 664 (1973).

Without any aim on our part to denigrate whatever social benefit may accrue from participation in the proceedings by organizations such as NOW, or to impugn NOW's motives or sincerity, we note that NOW has offered no commanding legal or policy arguments to warrant a rule allowing its intervention as of right. NOW places much reliance on EEOC v. American Tel. & Tel. Co., E.D.Pa.1973, 365 F.Supp. 1105, aff'd in part, appeals dismissed in part, 3 Cir. 1974, 506 F.2d 735. There the court granted intervention by right, under § 706(f)(1) and Rule 24(a)(1), to a labor union insofar as certain issues raised in the union's application related to grievances with respect to which charges had been filed with the EEOC, and to remedy which the Commission had filed a suit that led to an industry-wide consent decree. American Tel. & Tel., however, was a suit brought by the Commission pursuant to § 706. It was not a § 707 "pattern or practice" action. See 506 F.2d at 740. The issue before the court was whether the union could be considered an "aggrieved" party for purposes of § 706(f)(1). The case is not authority for the proposition sought to be established sub judice. At any rate, we think that a labor union which is party to the collective bargaining agreement presents a far stronger case for intervention than does an organization such as NOW, provided that conflicts of interest are minimized.20

In summary, we have determined that NOW enjoyed no unconditional statutory right to intervene under F.R.Civ.P. 24(a)(1). The matter is mostly ended at this point, but we pause briefly to consider whether the district court could have erred in refusing to grant NOW intervention under Rule 24(a)(2) or (b). With respect to (a)(2) intervention as of right, NOW obviously claims an interest in the subject matter of the action. We believe, however, that NOW fails the other two prongs of the test. NOW has not shown that the district court's decision to enter the consent decrees as between the government and the defendants may, as a practical matter, operate to impair or impede the protection of its interest. Neither NOW nor any of its members is bound by res judicata or estoppel to the consent decrees. See Rodriguez v. East Texas Motor Freight, 5 Cir. 1974, 505 F.2d 40 at p. 65; Williamson v. Bethlehem Steel Corp., 2 Cir. 1972, 468 F.2d 1201, 1203, cert. denied, 411 U.S. 931, 93 S.Ct. 1893, 36 L.Ed.2d 390 (1973). See also Sam Fox Publishing Co. v. United States, supra, 366 U.S. at 689-90, 81 S.Ct. at 1313, 6 L.Ed.2d at 609. Furthermore, the district court explicitly qualified the denial of intervention as a denial without prejudice to future intervention. Cf. NAACP v. New York, supra. Finally, plenary legal remedies remain fully available to NOW's membership and perhaps, or so NOW has asserted, to the organization itself.21 The policy against private intervention in government litigation, noted supra, militates against the allowance of (a)(2) intervention here; NOW makes no colorable showing of inadequacy in the government's representation of the public interest. In any event, NOW fails the third element of the (a)(2) test. Having participated through its nominees and counsel during these entire proceedings, NOW cannot be heard to complain of the adequacy of the feminist representation.

Insofar as NOW's application may be deemed to have sought permissive intervention under Rule 24(b), no abuse of discretion has been shown in the denial. The district court was clearly justified in determining that the interests of the majority of the affected individuals predominated over NOW's interest in further delaying implementation of the decrees' reforms. Such determinations must be viewed in light of the circumstances as they existed at the time. EEOC v. United Air Lines, supra, 515 F.2d at 949. In this case, a full hearing had been held and NOW had received ample opportunity to present its arguments. The court below did not err in denying further intervention. Consequently, NOW's appeal qua organization must be dismissed.22

III. THE APPEALS ON THE MERITS: CHALLENGES TO THE CONSENT DECREES

Before proceeding with our examination of the appellants' numerous and provocative challenges to the consent decrees, it is appropriate that we outline the rules of law which govern the parameters of our review. Initially, it cannot be gainsaid that conciliation and voluntary settlement are the preferred means for resolving employment discrimination disputes. As early as 1968, Judge Bell wrote for this court: "It is thus clear that there is great emphasis in Title VII on private settlement and the elimination of unfair practices without litigation." Oatis v. Crown Zellerbach Corp., 5 Cir. 1968, 398 F.2d 496, 498 (emphasis added). Subsequently, in Dent v. St. Louis-San Francisco Ry. Co., 5 Cir. 1969, 406 F.2d 399, 402, Judge Coleman advanced the same thesis:

Thus it is quite apparent that the basic philosophy of these statutory provisions is that voluntary compliance is preferable to court action and that efforts should be made to resolve these employment rights by conciliation both before and after court action.

(emphasis added). In Culpepper v. Reynolds Metals Co., 5 Cir. 1970, 421 F.2d 888, 891, we declared that "the central theme of Title VII is 'private settlement' as an effective end to employment discrimination," citing Oatis. Next, in Hutchings v. United States Industries, Inc., 5 Cir. 1970, 428 F.2d 303, 309, Judge Ainsworth stated:

(I)t is clear that Congress placed great emphasis upon private settlement and the elimination of unfair practices without litigation (citing Oatis ) on the ground that voluntary compliance is preferable to court action. (citing Dent ). Indeed, it is apparent that the primary role of the EEOC is to seek elimination of unlawful employment practices by informal means leading to voluntary compliance.

(emphasis added).23

Our recent excursions into this area have not detoured from the foregoing principles, but have emphasized instead their practical value. In the most sweeping of all our employment discrimination decisions, Pettway v. American Cast Iron Pipe Co., 5 Cir. 1974, 494 F.2d 211, 258, we said in regard to the firmly established, but nonetheless thorny and speculative matter of awarding classwide back pay:

Initially, we approve the district court's intention of referring the back pay claims to a Special Master, Fed.R.Civ.P. 53. United States v. Wood, Wire & Metal Lathers Int. Union, Local 46, 328 F.Supp. 429, 441 (S.D.N.Y.1971). However, the court and the parties may also consider negotiating an agreement. E. g., Johnson v. Goodyear Tire & Rubber Co., 349 F.Supp. 3, 18 (S.D.Tex.1972), 491 F.2d 1364 (5th Cir. March 27, 1974); United States v. Wood, Wire & Metal Lathers, Int. Union, Local 46, supra 328 F.Supp. at 444 n. 3. An alternative is to utilize the expertise of the intervening Equal Employment Opportunity Commission to supervise settlement negotiations or to aid in determining the amount of the award.

(emphasis added).

Nor has the Supreme Court maintained detached silence in regard to the deference courts should accord the processes of voluntary conciliation and settlement. Describing Title VII and the functions of the EEOC, Mr. Justice Powell in Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017-18, 39 L.Ed.2d 147, 156 (1974), wrote for the Court:

Cooperation and voluntary compliance were selected as the preferred means for achieving (the elimination of unlawful employment discrimination). To this end, Congress created the Equal Employment Opportunity Commission and established a procedure whereby State and local equal employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit. In the Equal Employment Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 103, Congress amended Title VII to provide the Commission with further authority to investigate individual charges of discrimination, to promote voluntary compliance with the requirements of Title VII, and to institute civil actions against employers or unions named in a discrimination charge.

(emphasis added). In Gardner-Denver the Supreme Court stressed the importance of voluntary settlement in voicing its disapproval of a policy of deferral to binding arbitration. In the Court's view, such a policy could adversely affect the arbitration system as well as the vindication of individual rights, since the employee fearful of the arbitral forum might elect to bypass arbitration and file a lawsuit instead. "The possibility of voluntary compliance or settlement of Title VII claims would thus be reduced, and the result could well be more litigation, not less." 415 U.S. at 59, 94 S.Ct. at 1025, 39 L.Ed.2d at 164. (emphasis added).

So far, we have emphasized only one side of the coin the side which places a premium on the achievement of voluntary compliance. In doing so, we have not overlooked that the "final responsibility for enforcement of Title VII is vested with federal courts," Gardner-Denver, supra, 415 U.S. at 44, 94 S.Ct. at 1018, 39 L.Ed.2d at 156, and that "Congress gave private individuals a significant role in the enforcement process of Title VII." Id. See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).24 Nor have we forgotten that "the private right of action remains an essential means of obtaining judicial enforcement of Title VII." Gardner-Denver, supra, 415 U.S. at 45, 94 S.Ct. at 1018, 39 L.Ed.2d at 156 (emphasis added), and cases cited. We are fully mindful, moreover, that the EEOC's limited resources permit it to undertake serious conciliation or lawsuits in only a small fraction of the cases on its docket.25 For that reason, the congressional scheme continues to depend in substantial measure upon "private attorneys general" who, through their lawsuits in the federal courts, elicit enunciation of the great bulk of policies and principles which serve to flesh out the basic congressional mandate.

Yet we deal here with one of those rare instances in which the government has, to its satisfaction, successfully negotiated a comprehensive voluntary accord. At least ostensibly, the government has done precisely what it ought to do as a matter of public policy in order to vitiate the need for additional industry-wide litigation. On the other hand, the product of the considerable efforts on behalf of the government, the steel companies, and the union does not purport to foreclose any alternatives that may otherwise exist for individuals who had rather litigate than participate in the entire settlement.26 We say entire because the injunctive relief provided by the consent decrees extends to all affected steelworkers, regardless whether they elect to accept the back pay and execute the releases. The question at this point, then, is through what lens do we judge the adequacy of the settlement as against the intervenors' objections, bearing in mind that Congress and the Supreme Court have expressed a preference for voluntary compliance above all other tools of enforcement?

We think the answer was delivered nearly fifteen years ago by Judge (now Chief Judge) Brown in Florida Trailer and Equipment Co. v. Deal, 5 Cir. 1960, 284 F.2d 567, in which an objecting creditor sought to void a referee and district court-approved settlement, reached pursuant to the Bankruptcy Act, between the trustee of the insolvent estate and a lien creditor. There we stated:

Of course, the approval of a proposed settlement does not depend on establishing as a matter of legal certainty that the subject claim or counterclaim is or is not worthless or valuable. The probable outcome in the event of litigation, the relative advantages and disadvantages are, of course, relevant factors for evaluation. But the very uncertainty of outcome in litigation, as well as the avoidance of wasteful litigation and expense, lay behind the Congressional infusion of a power to compromise. This is a recognition of the policy of the law generally to encourage settlements. This could hardly be achieved if the test on hearing for approval meant establishing success or failure to a certainty. Parties would be hesitant to explore the likelihood of settlement apprehensive as they would be that the application for approval would necessarily result in a judicial determination that there was no escape from liability or no hope of recovery and hence no basis for a compromise.

Obviously, it would not be a settlement if to obtain approval the Trustee would have to demonstrate that he could not succeed had the preference claim been pressed. All that he must do is establish to the reasonable satisfaction of the Referee that, all things considered, (citation omitted), it is prudent to eliminate the risks of litigation to achieve specific certainty though admittedly it might be considerably less (or more) than were the case fought to the bitter end. * * *

Id. at 573 (emphasis added).

Despite the appearance of an occasional contextual gloss,27 the approach to judicial evaluation of proposed settlements announced in Deal has drawn firm adherents among the federal courts. See City of Detroit v. Grinnell Corp., 2 Cir. 1974, 495 F.2d 448, 455-56 (objectors must show clear abuse of discretion in trial court's approval of settlement); Bryan v. Pittsburgh Plate Glass Co., 3 Cir. 1974, 494 F.2d 799, 803, cert. denied, Abate v. Pittsburgh Plate Glass Company, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974) (settlement not unfair simply because many class members oppose it); Greenspun v. Bogan, 1 Cir. 1974, 492 F.2d 375, 381 (only where one side is so clearly correct that offer in compromise becomes clearly unreasonable does trial court abuse discretion in approving settlement); Ace Heating & Plumbing Co., Inc. v. Crane Co., 3 Cir. 1971, 453 F.2d 30, 34 (great weight is accorded the trial judge's views); West Virginia v. Chas. Pfizer & Co., 2 Cir. 1971, 440 F.2d 1079, 1085-86, cert. denied, see footnote 27, supra, (appellate court will disturb settlement approval only upon clear showing of abuse of discretion). See also Young v. Katz, 5 Cir. 1971, 447 F.2d 431.

Applying the Deal approach to the issues before us, we align ourselves with certain propositions which were recently developed by the Second Circuit in its review of a similar, though less expansive, Title VII settlement, see Patterson v. Newspaper and Mail Deliverers' Union of New York and Vicinity, 2 Cir. 1975, 514 F.2d 767. In the first place, the scope of our review is narrow and we should interfere with the implementation of the consent decrees only upon a clear showing that the district judge abused his discretion by approving the settlement. Next, to the extent that the settlement may in occasional respects arguably fall short of immediately achieving for each affected discriminatee his or her "rightful place," we must balance the affirmative action objectives of Title VII and Executive Order 11246 against the equally strong congressional policy favoring voluntary compliance. The appropriateness of such balancing is especially clear, as here, "in an area where voluntary compliance by the parties over an extended period will contribute significantly toward ultimate achievement of statutory goals." 514 F.2d at 771. Nor should we substitute our notions of fairness and adequacy of the relief for those of the parties and Judge Pointer, absent a strong showing that the district court failed to satisfy itself of the settlement's overall fairness to beneficiaries and consistency with the public interest. Finally, and of utmost importance, we are without authority to modify or rewrite the parties' agreement. Our only alternative, if it were shown that Judge Pointer abused his discretion or overlooked an illegal provision, would be to vacate his approval of the entire settlement and remand for trial of the government's "pattern or practice" complaint. See United States v. Atlantic Ref. Co., 360 U.S. 19, 23, 79 S.Ct. 944, 946, 3 L.Ed.2d 1054, 1057 (1959); Patterson, supra, 514 F.2d at 772. Cf. United States v. Blue Chip Stamp Co., C.D.Cal.1967, 272 F.Supp. 432, 440, aff'd per curiam sub nom., Thrifty Shoppers Scrip Co. v. United States, 389 U.S. 580, 88 S.Ct. 693, 19 L.Ed.2d 781 (1968).

To the foregoing observations we add a few remarks which we think are particularly pertinent to these appeals. The central issue here is not whether the consent decrees achieve some hypothetical standard constructed by imagining every benefit that might someday be obtained in contested litigation. The question which we must decide is whether the responsible government agencies may lawfully conciliate and settle by consent decree charges of discrimination cutting across an entire industry in a manner which assures cooperative defendants that they will not face future government lawsuits on those claims, and which accords the defendants the opportunity to offer final satisfaction to aggrieved individuals who are willing to accept tenders of back pay and execute the releases. Throughout their arguments, the appellants imply that private suits by thousands of unspecified employees whose grievances are generally covered by the decrees would be virtually certain to achieve far better results than those obtained by the government. Yet this implication, stripped of its rhetoric, goes really only to back pay insofar as the Harris appellants are concerned. Those appellants have challenged seriously the adequacy of the decrees' injunctive measures neither in the district court nor in this court.28 Only the three female appellants have done so, and their contentions though they certainly suggest possibilities do not approach any stretch of certainty. Against the overwhelmingly speculative advantage that might accrue to a small number of aggrieved persons if the decrees were vacated must be weighed the certain loss to all of the immediate injunctive benefits and the unimpeded opportunity to receive some back pay today instead of after months or years of litigation. Additional losses which must be considered include the nation's investment in the resources consumed by the federal agencies in negotiating these decrees, as well as the chance justly to finalize a matter that otherwise would burden agencies and courts and continue to disrupt an industry vital to the nation's security for years to come. We proceed now to examine specific issues raised by the appellants.

The subject of back pay is treated in paragraph 18 of Consent Decree I. The parties to the decree begin with the understanding that disagreement exists over whether any affected employee is entitled to back pay, and if so how much. Paragraph 18 continues:

In final resolution of that dispute and in full compensation for all alleged injuries suffered by such (aggrieved eligible employees) by reason of any unlawful acts and practices within the scope of the complaint or this Decree, as well as any future claim of damages by reason of the continuance of the effects of such past discriminatory acts and practices, all of the parties have agreed as follows:

(g) The amount of back pay determined to be due to each affected employee29 shall be tendered to him in accordance with procedures established by the Audit and Review Committee. In order to receive such back pay, each affected employee shall be required to execute a release, in a form approved by the Audit and Review Committee, of any claims against or liability of the Company, the Union, their officers, directors, agents, local unions, members, employees, successors and assigns, resulting from any alleged violations based on race, color, sex (exclusive of the matters referred to in paragraph D of this Decree), or national origin, occurring on or before the date of entry of this Decree, of any equal employment opportunity laws, ordinances, regulations or orders, including but not limited to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981 et seq., Executive Order 11246, as amended, the United States Constitution, the duty of fair representation under the Labor Management Relations Act, 29 U.S.C. § 151 et seq., and any other applicable federal, state or local constitutional or statutory provisions, orders or regulations. Such release will also bar recovery of any damages suffered at any time after the date of entry of this decree by reason of continued effects of any such discriminatory acts which occurred on or before the date of entry of this Decree.30

All appellants attack the legality and efficacy of the quoted provision on a variety of grounds. They argue that paragraph 18(g) unlawfully forces minority and female employees to waive their statutory right to bring private actions as a condition of obtaining any relief in a government "pattern or practice" suit. Alternatively, they argue that the release constitutes an illegal prospective waiver of the employee's Title VII rights. They contend next that the release interferes with the employee's right to seek independent remedies, a right which they assert may not be compromised as a matter of public policy. Moreover, the appellants maintain that the back pay fund is grossly inadequate by comparison with the recoveries that could be had in contested litigation, and hence that the decrees are plainly unfair to minority and female employees.

Eschewing as premature any ruling on the validity of any particular employee's release, the district court concluded that the appellants' arguments were lacking in merit as attacks on the decrees as a whole. Judge Pointer held that "there can be a legal waiver of back-pay claims where, for valuable consideration, a release is signed knowingly and voluntarily, with adequate notice which gives the employee full possession of the facts."31 We agree, but in order to delineate more precisely the contours of the applicable rule of law, we hold that the employee may release not only claims for additional back pay, but also claims for other relief including injunctive provided the released claims arise from antecedent discriminatory events, acts, patterns, or practices, or the "continuing" or "future" effects thereof so long as such effects are causally rooted in origin, logic, and factual experience in discriminatory acts or practices which antedate the execution of the release, and provided, of course, that the release is executed voluntarily and with adequate knowledge, as described by Judge Pointer.

Reduced to their simplest terms, the items to be released by electing employees pursuant to paragraph 18(g), in return for back pay, are: (1) all claims (subject to an exception not now germane) asserting unlawful employment discrimination by the defendants and/or their agents or privies insofar as such claims are based on acts or practices, within the scope of the government's complaint or the consent decrees, which were completed on or before the date of the decrees' entry; and (2) claims for damages incurred at any time because of continued effects of complaint or decree-covered acts or practices which took place on or before the entry date of the consent decrees.

There are certain potential rights, however, with respect to which we do not understand paragraph 18(g) to envision a compromise. That is because a waiver of these rights either does not follow from a fair reading of paragraph 18(g) (number (1)), or else they are "prospective" and employees may not waive them (numbers (2) and (3)). We list them as follows:

(1) The release will not bar an employee from suing in the future for additional injunctive relief if the reforms contemplated by the decrees do not eliminate continued effects which are causally grounded in past acts or practices of discrimination. For example, suppose a minority or female employee had been assigned to a lowly job in an undesirable LOP or pool at some point prior to April 12, 1974. At that point the employee became "locked" into a departmental seniority system whereby, in bidding for more desirable vacancies in other departments against white males with less plant seniority, the minority or female employee would be denied the new job for want of superior departmental seniority, though qualifications were otherwise equal. As of the decrees' entry, the aggrieved employee suddenly obtained plantwide seniority, and at minimum the right to bid for entry-level jobs in other departments on that basis. See paragraph 7 of Consent Decree I. Suppose, then, that subsequent to April 12, 1974 the aggrieved employee successfully bids for an entry-level job in a new department which offers substantial opportunity for advancement, perhaps to a trade or craft department. Because of his or her basic qualifications and superior plantwide seniority, however, the employee feels that a higher job in the unit should have been awarded instead of the entry-level position. Yet at his or her plant the general rule is ethnically and sexually neutral three-step bidding under paragraph 7(a). We are aware of no feature of the release which would preclude this employee from filing a charge with the EEOC, and/or an eventual lawsuit, seeking suspension of three-step bidding at the plant, at least in his or her case. To the extent the plant's transfer procedure restrains otherwise qualified, plant-senior minorities and females from reaching their "rightful places," then it may perpetuate the effects of past discrimination. See Stevenson v. International Paper Co., 5 Cir. 1975, 516 F.2d 103, at pp. 114, 116. We emphasize may because the answer is not now available; it will depend on the manner in which future circumstances and business necessities develop. Of course, regardless of the success or failure of the employee's challenge to the transfer procedure, his or her release may be pled in bar to a claim for damages based on whatever effects of past discrimination the procedure might have continued while it existed. This variety of grievance is precisely the kind to which the decrees are directed present effects of former systemic discrimination. The decrees may quickly remedy such problems, if they are given a chance.

(2) Any employee who feels aggrieved by the defendants' palpable disobedience of the terms of the decrees may sue, in effect, to enforce them. Although the defendants' promise to comply runs directly to the government, rather than to employees, the defendants readily concede that an episode of nonadherence to the decrees may conceivably constitute a new violation of the law and give rise to a new cause of action under Title VII or other applicable law. Whether a particular instance of noncompliance may give rise to a new claim for damages, injunctive relief, or perhaps both or neither, will again depend on the circumstances. If, for example, a minority or female individual could show that the company failed to fulfill an affirmative action goal for promotion to higher-paying trades and crafts, see paragraph 2(a)(1) of the Agreement accompanying Consent Decree II; that such failure was due to discrimination; and that he or she was qualified and would have been promoted at an earlier date but for the discrimination, then arguably the employee would be entitled to the first promotional vacancy and some amount of money for the period during which promotion was denied. On the other hand, the company may be able to show that no one was promoted during the relevant period, or that the promotions which did occur were based on unusual needs or other business necessities. Under those circumstances the employee may be entitled, if at all, to no more than a right of first refusal when the next vacancy occurs.

(3) Clearly apart from compliance or noncompliance with the decrees, the release cannot preclude a suit for any form of appropriate relief for subsequent injuries caused by future acts or undertakings the effects of which are equivalent to the otherwise compromised, noncompensable effects of past discriminations covered by the complaint or the decrees. Thus, the defendants are responsible for their conduct relating to job assignments, tests, qualification requirements, transfers, layoffs, and collective bargaining to the extent these items are carried out after April 12, 1974. If the defendants engage in new discrimination (of course, they deny that they have engaged in any heretofore), they will be fully liable for its provable effects and for provable economic losses caused thereby, regardless whether complaining employees signed releases as to other claims. Thus, it essentially appears that all an employee really waives in terms of "continued effects" by signing a release is his or her speculative accrual of further damages due to the inconceivable possibility that the defendants would take no corrective action whatsoever subsequent to the entry of the consent decrees. Obviously they may not sit still for long, or they will be in contempt or perhaps the warm waters of private litigation if their inaction breaches an express obligation which they have assumed under the decrees.

This last aspect of the release can have no other acceptable meaning, for notwithstanding that the systemic reforms contained in the decrees have been put into operation, thereby undertaking to break the chains of past causation as it were, the defendants have an ongoing statutory responsibility independent of the decrees to see that the corrective measures and goals established thereunder are maintained and updated so that the effects of past discrimination will be wiped out as quickly as due diligence and business necessity permit. See Pettway, supra, 494 F.2d at 248. This is especially the case with regard to the elimination of discriminatory departmental seniority structures, tests, and other customs that can unlawfully restrict the mobility of minorities and females within and between LOPs. On the other hand, neither the decrees nor the laws impose upon the defendants an impossible burden to insure that each victim arrives at his or her "rightful place" at once. In cases like this, involving large numbers of workers, it can rarely be determined how much a given employee would have earned or what job he or she would have occupied during a particular period but for the effects of systemic discrimination. Pettway, supra, at 260, 262. Seldom can more than speculative back pay relief be obtained simultaneously with seniority reform, for despite massive court-ordered competitive advantages and objective criteria-based affirmative action, many aggrieved employees will not immediately achieve their "rightful places," but only a more favorable start on the road toward better jobs. See, e. g., Pettway, supra, 494 F.2d at 249, 258 (back pay normally stops accruing when reformed seniority goes into effect); Johnson v. Goodyear Tire & Rubber Co., 5 Cir. 1974, 491 F.2d 1364, 1375, 1379 (same; individual circumstances vary and not all class members are automatically entitled to back pay); United States v. Georgia Power Co., 5 Cir. 1973, 474 F.2d 906, 927.32 These substantial, flexible decrees offer much remedial potential in reconciling conflicting demands left by decades of history which cannot be undone. Through the releases as to "continuing effects," the defendants will merely be purchasing for themselves a reasonable opportunity to utilize the decrees in removing any lingering obstacles that impermissibly prevent minority and female employees from reaching the road to their "rightful places." If the defendants leave gaps in their performance of this prospective duty by engaging in practices that reinstitute the discriminatory systems and effects which they have promised to rectify, then most positively they will be subject to suit for such conduct even by employees who signed releases in return for back pay. In this respect the defendants walk a very thin rope. If, however, they meet their responsibilities with consistency, then the law regards each employee's ensuing progress as a matter of his or her personal talent and initiative.

Lest we be thought to decide more than is necessary for purposes of this controversy, we simply note that our construction of paragraph 18(g), just advanced, does not wholly comport with the views of either the government, the steel companies, the union, the Harris appellants, or the three female appellants. Nor do those parties' interpretations even among the appellees reflect total consistency. Therefore, it was appropriate that we examine and indicate the meaning of paragraph 18(g), insofar as that meaning can be gathered from the provision's plain language in light of certain limitations which the law imposes upon the defendants' ability to enforce an employee-executed waiver. To be sure, other issues legal and factual will arise as the consent decrees are implemented, notices furnished, back pay accepted, releases executed, and lawsuits filed. It is sufficient for our purposes, however, to observe that ample opportunities will exist in other cases to grapple with those issues under, inter alia, the law of contracts. See generally A. Corbin, Contracts § 1292 (1962). Our present inquiry is confined to the narrower question whether paragraph 18(g) reflects such illegality or impropriety that the district court's approval of the consent settlement should be set aside.

Paragraph 18(g) would provide for an unlawful procedure only if it contemplated a release by employees of prospective rights. Such a proscribed device has been characterized by the Supreme Court as "a waiver in advance of a controversy." Wilko v. Swan, 346 U.S. 427, 438, 74 S.Ct. 182, 188, 98 L.Ed. 168, 177 (1953). Cf. Alexander v. Gardner-Denver Co., supra, 415 U.S. at 51, 94 S.Ct. at 1021, 39 L.Ed.2d at 160. Here, all the ingredients of controversy to be compromised under paragraph 18(g) have their operative and legally consequential origin in acts, patterns, and practices which were performed by the defendants up to and including April 12, 1974. Those operative ingredients are thus antecedent to any possible compromise, not prospective. Accordingly, it will be feasible for the Audit and Review Committee, the Implementation Committees, and the EEOC in the case of parties with pending charges, to furnish eligible employees with comprehensive, relevant information about their rights (for example, their putative membership in pending private class actions) before any back pay is delivered and before any releases are signed. Such information is calculated to insure that each electing employee settles knowingly and voluntarily, and with an understanding of the manner and extent to which the decrees remedy his or her grievance.

Yet the appellants contend that an intelligent, voluntary compromise of even an unliquidated, antecedent claim is unenforceable against the employee as a matter of law and public policy. They argue that since Congress attached the highest priority to the eradication of employment discrimination, and since Congress established a variety of independent remedies for making whole its victims, then a settlement of a claim in one forum or proceeding cannot be raised by the same defendant in bar to another proceeding for more back pay. They maintain that the employee's voluntary release in settlement of a claim for a disputed and concededly uncertain sum33 can bar the employee only from obtaining further recoveries in the same forum and under the same nomenclature as appertained to the proceeding which resulted in compromise. Specifically, appellants contend that an employee's release can bar the employee from recovering against these same defendants only in another government "pattern or practice" suit instituted on the same cause of action, as if such were likely to occur.

This is a novel and ingenious line of argument. It is calculated to circumvent the dicta in Gardner-Denver, supra, 415 U.S. at 52 & n. 15, 94 S.Ct. at 1021 & n. 15, 39 L.Ed.2d at 160 & n. 15, and to gain maximum possible mileage from the FLSA and related cases led by Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296 (1945).34 We reject the theory.

The appellants attempt to obfuscate the issues by mixing several distinct ideas, including election of remedies, prospective waiver, liquidated as opposed to unliquidated damages, and congressional policies underlying different statutes. The most egregious element in this mixture is the appellants' fallacious equation of the principles of election of remedies and release of a cause of action. They correctly cite Gardner-Denver for the propositions that Congress has created parallel and overlapping remedies to combat employment discrimination, that the employee may pursue those remedies in separate forums, and that "an employee's rights under Title VII are not susceptible to prospective waiver." 415 U.S. at 51, 94 S.Ct. at 1021, 39 L.Ed.2d at 160. They fail to recognize, however, that Gardner-Denver does not hold or imply that an aggrieved employee may freely seek additional relief in other forums after he has voluntarily released in one forum his claims arising from the same operative factual complex, for valuable consideration. A full and adequate compensation for a wrong, founded in various remedial measures, is one thing; a succession of compensations, each seeking to be full and adequate, quite another.

Gardner-Denver holds only that "an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement." 415 U.S. at 48, 94 S.Ct. at 1020, 39 L.Ed.2d at 158. Eviscerating Dewey v. Reynolds Metals Co., 6 Cir. 1970, 429 F.2d 324, 332, aff'd by equally divided Court, 402 U.S. 689, 91 S.Ct. 2186, 29 L.Ed.2d 267 (1971), the Supreme Court explained quite succinctly the basis for its decision. Arbitration is a collective right; a Title VII cause of action is a personal right. When the employee submits a grievance to arbitration, he or she is pursuing a contract right which flows from the collective bargaining agreement. The rights asserted in a Title VII suit flow, by contrast, from an act of Congress independent of the traditional labor-management bargaining process. Most fundamentally, however, the Supreme Court recognized that the congressional policy behind the various Title VII remedies for aggrieved workers (charges, investigations, conciliations, EEOC suits on behalf of charging individuals, and private suits) could be frustrated in unionized industry if those remedies were subject to contractual revision, in a "final and binding" manner, through the majoritarian give-and-take of collective bargaining.35 Consequently, neither do the rights conferred by Title VII constitute a proper subject of collective bargaining, nor may the employer approach the employee directly in an effort to obtain a prospective waiver "as part of the economic bargain" with the union, or, by extension, with the employee even if there is no union.

The appellees rely heavily on certain language in Gardner-Denver, which concededly is dicta. Still Justice Powell's statements appear carefully- considered, and, given the apparent unanimity with which the Justices accepted them, we agree with Judge Pointer that appellees' reliance is well-taken. The Court stated:

The actual submission of petitioner's grievance to arbitration in the present case does not alter the situation (that prospective Title VII rights may not be waived). Although presumably an employee may waive his cause of action under Title VII as part of a voluntary settlement, 15 mere resort to the arbitral forum to enforce contractual rights constitutes no such waiver.

15 In this case petitioner and respondent did not enter into a voluntary settlement expressly conditioned on a waiver of petitioner's cause of action under Title VII. In determining the effectiveness of any such waiver, a court would have to determine at the outset that the employee's consent to the settlement was knowing and voluntary.

415 U.S. at 52 & n. 15, 94 S.Ct. at 1021 & n. 15, 39 L.Ed.2d at 160 & n. 15.

The appellants attack this language with other nondecisional language found in footnote 14. There the Court suggested that in cases where the employee prevails at arbitration but later seeks judicial relief, courts are capable of adjusting their remedies to prevent duplicative recoveries. The Court added that if the employee obtained relief at arbitration "fully equivalent to that obtainable under Title VII," then there would be no need for a lawsuit or additional relief from the courts.

We believe that any apparent conflict is wholly superficial, and that the two statements are easily reconciled by reference to what was at issue in Gardner-Denver, and what was not. In the first place, Gardner-Denver did not involve the volitional release of a cause of action. It did involve the question whether an employee's resort to binding arbitration operates as a binding election of remedies. For reasons mentioned previously the Court answered that question in the negative, and footnote 14 is fully consistent therewith. This consistency is reinforced by the remainder of footnote 15: "In no event can the submission to arbitration of a claim under the nondiscrimination clause of a collective-bargaining agreement constitute a binding waiver with respect to an employee's rights under Title VII." (emphasis added).

In no respect does footnote 14, or anything else in Gardner-Denver, support the assertion that an aggrieved employee who freely settles his or her unliquidated demand with the employer or the union may reciprocate by suing the same defendant at a later date on the same cause of action, merely because the employee grows dissatisfied with the payment for which he or she settled. Very frankly, we cannot conceive of how any employment discrimination dispute could ever be resolved outside, or indeed inside, the courtroom, if defendants were forbidden to obtain binding, negotiated settlements. No defendant would ever deliver money, promises, or any other consideration not even a peppercorn except after entry of a contested, final court order, and even this, on appellants' reasoning, might not end the matter. The EEOC and judicial caseloads would swell to chaotic dimensions. Industrial peace would be needlessly threatened. The situation would be greatly inequitable to private parties who, for lack of funds or otherwise, failed to sue on their own and yet also preferred not to take their chances with unpredictable, protracted class actions managed by strangers, a matter over which present practice often leaves them little or no option.36 In sum, appellants' theory is as unrealistic, unsound, and ultimately rooted in dogmatism as its thoroughly discredited obverse the notion that private nonparties are bound by res judicata or estoppel to the results of government "pattern or practice" suits. Such a doctrine is unheard of. It deprives the employee of the chance to make a choice that previously was not available, even though the opportunity itself does not cost the employee a wink. It is contrary to the policies and procedures that heretofore have been followed in employment discrimination cases.37 It seemingly has been rejected by this court on a previous occasion, see Rodriguez v. East Texas Motor Freight, supra.38 We explicitly refuse to recognize it here.

There remain the matters of public policy and the alleged insufficiency of the back pay fund. We are aware of no case which has held, or even suggested, that an employee's binding release for valuable consideration of a disputed (in fact and amount) employment discrimination claim violates public policy. Appellants point to no such cases, but rely instead upon two early decisions under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., Brooklyn Savings Bank v. O'Neil, supra, and D. A. Schulte, Inc. v. Gangi, supra note 34, together with various progeny. Although these decisions established that the right under the FLSA to receive "minimum wages, promptly paid" plus time-and-one-half for overtime was absolutely enforceable upon pain of damages, they are clearly distinguishable from this case and furnish no support to appellants.

Neither O'Neil nor Schulte held that employees may not accept compromise payments and waive their claims for further relief in situations where the fact of liability or the amount thereof is disputed. In O'Neil, for example, the Supreme Court expressly limited as the issue before it "whether in the absence of a bona fide dispute between the parties as to liability" an employee could waive the liquidated damages to which the statute entitled him. 324 U.S. at 704, 65 S.Ct. at 900, 89 L.Ed. at 1307. The Court took great care not to decide "what limitation, if any . . . the Act places on the validity of agreements between an employer and employee to settle claims arising under the Act if the settlement is made as a result of a bona fide dispute between the two parties, in consideration of a bona fide compromise and settlement." 324 U.S. at 714, 65 S.Ct. at 905, 89 L.Ed. at 1313.

In Schulte the Court held that where the only bona fide dispute concerned whether the employer was covered by the FLSA, the employee was not bound to his or her compromise for less than the statutory liquidated reparation. The Court reasoned very simply that in the absence of any dispute other than mere coverage, an employer covered by the Act should not be able to escape its statutory obligation on the theory that coverage was not altogether clear. Again, however, the Court noted that it was not passing on the quite different question whether a covered employer could enter into a settlement with its employees where a bona fide dispute existed as to liability or amount.39 Moreover, in Schulte the Court left open the possibility that it might approve consent decrees which compromised the amount of payment even where liability and amount were not seriously disputed: "(W)e think the requirement of pleading the issues and submitting the judgment to judicial scrutiny may differentiate stipulated judgments from compromises by the parties." 328 U.S. at 113 n. 8, 66 S.Ct. at 928 n. 8, 90 L.Ed. at 1118 n. 8.

Subsequent to O'Neil and Schulte, the courts of appeals dismissed the argument that those decisions somehow forbade voluntary compromises, executed pursuant to consent judgments, with respect to sums the amount of or liability for which was disputed. See, e. g., Urbino v. Puerto Rico Ry. Light & Power Co., 1 Cir. 1947, 164 F.2d 12 (employees settled for minimum FLSA wage plus overtime but not liquidated damages; release constitutes effective bar to subsequent suit for liquidated damages; "the rule of the Schulte case goes to the verge of the law and this being our view we decline to extend that rule any further"); Bracey v. Luray, 4 Cir. 1947, 161 F.2d 128. See also Bowers v. Remington Rand, Inc., 7 Cir. 1946, 159 F.2d 114, cert. denied, 330 U.S. 843, 67 S.Ct. 1083, 91 L.Ed. 1288 (1947) (employer and employee may settle by agreement question whether sleeping time at jobsite constitutes working time).

Nor did the decisions of the Supreme Court on similar questions under other statutes yield any indication that the O'Neil-Schulte strict FLSA approach would be extended. In Callen v. Pennsylvania R.R., 332 U.S. 625, 68 S.Ct. 296, 92 L.Ed. 242 (1948), the Court considered the possible validity of a release under a statute which specifically prohibited any contract for an employer's exemption from liability for injuries to employees. (§ 5, Federal Employers' Liability Act, 45 U.S.C. § 55). The Court ruled that a release could be valid because

(i)t is obvious that a release is not a device to exempt from liability but is a means of compromising a claimed liability and to that extent recognizing its possibility. Where controversies exist as to whether there is liability, and if so for how much, Congress has not said that parties may not settle their claims without litigation.

332 U.S. at 631, 68 S.Ct. at 298, 92 L.Ed. at 246. The later case of Boyd v. Grand Trunk Western R.R., 338 U.S. 263, 70 S.Ct. 26, 94 L.Ed. 55 (1949), upon which appellants rely, is not to the contrary. There the Court explained that Callen correctly distinguishes "a full compromise enabling the parties to settle their dispute without litigation, which we held did not contravene the Act, from a device (exclusive venue contract) which obstructs the right of the (FELA) plaintiff to secure the maximum recovery if he should elect judicial trial of his cause." 338 U.S. at 266, 70 S.Ct. at 28, 94 L.Ed. at 58. (emphasis added). Cf. also Duncan v. Thompson, 315 U.S. 1, 7, 62 S.Ct. 422, 424, 86 L.Ed. 575, 579 (1942).

In Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942), the Court held that benefits conferred upon seamen by the law of admiralty and the Jones Act, 46 U.S.C. § 688, may be released if it is shown by the proponent that the waiver "was executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights."40 In Blanco v. Moran Shipping Co., 5 Cir. 1973, 483 F.2d 63, cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 108 (1974), we recently reaffirmed the Garrett formulation as the "classic test" of a valid and binding release.41

To be sure, the appellants' public policy position is tenable insofar as the O'Neil-Schulte line of cases once stood rather inflexibly for the idea that certain benefits under protective legislation would be sold for a song unless safeguarded by extraordinary measures. Yet it remains that those cases were tied closely to the mandatory terms of particular statutes, the labor conditions that produced those statutes, and what the Court believed was a clearly discernible congressional intent. Since then, courts have declined in most instances to fashion comparable doctrine from whole cloth, the stronger reasoning being that the rubric of "unequal bargaining power" all too often tempts the judiciary to promulgate social values which, at best, intrude upon the legislative sphere, and at worst reflect imprecise apprehensions of economics and desirable public policy. See, e. g., Walling v. Portland Terminal Co., 330 U.S. 148, 155, 67 S.Ct. 639, 643, 91 L.Ed. 809, 814 (1947) (Jackson, J., concurring) ("Interminable litigation, stimulated by a contingent reward to attorneys, is necessitated by the present state of the Court's decisions").

Perhaps it was in an effort to mollify Justice Jackson's indignation that Congress enacted the Portal-to-Portal Pay Act in 1947,42 one provision of which (29 U.S.C. § 253(a)) expressly declared that FLSA claims "may hereafter be compromised in whole or in part, if there exists a bona fide dispute as to the amount payable by the employer to his employee," provided, of course, that the parties utilize an hourly rate equal to the minimum wage. The Act also provided for waivers of liquidated damages, § 253(b), and announced that its effect would be retroactive as to "any compromise or waiver heretofore so made or given." 29 U.S.C. § 253(d). See McCloskey & Co. v. Eckart, 5 Cir. 1947, 164 F.2d 257.

So sharply undercut by Congress even in their immediate ambit, O'Neil and Schulte inescapably provide no support to appellants. Nor do the FELA, Truth-in-Lending Act, or other cases briefed by appellants cast the slightest shadow of doubt upon Congress' selection of voluntary conciliation and compliance as the preferred means or means at least as viable as any other for the vindication of Title VII rights. Though the appellants' contentions may possibly have vitality in rare situations where amounts due "may be mathematically calculated by simple arithmetic," e. g., Watkins v. Hudson Coal Co., 3 Cir. 1945, 151 F.2d 311, 314, we agree with Judge Pointer and the appellees that they will seldom apply, if ever, to Title VII seniority cases, which are inevitably attended by "the impossibility of calculating the precise amount of back pay." Pettway, supra, 494 F.2d at 260. Accordingly, we hold that paragraph 18(g) does not violate public policy.

Appellants next assert that an average of $500 per eligible employee in immediate, litigation-free back pay is a priori inadequate and that the consent decrees therefore must be vacated. Our limited scope of review neither requires nor permits us to decide this question in a manner which resolves each and every doubt, as if that were possible in any event.43 Nor may we pick and choose between conflicting factual hypotheses as if we were a jury.44 We are concerned, instead, with a scale of probabilities: the probable outcome of contested litigation, balanced against its probable costs in time, money, and public resources. Bryan v. Pittsburgh Plate Glass Co., supra, 494 F.2d at 801; Florida Trailer and Equipment Co. v. Deal, supra. Furthermore, we think it appropriate to take account of the injunctive relief provided by the consent decrees. That plenary relief, diligently implemented and monitored according to the terms of the decrees, will greatly shorten the timespan during which "continuing effects" back pay claims might otherwise continue to mount. Cf. Patterson v. Newspaper Deliverers' Union, supra. Correspondingly, it is undeniably in the defendants' interests to promptly implement the reforms, for surely some eligible employees will decline the tender of back pay in the anticipation of accruing and suing for more,45 which is their right.

Viewed from the foregoing perspective, appellants' contention of inadequacy must be rejected. Their argument comes in essentially two parts: first, an allegation that $500 per employee is considerably less than the awards which have been won in comparable contested lawsuits; second, they assert that the offered sums are fatally insufficient because the appellees have not shown those sums to equal "100% of the amount to which each employee would be entitled if t