# Petition — Larkin v. Patterson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0797%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 427 U.S. 657 ## Text 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 I. 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 10 10 15 18 it 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 12 10, ll, 13 13 18 13 13 10, ll, 13 12 12 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. 2 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 5 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 8 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. 10 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. ll 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 12 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. 13 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 14 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 15 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 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. 16 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: 17 "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 18 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 19 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 la 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. -—— Se Equa EMPLOYMENT Opportunity COMMISSION, Plaintiff s-A ppellees, —against— NEWSPAPER AND Mait. Deuiverrrs’ Union or New YorK AND Viorniry, et al., . Defendanis- Appellees. 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 ew 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 ed | | | ; | | ) 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 : ’ 4 | : \ 7 4 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 4 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 3 # ‘ 4 5 ‘ 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, Ve 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. ) ; i ; : r 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0797%3A1. Public record. Not legal advice.