# Appendix — Local Union No. 3, International Brotherhood of Electrical Workers v. Ingram > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0354%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 464 U.S. 937 ## Text 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 i 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 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. th 4387 LP) 2 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. i 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 a 3a 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 4a 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 5a 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] 6a 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 7a 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 Ba 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 9a 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 8/ 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 =/ 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 than a Local 3 official ©! or even an "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 7/ 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 8/ 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. See also, United States v. Leeway Motor Freight, supra; James v. Stockham Valves & Fittings Co., supra. Once the above described calcula- tions have been completed, the magistrate May award interest to qualified class members for past earnings lost as a result of the discrimination. See, e.g., Pettway 94a v. American Cast Iron Pipe Co., supra; Kinsey v. Leg Mason Wood Walker, Inc., 16 EPD q 8,168 (D.C.D.C. 1978), affirmed, 21 EPD q 30,292 (D.C.Cir. 1979). Finally, the Court notes that since the consent decree entered into between plaintiffs and the Garden and Allied defendants provides for a monetary award, Local 3 will not be held accountable for the total backpay figure resulting from the backpay calculations discussed above. Whether the amount provided for in the consent decree will be subtracted from the total backpay figure, with the union liable for the remainder, Farmer v. United Cater- ing, supra, or whether the union will be held liable for a portion of the total figure, with the remainder attributed to the consent decree, Myers v. Gilman Paper Co., 544 F.2d 837 (5th Cir. 1977); Steven- son v. International Paper Co., 14 EPD q 7,615 (W.D.La. 1977), will be determined 95a by the Court after the magistrate submits his report. But see, United States v. East Texas Motor Freight System, Inc., 564 F.2d 179 (Sth Cir. 1977) (upholding a district court's denial of a backpay award against a union on the ground that plain- tiffs were "fully compensated" by the monetary award contained in a consent decree between plaintiffs and their employer). The magistrate's report should include a recommendation for the total back- pay figure, as well as for the amounts owing individual class members. III. Prospective Relief The prospective relief sought here poses none of the complicated and sensitive questions which confront a court asked to 19/ establish hiring goals or quotas.—’ See, e.g., Rios v. Enterprise Association Steamfitters Local #638, 501 F.2d 622 (2d Cir. 1974). Once a violation of either Title VII or § 1981 is established, 96a regularizing of employment or referral practices to remedy the vestigates of past discrimination is well within the broad equity power of the trial court. 42 U.S.C. § 2000e-5(g). See United States v. Wood, Wire & Metal Lathers International Union, 71 F.2d 408 (2d Cir. 1973) ("the only limitation on the broad powers of affirma- tive relief is that restricting preferential quota hiring"); Stamps v. Detroit Edison Co., 17 EPD q 8,583 (E.D.Mich. 1978) (ordering defendants to notify class members of their rights under a remedial order by mail). Accordingly, plaintiffs' request that Local 3 be ordered to maintain a referral "register" and to post notices in the Garden of how to apply for a referral is granted. Defendant is ordered to submit to the magistrate for his approval a plan for the establishment of referral lists and copies of the proposed notices to be posted in the Garden. 97a Finally, plaintiffs' request that class members be referred to the Garden in order of their "current seniority" is granted only until such time as retroactive seniority dates have been established. After that time, and after the five class members named in the consent decree have obtained laborers positions, Local 3 is ordered to refer class members to the Garden under the terms of the consent decree in the following order: first, ap- plicants or qualified nonapplicants who now seek a laborer's position in order of their retroactive seniority date, i.e., those with the earliest retroactive seniority date should be referred first; second, once this first group of class members has been placed, the remaining class members should be referred in the order that they seek a referral. Where more than one class member in this second group applies for a referral at the same time, they should then 98a be referred in order of their current seniority as cleaners. In the Court's view, this approach recreates the condi- tions that would have existed but for the discrimination more accurately than would the approach suggested by plaintiffs. IV. Attorneys’ Fees & Costs Reasonable attorney's fees and costs may be allowed the prevailing party in employment discrimination suits under either Title VII or § 1981. See 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988. The standard for determining the amount of such fees is the same under both statutes, and although a fee award is committed to the discretion of the trial court, prevailing plaintiffs in civil rights actions generally recover fees and costs absent special cir- cumstances which would make such an award unjust. See Christianburg Garment Co. v. E.E.0.C., 434 U.S. 412 (1978); Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 99a F.2d 34, 37 (2d Cir. 1978). In this case, defendant's liability has been established and a judgment will ultimately be entered which will both change Local 3's referral practices and provide individual relief for members of the plaintiff classes. There is thus no doubt that plaintiffs' claims were meritorious and that plaintiffs are the "prevailing party” entitled under the appropriate statutes to recover reasonable -attorneys' fees. 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988. Since Allied and the Garden were initially parties to this litigation, it will be necessary to determine what por- tion of plaintiffs' fees and costs are chargeable to Local 3. Currently pending before this Court for its approval is an application for a fee award, contained in the consent decree, in connection with legal services performed by plaintiffs' attorney until the time of settlement with 100a Allied and the Garden. In a forthcoming opinion, the Court will determine a reasonable fee award for all such ser- vices. However, it is clear that since the three defendants were, until settle- ment, part of the same consolidated action, these legal services were per- formed in connection with plaintiffs' Claims against all defendants. The Court thus finds that Local 3 shall be liable for one-third of plaintiffs' legal costs incurred from the commencement of this action until the time of settlement, exclusive of any costs incurred by plaintiffs in settlement negotiations to which Local 3 was not a party. See Rogers v. International Paper Co., 510 F.2d 1340, modified on other grounds, 526 F.2d 722 (8th Cir. 1975); Sagers v. Yellow Freight Systems, Inc., 529 F.2d 721 (Sth Cir. 1976); Bush v. Lone Star Steel Co., 373 F.Supp. 526 (E.D.Tex. 1974). The additional fees 10la incurred as a result of the trial in which only Local 3 was involved, as well as all fees incurred during the remedial phase of this litigation, must necessarily be borne by Local 3 alone. The standards for computing a reasonable fee award have been set out in this Circuit in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974). After a "lodestar" figure has been calculated, the Magistrate may consider additional sub- jective factors in increasing or decreasing the amount of the fee. City of Detroit, 495 F.2d at 471. Moreover, in an appropri- ate case, the not-for-profit character of the defendant against whom an award is | granted may be considered in adjusting the fee. See Rios v. Enterprise Associa- tion Steamfitters Local 638, 400 F.Supp. 993, (S.D.N.Y¥. 1975), aff'd sub nom. E.E.0O.C. v. Enterprise Association Steam- fitters Local 638, 542 F.2d 579 (2nd Cir. 1976), cert. denied, 430 U.S. 911 (1977). 102a The Court notes, however, that any devia- tion in amount from the "lodestar" fee award figure in recognition of such factors must be supported by specific factual findings indicating the basis for the devia- tion. City of Detroit, 495 F.2d at 471. To arrive at a fee award which is reasonable under all the circumstances, the magistrate must be presented with time logs or affidavits detailing the number of hours spent and identifying the attorneys and activities involved. Distinctions between time spent in court and time attributed to research, administrative and related ser- vices may be appropriate in fixing a reasonable hourly rate. See Firebird Society v. Members of the Board of Fire Com- missioners, 556 F.2d 642 (2d Cir. 1977). Care should be taken to avoid award- ing fees for duplicated services and unnecessary expenditures of time. See Gagne v. Maher, 594 F.2d 336 103a (2d Cir. 1979); Reynolds v. Coomey, 567 F.2d 1166 (lst Cir. 1978). If the time logs and other supporting documents are sufficiently detailed, they may provide an appropriate basis for determination of a reasonable fee. Rios, 400 F.Supp. at 996. If there are disputes of fact over the elements that comprise the fee award, however, or if there are "factual voids" in the information presented, an eviden- tiary hearing is "imperative" before an adequate fee can be fairly determined. City of Detroit, 495 F.2d at 473. V. Conclusion The case is now referred to the magistrate for further proceedings consistent with the guidelines set forth herein. During the course of those pro- ceedings, issues not dealt with in this opinion will undoubtedly arise. The Court does not in any way intend to preclude 104a consideration of such issues by the magis- trate who, of course, will have full authority to make recommendations with respect to those issues in light of this opinion. Settle order on notice. Dated: New York, New York December 13, 1979 U.S.D.J. 105a FOOTNOTES The other defendants in these actions entered into a consent decree with plaintiffs . which was approved by this Court in an opinion dated October 23, 1979. The factual and procedural background of this litigation is described in the Court's October 3, 1979 opinion (hereafter "Op."). The four plaintiff classes involved here together compromise all black and hispanic persons who have been or will in the future be employed as "cleaners" at the Garden. See Op. at p. 2 The Ingram plaintiffs’ Title VII claims against Local 3 were dismissed after the plaintiffs' counsel conceded that they were barred by the failure of the Ingram plain- tiffs to name Local 3 in the original E.E.0O.C. proceeding. Op. at n.3. Claims by both the Ingram and Anderson plaintiffs under the Civil Rights Act of 1871, 42 U.S.C. § 1985 (1970), were dismissed in accord with the Supreme Court's recent decision in Great American Federal Savings & Loan Assoc. v. Novotny, 20 EPD 4 30,004 (1979). See Op. at p. 10-11. Specifically, plaintiffs seek an injunc- tion ordering Local 3 to allow class members to register with Local 3 for referral to the Garden as laborers, and to maintain a list of those class members seeking a referral. The union would also be required to post con- spicuously within the Garden notice of how to register on said referral list. Reference to a master or magistrate for such purposes during the remedial stage of employment discrimination litigation is common. See, e.g., United States v. Lee Way (1) Footnotes continued... 106a Motor Freight, 21 EPD 4 30,286 (10th Cir. 1979) (backpay award, special master); E.E.0.C. v. Enterprise Association Steam- fitters Local #638, 542 F.2d 579 (2d Cir. 1976) recommending reference of individual backpay claims to a special master); Meadows v. Ford Motor Co., 510 F.2d 939 (6th Cir. 1975) (retroactive seniority award, special master); United States v. Masonry Contractors Association, 497 F.2d 871 (6th Cir. 1974) (backpay award, magistrate as special master); Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) (backpay award, special master). As it has done throughout the course of these proceedings, the Court encourages resolution of this controversy by means more efficient, economical and expeditious than a continuation of this litigation. Our reference to a magistrate as a special master is not intended to pre- clude any suggestions the parties might care to make promptly to the Court, on consent, of any alternative procedure or master. An inquiry or expression of interest to a Local 3 official should be treated as an "application". See discussion of applicants, supra. Whether this was the case, and whether the situation was the same or different when cleaners were employed by the Garden as opposed to being employed by defendant "Allied", see Op. at p. 4, is not clear from the record now before the Court. These are matters which should be considered by the magistrate. The same limitation date applies regardless of whether an individual class member is recovering under Title VII or § 1981 or both. See discussion infra. (ii) Footnotes continued... 107a The Court finds credible the trial testi- mony of class members who described their efforts to obtain a laborer's position by speaking to the Local 3 shop steward or other union personnel, and the magistrate is instructed to find, subject to rebuttal evidence by the defendant, that those class members are eligible for retroactive seniority. As to the remaining class members seeking similar relief, the Court has been informed by plaintiffs' counsel that much of the information needed to make individual eligibility determinations is contained in depositions or interrogatory responses, some of which have not been admitted into evidence. While the magistrate may certainly rely on everything which has been admitted, informa- tion not admitted should be considered by the magistrate only if properly admitted in the further remedial stage of this litigation. Oral testimony before the magistrate may be desireable in any event since credibility determinations may play a critical role in individual eligibility decisions, particularly in the case of nonapplicants. In dealing with the seniority remedy, the magistrate should consider and report to the Court as to whether a "competitive" (layoff protection) v. "noncompetitive" (vacation time) seniority distinction is possible here and whether, in light of the history of the employment structure at the Garden, see Op. at at p. 4-6, cleaners who become laborers should maintain full seniority for noncompetitive purposes for the number of years they worked at the Garden as cleaners. This is true for the backpay claims under both Title VII and § 1981, which will be treated together here except for the statute of limitations discussion. The backpay remedy is available under § 1981. Williams v. DeKalb County, supra. (iii) Footnotes continued... 12/ Ic: ™ 108a The discussion in the retroactive seniority section of this opinion of the union's evidentiary burden, the construction of the term "application", the maximum cate and the evidence to be considered by the magistrate, is all equally applicable here. The Court notes too that the kind of factors which led the Supreme Court to reject a backpay award in City of Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978) are simply not present here. This conclusion is not foreclosed by the fact that the defendant is a union, and that a backpay award may have serious financial consequences. E.E.0.C. v. Enterprise As- sociation Steamfitters Local #638, 542 F.2d 579, 585-586 (2d Cir. 1976). The Court defers until after the Magistrate submits his report, however, the question of the weight to be given to those considerations. Id. at 586 & 592. In E.E.0.C. v. Enterprise Association Steamfitters Local #638, 542 F.2d 579 (2d Cir. 1976), a pre-Teamsters decision, the Second Circuit held that backpay relief is not available to nonapplicants. Explicitly dis- tinguishing between an award of retroactive seniority to nonapplicants and an award of backpay, the Court focused on the economic burden to the defendant and the far greater number of potential claimants since backpay relief is not limited to those who are still employed by the parties involved. Id. at 588. See also, E.E.0.C. v. Local 28 of the Sheet Metal Workers’ International Association, 532 F.2d 821, 832 (2d Cir. 1976). Although such factors may be relevant when determin- ing whether a court, in its discretion, should award backpay relief, they cannot in light of Teamsters support a per se prohibi- tion of such relief to nonapplicants. In (iv) Footnotes continued... 109a any case, the number of class members claiming backpay in the case now before the Court (43) is only slightly greater than the number who seek retroactive seniority (37). This two year limitation period, adopted as part of the 1972 amendments to Title VII, applies to all charges pending before the E.E.0.C. on March 24, 1972 and all charges filed thereafter. The Anderson plaintiffs' backpay relief is granted under Title VII, which, under these circumstances, provides them with an earlier maximum recovery date than § 1981. See discussion, infra. See note 3, supra. Minority hiring goals are included in the consent decree entered into between plaintiffs and the Garden and Allied defen- dants. (v) 110a UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Pai et ET Pt Oh ee ee eS, x HENRY INGRAM, JAMES BRITT, WILLIAM MOODY, and ROY T. FLOYD, in- dividually and on behalf of all persons similarly situated, 76 CIV 5870 Plaintiffs, (LBS) ~against- FRANCES WILLIAMS, EDWARD MILON, HORACE MITCHELL, HERBERT BRUTON, JOVINO GARCIA, 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- 78 CIV MADISON SQUARE GARDEN CENTER, paved 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. llla APPEARANCES: (See last page) SAND, J., This is the latest Opinion in a case which has spawned numerous Opinions. Although the background of this litigation has been summarized in these prior Opinions of the Court, a general restatement of the factual context of this case is appropriate at this concluding stage of the proceedings. For a more detailed discussion of the facts of this case, see Ingram v. Madison Square Garden Ctr., Inc., 482 F.Supp. 414 (S.D.N.Y. 1979) .+/ Two separate cases were brought by two classes, which together comprise all black and Hispanic persons 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 ("AMC"), and Allied Public Events Service ll2a Corporation ("Allied"). Local #3, Inter- national Brotherhood of Electrical Workers ("Local 3", "the union,” "the defendant”) was also named as a defendant in these actions. Plaintiffs allege that the defen- dant violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 20003 et seg., and the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981 and 1985 respectively, by engaging 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 of "laborer" at Madison Square Garden ("the Garden"). Prior to the trial, Center, Inc., Garden Corp., AMC and Allied all entered into a proposed Consent Decree which was subsequently approved by the Court. See Ingram, 482 F.Supp. 426 (S.D.N.Y. 1979). The consolidated trial of the two actions was limited to the ll3a issue of Local 3's liability under the employment discrimination statutes in- volved. In its Opinion of October 3, 1979, the Court dismissed the plaintiffs' § 1985 claims and dealt with the various jurisdictional and statute of limitations issues which the defendant interposed as defenses. See Ingram, 482 F.Supp. 414 (S.D.N.Y. 1979). The Court held that the manner in which Local 3 referred workers to the Garden for employment as laborers violated both Title VII and § 1981. The Court agreed with the plaintiffs' con- tention that the union, which is the bargaining agent for the laborers at the Garden, and which referred prospective employees to the Garden for employment as laborers, employed a completely sub- jective and standardless referral policy, relying almost entirely on word of mouth favoritism, that operated to discriminate ll4a against class members by preventing them from becoming laborers. The Court found that the plaintiffs in the first of the two consolidated class actions, the "Ingram" plaintiffs, were entitled to recover under § 1981 only, while the plaintiffs in the second action, the "Anderson" plaintiffs, were entitled to recover under both Title VII and § 1981. On December 13,-1979, the Court filed an Opinion establishing guidelines with respect to damages, and found that, as a general matter, awards of backpay, retroactive seniority, and attorneys' fees are appropriate in this action. See Ingram, 482 F.Supp. 918 (S.D.N.Y. 1979). Plaintiffs' request for prospective injunctive relief was granted, subject to certain modifications. The Court explained that class members could demonstrate that they are actual victims by proving a desire for referral as a laborer which was 115a expressed to Local 3 or, alternatively, by proving that they were qualified for a laborer's position and that they would have applied for a referral had it not been for the discriminatory practices. See id. at 922-23. The case was referred to Magi- strate Kent Sinclair, Jr. who, in accord- ance with the general standards outlined in the Opinion, was requested to make recommendations to the Court as to both the entitlement of individual class members to relief and the amount appropri- ately chargeable to the defendant for attorneys' fees and costs. On April 18, 1980, the Magistrate issued "Preliminary Findings” as to retro- active seniority dates for class members who had obtained laborers' positions. These findings were affirmed by this Court on May 5, 1980 without prejudice to such review as the Court should choose to make at the end of the remedial process. ll6a See Ingram, Nos. 76-5870, 78-1453 (S.D.N.Y. May 5, 1980). On November 21, 1980, the Magi- strate issued "Findings of Fact" concern- ing the desire dates and other eligibility determinations respecting seniority for those class members who had come forward to request affirmative relief. On December 8, 1980, Magistrate Sinclair issued an "Interim Order on Monetary Relief" containing a discussion of the backpay formula adopted therein and a summary of the status and expected treatment of open items in connection with the relief aspects of the litigation. The method of computing wage loss which the Magistrate adopted involved comparing each victim's actual compensation with the average compensation of an appropriate group of comparison laborers during the period of discrimination. The Magistrate issued "Findings, 117a Conclusions and Recommendations on Back Pay" on July 27, 1981, which contained his final recommendations with respect to relief other than attorney's fees. This report offered resolutions to the remaining remedy issues and proposed specific monetary awards for those class members who were found to be victims of Local 3's discriminatory referral policy. On October 23, 1981, the Magi- strate issued a "Report Containing Find- ings and Recommendations Re Plaintiffs’ Fee Application." On November 10, 1981, the Magistrate filed two final Orders, one recommending a specific amount for attorneys' fees, and the other denying the defendant's motion to reopen the record. All objections to Magistrate Sinclair's findings and recommendations have been deferred until the conclusion of the proceedings before the Magistrate. Both the plaintiffs and the defendant 118a have now submitted such objections pur- suant to 28 U.S.C. § 636(b) and the United States District Court for the Southern District of New York Rules for Proceeding Before Magistrates, Rule 7. Before discussing these excep- tions to the Magistrate's reports, we address the question whether the legal standard for a finding of § 1981 liability has changed since the Court found Local 3 liable under that statute in 1979. The Court will next consider defendant's motion to reopen the record in this action. Legal developments since the time this Court issued its Opinion of October 3, 1979 require a further elaboration of the finding of liability under § 1981. Currently pending before the Supreme Court of the United States is a case which squarely poses the heretofore unsettled question of whether the establishment of a prima facie case of a § 1981 violation 119a requires a showing of the defendant's intent to discriminate. See Guardians Ass'n of New York City v. Civil Service Commission of the City of New York, cert. granted 50 U.S.L.W. 3547 (January ll, 1982). Most of the courts which have recently addressed this issue, including the Court of Appeals for the Second Circuit, have concluded that a § 1981 plaintiff must prove purposeful dis- criminatory intent. See, e.g., Guardians Ass'n of New York City v. Civil Service Commission of the City of New York, 633 F.2d 232 (2d Cir. 1980), cert. granted 50 U.S.L.W. 3547 (January 11, 1982); Crawford v. Western Electric Co., Inc., 614 F.2d 1300, 1309 (5th Cir. 1980); Mescall v. Burrus, 603 F.2d 1266 (7th Cir. 1979); Des Vergnes v. Seekonk Water District, 601 F.2d 9, 15-16 (lst Cir. 1979). The Court of Appeals for the Second Circuit concluded that "[o]bjectively 120a viewed, the language, structure and history of § 1981 all point to the con- clusion that the statute was simply intended to prohibit purposeful racial discrimination in a wide variety of circumstances, including but not limited to employment discrimination.” Guardians Ass'n, supra, at 267 (emphasis added). As was indicated in this Court's original liability Opinion, plaintiffs have met their burden of proof even under the heightened standard requiring a showing of discriminatory motive. Ingram, 482 F.Supp. 414, 425 (S.D.N.Y. 1979). The statistical disparity between the percentage of black and Hispanic referrals and the percentage of these groups in the labor market sur- rounding the Garden, the standardless referral "system" employed by Local 3, the dependence on word of mouth recruit- ment, and the statements and demeanor of those who testified at trial, all convince l2la the Court that the evidence is sufficient to establish a § 1981 violation based on a standard of discriminatory intent. For these reasons and because of the already protracted nature of these proceedings, we do not defer this decision because of the pendency of the Guardians appeal. We consider next the defendant's motion to reopen the record in this ac- tion in order to put into evidence an affi- davit concerning Local 3 referrals, a document labelled "Hiring List plaintiff Class as of February 18, 1981, positive responses," and a letter from Garden counsel dated August 13, 1981. The Court, after hearing oral argument on the matter, is entirely in accord with Magistrate Sinclair's statements in his Order of November 10, 1981. No acceptable reason has been advanced by the defendant as to why these documents, which have either themselves been long available br which 122a contain information which has long been available, could not have been the sub- ject of a timely offer of proof. The defendant claims that some of the proferred evidence relates to its argument that the plaintiffs' § 1981 case is time barred since the Court of Appeals for the Second Circuit may, in light of developing case law, reconsider its holdings as to the statute of limitations applicable to civil rights actions, and find that it is one year instead of three years. Aside from the purely speculative nature of defen- dant's assertion, such evidence is irrel- evant in the context of this action. The Giscriminatory referral policy, which is the basis of defendant's liability, was continuously adhered to during all times relevant to the defendant's argument and was not a single, isolated act as to which even a one year statute of limitations might be a bar. See Ingram, 482 F.Supp. 414, 423 (S.D.N.Y¥. 1979). l23a In light of the foregoing dis- cussion, the Court sees no reason to reopen the record in this already pro- tracted litigation. The defendant's motion is therefore denied. EXCEPTIONS TO THE MAGISTRATE'S REPORTS The plaintiffs have made seven specific objections to Magistrate Sinclair's recommendations. Defendant has objected to virtually every one of the Magistrate's numerous adverse findings and has imposed upon the Court the burden of considering many misleading characterizations of the record as well as numerous patently ab- surd and frivolous arguments. The Court, after de novo review of the evidence as to all matters as to which objections were made, approves all of the Magistrate's findings and recommen- dations except in the two instances speci- fically discussed below. This Court is of the opinion that the Magistrate's l24a findings and recommendations have been based on an extremely thoughtful analysis of the issues presented, and a thorough and painstaking consideration of the evidence in the case. We discuss herein only those objections with respect to which further comment by the Court is deemed appropriate. Defendant's first objection is that the proceedings before the Magistrate established the spuriousness of plaintiffs' class action. See Defendant Union's Exceptions to Magistrate Sinclair's Find- ings and Supporting Brief at 5-9 (here- inafter "Defendant's Objections"). With- out reciting each of Local 3's character- izations of the evidence, suffice it to say that the Court adheres to its prior findings as to the validity of plain- tiffs' proceeding in the form of class actions, as to Local 3's liability, and as to the reasonableness of a cleaner's 125a belief that it would be futile for a class member to seek a laborer referral from Local 3. The Court merely notes that a particular plaintiff's post-trial decision as to whether or not to become a laborer is in no way dispositive of that indivi- dual’s desires at an earlier time. The Court rejects the defendant's contention that it "should not be burdened with a rebuttable presumption of dis- crimination with respect to each claimant." Defendant's Objections at 15. Local 3's attempts to draw a distinction between the burdens that should be imposed upon a discriminatory employer and a discrimina- tory union are unconvincing. Once Local 3's liability has been found, it is in the posi- tion of a proved wrongdoer. The same fac- tors which would militate in favor of a rebuttable presumption against such an employer -- e.g., probability that decisions were made pursuant to the overall dis- 126a criminatory pattern and superior access to proof -- are equally applicable where it is found that a union has discriminated. Se€e Teamsters v. United States, 431 U.S. 324, 359 n. 45 (1977) (hereinafter "Teamsters"). The defendant argues that "the Claimants being nonapplicants were not entitled to Retroactive Seniority." Defendant's Objections at 19. The defen- dant relies primarily on language from Teamsters, supra, regarding the burdens On a nonapplicant seeking relief, and partially on cases construing § 703(h) of Title VII. The defendant's resort to § 703(h) is misplaced, since that provision only immunizes certain seniority systems from the category of "unlawful employment practice(s)," and does not prevent the award of retroactive seniority as a remedial measure for other discriminatory 127a practices. As the Supreme Court has stated: "There is no indication in the legislative materials that § 703(h) was intended to modify or restrict otherwise appropriate relief once an illegal dis- criminatory practice occurring after the effective date of the Act is proved." Franks v. Bowman Transportation Co., 424 U.S. 747, 757-62 (1976). In the case at bar, plaintiffs did not assert that the laborer seniority system in and of itself violated Title VII, but rather, plain- tiffs seek retroactive seniority as a means of making persons whole for in- juries they suffered. As the defendant acknowledges, the Supreme Court explicitly stated in Teamsters: "We now decide that an incumbent employee's failure to apply for a job is not an inexorable bar to an award of retroactive seniority. Individual nonapplicants must be given an opportunity to undertake their difficult task of proving 128a that they should be treated as applicants and therefore are presumptively entitled to relief accordingly.” Teamsters, supra, at 365-66. Local 3 asserts that the nonapplicants have not met the difficult standard of showing that they were actual victims of the discrimina- tory referral practices, and that the award of retroactive seniority for the plaintiffs was "lightly recommended” by the Magistrate. Defendant's Objections at 25. The Court strongly disagrees with defendant's con- tentions. The extensive record fully supports the Magistrate's fact findings that, with one exception, each of the non- applicants, for whom an award is recom- mended, desired a laborer's job, possessed the requisite qualifications, and would have sought a referral but for the union's discriminatory practices. These nonappli- cants are therefore entitled to an award of retroactive seniority. 129a The defendant asserts that Local 3 may only be liable in damages if its member- ship participated in, authorized, or ratified the actions giving rise to lia- bility. In support of this argument, defen- dant cites cases involving either New York law or federal law regarding the award of punitive damages. See Defendant's Ob- jections at 9-ll, and cases cited therein. The irrelevance of these situations to the issues presently before the Court need not be belabored here. The Court sees no reason to change its view that, as a gen- eral matter, unions may be subject to backpay awards. See Ingram, 482 F.Supp. 918, 925 (S.D.N.¥. 1979). Without directly responding to each of the defendant's objections to the Magistrate's general procedure for determining damages, this Court notes that it wholly endorses the Magistrate's 130a methodology. As the plaintiff correctly contends: "The Magistrate's method was fair and was designed to reconstruct, as nearly as possible, the probable work history of each claimant absent discrimina- tion." Plaintiffs' Memorandum in Reply to Defendant's Exceptions and in Opposi- tion to Defendant's Motion at 17 (here- inafer "Plaintiffs' Reply"). Magistrate Sinclair's choice of laborers with whom to compare the plaintiffs for backpay purposes, his creation of Groups I through V, according to seniority, his assignment of particular plaintiffs into particular Groups, and the manner in which he reduced the award for those plaintiffs who did not use reasonable diligence in mitigating damages, were carried out in a just, sen- sible, and entirely correct manner. Local 3's exceptions amount to no more than an assertion that if the Magistrate had been pursuing different goals, had l3la been presented with different facts, or had made less rational classifications or decisions, the union might have been assessed a lesser amount for backpay awards. Local 3 posits several argu- ments in support of its contention that no backpay should be awarded against the union. First, the union asserts that this Court's pretrial approval of a back- pay settlement made by plaintiffs and the other defendants indicates that plain- tiffs have received total fair recompense for their injuries and should not be permitted to recover additional sums from Local 3. The Court is still of the Opinion that the settlement provided the plaintiffs with a fair recovery from the settling defendants at a time before any determination as to liability. The evi- dence adduced at trial and during the damages phase of the case firmly established 132a Local 3's liability, and further demon- strated that the plaintiffs' total actual damages were far in excess of the amount which they recovered from the other defendants in the Consent Decree settle- ment. It is obvious that plaintiffs have not been fully recompensed, and the Court therefore finds this argument without merit. 2/ The union further argues that it should not be responsible for any backpay awards becausie Local 3 had no duty to represent the plaintiffs. This contention may be rejected summarily. Even though Local 3 did not have a duty as the exclusive representative of the plaintiffs, it is quite clear that, having assumed the role of the employment re- ferral agency for the Garden, it had a duty to refer individuals for the posi- tion of laborer in a fair manner which aid not discriminate on the basis of race 133a Or national origin. It is this duty which the union breached and which caused substantial harm to the plaintiffs. Local 3 argues that "[iJf a backpay assessment were paid by the Garden's sixty laborers...they would patently be bankrupt. If an assessment were levied against the Union membership at large, responsibility would thereby be imposed upon people who had no know- lege of the discriminatory acts, in- cluding Blacks and Hispanics....”" Defendant's Objections at 37. If the defendant is contending that the amount of damages assessable against the union should be limited by the amount that the sixty individual laborers could themselves afford to pay, it cites no authority for that suggestion. Lf the defendant is arguing that only a local may be held liable for union offenses with purely local effects, it likewise cites no legal l134a authority for that proposition. The Court rejects both of these arguments. Plaintiffs' rights to damages sustained by virtue of defendant's discrimination is not limited to any amount by which the defendant or its members may be said to have benefitted. It is not because it has unjustly enriched, but because of the extent of the damage it has inflicted, that the award has been recommended. Defendant's objection that members of other locals of the union will suffer because of the misdeeds of a single local is an objection which relates to the internal management and.leadership of the defendant, but plaintiffs' right of recovery should not be diminished because of such concerns. The defendant further cites several pre-Teamsters cases for the proposition that the applicable law of this Circuit does not permit the award 135a of backpay to nonapplicants. Defen- dant's Objections at 31-33. This argu- ment was explicitly discussed and re- jected in this Court's remedy Opinion and need not be recounted here. Ingram, 482 F.Supp. 918, 925-26 & n. 15 (S.D.N.Y. 1979). In fact, since the time of that Qpinion, the Court of Appeals for the Second Circuit has clearly stated that it does not view the precedent in this Circuit as a bar to an award of backpay damages to nonapplicants who have proved that they are actual victims. See Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1020 n.3 (2d Cir. 1980) cert. denied, 101 S.Ct. 3083 (1981). Local 3 completely ignores this post-Teamsters statement. The Court, taking into account such considerations as the economic burden to the defendant and the number of class members as to whom a backpay award is now relevant, exercises its discretion in l36a favor of awarding backpay to nonapplicant victims in this case. Suffice it to say that the Court adheres to its previously stated view that "limiting the type of relief available to a victim of discrim- ination because he is a nonapplicant would be inconsistent with the duty of the courts to ‘secure justice' and pro- vide a ‘make whole' remedy for such victims." Ingram, 482 F.Supp. 918, 925 (S.D.N.¥. 1979), quoting Teamsters, supra, at 364. The defendant contends that there was no clear proof of the futility of applying for a laborer's job such as to justify an award of backpay to non- applicants. It further asserts that no Class member proved a credible and con- vincing unexpressed desire to work as a laborer. The Court sees no reason to change its prior post-trial finding that 137a 7 ai the atmosphere at the Garden was such that class members could reasonably have believed in the futility of seeking referral from Local 3. See Ingram, 482 F.Supp. 918, 923 (S.D.N.¥. 1979); Ingram, 482 F.Supp. 414, 421 (S.D.N.Y. 1979). It should be noted that this finding was specifically endorsed by Magistrate Sinclair who stated that "defenda:s offered no proof displacing the ines- capable’ finding which underlies Judge Sand's decisions and which I find to be sustained in all the testimony before me, that the futility of taking steps to seek a laborer's position was real, apparent and well known to the claimants." Magistrate's Findings of Fact at 3-4 (November 21, 1980). The Court likewise rejects Local 3's second argument which is based solely on its general assertion that the Claimaint's testimony was incredible. 138a Magistrate Sinclair's painstaking analysis of the evidence applicable to each Pperyer yey claimant was exemplary. It is apparent from the Magistrate's findings and the record that he used an exacting standard before finding that a particular nonapplicant had a desire to be a laborer which remained unexpressed because of futility. The care with which the Magistrate considered all matters before him, including issues of individual credibility, is supported by the fact that he ultimately recommended a backpay award for only nineteen members of the plaintiff classes. The Court finds that there is ample evidence to support the conclusion that all but one of these class members did indeed hold a desire to become a laborer which remained un- expressed because of the futility of seeking a Local 3 referral. The defendant argues that since 139a the laborer's job is more strenuous than the cleaner's job, backpay awards should not be based on a laborer's salary. In support of this argument, the union points to sex discrimination cases which have attempted to harmonize Title VII with the Equal Pay Act, 29 U.S.C. § 206(d), a statute specifically designed to guarantee equal pay for equal work regardless of sex. See Defendant's Objections at 47-52. The defendant contends that since Equal Pay Act con- cepts have found their way into the equal pay sex discrimination cases brought under Title VII, such concepts should be incorporated into other types of Title VII actions. The Court rejects this argument. Defendant acknowledges that the cases on which it relies have been concerned specifically with the policy that Title VII doctrine not conflict with Equal Pay Act doctrine, thereby pre- venting a unified body of law from 140a emerging in sex discrimination cases alleging unequal pay for equal work. This rationale is inapplicable to the present case, since neither the Equal Pay Act in particular, nor sex dis- crimination in general, is implicated. Local 3 has failed to provide the Court with any convincing reason for trans- planting concepts which developed in the context of a particular type of employ- ment discrimination and a particular sex discrimination statute to a case involving discriminatory referral practices based on race or national origin. Local 3 states that early in 1977, the union had done all it legally could do to abate damages, and that it should therefore not be required to make any backpay award for post-1976 earnings. Even accepting arguendo defendant's representation as to its l4la abatement of damages, this argument is insufficient in the context of this case. The plaintiffs seek backpay awards to compensate them for the injury they suffered as a result of the defendant's discriminatory referral practices, and the defendant is liable for the effects of such practices through the time that the discrimination is actually remedied. In this case, the date of remedy would occur when the class member under consideration becomes a laborer. Local 3's abatement of damages is relevant only to the extent that there was an actual reduction in plaintiffs' compensable injuries. Local 3 hag not contended that any action resulted in such a reduction. The union asserts that all of the cleaners failed to mitigate damages by seeking a laborer's position inside or outside the Garden. Since feelings 142a of futility justified the victims’ failure to apply for Garden laborer jobs, it is obviously absurd for the defendant to argue, as it does, that these claimants should nevertheless be required to make this futile application for mitigation purposes. As to the duty of plaintiffs to seek laborer's jobs outside the Garden, this Court fully endorses Magistrate's Sinclair's reasoning. See Magistrate's Findings, Conclusions and Recommenda- tions on Back Pay at 11-12 (July 27, 1981). The defendant has itself acknowledged that "[aJll the court decisions...held that persons holding full time jobs were not required to do anything more to mitigate damages." Magistrate's Find- ings, Conclusions, and Recommendations on Back Pay at ll (July 27, 1981), guoting Memorandum in Support of Defendant's Contention that the Porters Had a Duty to Mitigate Damages at l. 143a And, as the Magistrate has explained: "The course urged by defendants would permit effective subversion of statutory purposes: employers could deny an individual a higher paying job and offer that individual the Hobson's choice of retaining his present job and forswearing back pay relief or leaving his present job for a job which, although perhaps nominally better paying, might require the sacrifice of convenience, security or seniority." Magistrate's Findings, Conclusions and Recommendations on Back Pay at 12 (July 27, 1981). In any event, case law in this Circuit has held that "[t]Jo sustain its burden of establishing such deductions [from a backpay award], the defendant must show not only that the plaintiff failed to exercise due diligence in seeking employment, but also that had she been diligent, she might have found employment and had some earnings." EEOC v. Kallir, Phillips, Ross, Inc., 420 F.Supp. 919, 926 (S.D.N.Y. 1976) ’ aff'd 559 F.2d 1203 (2d Cir.) ,cert. denied, 434 U.S. 920 (1977). Local 3 144a has failed to meet this burden. Defendant further argues that many claimants worked less than they should have, reflecting a lack of reasonable diligence. Local 3 has wholly failed to prove this assertion, and apparently has foregone its opportunity during the development of the record to inquire into such matters as voluntary absences from work. Thus, the Court finds no merit in any of the defendant's objections relating to a failure to mitigate damages. According to the defendant, the disciplinary records of some of the claimants would have prevented them from being hired as laborers even absent any discriminatory practices. This Court agrees with Magistrate Sinclair's conclusion that such records are irrelevant since, during the time period in question, the Garden never reviewed the prior work records of any laborer referrals. See 145a Hearings Before the Magistrate at 869 (April 16, 1980) (Testimony of Mr. Donopria). Such records would therefore not have been the basis for a decision not to hire particular claimants, all of whom were continued in their employment at the Garden sub- sequent to the alleged infractions. In addition to its many other exceptions, the defendant objects to the recommended award for each and every plaintiff for whom the Magistrate pro- posed relief. For the most part, the defendant attempts to show that the Magistrate's findings as to the credi- bility of these plaintiffs should be reversed. The Court will not engage in a protracted recounting of the case in favor of an award for each of those plaintiffs for whom the Magistrate made a favorable recommendation. Instead, the 146a Court notes its support for the careful and conscientious manner in which the Magistrate made individual findings based on the record before him, the memoranda submitted by the parties, and most importantly, his judicious evaluations of credibility. As the plaintiffs have correctly noted, the Magistrate generally resolved instances of ambiguity or doubt against the claimant and, with the one exceptic noted below, he only recommended awards when the record fully supported such recommendations. See Plaintiffs’ Reply at 25-26 and citations therein. It should particularly be observed that the Magis- trate was in no way reluctant to discredit the evidence presented by a claimant when the circumstances so warranted. See Magistrate's Findings of Fact, at qq 5, 18, 21, 24, 79, 81, 95, 107, 137, 139 (November 21, 1980). The Court therefore expresses its approval of the 147a Magistrate's individual award recommenda- tions and enters into a discussion only of the findings with respect to the claimant Herbert Bruton. The Magistrate reviewed Bruton's claim solely on the basis of his pretrial deposition. See Magistrate's Findings of Fact at ¥ 152 (November 21, 1980). The Magistrate's finding was not, therefore, based upon a finding of credi- bility affected by the demeanor of a live witness. The Magistrate found that Bruton is an actual victim because he “showed that he would have applied for a referral to the Garden for work as a laborer had it not been for Local 3's discriminatory practices by testifying that he wanted the job but didn't apply because Shelly Anderson and J. Perry had tried to get the job and had been unsuccessful." Magistrate's Findings of Fact at q¥ 154 (November 21, 1980). The Magistrate further found that "Bruton's desire date 148a is 1946 because he testified that he wanted the laborer job when he started at the Garden." Id. at 4 155. On the basis of these conclusions, Bruton was assigned a seniority date of October 24, 1965. The Court cannot agree with this assessment of the record, and determines that Herbert Bruton is not an actual victim of the defendant's discriminatory policies. Despite Bruton's single state- ment that he wanted the laborer job when he started at the Garden, he never applied for a laborer's job or told anybody that he was interested in it, allegedly be- cause of his conversation with Anderson. After questioning as to Bruton's inter- est in various positions at the Garden, Bruton virtually admitted that he was not a victim: "Q: The fact is that for many years before you spoke with Anderson and in fact from the time you started work- ing at the Garden, you really had no interest in becoming a laborer, isn't that true? 149a A. No, I didn't." Danoeition of Herbert Bruton at 20-21 (January 17,1979). The Court agrees with the Magistrate's finding that "[a] ‘couple of years' before he retired (i.e., as of 1973), Bruton was no longer inter- ested in getting the job because he was on his way out.” Magistrate's Findings of Fact at ¥ 153 (November 21, 1980), citing Deposition of Herbert Bruton at 15-16 (January 17, 1979). But this alleged loss of interest occurred at virtually the same time that Bruton had the conversation with Anderson which pro- vided the basis for the Magistrate's finding that Bruton was a victim. Thus, even assuming arguendo that Bruton did at some point desire employment as a laborer, he renounced such interest at the very time that he would have become justified in failing to apply for the position because of futility. 150a The Court therefore is not persuaded that Bruton would have applied for a referral for work as a laborer had it not been for Local 3's discriminatory practices, and is further not satisfied that Bruton ever harbored a desire for that work. The Court finds that Bruton is not a victim and that he is therefore not entitled to any award. We turn now to a discussion of some of the plaintiffs' objections to Magistrate Sinclair's reports and recommendations. This Court has previously ordered Local 3 to submit a plan for the establish- ment of referral lists and copies of pro- posed notices to be posted in the Garden, as well as to set forth procedures for the referral of class members by Local 3. See Ingram 482 F.Supp. 918, 927-28 (S.D.N.Y. 1979). It is undisputed that, since that time, Local 3 has ceased to play any role in the hiring of laborers at the Garden. 15la Consequently, the Court agrees with the Magistrate's conclusion that these ele- ments of prospective relief should be deemed mooted. See Magistrate's Interim Order on Monetary Relief at 18 (December 8, 1980). The plaintiffs' request that an Order issue limiting any future role of Local 3 in laborer hiring and referral is therefore rejected. 2/ Plaintiffs except to the Magis- trate's determination that claimants Mahadeo, an Indian, and Ibrahim, an Egyptian, are not class members. The Court completely endorses the Magis- trate's conclusion and reasoning on this issue as they are persuasively and compre- hensively set forth in Magistrate's Findings of Fact at 4-10 (November 21, 1980). On July 27, 1981, Magistrate Sinclair withdrew his earlier findings that Group V claimants -- those who 152a applied for or desired a laborer's posi- tion during 1978-1980 -- were victims of the defendant's discriminatory practices. See Magistrate's Findings, Conclusions and Recommendations on Back Pay at 4-9 (July 27, 1981). The Magistrate reasoned that the actual referral of laborers that was done during this period was not necessarily the result of the discriminatory policy found at trial. The plaintiffs object to this reasoning with respect to two of the claimants, Luis Jaiman and Eloise Moore, and the Court finds these objections to be valid ones. These two claimants were assigned recommended seniority dates of October ll, 1978, based on the hire date of Group IV laborer Benigno Rivera. See Magistrate's Findings of Fact at qq 73, 93 (November 21, 1980). The evidence presented at the trial, on August 27-30, contained up-to-date information 4s to 153a statistics and referral policy, and Rivera's hire was included in the data upon which the finding of liability was largely premised. See Ingram,482 F.Supp. 414, 424 and n. 24 (S.D.N.Y. 1979). The Court found that the defendant's dis- criminatory policy was in effect and continuously adhered to up through the time of the trial -- a date subsequent to the time of Rivera's hire and Jaiman's and Moore's desire dates. See id. at 423. The fact that Rivera is Hispanic means neither that Jaiman and Moore were not really victims, nor that the union had ended its discriminatory policies. Rather, as this Court found at trial, the defen- dant, as part of its discriminatory policy, occasionally hired blacks or Hispanics, ‘albeit in numbers significantly below their percentage in the labor market surrounding the Garden. The Magistrate has stated that, in any event, the 1978 referral 154a "would have been the rightful place of one of the four victims who sought or desired the laborer's position in late 1976, and not the rightful place of a claimant who desired a laborer's job in 1978." Magistrate's Findings, Con- clusions and Recommendations on Back Pay at 7 n. 2 (July 27, 1981). See also Magistrate's Interim Order on Monetary Relief, at 13 n. 12 (December 8, 1980). However, if Jaiman and Moore are added to the list of Group IV victims, the total of such claimants is raised to six, a number exactly equal to the number of Group IV comparison laborer referrals made during the period 1976-1978. The Court is not persuaded that Jaiman and Moore could not, as a matter or rightful place relief, have filled the position for which Rivera was referred. The plaintiffs concede that the recovery for these two claimants may 155a appropriately be set at zero, for they state: "In view of the fact that no Group IV claimant's recommended awarded [sic] included any backpay, no new computation need be done if Moore and Jaiman are included in the victim group." Plaintiffs' Objections Pur- suant to 28 U.S.C. § 636(b) and Southern District of New York Rules for Proceed- ings Before the Magistrates, Rule 7 at 15 (hereinafter "Plaintiffs Objec- tions"). For the reasons stated above, the Court finds that Jaiman and Moore were actual victims of defendant's discriminatory policies, that their seniority date is October ll, 1978, and that they are entitled to no backpay. Plaintiffs also object to the Magistrate's recommendation regarding the computation of claimants’ lost annuity benefits. Plaintiffs seek annuity payments for certain claimants 156a in amounts equal to the average annuity entitlement of the corresponding laborers' control group -- a proposal which would make the union liable for amounts the Garden should have paid prior to the statute of limitations dates and seniority dates. They argue that annuity entitle- ment should be calculated according to when cash sums under the plan are payable to annuitants, rather than when the contributions are made to the fund. Plaintiffs' Objections at 20-24. The Magistrate has discussed this issue thoroughly and persuasively, see Magistrate's Findings, Conclusions and Recommendations on Back Pay at 19-22 (July 27, 1981), and the Court completely adopts the reasoning which led him to conclude that "(t]he weight of logic and authority clearly favors defendant's position.” Id. at 2l. 157a The measuring period for plaintiffs' recpvery in this case runs until the date when a particular victim is hired as a laborer. Many of the claimants who have been adjudicated victims of discrimination in this ac- tion have not yet attained their right- ful place as laborers at the Garden. Since these plaintiffs' future lost earnings are speculative and their lost pension benefits are ascertainable only at retirement, the Court will assume continuing jurisdiction over this case in order to evaluate these damages. Such "front pay,” as recommended by Magistrate Sinclair, will be computed according to the same method that has been applied in calculating backpay. See Magistrate's Interim Order on Monetary Relief at 17 (December 8, 1980). ; The Magistrate recommended a total backpay award of $749,317. Sub- tracting Herbert Bruton's suggested 158a recovery from this amount, this Court finds that the victim claimants were monetarily damaged to the extent of $729,912. These class members have already been compensated $117,500 by a+ virtue of the Consent Decree entered into between the plaintiffs and the defendants other than the union, and Local 3 will not be held accountable for that sum. The union has not argued that it is unable to pay the remaining amount of monetary damages, nor has it presented any persuasive reasons for which it should not be liable for that total.4/ The Court finds, therefore, that Local 3 is liable to the plaintiffs for a back- pay award of $610,412. COUNSEL FEES By order dated November 10, 1981, Magistrate Sinclair recommended that counsel for plaintiffs be awarded ” $233,445.06, of which $175,665.21 consists 159a of fees based on a lodestar figure (reasonable hours expended multiplied by the reasonable hourly rate) ;2/ $14,690.80 reimbursement for expenses; $27,973.04 as a multiplier augmentation, and $15,116.01 representing interest at 6%. In calculating this award, the Magistrate recommended that the fee be based on one-third of the time spent prior to August ll, 1979 (when settlement was reached with the co-defendants) and all of the attorneys' time spent between August 11, 1979 and December 13, 1979, augmented by a multiplier of 25%. On this latter date, liability of the defendant was fixed and therefore, the Magistrate reasoned, the time expended was not sub- ject to the risks and contingencies for which a multiplier compensates. Plain- tiffs' counsel makes no objection to the fee award. 160a We believe that the Magistrate's recommendation reflects a sound and thorough consideration of the issues presented and we have little to add to his perceptive analysis. For the reasons he has stated, neither the not-for-profit character of the defendant, nor an ability to pay factor, warrants an adjustment of the fee award on the basis of the record here. See Magistrate's Fee Report at 21 (October 23, 1981). We find fully justified the Magistrate's observation that "instead of raising these issues at the hearing, defendant spent its time in a vexatious, time- wasting attack on plaintiffs' counsel and in an unfruitful, nitpicking excursion through innocuous details and markings in plaintiffs' counsel's time logs and records.” Magistrate's Fee Report at 21-22 (October 23, 1981). l6la Defendant's objections to the fee recommended by the Magistrate are equally meritless. Except as modified herein, the Magistrate's reports are adopted. SO ORDERED. Dated: New York, New York March 23, 1982 162a FOOTNOTES The many Opinions filed in this case will be cited simply as "Ingram," followed by reference to reporter volume and page number. Where appropriate, Opinions will be referred to simply by date of filing. It is a frequent occurrence, especially in class action litigation, that settling defendants pay less in damages than those who pursue to the bitter end cases such as this one, in which liability is clearly established. The very concept of compromise and settlement embodies the notion of a reduction from the amount plaintiffs otherwise hope to recover. The relationship between the award recommended by the Magistrate and the amount of the settle- ment in this case is not surprising. This Court will, in any event, be retaining jurisdiction over this proceeding (e.g., with respect to front pay damages). Our ruling is without prejudice to a renewed applica- tion to this Court in the event that Local 3 should resume exercising a role in the hiring of Garden laborers. See, p. 13,supra. This question was specifically reserved by the Court in its remedy Opinion. See Ingram, 482 F.Supp. 918, 927 (S.D.N.¥. 1979). This is computed at $100 per hour for Mr. Tesser and $60 per hour for his assistant, Ms. Altman, except that time spent in preparing exhibits is to be compensated at the rate of $50 per hour. See Magistrate's Report Containing Findings and Recommendations Re Plaintiffs' Fee Application at 10, 18 (October 23, 1961) (hereinafter "Fee Report"). 163a UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK HENRY INGRAM, JAMES BRITT, WILLIAM MOODY and ROY T. FLOYD, individually and on behalf of all persons similarly situated, Plaintiffs, , 76 Civ. * 5870 -against- , (RIW) 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. Plaintiffs Henry Ingram, James Britt, William Moody and Roy T. Floyd move for class action certification pursuant to Rule 23, Fed. R. Civ. P. For the reasons set forth below, the motion is granted and, subject to the condition stated in nee ‘I(A) (3), infra, the follow- ing classes are certified: (1) a Title VII class consisting of: (2) 164a all black persons who, since November 21, 1972, have been employed, or who will in the future be employed, as clean- ers, bathroom or bowling alley attendants, or elevator opera- tors for Madison Square Garden Center, Inc., Allied Main- tenance Corporation or Allied Public Events Service Corpora- tion at Madison Square Garden, or who receive pensions based on their employment as cleaners, bathroom or bowling alley attendants or elevator opera- tors for Madison Square Garden Center, Inc., Allied Main- tenance Corporation or Allied Public Events Service Corpora- tion at Madison Square Garden or who have unsuccessfully applied for positions or will in the future apply for posi- tions as laborer-utilitymen at Madison Square Garden. A §§ 1981 and 1985 class con- sisting of: all black and Hispanic per- sons who, since December 30, 1973, have been employed, or will in the future be em- ployed as cleaners, bathroom or bowling alley attendants, or elevator operators for Madison Square Garden Center, Inc., Allied Maintenance Corporation or Allied Public Events Service Corporation at 165a Madison Square Garden, or who receive pensions based on their employment as cleaners, bathroom or bowling alley attendants or elevator opera- tors for Madison Square Garden Center, Inc., Allied Mainten- ance Corporation or Allied Public Events Service Corpora- tion at Madison Square Garden or who have unsuccessfully applied for positions or will in the future apply for posi- tions as laborer-utilitymen at Madison Square Garden. The named plaintiffs in this ac- tion are persons presently or formerly2/ employed as cleaners at Madison Square Garden ("the Garden"). They allege that defendants Madison Square Garden Center, Inc. ("Center"), Madison Square Garden Corporation ("the Garden Corporation"), Allied Maintenance Corporation ("Allied Maintenance"), Allied Public Events Service Corporation ("Allied Public Events"), and Local #3, I.B.E.W. ("Local 3") have engaged and continue to engage in a pattern or practice of discrimina- tion against them in hiring, work assign- 166a ments, wages and other benefits because of their race or national origin in viola- tion of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000 et seq., and the Civil Rights Acts of 1861 and 1866, 42 U.S.C. §§ 1981 and 1985(2)(3). They seek injunctive and declaratory relief and damages. Plaintiffs originally sought certification of a class consisting of "all non-white laborers and employees of comparable designation who work, have worked, or have sought to work directly or indirectly for Madison Square Garden Center, Inc." Local 3 objected to the maintenance of this suit as a class ac- tion, claiming that none of the require- ments of Rule 23 were satisfied. 2/ Center and Allied Maintenance did not object to the certification of an appropriate class, but believed that plaintiffs' proposed class 167a definition was too broad because all named plaintiffs were employed as "porters," a type of cleaner, and thus plaintiffs could not adequately represent the interests of bathroom and bowling alley attendants, elevator operators or any other groups. They also argued that plaintiffs' defini- tion was deficient because it recognized no statute of limitations. The Court concurred in defen- dants' belief that the proposed definition was inadequate, and scheduled a conference for May 18, 1978. After hearing argument, the Court granted plaintiffs' oral motion to amend the complaint so as (1) to limit the groups of current, past and future employees included in the proposed class to cleaners, bathroom and bowling alley attendants and elevator operators who work at Madison Square Garden for Madison Square Garden Center, Inc., Allied Main- tenance Corporation or Allied Public Events 168a Service Corporation; and (2) to allege discrimination on the basis of national origin, as well as race, and (3) to in- Clude Hispanics in the class for pur- poses of the non-Title VII claims. Plain- tiffs' attorney also indicated his inten- tion to move to add further named plain- tiffs to the action who were or had been employed as bathroom and bowling alley attendants and elevator operators. On June 2, 1978, plaintiffs filed a fourth amended complaint charging discrimination on the basis of national Origin as well as race, and seeking to represent a class consisting of “past, present and future black and Hispanic cleaners, bathroom and bowling alley attendants and elevator operators at Madison Square Garden employed by Madison Square Garden Center, Inc., Madison Square Garden Corpora- tion, Allied Maintenance Corpora- tion and/or Allied Public Events Service Corporation and blacks and Hispanics who have soug [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0354%3A2. Public record. Not legal advice.