Appendix — Local Union No. 3, International Brotherhood of Electrical Workers v. Ingram

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SEP 2 {983

ALEXANO TS STEVAS,

7 *,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, i983

LOCAL UNION NO. 3, INTERNATIONAL

BROTHERHOOD OF ELECTRICAL WORKERS,

AFL-CIO,

Petitioner,

Vv.

HENRY INGRAM, JAMES BRITT, WILLIAM

MOODY, and ROY T. FLOYD, individually

and on behalf of all persons similarly

situated,

and

SHELLY L. ANDERSON, JAMES L. PERRY,

individually and on behalf of all others

Similarly situated,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

NORMAN ROTHFELD

Attorney for Petitioner

276 Fifth Avenue

New York, New York 10001

(212) 696-4010

CONTENTS OF APPENDIX

APPENDIX A

Page

Opinion and Judgment of Court

ge ee ee eee TeRerere Se la

District Court's Opinion of

October 3, 1979 Determining

EPRDLASEY ov s'cvesioss <a a a eS ef @ © © © © © 17a

District Court's Opinion of

October 23, 1979 Approving

Class Action Settlement and

CODBSGRS DOCTOG ss ci ccrccrervccccceses 60a

District Court's Opinion of

December 13, 1979 Relating

CO POMOGIGG se ccc cc ccsosovevecscenes 72a

Final Opinion of District Court

Gated March 23, 1982. .....- Tree 110a

District Court's Opinion of

June 8, 1978 Granting Class

ASCAGR COLCELEIGRCIOR . cccccsccbvces 1€3a

APPENDIX B

Pertinent Text of 42 USC § 1981l...... 197a

Pertinent Text of Title VII, 42 usc

ee oe oe Ser aE Mr eae 197a

APPENDIX A

inions of the Courts

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—»

Cal. No. 308—August Term, 1982

(Argued November 15, 1982 Decided June 13, 1983)

Docket No. 82-7384

HENRY INGRAM, JAMES BRITT, WILLIAM Moopy, and Roy

T. FLoyp, individually and on behalf of all persons

similarly situated, Plaintiffs-Appellees,

—and—

FRANCES WILLIAMS, EDWARD MILON, HORACE MITCHELL,

HERBERT BRUTON, JOVINO GARCIA,

Intervenors,

— a

MADISON SQUARE GARDEN CENTER, INC., MADISON

SQUARE GARDEN CORPORATION, ALLIED MAIN.

TENANCE CORPORATION and ALLIED PUBLIC EVENTS

SERVICE CORPORATION, Defendants

—and—

LocaL UNION No. 3, IBEW, AFL-CIO,

Defendant-Appellant.

4387

LP)

SHELLY L. ANDERSON, JAMES L. PERRY, individually and

on behalf of all others similarly situated,

Plainti*‘fs-Appellees,

—and—

MADISON SQUARE GARDEN CENTER, INC., MADISON

SQUARE GARDEN CORPORATION, ALLIED MAIN.

TENANCE CORPORATION, ALLIED PUBLIC EVENTS SER-

VICE CORPORATION, LOCAL 54, SERVICE EMPLOYEES

INTERNATIONAL UNION,

Defendants,

—and—

LocaL UNION No. 3, IBEW, AFL-CIO,

Defendant-Appellant.

Before:

VAN GRAAFEILAND, MESKILL and PRATT,

Circuit Judges.

Union appeals from a judgment of the United States

District Court for the Southern District of New York

(Sand, J.), awarding back pay, retroactive seniority

rights, and attorneys’ fees and costs to plaintiff classes in

an employment discrimination suit.

Affirmed as modified.

4388

NORMAN ROTHFELD, New York, N.Y., for

Defendant-Appellant.

Lewis TESSER, New York, N.Y., for Plaintiffs-

Appellees.

—__—{j}>-——

VAN GRAAFEILAND, Circuit Judge:

Local 3 of the International Brotherhood of Electric

Workers appeals from a judgment of the United States

District Court for the Southern District of New York

(Sand, J.) which awarded plaintiffs in a class employment

discrimination suit retroactive seniority rights with back

pay, front pay, and attorneys’ fees, the total monetary

award, with interest, being substantially in excess of $1

million. Four opinions written by the district court are

reported at 482 F. Supp. 414, 482 F. Supp. 426, 482 F.

Supp. 918, and 535 F. Supp. 1082. Although we find the

evidence of discrimination somewhat less persuasive than

did the district court, we are not prepared to hold that the

district court’s findings on this issue were clearly erro-

neous. See Pullman-Standard v. Swint, 456 U.S. 273

(1982). Accordingly, we affirm the district court's adjudi-

cation of liability. However, for reasons hereafter dis-

cussed, we find it necessary to modify the relief which the

court below granted.

Since 1965, Local 3 of the International Brotherhood,

which has more than 4,300 black and Hispanic members,

has represented the “maintenance group of utility men”

(hereafter “laborers”) at Madison Square Garden. These

laborers prepare the Garden for its various featured

events. The several contracts between the Union and the

4389

Garden placed no restrictions on the employer’s method

of hiring, merely requiring that all laborers become mem-

bers of the Union within 31 days of their employment.

However, in practice, the hirelings, of which there was an

average of about 5 per year, were referred to the Garden

by the Union representative for the Garden laborers.

About | in 6 of the hirelings was either black or Hispanic.

Until 1969, the Garden also employed other groups of

people as cleaners or porters, bowling alley and lavatory

attendants, and elevator operators. In 1969, the Garden

subcontracted its cleaning work to Allied Maintenance

Corporation, retaining only the elevator operators as its

own employees. All of the cleaners are represented by

Local 54 of Service Employees International Union, and

most of them are either black or Hispanic.

On August 13, 1973, appellees Ingram, Britt, Moody,

and Floyd, all of whom were porters working at the

Garden, filed charges against the Garden and Allied with

the Equal Employment Opportunity Commission, pur-

suant to Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e ef seg., alleging that these employers had

discriminated against them and other black porters by

paying them less than the white laborers for doing similar

work and by maintaining segregated job classifications.

The EEOC concluded that the Garden and Allied were

violating Title VII, and, on October 4, 1976, following

unsuccessful conciliation efforts, issued right-to-sue let-

ters to the four complainants. On December 30, 1976, the

porters filed a proposed class action suit against the

Garden and Allied, alleging violations of 42 U.S.C.

§§ 1981 and 1985 as well as Title VII. On June 22, 1977,

Local 3 was added to the litigation by means of an

amended complaint, which charged that the Union was

discouraging competent minority cleaners from seeking

4390

and obtaining jobs as laborers and was conspiring with

the Garden and Allied towards this end by advising

cleaners that the Garden was solely responsible for hiring,

that no jobs were available, and that cleaners must do

apprenticeships before becoming members of Local 3.

On November 24, 1975, appellees Anderson and Perry,

black porters who worked at the Garden, also filed

discrimination charges with the EEOC, their charges

being directed against the Garden, Allied, and Local 3.

On January 16, 1978, a right-to-sue letter issued, and on

March 31, 1978, a proposed class action complaint on

behalf of the Anderson group was filed.

The district court certified a Title VII class and a

§§ 1981 and 1985 class in both actions. In the /ngram

action, the Title VII class, whose claims, of necessity,

were limited to the Garden and Allied, consisted of all

blacks who, after February 14, 1973, had been or would

be employed as cleaners at the Garden. The §§ 1981 and

1985 class consisted of all blacks and Hispanics who,

after December 30, 1973, had been or would be employed

as Cleaners at the Garden. Certification of both classes in

Ingram was conditioned on the intervention of lavatory

and bowling alley attendants and elevator operators as

named plaintiffs. Thereafter, Williams, a black lavatory

attendant, Milon, a black bowling alley attendant, Mitch-

ell, a black elevator operator, Bruton, a retired black

cleaner, and Garcia, an Hispanic cleaner, intervened. The

Anderson classes were defined in the same manner as

those of /ngram, except that the Title VII Anderson class

limitation was May 28, 1975, and the §§ 1981 and 1985

Anderson class limitation was March 31, 1975, and both

classes claimed against the Garden, Allied, and Local 3.

On July 13, 1978, the Jngram and Anderson actions

were consolidated. On July 16, 1979, the district court

439]

denied the Union’s motion to decertify the classes. Subse-

quently, the plaintiffs entered into a proposed consent

decree with the Garden and Allied, in which the defen-

dants agreed, among other things, to pay $117,500 in

settlement of plaintiffs’ monetary claims plus $47,500 in

attorneys’ fees. On October 23, 1979, the settlement was

approved by the district court, subject only to the submis-

sion of an affidavit in support of counsel fees. See 482 F.

Supp. at 426. In the meantime, the case had proceeded to

trial against Local 3, the issue being limited to that of

liability.

On October 3, 1979, in an opinion reported at 482 F.

Supp. 414, the district court dismissed plaintiffs’ § 1985

claims, relying on Great American Federal Savings &

Loan Assoc. v. Novotny, 442 U.S. 366 (1979), but held

the Union liable under both Title VII and § 198).

Liability

Evidence introduced at trial showed that the percentage

of male, non-farm black and Hispanic workers in the

Standard Consolidated Area, which includes New York

City, Newark, Jersey City, Patterson-Clifton-Passaic, and

Middlesex and Somerset Counties in New Jersey, was

25.6%, and, in the Standard Metropolitan Statistical

Area, which includes the 5 counties of New York City,

Rockland and Westchester Counties in New York, and

Bergen County in New Jersey, was 27.4%. It appears

from the provisions of the consent decree that both the

district court and plaintiffs’ attorneys accepted 27% as an

appropriate figure. Other evidence before the district

court showed that, between 1965 and 1977, Local 3

referred 66 laborers to the Garden and that 10, or 15%,

of these were either black or Hispanic. Referrals by the

Union of only 7 additional blacks or Hispanics would

4392

have raised its minority referral percentage to approxi-

mately 26%. Between 1972 and 1975, the number of

laborers employed at the Garden varied between 59 and

71. During 1972 and 1973, 7 of these were black or

Hispanic; during 1974 and 1975, 8 were black or His-

panic. Again, an increase of only 7 blacks or Hispanics

would have altered the racial composition of Garden

laborers so that it approximated that of the general

Metropolitan area.

Statistical evidence of discrimination based on but a

few numbers is not, standing alone, compelling evidence

of wrongdoing. Mayor of Philadelphia v. Educational

Equality League, 415 U.S. 605, 621 (1974); Eubanks v.

Pickens-Bond Constr., 635 F.2d 1341, 1345-50 (8th Cir.

1980); Morita v. Southern California Permanente Medi-

cal Group, 541 F.2d 217, 220 (9th Cir. 1976), cert. denied,

429 U.S. 1050 (1977). In the instant case, for example, the

district court observed that one less minority referral by

the Union in 1978 would have dropped the percentage of

minority referrals from 16% to 14%. 482 F. Supp. at 424

n.24. Nevertheless, the district court drew an inference of

discrimination from the “statistical disparity” evidenced

by the figures, id. n.25, and found that Local 3 “hired

[sic] blacks or Hispanics . . . in numbers significantly

below their percentage in the labor market surrounding

the Garden.” 535 F. Supp. at 1094. We do not find as

much significance in these figures as did the district court.

See Coble v. Hot Springs School District, 682 F.2d 721,

734 (8th Cir. 1982); Williams v. Tallahassee Motors, Inc.,

607 F.2d 689, 693 (Sth Cir. 1979), cert. denied, 449 U.S.

858 (1980); Diedrich and Gaus, Defense of Equal Em-

ployment Claims 4 13.11 at 361 (1982). However, the

district court did not rely on this evidence alone. It found,

among other things, that the efforts of several class

4393

members to secure laborers’ positions “were deliberately

frustrated by union personnel who, on a number of

occasions, either ignored, gave evasive answers to or just

generally gave the run-around to class members who

sought information from them as to how to become a

laborer”, and that this “ ‘[got] the message across’ and

created an atmosphere which discouraged class members

from actively seeking a laborer’s position.” 482 F. Supp.

a: 421. Although, as the district court itself stated, “the

number of these incidents was not great,” 482 F. Supp. at

421, the court coupled them with the “statistical dispar-

ity” and the “standardless” method of referral to support

a finding of discriminatory intent, 535 F. Supp. at 1087.

Although we might have reached a different conclusion,

we cannot say that the district court clearly erred.

We find no merit in appellant’s other challenges to the

adjudication of liability. The test for error in class certifi-

cation is abuse of discretion, Brick v. CPC Int’l, Inc., 547

F.2d 185, 187 (2d Cir. 1976), and there was no abuse in

the instant case. The district court applied the correct

Statute of limitations. Keyse v. California Texas Oil

Corp., 590 F.2d 45, 47 (2d Cir. 1978). Appellant’s other

contentions require no discussion.

The Back Pay Award

In fashioning a remedy for employment discrimination,

“the court must, as nearly as possible, ‘recreate the

conditions and relationships that would have been had

there been no’ unlawful discrimination.” Jnt’/ Bhd. of

Teamsters v. United States, 431 U.S. 324, 372

(1977) (quoting Franks v. Bowman Transp. Co., 424 U.S.

747, 769 (1976)). We believe that the remedy in the instant

case went beyond that.

4394

The district court referred the factual remedial issues to

a Magistrate and instructed the Magistrate to award

seniority to every class member who desired a laborer’s

job as of the date of the next laborer hire that followed

his application or “qualifying desire”, subject to a max-

imum date of July 2, 1965. 482 F. Supp. at 923-24. The

court instructed the Magistrate to make back pay awards

on the same basis, subject to the 2-year limitation period

of Title VII and the 3-year limitation period applicable in

New York to § 1981. Jd. at 925-26. The computations,

made as directed, produced some interesting results. Two

class members were awarded retroactive competitive sen-

iority dates to 1970, a year in which 5 laborers were hired,

one of whom was Hispanic. If the district court was

recreating the conditions that would have existed had

there been no discrimination, presumably he intended

that three of the five 1970 hirelings should have been

either black or Hispanic. In 1974, 6 laborers were hired,

one of whom was black. Nevertheless, 4 class members

were awarded retroactive competitive seniority to 1974. In

recreating the conditions for that year, the district court

must have intended that 5 out of the 6 hirelings should

have been either black or Hispanic. Although only one

laborer, a white man, was hired in 1976, seniority retro-

active to 1976 was awarded 4 class members.

According to appellees’ own computations, in 1969, the

laborer work force at the Garden consisted of 48 whites, 2

blacks and 2 Hispanics. Appellees’ Brief at 9. Between

1970 and 1978, the Garden hired 33 laborers referred to it

by the Union, of whom 6 were either black or Hispanic.

Id. at 8. The minority hiring rate during these years was

thus 18.2%. The district court held that, for purposes of

retroactive competitive seniority, 17 class members should

have been hired during this period, for purposes of

4395

10a

non-competitive seniority, 10 class members should have

been hired, and for purposes of back pay awards, 13 class

members should have been hired. Had 17 class members

been hired, the racial composition of labor hirings during

this period would have been 69% black or Hispanic. Had

13 class members been hired, the composition would have

57% black or Hispanic. Had 10 been hired, 48% of the

hirelings would have been black or Hispanic. This is

hardly a recreation of the conditions that would have

existed had there been no discrimination.

A court that finds unlawful discrimination is not re-

quired to grant retroactive relief. City of Los Angeles v.

Manhart, 435 U.S. 702, 718 (1978). “To the point of

redundancy, the statute stresses that retroactive relief

‘may’ be awarded if it is ‘appropriate.’” Jd. at 719.

Moreover, such remedy as is given should not constitute a

windfall at the expense of the employer, its union, or its

white employees. See United States v. United States Steel

Corp., 520 F.2d 1043, 1055 (Sth Cir. 1975), cert. denied,

429 U.S. 817 (1976), Guardians Ass’n of the New York

City Police Dept. v. Civil Service Commission, 539 F.

Supp. 627, 630 (S.D.N.Y. 1982); Patterson v. Youngstown

Sheet and Tube Co., 475 F. Supp. 344, 354 (N.D. Ind.

1979), aff'd, 659 F.2d 736 (7th Cir.), cert. denied, 454

U.S. 1100 (1981). Title VII imposes no duty to maximize

the hiring of minority employees. Furnco Construction

Corp. v. Waters, 438 U.S. 567, 577-78 (1978). Remedial

relief should be granted only to those class members who

would have filled vacancies had there been no discrimina-

tion. See Ass’n Against Discrimination in Employment,

Inc. v. City of Bridgeport, 647 F.2d 256, 284-87 (2d Cir.

1981), cert. denied, 455 U.S. 988 (1982). The district

court’s judgment, based on the concept that all class

members with unexpressed employment desires should

4296

lia

have been hired regardless of the number of vacancies

and competing applicants, is based upon a hypothetical

hiring practice which the law did not require and which,

in actuality, never would have been followed absent any

trace of discrimination.

James O’Hara, the Union representative for the Gar-

den laborers and the person who made job referrals,

received over 300 requests for jobs during the period at

issue, not a single one of which came from a class

member. There is nothing in the record to indicate that,

discrimination aside, class members would have been

given preference over other applicants. Indeed, since the

Union counted 4,300 blacks and Hispanics among its own

members, it is unlikely that preferred treatment would

have been given to members of another union. In view of

the limited number of vacancies that occurred, we con-

clude that, to the extent that back pay was awarded to

more than 7 class members, it constituted an unwarranted

windfall and did not recreate the conditions that would

have existed in the absence of discrimination.

Because of the statistical limitations inherent in the

small samples available to plaintiffs’ expert witness, her

testimony concerning disproportionate hiring did not fo-

cus on any particular year. Faced with the same limita-

tions, neither this Court nor the district court can state

accurately when the 7 class members should have been

hired. Under such circumstances, we think it would be

inequitable to award back pay to only the first 7 class

members who indicated a “desire” to become laborers.

The fairer procedure, we believe, would be to compute a

gross award for all the injured class members and divide

it among them on a pro rata basis. See Stewart v. General

Motors Corp., 542 F.2d 445, 452-53 (7th Cir. 1976), cert.

denied, 433 U.S. 919 (1971); Pettway v. American Cast

4397

12a

Tron Pipe Co., 494 F.2d 211, 263 n.154 (Sth Cir. 1974). In

determining the amount of the gross award, however, we

think it fair to both the Union and the class members to

assume that the Union would have referred the 7 class

members who first desired employment, had they applied,

and to base the class award on the loss attributable to

these 7 men.

The first 7 “applicants”, determined by their seniority

dates, and the back pay awards made them by district

court, are:

Dy MURS vs th soc 0sd ee eeee $ $5,120

2. Wilfred Boudreaux............... 51,010

Dn) WOM I ois vc cct caw ccess 53,298

By ERG PUUEEEED cccccccccccuseecs 57,604

a I Ss ie d'n dics bv bo 08 oa ee 27,202

rere 61,494

» REL SO PEE 39,988

$345,716

The total award to these men, $345,716, is equal to

approximately 52.14% of the total award of $663,085

which the district court made to all 18 back pay recipi-

ents. Proration by 52.14% of the 18 individual awards

produces the following figures:

1. Shelly Anderson.............. $ 16,578.43

2. Wilfred Boudreaux ........... 26,596.61

RE Sa 20,849.74

OC) ee saad pes Veek na dees 9,630.78

5. Russell Footman ............. 11,123.03

Di Is 6 66k wane 50% wan 10,675.67

7. Graydon Griffith............. 18,963.84

8. Lawrence Hawkins ........... 24,746.17

9. Francisco Hernandez ......... 23,836.84

4398

l3a

10. Herbert Holmes.............. 30,034.73

Ve eer 14,183.12

Eee Ge PAI Cicc cbs cwcewee 28,739.57

ED, SE PEERY 5 6. 6 0 cv ceases es 27,789.58

Ss PIER s 4 0:0.8-s bus t.00040 19,611.94

Se I as. oc vs ccecce ds 8,775.16

8G. JOMNOS PORMITOW.. 0. ccccceees 11,628.78

17. George Sharpe, Sr. ........... 9,905.56

18. Kenneth Williams ............ 32,062.97

$345,732.52

The district court’s award of back pay is modified in

accordance with the foregoing figures.

Front Pay

Since this action was begun, at least 6 class members to

whom the district court made back pay awards have heen

hired by the Garden, 5 of them on November 5, 1979,

and one on December 20, 1980. The district court has

indicated that it intends to make front pay awards for

future losses to the twelve remaining back pay recipients.

For the reasons already expressed, we believe it is com-

pletely unrealistic to assume that all 18 back pay benefi-

ciaries would have been hired had there been no

discrimination practiced against them. Accordingly, we

deem it unfair to the members of the defendant Union,

black, Hispanic, and white, to impose a continuing liabil-

ity upon their association for the loss of future benefits.

This unfairness is exacerbated by the fact that the Union

has no control over future hirings, which are the sole

prerogative of the Garden, and is therefore in no position

to bring its liability for front pay to an end. Under these

circumstances, we believe that it would be an abuse of

4399

l4a

discretion for the district court to make front pay awards

against the Union to class members not already hired.

Retroactive Seniority

The same factors which dictate the limitation of back

pay and front pay awards also militate against the grant

of retroactive seniority to future hirelings. In addition, we

view pendent grants of retroactive seniority as self-defeat-

ing, in that they militate against the likelihood that the

beneficiaries of the grants will be employed. Under the

consent decree which terrainated plaintiffs’ action against

the Garden, the Garden agreed that every second job

opening would be offered to minorities until their repre-

sentation among the Garden’s laborers reached 27%. 482

F. Supp. at 417 n.4. Because at least 9 minority laborers

have been hired since the execution of the consent decree,

6 of whom were class members, it is not at all unlikely

that the 27% quota has been reached and the compulsory

hiring of class members has come to an end. Relations

between the Garden and its presently employed laborers

will not be improved by the voluntary hiring of additional

class members who will be granted automatic seniority

under the terms of the district court’s judgment. For all

the foregoing reasons, we think that the proper exercise

of discretion would limit the grant of retroactive seniority

to the 6 or more class members already hired.

Attorneys’ Fees

Like the steamfitters union in Rios v. Enterprise Ass’n

Steamfitters Local 638, 400 F. Supp. 993 (S.D.N.Y. 1975),

aff’d in relevant part, 542 F.2d 579 (2d Cir. 1976), cert.

denied, 430 U.S. 911 (1977), the Union is a non-profit

association comprised primarily of members who earn

4400

15a

their living with their hands. It is upon these members

that the burden of the award against the Union for

attorneys’ fees eventually will fall. Instead of exploring

this matter before the Magistrate to whom the question of

fees was referred, defense counsel, in the Magistrate's

words, spent his time in a “vexatious, time-wasting attack

on plaintiffs’ counsel and in an unfruitful, nitpicking

excursion through innocuous details and markings in

plaintiffs’ counsels’ time logs and records.”

Despite the truth of this observation, we are aware that

the Union cannot pass on to customers the expense of

plaintiffs’ attorney’s fees, see Hail v. Cole, 412 U.S. 1, 1§

n.23 (1973), and this places special emphasis upon our

duty to see that the liability imposed upon the Union does

not include a windfall for plaintiffs’ attorney. Although

fee awards are generally within the discretion of the

district court, this Court may intervene where that discre-

tion has been abused. Faraci v. Hickey-Freeman Co., 607

F.2d 1025, 1028 (2d Cir. 1979); Mid-Hudson Legal Ser-

vices, Inc. v. G&U, Inc., 578 F.2d 34, 37-38 (2d Cir.

1978).

We have no problems with the allowance to plaintiffs’

attorney, Lewis Tesser, based upon 1,280 hours at $100

per hour. Both figures are reasonable and are supported

by the evidence. The allowance for the work performed

by Mr. Tesser’s assistant, Marjorie Altman, presents a

different situation. Miss Altman, who was admitted to

practice in March 1978, was employed by Mr. Tesser at a

salary of $200 per week. Mr. Tesser conceded, moreover,

that Miss Altman put in “significantly” more than 50

hours per week. The Magistrate allowed Mr. Tesser $50

per hour for the work done by Miss Altman in 1978 and

$65 per hour for the several ensuing years, stating that

these rates “were /ower than the going rates for attorneys

4401

l6éa

of like skill and experience in the area” as testified to by

Mr. Tesser’s expert witness, Kathleen Peratis, Esq. (em-

phasis in original). This was not so. Miss Peratis testified

that, for an attorney with 0 to 4 years’ experience, a

reasonable rate would be “from $35 to $65 an hour.” We

conclude that, insofar as Miss Altman’s hourly rate for

1978 exceeded $35, the 1979 rate exceeded $45, and the

1980 rate exceeded $55, Mr. Tesser was the recipient of an

unwarranted windfall. The allowance for counsel fees,

including interest, is reduced by a total of $15,997.14.

The judgment of the district court is modified by:

(1) Reducing the individual back pay awards in accord-

ance with the figures above set forth;

(2) Deleting the provision for future front pay awards;

(3) Deleting the provisions for the grant of retroactive

seniority to class members hereafter hired;

(4) Reducing the award for attorneys’ fees by

$15,997.14.

As so modified, the judgment is affirmed without costs

to either party.

4402

700—6-16-83 © USCA—30208

RECORD PRESS, INC., 157 Chambers St., N.Y. 10007 (212) 243-5775

17a

UNITED STATES DISTRICT COURT

SOUTHERN _DISTRICT_OF_NEW_YORK_____. x

HENRY INGRAM, JAMES BRITT, WILLIAM

MOODY, and ROY T. FLOYD, in- 76 CIV

dividually and on behalf of all 5870

persons similarly situated, (LBs)

Plaintifés,

-and-

FRANCES WILLIAMS, EDWARD MILON,

HORACE MITCHELL, HERBERT BRUTON,

JOVINO GARCIA, OPINION

Intervenors, 349135

~against-

MADISON SQUARE GARDEN CENTER,

INC., MADISON SQUARE GARDEN

CORPORATION, ALLIED MAINTENANCE

CORPORATION, ALLIED PUBLIC

EVENTS SERVICE CORPORATION, and

LOCAL #3, I.B.E.W.,

Defendants.

SHELLY L. ANDERSON, JAMES L.

PERRY, individually and on behalf

of all others similarly situated,

Plaintiffs,

-against- 1453

MADISON SQUARE GARDEN CENTER,

INC., MADISON SQUARE GARDEN

CORPORATION, ALLIED MAINTENANCE

CORPORATION, ALLIED PUBLIC

EVENTS SERVICE CORPORATION, LOCAL

3 I.B.E.W., LOCAL 54, SERVICE

EMPLOYEES INTERNATIONAL UNION,

htt Defendants. _______,

18a

APPEARANCES: (See last page)

SAND, D.J.

In each of two separate cases

now consolidated for trial, suit was

brought by two classes which together

comprise all black and hispanic per-

sons who have been or will in the

future be employed as "cleaners"+/

by the defendants Madison Square

Garden Center, Inc. ("Center, Inc."),

Madison Square Garden Corporation

("Garden Corp."), Allied Maintenance

Corporation ("Allied"). Local #3,

International Brotherhood of Elec-

trical Workers ("Local 3"), is also

named as a defendant in these ac-

tions. 2/

Plaintiffs allege that

defendants violated Title VII of the

Civil Rights Act of 1964, 42 U.S.C.

§ 20003 (1970) and the Civil Rights

Acts of 1866 and 1871, 42 U.S.C. §§ 1981

19a

and 1985 (1970) respectively ,2/

by en-

gaging in a pattern of hiring and employ-

ment practices which made it impossible

for class members to secure the higher

paying and generally more desirable

position as "laborer" at Madison Square

Garden ("the Garden"). Prior to trial,

Center, Inc., Garden Corp., AMC and

Allied all entered into a proposed con-

sent decree ,4/ and the consolidated

trial of these two actions was limited

to the issue of Local 3's liability

under the employment discrimination

statutes involved. The question of

damages was left for separate con-

sideration should liability be found.

The plaintiffs in each suit

were arranged in a Title VII class and

a §§ 1981 and 1985 class. In the first

suit, the "Ingram" action, the Title

VII class is limited to black persons

20a

employed as "cleaners" since February 14,

1973, and the §§ 1981 and 1985 class to

those black and hispanic persons so

employed since December 30, 1973. In

the second suit, the "Anderson" action,

the two classes are identically described

except for the. limitation dates, which in

the Anderson action are May 28, 1975

and March 31, 1975, respectively. On

August 13, 1973, the Ingram plaintiffs

filed charges against "Madison Square

Garden" and AMC with the Equal Employ-

ment Opportunity Commission ("EEOC")

pursuant to 42 U.S.C. § 2000e-5.

Notices of "Conciliation Failure" and

"Right to Sue" were issued on

October 4, 1976 and on December 30,

1976, within the 90 day jurisdictional

period provided by 42 U.S.C. § 2000e-5

(£) (1), the Ingram plaintiffs filed

their initial complaint in this action

21a

against Center, Inc. and AMC. The

complaint was subsequently amended to

include Allied, Garden Corp. and

Local 3. Local 3, which was served

with a summons and complaint on

June 22, 1977, was not a party to the

Ingram EEOC action. On November 24,

1975, the Anderson plaintiffs filed

charges with the EEOC against "Madison

Square Garden", AMC and Local 3, and a

notice of right to sue was issued on

January 16, 1978. The Anderson com-

plaint was filed on March 31, 1978 and

served on Local 3 (which was a party

to the Anderson EEOC action) on

August 21, 1978.2/

The crux of plaintiffs' com-

plaint with respect to Local 3 is that

the union, which is the bargaining

agent for the "laborers" at the Garden

and which refers prospective employees

22a

to the Garden for employment as

laborers, employs a completely sub-

jective and standardless referral

policy, relying almost entirely on

word of mouth and favoritism, and

that the policy operates to dis-

Criminate against class members by

preventing them from becoming labor-

ers.2/ The defendant, in addition

to denying that the manner in which it

refers laborers to the Garden vio-

lates any of the employment discrim-

ination statutes involved, also inter-

poses several jurisdictional issues and

the statute of limitations as a

defense. The Court concludes that the

defendants' threshold objections with

respect to Title VII and § 1981 are

without merit ,/ and finds that Local

3's referral "policy" violates both

provisions. The plaintiffs' § 1985

23a

Claims, however, are dismissed in

accord with the Supreme Court's recent

ruling in Great American Federal Savings

& Loan Assoc. v. Novotny, 20 EPD 30,004

(1979). The following discussion con-

stitutes our findings of fact and con-

clusions of law pursuant to F.R.C.P. 52.

I. The Employment Structure at the

Garden

Center, Inc. currently employs

a staff under the direction of a super-

intendent at the Garden. The staff in-

cludes electricians, oilers and firemen,

engineers, carpenters, painters and

laborers. Prior to July 2, 1969, Center,

Inc. also employed personnel in the job

category referred to herein as

"cleaners". On that date, Center, Inc.

completed a process it had begun two

years earlier— by entering into a

contract with Allied under which Allied

24a

agreed to provide all janitorial and

lavoratory services at the Garden.

Center, Inc. employees in the cleaner

category were offered the opportunity

to work for Allied at the Garden in

the same capacity in lieu of discharge,

and most accepted. 2/ Allied currently

provides all janitorial and lavatory

services at the Garden, and the work

of the cleaners is substantially the

same today as it was in the pre-Allied

period.

Laborers effect the change-

overs from one event to the next, a

task which requires them to erect and

remove various structures, operate

vehicles such as forklifts, ice

scrapers and vans, effect repairs

in the roof, floors, sidewalks and

athletic or other equipment, and move

around various heavy objects. The

25a

laborers also spend a portion of their

time cleaning, but the parties dis-

agree as to how much time is so spent .22/

Although the Court agrees with defen-

dant's contention that the question is

irrelevant to the issue of whether

Local 3 has violated the employment

discrimination statutes, the Court

finds that the job of laborer is, on

the whole, more strenuous than that

of cleaner, but that laborers spend

between one-third and one-half of

their day performing tasks similar or

identical to those performed by

Cleaners. The Garden imposes no

independent qualifications for the job

of laborer other than passing the

physical examination required of all

employees ,++/

and it generally hires

laborers through the union referral

process described below.

26a

Cleaners perform general

cleaning and janitorial functions at

the Garden such as mopping, washing,

dusting, trash removal, etc., and those

cleaners classified as lavatory atten-

dants perform similar functions in the

lavatory areas only. The hiring of

Cleaners is done solely by Allied,

which recruits its employees from

various sources and which imposes no

specific physical or education require-

ments for the position of cleaner at

the Garden.22/

Cleaners generally earn

between 65% and 70% of what laborers

earn, and the differential in other

employment benefits, e.g., pension

and annuity plans, appears to be sub-

stantial. All employees at the Garden

in the cleaner category are repre-

sented by Local 54.

The laborer force at the Garden

27a

has historically been all white. Prior

to January l, 1965, the effective date

of Title VII, and since at least 1948,

there had been no black or hispanic

person employed as a laborer. Between

1965 and 1969, one of the twenty-two

new laborers hired was black and one

was hispanic, the rest were white. By

July, 1977, around the time this law

suit was initially filed, thirty-eight

new laborers were hired, thirty-three

of whom were white, four black and one

hispanic. The 1978 Garden laborer work

force consisted of fifty-five employees,

forty-seven of whom were white, five

black and three hispanic. The compo-

sition of the laborer work force has

thus changed only slightly since blacks

or hispanics were first hired in 1969.

By contrast, the cleaners work

force, with the exception of those

Classified as six day cleaners, has

28a

historically been almost exclusively

black. The lavatory attendants were

all black in 1978, and have been all

black since at least 1948. The five

day cleaners were all black between

1948 and 1969, and in 1978, of the

thirty-four employees in that category,

twenty-four were black, seven were

hispanic and three were white. In

1978, the six day cleaner force, which

was at one time composed largely of

white women, totaled twenty-eight

workers, of whom twelve were white,

one black and fifteen hispanic. No

cleaner in either category has ever

transferred to a laborer position.

II. Laborer Hiring at the Garden

and Local 3 Referrals

The testimony of both Garden

and Local 3 officials at trial re-

vealed that since at least 1941, the

29a

hiring of laborers at the Garden has

proceeded in the following manner: +3/

when a vacancy in the laborer force

occurs, the Garden superintendent,

currently and for the past thirty-seven

years Mr. Richard Donopria, either

advises the Local 3 shop steward, current-

ly a Mr. Mel Mullins, or advises the

union directly, in the person of Mr.

James O'Hara. O'Hara is one of three

assistant business managers of Local 3

and, since 1969, has been the union's

representative for the laborers. O'Hara

alone makes referrals to the Garden for

the position of laborer, and when

Donopria is in contact with Mullins,

Mullins informs O'Hara. In either case,

once the union is advised that a vacancy

exists, it sends a person with a "slip"

indicating that he had been sent by the

union to see Donopria. Donopria testi-

fied that he always checks to see whether

30a

an applicant had been sent by the union,

and that he had hired laborers without

a union slip only on special occasions

for temporary spots. Thus, all of the

Garden's permanent laborer hiring

results from Local 3 referrals =<

al-

though Center, Inc. may reject, for any

reason, a person referred by Local 3

for a laborer's position. Center, Inc.

does not advertise laborer vacancies

in newspapers nor does it advise its

employees or Allied employees at the

Garden that such vacancies exist.

The practice followed by

Local 3 in determining who to refer

to the Garden in response to a request

by Mr. Donopria for a new laborer can

best be characterized as subjective

and standardless. The union has no

procedure by which one may register

for referrals to the Garden as a

laborer, and no list or record of

workers seeking such a referral is

3la

kept. There is no regular procedure

by which unemployed members of other

Local 3 divisions can obtain referral

for laborer work, despite the fact

that other Local 3 divisions do have

a referral procedure for unemployed

members. Local 3 gives no test to,

and requires no apprenticeship of, the

people it refers to the Garden for

employment as a laborer, and even

union membership is not a prerequisite.

Indeed, most of the people referred to

the Garden during Mr. O'Hara's tenure

were not union members. The only

requirement for referral appears to

be that the applicant be a friend,

relative or the relative of a friend

of Mr. O'Hara. O'Hara explicitly

testified that most of the referrals

were made on the basis of personal

acquaintance, favorable impressions

at interview and as the performance

of favors for other persons.

32a

The result of Local 3's

referral "policy" was the near per-

petuation of the completely segregated

Garden laborer work force that existed

until 1969. Although neither Local 3

nor Mr. O'Hara keep records of the

Garden's requests for referrals or of

the referrals actually made, O'Hara

himself remembers the circumstances

surrounding the referral of thirty-

seven men to the Garden for the position

of laborer. Of these, thirty-one were

white, four black and two hispanic.

Except for four who were recommended

by others "associated" with Local 3,

all of the white referrals were

recommended by, or were themselves,

friends of O'Hara, and only four were

already members of Local 3. Of those

four, one was O'Hara's son, and two

were his friends. By contrast, all

of the six minority members whom

5 wey

O'Hara remembers recommending were

already members of other Local 3 divi-

15/

sions.— Of a total of thirty-seven

new hires during O'Hara's tenure,

thirty-one have been white, four black

nd two hispanic. At least one of the

minority referrals took place after

this litigation commenced, at which

time O'Hara, by his own testimony, had

already made known to Garden officials

his desire to increase minority repre-

sentation on the laborer work force. +2/

III. Attempts By Class Members to

Secure a Laborer's Position

Given the identical employ-

ment qualifications and the similarity

of working conditions, it is hardly

surprising that at least some of those

employed as cleaners would attempt to

secure a higher paying laborer's job.

This is precisely what one aes

members claimed at trial to have done,

33a

and although much of this testimony

was disputed, the Court finds that

members of the plaintiff classes did,

in fact, seek a laborer's position.

Moreover, the Court also finds, as

the plaintiffs contend, that those

efforts were deliberately frustrated

by union personnel who, on a number of

occasions, either ignored, gave evasive

answers to or just generally gave the

run-around to class members who sought

information from them as to how to be-

come a laborer .22/ Although the number

of these incidents was not great, the

Court finds convincing plaintiffs'

argument that given the context of two

largely segregated work forces on the

same site, defendant union's actions,

in combination with those of the other

defendants, were sufficient to "get

the message across" and created an

atmosphere which discouraged class

34a

members from actively seeking a

laborer's position.+8/

Finally, the Court is not

impressed with Local 3's argument,

supported by O'Hara's testimony at

trial, that the union did not recruit

laborers from among class members

because they were members of Local 54,

a rival union with whom Local 3 had

continuing jurisdictional disputes.

As O'Hara himself testified at trial,

those laborers who at the time of their

employment were not members of Local 3,

were required to join the union within

thirty days. The result of referring

a Local 54 member would thus be no

different, insofar as Local 3 member-

ship is concerned, than the referral

of any other person not a member of

any union. Local 54 was in no posi-

tion to gain by such a referral, and

Local 3 had nothing to lose. Defen-

35a

dant's argument would be more convinc-

ing if Local 3's policy had been to re-

fer only Local 3 members for the labor-

er's position at the Garden, but it is

clear that this was not the case.

IV. Jurisdiction

Defendant's remaining juris-

dictional objections relate to plain-

tiset's+2/ciaims under §§ 1981 and 1985.

With respect to § 1985, defendant urges

that the recent Supreme Court decision

in Great American Federal Savings &

Loan Assoc. v. Novotny, 20 EPD 30,004

(1979), which held that § 1985 may not

be invoked to redress violations of

Title VII, precludes plaintiffs' claims

under § 1985. Plaintiffs' answer

that the § 1985 claims they assert

"transcend" Title VII, and that they

should thus be exempted from the

Novotny ruling.

36a

The Novotny decision s

based on the Court's BRED Is

the detailed statutory procedure

claims, a procedure which emphasizes

non-adversarial concilation efforts

and which incorporates federal and

state administrative components, would

be circumvented if § 1985 suits could

be brought for the same type of

claims.22/ The case of the Ingram

Plaintiffs, who it will be recalled

did not name Local 3 in their EEOC

charge, is precisely the situation

addressed by the Court in Novotny.

Even where an EEOC charge is filed,

however, Novotny precludes § 1985

relief for what amounts to a Title VII

violation: the Novotny plaintiff's

§ 1985 claims were dismissed despite

the fact that he had complied with

all the jurisdictional prerequisites

37a

for a Title VII suit.

Plaintiffs here have given

no indication of how their claims

"transcend" Title VII and this Court,

on the record before it, cannot see

the basis for their claim. 22/ The

§ 1985 claims of all plaintiffs here-

in are dismissed.

In regard to plaintiffs'

§ 1981 claims, defendant's objections

are unfounded. Unlike § 1985, § 1981

creates substantive rights which may

be redressed in a federal court with-

out regard to whether Title VII remedies

are pursued or whether there has been

compliance with Title VII juris-

dictional prerequisites. The two

statutes are completely independent,

and a plaintiff can maintain both a

Title VII and a § 1981 action aris-

ing out of the same set of facts.

Johnson v. Railway Express Agency,

38a

421 U.S. at 462, and the applicable

period in New York is three years.

See Keyse v. California Texas Oil Co.,

78-7087 (2d Cir. 1978) (slip op.);

Cates v. Trans-World Airlines, Inc.,

561 F.2d 1064, 1067 n.4 (2d Cir.

1977). The limitations period for

Title VII is found at 42 U.S.C. 2000-5(e),

which provides that an EEOC charge must

be filed within 180 days of the alleged

discriminatory act, or within 300 days

if the charge is first referred to a

state agency. The Ingram plaintiffs,

who rely solely on § 1981, commenced

their action in December of 1976. The

Anderson plaintiffs, who rely on both

Title VII and § 1981, filed EEOC charges

on November 24, 1975, and commenced their

law suit, including their § 1981 claim,

on March 31, 1978.

Even if defendants were correct

in their claim that the individual

39a

incidents alluded to at trial preceded

the limitations period, the argument

misses the point. What plaintiffs

challenge, and what is at the heart

of this law suit in its present form,

is a referral policy continuously

adhered to by the defendant which

operates to exclude class members from

the Garden laborer force. Since the

plaintiffs allege a continuous and

present practice of discrimination

rather than a single isolated act, the

statute of limitations is no bar.

Acha v. Beame, 570 F.2d 57 (2d Cir. 1978).

VI. The Composition of the Class

In his closing argument to

the Court at trial, defendant's

counsel raised the question whether

a union such as Local 3 could be held

to a "duty" under Title VII or § 1981

to recruit laborers from a class

composed entirely of members of another

40a

union. This argument cannot with-

stand close scrutiny.

As a practical matter, as we

have noted supra at page 10, defen-

dant suffers no disadvantage by

referring class members to the Garden,

particularly given Local 3's current

referral policy. But more importantly,

defendant union seems to misconstrue

the nature of its duties under the

employment discrimination laws. Under

those statutes, a union which takes

part in the hiring process is obligated

to do so in a manner which does not

discriminate on the basis of race,

ethnicity or sex. (See discussion

and cases cited in the next section.)

That “duty” is not limited to union

members, and it is not inapplicable

to those who belong to another union;

it is a duty which runs to all those

who are or might be affected by its

4la

breach. See, Arnold v. Consolidated

Freightways, Inc., 399 F.Supp. 76

(S.D.Tx. 1975) (a union does not have

to be the collective bargaining agent

for a plaintiff employee in order for

it to be subject to § 1981 liability).

In this case, plaintiff classes, while

they obviously do not encompass the

entire potential black and hispanic

work force for laborers, were composed

of those people who, in the Court's

judgment, were most likely to seek a

laborer's position, and who were

therefore most likely to be effected

by Local 3's referral policy.

VII. Title VII and Section 1981

Liability

It is well established that

§ 1981, as well as Title VII, affords

a federal remedy against discrimination

in private employment, see Johnson v.

Railway Express Agency, 421 U.S. 454

42a

(1974) and that the statute applies to

acts of discrimination by unions as well

as by employers. In applying § 1981 to

employment discrimination cases, courts

have almost universally applied Title VII

standards and principles, and this

Circuit has explicitly held that no

greater or lesser protection from employ-

ment discrimination is provided by

§ 1981 than is provided by Title VII.

See Carrion v. Yeshiva University, 535

F.2d 722 (2d Cir. 1976). Thus, in the

discussion that follows, plaintiffs'

Title VII and § 1981 claims will be

treated together, and proof that es-

tablishes a violation cf one will be

taken as proof of a violation of the

other.

A Title VII of § 1981 viola-

tion can be based on proof of either

"disparate treatment” or "disparate

impact". Plaintiffs argue that both

43a

are present here and the Court agrees.

The Court finds that Local 3's referral

policies violated both Title VII and

§ 1981.

A. Disparate Impact

The disparate impact line of

Title VII analysis stems from the

Supreme Court's decision in Griggs v.

Duke Power Co., 401 U.S. 424 (1973).

Essentially, if the criteria used by

an employer or union to determine job

eligibility “operate to exclude”

minority members, then despite a lack

of discriminatory intent, a prima

facie case of employment discrimina-

tion is made out and the burden shifts

to ghe employer or union to demonstrate

a substantial relationship between the

criteria dnd job performance. See

Alvarez-Ugarte v. City of New York,

391 F.Supp. 1223 (SDNY 1975). The

courts of this Circuit have described

44a

this burden as "heavy", and as a burden

of persuasion rather than simply a bur-

den of going forward with the evidence.

Vulcan Society of New York City Fire

Dept. v. Civil Service Commission, 490

F.2a 387 (2d Cir. 1973); Alvarez-Ugarte,

supra.

Local 3's standardless and for

the most part implicit policy of limit-

ing referrals largely to personal friends

or acquaintances of its business agent

and laborer representative, James O'Hara,

Clearly operated to exclude the minority

employees who make up the plaintiff

classes. While less than 16% of the

referrals++/ during Mr. O'Hara's

tenture involved blacks or hispanics

(none of whom were cleaners), the

combined percentage of blacks and

hispanics in the labor market surround-

ing the Garden is somewhere between

26% and 349, 23/ Such a statistical

45a

disparity is alone, of course, in-

sufficient to establish a Title VII

violation. But statistics are of

recognized importance in employment

discrimination cases and, under some

circumstances, may be sufficient to

establish a prima facie case. Teamsters

v. United States, 431 U.S. 324 (1977);

Barnett v. W. T. Grant Co., 518 F.2¢4

543 (4th Cir. 1975). In this case,

moreover, the inference of discrimina-

tion raised by the statistics is bol-

stered by the fact that Local 3's

referral "system" was completely

standardless and ultimately reliant

on "word of mouth" recruitment, both

of which have been universally

criticized by the courts as tending

to perpetuate segregated and dis-

criminatory employment patterns.

See, @.g., Barnett v. W.T. Grant Co.,

supra (word of mouth hiring perpetu-

46a

ates a white work force; lack of objec-

tive standards always suspect); Penn-

sylvania v. Local Union 542 International

Union of Operating Engineers, 459 F.

Supp. 329 (E.D.Pa. 1978) (statistical

disparity plus arbitrary handling of

referrals by union results ina Title

VII violation); EEOC v. Raditor Specialty

Co., 16 EPD 8276 (W.D.N.C. 1978) (word

of mouth hiring plus failure to post job

vacancies corroborate inference raised

by the statistical pattern); Nesly v.

City of Grenada, 438 F. Supp. 390

(N.D.Miss. 1977) (same).

Looking to the statistical

disparity and the surrounding cir-

cumstances, see Teamsters v. United

States, supra, at p. 338, it is clear

that plaintiffs have established a

prima facie case of a Title VII and a

§ 1981 violation by defendant union

Local 3. Defendant has offered no

47a

evidence of a "business justification”

other than to point out that plaintiffs

belonged to a "rival union". This

argument has been discussed and dis-

missed above, but in any case, a require-

ment that an applicant for referral not

belong to a rival union would not be

substantially related to job performance.

Since defendant has not rebutted plain-

tiffs' prima facie case, the proof of

disparate impact is sufficient to es-.

tablish a violation of the two employ-

ment discrimination statutes involved

herein.

B. Disparate Treatment

In a disparate treatment case,

the critical issue is proof of a dis-

criminatory motive. Teamsters v.

United States, 431 U.S. 324 (1977).

While the plaintiffs have the initial

burden to establish a prima facie

case, that burden is satisfied by

48a

a showing similar to that required in

the disparate impact cases: proof of

discriminatory motive can rest on a

Statistical disparity plus an examina-

tion of the surrounding circumstances.

Teamsters v. United States, supra, at

338. Thus. the evidence discussed above

is sufficient to establish a Title VII

or § 1981 violation based on disparate

treatment, as well as on disparate

impact.

VIII. Relief

Plaintiffs seek an injunction

ordering Local 3 to standardize its

referral practices with respect to

class members by maintaining a register

of class members seeking referral for

the job of laborer and by conspicuously

posting within the Garden notice of how

to register for such a referral. Plain-

tiffs also request that the union be

ordered to refer to the Garden class

49a

members seeking a laborer's position

in order of their current seniority,

and that after referral, such employees

should be credited with full seniority

for all purposes for the same number of

years that the class member involved

worked as a cleaner. Finally, plain-

tiffs seek back pay for all class members

who unsuccessfully applied for a laborer's

job, and for all class members who would

have applied but for the belief that such

application would be futile. Reasonable

attorney's fees and costs are also sought.

Only the issue of Local 3's

liability has been tried thus far, but

it is clear that plaintiffs' demand

for retroactive seniority for those

' cleaners who ultimately become laborers

will dominate the remedial stage of

these proceedings. The parties are

directed to appear before this Court on

October 17, 1979 for a hearing on all

50a

remedial issues, particularly whether

the circumstances here are appropriate

for an award of retroactive seniority.

See Teamsters v. United States, 431 U.S.

324 (1977); Franks v. Bowman Transport

Co., Inc., 424 U.S. 747 (1976). If the

Court finds that such relief is appro-

priate, it will at that time establish

a procedure for making the individual

determinations necessary to decide which

class members were "actual victims of...

discriminatory practices". Teamsters v.

United States, 431 U.S. at 371-372.

SO ORDERED.

Dated: New York, New York

October 3, 1979

U.S.D.J.

5la

FOOTNOTES

The term "cleaners" is used in this opinion

to describe those employed at the Garden as

either “five day" cleaners, "six day"

cleaners, bowling alley cleaners, bathroom

attendants or elevator operators. Where

relevant, the respective duties of those

employed at the Garden are described below.

Each of the four classes involved in this

action also includes those persons fitting

the class description who receive pensions

based on their past employment as cleaners

at the Garden.

The cleaners union, Local 54, Service

Employees International Union, was also

named as a defendant in this action. How-

ever, since plaintiffs have not pressed

their claims against Local 54 and since

counsel for that defendant did not parti-

cipate in these proceedings, the claims

against that party are considered as having

been dropped by plaintiffs.

It has generally been held, in this

and other Circuits, that the filing of a

timely charge with the EEOC against an

employer or union is a jurisdictional

prerequisite to the bringing of a Title VII

suit against the same defendant. Schick v.

Bronstein, 447 F.Supp. 333 (SDNY 1978);

Bertheas v. TWA 450 F.Supp. 1069 (EDNY 1978);

Gabriele v. Chrysler Corp., 573 F.2d 949,

954 (6th Cir. 1978); Miller v. International

Paper, 408 F.2nd 283 (5th Cir. 1969). As

is clear from the discussion below, Local 3

was not named as a party in the EEOC pro-

ceeding which preceded the first (the

"Ingram" action) of the two law suits

involved here. Although there are ex-

ceptions to the general rule just described,

see e.g., Schick v. Bronstein, supra; Stith

v. Manor Baking Co., 418 F.Supp. 150, 156

(1)

Footnotes continued...

sei

(W.D.Mo. 1976), and although it is not

entirely clear that the Ingram plaintiffs'

Title VII claim against Local 3 would not

fit under one of these exceptions, plain-

tiffs' counsel conceded that the claim is

barred by the railure to name Local 3 in

the EEOC charge. Thus, insofar as the

Ingram plaintiffs are concerned, plain-

tiff relies solely on its § 1981 and

§ 1985 claims.

52a

Under the terms of the proposed decree -

which is pending before this Court for

approval - Center, Inc., Garden Corp., AMC

and Allied ("the defendants"), while main-

taining that "they are and always have been

in full and complete compliance" with

Title VII and all other federal and state

employment discrimination statutes, agree

to work towards the goal of employing blacks

and hispanics ("minorities") at the Garden

as laborers in accordance with their general

proportion in the labor force in the New York

local labor market. To this end, the plain-

tiffs and Garden defendants agree to the

following:

(1) five of the members of the plain-

tiff class, (Ingram, Britt, Pettigrew,

Boudreaux and Perry) will be given the

opportunity to become laborers before any

other person is hired as a laborer by

Center, Inc., which retains its good faith

right to reject or terminate enploynent

of these plaintiffs.

(2) Center, Inc. will thenceforth use

its best efforts to fill every second

available job in the laborer's force with

a qualified minority applicant - with

qualified class members having the oppor-

tunity to fill every fourth (i.e., every

(ii)

continued...

53a

second minority) position, until

minority representation among the

laborers reaches 27%.

(3) The decree is not applicable

either to the hiring of laborers on a

"temporary" basis as defined in the

decree, or to the reemploying of

laborers who are at present or in the

future may be laid off. Center, Inc.

is not obligated to increase the number

of permanent laborers.

(4) Nothing in this agreement

effects the seniority or other rights

of existing laborers, except that the

defendants agree to be bound by any order

or settlement regarding seniority sub-

sequently entered against Local 3.

(5) After the 27% goal is reached,

and for not less than 5 years from the

effective date of the decree, or one year

after the 27% goal is reached, whichever

occurs later, Center, Inc. is required to

post notices of laborer openings at a

prominent place within the Garden, setting

out application procedures and necessary

qualifications. There is no obligation

to maintain minority representation within

the laborer force at or above the 27%

level at all future times.

(6) Defendants agree to pay $117,500

to the named plaintiffs and all class

members in full settlement of plaintiffs’

monetary claims. .

(7) Defendants will not oppose an

application by plaintiffs' attorney for

legal fees and expenses in the sum of

$47,500, and counsel for plaintiffs will

(iii)

continued...

S4a

make no application against the settling

defendants for legal fees in excess of

that amount. Plaintiffs also agree to

indemnify settling defendants from any

claims or judgments against them resulting

from any order or settlement with Locals 3

or 54.

(8) Notice of this proposed decree

was mailed or personally delivered to

members of the plaintiff class on

September 28, 1979.

Given the terms of the proposed consent decree

and this Court's finding as to Local 3's

liability, the primary question in the remedial

stage of this proceeding will be the seniority

rights of class members who become laborers.

5/ A complaint in intervention was

filed by intervenors Williams, Milon,

Mitchell and Garcia on June 30, 1978, and

a Sixth Amended Complaint, containing the

combined charges of the plaintiffs and

intervenors was served on July 16, 1979.

6/ Plaintiffs have made a number of

other allegations concerning an alleged

conspiracy between defendants and

Local 3's status as an employment agency

under 42 U.S.C. 2000e(c). Given our

decision in this case, a resolution of

those issues is unnecessary here.

7/ Except with respect to the Ingram

Title VII claim, which is discussed in

footnote 3 above.

8/ Beginning in August, 1967, Center,

Inc. entered into a series of contracts

with AMC or its subsidiaires, of which

Allied is one, by which the latter agreed

to take over and supply the labor force for

(iv)

continued...

55a

various cleaning and janitorial functions

at the Garden. This process culminated

in the July 2 contract, which covered all

interior area services not already served

by AMC or its subsidiaries.

Elevator operators remain employees

of Center, Inc. although they are members

of Local 54 and are included in the

classes involved here.

Plaintiffs claim that cleaning

,unctions occupy "69%" of a laborer's

day. Defendant concedes only that such

functions account for 2-1/2 hours per day.

At trial, the Garden superintendent,

Richard Donopria, testified that he

"visually appraises" the physical ability

of the men sent to him by the union, and

that he occasionally has sent some people

back because they were overweight. Each

of those sent back was eventually hired,

however.

A physical examination, two letters

of reference and a willingness to work

on weekends are required of those Allied

employees sent to work at the Garden.

This account is drawn primarily from

the testimony of Garden Superintendent

Richard Donopria and Local 3 Assistant

Business Manager James O'Hara.

Donopria did testify that one person

hired as a temporary watchman, whose aunt

was a supervisor of the cleaners, even-

tually became a laborer. At his deposition,

O'Hara claimed that this incident, involving

a laborer by the name of Thomas Blewitt,

was one of a “couple” in which someone at

the Garden recommended a man to him. He

56a

further testified that Blewitt was the

only laborer now working at the Garden

that he knew of who was so recommended.

O'Hara Dep. 13.

15/ Both plaintiffs and defendant agree

that the minority members referred by

O'Hara were specifically recruited on the

basis of their race from other divisions

of Local 3.

16/ O'Hara testified at trial that when

the case started (but before Local 3 had

been made a party), he had discussed the

hiring of blacks with a Vice President of

Operations at the Garden. The Garden

official responded that any such hirings

should wait until the case had been

decided.

7/ Plaintiffs' witnesses also testified

to similar activities on the part of Garden

personnel. This testimony is not relied on

here, since we are concerned solely with

the liability of Local 3.

18/ Lawrence Hawkins, one of those class

members who, on more than one occasion,

sought information from union and Garden

officials as to how to become a laborer,

testified that he was "testing the waters",

and after his inquiries were repeatedly

ignored concluded that there was "no

point". Hawkins also testified that he

was told by Smith, a black laborer, that

he would not want to become a laborer

because he would receive a "herd time".

19/ It is not clear from defendant's

brief whether this objection is limited

to the Ingram § 1985 claim or whether it

is addressed to all of the § 1985 claims

57a

involved herein. Since the matter goes

to this Court's power to hear these

claims, we treat it as an objection to

the § 1985 claims generally.

The Novotny holding was also based

on the Court's conclusion that § 1985

does not itself create any substantive

rights but merely provides a remedy for

the infringement of other federal rights.

Since Title VII explicitly provides its

own remedial scheme, it is not one of

these federal rights which may be

redressed by § 1985.

There is thus no need here to address

the question of whether Novotny would

apply in a case where a plaintiff's

claims in fact "transcend" Title VII.

In fact, at least one witness,

Ricardo Esparra, a cleaner at the Garden,

testified at trial that he had asked Mel

Mullins, the Local 3 shcp steward, about

becoming a laborer sometime during 1978,

but that he "never got anywhere". Shelly

Anderson, a cleaner at the Garden and

another witness at trial, testified that

he went to the union office in 1972 or

1973 to seek a position as a laborer.

Although the timing of such individual

incidents is irrelevant for statute of

limitations purposes in light of the

conclusion reached below, the Court finds

that these witnesses did make inquiries

about becoming laborers at the time

alleged, and that no clear responses

were forthcoming.

They were on the premises, observed

the laborers performing duties which they

felt qualified to perform and were aware

of the pay and benefit differentials.

(vii)

continued...

58a

24/ At least one of these minority referrals

occurred after this law suit commenced, and

all took place after January of 1970. If

the one referral which occurred in 1978 is

not considered, the percentage of minority

referrals drops to less than 14%, or 5 out

of 37.

25/ All figures are based on the 1970

census and were offered by plaintiffs.

The first figure is for the "Standard

Consolidated Area” and includes New York

City, Newark, Jersey City, Patterson-Clifton-

Passaic, and Middlesex and Somerset Counties

in New Jersey. The second figure represents

the percentage of blacks and hispanics in

the New York City labor force. A third

figure offered by the plaintiffs is 27.4%

for the "Standard Metropolitan Statistical

Area", which includes the five counties of

New York City, Rockland and Westchester

Counties, New York and Bergen County,

New Jersey. Since both laborers and

cleaners are essentially unskilled or

semi-skilled employees with no particular

job qualifications, the unrestricted total

work force statistics offered by plaintiff

are sufficient. See, EEOC v. International

Union of Elevator Constructors, Local Union

No. 505, 398 F.Supp. 1237 (E.D.Pa. 1975);

aff'd sub nom. United States v. Inter-

national Union of Elevator Constructors,

Local Union No. 505, 538 F.2d 1012 (3d

Cir. 1976).

The inference of discrimination drawn

by the statistical disparity present here

is supported by the testimony of Dr. Beth

Niemi, a labor economist at Rutgers who

testified for the plaintiffs. Dr. Niemi

‘testified that given the statistics

described above, there is less than a one

in one thousand chance that the laborer and

continued...

el et

59a

cleaner work forces as presently con-

stituted could have been drawn from the

same labor market, i.e., that only some

factor other than chance could cause a

work force with the racial composition

present here to be drawn from the total

labor market.

(ix)

60a

UNITED STATES DISTRICT COURT

SOUTHERN _DISTRICT_OF_NEW_YORK_______ x

HENRY INGRAM, JAMES BRITT, WILLIAM

MOODY, and ROY T. FLOYD, in-

dividually and on behalf of all 76 CIV

persons similarly situated, 5870

(LBS)

Plaintiffs,

-and-

FRANCES WILLIAMS, EDWARD MILON,

HORACE MITCHELL, HERBERT BRUTON,

JOVINO GARCIA,

Intervenors, OPINION

-against- #49241

MADISON SQUARE GARDEN CENTER,

INC., MADISON SQUARE GARDEN

CORPORATION, ALLIED MAINTENANCE

CORPORATION, ALLIED PUBLIC

EVENTS SERVICE CORPORATION, and

LOCAL # 3 I.B.E.W.,

Defendants.

SHELLY ‘L. ANDERSON, JAMES L.

PERRY, individually and on behalf

of all others similarly situated,

Plaintiffs,

-against- 76 CIV

MADISON SQUARE GARDEN CENTER, apd

INC., MADISON SQUARE GARDEN

CORPORATION, ALLIED MAINTENANCE

CORPORATION, ALLIED PUBLIC

EVENTS SERVICE CORPORATION, LOCAL

3 I.B.E.W., LOCAL 54, SERVICE

EMPLOYEES INTERNATIONAL UNION,

Meets RR:

6la

APPEARANCES: (See last page)

SAND, D.J.

This is a motion pursuant to

F.R.Civ.P. 23(e) for approval of a

proposed class action settlement or

consent decree entered into between

all four of the plaintiff classes in

these two consolidated class actions

and Madison Square Garden Center, Inc.,

Madison Square Garden Corporation,

Allied Maintenance Corporation and

Allied Public Events Service Corpora-

tion, referred to collectively herein.

as “the settling defendants", The

factual and procedural background of

this litigation is described fully in

an earlier opinion of this Court in

this matter dated October 3, 1979,

wherein Local 3, International

Brotherhood of Electrical Workers

("Local 3"), was found to have violated

both Title VII of the Civil Rights Act

62a

of 1964, 42 U.S.C. § 2000e (1970) and

the Civil Rights Act of 1866, 42 U.S.C.

§ 1981 (1970).2/ Familiarity with the

facts is therefore assumed in the dis-

cussion that follows.

Under the proposed decree, the

settling defendants maintain that "they

are and always have been in full and

complete compliance" with Title VII and

all other federal and state employment

discrimination statutes, and agree to .

work towards the goal of employing

blacks and hispanics ("minorities")

at the Garden as laborers in accordance

with their general proportion in the

labor force in the New York local labor

market. To this end, the plaintiffs

and Garden defendants agree to the

following:

(1) Five of the members

of the plaintiff class, (Ingram,

Britt, Pettigrew, Boudreaux and

Perry) will be given the oppor-

tunity to become laborers before

63a

any other person is hired as a

laborer by Madison Square Garden

Center, Inc. ("Center, Inc."),

which retains its good faith right

to reject or terminate employment

of these plaintiffs.

(2) Center, Inc. will

thenceforth use its best efforts

to fill every second available job

in the laborer's force with a

qualified minority applicant, with

qualified class members having the

opportunity to fill every fourth

(i.e., every second minority)

position, until minority representa-

tion among the laborers reaches 27%.

Center, Inc. shall maintain a list

of class members who apply for

positions as laborers and shall ex-

tend offers to qualified applicants

in order of seniority, as measured

by the duration of each applicant's

employment at the Garden.

(3) The decree is not

applicable either to the hiring

of laborers on a "temporary" basis

as defined in the decree, or to the

reemploying of laborers who are at

present or in the future may be

laid off. Center, Inc. is not

obligated to increase the number

of permanent laborers.

(4) Nothing in the agree-

ment effects the seniority or other

rights of existing laborers, except

that the defendants agree to be

bound by any order or settlement

regarding seniority subsequently

entered against Local 3.

64a

(5) After the 27% goal is

reached, and for not less than 5 years

from the effective date of the decree,

Or one year after the 27% goal is

reached, whichever occurs later,

Center, Inc. is required to post

notices of laborer openings at a

prominent place within the Garden,

setting out application procedures

and necessary qualifications. There

is no obligation to maintain minority

representation within the laborer

force at or above the 27% level at

all future times.

(6) For so long as the

aforementioned hiring constraints

remain in effect, the Garden defen-

dants shall provide quarterly reports

of all laborer hiring to plaintiffs'

attorney within thirty days following

the close of each calendar quarter.

(7) Defendants agree to pay

$117,500 to the named plaintiffs and

all class members in full settlement

of plaintiffs' monetary claims.

(8) Defendants will not

Oppose an application by plain-

tiffs' attorney for legal fees

and expenses in the sum of $47,500,

and counsel for plaintiffs will make

no application against the settling

defendants for legal fees in excess

of that amount. Plaintiffs also

agree to indemnify settling defen-

dants from any claims or judgments

against them resulting from any

ours or settlement with Locals 3

or 54.

65a

Notice of the proposed decree

was mailed via first class mail or

personally delivered to each member of

the plaintiff classes on September 28,

1979. The notice specifically in-

formed class members of their right to

object to the settlement and instructed

them as to how to do so.— No objec-

tions have been made, and at a hearing

held on October 17, 1979, counsel for

plaintiff and the settling defendants

urged this Court to approve the settle-

ment. The settlement is now approved

to the extent set forth herein.

The purpose of requiring Court

approval of a "dismissal" or “compro-

mise" of a class action is to protect

the interests of non-party class

members. See George v. Parry, 77

F.R.D. 421 (S.D.N.Y. 1978), affirmed,

578 F.2d 1367 (24 Cir. 1978¥-(oral

opinion). In determining whether a

66a

settlement adversely affects such in-

terests, the essential question is

whether the proposed settlement is fair

and reasonable and in the best interests

of all those who will be affected by it.

See Robertson v. National Basketball

Ass'n, 556 F.2d 682 (2nd Cir. 1977).

See generally, 7 A Wright and Miller,

Federal Practice and Procedure, § 1797

(1972). Factors to be considered in

making such a determination include the

complexity, expense and likely dura-

tion of the litigation avoided by the

settlement, the reaction of the class

members to the settlement, the resources

of the defendant, the stage of the pro-

ceedings and the amount of discovery

‘completed, the risks attendant upon

seeking a class remedy through litiga-

tion, and the reasonableness of the

settlement in light of both the best

possible recovery and the risks of

litigation. See City of Detroit v.

67a

Grinnel Corp., 495 F.2d 448 (2d Cir.

1974).

Rather than dwell at length on

factors such as the complexity and

risks of the potential litigation, it

seems appropriate to focus on the two

factors which the Court finds most

significant in this particular case.

First, no class member has objected to

the proposed settlement. This factor

takes on added importance in light of

both the relatively small size of the

class+/

and the type of notice given.

Second, the remedial measures provided

by the proposed decree encompass almost

the entire spectrum of types of relief

typically available in employment dis-

crimination litigation. Prompt relief

is provided for five of the named

plaintiffs, minority hiring and more

regularized hiring practices are im-

posed, damages and counsel fees are

68a

awarded and the settling defendants

agree to be bound by whatever seniority

modification comes out of the current

Local 3 litigation.

From both the face of the

agreement and the reaction of the

class, it seems clear that this settle-

ment provides plaintiffs with a highly

desirable recovery from these defen-

dants, and that however great or minimal

the expense and risk attendant upon a

full trial on the merits, plaintiffs

have substantially achieved their goals

without being subjected to those burdens.

Finally, the Court notes that settlement

was reached only after extensive dis-

covery by both sides, and that there has

been no allegation and certainly no

evidence of collusion by counsel.

The settlement decree includes

an uncontested award to plaintiffs’

attorney of $47,500 for both legal fees

69a

and expenses. No class member has

objected to this award. To date,

however, plaintiffs' counsel has not

provided the Court with records of

his hourly rate, time spent and ex-

penses incurred. There is thus no

basis for the Court to determine

whether the award is reasonable under

the circumstances. The Court awaits

submission of the requested informa-

tion before deciding whether to approve

this part of the settlement. We proceed

in this piecemeal fashion because, at

oral argument, counsel for the Garden

informed the Court that ten laborers

were to be hired in the near future,

and that the Garden would be reluctant

to adopt the minority hiring provided

in the settlement if it were not under

a Court decree.

In the Court's view, the four

classes involved herein will receive

70a

benefits from this settlement at least

commensurate with any they could reason-

ably have expected from a full trial.

There is no evidence of possible pre-

judice to absent class members, all of

whom have been notified and given the

Opportunity to object. Accordingly,

the motion for approval of the settle-

ment is granted, except as to the

application for counsel fees. That

application will be considered after

the plaintiffs' counsel's affidavit

is received.

SO ORDERED.

Dated: New York, New York

October 23, 1979

U.S.D.J.

7la

FOOTNOTES

The Local 3 trial was bifurcated

into a liability and a remedial stage.

The remedial proceeding is currently

before this Court.

Objecting class members were in-

structed to write to this Court.

The Court notes, however, that at

least insofar as the Garden defendants

are concerned, plaintiffs herein could

probably have established a prima facie

violation of the employment discrimina-

tion statutes based on the facts adduced

during the Local 3 trial.

The combined membership of all four

plaintiff classes was 194.

(i)

72a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

HENRY INGRAM, JAMES BRITT, WILLIAM

MOODY, and ROY T. FLOYD, in-

dividually and on behalf of all

persons similarly situated,

Plaintiffs,

-and- 76 CIV

FRANCES WILLIAMS, EDWARD MILON, ppd

HORACE MITCHELL, HERBERT BRUTON,

JOVINO GARCIA, #49433

Intervenors,

-against-

MADISON SQUARE GARDEN CENTER,

INC., MADISON SQUARE GARDEN OPINION

CORPORATION, ALLIED MAINTENANCE

CORPORATION, ALLIED PUBLIC

EVENTS SERVICE CORPORATION, and

LOCAL # 3 I.B.E.W.,

Defendants.

SHELLY L. ANDERSON, JAMES L.

PERRY, individually and on behalf

of all others similarly situated,

Plaintiffs,

-against-

MADISON SQUARE GARDEN CENTER,

INC., MADISON SQUARE GARDEN

CORPORATION, ALLIED MAINTENANCE

CORPORATION, ALLIED PUBLIC

EVENTS SERVICE CORPORATION, LOCAL

3 I.B.E.W., LOCAL 54, SERVICE

EMPLOYEES INTERNATIONAL UNION,

Defendants.

78 CIV

1453

(LBS)

73a

APPEARNCES: (See last page)

SAND, D.J.

On October 3, 1979, this Court

held that the manner in which Local #83,

International Brotherhood of Electrical

Workers ("Local 3") referred workers to

Madison Square Garden ("the Garden”) for

employment as “laborers” violated both

Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 20003 (1970) and the Civil

Rights Act of 1866, 42 U.S.C.C. §.1981

(1970) .2/ The Court found that the

plaintiffs in the first of these two

consolidated class actions ,~/

the

"Ingram" plaintiffs, were entitled to

recover under § 1981 only, while plain-

tiffs in the second action, the "“Ander-

son" plaintiffs, were entitled to re-

cover under both Title VII and

§ 1981.3/ Pursuant to the Court's

initial decision to bifurcate the

trial into a liability and a remedial

74a

stage, a hearing on all remedial issues

was held on October 17, 1979, and both

parties submitted briefs shortly there-

after.

Plaintiffs seek an injunction

ordering Local 3 to regularize its

referral practices—' and to refer to the

Garden "in order of their current

seniority" those class members who

desire a laborer's position. Plain-

tiffs also seek full backpay for all

class members who unsuccessfully applied

for the job of laborer or who would have

applied but for their belief that such

application would be futile. Finally,

plaintiffs seek an injunction ordering

Local 3 to credit all class members who

become laborers with full seniority

for all purposes for the same number of

years that they worked as cleaners at

the Garden. Reasonable attorneys'

fees and costs are also sought.

75a

The Court finds that, as a

general matter, an award of backpay,

retroactive seniority and attorneys'

fees is appropriate here. The case

will now be referred to Magistrate

Leonard A. Bernikow (or such other

Magistrate as he shall designate) as

Special Master under F.R.Civ.P. 53

who, in accordance with the general

guidelines set forth below, will make

recommendations to the Court as to

both the entitlement of individual class

members to such relief and the amount

appropriate chargeable to defendant

for attorneys' fees and costs.>/

Plaintiffs' request for prospective

injunctive relief is granted as modi-

fied herein.

I. Retroactive Seniority

When a court finds that an

employer or union has engaged in a

policy of unlawful employment dis-

76a

crimination, class action plaintiffs

are not required to introduce specific

evidence of individual acts of dis-

crimination at the remedial stage of

the proceeding. The proof supporting

the finding of liability in such a case

also "supports an inference that any

particular employment decision, during

the period in which the discriminatory

policy was in force, was made in

pursuit of that policy." International

Brotherhood of Teamsters v. United

States, 431 U.S. 324, 361-2 (1977).

Where such a policy is found to exist,

the Supreme Court has made clear that,

as a general matter, the District Court

must ordinarily grant seniority relief,

absent reasons for denying such relief

which, if applied generally, would not

frustrate the central statutory pur-

poses of eradicating discrimination

and making persons whole for injuries

77a

suffered. Teamsters v. United States,

431 U.S. at 365; Franks v. Bowman

Transport Co., 424 U.S. 747, 771 (1976).

Since defendant Local 3 has made no

argument that such reasons exist here

and since this Court has already found

that Local 3 engaged in a policy of un-

lawful employment discrimination, the

Court now concludes that an award of

retroactive seniority is appropriate.

This, however, does not necessarily mean

that each class member is entitled to

such relief. Only actual victims of

Local 3's discriminatory referral

practices are entitled to retroactive

seniority. Teamsters v. United States,

431 U.S. at 371-372.

There are two means by which

class members can demonstrate that they

are actual victims. The first is for

a class member to prove that he or she

actually applied to Local 3 for referral

78a

to the Garden as a laborer. Once such

an application is established, there is

a presumption that the class member

involved is entitled to retroactive

seniority, and the burden is on the

union to show that its failure to refer

was for non-discriminatory reasons.

Teamsters v. United States, 431 U.S.

at 362. In this case, however, Local

3's referral practices made a formal

application for reference to the

Garden impossible: there was simply

no established application procedure,

and union officials deliberately

frustrated informal attempts by class

members to secure a laborer's posi-

tion. See Op. at p. 7-9; 9-10. A

liberal construction of the term

"application" is thus called for if

class members are to be restored to

their "rightful place" in the seniority

scheme. See Acha v. Beame, 570 F.2d

79a

57 (2d Cir. 1978); James v. Stockham Valves

& Fittings Co., 559 F.2d 310 (5th Cir.

1977). Accordingly, any expression by a

class member to a Local 3 official evidenc-

ing a desire either to become a laborer or

to acquire information as to how to obtain

a referral will be treated as an "“applica-

tion" for purposes of determining whether

that class member was an "actual victim"

of Local 3's discriminatory employment

practices. To do less would penalize

plaintiffs for union referral procedures

and record-keeping practices which have

already been condemned by this Court as

violative of the employment discrimination

laws. See E.E.0.C. v. Local 38 of the

Sheet Metal Worker's International Assoc.,

532 F.2d 821, 832 (2d Cir. 1976); Carter

v. Shop-Rite Foods, Inc., 470 F.Supp. 1150

(N.D. Tex. 1979) (lack of formal applica-

tion procedure was itself a tool of dis-

crimination.

80a

Absent an application as defined

above, a second and more difficult way for

class members to demonstrate that they were

actual victims of Local 3's discriminatory

referral practices is to prove that they

were qualified for a laborer's position

and that they would have applied for a

referral had it not been for those prac-

tices. Teamsters v. United States, 431

U.S. at p. 368 (referring to the non-

applicants' "not always easy burden".)

In this case, the Court has already

found that the atmosphere at the Garden

was such that class members could reason-

ably have believed that seeking a re-

ferral from Local 3 would be futile.

See Op. at p. 10. Such a finding, while

essential to the nonapplicants' case, does

not mean that all nonapplicants who now

seek laborers' positions are entitled to

retroactive seniority. Teamsters v.

United States, 431 U.S. at p. 369-371.

8la

Each such nonapplicant must come forward

with evidence that he or she desired a

laborer's job, possessed the requisite

qualifications, and would have sought a

referral but for the Union's discrimina-

tory practices. Evidences of a class

member's desire to become a laborer may

consist of an informal inquiry or

expression of interest to someone other

"unexpressed desire credible and con-

vincing." Teamsters v. United States,

431 U.S. at p. 371, n. 58. See, e.g.,

United States v. East Texas Motor Freight

System, Inc., 20 EPD 4 30, 103 (N.D.Tex.

1979) (making individual retroactive

seniority determinations for nonappli-

cants). The question is a factual one,

but if a change from cleaner to laborer

would have entailed a loss of seniority

at the time— the class member involved

desired such a change, then whether that

82a

class member would have accepted a

laborer's position at that time despite

the loss of seniority is a relevant

if not determinative consideration.

See Teamsters v. United States, 431 U.S.

at p. 370-371.

Although plaintiffs seek full

seniority for the number of years that

qualifying class members who become

laborers worked at the Garden, no class

member may be given retroactive seniority

to a date earlier than the effective date

of Title VII or the date of his applica-

tion or proven "desire", whichever is

later.— Teamsters v. United States, 431

U.S. at p. 356-357. Thus, an applicant

or nonapplicant who qualifies for seniority

relief under the standards set out above

will be granted retroactive seniority as

of the date of the next laborer hire

resulting from a Local 3 referral which

followed the class member's application

83a

or qualifying desire, subject to a maximum

date of July 2, 1965. See, e.g., Harper v.

General Grocers Co., 590 F.2d 713 (8th Cir.

1979); Sagers v. Yellow Freight System,

Inc., 529 F.2d 721 (Sth Cir. 1976);

Linebaugh v. Auto Leasing Co., 18 EPD

q 8, 904 (W.D.Ky. 1978) (retroactive

seniority awarded "as of date [plaintiff]

should have been employed by defendant",

i.e., as of date of next hire following

her application). The source and date of

laborer hires should be drawn from the

books and records of the employer and the

evidence adduced at trial, but there is a

strong presumption that most if not all

laborer hires were the result of a Local 3

referral. See Op. at p. 7-9. Evidence

of applications of the "desire" and

qualifications of nonapplicants may be

drawn from the testimony at trial, from

depositions, interrogatories and other

documents admitted into evidence, and,

84a

if necessary, from testimony at hearings

held before the magistrate.’

Evidence of

the union's nondiscriminatory reasons for

its failure to refer individual class

members should also be presented to the

magistrate 22’

Although this procedure for

identifying actual victims of Local 3's

discriminatory practices and restoring

them to their "rightful place" will

"necessarily involve a degree of approxi-

mation and imprecision", the Court believes

that it is both well within its broad

equitable powers under Title VII to fashion

the most complete relief possible and

consistent with the Supreme Court's speci-

fic mandate to "recreate [as nearly as

possible) the conditions and relation-

ships that would have been had there been

no unlawful discrimination". Teamsters v.

United States, 431 U.S. at p. 372 (quoting

Franks v. Bowman Transport Co., 424 U.S.

at p. 769). See also, Acha v. Beame, supra;

85a

James v. Stockham Valves & Fittings Co.,

supra (under "rightful place" doctrine,

sufficient retroactive seniority is given

to permit the advancement and layoff pro-

tection the victim of the discrimination

would have enjoyed but for the discrimina-

tion).

Finally, while the Ingram plain-

tiffs are entitled to recover under § 1981

and not under Title VII, the Court notes

that the two statutes have generally been

similarly interpreted and applied, see,

e.g., Carrion v. Yeshiva University, 535

F.2d 722 (2d Cir. 1976), and sees no

reason why successful § 1981 plaintiffs

should not be eligible for a retroactive

seniority award. See Williams v. DeKalb

County, 577 F.2d 248 (Sth Cir. 1978) back-

pay award appropriate in a § 1981 suit).

Accordingly, the Ingram plaintiffs' individ-

ual entitlements to retroactive seniority

will be determined in accordance with the

86a

standards set forth above, including the

maximim seniority date of July 2, 1965.

See Johnson v. Goodyear Tire & Rubber Co.,

491 F.2d 1364, 1374-75, 1378-79 (5th Cir.

1974) (limiting the availability of back-

pay relief under § 1981 to the effective

date of Title VII). As the Fifth Circuit

stated in Johnson, the "balancing of the

equities" in the employment discrimination

area suggests that backpay relief under

§ 1981 should be limited to the effective

date of Title VII, and this Court believes

that the same rule should govern an award

of retroactive seniority. Any other con-

clusion would be particularly unfortunate

in this case since two essentially identical

plaintiff classes would then be eligible

for different measures of relief after

having suffered from the same discrimina-

tory practices.

87a

II. Backpay

Much of what has already been said

about retroactive seniority applies to

backpay as we11,22/ The standard for

general availability is identical in both

contexts; indeed, that standard was first

adopted by the Supreme Court in a backpay

decision. Albemarle Paper Co. v. Moody,

422 U.S. 405 (1974). The standard for

determining the eligibility for backpay

of individual "applicant" class members

is also the same as that employed in the

retroactive seniority context .=2/ See,

e.g., Hill v. Western Electric Co., 596 F.2d

(4th Cir. 1979); Mitchell v. Mid-Continent

Spring Co., 583 F.2d 275 (6th Cir. 1977);

Chewning v. Schlesinger, 471 F.Supp. 767

(D.C.D.C. 1979). The questions which

require extended separate discussion are

whether nonapplicants are eligible for

backpay relief, the effect of the statute

of limitations, the composition of a backpay

88a

award, and the availability of front pay.

The Court notes before addressing those

questions, however, that since defendant has

pointed to no reason for denying backpay

relief which, "if applied generally, would

not frustrate" the purposes of the employ-

13/

ment discrimination laws,—-'a backpay

award is, as a general matter, appropriate

here. +4/

Although the Supreme Court opinion

in Teamsters v. United States, supra, was

not concerned with backpay, courts con-

fronted with the question since Teamsters

have held that "nonapplicants" are poten-

tially eligible for a backpay award, and

have applied Teamsters eligibility stan-

dards to the backpay area. See, e.g., Hill

v. Western Electric Co., supra; Mitchell v.

Mid-Continent Springs Co., supra; Carter v.

Shop-Rite Foods, Inc., supra; Chewning v.

Schlesinger, supra. This approach seems

consistent with the parallel treatment

89a

generally accorded the two remedies by

both the Supreme Court and the lower

federal courts. Compare Teamsters v.

United States, supra, with Albemarle Paper

Co. v. Moody, supra. Moreover, the

Teamsters Court's concern that imposing

an absolute bar on relief to nonapplicants

would "put beyond the reach of equity the

most invidious effects of employment dis-

crimination" is equally applicable here.

Teamsters v. United States, 435 U.S. at

p. 365, 367. That language at least

suggests that limiting the type of relief

available to a victim of discrimination

because he is a nonapplicant would be in-

consistent with the duty of the courts to

secure "complete justice" and provide a

"make whole" remedy for such victims. Id.

at 364. The Court thus concludes that

backpay relief is available to nonapplicants,

and that the standards set out in Teamsters

v. United States, supra, and described above

90a

are to be used in making individual eligi-

bility determinations.22/

Unlike an award of retroactive

seniority which is subject only to the

maximum recovery date of July 2, 1965,

backpay awards are also subject to a statute

of limitations. Title VII specifically

provides that "[b)ackpay liability shall

not accrue from a date more than two years

prior to the filing of a charge with” the

E.E.0.C. 42 U.S.C. § 2000e-5(g) .25/

Thus,

the Anderson plaintiffs' backpay award is

actually subject to a maximum recovery date

of November 24, 1973, which is two years

before their charge naming Local 3 was

17/

filed with the Commission.—’ The Ingram

plaintiffs, whose backpay recovery is

based on § 1981 rather than Title viz ,28/

are subject to the applicable state limita-

tions period, Johnson v. Railway Express

Agency, 421 U.S. 454, 462 (1974), which in

New York is three years prior to the time

9la

the lawsuit was commenced. See Cates v.

Trans-World Airlines, Inc., 561 F.2d 1064,

1067 n. 4 (2d Cir. 1977). The maximum

recovery date for the Ingram plaintiffs is

thus May 20, 1974, three years before their

complaint in this action was amended to

include Local 3 as a defendant.

In calculating the amount appropri-

ate for individual backpay awards, the

magistrate should take into account, in

addition to wages, fringe benefits such as

insurance, pension benefits and vacation

and sick pay, as well as overtime pay and

shift differentials. See, e.g., Pettway

v. American Cast Iron Pipe Co., supra;

Farmer v. United Catering, 19 EPD q 9,075

(E.D.Mich. 1978) (including such items in

a backpay award against a union). From

this amount must be deducted the amount

earned as a cleaner between the time of

the individual class member's recovery

date and the backpay termination date.

92a

42 U.S.C. § 2000e-5(g). The backpay

termination date in this Circuit is the

date of the "actual remedying of the

discrimination", i.e., the date on which

the class member involved becomes a laborer.

E.E.O.C. v. Enterprise Association of

Steamfitters, 542 F.2d at 590 (mandating

such a cutoff date for a backpay award

against a union). This approach, which

has been referred to as a "front pay”

award in other circuits, see, e.g., United

States v. Leeway Motor Freight, supra;

White v. Carolina Paperboard Corp., 564 F.2d

1073, 1091 (4th Cir. 1977) (backpay to be

continued until class members attain right-

ful place), is particularly appropriate

here since the Garden's seasonal hiring

practices suggest that it may be some time

before all qualifying clas members actually

become laborers. See, e.g., Ivey v. Western

Electric Co., 16 EPD q 8, 299 (N.D.Ga.

1978). If, as is likely, front pay awards

93a

are to be made to some class members, the

magistrate may either recommend a procedure

by which the Court will retain jurisdic-

tion until all qualified class members

have attained their rightful place in

order to make periodic front pay adjust-

ments, see Ivey v. Western Electric, supra,

Or supplement the backpay award by an

amount equal to the estimated present value

of lost earnings that are reasonably likely

to occur between the final decree and the

time when the class member involved can

assume a laborer's position. White v.

Carolina Paperboard, 564 F.2d at p. 1,091.