Petition — Larkin v. Patterson

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JUL | 1975

In The MICHAEL JR..CLERK

Supreme Court of the United States

October Term, 1975

No. 75-155 :

JAMES V. LARKIN, DOMINICK VENTRE, FRANK

CHILLEMI, GERALD KATZ, ET AL.,

Petitioners,

Vs.

JOHN R. PATTERSON, NEWSPAPER AND MAIL

DELIVERERS UNION OF NEW YORK AND VICINITY,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

NEW YORK DAILY NEWS, NEW YORK TIMES, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

HERMAN H. TARNOW

Attorney for Petitioners

663 Fifth Avenue

New York, New York 10022

(212) 355-3977

TABLE OF CONTENTS

Opinions Below

Jurisdiction

Question Presented

Constitutional Provision Involved

Statutes Involved

Statement of the Case

Reasons for Granting the Writ

Il.

Iil.

The Petition Presents An

Important Unresolved Issue

Concerning The Rights Of Non-

Minority Worxers Affected By

An Affirmative Action Program

Under Title VII

The Legislative History of Title

VII Does Not Support The Con-

struction of the Court Below

The Petitioners Have Been

Denied Their Constitutional

Right of Equal Protection

Under the Law

uo WwW WS WW WN

TABLE OF CITATIONS

Cases Cited:

Albemarle Paper Company v. Moody,

Franks v. Bowman Transportation

Company, Inc., 495 F.2d 398 (5th

Cir. 1974), cert. granted, 43

U.S.L.W. 3515 (March 24, 1975)

Griggs v. Duke Power Co., 401

U.S. 424 (1971)

Local 189, United bapermakers v.

United States, 416 F.2d 980 (5th

Cir. 1969), cert. denied, 397

U.S. 919 (1970)

McLaughlin v. Florida, 379 U.S.

184 (1964)

United States v. Bethlehem Steel

Corp., 446 F.2d 652 (2nd Cir. 1971)

United States v. Jacksonville

Terminal Co., 451 F.2d 418 (5th

Cir. 1971) cert. denied, 406 U.S.

906 (1972)

United States v. Roadway Express,

Inc., 457 F.2d 854 (6th Cir. 1972)

United States v. Sheet Metal

Workers, Local 36, 416 F.2d 123

(8th Cir. 1969)

Page

10, ll,

tit

Cases Cited: Page

Waters v. Wisconsin Steel Works of

International Harvester Co., 502

F.2d 1309 (7th Cir. 1974), cert.

filed, February 21, 1975, O.T. 1974 No.

74-1064 ll,

United States Constitution Cited:

U.S. Const. amend V. 3

Statutes Cited:

42 U.S.C. 2000e - 2(3) 4

Legislative Materials:

110 Cong. Rec. 6549 (1964) 17

1190 Cong. Rec. 7213 (1964) (Clark-Case

Interpretative Memorandum) 16

110 Cong. Rec. 7218 (1964) 17

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975 - NO. 74%

ee x

JAMES V. LARKIN, DOMINICK VENTRE, FRANK

CHILLEMI, GERALD KATZ, ET AL.,

PETITIONERS,

-AGAINST-

JOHN R. PATTERSON, NEWSPAPER AND MAIL

DELIVERERS UNION OF NEW YORK AND

VICINITY, EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, NEW YORK DAILY NEWS, NEW YORK

TIMES, ET AL.,

RESPONDENTS.

ee x

PETITION For: A Writ oF CERTIORARI To THE

UnttTep States Court oF Appeacs For THE

SeconD CIRCUIT

Petitioners, JAMES V. LARKIN, DOMINICK

VENTRE, FRANK CHILLEMI, GERALD KATZ, et al.,

respectfully pray that a Writ of Certiorari

issue to review the judgment and opinion of

the United States Court of Appeals for the

Second Circuit entered in this proceeding on

March 20, 1975.

OPINIONS BELOW

The opinion of the Court of Appeals

reported at 514 F.2d 767 (2nd Cir. 1975) is

reprinted in the appendix hereto at la. The

order of the Court of Appeals denying peti-

tioners' petition for rehearing, unreported,

is reprinted in the appendix at 44a. The

Opinion, order and judgment of the United

States District Court for the Southern Dis-

trict of New York, reported at 384 F.Supp.

585 (S.D.N.Y. 1974) is reprinted in the appen-

dix at 2la.

JURISDICTION

The judgment of the Court of Appeals was

entered on March 20, 1975. Petitioners'

timely petition for a rehearing was denied on

April 29, 1975. Jurisdiction is invoked under

28 U.S.C. Section 1254(1).

1. In an action based on Title VII, where

both minority and non-minority workers are

subjected to identical employment discrimina-

tion, is a District Court prohibited from

granting equal relief to all discriminatees,

regardless of race?

2. Whether Congress intended through Title

VII to grant constructive seniority to newly

hired minority individuals to the detriment

of incumbent non-minority employees?

CONSTITUTIONAL PROVISION INVOLVED:

United States Constitution, Amendment V

provides:

--e-nor shall any person...be deprived

of life, liberty or property, without

due process of law;...

STATUTORY PROVISIONS INVOLVED:

The sections of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. Section 2000e

et seq. as amended, provides in pertinent

part:

"Section 703(a), 42 U.S.C. 2000e-2(a):

It shall be an unlawful employment

practice for an employer -

(1) to fail or refuse to hire or to

discharge any individual, or other-

wise to discriminate against any

individual with respect to his com-

pensation, terms, conditions, or

privileges of employment, because of

such individual's race, color, reli-

gion, sex or national origin;"

"Section 703(c), 42 U.S.C. 2000e-2(c):

It shall be an unlawful employment

practice for a labor organization -

(1) To exclude or to expel from its

membership, or otherwise to discrim-

inate against, any individual because

of his race, color, religion, sex, or

national origin;

(2) To limit, segregate, or classify

its membership or applicants for mem-

bership, or to classify or fail or

refuse to refer for employment any

individual, in any way which would

deprive or tend to deprive any indi-

vidual of employment opportunities,

or would limit such employment oppor-

tunities or otherwise adversely affect

his status as an employee or as an

applicant for employment, because of

such individual's race, color, reli-

gion, sex, or national origin.

Section 703(j), 42 U.S.C. 2000(e)-2(}4):

Nothing contained in this sub-chapter

shall be interpreted to require any

employer, employment agency, labor

organization or joint labor management

committee subject to this sub-chapter

to grant preferential treatment to any

individual or to any group because of

race, color, religion, sex, or national

origin of such individual or group on

account of an imbalance which may exist

with respect to the total number of per-

centage of persons or any race, color,

religion, sex, or national origin em-

ployed by any employer..."

STATEMENT OF THE CASE:

This action is a consolidation of two suits

filed in the Southern District of New York.

The first was brought by minority employees of

the various publishers (New York Times, New

York Daily News, etc.). The second was

brought by The Equal Employment Opportunity

Commission (4a).

The petitioners are white, non-union

workers who were given permission to intervene

in the consolidated action as a matter of

right (4a). A four week trial was held, how-

ever, before the cause could go tc verdict,

plaintiffs and defendants executed a settle-

ment agreement which was subsequently approved

by the District Court over the objection of

the petitioners (3a).

The only act of discrimination

found by the District Court was the Union's

nepotistic admission policy (29a).

Both the District Court (35a) and

the Court of Appeals (8a) have concluded that

the Petitioners have been subjected to iden-

tical discriminatory treatment as minority

employees. Consequently, the discriminatory

employment practices uniformly affected all

non-union individuals. Sons of union men,

be they black or white, were given prefer-

ences over all other workers (30a). The

Court's jurisdiction, having been invoked

pursuant to Title VII, what petitioners re-

quested below, was the same employment re-

lated relief that was granted to minority

workers (40a). It should be noted that

petitioners neither sought back pay nor chal-

lenged the remedial quota system of entry

level hiring. Yet, the District Court (40a)

and the Court of Appeals (lla) have refused to

grant non-minority employees equal relief. The

Courts reasoned, that a Title VII action need

only be beneficial to minorities, notwithstand-

ing the fact that similarly situated non-

minority workers had suffered equally. Addi-

tionally, the Court has sanctioned a plan

which grants constructive seniority to newly

hired minorities (12a). These new minority

empioyees need never have worked a day in the

industry, yet as a result of this judicially

approved plan, they will be given the right

to be hired before incumbent non-minority

employees with as much as ten years’ senior-

ity (13a).

In order to assure a variable, yet con-

stant work force, the hiring system at the

publishers evolved into two categories (5a).

The first category includes employees who fill

the daily minimum work force requirements of

the publishers. These positions are termed

"Regular Situations" (5a). The second, the

daily “shapers"™ are catecworized into four

employment priority groups (5a). Although

called “extras", these employees must work

five shifts per week, or be available to work

six shifts per week in order to maintain

their position on the employment priority lists

(6a).

The order in which daily “shapers” are

hired is determined in accordance with their

position on a given employment priority list.

These daily "shapers" are needed due to the

variations in the size and quantity of the

newspapers distributed. In addition, the

various employment priority lists are used

to determine who will receive the next avail-

able “Regular Situations (6a).

While the annual vacancy rate for

“Regular Situations" is nominal, these employ-

ment priority lists are utilized to fill the

thousands of “extra" or "shape" positions

available yearly. For example, at the New

York Daily News, the pro,ected annual turn-

over of “Regular Situations" is 53 positions,

whereas more than 50,000 extra shifts of work

are filled each year.

It follows that the employee's position

on any given employment priority list deter-

mines his hiring status. Consequently, if

there are 100 jobs to be filled at a shift,

the first 100 qualified men on the employment

priority list would be hired.

The court~-approved settlement agreement

has resulted in the restructuring of the employ-

ment priority lists. This allows newly hired

minority employees to jump over workers who in

addition to having seniority in the industry,

have throughout their employment suffered the

effects of the nepotistis practices of the

union.

REASONS For GRANTING THE WRIT

I, THE PETITION PRESENTS AN IMPORTANT UNRE-

SOLVED ISSUE CONCERNING THE RIGHTS OF

NON-MINORITY WORKERS AFFECTED BY AN

AFFIRMATIVE ACTION PROGRAM UNDER TITLE

VII.

A. There is a conflict in the decisions of

the Circuit Courts regarding the nature of

remedies available under Title VII. The Peti-

tioners seek a review of the opinion of the

Second Circuit which is contra with that of

the Sixth Circuit in United States v. Roadway

Express, Inec., 457 F.2d 854 (6th Cir. 1972),

concerning the denial of equal relief to

white workers. Further, the ruling in the Second

Circuit on constructive seniority cannot be recon-

ciled with the holdings in the Fifth and Seventh

Circuits on this issue. Franks v. Bowman Trans-

portation Company, Inc., 495 F.2d 398 (5th Cir.

1974), cert. granted, 43 U.S.L.W. 3515, (March

24, 1975); Watere v. Wt: consin Steel Works of

International Harvester Co., 502 F.2d 1309 (7th

Cir. 1974), cert. filed. February 21, 1975,

O.T. 1974 No. 74-1064.

The underlying prenise of Title VII is

that the Federal Judiciary, using its broad

equitable powers should fashion relief to

eliminate the discriminatory effects of prior

practices. Both the District Court and the

Court of Appeals felt compelled, as a matter

of law, to seek complete relief only for

minority workers. Apparently disregarding

equitable principles, the Court concluded

that the Civil Rights Act was intended to

remedy only the plight of minorities, thereby

excluding white discriminatees from Title VII

relief (lla, 40a).

In United States v. Roadway Express, Inc.,

supra, the Sixth Circuit determined that all

workers who have been the victims of discrimina-

tion, be they black or white, must be recompensed

equally. Although the Second Circuit was cognizant

of the decision in United States v. Roadway, the

Court refused to follow the precedent contained

therein (12a).

The equitable principles adopted in Roadway,

have recently been set forth by this Court in

Albemarle Paper Company v. Moody, -U.S.- (1975),

an employment discrimination case:

"It is also the purpose of Title VII to

make persons whole for injuries suffered

on account of unlawful employment discrim-

ination. This is shown by the very fact

that Congress took care to arm the courts

with full equitable powers. For it is the

historic purpose of equity to "secure[e]

complete justice," Brown v. Swann, 10 Pet.

497, 503; see also Porter v. Warner Holding

Co., 328 U.S. 395, 397-398. "(W]jhere

federally protected rights have been in-

vaded, it has been the rule from the begin-

ning that courts will be alert to adjust

their remedies so as to grant the neces-

sary relief." Beil v. Hood, 327 U.S. 678,

684.

Albemarle Paper Co., Slip Opin. at ll.

B. The rightful place theory of relief has

been approved by several Circuits. See, e.g.,

United States v. Bethlehem Steel Corp., 446

F.2d 652 (2nd Cir. 1971); Local 189, United

Papermakeres v. United States, 416 F.2d 980

(Sth Cir. 1969), ecwrt. denied, 397 U.S. 919

(1970). This remedy allows an incumbent minority

discriminatee to achieve employment standing

consistent with work experience. In applying

this theory, the Courts have been careful to

oppose any "leap-frogging," "jumping," "“bump-

ing," or other constructive seniority approaches

which would violate the rights of non-minority

workers. Griggs v. Duke Power Co., 401 U.S.

424 (1971); United States v. Sheet Metal

Workers, Local 36, 416 F.2d 123 (8th Cir. 1969);

United States v. Jacksonville Terminal Co., 451

F.2d 418 (Sth Cir. 1971) cert. denied, 4C6 U.S.

906 (1972); United States v. Bethlehem Steel

Corp., supra; Waters v. Wisconsin Steel Works

of International meester Co.. supra.

The Second Circuit acknowledged that there

would be "leap-frogging" of newly hired minority

employees over incumbent white workers (13a).

Nevertheless, the Court avoided the issue of

constructive seniority claiming that the “leap-

frogging" is not "court ordered" (14a). How-

ever, the Second Circuit failed to recognize that

the District Court did enter an "order" (with

findings of fact and conclusions of law) approv-

ing the settlement agreement (22a, 26a).

In the instant case, the sole act of dis-

crimination was the Union's nepotistic policies

which affected all non-union employees (29a,

35a). We are not dealing with prejudicial

tests, referral systems, or transfer plans, but

rather with an across-the-board discrimination

in favor of the sons of union members, be they

black or white. The discrimination here was

genetic. Having established that the non-

minority workers were equally the victims of

unfair treatment, certainly, the Court's im-

position of fictional seniority to their

detriment cannot be sanctioned.

The rightful piece theory was never in-

tended to be a vehicle for racial discrimina-

tion.

II. THE LEGISLATIVE HISTORY OF TITLE

VII DOES NOT SUPPORT THE CONSTRUC-

TION OF THE COURT BELOW.

The legislative purpose underlying Title

VII of the Civil Rights Act was clearly to

eradicate all vestiges of employment discrim-

ination. Proponents of the Act vehemently

argued that the Bill would not have an adverse

affect on legitimate seniority rights of incum-

bent employees.

In a detailed Interpretative Memorandum

submitted to the Senate, it was stated:

"Title VII would have no effect on

established seniority rights. Its

-effect is perspective and not retrospec-

tive. Thus, for example, if a business

has been discriminating in the past and

as a result has an all white working

force, when the Title comes into effect

the employer's obligation would be sim-

ply to fill future vacancies on a non-

discriminatory basis. He would not be

obliged - or indeed - permitted - to fire

whites in order to hire negros, or to pre-

fer negros for future vacancies, or once

negros are hired, to give them special

seniority rights at the expense of the

white workers hired earlier." 110 Cong.

Rec. 7213 (1964) (Clark-Case Interpreta-

tive Memorandum)

During the debate, the Congressional

Record was replete with statements assuring

all legislators that the Civil Rights Act was

remedial and not racist. It was to serve as

a new foundation to insure equal rights for

all citizens. Senator Hubert Humphrey, a

leading supporter of the bill, argued:

"Contrary to the allegations of some

opponents of this Title, there is noth-

ing in it that will give any power to

the Commission or to any other Court

to require hiring, firing or promotion

of employees in order to meet a racial

"quota" or to achieve a certain racial

balance." 110 Cong. Rec. 6549 (1964).

Addressing himself to specific ques-

tions concerning the Civil Rights Act, the

Bill's sponsor, Senator Clark noted that:

". . « the Commission has a clear

mandate to engage in wide-spread edu-

cational and promotional activities to

encourage understanding and acceptance

of the Act, including the obligation

not to discriminate against whites."

110 Cong. Rec. 7218 (1964) (emphasis

added)

The racial limitation imposed by the

Second Circuit in formulating relief under

Title VII would only serve to defeat the

intentions of its legislative advocates. By

approving a system of racially motivated con-

structive seniority and by denying petitioners

the right to equal relief, the Court below

has vitiated the salutory effects of the Civil

Rights Act.

II]

rill, THE PETITIONERS HAVE BEEN DENIED

THEIR CONSTITUTIONAL RIGHT OF

EQUAL PROTECTION UNDER THE LAW.

The Fifth Amendment prohibits Congress

from passing discriminatory legislation which

amounts to a denial of due process. The due

process clause mandates that a law must be rea-

sonable and operate equally upon all who are

Similarly affected. See, e.g. McLaughlin v,

Florida, 379 U.S. 184 (1964).

In the instant case, the record Clearly

shows that all non-union employees were equally

mistreated (35a). It is respectfully submitted

that both the District Court and the Court of

Appeals, having erroneously construed Title VII,

denied relief to Similarly situated white

workers, thereby depriving them of their Fifth

Amendment rights. The greatness of America

stems from the concept of equal protection under

the laws for every person on an individual

basis.

Injustice cannot be remedied by injustice.

CONCLUSION

For the foregoing reasons, it is respectfully

submitted that the Petition for Writ of Certiorari

should be granted.

Respectfully submitted,

HERMAN H. TARNOW

663 Fifth Avenue

New York, N.Y. 10022

Attorney for Petitioners

Appendix

UNITED STATES COURT OF APPEALS

For tHe Seconp Circurr

“™

—_ —— —

No. 626 --September Term, 1974.

(Argued January 9, 1975 Decided March 20, 1975.)

Docket No, 74-2548

Joun R. Parrenson, et al.,

Plaintif's- A ppellecs,

—against—

Nrewsparrern anp Man. Deviverers’ Union or New York anp

Vicinity, et al.,

Defendants- Appellees.

-——

Equa EMPLOYMENT Opportunity COMMISSION,

Plaintiff s-A ppellees,

—against—

NEWSPAPER AND Mait. Deuiverrrs’ Union or New YorK AND

Viorniry, et al., .

Defendanis- Appellees.

——————

—

= —s

wr =

Dominick Ventre, Prank CutLLem!, Gera.p Karz, et al.,

Intervenors.

—— +2 —_____

James V. Larkin,

Intervenor-Appellant.

Before: 2a

Feinserc, Mansriviy and Oakes,

Circuit Judges.

Appeal by an intervenor, a white non-union employee,

from an order of the United States District Court for the

Southern District of New York, Lawrence W. Pierce, Judge,

approving, in an action brought under Title VII of the

Jivil Rights Act of 1964, 42 U.S.C. « 520000, ef seq., a

settlement agreement which provides among other things

for an affirmative action program setting goals and es-

tablishing procedures for minority secess {o union jobs,

and providing compensatory back pay to minority workers.

Affirmed.

Micuazt, B. Taxcorr, Esq., New York, N.Y.

(Willkie Farr & Gallagher, Deborah M.

Greenberg, Jack Greenberg, Esq., Edward

F. Greene, Esq., New York, N.Y., of coun-

sel), for Plaintiffs-Appellees.

O’Donnzts, & Scuwarrz, New York, N.Y. (Mi-

chael Klein, Esq., New York, N.Y. of coun-

sel), for Defendant-Appellee Newspaper and

Mail Delivervrs’ Union of New York and

Vicinity.

Micuakt SS. Devorkin, Assistant United States

Attorney (Vaul J. Curran, United States

Attorney for the Seuthern District of New

York, Gerald A. Rosenberg, Assistant

United States Attorney, William .\. Carey,

General Counsel, Equal Employment Oppor

tunity Commission, Joseph T. Eddins, As-

sociate General Counsel, Charles L. Reischel,

Beatrice Rosenberg, Attorneys, New York,

N.Y., of counsel), for Plawntiff-A ppellee

Equal Employment Opportunity Commis-

s10n,

Herman Tarnow, Esq., New York, N.Y., for

Intervenor-Appellant Larkin.

~ Oe

MANSFIELD, Circuit Judge:

At issue on this appeal is the appropriateness of relicf

against discrimination in the employment of news deliv-

erers. In the past we have been called upon to review relicf

granted in cases where discrimination has been established

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

$$2000e, ef seq., including the use of minority percentage

goals and affirmative hiring and promotion programs. See,

e.y., Rios v, Enterprise Assn. Steamfitters, Local 638, 501

F.2d 622 (2d Cir. 1974); Bridgeport Guardians, Inc. vy.

Bridgeport Civil Serv. Comm., 482 F.2d 1333 (2d Cir,

1973); United States v. Bethlehem Steel Corp., 446 F.2d

602 (2d Cir, 1971). The present appeal presents several

variations on the theme. Unlike previous eases the affirma-

tive relief under attack bere does not result from an

order of the district court entered after a determination

of the merits of the action but from a settlement agrec-

ment between the plaintiffs, who are minority persons seck-

ing employment as news deliverers, the defendant News-

paper and Mail Deliverers of New York and Vicinity (“the

Union” herein), and the Government. The settlement was

reached after a four-week trial in the Southern District of

New York before Lawrence W. Pierce, Judge, who approved

the agreement. The person chalienging the relief is not an

aggrieved minority employee but a white non-union worker,

James V. Larkin, who, having been permitted to intervene,

’ seeks to set aside the agreement as unlawful on the ground

that it affords benefits to minority workers' not given to

similarly situated white workers, retarding the advance-

ment rate and diluting the work opportunities of these

white workers.

Peeause he had heard a four-week trial in this ease ane

because of the public interest involved ina ithe VII action,

Judge Pierce considered in a thorough opinion the merits

of the plaintiffs’ action and the conformity of the setile-

ment to the goals of Title VIT and the rights of the parties,

See 384 I". Supp. 585 (S.D.NLY. 1974). We find no abuse

of discretion in Judge Pierce's approval of the settlement

and therefore aflirm.

This appeal arises out of two consolidated actions, One

was brought by the Kqual Employment Opportunity Com-

mission against the Union, the New York Times (“Times”

herein), the New York Daily News (“News” herein), the

New York Post (“Post” herein), and about 50 other news

distributors and publishers within the Union's jurisdiction,

The other is a private class action on belalf of minority

persons. Both complaints allege historic discrimination by

the Union against minorities, and charge that the present

structure of the Union’s collective bargaining agreement

and the manner of its administration by the Union per-

petuate the effects of past discrimination in a manner that

violates Title VII. The defendant publishers are alleved

to have acquiesced in these practices. Appellant Larkin

is one of approximately 100 white non union « troup TI"

workers at the News who were given permission fo inter.

1 vene under F.R.C.P. 24(a)(2) beenuse of their potential

interest in the relief to be fashioned.

1 The term “minority” as used herein means persons who ure Black,

Spanish-surnamed, Oriental and Ameriean Indian. “White” or “nop.

minority” refers to all other persone.

NN EK _§$

et nn -

The Union is the exclusive bargaining agent for the col-

lective bargaining unit which embraces all workers in the

delivery departments of newspaper publishers and of pub-

lications distributors in the general vicinity of New York

City, ineluding, in addition to the city proper, all of Long

Inland, northeastern New Jersey counties, and north to

airfield County, Connecticut. Of 4,200 current Union mem-

bers, 99% are white.

Due to variations in the size and quantity of publications

to be distributed, the needs of distributors for delivery

personnel vary from day to day and from shift to shift.

lor that reason the work force in the industry is separated

by the Union agreenient into (1) those holding permanently

assigned jobs (“Regular Situations”) and (2) those called

“shapers,” who show up each day to do whatever extra

work may be required on that day. The work performed

by persous in both categories is unskilled. Shapers are

divided into four classifications, Groups I-1V. The order

in which shapers are chosen for extra work on each shift

is determined according to Group number and by shop

seniority of members within each group.

Group I, the highest priority group, consists solely of

persons who once held Regular Situations in the industry.

Kach employer maintains his own Group I list, which is

comprised of persons who have been laid off from Regular

Situations at other employers, or who have voluntarily

trausferred from Regular Situations or from Classifications

as Group I shapers at’ another employer. When a Regular

Situation becomes available, the highest seniority person

on the employer’s Group I list is offered the position,

Group II is an aggregate list compiled from the entire

industry and consists of all Regular Situation holders and

Group T members. Taking priority after Group I is ex-

hausted, it enables regulars and Group | members to obtain

extra daily work at employers other than their own.

Major employers maintain a Group IIL list, which eon-

sists of persons who have never held a Regular Situation

in the industry. Members of Group IIT are given daily

work priority after Group II. To maintain Group TI

status, workers are required to report for a certain number

of “shapes” each week. Prior to the settlement agreement

under review Group III members were theoretically en-

titled by shop seniority to any Regular Situation that be-

came available if the Group I list had been exhausted.

Group IV shapers are last in priority and are required

to appear for a shape far less frequently than Group TIT

shapers.

Although the Union represents all delivery workers,

membership is limited to Regular Situation holders and

Group I members. Historically the Union has excluded

minorities and has limited its membership to the first

born son of a member. Aside from the chilling effect

which restriction of Union membership to whites might

by itself have upon minority persons seeking delivery

work, there is evidence that minorities were also discour-

aged from gaining entrance to Group III lists, even

though Group ITI shapers are not members of the Union.

Of 2,855 persons now actively seeking work in the indus-

try (which includes 2,460 Regular Situation holders, 123

Group [ shapers, and 278 Group TIT shapers) only 79,

or 2.49%, are minority persons.

While the current Group Structure, which was adopted

in 1952, appears on its face to open Union membership te

anyone in the labor force, Union membership, because of

lax administration of the contract provisions, has largely

remained attainable only by the family and friends of a

Union member. Due to artificial inflation of the Group I

lists, no person has in practice made the theoretically

possible jump from Group III to a Regular Situation since

1963. The evidence suggests that this expansion of the

Group I lists has been accomplished primarily by use of

voluntary transfers of Group I or Regular Situation hold-

ers from the lists of smaller distributors to the Group I

lists of more desirable, larger employers, and ultimately

to Regular Situations there. Other devices include ficti-

tious lay offs, enabling the Union member to transfer to

Group I of a different employer, and outright false asser-

tions of Group I status by persons who have obtained

Union membership cards, the validity of which have not

been challeneged by employers.

On the basis of this evidence, which was largely un-

controverted, Judge Pierce, in approving the settlement,

had no difficulty conelnding that the Union’s practices

amounted to a violation of Title VII, since they served

to “ ‘lock-in’ minorities at the non-union level of entry in

the industry, and thereby to perpetuate the impact of past

discrimination. . . .,” conclusions that appear fully justi-

fied by the record and are not challenged here. See Griqas

v. Duke Power Co., 401 U.S. 424 (1971); Rios v. Enter-

prise Assn. Steamfitters, Local 638, supra; United States

v. Wood, Wire & Lathers, Intl. Union, Local No. 46. 471

F.2d 408 (2d Cir.), cert. denied, 412 TLS. 939 (1975) ;

United States v. Bethlehem Steel Corp., supra.

The setilement axreement reached by the parties pro-

vides that the Union shall be permanently enjoined from

discriminatory practices in violation of Title VIT. It es-

tablishes an administrator to insure compliance with the

terms of the agreement, and provides for the elimination

of past abuses, primarily by abolishing voluntary trans-

fers by Union members. It establishes a minority hiring

goal of 25%, specifies a procedure for attaining that goal,

and provides for back pay to minority workers. Most of

these provisions are not challenged by Larkin.

The 25% goal is to be reached throughout most of the in

dustry by requiring that all incumbent minority persons

on the Group UT list of each employer as of the date of

entry of the order are to be moved immediately to Group

I. All new persons hired in the industry and classified

in Group ITT will be employed according to a ratio of

three (3) minority persons to two (2) non-minority per-

sous. As each Regular Situation is filled by «» Group |]

member, one Group III member shall be moved to Group

I and offered Union membership. This is to be done on

an alternating one-for-one basis between minority and

non-minority workers. Each two vacancies in Group I

will thus be filled by the minority worker in Group III

having highest seniority and the highest seniority non-

minority worker. The agreement also modifies these pro-

visions insofar as they apply to the smaller employers and

to the Daily News, taking into account speciaj conditions

affecting each. At the News, an equal number of non-

minority persons from Group III will follow those mi-

nority workers who move onto the Group T list on the

date of the order; also, for a certain time, one minority

and one non-minority persons will replace each person

on the Group I list promoted to a Regular Situation.

Larkin’s objection to the settlement is premised on the

observation that Group III white workers have not bene.

fited from the Union discrimination which is the object

of this lawsuit. On the contrary, as Judge Pierce recog-

nized, they too have suffered from Union policies which

barred Group TII workers from access to Group T and

permanent jobs. Upon this premise, Larkin first broa:lly

asserts that because the Group III whites were also dis-

criminated against, they are entitled to the same relicf

as the minority workers. More specifically, he objects

to those aspects of the affirmative action plan which, he

asserts, allow minorities to “leap-frog” non-minorities with

greater seniority. Ile also attacks the 25% goal.*

Discussion

The scope of our review of a district court's approval

of a settlement agreement is limited. “[T]he appellate

court should intervene only on a clear showing that the

trial judge was gnilty of an abuse of discretion,” State

of West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079

(2d Cir.), cert. denied, 404 U.S. 871 (1971). While the

publie objectives embodied in Title VI] warrant a care-

ful review of the provisions of the settlement in light

of those policies, see Rios vy. Enterprise Assn. Stceamfil-

fers, Local 638, SOL F.2d 622, 628 n4 (2d Cir. 1974),

the clear policy in favor of encouraging settlements must

also be taken into account, see Mlorida Trailer & Kquip-

ment Co, v, Deal, 284 F.2d 567, 571 (Sth Cir. 1960), par

ticularly in an area where voluntary compliance by the

parties over an extended period will contribute signifi-

cantly toward ultimate achievement of statutory goals. Nor

should we substitute our ideas of fairness for those of

the district judge in the absence of evidence that he acted

arbitrarily or failed to satisfy himself that the settle-

ment agreement was equitable to all persons concerned

and in the public interest, ef. United States v. Wood, Wire

Metal Lathers Intl. Union, Local No. 46, 471 F.2d 408,

416 (2d Cir.), cert. denied, 412 U.S. 939 (1973), especially

in a case like the present one where the settlement was

approved after a four-week trial of the merits, and two

hearings with respect to the fairness and adequacy of

2 Intervenor in addition suggesta procedural infirmities in the court's

approval of a plan to which he objected. It is difficult to think of a

way in which appellant was denied procedural] rights, however, since

Judge Pierce afforded him a hearing and thoroughly considered his

objecti

10a

the proposed agreement. Furthermore, unlike appeals from

decrees of the district court entered after trial on the

basis of findings and conclusions where we may modify

the terms of the decree, see, e.g., United States v. Bethle-

hem Steel Corp., supra, we are powerless to rewrite the

provisions of the settlement agreement. Our only alter-

native, if we concluded that Judge Pierce had abused his

discretion, would be to set aside his approval of the set-

tlement and remand the case for completion of the trial.

United States v. Automobile Manufacturers Assn., 307 F.

Supp. 617 (C.D. Calif.), affd. per curiam sub nom. City

of New York v. United States, 397 U.S. 248 (1970).

Although “Larkin objects to the use of a 25% goal and

to Judge Pierce’s conclusion that the minority make-up

of the relevant part of the labor force is 30%, he does

not suggest any alternative or more reliable figures as

to the labor force; he merely calls the court’s figures “con-

trived.” In contrast to his failure to provide any eviden-

tiary support for his objection, the record reveals that, in

concluding that the 25% goal was appropriate, Judge

Pierce relied on population figures in the Department of

Commerce’s publications General Population Characteris-

tics—1970 Census of Population and General Social and

Economic Characteristics, 1970 Census of Population, and

took into account the relevent geographic area and demo-

graphic characteristics of those making up the news de-

livery work force. Thus his conclusion, which followed

closely the guidelines laid down in Rios v. Enterprise Assn.

Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974), was

adequately based.’

3 Intervenor also suggests that his rights under 42 U.S.C. §2000e-2(j)

have been violated. That section provides in pertinent part:

“Nothing contained in this subchapter shal] be interpreted to re-

quire any employer, employment agency, labor organization, or joint

labor-management committee subject to this subchapter to grant

preferential treatment to any individual or to any group because

lla

Larkin’s argument that he is entitled to the same bene-

fits as the minority workers must also be rejected. This

cause arises under a statute which by its terms is limited

to protection against employment discrimination based on

an individual’s “race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). Larkin does not allege

discrimination against him based on any of these factors.

He argues only that the industry’s past practices discrim-

inated against all Group III members, minority and non-

minority, and that while the settlement agreement remedies

the discrimination against minority persons it fails to

afford any relief for the harm caused to non-minority per-

sons. Worse still, he asserts, the relief to minority persons

is at the expense of the white Group ITI workers.

At first glance this argument has much appeal. As the

district court recognized, Group III workers were the vic-

tims of some practices that were harmful to all Group II!

members, regardless of race. Minority members, on the

other hand, were the targets of racial discrimination on

the part of the virtually all-white Union. In this Title VIT

action we are limited to consideration of the fairness of re-

of race, the color, religion, or national origin of such individual

or group on account of an imbalance which may exist with respect

to the total number or percentage of persons of any race, color,

religion, sex, or national origin employed by any employer, referred

or classified for employment by any employment ageney or labor

organization, admitted to membership or classified by any labor

organization, or admitted to, or employed in, any apprenticeship

or other training program, in comparison with the total number or

percentage of persons of such race, color, religion, sex, or national

origin in any community, State, seetion, or other srea, or in the

available work foree in any community, State, section, or other

area.”

It is well settled in this Circuit that this section does not preclude the

use of racial hiring quotas to remedy the effects of past discrimination.

Rios v. Enterprise Assn. Steamfitters, Local 638, supra, 501 F.2d aa

630-31; Vulean Society v. Civil Serr. Comm., 490 F.2d 387 (2d Cir.

1973); United States v. Wood, Wire & Metal Lathers, supra.

l2a

lief directed only to the latter. The objective of Title VII

is to “attack the scourge of racial discrimination” which

has “eaused manifold economic injuries, including dras-

tically higher rates of unemployment and privation among

racial minority groups.” United States v. Wood, Wire &

Metal Lathers lutl. Union, 341 F. Supp. 694, 699 (S.D.NLY.

1972), affd., 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S.

939 (1973). It creates no rights or benefits in favor of

non-minority persons or groups. Any past denial of pro-

motion rights to Larkin is clearly not remediable under

Title VII. Indeed, Group TI] white workers have unsue-

cessfully sought relief for themselves under other statutes,

It is thus apparent that Larkin has no right to any of the

affirmative relief afforded to the minority groups, inelud-

ing the back pay provisions.‘ Our review, therefore, must

be limited to the question of whether the settlement agree-

ment, in remedying minority discrimination, treats the in-

tervenors fairly. See State of West Virginia yv. Chas.

Pfizer & Co., 440 F.2d 1079 (2d Cir.), cert. denied, 404 U.S.

871 (1971).

The affirmative-action provisions of the agreement under

review affect Group III workers in the industry, and par-

ticularly Daily News workers, in two ways. First, the pro-

visions for immediate transfer of ineumbent minorities at

major employers to Group T and for the filling of Group I

openings by alternately promoting one minority worker

and then one non-minority worker from Group HT to Group

I mean that a white Group TIT worker will aulvance to

Group I less rapidly than would be possible if straight shop

4 United States v. Roadway Express, Ino., 457 F.2d 854 (6th Cir. 1972),

relied on by the intervenor, does not suggest otherwise. There the

court was faced with a settlement agreement in which the union had

agreed to give some benefits to white as well as minority non-union

workers. When white union members objected, the court refused to

invalidate the agreement. The case does not require that a settlement

give equivalent benefits to minority and non-minority workers.

l3a

seniority were the basis of promotion. Indeed, a time will

shortly come when minority persons not employed in the

industry at all on the date when the agreement went inte

effect may achieve Group 1 status before many Group TH

whites will seniority. Although this feature of the agree

ment is vot as beneficial to Larkin as would be promotion

on the basis of straight seniority regardless of race, the

agreement nevertheless benefits Larkin. Lt presents him

with an opportunity he never had before: the chance to

move up to Group I, and eventually to a Regular Situation.

Before, there was in effect no seniority system with respect

to promotion into Group I. Thus any plan for advancement

of Group III members to Group I could only be beneficial

to Larkin. Approval of the plan can hardly be labelled an

abuse of discretion because it does not advance Larkin as

rapidly as minority persons with less seniority. A reason-

able preference in favor of minority persons in order to

remedy past discriminatory injustices is permissible. See

Rios v. Enterprise Assn. Steamfitters, 501 F.2d 622 (2d

Cir. 1974).

Second, the agreement affects daily work priorities. Its

provision that all present incumbent Group IIT minority

workers shall move at once into Group I immediaiely drops

Group III whites in daily priority by whatever number of

minority workers of lesser seniority are added to the higher

priority Group |. Furthermore, the one-to-one ratio for

promotion thereafter of workers from Group TEL into Group

I as openings in Group T become available means that an

average non-minority Group IIL worker will not advance

as quickly up the daily priority ladder within Group Ii

as he would under straight raceless seniority. This results

from the fact that, whenever two openings in Group T be-

come available, one will be filled by a white worker senior to

him and one by a minority worker of lesser seniority. Thus

he moves up only one step for every two Group T openings.

———E

l4a

The situation is «ven less favorable at the Daily News

where for an initial period, as each Group | opening

(rather than two openings) becomes available, the em-

ployer will add one minority and one non-minority em-

ployee to Group |. The effect of this expansion of Group |

to take in minority members of lesser seniority is likely

to slow down the rate of advancement of non-minority

persons within Group IIT more than under « one-for-one

arrangement limited to an equal number of vacancies in

Group I. Of course, in all cases once a Group IIT white

employee reaches Group I, he will move up in daily work

priority (and priority for a Regular Situation) on the

same basis as existed before the agreement.

Appellant characterizes these effects as “leapfrogging”

or “bumping” of ineumbent white workers, see [/nited

States v. Bethichem Steel Corporation, supra, 446 F.2d

at 659, and argues that we have rejected other affirmative

action programs having such an effect. It is true that

we have suggested that court ordered relief involving mi-

nority employment goals be confined to entry level posi-

tions. Thus in Bridgeport Guardians, Inc. v. Bridgeport

Civil Serv. Comm., 482 F.2d 1333 (2d Cir. 1973), we up-

held the imposition of racial hiring quotas at the patrol-

man’s level, the entry level of the police force, but rejected

the use of such quotas for promotion to higher ranks. In

United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d

Cir. 1971), we simply noted that minority transferees

under the court’s order would be transferred into job

vacancies created in the normal course of business and

that no incumbent employee would be “bumped” out of

his job. Id. at 664. In neither case did we specifically

pass on the propriety or fairness of “bumping” an in-

cumbent.

These cases do not support rejection of the agreement

that has been reached in this case. The Bridgeport

Cee ee

15a

Guardians decision was based upon the failure to estab-

lish any discrimination within the promotional system,

the proof being limited to discrimination at the point of

entry into the police force, i.e., in qualifying for the rank

of patrolman. See 482 F.2d at 1338-41. In the present

case, on the other hand, there has been racial discrimina-

tion throughout the industry. Furthermore, even assum-

ing the desirability of confining use of quotas to entry

level positions, the effective point of entry into employ-

ment in the industry has been at Group I, not Group ITI.

* Judge Dierce found that “Group III workers do not have

full-time employment, nor do many of them have great

expectations or intentions of working full-time while they

shape from the Group III list.” It is true, as appellant

points out, that both Group I and Group III workers

must shape regularly and neither has assurance of regu-

lar work. But the fact remains that traditionally a worker

who reached Group I was on the road to a Regular Situa-

tion, whereas one who was in Group IIT would not progress

above that level.

Even assuming that “bumping” of incumbents from their

present jobs is inadvisable in an affirmative hiring scheme,

it is inaccurate to characterize Group II] workers as having

been “bumped.”” They have retained their positions; they

have not been delisted in favor of minorities. Moreover,

we are not dealing with workers who have been steadily

employed under conditions where seniority is synonymous

with an assured job but with a fluctuating group of shapers

competing for a limited amount of work that varies widely

from day to day. Although some may have declined some-

what in their daily work priority, as Judge Pierce pointed

out, the actual effect of this decline is difficult to gauge

since the availability of work at a given shape “depends

on the stability of-the total number of jobs available from

shift to shift and whether or not the new person chooses

Re) Ee RED Oe ~ ED

mee ete ne © a

l6a

to shape the same shift. In other words, assessing a

shaper’s expectation is « highly speculative exercise.” In

addition, the number of minority workers promoted to

Group | on the date the agreement became effective, which

solely accounts for any decline in daily work priority, is

quite small. Only 13 of 178 Group III members at the

News were minority persons, 6 of 34 at the Times.

The impact of any dilution of daily work opportunities

resulting from the settlement agreement is, furthermore,

softened by the fact that all current Group III members

will be elevated to Group | within a fairly short time.

The News estimates that within a month after implementa-

tion of the plan all non-minority workers above 47 on the

Group III list will be elevated to Group | and that theve-

after about 27 non-minority persons per year will be pro-

moted from Group III to Group I. This suggests that any

decline in daily work priority attributable to the promo

tion of presently incumbent minority workers to Group |

will be offset for most workers by a rise in priority within

Group III resulting from the expeditious upward move-

ment of Group III] whites, also made possible by the

program. Finally, should some Group III workers have

difficulty finding work, the agreement empowers the ad-

ministrator to assure that any existing work opportunities

in the industry be made available to those unable to get at

least 45 shifts of work in a calendar quarter.

Aside from the foregoing, there was evidence from which

it could be inferred that, if there had been no racial dis

crimination in the industry, more minority persons would

have been able to enter Group IIL and to gain seniority

over many whites within Group III. Thus, although Larkin

has been the victim of a system which excluded Group ITI

members, minority and white, from promotion to Group I,

he may well have been the modest beneficiary, vis-a-vis the

17a

' minority work force, of a policy that discouraged minority

persons from entering Group ILI. ‘io the extent that the

settlement may cause a temporary decline in Group III

white worker’s rate of promotion and daily work priority,

it merely compensates for past discrimination by allowing

a reasonable number of minority persons to be promoted

to the “rightful place” on the seniority ladder, which they

would have occupied but for industry-wide racial diserimi-

nation.

In any event it must be recognized that rights of the

kind Group LII workers here assert “are not indefeasibly

vested rights but mere expectations derived from a bar-

gaining agreement and subject to modification.” United

States v. Bethlehem Steel Corp., supra, 446 F.2d at 663.

Here appellant has applauded those modifications of the

collective bargaining agreement that are favorable to him,

such as the removal of the provision limiting Group I to

former Regular Situation holders. Under the peculiar cir-

cumstances that have governed employment in this in-

dustry it does not strike us as unfair to impose certain

modifications on the manner in which promotions or qual-

ifications for daily work are determined. Job seniority

need not be the only standard for determining promotions.

Orders requiring that job vacancies be filled by means

other than normal routes of internal promotion have been

upheld as necessary to remedy past discrimination, Gates

v. Georgia-Pacific Corp., 492 F.2d 292 (9th Cir. 1974); cf.

Allen v. City of Mobile, 331 F. Supp. 1134, 1142-43 (S.D.

Ala. 1971), affd. per curiam, 466 F.2d 122 (5th Cir. 1972),

' cert. denied, 412 U.S. 909 (1973) ($1983 action), and, in-

deed, affirmative relief displacing whites with greater se-

niority has been granted, see United States v. Sheet Metals

Workers International Assn., Local 36, 416 F.2d 123, 133-

34 (8th Cir. 1969).

a ee ee

18a

The provisions of the settlement agreement affecting

Larkin thus cannot be characterized as illegal or untair.

Whatever disadvantages he may temporarily suffer in

terms of daily work priority are offset by the substantial

improvement in his long range prospects arising from the

opportunity that has been created, for the first time, for

him to reach Group I and, eventually, Regular Situation

status. Judge Pierce therefore did not abuse his discre-

tion in finding the settlement agreement to be fair to

Larkin. The order is affirmed.

+O.

FeinBera, Circwt Judge (concurring) :

I concur in the result.

This case involves the difficult issue whether a hiring

quota based upon race can be legally imposed under the

Civil Rights Act of 1964 or the United States Constitution.

In the past few years, this court has twice held that such

quotas may be utilized to correct past discriminatory prac-

tices in public employment. Vulcan Society v. Civil Service

Comm’n, 490 F.2d 387 (2d Cir. 1973) (firemen) ; Bridgeport

Guardians, Inc. v. Civil Service Comm’n, 482 F.2d 1333 (2d

Cir. 1973), petition for cert. filed, 43 U.S.L.W. 3282 (U.S.

Nov. 11, 1974) (policemen). We have also permitted such

remedial quotas in two cases in which the employment was

in the private sector of the economy. Rios v. Enterprise

Ass’n Steamfitters, Local 638, 501. F.2d 622 (2d Cir. 1974):

United States v. Wood, Wire & Metal Lathers, Local 46,

471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939 (1973).

Nevertheless, I believe a strong note of caution is called

for and should be stated. In Rios, Judge Hays wrote a

powerful dissent, arguing that section 703(j) of the Civil

Rights Act, 42 U.S.C. 4 2000e-2(j), bars the use of court-

one ue hh

=_~

19a

ordered racial hiring quotas.' He distinguished our deci-

sions in Vulcan Society and Bridgeport Guardians on vari-

ous grounds, the most persuasive of which was that “there

was no other means of affording relief that did not interfere

with essential public services” provided by firemen and

policemen. 501 F.2d at 638. In both cases, hiring had to

continue while new, non-discriminatory employment lists

were drawn up. Judge Hays also distinguished Wood, Wire

€ Metal Lathers because the union there, in accepting a

settlement, waived the benefit of section 703(j). A close

analysis of the cases in our circuit thus suggests that Rios

is the only decision squarely holding that a court may

impose a racial quota in a private employment case in the

absence of a settlement.

Emphasizing the status of the authority in this circuit

on the issue is worthwhile because, as we have earlier

pointed out, quotas should be approached “somewhat gin-

gerly.” Bridgeport Guardians, supra, 482 F.2d at 1340.

The reason for this is clear. A racial quota is inherently

obnoxious, no matter what the beneficent purpose. Such a

quota is demeaning and divisive. At best it is a lesser evil.

It is not to be encouraged.

1 Section 703(j) provides:

Nothing contained in this subchapter shall be interpreted to require

any employer, employment agency, labor organization, or joint

labor-management committee subject to this subchapter to grant

preferential treatment to any individual or to any group because

of the race, color, religion, sex, or national origin of such individual

or group on account of an imbalance which may exist with respect

to the total number or percentage of persons of any race, color,

religion, sex, or national origin employed by any employer, referred

or classified for employment by any employment agency or labor

organization, admitted to membership or classified by any labor

organization, or admitted to, or employed in, any apprenticeship

or other training program, in comparison with the total number or

percentage of persons of such race, color, religion, sex, or national

origin in any community, State, section, or other area, or in the

available work force in any community, State, section, or other area.

20a

However, this case is not an appropriate one for re-ex-

amination of the subject. The past discrimination against

minority workers here was made quite clear after a four-

week trial to the court. Minorities are conspicuously absent

from the ranks of Group I and Regular Situation holders

even though there are no special skills required to fill the

jobs involved. The intervenor asks us to upset a settlement

agreement that provides benefits for whites as weil as for

minorities. The quota the principal parties have agreed

upon is intended to be of short duration. 384 F. Supp. at

590-91. And finally, the intervenor does not direct his mair

attack against the idea of a hiring quota; he objects to its

size and the effect on him and others already in the industry

in Group III status.

Under all of these circumstances, I concur in the result.

oa a

: ~

2la

NITED STATS DISTRICT COUF «'

SOUTHERN DISTRICT OF NEW YC :K

ee ee oF oe ee ee ee ieee eee ek ee ” os

JOHN R,. PATTERSON, et al.,

Plaintiffs,

- Ve

NEWSPAPER AND MAIL DELIVERERS' UNION

OF NOW YORK AND VICINITY, et al.,

Defendants.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

“

"al - Ve

NEWSPAPER AND MAIL DELIVERERS' UNION

OF NEW YORK AND VICINITY, et al.,

Defendants.

JAMES LARKIi!, DOMINICK VENTRE, FRANK

CHILLEMI, GéRALD KATZ, et al.,

Intervenors.

eee eh nn he a ee eo2n2ece-X

73 Civ. 3058

73 Civ. 4278

rt ti tee sme NS Ak Ce Om

1 8 ee me ee a ee

22a

MEMORANDUM OP.:!ION AND ORDFR

This mezorandum approves a settlement reached by

all of the parties after a four-week ¢rial on the merits of

two consolidated actions charging employment discrimination

in the newspaper and publications delivery industry in the

New York City area. The provisions of the agreement are

intended to achieve a 25% minority~/ employment: goal in the

industry within five years. At the present time, minority

eupllesuans in the industry is less than 2%; the comparable

percentage of minorities in the relevant labor force in the

New York City area is approximately 30%. The agreement also

provides for suvervision of hiring practices and employment

opportunities in the industry to the benefit of both mincrity

and non-minority workers.

One of the actions has been brought by the Equal

Employment Opportunity Commission (EEOC) and names as defen-

dants the Newspaper and Mail Deliverers Union of New York and

Vicinity (the Union), the New York Times (Times), the New York

Daily News (News), the New York Post (Post) and some fifty

other publishers and news distributors within the Union's

jurisdiction. The other action is a private class action

on behalf of minority persons. Both actions charge that che

Union, with the acquiescence of the publishers and distributors,

23a

has historically discrimin ted against minorities; and that

fhe present structure of the collective henbetates agreement,

combined with nepotism and cronyism and other abuses i

employment and referral practices, have perpetuated the effects

of the past discrimination, in violation of 42 U.S.C. §§2000e

et seq. (Title VII).. Each lawsuit sought an affirmative action

program designed to achieve for minorities the Status they

would have had in this industry but for the alleged discrimi-

natory practices,

| Both actions were filed in 1973, After months of

negotiation, the parties reached a settloment agreement in

early 1974, but it was rejected by vote of the Union's member -

ship. Following another abortive attempt to obtain ratifica-

tion from the membership, the two actions were consolidated

with each other for a hearing on motions for preliminary relief

before this Court. The hearing commenced May 14, 1974. At

its conclusion on June 12, 1974, the Court ordered the hearirg

consolidated with trial on the merits, pursuant to Fed.R.Civ.P.

65(a)(2), giving the parties the opportunity to present

further evidentiary submissions or testimony. No further

evidence was presented. Instead, the parties having once

again entered into settlement discussions, brought before

this Court for approval a Settlement Agreement dated June 27,

«dil wesnanasenman

24a

1974, entered into by all the plaintiffs and all the defen-

e dants, and ratified by the Union membership.

A hearing on the fairness, adequacy and reasonableness

of the Settlement with respect to the plaintiffs’ class was

held on August 27, 1974, after due notice to that class. On

the same date the Court also held a separate hearing on the

legality of the relief provided in the Settlement and its

impact on a group of non-minority workers who had, prior to

trial, been permitted to intervene in the consolidated actions

for the purpose of challenging any affirmative relief which

might have affected their interests.

The Standards

As a general proposition, when a settlement agree-

ment to pbesemnet to the Court for approval, the Court's

role is limited to the exercise of its equitable powers.

The Court is not to substitute its judgment for that of the

parties. See, e.g., Glicken v. Bradford, 35 F.R.D. 144, 151

(S.D.N.Y. 1964); United States v. Carter Products, Inc., 211

F.Supp. 144, 148 (S.D.N.Y. 1962). Instead, its role is to

assure that the settlement is fair to the class and the parties

and represents a reasonable resolution of the dispute. See,

e.g.,; State of West Virginia v. Chas, Pfizer & Co., 314 F.Supy

410 (S.D.N.¥. 1970), aff'd, 440 F.2d 1079 (2d Cir.), cert.

} 25a

denied, 404 U.S. 871 (1971.. Ordinarily, the Court is not

expected to examine conclusively into the underlyiag facts —

br iegal merits of the action. See, e.g., Newman v. Stein,

464 F.2d 689, 691-93 (2d Cir.), cert. denied, 409 U.S. 1039

(1972); United States v. Carter Products, Inc., supra, 211 F.

Supp. at 148.

But, this is not an ordinary case. It must be

recognized that efforts to correct discrimination affect the

strongest public sensitivities, The interests involved are

far broader than those of the particular parties in a particu-

lar lawsuit. Therefore, the parties cannot be permitted to

settle for less than, or for more than, the facts of the case

and public policy expressed in Title VII mandates. ‘Thus,

alchough tre Court is of the opinion that even at this late

stage public policy is served by an agreement rather than an

: adjudication, a more searching discussion of the merits is

warranted, Im fact, the state of the law in this Circuit may

require cectain findings cf fact to support affirmative action

in a Title VII case even when it is resolved by settlement.

See, Rios v. Enterprise Association Steamfitters Local 638,

#73-2110, Slip Op. at 4379 n.4 (2d Cir., June 24, 1974),

explaining United States v. Wood, Wire and Metal Lathers

Internaticnal Union, 471 F.2d 408 (2d Cir. 1973), cert. denied,

26a

412 U.S. 959 (1973). Furtuer, a more conclusive examination

of the merits is necessary in this case because the affirma-

tive action program and the minority goal in principle, and

the 25% minority goal, are all vigorously disputed by the

intervenors,

Inasmuch as this Court has heard a four-week

completed trial in these actions, it is in a unique position

to find facts and to set forth eunstuntens of law. Therefore,

what follows shall constitute this Court's findings and con-

clusions to the extent that they form the necessary legal

support for the affirmative action proposed.

The Background ‘

Most of the facts are not contested. The Union

is the exciusive bargaining agent for a collective bargaining

unit encompassing the work performed in the delivery deparr-

ments of newspaper and public. ion distributors in the New

York area, Its geographic jur’sdiction has been variously

stated, but it is fair to define it by where the employers

in the industry are located: in the metropolitan area of |

New York Cicy (within a fifty mile radius of Columbus Circle),

the New York counties of Nassau and Suffolk, the New Jersey

counties of Bergen, Essex, Hudson, Middlesex, Monmouth,

Passaic and Union, and the Connecticut county of Fairfield.

27a

Tie mature of th: delivery industry is such that

the employes' needs for delivery department employees vary

from day to day, and indeed, shift to shift, depending upon

the size and quantity of the publication(s) being distributed.

Thus, each employer by the terms of the Union contract, main-

tains a regular work force (Regular Situation holders) for

its minimum needs, and depends upon daily shapers

to supplement the force, By the terms of the contract,

at the major employers the shapers are categorized into groups

with descending daily hiring priorities. The Group I list of

shapers is restricted, by contract, to persons who have at

one time held a Regular Situation in the industry. _ They have

first shaping priority at every shift, in order of their shop

seniority. After the Group I is exhausted at any given shift,

the contract provides that the next hiring priority shall, go

to Group II members. Group II consists of all persons in

Group I and all persons holding Regular Situations in the

industry. Once all of the Group II members who have appearec

for the shape are put to work, the contract provides that the

remaining open jobs, if any, will go to Group III members who

have appeared for the shape, in order of their shop tenure.

‘The shaping system is considerably less structured

for the smailer publications and distributors, and, in fact

28a

at this time, only the Ne s aad the Times maintain Group

—_———..__

III lists of any significant size.

4ll of the jobs in the industry are within the

Union's jurisdiction, whether performed by Regular Situation

holders ox by any of the members of the various groups, or

any one who shapes at all. The jobs are essentially the

same, regardless of the status of the worker who fills then,

and are all relatively unskilled. Most workers drive ==u:cks

or do floor work. However , because the contract provides

that a Regular Situation is a prerequisite to Unior membership,

only Regular Situation holders and members of Crowe I and

II are Union members. ”

In theory at least, in addition to structuring the

daily hiring priorities, the Group system also wpresents

the priority list for filling Regular Situations as they may

become vacant in the newspapers shops.

The Union was founded in 1901, leas before the

present Group structured contract was in existence. There

is no evidence to indicate that at that time it had any

minority sembers (as that term is defined today). Histori-

cally it virtually limited membership to the first born legiti-

mate son of a member. The industry had a closed shop and

Union membecs were consistently hired before non-Union mea

29a

at all indusiry shapes. In i952, the industry adonted the

contract which included the rudiments of the Group structure

described ae.

It is abundantly clear that the nepotistic policy

ef the Union prior to 1952 resulted in discrimination against

winmorities, See, e.g., Rios v. Enterprisc Association Steaa-

Litters Local 638, supra, at 4377-78; United States v. Wood,

Wire and Metal Lathers International Union, 328 F.Supp.429,

432 (S.D.N.Y. 1971). The fact that the Union's intent was

not to discriminate against minorities, but to prefer Union

members and their sons, does not change the basic conclusicn.

The effect cf such policies, deliberate or not, was to fore-

close minorities from employment in the industry. It is the

discriminatory effect of practices and policies, not the

underlying intent, which is relevant in a Title VII action.

The Group structure, instituted in 1952, appears

on its face to discard these discriminatory policies and

to open up regular employment opportunities and Union member-

ship to the entire labor force. But, there is uncontroverted

evidence that certain relevant provisions of the contract have

been administered haphazardly, and that the Group structure

has been circumvented by friends end family of Union member:.

In practice, the fact is that po non-Union Group 111 shaper in

30a

the industry has achieved a Regular Situation, and thus

Union membership, by moving up the Group system since 1963.

Testifying at trial, the Union president credibly

asserted that the Union was not motivated by any intent

to discrimirate against minorities, but went on to say that,

"I would be the first to admit that we favor and we are

partial to cur members and I'm not ashamed of that.” This

attitude is, of course, admirable under most circumstances,

There would be nothing unlawful about its effect under Title

VII providing that minorities, historically, had been provided

free and equal access to Union membership. But the facts

undicate that such is not the case here. And even withouc

evidence of abuse of the Group system, the statistics alone

seveal the present situation.

There are presently some 4,200 members of the

Cnion, including some 900 pensioners. More than 99% of

-hese Union inembers are White (non-minority).

There are, at present, a total of 2,855 persons

actively working in the industry-~<this includes Regular

Situation holders (2,460), Group I members (123), and

2/ Of the total in these categories,

“roup III members (272).

70 persons-~-2%--are Bleck, Spanish-surnamed, Oriental or

American Indian. Of the 70 minority persons, 28 are scattered

ee eer a — a —

-—?s

3la

among the s.i2ller publishci.:; and distributors; 24 work ac

the News wh:re the force is approximately 900; 17 work at

the Times wiiere the force is approximately 400; and 1 works

at the Post where the force is approximately 318.

Ghose Clauses demonstrate that 20 years after the

industry instituted a neutral Group structure of employment

and hiring priorities, the participation of minorities in

this industry is still grossly disportionate to the percentage

of minority workers in the relevant labor force, which the

EEOC suggests is aggventnately 30%.2/ Even allowing for

the fact that the industry has scen many newspapers disappear

in these last two decades, with a concomitant loss gf jobs,

the clear inference from these statistics is that abuses

of the Grou» structure and indeed the Grou structure itself,

is serving--however unintenticnally--to "lock-in" minorities

at the non-Union entry level of the industry, and to thereby

perpetuate he Seneet of past discrimination on the minorities

with whom these Title VII actions are concerned. It is this

present impact of past practices which justifies the affirmative,

corrective relief embodied in the Settlement Agreement. Sec,

Griggs v. Duke Power Co., 401 U.S. 424 (1971); Rios v. Enter-

prise Association Steamfitters Local 638, supra; United States

v. Wood, Wire and Lathers International Union, supra; United

;

32a

States v. Bethlehem Stecl (urp., 446 F.2d 652 (2d Cir. 1971).

The Terms of the Avreement

As with many resolutions of employment discrimina-

tion cases, the Settlement Agreement in these actions contains

yeneral provisions permanently enjoining the defendants from

; &scriminatory practices in violation of Title VII. And, like

the judgment in Rios (71 Civ. 847, S.D.N.Y., June 24, 1973)

and che agreement in Wood, Wire (68 Civ. 2116, S.D.N.Y.,

Feb. 25, 1970), this Settlement Agreement sets forth a

minority employment goal. Ia this case, it is for 25%

minority employment in the industry within five years.2/

But, unlike Rios and Wood, Wire, this Settlement Agreement

does not merely commit the parties to the future development

of a plan to achieve that goal. Instead, it sets forth a pl.

with great specificity, including variations on the general

there to account for varying circumstances between different

employers. Such detail incicates that the plan is the result

of hard, serious and good taith negotiations, and that che

different pressures, perspectives and interests of the partic:

have been confronced and already resolved. This serves to

increase tie Court's confidence that the plan is workable,

and can be implemented immediately.

ee a ne

See ee ee ee. en me ee es tae eee ee Pd es eee ee ee

33a

The plan is built ‘pon the outline of the present

Group priority scructure of the coilective bargaining agree- |

mant. It prevides for an administrator whose duties include

not only close supervision of the plan, but also of employment

opportunitics in the industry on behalf o:: all workers. Its

wajor features include elimination of past abuses of the Group

system; elimination of ‘the ccntract provision which restricted

coup L co former Regular Situation holders; provision for an

orderly flow of Group III shapers--alternating one minority

person with one non-minority person--into stcady and secure

employrent in the industry, first as members of Group I and

from there, as Regular Situations become vacant, to Regular

Situations. Union membership will be offered to each Group

III worker as he reaches the bottom of Group I. The plan

furtner provides that until the 25% minority employment goal

is achieved, employers shall hire, at the entry level, three

minority persons for every two non-minority persons. In

addition, minorities who are presently active on Group LII

at the News and the Times will immediately move to the botter

of the Group I list, with an equal number of non-minoricies

to iv.aediately follow chen onto the orm I list. These

minorities «sill be given pension benefits they would have

earned but for the disadvantages they have encountered, With

PN rader el e >

34a

the same purpose, funds have been established by the defencancs

to provide Lack pay awards chiefly to these persons.

The Intervenors' Objections

The Group ILI lisc at the News numbers 178. Scattered

throughout the list, in terms of tenure, are 13 minority persons.

The intervenors purport to speak for the other 165 persons on

the list, and more broadly for all non-minority, non-Union

workers in the industry.

Most of the provisions of the Settlement Agreement

are applauded by the intervenors, as well they might be. By

regulating employment opportunities in the snductry, unlock-

ing Group ITI and Group I, Regular Situations and Urtion

membership, the Agreement will operate beneficially for the

intervenors as well as for the minorities.

The focus of their objection is on the order of

the flow from Group III to Group I. They assert that the

flow ought to be in strict order of tenure on Group III. To

immediately move all of the present Group III minorities to

the Group I list ahead of some non-minorities who have been

listed for a longer period of time on Group III, they assert,

is to engage in "leap-frogging" not intended by Title VII.

Further, they argue, that the system becomes even more onerous

when the provisions for alternating minority /non-minority

;

)

35a

elevation to Group I go in'> effect, because after the few

minorities who have any tenure in the shop are moved to Group

I, the employer will be required to move minorities with no

tenure at ail ahead of some present Group III non-minorities.

Tie facts selected by the intervenors in support

of their objections are so. And, at first glance their frus-

tration and anger with this Settlement Agreement is understand-

able, and tiueir solution is appealing. These intervenors fro.a

Group III, «as individuals, have also suffered the effects of

the Union's nepotism; they have also attacked the present

practices and abuses in other forums, under different scatutes.

Certainly tjiis Court de.: not accept the argument that these

particular tien have benefited from a discriminatory system.

But, on deeper examination of the Settlement Agree-

ment and the intervenors' objections, there are a naumber cf

- reasons why this Court does noc, and indeed can not, vicw the

intezvenors es raising countervailing considerations of such

a substantial nature as to preclude approval of the plan.

First and dispositive of all the issues raised

by the inte.cvenors, the Settlemegt Agreement simply does

not trample on their employment opportunities. In the long

run, it must be acknowledged by all concerned that the effect

of this Agreement, if it operates as predicted, wiil be to

36a

achieve Regular Situation «: Group I status for all members

of Group II{, minority and non-minority alike, within a

relatively short time-span. Without this Settlement, Group

III workers had little if any hope of ever achieving either

Status under the present system. The intervenors do not

contend otherwise. Insteac, their objections deal in the

main with interim measures which do, in fact, move some

minorities faster than some non-minorities. But it must be

noted that snce a Group III non-minority is elevated to

Group I, his daily shaping opportunities will be no less

than they presently ere and indeed they may be greater.

The News projections submicted to this Court indicate that

within a month after implementation of the plan, the non-

minority who is number 47 on the Group III list, and all

non-minorities above him, will have been elevated to Group I,

The progression thereafter is expected to be approximately

27 non-minority aconden to Group I each year. Also the

Settlement Agreement provices other benefits to Group III

non-minorities, not the least of which is the appointment of

an administrator who is empowered to assure that existing

work opportunities in the industry shall be made available

to any Grcuo III person unable to get at least 45 shifts of

work in any calendar quarter.

37a

further, cven it the Settlement Agrcement did noc

provide noi-minorities with thesé¢ benefits, the intervenors'

position is _ factually or legally sound. Their premise

is that the Settlement Agreement will oust them from what they

perceive as vested seniority rights in their Group LII order.

If, in fact, this Settlement Agreement affected firm and

realistic seniority rights end expectations of innocent non-

minority workers, there could be doubts as to the validity

of the relief afforded. See, e.g., United States v. Bethlehem

446 F.2d

Steel Corp., supra,/at 661. But, in this case, regardless

of the priority structure of the present contract, and the

language which may be used in it, the fact remains that

Group III workers do not have full-time employment, nor do

many of them have any great expectations or intention of

working full-time while they shape from the Group III liste.

They are sh=pers. And, to the extent that the present

contract stcucture, in theory, gives them certain priorities,

by tenure on Group III, to achieve Regular Situations, the

facts have demonstrated that they could not have any realis-

tic expectation of such movement actually occurring. As

noted above, no Greup III worker has moved up the list to

a Regular Situation since 1963.

38a

Their expectatio:.s with respect to daily shape

pric-cities :ust be viewed in a somewhat different light.

When an add cional person is plesed in front of a shaper,

theorcticaliy his chances of working any particular shift

are decreased by a factor of one job. This, of course,

depends on the stability of the total number of jobs

available from shift to shift and whether or not the new

person chooses to shape the same shift. In other words,

assessing a shaper's expectation is a highly speculative

exercise. The Court does not mean to minimize a Group III

member's vested emotional interest in his position at a

shape, but it cannot be equated with the worker who-might

be "bumped" from a steady and seemingly secure position by

an outside winority with less seniority than him. Further,

it must be pointed out that even if these shaping priorities

were viewed as providing firm expectations, "[such] seniority

advantages are not indefeasibly vested rights but mere expec-

tations derived from a bargaining agreement subject to

modification.” United States v. Bethlehem Steel Corp.,

supra, 446 F.2d at 663. Indeed, the intervenors themselves

recognize tiis principle when they approve of many charges

made in the collective bargaining agreement by the proposed

Settlement.

39a

Also, it must be said that the relicf the intervenors

suggest, which would observe strjct tenure of the Group III

list, would most likely noc provide the relief mandated by

then:

so.

Title VIL for minorities. Given the fact that the active

work force at the News numbers 900 and includes only 24

minority persons, it would clearly take a far longer pericd

of time to reach a goal of 25% minority employment, Because

the minoriry percentage is so low, the same objection holds .

true if, as the intervenors have suggested, the Group I and

Group III lists were dovetailed by shop tenure.

Finally, it must not be forgotten that this is

a Title VIl case. Such cases, as Judge Frankel has.said

in Wood, Wire are “launched by statutory commands, rooted

in deep constitutional purposes, to attack the scourge of -

racial discrimination in employment. . . . [a]nd we know

that, in addition to the spiritual wounds it inflicts, such

discrimination has caused manifold economic injuries, incluc-

Se ae ae ec ne ee ee De tees ee tet Tee, «Pee ee RES ne ew eo ae me, en ery

ing drastically higher rates of unemployment and privation

: among racial minority groups." United States v. Wood, Wire

and Metal l.athers International Union, Local Union 46, 341

F.Supp. 694, 699 (S.D.N.¥. 1972). Title VII is an expression

of a commitment to correct minority employment discrimination

and, hopefully, the vast social consequences that flow from

i i et ee hee ele

40a

it . id afflict the whole o' the nation, The statute does

not ententae to correct a\l forms of employment discrimina-

tion. Thus, to the extent that what the intervenors seek here

is relief equal to that afforded minorities, it has no legal

foundation, in this case. Uncer the law, relief here mst

be limited to victims of the kind of discrimination prohibited

by Title VII. United States v. Bethlehem Steel Corp., sunra,

446 F.2d at 665. There is no evidence and no assertion that

the intervenors have been discriminated against on account of

wece, seiigion, color, sex, national origin, or because they

have made charges, testified, assisted or participated in any

enforcement proceedings under Title VII.

The 25% Minority Employment Goal

There remains the requirement of Rios v. Entcrprise

Association Steamfitters Local 638, supra, at 4387, for

reliable factual support for the 25% goal. All of the

parties havs agreed to the figure. The EEOC has based its

conclusion on relevant labor force statistics contained in

the tables published by the United States Department of

Commerce in a publication entitled Gemeral Social and Economic

Charactcristics, 1970 Census of Population, for the relevant

geographic areas of the Union's jurisdiction. Using what

this Court agrees is the most reliable px file possible of

’

4la

the candidate for delivere:s' work, the EEOC has extracted

figures for Black males over 16 years of age with a high

school diploma or less. With considerably ingenuity, the

agency has also extrapolated comparable figures for minorities

other than Black. Added together they indicate that the

relevant labor force is 30% minority. Although the private

plaintiffs and the intervenors have submitted other calcula-

tions end bases with respect to minority representation in

the relevant labor force, in this Court's view the EEOC

analysis is the soundest and provides ample support for the

25% minority goal included in the Settlement Agreement.

Conclusion

Tnis Court has found that the affirmative relief

provided in the Settlement Agreement is justified by the

facts of this case. It has found that the 25% minority goal

is supported »y reliable statistics. It has found that the

affirmative relief provides members of the plaintiffs’ class

and other minorities with an adequate, fair and reasonable

route to their "rightful place" in this industry, and that

the Settlement Agreement is enforceable, iegal and in the

public interest. The Court has also found that the Settlement

Agreement does nut so interfere with the rights of the inter-

venors as tc require disapproval.

+ twee a ae

‘

42a

Therefore, the -otion of the parties for approval

of the Settlement Agreement is hereby granted. Settle Order,

upon the consent of the parties, endorsed thereon by their

attorneys, accordingly.

SO ORDERED,

Dated: New York, New York

September 19, 1974

U8 LSA RiPICAE WI. PLERCE

LAWRENCE W. PIERCE

U. S. D. J.

eet

Kai & bbe Meer *

FCOTNOTES

43a

"Minority" as it is used in this Settlement

Agreement refers to the definition of thac word

ty the Eazal Employment Opportunities Commission

end means people who are Black, Spanish-surnamed

Criental and American Indian.

. Grou II is not counted here because Group IT

is constituted of persons who also hold Regular

Situations or Group I positions in the industry.

They are permitted by the contract to shape in

any shop other than their own, in addition to

their regular jobs. ;

See pp. 23-24.

The parties have defined "employment" as encompas-

sing Regular Situations and Group I positions.

Their view is that a place in either of these two

groups represents a steady, secure job in the

industry. The Court agrees, at this time. The

dsfiniticn is subject to revision by terms of the

Settlement Agreement.

Sa 6 Bete ek Se es Ee

44a

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States

Court of Appeals, in and for the Second Cir-

cuit, held at the United States Court House,

in the City of New York, on the twenty-ninth

day of April, one thousand nine hundred and

seventy-five.

Present:

HON. WILFRED FEINBERG,

HON. JAMES L. OAKES,

HON. WATER R. MANSFIELD,

Circuit Judges.

JOHN R. PATTERSON, et al.,

Plaintiff,

NEWSPAPER & MAIL DELIVERS UNION OF NEW

YORK & VICINITY, et al.,

Defendants.

es |. ee x

sal Lece PS BHD Ata nO a 1 cama i a ili el ee rae

SR SOO RA RB es

eaeaqoeeceace Qnaee ceeseooooecosoonenscseoocece x

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

Vv.

NEWSPAPER & MAIL DELIVERERS' UNION, etc.

Defendants,

JAMES V. LARKIN,

Intervenor-Appellant.

A petition for a rehearing having been

filed herein by counsel for the intervenor-

appellant, JAMES V. LARKIN,

Upon consideration thereof, it is

Ordered that said petition be and hereby

is denied.

A. DANIEL FUSARO

Clerk

o Be gre eee ale ae

46a

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States

Court of Appeals, in and for the Second Cir-

cuit, held at the United States Court House,

in the City of New York, on the twenty-ninth

day of April, one thousand nine hundred and

seventy-five.

ee x

JOHN R. PATTERSON, et al.,

Plaintiffs,

Vv.

NEWSPAPER & MAIL DELIVERERS' UNION OF NEW

YORK, et al.,

Defendants.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

Vv. Docket No.

74-2548

NEWSPAPER & MAIL DELIVERERS' UNION OF NEW

YORK, et al.,

Defendant.

)

;

gion. Ce rweeo? . .

47a

DOMINICK VENTRE, FRANK SCHILLEMI, GERALD

KATZ,

Intervenors,

JAMES V. LARKIN,

Intervenor-Appellant.

A petition for rehearing containing a

suggestion that the action be reheard in banc

having been filed herein by counsel for the |

intervenor-appellant, JAMES V. LARKIN, and no

active judge or judge who was a member of the

panel having requeated that a vote be taken

on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it here-

by is denied.

IRVING R. KAUFMAN, Chief Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.