Larkin v. Paterson Brief in Opposition to Certiorari

    In t h e

(Emtrt at tl?p lnit?& S’tatps
October Term 1975 

No. 75-155

J ames Y. L a r k in ,

v.
Petitioner,

J oh n  B . P atterson , et al.,

Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

J ack  Greenberg

D eborah M. Greenberg 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

W illk ie  F arr & G allagher

One Chase Manhattan Plaza 
New York, New York 10005

Attorneys for Respondents 
Patterson, et al.



TABLE OF CONTENTS

Jurisdiction ............    1

Questions Presented ....    1

Statement ..............................................................................  2

The Hiring System ..................................................... 3

Proceedings Below ......................................................  5

A rgu m en t  ............................................................................................ 6

1. Petitioner Is Not Entitled To Eelief Under
Title VII ................................................................  7

2. The Affirmative Relief Afforded By The Con­
sent Decree Does Not Involve Any Bumping of 
Incumbent Employees ....................................  8

3. The Employers and the Union Had the Right
To Modify the Hiring System ............................   9

C onclusion  ..............    10

T able oe A uthorities

Cases:

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) .. 6, 9

Boston Chapter, NAACP v. Beecher, 504 F.2d 1017 
(1974), cert, denied, 95 S.Ct. 1561 (1975) ...............  11

Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1972) en
banc, cert, denied, 406 U.S. 950 (1972) ...................  8

Contractors Association v. Secretary of Labor, 442 
F.2d 159 (3rd Cir. 1971), cert, denied, 404 U.S. 854 
(1971)

PAGE

9



11

Erie Human Relations v. Tullio, 493 F.2d 371 (3rd 
Cir. 1974) ........................................................................  8

Ford Motor Co. v. Huffman, 345 U.S. 330 (1952) .......  9

Gamble v. Birmingham Southern Railroad Co., 514
F.2d 678 (5th Cir. 1975) ............... ...............................  7

Griggs v. Duke Power Co., 401 H.S. 424 (1971) .......  9

Local 53, Asbestos Workers v. Vogler, 407 F.2d 1047 
(5th Cir. 1969) ..............................................................  8

McDonnell Douglas Corp. v. Green, 411 H.S. 792 
(1973) ................................................................................  9

N.L.R.B. v. Gaynor News Co., 347 U.S. 17 (1953) .......  4
Northeast Construction Co. v. Romney, 485 F.2d 752 

(D.C. Cir. 1973) ..............................................................  8

Southern Illinois Builders Ass’n v. Ogilvie, 471 F.2d 
680 (7th Cir. 1972) .............    9

United States v. Bethlehem Steel Corp., 446 F.2d 652
(2nd Cir. 1971) ..............................................................  7

United States v. Chesapeake & Ohio Ry. Co., 471 F.2d
582 (4th Cir. 1972) ........................................................  7

United States v. Local 46, Lathers, 471 F.2d 408 (2nd
Cir. 1973), cert, denied, 412 U.S. 939 (1973) ...........  8

United States v. Local 86, Ironworkers, 443 F.2d 544 
(9th Cir. 1971), cert, denied, 404 U.S. 984 (1971),
aff’g 315 F.Supp. 1202 (W.D. Wash. 1970) ...............  8, 9

United States v. Local 169, Carpenters, 457 F.2d 210 
(7th Cir. 1972), cert, denied, 409 U.S. 851 (1972) .... 8

United States v. Local 212, IBEW, 472 F.2d 634 (6th 
Cir. 1973)

PAGE

8



Ill

United States v. Roadway Express, Ine., 457 F.2d 854
(6th Cir. 1972) .......................................... .....................  7

United States v. Sheet Metal Workers Local 36, 416 
F.2d 123 (8th Cir. 1969) ................................................  9

Statutes:

Civil Rights Act of 1866, 42 U.S.C. §1981....................... 2

Title VII, Civil Rights Act of 1964, 42 U.S.C. §§ 2'000e, 
et seq...................................................................................  2, 7

42 U.S.C. §§ 2000e-2(a) (1), (c)(1 ) ......................... 7

42 U.S.C. §§ 2000e-6(c), (d) .................................. . 2

Other Authorities:

110 Cong. Rec. 2593-95 (1964) ........................................  7

PAGE



In t h e

Supreme (Hmtrt ni %  Iinltzh Stairs
October Term 1975

No. 75-155

J ames Y . L a b k in ,

v.
Petitioner,

J o h n  R . P atterson , et a l ,

Respondents.

BRIEF IN OPPOSITION TO CERTIORARI

Jurisdiction

The jurisdictional requisites are adequately set forth in 
the petition, except that, of the petitioners named in the 
caption, only James V. Larkin was a party to the proceed­
ings in the Court of Appeals and is properly before this 
Court (la, 45a).1 *

Questions Presented

1. Whether, in an employment discrimination action 
brought on behalf of racial and ethnic minorities, the plain­
tiffs and defendants can enter into a consent decree which

1 This form of citation is to pages of the appendix to the Peti­
tion for Certiorari.



2

grants relief to all disadvantaged workers, but grants mi­
nority workers some relief not granted to white workers?

2. In an employment discrimination action, whether the 
parties can enter into a consent decree which specifies a 
temporary one-minority-for-one-white ratio for filling va­
cancies in that hiring priority group which provides regular 
employment and from which minorities have been discrim- 
inatorily excluded?

Statement

This action is a consolidation of a suit brought by pri­
vate plaintiffs under Title Y II of the Civil Rights Act of 
1964s and 42 U.S.C. §1981 and a pattern and practice suit 
brought by the United States* 8 under Title VII to redress 
employment discrimination against minorities in the de­
livery departments of the New York City area newspaper 
and magazine publishers and distributors. Private plain­
tiffs were three black men who had “ shaped” at the New 
York Times (“ the Times” ) and the New York Daily News 
(“ the News” ) but were denied access to the hiring priority 
group which assured regular employment in the industry. 
Defendants were some fifty publishers and publication dis­
tributors (“ the employers” ) and the union having jurisdic­
tion over the employees in their delivery departments, the 
Newspaper and Mail Deliverers’ Union of New York City 
and Vicinity ( “ the union” ). Approximately 100 non-union 
non-minority persons working as extras in the delivery 
department of the News, of whom petitioner is one, were 
permitted to intervene for the limited purpose of presenting

2 42 U.S.C. §§ 2000e et seq.
8 The Equal Employment Opportunity Commission was substi­

tuted for the United States as plaintiff in accordance with 42 
U.S.C. §§ 2000e-6(c) and (d).



3

evidence and argument “with respect to the narrow ques­
tion of relief to be granted should the plaintiffs prevail.”

The gravamen of this action is that the collective bar­
gaining agreements entered into between the union and the 
employers have, by their terms and in their uneven applica­
tion, operated to discriminate against minorities by provid­
ing for continual preferential hiring of the 99% white 
union membership and to perpetuate past minority exclu­
sion from the union and from regular employment in the 
industry.

The Hiring System

Because of variations in the size and quantity of pub­
lications to be distributed on a given day, employers’ needs 
for delivery personnel vary from day to day. Employers, 
therefore, depend on a regular work force with permanently 
assigned jobs (Regular Situation Holders) and daily extra 
shapers. The daily shapers are divided into four groups 
with descending priority for both daily hiring and move­
ment into Regular Situations.

Each employer has its own Group I list which has shaping 
priority at each shift, in order of shop seniority, and is, 
by the terms of the collective bargaining agreement, lim­
ited to persons who once held a Regular Situation in the 
industry. These Group I shapers have either been laid off 
as a Regular Situation Holder by their current employer 
or another employer, or have voluntarily transferred to 
their current employer’s Group I list from positions as 
Regular Situation Holders or Group I shapers elsewhere 
in the industry. The Group II list is an aggregate industry­
wide list consisting of all present Regular Situation Hold­
ers and Group I shapers in order of their date of mem­
bership in the Union, and it has hiring priority at a given



4

shift of an employer after that employer’s Group I list is 
exhausted. Individuals may use their Group II status to 
obtain daily extra work at any employer in the industry 
except their own. Each employer has its own Group III 
list which has shaping priority in order of shop seniority 
after all Group I and Group II men present at a shift are 
put to work. Group IV  shapers work after Group III and 
are required to shape only occasionally.

Regular Situation Holders and Group I and Group II 
shapers are union members, having been admitted, gener­
ally, when they first obtained Regular Situations. Group 
III and Group IV  shapers are not eligible for union mem­
bership. Regular Situation Holders and Group I shapers 
are, as a practical matter, assured of steady employment. 
Other shapers are not.

While, theoretically, vacant Regular Situations are filled 
first from an employer’s Group I list and, when that is 
exhausted, from the Group III list, in fact, because of 
industry layoffs and a variety of abuses of the hiring sys­
tem, which resulted in a steady flow of union members 
and their relatives and friends onto the Group I lists, no 
Group III shaper had, prior to this action, moved into a 
Regular Situation and thus into union membership at 
the News or the Times, the most desirable shops in the 
industry, since 1963.

The union was founded in 1901 and historically limited 
its membership to the first born legitimate son of a mem­
ber. See N.L.R.B. v. Gaynor News Co., 347 U.S. 17, 35 
(1953). Until the above-described hiring system was 
adopted in 1952, the industry had a closed shop in which 
union members were hired before non-union men. At the 
time of trial, the union had approximately 4200 members, 
of whom about 40 were minorities.



5

Proceedings Below

After a four-week hearing on plaintiffs’ motions for a 
preliminary injunction, which was consolidated with a 
trial on the merits, the EEOC, private plaintiffs, the em­
ployers and the union entered into a settlement agree­
ment. This agreement was designed to eliminate abuses 
of the hiring system and to provide opportunities, for the 
first time, for whites and minorities alike to move up to 
the Group I lists and into Regular Situations, and to ob­
tain union membership. The only part of the settlement 
agreement that petitioner objects to is that section which 
provides that one minority shall be added to the Group I 
list from the Group III list for each non-minority so 
added. Since at the time of trial, of 178 Group III mem­
bers at the News only 13 were minorities, implementation 
of this provision requires that non-minorities already on 
the Group III list be matched by minorities new to the 
industry.

After two hearings with respect to the fairness and 
adequacy of the settlement agreement, it was approved 
by the District Court, which found, inter alia, that the 
agreement, far from injuring non-minorities, substantially 
benefitted them (35a-36a), that Group I was the entry 
point into regular employment in the industry, and that 
before the agreement there was in effect no seniority 
system governing promotion from Group III to Group I 
(37a). The Court of Appeals affirmed (13a, 15a).



6

ARGUMENT

This case does not warrant review on certiorari because 
the decision of the Court of Appeals is in accord with 
this Court’s prior decisions and there is no conflict among 
the circuits on the questions presented.

This Court has recognized conciliation and settlement 
as “the preferred means” for achieving the elimination of 
unlawful employment discrimination. Alexander v. Gard­
ner-Denver Go., 415 U.S. 36, 44 (1974). In the instant 
case, the EEOC, a class of private plaintiffs, the union 
and some 50 employers have, after a four-week trial and 
strenuous negotiations, entered into a settlement agree­
ment which has been in effect for a year and has already 
benefitted several hundred employees, minority and non­
minority alike, in terms of providing regular employment 
and realistic expectations of advancement. Petitioner is 
the only one of about 100 non-minority intervenors who 
appealed. He is a matriculated chemistry major at City 
University of New York who shapes off the Group III 
list of the Daily News but has no serious interest in full­
time work in the industry.4 Petitioner did not ask this 
Court for a stay of the District Court’s order approving 
the agreement. It would be inequitable to permit petitioner 
to challenge the agreement now, when petitioner could 
have done so in a way that would have minimized the 
disruption which would result from vacating the agree­
ment after it has been in effect for a year.

4 The record shows that petitioner did not by any means take 
full advantage of the employment opportunities that were avail­
able at the News. In calendar 1973 petitioner worked 136 shifts 
while a man two places above him on the Group III list worked 
over 200 shifts.



7

1. Petitioner Is Not Entitled To Relief Under Title VII.

Petitioner has never claimed that he was denied union 
membership or employment opportunities on account of 
his “ race, color, religion, sex, or national origin” 42 U.S.C. 
§§2000e-2(a) (1) and (c) (1). He claims, rather, that he was 
discriminated against because he was not the son of a union 
member. Not only does Title VII fail, by its terms, to 
afford relief for this type of discrimination, but the legisla­
tive history indicates that this omission was intentional. 
During debate on Title VII the House rejected an amend­
ment offered by Representative Cahill which would have 
made it an unlawful employment practice to exclude quali­
fied persons from union membership for any reason. A  
stated purpose of the amendment was to eliminate nepo­
tism in union admissions. Opponents of the amendment 
made it clear that such broad reform was beyond the scope 
of Title VII. 110 Cong. Rec. 2593-95 (1964).

Courts of Appeals which have considered the question 
are in agreement with the courts below that relief under 
Title V II is available only to those who have been victims 
of the type of discrimination, e.g., racial, proscribed by 
the statute. United States v. Bethlehem Steel Corp., 446 
F.2d 652, 665 (2nd Cir. 1971); United States v. Chesapeake 
& Ohio By. Co., 471 F.2d 582, 588-89, 593 (4th Cir. 1972). 
Cf. Gamble v. Birmingham Southern Railroad Co., 514 
F.2d 678, 686 (5th Cir. 1975).

United States v. Roadway Express, Inc., 457 F.2d 854 
(6th Cir. 1972), relied upon by petitioner, is not to the 
contrary. It does not stand for the proposition that non­
minorities are entitled to relief under Title VII. There 
the Court of Appeals simply refused to vacate a consent 
decree which provided relief for white as well as black 
employees; it did not hold that Title VII required the 
granting of such relief.



8

2. The Affirmative Relief Afforded By The Consent Decree 
Does Not Involve Any Bumping of Incumbent Employees.

Petitioner’s claim that the one-to-one ratio for additions 
to the Group I list entails the bumping of incumbent Group 
III employees by newly hired minority employees is con­
trary to the findings of the courts below. Group III shapers 
are not steadily employed, and many of them, like peti­
tioner, do not intend to work full time (37a). They com­
pete with a fluctuating group of shapers having higher 
priority for work which varies widely in amount from day 
to day (15a). “ [T]he effective point of entry into employ­
ment in the industry has been at Group I, not Group III” 
(id.). Moreover, while it was theoretically possible, prior 
to this litigation, for a Group III shaper to move up into 
a Eegular Situation, there could be no realistic expectation 
of such promotion (id.).5

Affirmative relief in the form of hiring ratios and goals 
to remedy long standing patterns of discrimination in 
employment have been approved by nine circuits.6

Even assuming, for purposes of argument, that Group 
III shapers did have seniority rights that were interfered

6 No Group III shaper had moved into a Regular Situation since 
1963 (37a).

6 E.g., Boston Chapter, NAACP v. Beecher, 504 F.2d 1017 (1st 
Cir. 1974), cert, denied 95 S.Ct. 1561 (1975); United States v. 
Local 46, Lathers, 471 F.2d 408 (2nd Cir. 1973), cert, denied 412 
U.S. 939 (1973); Erie Human Relations Commission v. Tullio, 
493 F.2d 371 (3rd Cir. 1974); Local 53, Asbestos Workers v. 
Vogler, 407 F.2d 1047 (5th Cir. 1969); United States v. Local 212, 
IBEW , 472 F.2d 634 (6th Cir. 1973); United States v. Local 169, 
Carpenters, 457 F.2d 210 (7th Cir. 1972), cert, denied, 409 U.S. 
851 (1972); Carter v. Gallagher, 452 F.2d 315, 327 (8th Cir. 
1972) (en banc), cert, denied, 406 U.S. 950 (1972); United States 
v. Local 86, Ironworkers, 443 F.2d 544 (9th Cir. 1971), cert, 
denied, 404 U.S. 984 (1971), aff’g 315 F.Supp. 1202 (W.D. Wash. 
1970); Northeast Construction Co. v. Romney, 485 F.2d 752 (D.C. 
Cir. 1973).



9

with by the decree, at least four circuits have approved de­
crees or affirmative action plans permitting “new” minori­
ties to enter hiring or referral groups ahead of non­
minorities already in the bargaining unit,7

3. The Employers and the Union Had the Right 
To Modify the Hiring System.

The affirmative action program contained in the settle­
ment agreement can be justified on the independent ground 
that it is no more than an agreement between the 
union and the employer modifying the hiring system pre­
viously agreed to in the collective bargaining agreements. 
Even if the provision requiring the addition of minorities 
to the Group I lists on a one-to-one ratio with whites did 
operate to deprive Group III shapers of any rights they 
would otherwise have had by virtue of their seniority, the 
agreement must be upheld under the rationale of Ford 
Motor Co. v. Huffman, 345 U.S. 330 (1952), where this 
Court upheld a collective bargaining agreement which 
credited employees with the time spent in military service 
prior to their employment in computing their seniority. 
The priority afforded to minorities in furtherance of the 
public policy of eliminating discrimination in employment8 
can be no less in the public interest than crediting employ­
ees with time spent in military service.

7 Contractors Association v. Secretary of Labor, 442 F.2d 159 
(3rd Cir. 1971), cert, denied, 404 U.S. 854 (1971); Southern 
Illinois Builders Ass’n v. Ogilvie, 471 F.2d 680, 684-86 (7th Cir. 
1972); United States v. Sheet Metal Workers Local 36, 416 F.2d 
123 (8th Cir. 1969) ; United States v. Local 86, Ironworkers, supra.

8 Alexander v. Gardner-Denver Corp., 415 U.S. 36, 44 (1974); 
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973) • 
Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971).



10

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the petition for certiorari should be denied.

Respectfully submitted,

J ack  Greenberg

D eborah  M. Greenberg 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

"Willk ie  F arr & Gallagher 
One Chase Manhattan Plaza 
New York, New York 10005

Attorneys for Respondents 
Patterson, et al.



MEILEN PRESS INC —  N. Y. C 219