# Petition for Writ of Certiorari — Larkin v. Patterson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0241%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1976 - **Citation:** 427 U.S. 657 ## Text JUL 28 1975 MICHAEL QODAG, JRCLE In The = Supreme Court of the United States October Term, 1975 a 75-155 JAMES V. LARKIN, DOMINICK VENTRE, FRANK CHILLEMI, GERALD KATZ, ET AL., Petitioners, VS. JOHN R. PATTERSON, NEWSPAPER AND MAIL DELIVERERS UNION OF NEW YORK AND VICINITY, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, NEW YORK DAILY NEWS, NEW YORK TIMES, ET AL.., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT HERMAN H. TARNOW Attorney for Petitioners 663 Fifth Avenue New York. New York 10022 (212) 355-3977 BLEED THROUGH wer TABLE OF CONTENTS Opinions Below Jurisdiction Question Presented Constitutional Provision Involved Statutes Involved Statement of the Case Reasons for Granting the Writ I. The Petition Presents An Important Unresolved Issue Concerning The Rights Of Non- Minority Workers Affected By An Affirmative Action Program Under Title VII II. The Legislative History of Title VII Does Not Support The Con- struction of the Court Below III. The Petitioners Have Been Denied Their Constitutional Right of Equal Protection Under the Law Page 10 10 15 18 it TABLE OF CITATIONS Cases Cited: Page Albemarle Paper Company v. Moody, -U.S.- (1975) 12 Franks v. Bowman Transportation Company, Inc., 495 F.2d 398 (5th Cir. 1974), cert. granted, 43 U.S.L.W. 3515 (March 24, 1975) ig, il, ia Griggs v. Duke Power Co., 401 U.S. 424 (1971) 13 Local 189, United Papermakers v. United States, 416 F.2d 980 (5th Cir. 1969), cert. denied, 397 U.S. 919 (1970) 13 McLaughlin v. Florida, 379 U.S. 184 (1964) 18 United States v. Bethlehem Steel Corp., 446 F.2d 652 (2nd Cir. 1971) 13 United States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971) cert. denied, 406 U.S. 906 (1972) 13 United States v. Roadway Express, Inc., 457 F.2d 854 (6th Cir. 1972) 10, 11, 12 United States v. Sheet Metal Workers, Local 36, 416 F.2d 123 (8th Cir. 1969) 13 4 - BLEED THROUGH -—— ttt Cases Cited: Page Waters v. Wisconsin Steel Works of International Harvester Co., 502 F.2d 1309 (7th Cir. 1974), cert. filed, February 21, 1975, O.T. 1974 No. 74-1064 ik. 16 United States Constitutton Cited: U.S. Const. amend V. 3 Statutes Cited: 42 U.S.C. 2000e - 2(c) 4 42 U.S.C. 2000e - 2(3) 4 Legtslative Materials: 110 Cong. Rec. 6549 (1964) 17 110 Cong. Rec. 7213 (1964) (Clark-Case Interpretative Memorandum) 16 110 Cong. Rec. 7218 (1964) 17 speipesORi8 EL2 p SPLES TRIES RRL LN I A RAGE IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1975 - NO. 74 om RO Aanecseeesada cveesaoocoeaseeeesasocoscea x JAMES V. LARKIN, DOMINICK VENTRE, FRANK CHILLEMI, GERALD KATZ, ET AL., PETITIONERS, -AGAINST- JOHN R. PATTERSON, NEWSPAPER AND MAIL DELIVERERS UNION OF NEW YORK AND VICINITY, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, NEW YORK DAILY NEWS, NEW YORK TIMES, ET AL., RESPONDENTS. > =o, JouNn R. Parrerson, et al., Plaintiff s-Appellecs, —against— Newsparer AND Mart Deuiverers’ UNion or New York Anp Vicrnity, et al., Defendants- Appellees. a> a Ana Equat EmMPLoyMEentT OpporTuNITY COMMISSION, Plaintiffs-Appellees, —against— NEWSPAPER AND Mart DeELriverers’ Union oF New York AND Viornity, et al., Defendants- Appellees. = = —vr Dominick Ventre, Frank CuinLemMi, Geraup Karz, et al., Intervenors. ee James V. LaRKIN, Intervenor-A ppellant. ) j i ] \ BLEED THROUGH ~~ Before: “a Feinperc, Mansriceipy and Oakks, Circuit Judges. + = eats 9a asserts, allow minorities to “leap-frog” non-minorities with greater scniority. Ile also attacks the 25% goal.? Discussion The scope of our review of a district court’s approval of a settlement agreement is limited. “[{T]he appellate court should intervene only on a clear showing that the trial judge was guilty of an abuse of discretion,” State of West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079 (2d Cir.), cert. denied, 404 U.S. 871 (1971). While the publie objectives embodied in Title VI] warrant a eare- ful review of the provisions of the settlement in light of those policies, see Rios v. Enterprise Assn. Stceamfil- ters, Local 638, DOL F.2d 622, 628 n.4 (2d Cir. 1974), the clear policy in favor of encouraging settlements must also be taken into account, see Florida Trailer & Equip- ment Co. vy. Deal, 284 F.2d 567, 571 (5th Cir. 1960), par- ticularly in an area where voluntary compliance by the parties over an extended period will contribute signili- cantly toward ultimate achievement of statutory goals. Nor should we substitute our ideas of fairness for those of the district judge in the absence of evidence that he acted arbitrarily or failed to satisfy himself that the settle- ment agreement was equitable to all persons concerned and in the public interest, cf. United States v. Wood, Wire & Metal Lathers Intl. Union, Local No. 46, 471 F.2d 408, 416 (2d Cir.), cert. denied, 412 U.S. 939 (1973), especially in a case like the present one where the settlement was approved after a four-week trial of the merits, and two hearings with respect to the fairness and adequacy of 2 Intervenor in addition suggests procedural infirmities in the court's approval of a plan to which he objected. It is difficult to think of a way in which appellant was denied procedural rights, however, since Judge Pierce afforded him a hearing and thoroughly considered his objections. BLEED THROUGH Fe ‘ 4 ) 10a the proposed agreement. Furthermore, unlike appeals from decrees of the district court entered after trial on the basis of findings and conclusions where we may modify the terms of the decree, see, e.g., United States v. Bethle- hem Steel Corp., supra, we are powerless to rewrite the provisions of the settlement agreement. Our only alter- native, if we concluded that Judge Pierce had abused his discretion, would be to set aside his approval of the set- tlement and remand the case for completion of the trial. United States v. Automobile Manufacturers Assn., 307 F. Supp. 617 (C.D. Calif.), affd. per curiam sub nom. City of New York v. United States, 397 U.S. 248 (1970). Although Larkin objects to the use of a 25% goal and to Judge Pierce’s conclusion that the minority make-up of the relevant part of the labor force is 30%, he does not suggest any alternative or more reliable figures as to the labor force; he merely calis the court’s figures “con- trived.” In contrast to his failure to provide any eviden- tiary support for his objection, the record reveals that, in concluding that the 25% goal was appropriate, Judge Pierce relied on population figures in the Department of Commerce’s publications General Population Characteris- tics—1970 Census of Population and General Social and Economic Characteristics, 1970 Census of Population, and took into account the relevent geographic area and demo- graphic characteristics of those making up the news de- livery work force. Thus his conclusion, which followed closely the guidelines laid down in Rios v. Enterprise Assn. Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974), was adequately based.’ 3 Intervenor also suggests that his rights under 42 U.S.C. §2000¢e-2(j) have been violated. That section provides in pertinent part: “Nothing contained in this subchapter shall be interpreted to re- quire any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because ra ‘ ~~ gern BLEED THROUGH lla Larkin’s argument that he is entitled to the same bene- fits as the minority workers must also be rejected. This case arises under a statute which by its terms is limited to protection against employment discrimination based on an individuals “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Larkin does not allege discrimination against him based on any of these factors. He argues only that the industry’s past practices discrim- inated against all Group III members, minority and non- minority, and that while the settlement agreement remedies the discrimination against minority persons it fails to afford any relief for the harm caused to non-minority per- sons. Worse still, he asserts, the relief to minority persons is at the expense of the white Group ITI workers. At first glance this argument has much appeal. As the district court recognized, Group IIT workers were the vic- tims of some practices that were harmful to all Group III members, regardless of race. Minority members, on the other hand, were the targets of racial discrimination on the part of the virtually all-white Union. In this Title VIT action we are limited to consideration of the fairness of re- of race, the color, religion, or national origin of such individual or group on aceount of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or pereentage of persons of such race, color, religion, sex, or nations] origin in any community, State, section, or other rea, or in the available work foree in any community, State, section, or other area.” It is well settled in this Circuit that this seetion does not preclude the use of racial hiring quotas to remedy the effects of past discrimination. Rios v. Enterprise Assn. Steamfitters, Local 688, supra, 501 F.2d at 630-31; Vulcan Society v. Civil Serv. Comm., 490 F.2d 387 (24 Cir. 1973); United States v. Wood, Wire 4 Metal Lathers, supra. BLEED THROUGH &. + ee l2a lief directed only to the latter. The objective of Title VII is to “attack the scourge of racial discrimination” which has “caused manifold cconomic injuries, including dras- tically higher rates of unemployment and privation among racial minority groups.” United States v. Wood, Wire & Metal Lathers lutl. Union, 341 F. Supp. 694, 699 (S.D.N_Y. 1972), affd., 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939 (1973). It ereates no rights or benefiis in favor of non-minority persons or groups. Any past denial of pro- motion rights to Larkin is clearly not remediable under Title VII. Indeed, Group TI] white workers have unsue- cessfully sought relief for themselves under other statutes. It is thus apparent that Larkin has no right to any of the affirmative relief afforded to the minority groups, inelud- ing the back pay provisions.‘ Our review, therefore, must be limited to the question of whether the settlement agree- ment, in remedying minority discrimination, treats the in- tervenors fairly. See State of West Virginia v. Chas. Pfizer € Co., 440 F.2d 1079 (2d Cir.), cert. denied, 404 US. 871 (1971). The affirmative-action provisions of the agreement under review affect Group ITI workers in the industry, and par- ticularly Daily News workers, in two ways. First, the pro- visions for immediate transfer of incumbent minorities at major employers to Group I and for the filling of Greup I openings by alternately promoting one minority worker and then one non-minority worker from Group III to Group I mean that a white Group TIT worker will advance to Group I less rapidly than would be possible if straight shop + United States v. Roadway Express, Inc., 457 F.2d 854 (6th Cir. 1972), relied on by the intervenor, does not suggest otherwise. There the court was faced with a settlement agreement in which the union had agreed to give some benefits to white as well as minority non-union workers. When white union members objected, the court refuewd to invalidate the agreement. The case docs not require that a settlement give equivalent benefits to minority and non-minority workers. BLEED THROUGH +e ~~ =e « 13a seniority were the basis of promotion. Indeed, a time will shortly come when minority )ersons not employed in the industry at all on the date when the agreement went into effect may achieve Group 1 status before many Group Il whites with seniority. Although this feature of the agree ment is vet as beneficial te Larkin as would be promotion on the basis of straight seniority regardless of race, the agreement nevertheless benefits Larkin. Lt presents him with an opportunity he never had before: the chance to move up to Group I, and eventually to a Regular Situation. Before, there was in effect no seniority system with respect to promotion into Group L. Thus any plan for advancement of Group III members to Group I could only be beneficial to Larkin. Approval of the plan can hardly be labelled an abuse of discretion because it does not advance Larkin as rapidly as minority persons with less seniority. A reason- able preference in favor of minority persons in order to remedy past discriminatory injustices is permissible. See Rios v. Enterprise Assn. Steamfitters, 501 F.2d 622 (2d Cir. 1974). Second, the agreement affects daily work priorities. Its provision that all present incumbent Group III minority workers shall move at once into Group I immediately drops Group III whites in daily priority by whatever number of minority workers of lesser seniority are added to the higher priority Group 1. Furthermore, the one-to-one ratio for promotion thereafter of workers from Group IIL inte Group I as openings in Group I become available means that an average non-minority Group II] worker will not advance as quickly up the daily priority ladder within Group III as he would under straight raceless seniority. This results from the fact that, whenever two openings in Group T be- come available, one will be filled by a white worker senior to him and one by a minority worker of lesser seniority. Thus he moves up only one step for every two Group T openings. t BLEED THROUGH l4a The situation is even less favorable at the Daily News where for an initial period, as each Group T opening (rather than two openings) becomes available, the em- ployer will add one minority and one non-minority em- ployee to Group I. The effect of this expansion of Group | to take in minority members of lesser seniority is likely to slow down the rate of advancement of non-minority persons within Group IIT more than under a one-for-one arrangement limited to an equal number of vacancies in Group I. Of course, in all cases once a Group IIT white employee reaches Group I, he will move up in daily work priority (and priority for a Regular Situation) on the same basis as existed before the agreement. Appellant characterizes these effects as “leapfrogging” or “bumping” of incumbent white workers, see [/nited States v. Bethlehem Stcel Corporation, supra, 446 F.2d at 659, and argues that we have rejected other affirmative action programs having such an effect. It is true that we have suggested that court ordered relief involving mi- nority employment goals be confined to entry level posi- tions. Thus in Bridgeport Guardians, Inc. v. Bridgeport Civil Serv. Comm., 482 F.2d 1333 (2d Cir. 1973), we up- held the imposition of racial hiring quotas at the patrol- man’s level, the entry level of the police force, but rejected the use of such quotas for promotion to higher ranks. In United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 1971), we simply noted that minority transferees under the court’s order would be transferred into job vacancies created in the normal course of business and that no incumbent employee would be “bumped” out of his job. Id. at 664. In neither case did we specifically pass on the propriety or fairness of “bumping” an in- cumbent. These cases do not support rejection of the agreement that has been reached in this case. The Bridgeport \ BLEED THROUGH ee — 15a Guardians decision was based upon the failure to estab- lish any discrimination within the promotional system, ' the proof being limited to discrimination at the point of entry into the police force, i.e., in qualifying for the rank of patrolman. See 482 F.2d at 1338-41. In the present case, on the other hand, there has been racial discrimina- tion throughout the industry. Furthermore, even assum- ing the desirability of confining use of quotas to entry level positions, the effective point of entry into employ- ment in the industry has been at Group I, not Group III. Judge Pierce found that “Group III workers do not have full-time employment, nor do many of them have great expectations or intentions of working full-time while they shape from the Group III list.” It is true, as appellant points out, that both Group I and Group III workers must shape regularly and neither has assurance of regu- lar work. But the fact remains that traditionally a worker who reached Group I was on the road to a Regular Situa- tion, whereas one who was in Group ITT would not progress above that level. Even assuming that “bumping” of incumbents from their present jobs is inadvisable in an affirmative hiring scheme, it is inaccurate to characterize Group ITT workers as having been “bumped.” They have retained their positions; they have not been delisted in favor of minorities. Moreover, we are not dealing with workers who have been steadily employed under conditions where seniority is synonymous with an assured job but with a fluctuating group of shapers competing for a limited amount of work that varies widely from day to day. Although some may have declined some- what in their daily work priority, as Judge Pierce pointed out, the actual effect of this decline is difficult to gauge } since the availability of work at a given shape “depends on the stability of the total number of jobs available from shift to shift and whether or not the new person chooses \ BLEED THROUGH SBT POI RIG LIN ES LAD LIEBE ONL CEE TELLIN A ee l6a to shape the same shift. In other words, assessing a shaper’s expectation is a highly speculative exercise.” In addition, the number of minority workers promoted to Group I on the date the agreement became effective, which solely accounts for any decline in daily work priority, is quite small. Only 13 of 178 Group III members at the News were minority persons, 6 of 34 at the Times. The impact of any dilution of daily work opportunities resulting from the settlement agreement is, furthermore, softened by the fact that all current Group III members will be elevated to Group I within a fairly short time. The News estimates that within a month after implementa- tion of the plan all non-minority workers above 47 on the Group III list will be elevated to Group I and that there- after about 27 non-minority persons per year will be pro- moted from Group III to Group I. This suggests that any decline in daily work priority attributable to the promo- tion of presently incumbent minority workers to Group | will be offset for most workers by a rise in priority within Group III resulting from the expeditious upward move- ment of Group III whites, also made possible by the program. Finally, should some Group III workers have difficulty finding work, the agreement empowers the ad- ministrator to assure that any existing work opportunities in the industry be made available to those unable to get at least 45 shifts of work in a calendar quarter. Aside from the foregoing, there was evidence from whicli it could be inferred that, if there had been no racial dis- crimination in the industry, more minority persons would have heen able to enter Group ITL and to gain seniority over many whites within Group IIT. Thus, although Larkin has been the victim of a system which excluded Group III members, minority and white, from promotion to Group I, he may well have been the modest beneficiary, vis-a-vis the BLEED THROUGH 17a minority work force, of a policy that discouraged minority persons from entering Group ILI. ‘i'o the extent that the settlement may cause a temporary decline in Group III white worker’s rate of promotion and daily work priority, it merely compensates for past discrimination by allowing a reasonable number of minority persons to be promoted to the “rightful place” on the seniority ladder, which they would have occupied but for industry-wide racial discrimi- nation. In any event it must be recognized that rights of the kind Group III workers here assert “are not indefeasibly vested rights but mere expectations derived from a bar- gaining agreement and subject to modification.” United States v. Bethlehem Steel Corp., supra, 446 F.2d at 663. Here appellant has applauded those modifications of the collective bargaining agreement that are favorable to him, such as the removal of the provision limiting Group I to former Regular Situation holders. Under the peculiar cir- cumstances that have governed employment in this in- dustry it does not strike us as unfair to impose certain modifications on the manner in which promotions or qual- ifications for daily work are determined. Job seniority need not be the only standard for determining promotions. Orders requiring that job vacancies be filled by means other than normal routes of internal promotion have been upheld as necessary to remedy past discrimination, Gates v. Georgia-Pacific Corp., 492 F.2d 292 (9th Cir. 1974) ; cf. Allen v. City of Mobile, 331 F. Supp. 1134, 1142-43 (S.D. Ala. 1971), affd. per curiam, 466 F.2d 122 (5th Cir. 1972), cert. denied, 412 U.S. 909 (1973) (§1983 action), and, in- deed, affirmative relief displacing whites with greater se- niority has been granted, see United States v. Sheet Metals Workers International Assn., Local 36, 416 F.2d 123, 133- 34 (8th Cir. 1969). BLEED THROUGH eee 18a £7 The provisions of the settlement agreement affecting Larkin thus cannot be characterized as illegal or unfair. } Whatever disadvantages he may temporarily suffer in terms of daily work priority are offset by the substantial improvement in his long range prospects arising from the opportunity that has been created, for the first time, for him to reach Group I and, eventually, Regular Situation status. Judge Pierce therefore did not abuse his discre- tion in finding the settlement agreement to be fair to Larkin. The order is affirmed. Cre FErnBerG, Circuit Judge (concurring) : I concur in the result. This case involves the difficult issue whether a hiring quota based upon race can be legally imposed under the Civil Rights Act of 1964 or the United States Constitution. In the past few years, this court has twice held that such quotas may be utilized to correct past discriminatory prac- tices in public employment. Vulcan Society v. Civil Service Comm'n, 490 F.2d 387 (2d Cir. 1973) (firemen) ; Bridgeport Guardians, Inc. v. Civil Service Comm'n, 482 F.2d 1333 (2d Cir. 1973), petition for cert. filed, 43 U.S.L.W. 3282 (U.S. Nov. 11, 1974) (policemen). We have also permitted such remedial quotas in two cases in which the employment was in the private sector of the economy. Rios v. Enterprise Ass’n Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974): United States v. Wood, Wire & Metal Lathers, Local 46, 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939 (1973). Nevertheless, I believe a strong note of caution is called for and should be stated. In Rios, Judge Hays wrote a powerful dissent, arguing that section 703(j) of the Civil Rights Act, 42 U.S.C. § 2000e-2(j), bars the use of court- BLEED THROUGH 19a ordered racial hiring quotas.' He distinguished our deci- sions in Vulcan Society and Bridgeport Guardians on vari- ous grounds, the most persuasive of which was that “there was no other means of affording relief that did not interfere with essential public services” provided by firemen and policemen. 501 F.2d at 638. In both cases, hiring had to continue while new, non-discrimninatory employment lists were drawn up. Judge Hays also distinguished Wood, Wire €& Metal Lathers because the union there, in accepting a settlement, waived the benefit of section 703(j). A close analysis of the cases in our circuit thus suggests that Rios is the only decision squarely holding that a court may impose a racial quota in a private employment case in the absence of a settlement. Emphasizing the status of the authority in this circuit on the issue is worthwhile because, as we have earlier pointed out, quotas should be approached “somewhat gin- gerly.” Bridgeport Guardians, supra, 482 F.2d at 1340. The reason for this is clear. A racial quota is inherently obnoxious, no matter what the beneficent purpose. Such a quota is demeaning and divisive. At best it is a lesser evil. It is not to be encouraged. 1 Section 703(j) provides: Nothing contained in this subchapter shal] be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of peraons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such --obagg: bene color, religion, sex, or national pe actnece Aa ears pein , or other area, or in the available work foree Mh any enmity. wrnag ton section, or other area. BLEED THROUGH j 20a However, this case is not an appropriate one for re-ex- amination of the subject. The past discrimination against minority workers here was made quite clear after a four- week trial to the court. Minorities are conspicuously absent from the ranks of Group | and Regular Situation holders even though there are no special skills required to fill the jobs involved. The intervenor asks us to upset a settlement agreement that provides benefits for whites as well as for minorities. The quota the principal parties have agreed upon is intended to be of short duration. 384 F. Supp. at 590-91. And finally, the intervenor does not direct his main attack against the idea of a hiring quota; he objects to its size and the effect on him and others already in the industry in Group III status. Under all of these circumstances, I concur in the result. EE ah oe eS AN MEAL IEEE 8 ETRY EKER BOLLE DNF GEE LE DONE ETD DNS POLE EE IEE 4 : ; BLEED THROUGH f 2la NITED STATYS DISTRICT COUF® SOUTHERN DISTRICT OF NEW YC :K JOHN R. PATTERSON, et al., Plaintiffs, NEWSPAPER AND MAIL DELIVERERS' UNION OF NOW YORK AND VICINITY, et al., Defendants. effect, because after the icv minorities who have eny tenure in the shop are moved to Group I, the employer will be required to move minorities with no tenure at ail ahead of some present Group III non-minorities. Tie facts selected by the intervenors in support of their objections are so. And, at first glance their frus- tration and anger with this Settlement Agreement is understand- able, and tiueir solution is appealing. These intervenors fro.a Group III, as individuals, have also suffered the effects of . the Union's nepotism; they have also attacked the present practices and abuses in other forums, under different scatutes. Certainly tiis Court de.- not accept the argument that these particular tien have benefited from a discriminatory systen. | But, on deeper examination of the Settlement Agree- ment and the intervenors' objections, there are a number cf - reasons why this Court does noc, and indeed can not, vicw the inte=venors es raising countervailing considerations of such a substantial nature as to preclude approval of the plan. | First and dispositive of all the issues raised by the intecvenors, the Settlemegt Agreement simply does not trample on their employment opportunities. In the long run, it must be acknowledged by all concerned that the effect of this Agreement, if it operates as predicted, will be to ers a IOS OEE RST Iv: POOR COPY i BLEED THROUGH 36a achieve Regular Situation «: Group I status for all members of Group II{, minority and non-minority alike, within a relatively short time-span. Without this Settlement, Group III workers had little if any hope of ever achieving either status under the present system. The intervenors do not contend otherwise. Instead, their objections deal in the main with interim measures which do, in fact, move some minorities faster than some non-minorities. But it must be noted that snce a Group III non-minority is elevated to Group I, his daily shaping opportunities will be no less than they presently are and indeed they may be greater. The News projections submicted to this Court indicate that within a menth after implementation of the plan, the non- minority who is number 47 on the Group IIi list, and all non-minorities above him, will have been elevated to Group I. The progression thereafter is expected to be approximately 27 anieenanetiny ov to Group I each year. Also the Settlement Agreement provides other benefits to Group III non-minorities, not the least of which is the appointment of an administrator who is empowered to assure that existing work opportunities in the industry shall be made évailable to any Grceun III person unable to get at least 45 shifts of work in any calendar quarter. nee ah RIS ORNS ROS LIIE TALE LEELA REPEL RII EO snisencninenianinamattian , BLEED THROUGH 37a further, even it the Settlement Agreement did noc provide noi-minorities with thes¢ benefits, the intervenors' position is not factually or legally sound. Their premise is that the Settlement Agreement will oust them from what they perceive as vested seniority rights in their Group LII order. If, in fact, this Settlement Agreement affected firm and realistic seniority rights end expectations of innocent non- minority workers, there could be endiee as to the validity of the relief afforded. See, e.g., United States v. Bethlehem 446 F.2d Steel Corp., supra,/at 661. But, in this case, regardless of the priority structure of the present contract, and the language which may be used in it, the fact remains that Group III workers do not have full-time employment, nor do many of then have any great expectations or intention of working full-time while they shape from the Group III lise. They are shzpers. And, to the extent that the present contract stcucture, in theory, gives them certain priorities, by tenure on Group III, to achieve Regular Situations, the facts have demonstrated that they could not have any realis- tic expectation of such movement actually occurring. As noted above, no Group III worker has moved up the list to a Regular Situation since 1963. r oT t oti cen TEE ows 38a Their expectatio:.s with respect to daily shape pric.cities iust be viewed in a somewhat different light. When an addtional person is _— in front of a shaper, theorcticaliy his chances of working any particular shift are decreased by a factor of one job. This, of course, depends on the stability of the total number of jobs available from shift to shift and whether or not the new person chooses to shape the same shift, In other words, assessing a shaper's expectation is a highly speculative exercise. ‘he Court does not mean to minimize a Group IIL member's vested emotional interest in his position at a. shape, but it cannot be equated with the worker who-might be "bumped" from a steady and seemingly secure position by an outside winority with less seniority than him. Further, it must be pointed out that even if these shaping priorities were viewed as providing firm expectations, "[such] seniority advantages are not indefeasibly vested rights but mere expec- tations derived from a bargaining agreement subject to modification." United States v. Bethlehem Steel Corp., supra, 446 F.2d at 663. Indeed, the intervenors themselves recognize tiis principle when they approve of many changes made in the collective bargaining agreement by the proposed Settlement. “ ore PT te ree iy a 1 GOI AERA LY a PT SH EARL AG Os LIEBE SARE ELLIE EPIL TOE. RE EEE POLIS HY TOR Ep 4 t BLEED THROUGH 39a Also, it must bc said that the relicf the intervenors suggest, which would observe strict tenure of the Group III list, would most likely noc provide the relief mandated by Title VII for minorities. Given the fact that the active work force at the News numbers 900 and includes only 24 minority persons, it would clearly take a far longer period of time to reach a goal of 25% minority cmployment. Because ais minority percentage is so low, the same objection holds . true if, as the intervenors have suggested, the Group I and Group III lists were dovetailed by shop tenure. Finally, it must not be forgotten that this is a Title VII case. Such cases, as Judge Frankel has.«said in Wood, Wire are "launched by statutory commands, rooted in deep constitutional purposes, to attack the scourge of - racial discrimination in employment. . . . [a]nd we know that, in addition to the spiritual wounds it inflicts, such discrimination has caused manifold economic injuries, incluc- ing drastically higher rates of unemployment and privation among racial minority groups." United States v. Wood, Wire and Metal. lathers International Union, Local Union 46, 341 F.Supp. 694, 699 (S.D.N.¥. 1972). Title VII is an expression of a commituent to correct minority employment discriminat:ion and, hopefully, the vast social consequences that flow from \ BLEED THROUGH 40a it . id afflict the whole o” the nation. The statute does not ili Scie to correct all forms of employment discrimina- tion. Thus, to the extent that what the intervenors seek here is relief equal to that afforded minorities, it has no legal foundation, in this case. Under the law, relief here mst be limited to victims of the kind of discrimination prohibited by Title VII. United States v. Bethlehem Steel Corp., sunra, 446 F.2d at 665. There is no evidence and no assertion that the intervenors have been discriminated against on account of his, vebteten, color, sex, national origin, or because they have made charges, testified, assisted or participated in any enforcement proceedings under Title VII. The 25% Minority Employment Goal There remains the requirement of Rios v. Entcrprise Association Steamfitters Local 638, supra, at 4387, for reliable factual support for the 25% goal. All of the parties hav: agreed to the figure. The EEOC has based its conclusion on relevant labor force statistics contained in the tables published by the United States Department of Commerce in a publication entitled General Social and Economic Characteristics, 1970 Census of Population, for the relevant geographic areas of the Union's jurisdiction. Using what this Court agrees is the most reliable pz 2file possible of — 2 cE ERG NY IRC REE EYP ARENT EI z SOR PIES pay EEE IS PLCS a BSE , ! ; BLEED THROUGH 4la the candidate for delivere:s* work, the EEOC has extracted figures for Black males over 16 years of age with a high school diploma or less. With considerably ingenuity, the agency has also extrapolated comparable figures for minorities other than Black. Added together they indicate that the relevant labor force is 30% minority. Although the private plaintiffs and the intervenors have submitted other calcuia- tions end bases with respect to minority representation in the relevan= labor force, in this Court's view the EEOC analysis is the soundest and provides ample support for the 25% minority goal included in the Settlement Agreement. Conclusion bet Tnis Court has found that the affirmative relief provided in the Settlement Agreement is justified by the . facts of this case. It has found that the 25% minority goal is supported >»y reliable statistics. It has found that the affirmative relief provides members of the plaintiffs‘ class - and other minorities with an adequate, fair and reasonable route to their "rightful place" in this industry, and that the Settlement Agreement is enforceable, iegal and in the public interest. The Court has also found that the Settlement Agreement does nut so interfere with the rights of the inter- venors as tc require disapproval. ERE ESS Te ene Ce OE a SR IRE I RSET CR RE = pS ee ; ; 4 42a Therefore, the -otion of the parties for approval of the Settlement Agreement is hereby granted. Settle Order, upon the consent of the parties, endorsed thereon by their attorneys, accordingly. SO ORDERED. Dated: New York, New York September 19, 1974 /8/ LF Ries vw). PLERCE LAWRENCE W. PIERCE U. S. D. J. Pein racers opener rere ea IRCA LE ALT LIT SE CN t BLEED THROUGH 43a FCOTNOTES l. "Minority" as it is used in this Settlement AZreement refers to the definition of thac word ty the Equal Employment Opportunities Commission, end means people who are Black, Spanish-surnamed, Criental and American Indian. 2. . Group II is not counted here because Group IZ is constituted of persons who also hold Regular Situations or Group I positions in the industry. They are permitted by the contract to shape in aay shop other than their own, in addition to their regular jobs. si 3. See pp. 23-24. 4. The parties have defined "employment" as encompas- sing Regular Situations end Group I positions. Their view is that a place in either of these two groups represents a steady, secure job in the industry. The Court agrees, at this time. The csfiniticn is subject to revision by terms of the Settlement Agreement. ‘aa PROMEEC RRITO INS O RA TRIE PEEP ATI GE OSD 4 | BLEED THROUGH ' ’ , ' 44a UNITED STATES COURT OF APPEALS SECOND CIRCUIT At a Stated Term of the United States Court of Appeals, in and for the Second Cir- cuit, held at the United States Court House, in the City of New York, on the twenty-ninth day of April, one thousand nine hundred and seventy-five. Present: HON. WILFRED FEINBERG, HON. JAMES L. OAKES, HON. WALTER R. MANSFIELD, Circuit Judges. JOHN R. PATTERSON, et al., Plaintiff, Ve NEWSPAPER & MAIL DELIVERS UNION OF NEW YORK & VICINITY, et al., Defendants. BLEED THROUGH 45a SL ee ee Ee ee ee SS Ee ee ee Oe ee ee Se ee ee ee ee ee ee ee ee ee x EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Vv. NEWSPAPER & MAIL DELIVERERS' UNION, etc. Defendants, JAMES V. LARKIN, Intervenor-Appellant. A petition for a rehearing having been filed herein by counsel for the intervenor- appellant, JAMES V. LARKIN, Upon consideration thereof, it is Ordered that said petition be and hereby is denied. A. DANIEL FUSARO Clerk Prronecnnrcercsercnsneron PROPIA TPG LES LS ANN IIRL, MEL NEGTAE IPE LEON RM a \ BLEED THROUGH 46a UNITED STATES COURT OF APPEALS SECOND CIRCUIT At a stated term of the United States Court of Appeals, in and for the Second Cir- cuit, held at the United States Court House, in the City of New York, on the twenty-ninth day of April, one thousand nine hundred and seventy-five. ied iaicieb te taba elias ait ena eine aalpimen ein den enienteiimenntutit x JOHN R. PATTERSON, et al., Plaintiffs, Vv. NEWSPAPER & MAIL DELIVERERS' UNION OF NEW YORK, et al., Defendants. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, Vv. Docket No. 74-2548 NEWSPAPER & MAIL DELIVERERS' UNION OF NEW } YORK, et al., Defendant. Sienna TR ORM LINENS OREN ELITES SAIL NE STIR GEL LIA AEE - 4 t i BLEED THROUGH ROEM tet oo onan eae REN RE EOL LT OCC 47a DOMINICK VENTRE, FRANK SCHILLEMI, GERALD KATZ, Intervenors, Intervenor-Appellant. weer rw em Km Ke em ee er er er er ee er nr ne eee ean ae ne nr nae ae ae ee ee Ke Ke -—xX A petition for rehearing containing a suggestion that the action be reheard in banc having been filed herein by counsel for the intervenor-appellant, JAMES V. LARKIN, and no active judge or judge who was a member of the panel having requested that a vote be taken on said suggestion, Upon consideration thereof, it is Ordered that said petition be and it here- by is denied. IRVING R. KAUFMAN, Chief Judge --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0241%3A1. Public record. Not legal advice.