# Appendix — Patterson v. Newspaper & Mail Deliverers Union

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 809

## Text

9SITS84MAY9 1994

+) Ne. 9¢-

ee

IN THE °

Supreme Court of the GAnited States

OCTOBER TERM, 1993

JOHN PATTERSON, et al.,
Petitioners,
ve

NEWSPAPER AND MAIL DELIVERERS UNION, et al.,

Respondents.

On Petition for Writ of Certiorari te the United
States Court of Appeals for the Second Circuit

APPENDIX TO THE PETITION FOR
A WRIT OF CERTIORARI

ELAINE R. JONES
DIRECTOR-COUNSEL

THEODORE M. SHAW
CHARLES STEPHEN RALSTON
(Counsel of Record)
NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
99 Hudson Street
Sixteenth Floor
New York, NY 10013
(212) 219-1900

PENDA D. Hair
NAACP LEGAL DEFENSE AND
EDUCATIONAL FuND, INC.
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005
(202) 682-1300

Attorneys for Petitioners

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208 ‘}

TABLE OF CONTENTS

Decision of the United States Court of Appeals
for the Second Circuit, December 20, 1993 ......... la

Order of the Second Circuit Denying Rehearing .... 13a

Memorandum Opinion and Order of the United States
District Court for the Southern District of New
Pe EE HEN Bs obo vb bees iviecctoceces 15a

Final Order and Judgment, United States District
Court for the Southern District of New York,
En re 33a

Decision of the United States Court of Appeals for
the Second Circuit, March 20, 1975 .............. 36a

Memorandum Opinion of the United States District
Court for the Southern District of New York,
ge rr ee re 55a

Memorandum Opinion of the United States District
Court for the Southern District of New York,
de occa 63a

Memorandum Opinion of the United States District
Court for the Southern District of New York,
ee ek 6c

4la

status by persons who have obtained Union membership
cards, the validity of which have not been challenged by
employers.

On the basis of this evidence, which was largely
uncontroverted, Judge Pierce, in approving the settlement,
had no difficulty concluding that the Union’s practice
amounted to a violation of Title VII, since they served to
"lock-in’ minorities at the non-union level of entry in the
industry, and thereby to perpetuate the impact of past
discrimination . . . .," conclusions that appear fully justified
by the record and are not challenged here. See, Griggs v.
Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158
(1971); Rios v. Enterprise Assn. Steamfitters, Local 638, supra;
United States v. Wood, Wire & Lathers, Intl. Union, Local No.
46, 471 E.2d 406 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct.
2773, 37 L.Ed.2d 398 (1973); United States v. Bethlehem Steel
Corp., supra.

The settlement agreement reached by the parties
provides that the Union shall be permanently enjoined from
discriminatory practices in violation of Title VII. It
establishes an administrator to insure compliance with the
terms of the agreement, and provides for the elimination of
past abuses, primarily by abolishing voluntary transfer by
Union members. It establishes a minority hiring goal of
25%, specifies a procedure for attaining that goal, and
provides for back pay to minority workers. Most of these
provisions are not challenged by Larkin.

The 25% goal is to be reached throughout most of
the industry by requiring that all incumbent minority persons
on the Group III list of each employer as of the date of
entry of the order are to be moved immediately to group I.
All new persons hired in the industry and classified in Group
III will be employed according to a ratio of three (3)

42a

minority’ persons to two (2) non-minority persons. As each
Regular Situation is filled by a Group I member, one Group
III member shall be moved to Group I and offered Union
membership. This is to be done on an alternating one-for-
one basis between minority and non-minority workers. Each
two vacancies in Group I will thus be filled by the minority
worker in Group III having highest seniority and the highest
seniority non-minority worker. The agreement also modifies
these provisions insofar as they apply to the smaller
employers and to the Daily News, taking into account special
conditions affecting each. At the News, an equal number of
non-minority persons from Group III will follow those
minority workers who move into the Group I list on the date
of the order, also, for a certain time, one minority and one
non-minority person will replace each person on the Group
I list promoted to the Regular Situation.

Larkin’s objection to the settlement is premised on
the observation that Group III white workers have not
benefited from the Union discrimination which is the object
of this lawsuit. On the contrary, as Judge Pierce recognized,
they also have suffered from Union policies which barred
Group III workers from access to Group I and permanent
jobs. Upon this premise. Larkin first broadly asserts that
because the Group III whites were also discriminated
against, they are entitled to the same relief as the minority
workers. More specifically, he objects to those aspects of the
affirmative action plan which, he asserts, allow minorities to
"leap-frog" non-minorities with greater seniority. He also

*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.

BAe

43a

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, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971). While the
public objective embodied in Title VII warrant a careful
review of the provisions of the settlement in light of those
policies, see, Rios v. Enterprise Assn. Steamfitters, Local 638,
501 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 & Equipment Co. v. Deal, 284 F.2d 567,
571 (Sth Cir. 1960), particularly in an area where voluntary
compliance by the parties over an extended period will
contribute significantly toward ultimate achievement of
Statutory goals. Nor should we substitute our ideas of
faimess for those of the district judge in the absence of
evidence that he acted arbitrarily or failed to satisfy himself
that the settlement 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, 93 S.Ct.
2773, 37 L.Ed.2d 398 (1973), especially in a case like the
present one where the settlement was approved and two
hearings with respect to the fairness and adequacy of 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

‘Intervenor, in addition, suggests procedural infirmities on 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.

44a

of the decree, see, e.g., United States v. Bethlehem Steel Corp.,
supra, we are powerless to rewrite the provisions of the
settlement agreement. Our only alternative, if we concluded
that Judge Pierce had abused his discretion, would be to set
aside his approval of the settlement 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.
246, 90 S.Ct. 1105, 25 L.Ed.2d 280 (1970).

Although Larkin objects to the use of a 25% goal and
to Judge Pierce’s conclusion that the minority make-up of
the relevant part of the labor force is 30%, he does not
suggest any alternative or more reliable figures as to the
labor force, he merely calls the court’s figures "contrived."
In contrast to his failure to provide any evidentiary support
for his objections, 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 Characteristics -- 1970
Census of Population and General Social and Economic
Characteristics, 1970 Census of Population and took into
account the relevant geographic area and demographic
characteristics of those making up the news delivery work
force. Thus, his conclusion, laid down in Rios v. Enterprise
Assn. Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974),
was adequately based.*

“Intervenor also suggests that his rights under 42 U.S.C. § 2000e-
2(j) have been violated. The section provides in pertineat part.

"Nothing contained in this subchapter shall

be interpreted to require any employer, employment

agency, labor organization, or joint labor-

management committee subject to this subchapter to

grant preferential treatment to any individual or to

any group because of race color, religion, sex, or
(continued...)

{i

ee” Cite Se

45a

Larkin’s argument that he is entitled to the same
benefits 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
individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). Larkin does not allege
discrimination against him based on any of these factors. He
argued only that the industry’s part practices discriminated
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 persons. Worse
still, he asserts, the relief to minority persons is at the
expense of the white Group III workers.

At first glance this argument has much appeal. As
the district court recognized, Group III workers were the
victims of some practices that were harmful to all Group III

*(...continued)

national origin of such individual or group o account
of an imbalance which may exist with respect to the
total number of percentage of persons of any race,
color, religion, sex, or national origin employed by
any employer, referred or classified for employment
by any employment agency or labor organization
admitted to membership or classified by any labor
organization, or admitted to, or employed in any
apprenticeship or other training program, in
comparison with the total number or percentage of
persons of such race, color, religion, sex, or national
origin in any community, State, section, or other
area, or in the available work force in any
community, State, section or other area.”

It is well settled in this Circuit that this section does not preclude the
use of racial hiring quotas to remedy the effects of past discrimination.
Rios v. Enterprise Assn. Steamfitiers, Local 638, supra, 501 F.2d at 630-
31; Vulean Society v. Civil Serv. Comm., 490 F.2d 367 (2d Cir. 1973);
United States v. Wood, Wire & Metal Lathers, supra.

46a

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 VII action
we are limited to consideration of the fairness of relief
directed only to the latter. The objective of Title VII is to
"attack the scourge of racial discrimination" which has
“caused manifold economic injuries, including drastically
higher rates of unemployment and privation among racial
minority groups." United States v. Wood, Wire & Metal
Lathers Intl. Union, 341 F. Supp. 694, 699 (S.D.N.Y. 1972),
affd. 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939, 93
S.Ct. 2773, 37 L.Ed.2d 398 (1973). It creates no rights or
benefits in favor of non-minority persons or groups. Any
past denial of promotion rights to Larkin is clearly not
remediable under Title VII. Indeed, Group III white
workers have unsuccessfully 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, including the back pay provisions.* Our review,
therefore, must be limited to the question of whether the
settlement agreement, in remedying minority discrimination,
treats the intervenors fairly. See State of West Virginia v.
Chas. Pfizer & Co., 440 F.2d 1079 (2d Cir.), cert. denied, 401
U.S. 871, 92 S.Ct. 81, 30 L.-Ed.2d 115 (1971).

The affirmative-action provisions of the agreement
under review affect Group III workers in the industry, and
particularly Daily News workers, in two ways. First, the
provisions for immediate transfer of incumbent minorities at

‘United States v. Roadway Express, Inc., 457 F.2d 654 (6th Cir.
1972) relied on by the intervenor does not suggest otherwise. There
the court was faced with a settlement agreement in which the union
had agreed to give some benefits to white as well as minority non-
union workers. When white union members objected the court
refused to invalidate the agreement. The case does not require that
a settlement give equivalent benefits to minority and non-minority
workers.

47a

major employers to Group I and for the filing of Group 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 III worker will advance to Group
I less rapidly than would be possible if straight shop seniority
were the basis of promotion. Indeed, a time will shortly
come when minority persons not employed in the industry at
all on the date when the agreement went into effect may
achieve Group I status before many Group III whites with
seniority. Although this feature of the agreement is not as
beneficial to Larkin as would be promotion on the basis of
Straight non-minority regardless of race, the agreement
nevertheless benefits Larkin. It presents him with an
opportunity he never had before: the chance to move up to
Group I, and eventually to a Regular Situation. Before,
there was in effect no seniority system with respect to
promotion into Group I. Thus any plan for advancement of
Group III members to Group I could only be beneficial to
Larkin. Approval of the plan can hardly be labelled as abuse
of discretion because it does not advance Larkin as rapidly
aS minority persons with less seniority. A reasonable
preference in favor of minority persons in order to remedy
past discrimination 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 I. Furthermore, the one-to-one ratio for
promotion thereafter of workers from Group III into Group
I as openings in Group I become available means that an
average non-minority Group III 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 I become
available, one will be filled by a white worker senior to him

48a

and one by a minority worker of lesser seniority. Thus he
moves up only one step for every two Group I openings.

The situation is even less favorable at the Daily News
where for an initiai period as each Group I opening (rather
than two openings) becomes available, the employer will add
one minority and one non-minority employee to Group I.
The effect of the expansion of Group I to take in minority
members of lesser seniority is likely to slow down the rate of
advancement of non-minority persons within Group III 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 III white employee reached 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 "leap-
frogging" or "bumping" of incumbent white workers, see
United States v. Bethlehem Steel Corporation, supra, 446 F.2d
at 659, and argues that we have rejected other affirmative
action programs having such an effect. It is true that we
have suggested that court ordered relief involving minority
employment goals be confined to entry level positions. Thus
in Bridgeport Guardians, Inc. v. Bridgeport Civil Serv. Comm.,
482 F.2d 1333 (2d Cir. 1973), we upheld the imposition of
racial hiring quotas at the patrolman’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. Jd. at 664. In neither case did we
specifically pass on the propriety or fairness of "bumping" an
incurnbent.

These cases do not support rejection of the
agreement that has been reached in this case. The Bridgeport
Guardians decision was based upon the failure to establish

49a

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 1333-41. In the present case, on the other hand,
there has been racial discrimination throughout the industry.
Furthermore, even assuming the desirability of confining use
of quotas to entry level positions, the effective point of entry
into employment 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 regular work.
But the fact remains that traditionally a worker who reached
Group I was on the road to a Regular Situation, whereas
one who was in Group III 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 III workers as
having been "bumped." They have retained their position:
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 somewhat 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 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

ccs

S0a

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
implementation of the plan all non-minority workers above
47 on the Group III list will be elevated to Group I and that
thereafter about 27 non-minority persons per year will be
promoted from Group III to Group I. This suggests that any
decline in daily work priority attributable to the promotion
of presently incumbent minority workers to Group I will be
offset for most workers by a rise in priority within Group III
resulting from the expeditious upward movement of Group
III whites, also made possible by the program. Finally,
should some Group III workers have difficulty finding work,
the agreement empowers the administrator to assure that any
existing work opportunities in the industry be made available
to those unable 9 get at least 45 shifts of work in a calendar
quarter.

Aside from the foregoing, there was evidence from
which it could be inferred that, if there had been no racial
discrimination in the industry, more minority persons would
have been able to enter Group III and to gain seniority over
many whites within Group III. 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
minority work force, of a policy that discouraged minority
persons from entering Group III. To 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

Sla

occupied but for industry-wide racial] discrimination.

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
bargaining 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 circumstances that
have governed employment in this industry it does not strike
us as unfair to impose certain modifications on the manner
in which promotions or qualifications 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 o 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), aff'd. per curiam, 466 F.2d 122 (Sth
Cir. 1973), cert. denied, 412 U.S. 909, 93 S.Ct. 2292, 36
L.Ed.2d 975 (1973) (§ 1983 actions), and indeed, affirmative
relief displacing white with greater seniority has been
granted, see United States Sheet Metal Workers International
Assn., Local 36, 416 F.2d 123, 133-34 (8th Cir. 1969).

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 discretion in finding
the settlement agreement to be fair to Larkin. The order is
affirmed.

FEINBERG, Circuit Judge (concurring)

52a

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
practices 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, 93 S.Ct. 2773,
37 L...Ed.2d 398 (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-
ordered racial hiring quotas." He distinguished our

‘Section 703(j) provides:
Nothing contained in this subchapter shall be
interpreted to require any employer, employment
agency, labor organization, or joint labor-
management committee subject to this subchapter to
grant preferential treatment to any individual or to
any group because of the race color, religion, sex, or
national origin of such individual or group on
account of an imbalance which may exist with respect
to the total number or percentage of persons of any
race, color, religion, sex, or national origin employed
by any employer, referred or classified by any labor
Organization, or admitted to, or employed in, any
(continued...)

53a

decisions in Vulcan Society and Bridgeport Guardians on
various grounds, the most persuasive of which was that
"there was no other means of affording relief that did not
interfere with essential public services" provided by firemen
and policemen. 501 F.2d at 638. In both cases, hiring had
to continue while new, non-discriminatory employment lists
were drawn up. Judge Hays also distinguished Wood, Wire
& Metal Lathers, because the union there, in accepting a
settlement, waived the benefit of section 703(j). A close
analysis of the cases in our circuit thus suggests that Rios is
the only decision squarely holding that a court may impose
a racial quota in a private employment case in the absence
of a settlement.

Emphasizing the status of the authority in this circuit
on the issue is worthwhile because, as we have earlier
pointed out, quotas should be approached "somewhat
gingerly." 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.

However, this case is not an appropriate one for
reexamination of the subject. The past discrimination
against minority workers here was made quite clear after a
four-week trial to the court. Minorities are conspicuously
absent from the ranks of Group I and Regular Situation
‘olders 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

'(...continued)
apprenticeship or other training program, in
comparison with the total number or percentage of
persons of such race, color, religion, sex, or national
Origin in any community, State, section, or other
area, or in the available work force in any
community, State, section, or other area.

Sda

well as for minoritics. The quota the principal parties have

agreed upon is intended to be of short duration. 384 |

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 IIT status |

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

No. 73- Civ. 3058
No. 73 Civ. 4278

United States District Court
Southern District Of New York
June 10, 1980

JOHN R. PATTERSON, et al

Plaintiffs.

NEWSPAPER and MAIL DELIVERERS’ UNION OF
NEW YORK & VICINITY, et. a/

+ / >
Defendan

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION

_ ,
Pla “+ .4#Ff
bGliitiill

NEWSPAPER AND MAIL DELIVERERS’ UNION OF
NEW YORK and VICINITY, er al.

Defendants.

JAMES LARKIN, et al

Intervenors.

S6a

PIERCE: D.J.:

Various defendants in these actions bring this
application for an order modifying the settlement agreement
which was entered into by the parties on June 27, 1974 and
subsequently approved by this Court on October 25, 1974.
The defendant/movants seek now to eliminate the positions
of Administrator of the setthement agreement. Under the
proposed modification of the setthement agreement, the
responsibilities of the Administrator would be performed by
the Equal Employment Opportunity Commission and by the
Adjustment Board of Hiring Practices, as established under
the collective bargaining agreement entered into by the
defendant Newspaper and Mail Deliverers’ Union and
various defendant employers. Before addressing the merits
of this application the history of these actions will be
reviewed briefly.

History of Actions

These actions were commenced in 1973. Plaintiffs
alleged that defendants had engaged in employment
discrimination in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000 et seq. At the conciusion of a
four-week trial on the merits, the parties agreed to a
settlement of the claims asserted. However, the terms of the
settlement agreement were opposed by certain intervenors.

By Memorandum Opinion and Order dated
September 19, 1974, this Court approved the settlement
agreement. Patterson v. Newspaper and Mail Deliverers’
Union of New York and Vicinity, [8 EPD 19736], 384 F. Supp.
585 (S.D.N.Y. 1974). It was noted in that decision that the
nepotistic membership policy of the defendant union prior to
1952 had resulted in discrimination against minority
applicants. since few, if any, members of the union were
from minority groups. Jd. at 589. Indeed, as stated by the
Court of Appeals for the Second Circuit on review of the
aforesaid decision, "[h]istorically the Union has excluded

S7a

minorities and has limited its membership to the first born
son of a member.” Patterson v. Newspaper and Mail
Deliverers’ Union of New York and Vicinity, {9 EPD § 10,033},
514 F.2d 767, 770 (2d Cir. 1975). At the time this Court
approved the settlement agreement, less than 1% of the
members of the union were from minority groups. Patterson
v. Newspaper and Mail Deliverers’ Union of New York and
Vicinity, supra, 384 F. Supp. 588.

The settlement agreement entered into by the parties
set forth the goal of increasing minority employment in the
industry to 25%. To help achieve this goal, the position of
Administration of the settlement agreement was established
under the express terms of the settlement agreement. Under
paragraph 4 of the agreement, the Administrator was
“empowered to take all actions . . . as he deems necessary to
implement the provisions [of the agreement] and to ensure
performance of the Order [approving the settlement]." The
terms of paragraph 4 aiso provided that the Administrator
was responsible for reviewing and determining all
“complaints that any individual in the bargaining units in the
industry represented by NMDU has been allegedly denied
equal employment opportunities on the basis of race, color
Or national origin and [for deciding any questions of
interpretation and claims of violation of the Order
[approving the settlement] by any party or by any such
individual employee or applicant for employment.

Paragraph 6 of the settlement agreement provides
that the Administrator shall be designated by the Court and
shall remain in that position for an initial period of five years
at the conclusion of which he or his successor shall remain
in office for such time as this Court directs. Pursuant to that
provision, William S. Ellis, Esq. was appointed by the Court
as Administrator of the settlement agreement in November,
1974.

In this Court’s view, since the date of his
appointment, the Administrator has performed his duties

58a

with dedication and has ably and fairly fulfilled his
obligations. In his report to the Court dated October 19,
1979, the Administrator indicated that as of April 31, 1979
the percentage of minority employment was 12.16%, slightly
less than half the goal set forth in the settlement agreement.
That report also lists fifteen pending matters which were
before the Administrator as of the date of the report. By
letters to the Court dated January 16, 1980, March 10, 1980,
and June 3, 1980 the list of pending matters had been
updated. As of June 3, 1989, eleven matters were pending.

On November 11, 1979, the initial appointment of the
Administrator terminated pursuant to paragraph 6 of the
settlement agreement as discussed above. See Order dated
October 29, 1979. Thereafter, Ellis was appointed as Interim
Administrator pending resolution of the present motion for
modification of the settlement agreement. See Order dated
November 13, 1979.

Motion for Further Relief and

Modification of Agreement

The defendant/movants seek to eliminate the position
of the Administrator and to substitute the EEOC and the
Adjustment Board on Hiring Practices as the principal
agencies responsible for implementation of the settlement
agreement. The Adjustment Board was established by the
collective bargaining agreement between the union and two
defendant employers, the New York Times, Co. and the New
York News, Inc. It is composed of four members of which
two members are designated by the union and two members
are designated by the Publishers /Association of New York
City. The defendant/movants are members of the Publishers
Association. Under the collective bargaining agreement, the
Adjustment Board is responsible for hearing and determining
employment disputes.

59a

Under the proposed plan submitted by the
defendant/movants, all complaints would be initially filed
with the EEOC. The EEOC would then refer the dispute to
the parties for 45 days for voluntary settlement purposes. If
no resolution is reached within that time the EEOC should
refer the complaint to the Adjustment Board for final and
binding resolution. The Board’s decision would then be
submitted to the EEOC. Any party could then request a
plenary review of the Board’s decision by this Court.

The principal arguments asserted by the
defendant/movants in support of their application are that:
(1) the expense of maintaining the positions of the
Administrator is high; (2) the EEOC and the Adjustment
Board can fulfill the functions of the Administrator; (3) the
industry is declining; (4) significant progress has been made
toward the achievement of the 25% minority employment
goal.

Both the EEOC and the Interim Administrator have
responded to the proposed plan in compliance with the
request of this Court. The EEOC has indicated that it will
not function as a substitute for the Administrator. It is
prepared, however, to assume a role in three areas formerly
filled by the Administrator. It will initially process
complaints through its "Rapid Charge Processing System.”
It will also forward all claims to the employers and the union
for vojuntary resolution or to the Adjustment Board for
arbitration. The EEOC will also monitor the periodic
reports from the defendants which have been monitored in
the past by the Administrator. See Settlement Agreement 9
7 at p. 5. The statement by the EEOC regarding the extent
to which it will be able to participate in the implementation
of the settlement agreement is consistent with the plan
proposed by the defendant/movants.

The Interim Administrator indicates that he favors a
greater participation of the EEOC in the implementation
process than that proposed by the defendant/movants. He

60a

has proposed that the EEOC not only initially process claims
but also that it participate in the initial attempts to resolve
disputes, hold adjudicative hearings, provide legal and
advocacy services to complainants, and be available to
answer questions of current and prospective employees
regarding their rights under the settlement agreement. He
also states that the role of the administrator as an overall
supervisor of the industry’s progress toward the 25%
minority employment goal should be preserved. |

Discussion

As indicated above, less than 1% of the membership
of the defendant union and less than 2% of the employment
in this industry consisted of persons of minority background
in 1974. Although significant progress has been made
toward the achievement of the settlement goal, it appears
that full achievement thereof is not imminent. Less than
one-half of the 25% minority employment goal has been
achieved in the five-year period from 1974 through 1979,
according to the Administrator’s last report to the Court.
The progress of the industry toward achievement of this goal
has not yet reached the point, at which the Court should
dispense with the requirement of supervision by a neutral
party as set forth in the voluntary settlement agreement.
Some mechanism must be provided which will ensure the
continued advancement toward the settlement goal.

In this regard, the proposed replacement of the
Administrator with the EEOC and the Adjustment Board is
not an acceptable alternative to maintaining the position of
the Administrator. Under the proposed plan the central!
function of resolving claims of racial employment
discrimination is to be referred to the Adjustment Board
which consists of person representing the very defendants
who have been charged in these actions with having engaged
in practices which resulted in the exclusion of minority
employees in this industry. Indeed, some of the claims of
employment discrimination which, under this proposal the

eee

6la

Adjustment Board would be called upon to resolve, might
well involve defendants who have representatives on the
Board.

The Court is mindful of the burden borne by
defendants with respect to the costs incurred under the
present structure. It is not inappropriate that such costs fall
upon those whose conduct or failures have caused the legal
and factual situation complained about in the first place.

Accordingly, the application of the defendant/
movants is denied. William S. Ellis, Esq. is hereby appointed
as Administrator of the settlement agreement, pursuant to
paragraph 6 thereof, for a period of five years commencing
with the date of the entry of this Memorandum and Order.
Since the EEOC and the Administrator agree that the
EEOC should participate in the implementation of the
settlement agreement, the Court requests that the EEOC
and the Administrator submit within 30 days a joint plan
regarding the roles of the EEOC and the Administrator.

A final matter which requires resolution is the
compensation of the Administrator. Pursuant to the Final
Order and Judgment dated October 24, 1974, the
Administrator has received compensation for the pasi five
years at the rate of $65.00 Per hour. That rate of
compensation, however, is not now consistent with the
current rate received by the attorneys in this region. The
Court notes that the law firm of which the Administrator is
a member presently charges between $85.00 and $150.00 per
hour. See Affidavit of William S. Ellis dated May 6, 1980.
Under paragraph 5 of the settlement agreement, the Court
is authorized to fix the hourly compensation of the
Administrator in its discretion. Therefore, the Court hereby
directs that William S. Ellis, Esq. shall receive compensation
for his future services as Administrator of the settlement
fund, commencing with the date of the entry of this
Memorandum and Order, at the rate of $85.00 per hour to
be paid in accordance with the Order of this Court dated

fa

Tune 11. 1975

Si Cyrce Té d

fita
No. 73-Civ. 3058 (WCC)

No. 73-Civ. 4278
Filed December 15, 1986

United States District Court
Southern District of New York

JOHN R. PATTERSON, et seq

Plaintiffs.

NEWSPAPER & MAIL DELIVERERS’ UNION OF
NEW YORK & VICINITY, et a/

Defendants

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION

A ee
Plaintiff.

NEWSPAPER AND MAIL DELIVERERS’ UNION O
NEW YORK AND VICINITY, et ai.

Defendants.

CONNER, D.J.:

A class of private plaintiffs and the Equal
Employment Opportunity Commission ("EEOC") brought
two civil rights action in 1973 against the Newspaper and
Mail Deliverers’ Union of New York and vicinity ("the
Union") and more than fifty publishers and news distributors
within the Union’s jurisdiction. Both suits charged that the
Union, with the acquiescence of the publishers and
distributors, had historically discriminated against blacks and
other minorities, and that the structure of the collective
bargaining agreement, combined with nepotism and
cronyism, had perpetuated the effects of the past
discrimination in violation of Title VII of the Civil Rights of
1964. Each lawsuit sought an affirmative action program
designed to achieve the minorities the status they would have
had in the newspaper delivery industry but for the alleged
discrimination practices.

On September 19, 1974, then-District Judge Lawrence
W. Pierce issued an opinion and order approving a
settlement between the parties. Patterson v. Newspaper &
Mail Delivers’ Union, {8 EPD % 9736), 384 F. Supp. 585
(S.D.N.Y. 1974), affd [9 EPD 9 10,033], 514 F.2d 767 (2d
Cir. 1976), cert. denied {12 EPD 1% 11,008], 427 U.S. 911
(1976). The setthement agreement provided that all
defendants would be "permanently enjoined from engaging
in any act or practice which has the purpose or the effect of
discriminating against any individual or class of individuals
on the basis of race, color or national origin." Settlement
Agreement 97 1,2. The Union was required to "receive and
process applications for membership, admit members, handle
grievances and otherwise administer all of the affairs of the
NMDU so as to ensure that no individual represented by it
is excluded from equal advancement, on the basis of race,
color or national origin." /d. 11. The employers agreed not
to "fail or refuse to hire for employment any [individual in
their bargaining unit represented by the union], [or to] take
any other action which would deprive any such individual of

6Sa

equal employment opportunities or otherwise adversely affect
his status as an employee or as an applicant for employment
because of such individual’s race, color or national origin.”
Id. % 2.

In addition, the settlement agreement included an
affirmative action program that set a minimum goal of 25%
minority employment in Regular Situation and group
positions in the industry by June 1, 1979. Jd. 17. In an
order dated June 10, 1980, Judge Pierce extended the
consent decree for another five-year period because the goal
of 25% minority employment had not been reached. Now
the Administrator and defendants report that the goal has
been reached.

Consequently, the Union and most of the defendant
employers have moved to vacate the consent decree in its
entirety, or in the alternative, to modify the decree to
eliminate the affirmative action provision. The EEOC has
opposed a complete termination of the decree, but does not
object to a modification of the affirmative action provisions
for those companies that have 25% minority employment.
The private plaintiffs, however, have vigorously objected to
defendants’ suggestion that the terms of the consent decree
Should be relaxed and have cross-moved for further relief
under the conseni decree. Needless to say, defendants have
indicated that they oppose these proposals.

On October 21, 1986, I issued an opinion and order
deferring a decision on motions of the parties pending a
hearing scheduled for the matter on Monday, February 23,
1987 at 10:00 A.M. in Courtroom 618. Since that time
numerous disputes have arisen concerning the scope of
discovery on the issues raised by the parties’ motions. I issue
this opinion to provide guidance to the parties concerming
the permissible scope of discovery.

In my opinion of October 21, 1986 I ordered an
evidentiary hearing to decide whether the consent decree

66a

should be terminated or modified. The consent decree
represents a settlement between the parties of this case
which was approved by Judge Pierce as long ago as
September 19, 1974. This Court is not a party to this
agreement and must respect the terms reached by those who
are parties to the settlement. Accordingly, | must proceed
cautiously before upsetting the settlement agreement in any
way.

At the February hearing, the only issue before the
Court will be whether the consent decree should be
terminated with respect to some or all of the defendants.’
The hearing will not be for the purposes plaintiff has
suggested: ie, to determine whether defendants have
violated Title VII of the Civil Rights Act of 1964 or the
consent decree. If plaintiffs believe that defendants have
violated the consent decree, they should apply to the
Administrator for relief pursuant to the decree.’ If they
believe that the decree was insufficient to end discrimination
in the industry, they must bring a new action for the relief
they seek. This Court cannot grant such relief by modifying
the consent decree.

As I said in my October 21, 1986 opinion, the private
plaintiffs are entitled to discovery on the issues to be
determined at the hearing, to facilitate a complete and
orderly presentation of evidence at the hearing. Any
discovery before the February hearing must, however, be
limited to the issue before the Court on that date. Plaintiffs’

‘It is therefore unnecessary for the Court to consider plaintiffs’
motion to bifurcate the issues at the February hearing.

*Under the terms of the settlement, the Court’s role is limited to
review of decisions by the Administrator where timely objection is
made in writing. The express terms of the decree provide that alleged
violations of the decree are to be brought before the Administrator.
Any questions of discovery related to such claims should alsc be
brought before the Administrator in the context of those proceedings.

67a

First Interrogatories are therefore overbroad and defendants
are not required to answer them. Since the appropriate
scope of discovery is much less broad than plaintiffs first
proposed, it is not necessary at this time to order discovery
to be expedited

So Ordered

68a
Nos. Civ. 3058 (WCC), 73 Civ. 4278 (WCC)

United States District Court
Southern District of New York

March 15, 1988
JOHN E. PATTERSON, et al.,
Plaintiffs,
We

NEWSPAPER & MAIL DELIVERERS’ UNION OF
NEW YORK & VICINITY, ez. al,

Defendants.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

Plaintiff.
Vv.

NEWSPAPER AND MAIL DELIVERERS UNION OF
NEW YORK AND VICINITY, et al,

Defendants.

CONNER, D.J.

A class of private plaintiffs and the Equal
Employment Opportunity Commission ("EEOC") brought
two civil rights actions in 1973 against the Newspaper and

69a

Mail Deliverer’s Union of New York and vicinity and more
than fifty publishers and news distributors within the Union’s
jurisdiction. Both suits charged that the Union, with the
acquiescence of the publishers and distributors, had
historically discriminated against minorities, and that the
structure of the collective bargaining agreement, combined
with nepotism and cronyism, had perpetuated the effects of
the past discrimination in violation of Title VII of the Civil
Rights Act of 1964. Each lawsuit sought an affirmative
action program designed to achieve for minorities the status
they would have had in the newspaper delivery industry but
for the alleged discriminatory practices.

On September 19, 1974 then-District Judge Lawrence
W. Pierce issued an opinion and order approving a
settlement between the parties and incorporating it in a
consent decree. Patterson v. Newspaper & Mail Deliverer’s
Union, 384 F. Supp. 585 (S.D.N.Y. 1974), aff'd, 514 F.2d 767
(2d Cir. 1975), cert. denied, 427 US. 911 (1976). The
Settlement agreement established an Administrator,
appointed by the Court, to implement the provisions of the
consent decree and to supervise its performance. The
Administrator hears all claims concerning violations of the
consert decree. Appeals from his decisions are heard in this
Court.

The action presently before the Court is an appeal
from the Administrator’s ruling of July 22, 1987. For the
reasons set forth below, his ruling is affirmed.

I. Background

The settlement agreement enjoins all defendants from
discriminating against any individual or class of individuals
on the basis of race, color or national origin. Settlement
Agreement 17 1, 2. By the terms of the agreement, the
Union is required to "receive and process applications for
membership, admit members, handle grievances and
otherwise administer all of [its] affairs . . . so as to ensure

70a

that no individual represented by it is excluded from equal
work opportunities including overtime and advancement, on
the basis of race, color or national origin." Jd. 11. The
employers agreed not to deny employment to individuals in
the bargaining units represented by the Union, or to deprive
such individuals of equal employment opportunities, or
otherwise adversely affect their status as employees or
applicants for employment because of their race, color or
national origin. Jd. 12.

The settlement agreement also establishes an
affirmative action program which modifies the collective
bargaining agreement for the industry. Prior to the
settlement agreement, the collective bargaining agreement
required each employer to maintain a work force of regular
situation holders for its minimum needs. To accommodate
fluctuations in the circulation of the various publications
produced by the employers, the contract permitted employers
to supplement their work force with daily shapers.

The shapers at the major employers were categorized
into groups with descending daily hiring priorities. The
group I list was restricted to persons who at one time had
held a regular situation in the industry. They had first
priority at every shift, in order of their shop seniority. After
group I was exhausted at any given shift, the next hiring
priority went to group II members. Group II consisted of all
persons in group I and all persons holding regular situations
in the industry. Once all of the group II members who had
appeared for work were employed, the remaining jobs, if
any, went to group III members, in order of their shop
tenure.

In addition to structuring the daily hiring priorities,
the group system also was supposed to represent the priority
list for filling regular situations as they became vacant. As
a regular situation opened, the person with the greatest
tenure on the group III list was entitled to move up the
group system.

Tila

Judge Pierce found that the group system promoted
nepotism and cronyism as the determining factors of
advancement within the industry. This had a discriminatory
impact on minorities, who were effectively barred from
advancing up the group system.

The affirmative action program incorporated in the
settlement agreement was designed to correct this
discrimination by modifying the group system. The program
eliminates the contract provision that the restricted group I
to former regular situation holders, and provides for the
orderly flow of group III shapers into group I, and from
there into regular situations. The agreement mandates that
for each non-minority group III member elevated to group
I, a minority group III member must also be elevated.
Settlement Agreement, 911. In addition, for every two non-
minority persons added to the group III list, three minority
persons must be added. /d. at 115. Regular situations are
filled as they become available by advancing the most senior
group I member, without regard to race, color or national
origin. Id. at 1 10(c). The goal of the affirmative action
program is 25% minority employment in the bargaining unit
throughout the industry. Jd. at 9 7.

The Union wrote to the administrator on September
26, 1986, and requested that he exempt the group III list at
New York News, Inc. ("News") from the required 3:2 ratio.
The Union asserted that the News was no longer bound by
the settlement agreement because minority representation on
the group III list was substantially above 25%. On
November 21, 1986, the administrator responded by letter
that he did not object to the Union’s proposal. The Union
and the News, however, did not wait for the administrator’s
response, and on November 4, 1986, the Union and the
News advanced ten non-minorities and four minorities to the
News’s group III list.

Shortly thereafter, the Union and most of the
defendant employers moved to vacate the consent decree in

72a

its entirety, or in the alternative, to modify the decree to
eliminate the affirmative action provisions, based upon the
attainment of the 25% goal. On February 23, 1987, the
Court held a hearing on the question of whether the 25%
goal had been achieved. Although some employers were
able to show that minority employment had reached or
exceeded 25% among their employees, it did not appear that
minority employment in the bargaining unit had reached
25% throughout the industry. The Court noted that
paragraph seven called for "25% minority employment in the
industry.” Hearing Transcript at 124-25 (quoting the
Settlement Agreement)(emphasis added). Relying on the
express language of the agreement, the Court ruled from the
bench that individual employers could not be released from
the consent decree, even upon achieving the 25% goal, until
minority employment reached 25% in the industry. /d. at
125-26. The Court deferred its decision on the motion to
terminate the decree until defendants could produce
sufficient evidence to demonstrate that minority employment
in the bargaining unit is at 25% throughout the industry as
a whole. /d. at 132.

On July 22, 1987, the Administrator ruled that the
News and the Union had violated the settlement agreement
by adding ten non-minorities and only four minorities to the
News’s November 4, 1986 group III list, and he ordered the
placement of eleven minorities on the list. The Union has
appealed.

Il. Discussion

Paragraph fifteen of the settlement agreement
mandates that three minority employees be added to the
News’s group III list for every two non-minorities. There are
no exceptions to this rule.

The Union argues, however, that the Administrator’s
decision in July 1987 was in conflict with his prior approval,
by his November 1986 letter, of an exemption for the News

73a

from the terms of the agreement. In the Union’s view, the
Administrator’s reversal was not justified by a change in
circumstances; minority employment at the News in July of
1987 was still in excess of 25% as it was when the
administrator issued his letter in November, 1986.
Accordingly, the Union asserts that the Administrator’s
decision in July 1987 should be overturned as arbitrary and
Capricious.

The Union’s argument ignores the significance of the
hearing held before this Court in February 1987. At that
hearing the Court ruled that the affirmative action program
could not be terminated until the entire industry had
achieved the 25% goal. The Administrator placed special
emphasis on this ruling in his opinion, Stating, "Despite
recent challenges to it by the defendants, the Decree has not
been terminated or modified by the Court; it is still in full
force and effect and binding on the parties and the
Administrator.". Record on appeal at 4 (emphasis in
Original). Thus, the administrator’s ruling was justified by his
reliance on the hearing before this Court, and clearly was
neither arbitrary nor capricious.

The Union also contends that the administrator’s
decision does not appropriately construe paragraph fifteen of
the settlement agreement. In support of this contention, the
Union relies on language in paragraphs seven and eleven,
which refer to the affirmative action plan set forth in
paragraph fifteen as the "new hiring procedure." On the
basis of this language, the Union concludes that the
affirmative action plan was only intended to apply to persons
who are "new hires," that is, persons who have never before
worked in the industry. Since the non-minorities who were
advanced to the group III list and shaped for previous shifts
at the News, they were not new hires, and therefore were not
subject to the affirmative action plan.

The Union’s reasoning is nothing more than sophistry.
The agreement makes no reference to so called new hires.

74a

It refers to a "new hiring procedure.” This merely
acknowledges that the hiring procedure described in
paragraph fifteen is new in that it modifies the old hiring
procedure that was employed under the collective bargaining
agreement.

Finally, the Union asserts that the affirmative action
program should be terminated as to the News because
minority employees at the News already constitute more than
25% of the work force. It is well established that affirmative
action programs must be terminated once the target racial
balance is reached. See Johnson v. Transportation Agency,
Santa Clara County, 107 S.Ct. 11456 (1987), Local 2, Sheet
Metal Workers’ Intl Ass'n v. EEOC, 106 S.Ct. 3019, 3052
(1986); United States Steel Workers of America v. Weber, 443
U.S. 193, 208,09 (1979). As discussed above, however, the
Court concluded at the February 1987 hearing that the
agreement established a goal of 25% minority employment
in the bargaining unit throughout the entire industry. The
Court refused to lift the decree as to individual employers
even though they may have achieved the 25% goal. The
evidence submitted at that hearing failed to prove 25%
minority employment in the industry, and the Union has not
submitted any new evidence on this appeal. Therefore, the
3:2 hiring ratio still applies.

III. Conclusion

For the foregoing reasons, the decision and order of
the administrator is affirmed in all respects.

So Ordered.

75a

JOHN E. PATTERSON, et al,
Plaintiffs

Vv.

NEWSPAPER & MAIL DELIVERERS’ UNION OF
NEW YORK & VICINITY, e7. al,
Defendants.

In the Matter of the Group III List of
THE NEW YORK TIMES, pursuant to the
terms of the Settlement Agreement.
U.S.D.C., $.D.N_Y.

73 Civ. 3058 (WCC). 73 Civ. 4278 (WCC)
Claim No. 186

United States District Court,
S.D. New York
Sept. 25, 1991

OPINION AND ORDER

WILLIAM C. CONNER, District Judge.

A class of private plaintiffs and the Equal
Opportunity Commission ("EEOC") brought two civil rights
actions in 1973 against the Newspaper and Mail! Deliverers’
Union of New York and Vicinity ("NMDU" or "Union") and
more than fifty news publishers and distributors within the
Union’s jurisdiction. Both suits charged that the Union, with
the acquiescence of the publishers and distributors, had
historically discriminated against minorities, and that the
Structure of the collective bargaining agreement, combined
with nepotism and cronyism, had perpetuated the effects of
past discrimination in violation of Title VII of the Civil

76a

Rights Act of 1964. Each lawsuit sought an affirmative
action program designed to achieve for minorities the status
they would have had in the newspaper delivery industry but
for the alleged discriminatory practices.

On September 19, 1974, then-District Judge Lawrence
W. Pierce issued an opinion and order approving a
settlement between the parties and incorporating the
Settlement Agreement in a Consent Decree, familiarity with
which is presumed. See Patterson v. Newspaper and Mail
Deliverers’ Union, 384 F.Supp. 585 (S.D.N.Y. 1974) aff'd, 514
F.2d 767 (2d Cir. 1975), cert. denied, 427 U.S. 911, 96 S.Ct.
3198, 49 L.Ed.2d 1203 (1976). The Settlement Agreement
implements an affirmative action program which modifies the
hiring procedures for newspaper deliverers under the
industry-wide collective bargaining agreement. Under the
consent decree, each employer maintains a work force of
regular situation holders for its minimum delivery needs. To
accommodate fluctuations in circulation, the publishers are
permitted to supplement their work force with daily shapers.

The daily shapers are divided into three groups with
descending hiring priorities. Those shapers on the Group |
list have first priority after the regular situation holders, in
order of their shop seniority. The next priority Delongs to
Group II shapers. Group II consists of all persons holding
regular situations or Group I positions with other employers
in the industry. The last priority belongs to Group III
shapers.

The Settlement Agreement also established an
Administrator, appointed by the Court, to implement the
provisions of the Consent Decree and to supervise its
performance. The Settlement Agreement authorizes the
Administrator to hear claims concerning violations of the
Consent Decree. Appeals from his decisions are heard in
this Court.

Pursuant to the Settlement Agreement, plaintiffs seek

77a

review of a determination by Administrator William S. Ellis,
Esq. (the "Administrator"), denominated "Claim 186." I have
reviewed the exhibits and testimony relied upon by the
Administrator, as well as the arguments submitted to the
Court by the various parties. For the Reasons set forth
below, the Administrator’s decision is affirmed.

BACKGROUND

In the Spring of 1984, in the belief that the goal of
25% minority employment in the industry hac been reached,
the Union and most of the defendant employers moved to
vacate the Consent Decree in its entirety, or in the
alternative, to modify the decree to eliminate the affirmative
action provisions. During the period that followed the
making of these motions, the matter of Claim 186. The New
York Times ("Times") and the Union wished to expand the
Group III list to approximately 160 employees and to avoid
the 3/2 ratio required by paragraph 15 of the Settlement
Agreement.

In February 1985, the Times and the NMDU
approached the Administrator to seek his authorization to
permit the issuance of a Group III list which would not
conform to the 3/2 ratio. The Administrator declined to
agree to such a modification, informing the parties that for
such authorization to be given, it would have to be with the
consent of all the parties to the Consent Decree with the
approval of the court.

The Administrator issued an order on August 13,
1985 that such a list should not be issued. Although the
Settlement Agreement establishes a procedure for the appeal
of Orders of the Administrator, the defendants did not
appeal the Administrator’s order freezing the Times’ Group
III list. See Settlement Agreement at 14. In direct
contravention of both the Settlement Agreement and the
Administrator’s Order, the Adjustment Board of the Times
and the Union proceeded to issue a new Group III list of

78a

approximately 175 names effective August 15, 1985.' A
minority person was placed into every fourth position on the
new list. Prior to the issuance of the Preliminary Group III
list, the Group III list of the Times had rarely been greater
than 40 employees.’

On August 20, 1985, the Administrator directed the
Times and the NMDU not to use this Preliminary Group III
list. The NAACP Legal Defense Fund ("LDF") and the
EEOC objected to the list. A hearing before the
Administrator was scheduled for August 26, 1985 to consider
the objections raised by LDF. At that hearing, after all sides
were afforded a full opportunity to be heard, the
Administrator directed that (1)a notice should be attached
to the Preliminary Group III list emphasizing that it was
temporary and subject to the hearing to be held before the
Administrator and (2) the Adjustment Board hear the
complaints of certain individuals, adding such names as
appropriate to the bottom of the list. The Administrator
also ordered that the list comprise 30% minority persons.
Finally, the Administrator ruled that so long as the persons
on the list were qualified a provided in the Adjustment
Board’s conditions to the list, the Times could hire them
from the list while the litigation proceeded. Transcript 114-
115, 120.

It was the understanding of all parties that this
proceeding would be resolved in two or three weeks and that
a new list would be issued with the approval of the
Administrator. The hearing started in October 1985, and it
was not completed until approximately 6000 pages of

‘The Adjustment Board is provided for in the collective
bargaining agreement. It is composed of two Times and two NYDU
. epresentatives.

> At the time that the Preliminary Group III list was issued in
August 1985. The Times had reached a minority employment
percentage of 30.14%. The industry-wide figure was 24.4%.

79a

transcript later, in July 1988.
The Administrator’s Findings

At the hearings the parties presented extensive
evidence concerning the formation of the Preliminary Group
III list. Based on the evidence presented in the case the
Administrator concluded that both the Times and the
NMbDU had violated the following provisions of the
Settlement Agreement:

1. Paragraph 15, dealing with the 3/2 ratic
required of the Group III list.?

The Administrator found that in light of his refusal to
modify the Settlement Agreement in order to permit less
than the 3/2 ratio, the Times and the NMDU were obligated
to follow paragraph 15 or, in the alternative, to seek recourse
to this Court for the purpose of obtaining authorization for
such modification. In the face of no such authorization, the
Administrator concluded that the Adjustment Board had
violated paragraph 15 of the Settlement Agreement whit
issued the Preliminary Group III list.

y Paragraph 15, dealing with the standards to be
followed in giving preferences to certain
employees to be place on a Group III list.

The Administrator found that the evidence indicated
that the primary basis for placing and positioning persons on
the Preliminary Group III list was determined by the
seniority of one’s sponsor at the Times. If the sponsor, who

> This term means that for every five employees added to the

Group III list, three were to be minorities and two were to be non-
minorities.
Paragraph 15 provides in relevant part:
Defendant employers shall offer positions available
-- OM the basis of three (3) minority employees for
every two (2) other employees.

80a

was usually the father or some other relative of the
applicant, had seniority at the Times, the position of the
applicant was determined by reference to such sponsor’s
seniority. Although the Times attempted to prove that there
were other criteria such as (a) shifts worked, (b) tractor-
trailer driving ability, and (c) commitment and interest,
which were taken into account in determining the placement
of an applicant on the proposed Group III list, the
Administrator found that such other criteria played but a
minor role in the decision. The Administrator’s
Determination in Claim 186 dated February 27, 1991
("Administrator’s Determination") at 47. Based on the
evidence before him the Administrator concluded that the
Times and the Union had discriminated in violation of
paragraph 15 of the Settlement Agreement.

3. Paragraph 29, dealing with the establishment
of a system for the submission of applications.

The testimony given before the Administrator
indicated to him that the method by which an applicant
applied for placement on the Preliminary Group III list was
to give a slip of paper with the name and social security
number of the applicant to a foreman or a union official.‘
These slips of paper were collected and treated by the
Adjustment Board as applications for Group III. The
testimony of various officials who handled these applications
indicated that at times no one was sure who was keeping
them or where they were being kept. This method of
submitting applications for placement on Group III is not set
forth in any official document of either the Times or the
NMDU or in the Settlement Agreement.

The Administrator found that minority persons were
not usually told about this method of submitting applications.

4

If any Times’ employee submitted a slip of paper on behalf
of another person he became known as a sponsor.

8la

In the instances in which they were told, the Administrator
found that they were often given incorrect information.

In addition a formal application was available in the
lobby of the Times’ building. Several minority claimants
were found to have filled out such applications. The
Administrator found, however, nothing in the testimony to
Suggest that the Times ever looked at these applications.
Though the policy of the Times required that these formal
applications be submitted to the Delivery Department for
consideration, the Administrator found that these
applications were not reviewed by the Delivery Department
prior to making the new Group III list.

4. Paragraphs 1 and 2 in reference to
discriminatory treatment in the offlist hiring
of minority employees and in the various
practices of the industry.

The language of paragraphs 1 and 2 of the Settlement
Agreement provides that the defendants are prohibited from
discrimination in purpose and effect. Under the terms of the
Settlement Agreement all activity on the regular situation
list, the Group I list, and the Group III list is regulated.
Parties to the Settlement Agreement have no discretion to
act except pursuant to its terms. In contrast to its procedure
for hiring of individuals on the Group I, II and III lists, the
Times had no policies or procedures to govern selection of
offlist workers but for the general prohibitions of the
Settlement Decree.

Based upon the evidence presented, the
Administrator found that each of the claimants proved an
individual claim of racial discrimination in violation of
paragraphs 1 and 2 of the Settlement Agreement with regard

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to offlist hiring.*

Moreover, the Administrator concluded that since the
new Group III list took into account various hiring records
which had been developed during offlist hiring, the
discriminatory hiring affected the composition and order of
the new Group III list. The Administrator found that the
evidence supported eighteen individual claims of intentional
discrimination with regard to exclusion from or low
placement on the Group III list.

Three non-minority, non-union, intervenors, Richard
M. Johnson, Richard W. Johnson, and Donald Schley alleged
that the Times and the NMDU had violated paragraphs 15
and 29 of the Settlement Agreement and that such alleged
violations had an adverse affect on them. The Administrator
dismissed their claims for lack of standing.

Remedies

In light of his findings of fact and conclusions of law
the Administrator prepared a Group I list on a one-to-one
basis, consisting of 48 minorities and 48 non-minorities and
a Group III list, as of September, 1985.° The Administrator
also awarded back pay to those claimants whom he found to
have proved individual claims of discrimination with regard
to the creation of the Preliminary Group III list. The back
pay award covered the period from the date of the issuance
of the Preliminary Group III list to November 30, 1988, the

*The Administrator concluded that the plaintiffs failed to prove
that there was a pattern and practice of intentional discrimination and
that the new list had an adverse impact. Administrator's
Determination at 59.

*In the fail of 1988, the Administrator applied to the Court for
permission to issue an Interim Group I list due to delays in the
resolution of Claim 186. The court granted the application by an
order dated November 30, 1988 in Claim 229. An Interim Group I
list was issued soon thereafter.

83a

date on which the Interim Group I list was issued.’

As discussed above, the Administrator found that
defendants engaged in intentional racial discrimination
against all of the claimants in offlist hiring. |The
Administrator further concluded that "each [of the claimants]
is entitled to an appropriate remedy for the [offlist hiring]
violation." Administrator’s Determination at 57. The
Administrator failed to state explicitly what type of remedy
should be imposed for this violation.

Finally, the Administrator ruled that the LDF was
entitled to Attorneys’ Fees.

DISCUSSION

The Agreement provides the Administrator with
broad authority to take all actions he deems necessary to
implement the provisions and to ensure the performance of
the Order. It further provides that the Administrator shall
hear and determine a wide variety of claims arising under
the Agreement, which may then be brought before the Court
for review. Agreement 1 4.

In Foreman v. Wood, Wire & Metal Lathers
International Union, Local No. 46, 557 F.2d 988, 992 (2d Cir.
1977), the Court of Appeals for the Second Circuit noted
that the Scope of review of an independent administrator
appointed to ensure compliance with a settlement decree was
similar to that applied to an arbitrator’s decision. More
recently in United States v. International Brotherhood of
Teamsters, Etc., 905 F.2d 610, 616 (2d Cir. 1990), the Second
Circuit Court reiterated that an administrator’s decision is
"entitled to great deference." Thus, it is clear that an
administrator’s decision cannot be rejected merely because
a court may be inclined to reach a different result.

"Back pay was to include benefits, vacation pay, pension
contributions, and interest on any back pay award.

84a

The Times places great emphasis on its position as
"the pacesetter in the industry in affording bargaining unit
employment opportunities to minorities." Times Brief at 13.
Both the Times and the NMDU argue that the Adjustment
Board issued the Preliminary Group III list at a time when
it appeared that departure from the 3:2 ratio was permissible
if not required. Relying on the fact that the "Times Delivery
Department work force was approximately 30% minority, the
Times and the Union argue that "there was strong reason
for believing it was unlawful to continue following the 3:2
ratio" in light of the Supreme Court decision in Firefighters
Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576,
81 L.Ed.2d 483 (1984) (ruling that affirmative action quotas
were not without limitation). Times Brief at 18.

This Court is cognizant of the Times record but
notes, nevertheless, that the Times and the NMDU took
matters into their own hands in open disregard of the plain
language of the Settlemeni Agreement and the explicit order
of the Administrator. This they cannot do. A court order
must be obeyed. This Court hereby affirms the
Administrator’s conclusion that the Times and the Union’s
unilateral noncompliance with the 3:2 ratio set out in
Paragraph 15 constitutes a violation of the Consent Decree.
Because the Court affirmed the Administrator’s finding of a
violation of Paragraph 15 on this ground, it does not reach
the question whether consideration of sponsorship "as the
factor which determined the weight to be given to other
factors” violated the preference requirements of paragraph
15 of the /settlement Agreement.

Paragraph 29 provides in pertinent part:

Applicants for employment with any defendant
employer shall report to such office during normal
business hours to complete applications for listing on
the extra lists at a particular employer, and such
applications shall be available only at such office or
offices. The Administrator shall receive a monthly

85a

report concerning said applications.

The Administrator interpreted this paragraph as an
attempt to "establish a system for the filing of applications
which set forth qualifications of the applicant, in a central
place available to all, with procedures which afforded an
equal opportunity to all interested persons, and which
required on a standardized form a request for the type of
information that an employer interested in truck drivers and
deliverers would need." Administrator’s Determination at
48. The Administrator found, on the basis of the evidence
presented before him, that the application procedures for the
Preliminary Group III list violated Paragraph 29 the
Settlement Agreement. This Court finds no basis for
reversal of such finding.

Both the Times and the NMDU argue that the
Selection of off-list hires was not founded on racial
consideration but, rather, on the bona fide judgment of
foremen regarding past performance and/or expected
reliability of drivers. The Administrator rejected these
arguments, finding them "pretextual and not credible."
Administrator’s Determination at 55. The Administrator
further concluded that, with regard to eighteen of the
claimants, the defendants did not offer credible reasons for
their relative placement on or exclusion from the Preliminary
Group III list. the Administrator found further that
defendants failed to sustain their burden of articulating non-
discriminatory reasons for their adverse treatment of the
claimants.

This Court, upon consideration of the record and the
briefs submitted, finds no basis for concluding that the
Administrator’s decision was arbitrary or for substituting its
judgment for that of the Administrator. This Court
recognizes that the Administrator’s hearing on Claim 186
covered a period of three-and-a-half years and that
approximately 6,000 pages of testimony were taken. He has
rendered a reasoned decision that is clearly within the scope

86a

of the authority given to him by the Settlement Agreement.
it is obvious that he did not act hastily or without having
access to all of the relevant facts. While it may be argued
that these findings do not represent the only set of
conclusions which the evidence might have supported, I find
them to be reasonable and not capricious, arbitrary, or
manifestly unfair and therefore affirm that portion of the
Administrator’s Determination finding intentional
discrimination against all claimants in offlist hiring and
against eighteen claimants in the creation of the Preliminary
Group III list.®

Remedies

As the Times notes, "the formation of these lists is
not a simple task." Times Brief at 17. This Court concurs
and finds that in crafting the Second Revised Interim Group
I list in March 1990, the Administrator reconstructed as
closely as possible the status that successful claimants would
have held if the Settlement Agreement had not been violated
and racial discrimination had not occurred. Those persons
heretofore on the Second Revised Interim Group I list at the
Times shall be considered hereafter members of Group I.
The Union is directed to issue Union cards to all of the
employees on Group I. The Union is directed to give
priority numbers to the first one-fourth of the Group I list as
if they had been inducted on September 1, 1986, and to the
second half of the Group I list as if they had been inducted
on September 1, 1988.

The Times argues that any monetary relief is neither
required nor appropriate even assuming, arguendo, that

*This Court does not reach the question of whether the
Administrator ruled correctly in concluding that the evidence did not
support a finding of a pattern and practice of intentional
discrimination or of adverse impact.

87a

violations of the Settlement Agreement were committed,
because no back pay award is cognizable under the
Settlement Agreement. While Paragraph 37 established a
back pay fund in connection with the settlement of the
Patterson action, nowhere in the Settlement Agreement is
there an affirmative statement ordering back pay for
violations of the Settlement Agreement. The Times argues
that "[p]lainly the parties to the Settlement Agreement knew
how to indicate that back pay could be ordered" as a general
remedy had such been their intention. Times Brief at 107.
The Times argues that the absence of an affirmative
Statement to that effect is most telling.

It is clear that the parties to the Settlement
Agreement intended the Consent Decree to subsume alleged
violations of Title VII.” This is borne out by the language
of the Settlement Agreement providing:

The Order resolves all issues between plaintiffs and
defendants, who have agreed hereto, relating to
alleged acts and practices of discrimination by said
defendants to which the Order is directed, and with
respect to such matters, compliance with the Order
shall be deemed to be compliance with Title VII and
shall be deemed to satisfy the requirement for
affirmative action by said defendants or any of them.
The doctrines of res judicata and collateral estoppel
shall apply to all plaintiffs with respect to all issues of
law and fact and matters of relief within the scope of
the complaint or the Order.

*The provisions of the Settlement Agreement do not indicate that
plaintiffs waived their Title VII rights by agreeing to submit Title VII
claims (of the type contemplated by the Consent Decree) to the
Administrator. On the contrary, submission of such grievances is the
functional equivalent of a plenary lawsuit, since compliance with the
Consent Decree is tantamount to compliance with Title VI.
Settlement Agreement § 42. Moreover, appeals from the
determinations of the Administrtor are heard in this Court.

88a

Settlement Agreement at 1 42. This identification between
the terms of the Settlement Agreement and the requirements
of Title VII indicates the parties’ intent that discrimination
claims be remedied through the Consent Decree’s specific
enforcement procedures.

For the past sixteen years the Administrator has been
hearing and determining claims brought by NYDU members
regarding discriminatory treatment and denial of equal
opportunity within the New York newspaper industry. The
large majority of such claims have involved individuals who
were not members of the private class of plaintiffs in 73 Civ.
3058.

Until a recent federal action filed by the LDF there
have been, since the entry of the Final Order approving the
Settlement Agreement, no lawsuits filed against any
defendant alleging discrimination in the bargaining unit
represented by the NMDU. Instead, allegations of
discrimination have either been settled directly with
claimants or presented to the Administrator.

During this sixteen-year period the EEOC and the
New York State Division of Human Rights ("NYSDHR")
have forwarded to the Administrator for his exclusive
consideration almost all charges of discrimination filed by
NMDU members with these agencies. On some occasions,
such discrimination charges were not forwarded to the
Administrator because the employers settled the complaints
directly with the individuals involved, the EEOC and/or the
NYSDHR without the need for the Administrator’s
intervention.

It is clear beyond question that the judicially
approved and monitored Settlement Agreement expressly
authorized the Administrator to adjudicate claims of
discrimination. It has long been the position of this Court
that if an individual seeks to remedy a wrong contemplated
by the Consent Decree, that individual couid apply to the

89a

Administrator for relief pursuant to the Consent Decree.
Paragraph 42 provides that compliance with the Settlement
Agreement in compliance with Title VII and accords a res
judicata effect to the all issues of law and fact and matters of
relief resolved by the Administrator.” Retroactive seniority
and back pay are routinely awarded to victims of racial
discrimination in violation of Title VII. The Settlement
Agreement cannot afford complainants fewer types of relief
than are available through Title VII litigation. To hold
otherwise would deprive complaints under the Settlement
Agreement of the remedies available to them through Title
VII litigation. Accordingly, this Court concludes that the
Settlement Agreement, while not explicitly authorizing the
Administrator to award back pay, does not proscribe the
award of back pay.

The Times argues that back pay is unwarranted since
the purpose of this proceeding was to resolve the competing
claims of individuals for placement on the list and that as
such, the action was in the nature of an interpleader suit,
with the Times akin to a stakeholder. The Times argued
that it was "disinterested" in the composition of the
Preliminary Group III "so long as the personnel are
competent and its staffing requirements are satisfied." Times
Brief at 105. The Administrator rejected this argument.
Even if the Group III positions were analogized to a stake
of money or property, defendants’ roles here are not those
of stakeholders. Rather than turn the stake over to the
Court or to the Administrator, defendants issued and applied
the list in violation of both the judicial decree and the

'° The Court expresses no view as to whether the
Administrator's jurisdiction of discrimination claims within the scope
of the Consent Decree is exclusive, although it is difficult to see how
court rulings rulings in Title VII actions brought by individual
plaintiffs seeking more favored positions on the employment ladder
could fail to interfere with the intricate and delicately balanced
scheme of affirmative action established by the Decree.

90a

Administrator’s explicit order. Even if the defendants
request to the Administrator for permission to depart from
the 3/2 ratio might be construed as analogous to an
interpleader action, the interpleader rules do not allow the
stakeholder to begin an interpleader action and then
precipitously turn over the money or property to one
claimant while the court is deciding how to rule on the
interpleader.

The Supreme Court in Albemarle Paper Co. vy.
Moody 422 U.S. 405, 422, 95 S. Ct. 2362, 2373-74, 45
L.Ed.2d 280 (1975) set out the governing standard for the
award of back pay:

{BJackpay should be denied only for reasons which,
if applied generally, would not frustrate the statutory
purposes of eradicating discrimination throughout the
economy and making persons who for injuries
suffered through past discrimination.

These statutory purposes [leave] little room for the exercise
of discretion not to order reimbursement." Jd. at 417, 95
S.Ct. at 2371.

In this case, the Administrator, who heard all of the
evidence and the defendants’ arguments, determined that no
exception applies and that back pay is an appropriate and
necessary remedy for the eighteen claimants who prevailed
on claims of intentional discrimination.

The Administrator’s conclusion that back pay is an
available remedy under the Settlement Agreement is
affirmed. The Administrator is directed to hold evidentiary
hearings to determine the amount of back pay due and
owing to all of the claimants in Claim 186 but for McCargo,
Harvey, Streety, and the three non-minority intervenors.
The Administrator is further directed to hold an evidentiary
hearing for the purpose of determining the relative liability

9la

of The Times and the NMDU."!

Title VII establishes a strong presumption in favor of
an award of fees to the prevailing plaintiff. The court in
Albemarle, supra, relied upon the "strong public interest in
actions brought under Title VII to eradicate discriminatory
practices” in holding that attorneys’ fees should be awarded
to successful plaintiffs " in all but very unusual
circumstances.” 422 U.S. at 415, 95 S.Ct. at 2370. The same
right to attorneys’ fees applies where, as here, plaintiffs
prevail in a proceeding to enforce a settlement agreement.
This Court affirms that Administrator’s determination that
attorneys’ fees are recoverable under the Consent Decree
and his award of attorneys’ fees to he LDF in the instant
case.

The Administrator has not recommended that the
Times and the Union be held in contempt, finding that little
purpose would be served at this time by such a
recommendation. This Court concurs and denies the LDF’s
motion of January 21, 1991 asking the Court to refer the
issue of defendants’ criminal contempt to the United States
Attomey for investigation and determination whether to
prosecute.

"'The Court affirms the Administrator's determination that the
Times and the NMDU are jointly responsible for above-mentioned
violations of the Settlement Agreement.

The Union interprets the Administrator’s finding that the
NMDU and the Times are jointly responsible as meaning that both
parties are fifty percent responsible. The Court rejects the NMUDU’s
interpretation. The Administrator is directed to hold an evidentiary
hearing to determine the relative culpability of the parties so as to
apportion properly liability for monetary compensation. While the
Administrator may well conclude that the Times and the NMDU are
equally responsible, such decision has not yet been made.

92a

CONCLUSION

For the reasons stated herein the Court affirms the
Administrator’s Determination of February 27, 1990.

The Administrator is directed to hold evidentiary
hearings to determine the amount of back pay due and
owing to all of the claimants in Claim 186 but for McCargo,
Harvey, Streety, and the three non-minority intervenors.
The Administrator is further directed to hold an evidentiary
hearing for the purpose of determining the relative liability
of The Times and the NMDU.

The question of what relief is appropriate in light of
the Administrator’s finding of offlist hiring discrimination is
remanded to the Administrator for a determination not
inconsistent with the views expressed in this opinion.

The motion of the NAACP Legal Defense Fund
requesting that this Court refer the question whether
defendants should be prosecuted for criminal contempt to
the United States Attorney is hereby denied.

SO ORDERED

93a

Nos. 73 Civ. 3058 (WCC).
73 Civ. 4278 (WCC).

United States District Court
S.D. New York.

JOHN E. PATTERSON, et al..
Plaintiffs,
Vv.

NEWSPAPER & MAIL DELIVERERS’ UNION OF
NEW YORK & VICINITY, ez. al,

Defendants.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

Plaintiff,

NEWSPAPER AND MAIL DELIVERERS’ UNION OF
NEW YORK AND VICINITY, et al.,

Defendants.
September 30, 1991.

OPINION AND ORDER

WILLIAM C. CONNER, District Judge. A ciass of
private plaintiffs and the Equal Employment Opportunity
Commission ("EEOC") brought two civil rights actions in
1973 against the Newspaper and Mail Deliverers’ Union of
New York and Vicinity ("NMDU" or "Union") and more
than fifty news publishers and distributors within the Union’s
jurisdiction. Both suits charged that the Union, with the

94a

acquiescence of the publishers and distributors, had
historically discriminated against minorities, and that the
structure of the collective bargaining agreement, combined
with nepotism and cronyism, had perpetuated the effects of
past discrimination in violation aid Title VII of the Civil
Rights Act of 1964. Each lawsuit sought an affirmative
action program designed to achieve for minorities the status
they would have had in the newspaper delivery industry but
for the alleged discriminatory practices.

On September 19, 1974, then-District Judge Lawrence
W. Pierce issued an opinion and order approving a
settlement between the parties and incorporating the
Settlement Agreement in a Consent Decree, familiarity with
which is presumed. See Patterson v. Newspaper and Mail
Deliverers’ Union, 384 F. Supp 585 (S.D.N.Y. 1974) aff'd 514
F.2d 767 (2d Cir. 1975), cert. denied, 427 U.S. 911, 96 S.Ct.
3198, 49 L.Ed.2d 1203 (1976). The case is presently before
the court on the motions of defendants New York Times
("Times"), Maxwell Newspapers, Inc. ("Maxwell"), New York
Post ("Post"), and the NMDU to modify or vacate the Final
Order and Judgment and accompanying Settlement
Agreement ("Consent Decree") entered in this action in
1974.

BACKGROUND

The principal purpose of the Consent Decree, which
defendants entered "without admission by any defendant of
a violation of Title VII ...or...42 U.S.C. § 1981, and
without any finding by the Court that any defendant has
discriminated against any person or persons because of race,
color or national origin," was "to correct the statistical
imbalance [of minority individuals]" by "put(ting] minority
individuals in the positions they would have occupied had the
aforesaid statistical imbalance not existed." The consent
Decree set a "goal" of 25% minority employment in the
industry, which was defined as "not an inflexible quota but an
objective to be achieved by the mobilization of available

95a

personnel and resources ... in a good faith effort to maximize
employment opportunities in the bargaining units in the
industry represented by the NMDU."_ See Settlement
Agreement at 1 8. The Decree provided, as the means for
achieving this 25% goal, an Affirmative Action program
setting specified ratios for the employment and advancement
of minority persons.

Under the consent decree, each employer maintains
a work force of regular situation holders for its minimum
delivery needs. To accommodate fluctuations in circulation,
the publishers are permitted to supplement their work force
with daily shapers.

The daily shapers are divided into three groups with
descending hiring priorities. Those shapers on the Group I
list have first priority, after the regular situation holders, in
order to their shop seniority. The next priority belongs to
Group II shapers. Group II consists of all persons holding
regular situation or Group I positions with other employers
in the industry. The last priority belongs to Group III
shapers.

The Affirmative Action program eliminates the
contract provisions that restricted Group I to former regular
situation holders, and provides for the orderly flow in Group
III shapers into Group I, and from there into regular
Situations. The agreement mandates that for each non-
minority Group III member elevated to Group I, a minority
Group III member must also be elevated. Settlement
Agreement at 111. In addition, for every two non-minority
persons added to the Group III list, three minority persons
must be added. /d. at 115. Regular situations are filled as
they become available by advancing the most senior Group
I member without regard to race, color, or national origin.
Id. at 1 10(c).

By Order dated November 30, 1988, after finding that
the goal of 25% minority hiring had been surpassed, this

96a

Court suspended those provisions of the Settlement
Agreement which required 3:2 and 1:1 ratios for placement
of individuals on the Group III and Group I lists,
respectively, as well as other affirmative action provisions of
the Settlement Agreement which had a direct impact on the
minority employment goal.

The Setthkement Agreement also establishes and
Administrator, appointed by the Court, to implement the
provisions of the Consent Decree and to supervise its
performance. The settlement Agreement authorizes the
Administrator to hear claims concerning violations of the
Consent Decree. Appeals from his decisions are heard in
this Court.

On April 17, 1985, the Times moved for an order,
pursuant to Paragraph 7 of the Final Order and Judgment in
this matter dated October 24, 1974, and Rule 50(b).
Fed.R.Civ.P., vacating or modifying said Final Order and
Judgment on the grounds that (1) the terms of the Final
Order and Judgment have been satisfied and (2) relief
therefrom is justified under present circumstances.’ On
February 23, 1987, the Court held a hearing to consider
defendants motion to terminate the Settlement Agreement.
The Court ruled from the bench "that notwithstanding that
some employers had reached or exceeded the 25% figures
within their respective operations," the goal called for in the
Settlement Agreement incorporated in the Consent Decree
called for "25% minority employment in the industry." See
Opinion and Order dated March 15, 1988 at 6-7, 1988 WL
31866. Finding that the 25% goal had not been met
industry-wide, this Court deferred its decision on the motion
to terminate the Consent Decree until defendants could
produce sufficient evidence to demonstrate that minority
employment in the bargaining unit had reach 25% through

‘On or about April 23, 1985, New York News Inc., the then
publisher of the New York Daily News, made a similar motion.

97a

the industry as a whole.

On May 30, 1991, having reviewed quarterly reports
which indicated that the 25% goal had been met and
exceeded, this Court restored the motions to its calendar in
order to take the steps necessary to render a decision. As
part of this process, the court directed the Interim
administrator to submit compliance reports of all the
companies subject to the Settlement Agreement. The Court
indicated that upon receipt of the Administrator’s findings
and after review of submission by the parties, it would
address the motions of defendants to modify or terminate
the Consent Decree.

DISCUSSION

The Administrator, who is charged to implement the
provisions and supervise the performance of the Settlement
Agreement, reviewed and evaluated the submissions of each
company under his jurisdiction for the purpose of
determining compliance with the terms of the Settlement
Agreement. After considering all the reports submitted, the
Administrator concluded that the minority figure of 28.53%
Suggested substantial compliance for the industry. Report of
the Interim Administrator concerning the Compliance
Reports, September 9, 1991 ("Report") at 9.

The NAACP Legal Defense Fund ("LDF") argues,
however, that this report is simply a summary of numbers
provided by the employers to the Administrator and that the
Administrator has taken no action to verify that the numbers
actually represent persons working at the various employers
and that the persons listed as minorities are actually minority
individuals. The LDF maintains that, to the extent that the
current percentage of minorities in the industry is relevant to
the determination of the pending motion, the Court must
grant plaintiffs discovery and allow for an evidentiary hearing
on this issue before reaching the merits of defendants’

98a

arguments.”

The LDF argues that defendants have not proved
with admissible evidence that a 25% minority representation
has been reached. Moreover, the LDF has stated that it
would object to any motion for entry of the Compliance
Reports into evidence as the submissions are
"overwhelmingly unverified, self-serving hearsay,
unsupported, and unreliable.’ Thirteen of the fourteen
employer submissions are unsworn. The Administrator has
not placed in evidence an affidavit verifying the information
contained in the compliance reports on the basis of his
examination of those reports and independent investigation.

The LDF raises serious questions as to the accuracy
and reliability of the Compliance Reports. It is necessary to
resolve any question regarding the accuracy of said reports
before reaching the merits of defendants’ pending motions
to terminate the Consent Decree. Before exercising its
power to modify, a court must be convinced by the party
seeking relief that existing conditions differ so substantially
from those which precipitated the decree as to warrant
judicial adjustment.

CONCLUSION

This Court hereby directs each defendant to fiie an
affidavit with the Administrator verifying the information
contained in the previously filed compliance reports. If
plaintiffs feel that discovery on compliance continues to be
warranted subsequent to such submissions, they will be

*LDF argues that it was unable to undertake a complete analysis
of the unverified information contained in those documents since it
only received the documents in the early evening of September 10,
1991, four days before the dead line to file it surreply.

*The LDF also objects to entry and consideration of the
Administrator’s Report as it is alleged to be based on wholly
unverified data.

99a

allowed limited discovery to investigate the facts underlying
the data provided and to verify their accuracy. If plaintiffs
So request, the Administrator shall conduct an evidentiary
hearing following the close of discovery to determine the
validity of defendants’ compliance reports. Plaintiffs will
hear the burden of proof to show that such reports are
incorrect. This Court hereby defers consideration of
defendants’ motions to modify or terminate the Consent
Decree until such time as it receives the Administrator’s final
report, based upon verified data, that the 25% minority
employment figure has been achieved.

SO ORDERED.

100a

Nos. 73 Civ. 3058 (WCC).
73 Civ. 4278 (WCC).

United States District Court
S.D. New York.

JOHN E. PATTERSON, et al.,
Plaintiffs,

V.

NEWSPAPER & MAIL DELIVERERS’ UNION OF
NEW YORK & VICINITY, e@. al,

Defendants.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

Plaintiff,

NEWSPAPER AND MAIL DELIVERERS’ UNION OF
NEW YORK AND VICINITY, et al.,

Defendants.
July 8, 1992.

OPINION AND ORDER
WILLIAM C. CONNER, District Judge.

A class of private plaintiffs and the Equal
Employment Opportunity Commission (the "EEOC")
brought two civil rights actions in 1973 against the
Newspaper and Mail Deiiverers’ Union of New York and

10la

Vicinity (the "NMDU" or "Union") and more than fifty
publishers and news distributors having collective bargaining
agreements with the Union. Both suits charged that the
Union, with the acquiescence of the publishers and
distributors, had historically discriminated against minorities,
and that the structure of the collective bargaining agreement,
combined with nepotism and cronyism, had perpetuated the
effects of past discrimination in violation of Title VII of the
Civil Rights Act of 1964. Each lawsuit sought an affirmative
action program designed to achieve for minorities the status
they would have had in the newspaper delivery industry but
for the alleged discriminatory practices.

On September 19, 1974, then-District Judge Lawrence
W. Pierce issued an opinion and order approving a
Settlement between the parties and incorporating the
Settlement Agreement in a Consent Decree, familiarity with
which is presumed.' See Patterson v. Newspaper and Mail
Deliverers’ Union, 384 F.Supp. 585 (S.D.N.Y. 1974), aff'd, 514
F.2d 767 (2d Cir. 1975), cert. denied, 427 U.S. 911, 96 S.Ct.
3198, 49 L.Ed.2d 1203 (1976)

The Settlement Agreement established a goal of 25%
minority employment in the industry within NMDU
bargaining units. See Settlement Agreement at 17. That
"goal" was defined as "not an inflexible quota but an
objective to be achieved by the mobilization of available
personnel and resources . . . in a good faith effort to
maximize employment opportunities for minorities in the
bargaining units in the industry represented by NMDU.” See
Settlement Agreement at 1 8. To achieve this goal the
Settlement Agreement implements an affirmative action
program which modifies the hiring procedures for newspaper
deliverers under the industry-wide collective bargaining

The Settlement Agreement is divided into four sectioas:

Equitable Relief (4% 1-2), The Administrator (49% 3-6), Affirmative
Action Program (4% 7-27), and General Provisions (49 28-42).

102a

agreement. Under the Consent Decree, each employer
maintains a work force of regular situation holders for its
minimum delivery needs. To accommodate fluctuations in
circulation, the publishers are permitted to supplement their
work force with daily shapers.

The daily shapers are divided into three groups with
descending hiring priorities. Those shapers on the Group I
list have first priority, after the regular situation holders, in
order of their shop seniority. The next priority belongs to
Group II shapers. Group II consists of all persons holding
regular situations or Group I positions with other employers
in the industry. Last in order of priority are the Group III
shapers.

The Settlement Agreement provides for the orderly
flow of Group III shapers into Group I, and from there, into
regular situations. The Agreement mandates that for each
non-minority Group III member elevated to Group I, a
minority Group III] member must also be elevated.
Moreover, the Agreement requires that for every two non-
minority persons added to the Group III list, three minority
persons must be added. Through this process, it was
intended that the proportion of minority workers in the
industry would increase to the 25% goal by June 1979. See
Settlement Agreement 99 11, 12, 15. When that goal was
not reached by the specified date, the relevant provisions
were extended and later extended again.

The Settlement Agreement also established an
Administrator, appointed by the Court, to implement the
provisions of the Consent Decree and supervise its
performance. The Settlement Agreement authorizes the
Administrator to hear claims concerning violations of the
Decree. Appeals from his decisions are heard in this Court.

BACKGROUND

On April 17, 1985, the New York Times (the "Times")
moved for an order, pursuant to Paragraph 7 of the Final

103a

Order and Judgment in this matter dated October 24, 1974,
and Rule 60(b), Fed.R.Civ.P., to vacate or modify said Final
Order and Judgment on the grounds that (1) the terms of
the Final Order and Judgment have been satisfied; and (2)
relief therefrom is justified under present circumstances.’
On February 23, 1987, the Court held a hearing to consider
defendants’ motion to terminate the Settlement Agreement.
At the conclusion of the hearing, the Court ruled from the
bench that notwithstanding that some employers had reached
or exceeded the 25% figure within their respective
operations, the goal to be realized was "25% minority
employment in the industry." See Hearing Transcript at 125.
Accordingly, this Court deferred its decision on the motion
to terminate the Decree until defendants could produce
sufficient evidence to demonstrate that minority employment
in the bargaining unit had reached 25% throughout the
industry as a whole.’

On May 30, 1991, having reviewed compliance reports
which indicated that the 25% goal had been met and
exceeded, this Court restored defendants’ motion to vacate
the Consent Decree to its calendar. In order to aid it in
rendering a decision, the Court directed the Interim
Administrator to submit compliance reports of all defendant
companies. On September 9, 1991, the Interim
Administrator issued a Report in which he concluded that
"the minority figure of 28.53% suggests substantial
compliance for the industry." Report of the Interim
Administrator Concerning the Compliance Reports
("Report") at 9.

* On or about April 23, 1985, New York News Inc., the then-
publisher of the New York Daily News, made a similar motion.

* By Order dated November 30, 1988, the Court prospectively
suspended the 3:2 and 1:1 ratios of the Affirmative Action Program
embodied in the Consent Decree.

104a

On September 30, 1991, the Court issued an Opinion
and Order in which it deferred consideration of defendants’
motion to vacate the Decree in order that the concerns of
the NAACP Legal Defense Fund (the "LDF") respecting the
validity of the compliance reports could be addressed. In
this regard, the Court indicated that three things would be
required or allowed to happen before it again considered the
pending motion: (1) each defendant company was to file an
affidavit with the Administrator verifying the information
contained in the previously filed compliance reports; (2) the
LDF and the EEOC could undertake limited discovery
concerning the compliance reports "[i]f plaintiffs feel that
discovery on compliance continues to be warranted
subsequent to such submissions,” and (3) the Administrator
was to "conduct an evidentiary hearing following the close of
discovery to determine the validity of defendants’ compliance
reports” "[i]f plaintiffs so request." Opinion and Order,
dated Sept. 30, 1991, at 8.

On November 27, 1991, the Administrator provided
the Court with a declaration under the penalty of perjury, in
accordance with 28 U.S.C. § 1746, from each of the
defendant companies, through an authorized agent, to the
effect that the compliance reports consisted of and/or were
based upon corporate business records.‘ Plaintiffs never
availed themselves of the opportunity to conduct discovery
of the defendant companies with respect to their compliance

4

The statements provided the Court on November 27, 199!
affirm the accuracy of the compliance reports. LDF's argument that
no credence can be accorded to what it asserts are “unsworn"
statements is unpersuasive. Defendants’ statements affirming the
accuracy of the compliance reports are declarations subscribed to
under the penalty of perjury. By the plain terms of 28 U.S.C. § 1746,
such statements are the equivalent of a sworn affidavit, having "like
force and effect." Accordingly, in prescribing this verification
procedure, the Administrator has established a sufficient basis for the
compliance reports to be admitted into evidence and relied upon by
the Court.

105Sa

reports.* On April 2, 1992, Interim Administrator Ellis
circulated a letter in which he indicated that the LDF did
"not intend to conduct any further investigation concerning
the compliance reports." The Interim Administrator’s letter
makes no reference to any request by the LDF for an
evidentiary hearing concerning the validity of the compliance
reports. On April 7, 1992, the Court restored the pending
motion to modify or vacate the Patterson Consent Decree to
its calendar for consideration.

This matter is presently before the Court on the
motion of defendants Times, Maxwell Newspapers, Inc.
("Maxwell"), New York Post ("Post"), and the NMDU
pursuant to paragraph 7 of the Consent Decree® and Rule
60(b), Fed.R.Civ.P.,’ to vacate or modify the Consent
Decree. For the reasons discussed below defendants’ motion

, The EEOC assures the Court that it was and is satisfied

with the veracity of the compliance reports, and therefore does not
object to a judicial determination that the Affirmative Action and
Administrator provisions of the Consent Decree should be vacated.
See EEOC Supp. Memo., dated May 26, 1992, at 1, 8 & n. 3.

Paragraph 7 of the Final Order provides that this Court
"retains continuing jurisdiction for the purpose of enabling any of
the parties to apply to the Court for such further orders and
directions as may be necessary or appropriate.”

Rule 60(b) of the Federal Rules of Civil Procedure provides
in pertinent part:

On motion and upon such terms as are just, the court may
relieve a party or a party's legal representative from a final
judgment, order, or proceeding for the following reasons:

(5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the
operation of the judgment.

106a

to vacate is granted. The requests of the LDF and the
EEOC for continuation of the Consent Decree’s substantive
provisions, as well as continuation of its existing enforcement
mechanism or introduction of a new one, are denied.

DISCUSSION

The principal purpose of the Consent Decree, which
defendants eritered "without admission by any defendant of
a violation of Title VII... or... 42 U.S.C. § 1981, and
without any finding by this Court that any defendant has
discriminated against any person or persons because of race,
color or national origin," was "to correct the . . . statistical
imbalance [of minority individuals]" by "put[ting] minority
individuals in the positions they would have occupied had the
aforesaid statistical imbalance not existed." The Affirmative
Action Program, with its implementation ratios for
placement of minorities on Group III and Group I toward
the end of attaining the 25% target, was the engine for
achieving these purposes.

Applicable Legal Standard

The court’s jurisdiction to vacate or modify the
Consent Decree arises not only from the Consent Decree
itself, but from Rule 60(b) of the Federal Rules of Civil
Procedure and this Court’s inherent equitable power over its
decree in United States v. Swift & Co., 286 U.S. 106, 114, 52
S.Ct. 460, 462, 76 L.Ed. 999 (1932), the Supreme Curt held
that:

Power to modify the decree was reserved by its very
terms, and so from the beginning went hand in hand
with its restraints. If the reservation had been
omitted, power there still would be by force of
principles inherent in the jurisdiction of the chancery.
A continuing decree of injunction directed to events
to come is subject always to adaptation as events may
shape the need.

107a

Before exercising its power to modify or vacate a judicial
decree, a court must be convinced by the party seeking relief
that the purposes of the litigation as incorporated into the
decree have been fully achieved. See United States v. United
Shoe Machinery Corp., 391 U.S. 244, 248, 88 S.Ct. 1496, 1499,
20 L.Ed.2d 562 (1968); see also Rufo v. Inmates of Suffolk
County Jail, __ U.S. __, 112 S.Ct. 748, 758, 116 L.Ed.2d 867
(1992); Board of Education of Oklahoma City Public Schools
v. Dowell, U.S. __, 111 S.Ct. 630, 636-37, 112 L.Ed.2d 715
(1991). Second Circuit authority is consistent with the case
law cited above, recognizing the necessity for liberal
modification of final judgments. See e.g., New York State
Ass'n for Retarded Children v. Carey, 706 F.2d 956, 967-70 (2d
Cir.). cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d
257 (1983) (modification power is "broad and flexible," and
is apprcpriately exercised in light of changing factual
circumstances; Chance v. Board of Examiners, 561 F.2d 1079,
1086 (2d Cir. 1977) (indicating that vacation of a consent
decree is possible when"the purposes of the decree have
been achieved.")

The EEOC maintains that this case is governed solely
by United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct.
460, 464, 76 L.Ed.999 (1932), and that Dowell and Rufo are
inapplicable, so that the permanent injunction portions of
the Consent Decree may not be dissolved without a clear
Showing of grievous harm evoked by new or unforeseen
conditions. The Court cannot agree. In Swift, the Supreme
Court stated:

The inquiry for us is whether the changes are so
important that dangers, once substantial, have
become attenuated to a shadow. No doubt the
defendants will be better off if the injunction is
relaxed, but they are not suffering hardship so
extreme and unexpected as to justify us in saying that
they are the victims of oppression. Nothing less than
a clear showing of grievous wrong evoked by new and

108a

unforeseen conditions should lead us to change [the
decree. |

286 U.S. at 119, 52 S.Ct. at 464. Since Swift, however, the
Court has placed less emphasis on the deleterious effects of
a decree on the defendant and more on the continuing need
for the injunction. In Rufo, after examining its "decisions
since Swift," the Supreme Court specifically remarked "that
the ‘grievous wrong’ language of Swift was not intended to
take on an talismanic quality, warding off virtually all efforts
to modify consent decrees." 112 S.Ct. at 758. The Rufo
Court cited United Shoe for the proposition that Swift did not
stiffen "the traditional flexible standard for modification of
consent decrees." Rufo, 112 S.Ct. at 757-58. The Court
noted:

The Swift opinion pointedly distinguished the facts of
that case from one in which genuine changes required
modification of a consent decree, stating that:

"The distinction if between restraints that give
protection to rights fully accrued upon facts so
nearly permanent as to be substantially
impervious to change, and those that involve
the supervision of changing conduct or
conditions and are thus provisional and
tentative.... The consent is to be read as
directed toward events as they then were. It
was not an abandonment of the right to exact
revision in the future, if revision should
become necessary in adaptation to events to
oe.

112 S.Ct. at 758.

The restraints imposed by the Decree in the instant
case, unlike those at issue in Swift, were never intended to
operate in perpetuity. Indeed, only paragraphs 1 and 2 are
declared "permanent." The remaining provisions of the
Decree were provisional only -- they were to last until the

109a

vestiges of racial discrimination in the industry had been
removed. As stated in the Consent Decree, the attainment
of 25% minority employment industry-wide was the standard
established for measuring compliance with this objective.
Since the Patterson Consent Decree "involve{s] the
supervision of changing conduct or conditions,” see Swift, 286
U.S. at 114, 52 S.Ct. at 462, the Court concludes that the
more rigid standard set forth in Swift is inapplicable and that
the more flexible standard of demonstrating satisfaction of
the Decree’s purposes applies to the decision of whether to
terminate or modify the Consent Decree.’

*Moreover, as the Supreme Court has noted, the strict standard
for modification or vacation of a consent decree announced in Swift
should not be read out of context: the Swift consent decree evolved
out of a prolonged antitrust battle between the Government and the
_Meat-packing industry. See Rufo, 112 S.Ct. at 757. The Supreme
Court, as well as lower federal courts, have distinguished Swift from
cases arising in an institutional reform setting. Indeed, the Second
Circuit has explained that where a decree is the product of
institutional reform, an application for the modification of such decree
"should . . . be viewed with generosity,” and modified with "rather a
free hand.” New York State Ass'n for Retarded Children, 706 F.2d at
970-71.

While the institutional reform exception to the standard set
forth in Swift apparently has only been invoked in cases where the
conduct of a governmental facility or operation was being regulated
pursuant to the decree, the Court concludes that such cases are
analogous to the instant action, suggesting that the same flexible
standard regarding vacation nor modification ought to apply. Unlike
purely commercial consent decrees which involve only the parties to
the subsisting litigation, this case, like those in the institutional reform
arena -- wherein consent decrees were executed, for example, to
correct unconstitutional conditions existing in persons or to remedy
the existence of racial segregation in certain of the nation’s schools --
implicates the public’s interest in seeing that persons are not deprived
of fundamental rights.

110a

Motion to Modify or Vacate the Consent Decree.

The Administrator’s statistical complication of
September 17, 1991, which is drawn from the compliance
reports, establishes that approximately seven months age
minority representation among regular situation and Group
I personnel industry-wide was 27,97%. See Letter of Interim
Administrator Ellis to the Court, dated Sept. 17, 1991.
Subsequent reports show that this level of minority
employment has been maintained.’ As the Court has often
noted, minority representation in the membership of NYDU
in the newspaper industry in metropolitan Nw York was less
than 1% when the Consent Decree was issued in 1974. The
present employment statistics indicate that the pervasive
discrimination which caused the near total absence of
minority opportunities in 1974 has vanished. The stated
objective of the affirmative action program set forth in the
Consent Decree— 25% minority employment industry-
wide— has been achieved. The structure put in place in
1974 to achieve that end is now an unnecessary and
expensive relic, and ought to be retired."°

°The latest revised Quarterly Report of the Administrator,
submitted May 26, 1992, indicates that minority representation in the
industry represented by the NMDU was 27.78% as of March 30, 1992.

‘The Court agrees with the Times that a foundation is now in
place which suggests that minority representation in the industry will
continue to increase, notwithstanding vacation of the Consent Decree,
because of a “carryover” effect resulting

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1634%3A2. Public record. Not legal advice.