Latimore v. County of Contra Costa Plaintiffs' Reply Brief in Opposition to Defendants' Motion for a Preliminary Injunction

    Supreme (ffourt of tfye Putted J&tates
October Term, 1975 

----- ------------- #>------------------

No.

JAMES V. LARKIN, DOMINICK VENTRE, FRANK 
CHILLEMI, GERALD KATZ, ET AL„

Petitioners,

vs.

JOHN R. PATTERSON, NEWSPAPER AND MAIL 
DELIVERERS UNION OF NEW YORK AND VICINITY, 
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
NEW YORK DAILY NEWS, NEW YORK TIMES, ET AL.,

Respondents*

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT

HERMAN H. TARNOW
Attorney for Petitioners 

663 Fifth Avenue 
New York, New York 10022 

(212) 355-3977



Table of Contents

Page

Opinions Below 2

Jurisdiction 2

Question Presented 3
Constitutional Provision Involved 3

Statutes Involved 3

Statement of the Case 5

Reasons for Granting the Writ 10

I. The Petition Presents An 
Important Unresolved Issue 
Concerning The Rights Of Non- 
Minority Workers Affected By 
An Affirmative Action Program 
Under Title VII 10

II. The Legislative History of Title 
VII Does Not Support The Con­
struction of the Court Below 15

III. The Petitioners Have Been
Denied Their Constitutional 
Right of Equal Protection 
Under the Law



Table of Citations

Cases Cited: Page

Albemarle Paper Company v. Moody, 
-U.S.- (1975) 12

Franks v. Bowman Transportation 
Company, Inc., 495 F .2d 398 (5th 
Cir. 1974), cert, granted, 43 
U.S.L.W. 3515 (March 24, 1975) 10, 11, 12

Griggs v. Duke Power Co., 401 
U.S. 424 (1971) 13

Local 189, United Papermakers v. 
United States, 416 F.2d 980 (5th 
Cir. 1969), cert, denied, 397 
U.S. 919 (1970) 13

McLaughlin v. Florida, 379 U.S. 
184 (1964) 18

United States v. Bethlehem Steel 
Corp., 446 F.2d 652 (2nd Cir. 1971) 13

United States v. Jacksonville 
Terminal Co., 451 F .2d 418 (5th 
Cir. 1971) cert, denied, 406 U.S. 
906 (1972) 13

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

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

10, 11, 12

1313



Cases Cited: Page

Waters v. Wisconsin Steel Works of 
International Harvester Co., 502 
F.2d 1309 (7th Cir. 1974), cert, 
filed, February 21, 1975, O.T. 1974 No.
74-1064 11, 14

United States Constitution Cited:

U.S. Const, amend V. 3
Statutes Cited:

42 U.S.C. 2000e - 2(a) 4

42 U.S.C. 2000e - 2(c) 4

42 U.S.C. 2000e - 2 (j) 4
Legislative Materials:

110 Cong. Rec. 6549 (1964) 17

110 Cong. Rec. 7213 (1964) (Clark-Case
Interpretative Memorandum) 16

110 Cong. Rec. 7218 (1964) 17



IN THE SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1975 - NO. 79

X
JAMES V. LARKIN, DOMINICK VENTRE, FRANK 
CHILLEMI, GERALD KATZ, ET AL.,

PETITIONERS,

-AGAINST-

JOHN R. PATTERSON, NEWSPAPER AND MAIL 
DELIVERERS UNION OF NEW YORK AND 
VICINITY, EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION, NEW YORK D A I L Y  NEWS, NEW YORK
T I M E S ,  ET A L . ,

RESPONDENTS.

X

Petition For-A Writ of Certiorari To The 
United States Court of Appeals For The 
Second Circuit

Petitioners, JAMES V. LARKIN, DOMINICK 

VENTRE, FRANK CHILLEMI, GERALD KATZ, et al., 

respectfully pray that a Writ of Certiorari 

issue to review the judgment and opinion of 

the United States Court of Appeals for the 

Second Circuit entered in this proceeding on 

March 20, 1975.



2

Opinions Below,

The opinion of the Court of Appeals 
reported at 514 F .2d 767 (2nd Cir. 1975) is 

reprinted in the appendix hereto at la. The 

order of the Court of Appeals denying peti­

tioners' petition for rehearing, unreported, 

is reprinted in the appendix at 44a. The 

opinion, order and judgment of the United 

States District Court for the Southern Dis­

trict of New York, reported at 384 F.Supp.

585 (S.D.N.Y. 1974) is reprinted in the appen­
dix at 21a.

Jurisdiction

The judgment of the Court of Appeals was 
entered on March 20, 1975. Petitioners' 

timely petition for a rehearing was denied on 

April 29, 1975. Jurisdiction is invoked under 
28 U.S.C. Section 1254(1).



3

Questions Presented:

1. In an action based on Title VII, where 

both minority and non-minority workers are 

subjected to identical employment discrimina­

tion, is a District Court prohibited from 

granting equal relief to all discriminatees, 
regardless of race?

2. Whether Congress intended through Title 

VII to grant constructive seniority to newly 

hired minority individuals to the detriment 

of incumbent non-minority employees?

Constitutional_.Prqvision Involved:

United States Constitution, Amendment V 
provides:

...nor shall any person...be deprived 
of life, liberty or property, without 
due process of law;...

Statutory Provisions Involved:

The sections of Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. Section 2000e 

et seq. as amended, provides in pertinent



4

part:

"Section 703(a), 42 U.S.C. 2000e-2(a): 
It shall be an unlawful employment 
practice for an employer - 
(1) to fail or refuse to hire or to 
discharge any individual, or other­
wise to discriminate against any 
individual with respect to his com­
pensation, terms, conditions, or 
privileges of employment, because of 
such individual's race, color, reli­
gion, sex or national origin;"

"Section 703(c), 42 U.S.C. 20QQe-2(c): 
It shall be an unlawful employment 
practice for a labor organization -

(1) To exclude or to expel from its 
membership, or otherwise to discrim­
inate against, any individual because 
of his race, color, religion, sex, or 
national origin;

(2) To limit, segregate, or classify 
its membership or applicants for mem­
bership, or to classify or fail or 
refuse to refer for employment any 
individual, in any way which would 
deprive or tend to deprive any indi­
vidual of employment opportunities, 
or would limit such employment oppor­
tunities or otherwise adversely affect 
his status as an employee or as an 
applicant for employment, because of 
such individual's race, color, reli­
gion, sex, or national origin.

Section 703 (j), 42 U.S.C. 2000 (e)-2(j) 
Nothing contained in this sub-chapter 
shall be interpreted to require any 
employer, employment agency, labor 
organization or joint labor management



5

committee subject to this sub-chapter 
to grant preferential treatment to any 
individual or to any group because of 
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 of per­
centage of persons or any race, color, 
religion, sex, or national origin em­
ployed by any employer..."

Statement Of The Case:

This action is a consolidation of two suits 

filed in the Southern District of New York.

The first was brought by minority employees of 

the various publishers (New York Times, New 

York Daily News, etc.). The second was 

brought by The Equal Employment Opportunity 

Commission (4a).
The petitioners are white, non-union 

workers who were given permission to intervene 

in the consolidated action as a matter of 

right (4a). A four week trial was held, how­

ever, before the cause could go to verdict, 

plaintiffs and defendants executed a settle­

ment agreement which was subsequently approved 

by the District Court over the objection of



6

the petitioners (3a).

The only act of discrimination 

found by the District Court was the Union's 

nepotistic admission policy (29a).

Both the District Court (35a) and 

the Court of Appeals (8a) have concluded that 

the Petitioners have been subjected to iden­

tical discriminatory treatment as minority 

employees. Consequently, the discriminatory 

employment practices uniformly affected all 

non-union individuals. Sons of union men, 

be they black or white, were given prefer­

ences over all other workers (30a). The 

Court's jurisdiction, having been invoked 

pursuant to Title VII, what petitioners re­

quested below, was the same employment re­

lated relief that was granted to minority 

workers (40a). It should be noted that 

petitioners neither sought back pay nor chal­
lenged the remedial quota system of entry 

level hiring. Yet, the District Court (40a)



7

and the Court of Appeals (11a) have refused to 

grant non-minority employees equal relief. The 

Courts reasoned, that a Title VII action need 

only be beneficial to minorities, notwithstand­

ing the fact that similarly situated non­

minority workers had suffered equally. Addi­

tionally, the Court has sanctioned a plan 

which grants constructive seniority to newly 

hired minorities (12a) . These new minority 

employees need never have worked a day in the 

industry, yet as a result of this judicially 

approved plan, they will be given the right 

to be hired before incumbent non-minority 

employees with as much as ten years senior­
ity (13a) .

In order to assure a variable, yet con­

stant work force, the hiring system at the 

publishers evolved into two categories (5a), 

The first category includes employees who fill 

the daily minimum work force requirements of



the publishers. These positions are termed 

"Regular Situations" (5a). The second, the 

daily "shapers" are categorized into four 

employment priority groups (5a). Although 

called "extras", these employees must work 

five shifts per week, or be available to work 

six shifts per week in order to maintain 

their position on the employment priority lists 

(6a) .
The order in which daily "shapers" are 

hired is determined in accordance with their 

position on a given employment priority list. 

These daily "shapers" are needed due to the 

variations in the size and quantity of the 

newspapers distributed. In addition, the 

various employment priority lists are used 

to determine who will receive the next avail­
able "Regular Situations (6a).

While the annual vacancy rate for 
"Regular Situations" is nominal, these employ­

ment priority lists are utilized to fill the



9

thousands of "extra" or "shape" positions 

available yearly. For example, at the New 

York Daily News, the projected annual turn­

over of "Regular Situations" is 53 positions, 

whereas more than 50,000 extra shifts of work 
are filled each year.

It follows that the employee's position 

on any given employment priority list deter­

mines his hiring status. Consequently, if 

there are 100 jobs to be filled at a shift, 

the first 100 qualified men on the employment 
priority list would be hired.

The court-approved settlement agreement 
has resulted in the restructuring of the employ­
ment priority lists. This allows newly hired 

minority employees to jump over workers who in 

addition to having seniority in the industry, 

have throughout their employment suffered the 

effects of the nepotistic practices of the
union.



10

Reasons For Granting The Writ

i i

I. the p e t i t i o n presents a n i m p o r t a n t u n r e­
sol ve d issue c o n c e r n i n g the rights of 
n o n-m i n o r i t y w or ke r s a f f e c t e d by an
AFFIRMATIVE ACTION PROGRAM UNDER TITLE 
VI I .

A. There is a conflict in the decisions of 

the Circuit Courts regarding the nature of 

remedies available under Title VII. The Peti­

tioners seek a review of the opinion of the 

Second Circuit which is contra with that of 

the Sixth Circuit in United States v. Roadway 

Express, Inc., 457 F .2d 854 (6th Cir. 1972), 

concerning the denial of equal relief to 

white workers. Further, the ruling in the Second 

Circuit on constructive seniority cannot be recon­
ciled with the holdings in the Fifth and Seventh 

Circuits on'this issue. Franks v. Bowman Trans­

portation Company, Inc., 495 F .2d 398 (5th Cir.



11

1974) , cert, granted, 43 U.S.L.W. 3515, (March 

24, 1975); Waters v. Wit consin Steel Works of 

International Harvester Co., 502 F.2d 1309 (7th

Cir. 1974), cert. filed February 21, 1975,

O.T. 1974 No. 74-1064.

The underlying premise of Title VII is 

that the Federal Judicieiry, using its broad 

equitable powers should fashion relief to 

eliminate the discriminatory effects of prior 

practices. Both the District Court and the 

Court of Appeals felt compelled, as a matter 

of law, to seek complete relief only for 

minority workers. Apparently disregarding 

equitable principles, the Court concluded 

that the Civil Rights Act was intended to 

remedy only the plight of minorities, thereby 

excluding white discriminatees from Title VII 

relief (11a, 40a) .

In United States v. Roadway Express, Inc., 

supra, the Sixth Circuit determined that all



12

workers who have been the victims of discrimina­

tion, be they black or white, must be recompensed 

equally. Although the Second Circuit was cognizant 

of the decision in United States u. Roadway, the 

Court refused to follow the precedent contained 

therein (12a) .

The equitable principles adopted in Roadway, 

have recently been set forth by this Court in 

Albemarle Paper Company v. Moody, -U.S.- (1975), 

an employment discrimination case:

"It is also the purpose of Title VII to 
make persons whole for injuries suffered 
on account of unlawful employment discrim­
ination. This is shown by the very fact 
that Congress took care to arm the courts 
with full equitable powers. For it is the 
historic purpose of equity to "secure[e] 
complete justice," Brown v. Swann, 10 Pet.
497, 503; see also Porter v. Warner Holding 
Co., 328 U.S. 395, 397-398. " [W]here 
federally protected rights have been in­
vaded, it has been the rule from the begin­
ning that courts will be alert to adjust 
their remedies so as to grant the neces­
sary relief." Bell v. Hood, 327 U.S. 678,
684.

Albemarle Paper Co., Slip Opin. at 11.



13

B„ The rightful place theory of relief has 

been approved by several Circuits. See, e.g., 

United States v. Bethlehem Steel Corp.3 446 

F.2d 652 (2nd Cir. 1971) ; Local 189, United 

Papermakers v. United States3 416 F .2d 980 

(5th Cir. 1969), cent. denied3 397 U.S. 919 

(1970). This remedy allows an incumbent minority 

discriminatee to achieve employment standing 

consistent with work experience. In applying 

this theory, the Courts have been careful to 

oppose any "leap-frogging," "jumping," "bump­

ing," or other constructive seniority approaches 

which would violate the rights of non-minority 

workers. Griggs v. Duke Power Co.3 401 U.S.

424 (1971); United States v. Sheet Metal 

Workers3 Local 36, 416 F.2d 123 (8th Cir. 1969); 

United States v. Jacksonville Terminal Co.3 451 

F .2d 418 (5th Cir. 1971) cert, denied3 406 U.S.
906 (1972); United States v. Bethlehem Steel



14

Corpi, supra; Waters v. Wisconsin Steel Works 

of International Harvester Co.> supra.

The Second Circuit acknowledged that there 

would be "leap-frogging" of newly hired minority 

employees over incumbent white workers (13a) . 

Nevertheless, the Court avoided the issue of 

constructive seniority claiming that the "leap­

frogging" is not "court ordered" (14a). How­

ever, the Second Circuit failed to recognize that 

the District Court did enter an "order" (with 

findings of fact and conclusions of law) approv­

ing the settlement agreement (22a, 26a).

In the instant case, the sole act of dis­

crimination was the Union's nepotistic policies 

which affected all non-union employees (29a,

35a). We are not dealing with prejudicial 

tests, referral systems, or transfer plans, but 

rather with an across-the-board discrimination 

in favor of the sons of union members, be they



15

black or white. The discrimination here was 

genetic. Having established that the non­

minority workers were equally the victims of 

unfair treatment, certainly, the Court's im­

position of fictional seniority to their 

detriment cannot be sanctioned.
i

The rightful place theory was never in­

tended to be a vehicle for racial discrimina­
tion.

11

II. THE LEGISLATIVE HISTORY OF TITLE
VII DOES NOT SUPPORT THE CONSTRUC­
TION OF THE COURT BELOW.

The legislative purpose underlying Title 

VII of the Civil Rights Act was clearly to 

eradicate all vestiges of employment discrim­

ination. Proponents of the Act vehemently 

argued that the Bill would not have an adverse 

affect on legitimate seniority rights of incurn 

bent employees.



16

In a detailed Interpretative Memorandum 

submitted to the Senate, it was stated:

"Title VII would have no effect on 
established seniority rights. Its 
effect is perspective and not retrospec­
tive. Thus, for example, if a business 
has been discriminating in the past and 
as a result has an all white working 
force, when the Title comes into effect 
the employer’s obligation would be sim­
ply to fill future vacancies on a non- 
discriminatory basis. He would not be 
obliged - or indeed - permitted - to fire 
whites in order to hire negros, or to pre­
fer negros for future vacancies, or once 
negros are hired, to give them special 
seniority rights at the expense of the 
white workers hired earlier." 110 Cong. 
Rec. 7213 (1964) (Clark-Case Interpreta­
tive Memorandum)

During the debate, the Congressional 

Record was replete with statements assuring 

all legislators that the Civil Rights Act was 

remedial and not racist. It was to serve as 

a new foundation to insure equal rights for 

all citizens. Senator Hubert Humphrey, a 

leading supporter of the bill, argued:



17

"Contrary to the allegations of some 
opponents of this Title, there is noth­
ing in it that will give any power to 
the Commission or to any other Court 
to require hiring, firing or promotion 
of employees in order to meet a racial 
"quota" or to achieve a certain racial 
balance." 110 Cong. Rec. 6549 (1964).

Addressing himself to specific ques­

tions concerning the Civil Rights Act, the 

Bill's sponsor, Senator Clark noted that:

" . . .  the Commission has a clear 
mandate to engage in wide-spread edu­
cational and promotional activities to 
encourage understanding and acceptance
of the Act, ineluding the obligation 
not to discriminate against whites."
110 Cong. Rec. 7218 (1964) (emphasis 
added)

The racial limitation imposed by the 

Second Circuit in formulating relief under 

Title VII would only serve to defeat the 

intentions of its legislative advocates. By 

approving a system of racially motivated con­

structive seniority and by denying petitioners 

the right to equal relief, the Court below



18

has vitiated the salutory effects of the Civil 

Rights Act.

11 I

III. THE PETITIONERS HAVE BEEN DENIED
THEIR CONSTITUTIONAL RIGHT OF 
EQUAL PROTECTION UNDER THE LAW.

The Fifth Amendment prohibits Congress 

from passing discriminatory legislation which 

amounts to a denial of due process. The due 

process clause mandates that a law must be rea­

sonable and operate equally upon all who are 

similarly affected. See, e.g. McLaughlin v. 

Florida3 379 U.S. 184 (1964).

In the instant case, the record clearly 

shows that all non-union employees were equally 

mistreated (35a). It is respectfully submitted 

that both the District Court and the Court of 
Appeals, having erroneously construed Title VII, 

denied relief to similarly situated white 

workers, thereby depriving them of their Fifth



19

Amendment rights. The greatness of America 

stems from the concept of equal protection under 

the laws for every person on an individual 

basis.
Injustice cannot be remedied by injustice.

CONCLUSION

For the foregoing reasons, it is respectfully 

submitted that the Petition for Writ of Certiorari 

should be granted.

Respectfully submitted ,

HERMAN H. TARNOW

663 Fifth Avenue 
New York, N.Y. 10022
Attorney for Petitioners



la

Appendix

UNITED STATES COURT OF APPEALS
F oe the Second Circuit

No. 626—September Term, 1974.
(Argued January 9, 1975 Decided March 20, 1975.) 

Docket No. 74-2548

John R. Patterson, et al.,

Plaintiff s-Appellees,
—against—

Newspaper and Mail D eliverers’ U nion oe New Y ork and 
V icinity, et a l,

Defendants-Appellees.

E qual E mployment Opportunity Commission,

Plaintiff's-Appellees,
—against—

Newspaper and Mail Deliverers’ U nion of New Y ork and 
V icinity, et al.,

Defendants-Appellees.

Dominick V entre, F rank Ch illemi, Gerald K atz, et ah,

Intervenors.

James V. L arkin,

Intervenpr-Appellant.



B e f o r e  : 2a
F einberg, Mansfield and Oakes,

Circuit Judges.

Appeal by an intervener, a white non-union employee, 
from an order of the United States District Court for the 
Southern District of New York, Lawrence W. Pierce, Judge, 
approving, in an action brought under Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. §§2000e, et seq., a 
settlement agreement which provides among other things 
for an affirmative action program setting goals and es­
tablishing procedures for minority access to union jobs, 
and providing compensatory back pay to minority workers.

Affirmed.

Michael B. T argoef, Esq., New York, N.Y. 
(Willkie Farr & Gallagher, Deborah M. 
Greenberg, Jack Greenberg, Esq., Edward 
F. Greene, Esq., New York, N.Y., of coun­
sel), for Plaintiffs-Appellees.

O’Donnell & Schwartz, New York, N.Y. (Mi­
chael Klein, Esq., New York, N.Y., of coun­
sel), for Defendant-Appellee Ne-ivspaper and 
Mail Deliverers’ Union of New York and 
Vicinity.

Michael S. Devorkin, Assistant United States 
Attorney (Paul J. Curran, United States 
Attorney for ihe Southern District of New 
York, Gerald A. Rosenberg, Assistant 
United States Attorney, William A. Carey, 
General Counsel, Equal Employment Oppor­
tunity Commission, Joseph T. Eddins, As­
sociate General Counsel, Charles L. Reischel,



3a

Beatrice Rosenberg, Attorneys, New York, 
N.Y., of counsel), for Plaintiff-Appellee 
Equal Employment Opportunity Commis­
sion.

H erman Tarnow, Esq., New York, N.Y., for 
Intervenor-Appella/nt Larkin.

Mansfield, Circuit Judge:

At issue on this appeal is the appropriateness of relief 
against discrimination in the employment of news deliv­
erers. In the past we have been called upon to review relief 
granted in cases where discrimination has been established 
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§§2000e, et seq., including the use of minority percentage 
goals and affirmative hiring and promotion programs. See, 
e.g., Rios v. Enterprise Assn. Steamfitters, Local 638, 501 
F.2d 622 (2d Cir. 1974) ; Bridgeport Guardians, Inc. v. 
Bridgeport Civil Serv. Comm., 482 F.2d 1333 (2d Cir. 
1973); United States v. Bethlehem Steel Corp., 446 F.2d 
652 (2d Cir. 1971). The present appeal presents several 
variations on the theme. Unlike previous cases the affirma­
tive relief under attack here does not result from an 
order of the district court entered after a determination 
of the merits of the action but from a settlement agree­
ment between the plaintiffs, who are minority persons seek­
ing employment as news deliverers, the defendant News­
paper and Mail Deliverers of New York and Vicinity (“ the 
Union” herein), and the Government. The settlement was 
reached after a four-week trial in the Southern District of 
New York before Lawrence W. Pierce, Judge, who approved 
the agreement. The person challenging the relief is not an 
aggrieved minority employee but a white non-union worker, 
James V. Larkin, who, having been permitted to intervene,



4a

seeks to set aside the agreement as unlawful on the ground 
that it affords benefits to minority workers1 not given to 
similarly situated white workers, retarding the advance­
ment rate and diluting the work opportunities of these 
white workers.

Because ho had heard a four-week trial in this case and 
because of the public interest involved in a Title VII action, 
Judge Pierce considered in a thorough opinion the merits 
of the plaintiffs’ action and the conformity of the settle­
ment to the goals of Title VII and the rights of the parties. 
See 884 E. Supp. 585 (S.P.N.Y. 1974). We find no abuse 
of discretion in Judge Pierce’s approval of the settlement, 
and therefore affirm.

This appeal arises out of two consolidated actions. One 
was brought by the Equal Employment Opportunity Com­
mission against the Union, the New York Times (“Times” 
herein), the New York Daily News (“News” herein), the 
New York Post (“Post” herein), and about 50 other news 
distributors and publishers within the Union’s jurisdiction. 
The other is a private class action on behalf of minority 
persons. Both complaints allege historic discrimination by 
the Union against minorities, and charge that the present 
structure of the Union’s collective bargaining agreement 
and the manner of its administration by the Union per­
petuate the effects of past discrimination in a manner that 
violates Title VII. The defendant publishers are alleged 
to have acquiesced in these practices. Appellant Larkin 
is one of approximately 100 white non union “Group i l l ” 
workers at the News who were given permission to inler- 
vene under F.R.C.P. 24(a)(2) because of 1heir poteidial 
interest in the relief to be fashioned.

1 The term “minority”  as used herein means persons who are Black, 
Spam&h-surnamed, Oriental and American Indian. “ White”  or “ non. 
minority” refers to all other persons.



5a

The Union is the exclusive bargaining agent for the col­
lective bargaining unit which embraces all workers in the 
delivery departments of newspaper publishers and of pub­
lications distributors in the general vicinity of New York 
City, including, in addition to the city proper, all of Long 
Island, northeastern New Jersey counties, and north to 
Fairfield County, Connecticut. Of 4,200 current Union mem­
bers, 99% are white.

Due to variations in the size and quantity of publications 
to be distributed, the needs of distributors for delivery 
personnel vary from day to day and from shift to shift. 
For that reason the work force in the industry is separated 
by the Union agreement into (1) those holding permanently 
assigned jobs (“Regular Situations” ) and (2) those called 
“shapers,” who show up each day to do whatever extra 
work may be required on that day. The work performed 
by persons in both categories is unskilled. Shapers are 
divided into four classifications, Groups I-IV. The order 
in which shapers are chosen for extra work on each shift 
is determined according to Group number and by shop 
seniority of members within each group.

Group I, the highest priority group, consists solely of 
persons who once held Regular Situations in the industry. 
Each employer maintains his own Group I list, which is 
comprised of persons who have been laid off from Regular 
Situations at other employers, or who have voluntarily 
transferred from Regular Situations or from classifications 
as Group I shapers at another employer. 'When a Regular 
Situation becomes available, the highest seniority person 
on the employer’s Group I list is offered the position.

Group II is an aggregate list compiled from the entire 
industry and consists of all Regular Situation holders and 
Group I members. Taking priority after Group I is ex-



6a

huu,sled, it enables regulars and Group I members to obtain 
extra daily work at employers other than their own.

Major employers maintain a Group III list, which con­
sists of persons who have never held a Regular Situation 
in the industry. Members of Group III are given daily 
work priority after Group II. To maintain Group III 
status, workers are required to report for a certain number 
of “ shapes” each week. Prior to the settlement agreement 
under review Group III members were theoretically en­
titled by shop seniority to any Regular Situation that be­
came available if the Group I list had been exhausted. 
Group IY shapers are last in priority and are required 
to appear for a, shape far less frequently than Group III 
shapers.

Although the Union represents all delivery workers, 
membership is limited to Regular Situation holders and 
Group I members. Historically the Union has excluded 
minorities and has limited its membership to the first 
born son of a member. Aside from the chilling effect 
which restriction of Union membership to whites might 
by itself have upon minority persons seeking delivery 
work, there is evidence that minorities were also discour­
aged from gaining entrance to Group III lists, even 
though Group III shapers are not members of the Union. 
Of 2,855 persons now actively seeking work in the indus­
try (which includes 2,460 Regular Situation holders, 123 
Group I shapers, and 273 Group Til shapers) only 70, 
or 2.45%, are minority persons.

While the current Group Structure, which was adopted 
in 1952, appears on its face to open Union membership to 
anyone in the labor force, Union membership, because of 
lax administration of the contract provisions, has largely 
remained attainable only by the family and friends of a 
Union member. Due to artificial inflation of the Group I 
lists, no person has in practice made the theoretically



7a

possible jump from Group III to a Regular Situation since 
1963. The evidence suggests that this expansion of the 
Group I lists has been accomplished primarily by use of 
voluntary transfers of Group I or Regular Situation hold­
ers from the lists of smaller distributors to the Group I 
lists of more desirable, larger employers, and ultimately 
to Regular Situations there. Other devices include ficti­
tious lay-offs, enabling the Union member to transfer to 
Group I of a different employer, and outright false asser­
tions of Group I status by persons who have obtained 
Union membership cards, the validity of which have not 
been challeneged by employers.

On the basis of this evidence, which was largely un­
controverted, Judge Pierce, in approving the settlement, 
had no difficulty concluding that the Union’s practices 
amounted to a violation of Title VTI, 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 justi­
fied by the record and are not challenged here. See Griggs 
v. Duke Power Co., 401 IT.S. 424 (1971); Bios v. Enter­
prise Assn. Steamfitters, Local 638, supra; United States 
v. Wood, Wire $  Lathers. Inti. Union, Local No. 46, 471 
F.2d 408 (2d Gir.), cert, denied. 412 IT.S. 939 (1973); 
United States v. Bethlehem Steel Corp., supra.

The settlement agreement readied by the parties pro­
vides that the Union shall be permanently enjoined from 
discriminatory practices in violation of Title VTI. It es­
tablishes an administrator to insure compliance with the 
terms of the agreement, and provides for the elimination 
of past abuses, primarily by abolishing voluntary trans­
fers 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.



8a

The 2fi% goal i,s to in* reached throughout mosl of I lie ia 
diistry l>y requiring that, all incumbent minority persons 
on the Group III list of each employer as of the date of 
entry ol the order are to be moved immediately to Group 
I. All new persons hired in the industry and classified 
in Group 111 will be employed according to a ratio of 
three (3) minority persons to two (2) non-minority per­
sons. As each Regular Situation is filled by a. Group 1 
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 pro­
visions 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 mi­
nority workers who move onto the Group I list on the 
date of the order; also, for a certain time, one minority 
and one non-minority persons will replace each person 
on the Group I list promoted to a Regular Situation.

Larkin’s objection to the settlement is premised on the 
observation that Group III white workers have not bene­
fited from the Union discrimination which is the object 
of this lawsuit. On the contrary, as Judge Pierce recog­
nized, they too 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 dis­
criminated 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



9a

asserts, allow minorities to “leap-frog” non-minorities with 
greater seniority, lie also attacks the 25% goal.2

D iscussion

The scope oi: 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 d  Co., 440 F.2d 1079 
(2d Cir.), cert, denied, 404 U.S. 871 (1971). While the 
public objectives embodied in Title VIT warrant a care­
ful review of the provisions of the settlement in light 
of those policies, see Rios v. Enterprise, Asm. Steam fil­
ters, Local 63S, 501. F.2d 022, 028 n.4 (2d Cir. 1974), 
the clear policy in favor of encouraging settlements must 
also be taken into account, see Florida Trailer d  Equip­
ment Co. v. Deal, 284 F.2d 567, 571 (5th Cir. 1900), par­
ticularly in an area where voluntary compliance by I he 
parties over an extended period will contribute signifi­
cantly toward ultimate achievement of statutory goals. Nor 
should we substitute our ideas of fairness for those of 
the district judge in the absence of evidence that he acted 
arbitrarily or failed to satisfy himself that the settle­
ment agreement was equitable to all persons concerned 
and in the public interest, cf. United States v. Wood, Wire 
& Metal Lathers Inti. Union, Local No. 46, 471 F.2d 408, 
416 (2d Cir.), cert, denied, 412 U.S. 939 (1973), especially 
in a case like the present one where the settlement was 
approved after a four-week trial of the merits, and two 
hearings with respect to the fairness and adequacy of

2 Intervener 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.



10a

the proposed agreement. Furthermore, unlike appeals from 
decrees of the district court entered after trial on the 
basis of findings and conclusions where we may modify 
the terms of the decree, see, e.g., United States v. Bethle­
hem Steel Corp., supra, we are powerless to rewrite the 
provisions of the settlement agreement. Our only alter­
native, if we concluded that Judge Pierce had abused his 
discretion, would be to set aside his approval of the set­
tlement and remand the case for completion of the trial. 
United States v. Automobile Manufacturers Assn,, 307 F. 
Supp. 617 (C.D. Calif.), affd. per curiam sub nom. City 
of New York v. United States, 397 U.S. 248 (1970).

Although Larkin objects to the use of a 25% goal and 
to Judge Pierce’s conclusion that the minority make-up 
of the relevant part of the labor force is 30%, he does 
not suggest any alternative or more reliable figures as 
to the labor force; he merely calls the court’s figures “con­
trived.” In contrast to his failure to provide any eviden­
tiary support for his objection, the record reveals that, in 
concluding that the 25% goal was appropriate, Judge 
Pierce relied on population figures in the Department of 
Commerce’s publications General Population Characteris­
tics—1970 Census of Population and General Social and 
Economic Characteristics, 1970 Census of Population, and 
took into account the relevent geographic area and demo­
graphic characteristics of those making up the news de­
livery work force. Thus his conclusion, which followed 
closely the guidelines laid down in Rios v. Enterprise Assn. 
Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974), was 
adequately based.3

3 Intervenor also suggests that his rights under 42 TT.S.C. §2000e-2(j) 
have been violated. That section provides in pertinent part:

“ Nothing contained in this mibohapter shall be interpreted to re­
quire any employer, employment agency, labor organization, or joint 
labor-management committee subject to this subch&pter t» grant 
preferential treatment to any individual or to any group because



11a
Larkin's argument that lie is entitled to the same bene- 

tits as the minority workers must also be rejected. This 
ease arises under a statute which by its terms is limited 
to protection against employment discrimination based on 
an individual’s “ race, color, religion, sox, or national 
origin.” 42 U.S.G. § 2000e-2(a) (1). Larkin does not allege 
discrimination against him based on any of these factors. 
He argues only that the industry’s past practices discrim­
inated against all Group III members, minority and non- 
minority, and that while the settlement agreement remedies 
the discrimination against minority persons it fails to 
afford any relief for the harm caused to non-minority per­
sons. Worse still, he asserts, the relief to minority persons 
is at the expense of the white Group III workers.

At first glance this argument has much appeal. As the 
district court recognized, Group III workers were the vic­
tims of some practices that were harmful to all Group III 
members, regardless of race. Minority members, on the 
other hand, were the targets of racial discrimination on 
the part of the virtually all-white Union. In this Title YIT 
action we are limited to consideration of the fairness of re­

ef race, the color, religion, or national origin of snch individual 
or group on account of an imbalance which may exist with respect 
to the total number o.r percentage o f  persons o f 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 o f 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 o f past discrimination. 
Rios v. E n terprise Assn. SteanifiUers, L ocal GS8, supra, 501 F.2d at 
630-31; Vulcan S ociety  v. Civil Serv. Comm., 490 F.2d 387 (2d Oir. 
1973) ; U nited S tates  v. W ood, W ire  <f M etal Lathers, supra.



12a

lief 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 dras­
tically higher rates of unemployment and privation among 
racial minority groups.” United States v. Wood, Wire & 
Metal Lathers Inti. Union, 341 F. Supp. 694, 699 (S.D.N.Y. 
1972), affd., 471 F.2d 408 (2d Cir.), cert, denied, 412 IT.8. 
939 (1973). It creates no rights or benefits in favor of 
non-minority persons or groups. Any past denial of pro­
motion rights to Larkin is clearly not remediable under 
Title VII. Indeed, Group III white workers have unsuc­
cessfully sought relief for themselves under other statutes. 
It is thus apparent that Larkin has no right to any of the 
affirmative relief afforded to the minority groups, includ­
ing the back pay provisions.4 Our review, therefore, must 
be limited to the question of whether the' settlement agree­
ment, in remedying minority discrimination, treats the in- 
tervenors fairly. See State of West Virginia v. Ghas. 
Pfizer & Co., 440 F.2d 1079 (2d Cir.), cert, denied, 404 U.S. 
871 (1971).

The affirmative-action provisions of the agreement under 
review affect Group III workers in the industry, and par­
ticularly Daily News workers, in two ways. First, the pro­
visions for immediate transfer of incumbent minorities at 
major employers to Group I and for (he filling of Group I 
openings by alternately promoting one minority worker 
and then one non-minority worker from Group 111 to Group 
I mean that a white Group ITT worker will advance to 
Group I less rapidly than would be possible if straight shop

4 U nited S tates v. H eadway E xpress, In c ., 457 F.2d 854 (6th Cir. 1972), 
relied on by the intervener, does not suggest .otherwise. There the 
eourt 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 requ ire that a settlement 
give equivalent benefits to minority and non-minority workers.



13a

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 1 status before many Group 111 
whites with seniority. Although this feature of the agree 
mcnt is not. as beneficial to Larkin as would be promotion 
on the basis of straight seniority 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 T, 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 an 
abuse of discretion because it does not advance Larkin as 
rapidly as minority persons with less seniority. A reason­
able preference in favor of minority persons in order to 
remedy past discriminatory injustices is permissible. See 
Rios■ v. Enterprise Assn. Steamfitters, 501 F.2d 622 (2d 
Cir. 1974).

Second, the agreement affects daily work priorities. Its 
provision that all present incumbent Group III minority 
workers shall move at once into Group I immediately drops 
Group III whites in daily priority by whatever number of 
minority workers of lesser seniority are added to the higher 
priority Group 1. Furthermore, the one-to-one ratio for 
promotion thereafter of workers from Group II1 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 Til 
as he would under straight raceless seniority. This results 
from the fact that, whenever two openings in Group I be­
come available, one will be filled by a white worker senior to 
him and one hv a minority worker of lesser seniority. Thus 
he moves up only one step for every two Group I openings.



14a

The situation is even less favorable at the Daily News 
where for an initial period, as each Group 1 opening 
(rather than two openings) becomes available, the em­
ployer will add one minority and one non-minority em­
ployee to Group 1. The effect of this expansion of Group 1 
to take in minority members of lesser seniority is likely 
to slow down the rate of advancement of non-minority 
persons within Group ITT 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 10. white 
employee reaches Group I, he will move up in daily work 
priority (and priority for a Regular Situation) on the 
same basis as existed before the agreement.

Appellant characterizes these effects as “leapfrogging” 
or “bumping” of incumbent white workers, see 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 mi­
nority employment goals be confined to entry level posi­
tions. Thus in Bridgeport Guardians, Inc. v. Bridgeport 
Civil Serv. Comm., 482 F.2d 1333 (2d Cir. 1973), we up­
held the imposition of racial hiring quotas at the patrol­
man’s level, the entry level of the police force, but rejected 
the use of such quotas for promotion to higher ranks. In 
United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d 
Cir. 1971), we simply noted that minority transferees 
under the court’s order would be transferred into job 
vacancies created in the normal course of business and 
that no incumbent employee would be “bumped” out of 
his job. Id. at 664. In neither case did we specifically 
pass on the propriety or fairness of “bumping” an in­
cumbent.

These cases do not support rejection of the agreement 
that has been reached in this case. The Bridgeport



15a
Guardians decision was based upon the failure to estab- j 
lish any discrimination within the promotional system, 
the proof being limited to discrimination at the point of 
entry into the police force, i.e., in qualifying for the rank 
of patrolman. See 482 F.2d at 1338-41. In the present 
case, on the other hand, there has been racial discrimina­
tion throughout the industry. Furthermore, even assum- 
ing the desirability of confining use of quotas to entry J 
level positions, the effective point of entry into employ- j; 
mcnt in the industry has been at Group I, not Group III. : 
Judge Fierce found that “ Group III workers do not have : 
full-time employment, nor do many of them have great 
expectations or intentions of working full-time while they 
shape from the Group III list.” It is true, as appellant 
points out, that both Group I and Group III workers 
must shape regularly and neither has assurance of regu­
lar work. But the fact remains that traditionally a worker 
who reached Group I was on the road to a Regular Situa­
tion, whereas one who was in Group 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 positions; they 
have not been delisted in favor of minorities. Moreover, 
we are not dealing with workers who have been steadily 
employed under conditions where seniority is synonymous 
with an assured job but with a fluctuating group of shapers 
competing for a limited amount of work that varies widely 
from day to day. Although some may have declined some­
what in their daily work priority, as Judge Pierce pointed 
out, the actual effect of this decline is difficult to gauge 
since the availability of work at a given shape “depends 
on the stability of the total number of jobs available from 
shift to shift and whether or not the new person chooses



16a

to shape the same shift. In other words, assessing a 
shaper’s expectation is a highly speculative exercise.” In 
addition, the number of minority workers promoted to 
Group I on the date the agreement became effective, which 
solely accounts for any decline in daily work priority, is 
quite small. Only 13 of 178 Group III members at the 
News were minority persons, 6 of 34 at the Times.

The impact of any dilution of daily work opportunities 
resulting from the settlement agreement is, furthermore, 
softened by the fact that all current Group III members 
will be elevated to Group I within a fairly short time. 
The News estimates that within a month after implementa­
tion of the plan all non-minority workers above 47 on the 
Group III list will be elevated to Group I and that there­
after about 27 non-minority persons per year will be pro­
moted from Group III to Group I. This suggests that any 
decline in daily work priority attributable to the promo­
tion of presently incumbent minority workers to Group I 
will be offset for most workers by a rise in priority within 
Group III resulting from the expeditious upward move­
ment of Group III whites, also made possible by the 
program. Finally, should some Group III workers have 
difficulty finding work, the agreement empowers the ad­
ministrator to assure that any existing work opportunities 
in the industry be made available to those unable to get at 
least 45 shifts of work in a calendar quarter.

Aside from the foregoing, there was evidence from which 
it could be inferred that, if there had been no racial dis­
crimination 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



17a

minority work force, of a policy that discouraged minority 
persons from entering Group HI. To tlie extent that the 
settlement may cause a temporary decline in Group III 
white worker’s rate of promotion and daily work priority, 
it merely compensates for past discrimination by allowing 
a reasonable number of minority persons to be promoted 
to the “rightful place” on the seniority ladder, which they 
would have occupied but for industry-wide racial discrimi­
nation.

In any event it must be recognized that rights of the 
kind Group III workers here assert “are not indefeasibly 
vested rights but mere expectations derived from a bar­
gaining agreement land subject to modification.” United 
States v. Bethlehem Steel Corp., supra, 446 F.2d at 663. 
Here appellant has applauded those modifications of the 
collective bargaining agreement that are favorable to him, 
such as the removal of the provision limiting Group I to 
former Regular Situation holders. Under the peculiar cir­
cumstances that have governed employment in this in­
dustry it does not strike us as unfair to impose certain 
modifications on the manner in which promotions or qual­
ifications for daily wrork are determined. Job seniority 
need not be the only standard for determining promotions. 
Orders requiring that job vacancies be filled by means 
other than normal routes of internal promotion have been 
upheld as necessary to remedy past discrimination, Gates, 
v. Georgia-Pacific Corp., 492 F.2d 292 (9th Cir. 1974); cf. 
Allen v. City of Mobile, 331 F. Supp. 1134, 1142-43 (8.D. 
Ala. 1971), affd. per curiam, 4G6 F.2d 122 (5th Cir. 1972), 
cert, denied, 412 U.S. 909 (1973) (§1983 action), and, in­
deed, affirmative relief displacing whites with greater se­
niority has been granted, see United States v. Sheet Metals] 
Workers International Assn., Local 36, 416 F.2d 123, 133-1 
34 (8th Cir. 1969).



18a

The provisions of the settlement agreement affecting 
Larkin thus cannot be characterized >as illegal or unfair. 
Whatever disadvantages he may temporarily suffer in 
terms of daily work priority are offset by the substantial 
improvement in his long range prospects arising from the 
opportunity that has been created, for the first time, for 
him to reach Group I and, eventually, Regular Situation 
status. Judge Pierce therefore did not abuse his discre­
tion in finding the settlement agreement to be fair to 
Larkin. The order is affirmed.

F einberg , Circuit Judge (concurring):

I concur in the result.
This case involves the difficult issue whether a hiring- 

quota based upon race can be legally imposed under the 
Civil Rights Act of 1964 or the United States Constitution. 
In the past few years, this court has twice held that such 
quotas may be utilized to correct past discriminatory prac­
tices in public employment. Vulcan Society v. Civil Sendee 
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 dt Metal Lathers, Local 46, 
471 F.2d 408 (2d Cir.), cert, denied, 412 U.S. 939 (1973).

Nevertheless, I believe a strong note of caution is called 
for and should be stated. In Rios, Judge Hays wrote a 
powerful dissent, arguing that section 703 (j) of the Civil 
Rights Act, 42 U.S.C. §2000e-2(j), bars the use of court-



19a
ordered racial hiring quotas.1 He distinguished our deci­
sions in Vulcan Society and Bridgeport Guardians' on vari­
ous grounds, the most persuasive of which was that “ there 
was no other means of affording relief that did not interfere 
with essential public services” provided by firemen and 
policemen. 501 F.2d at 638. In both cases, hiring had to 
continue while new, non-discriminatory employment lists 
were drawn up. Judge Hays also distinguished Wood, Wire 
d Metal Lathers because the union there, in accepting a 
settlement, waived the benefit of section 703(j). A  close 
analysis of the cases in our circuit thus suggests that Rios 
is the only decision squarely holding that a court may 
impose a racial quota in a private employment case in the 
absence of a settlement.

Emphasizing the status of the authority in this circuit 
on the issue is worthwhile because, as we have earlier 
pointed out, quotas should be approached “ somewhat gin­
gerly.” Bridgeport Guardians, supra, 482 F.2d at 1340. 
The reason for this is clear. A racial quota is inherently 
obnoxious, no matter what the beneficent purpose. Such a 
quota is demeaning and divisive. At best it is a lesser evil. 
It is not to be encouraged.

1 Section 703 ( j )  provides:
Nothing contained in this subchapter shall be interpreted to require 
any employer, employment agency, labor organisation, 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 o f persons o f 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 wot! : foree in any community, State, section, or other area.



20a

However, this case is not an appropriate one for re-ex­
amination of the subject. The past discrimination against 
minority workers here was made quite clear after a four- 
week trial to the court. Minorities are conspicuously absent 
from the ranks of Group I and Regular Situation holders 
even though there are no special skills required to fill the 
jobs involved. The intervenor asks us to upset a settlement 
agreement that provides benefits for whites as well as for 
minorities. The quota the principal parties have agreed 
upon is intended to be of short duration. 384 F. Supp. at 
590-91. And finally, the intervenor does not direct his main 
attack against the idea of a hiring quota; he objects to its 
size and the effect on him and others already in the industry 
in Group III status.

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



21a
UNITED STATE'S DISTRICT COUP >’ 
SOUTHERN DISTRICT Or NEW YCIK

---------- ---------------- -------- x
JOHN R, PATTERSON, et al.,

Plaintiffs,

- v -■

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

Defendants.

73 Civ. 3058

---------- ,-- ,-------------------- -------:---x

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

- v - 73 Civ. 4278
- * *■

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

Defendants. :

---,--------------------------------x
JAMES LARKIN, DOMINICK VENTRE, FRANK 
CHILLEMI, GERALD KATZ, et al.,

Intervenors.



liENQRANDUM OPYIION AND ORDER

This memorandum approves a settlement reached by 

all of the parties after a four-week trial on the merits of 

two consolidated actions charging employment discrimination 

in the newspaper and publications delivery industry in the 

New York City area. The provisions of the agreement are 

intended to achieve a 25% minority—  ̂ employment- goai in the 

industry within five years. At the present time, minority 

employment in the industry is less than 2%; the comparable 

percentage of minorities in the relevant labor force in the 

Mew York City area is approximately 30%. The agreement also 

provides for supervision of hiring practices and employment 

opportunities in the industry to the benefit of both minority 

and non-minority workers.

One of the actions has been brought by the Equal 

Employment Opportunity Commission (EEOC) and names as defen­

dants the Newspaper and Mail Deliverers Union of New York and 

Vicinity (the Union), the New York Times (Times), the New York 

Daily News (News), the New York Post (Post) and some fifty 

other publishers and news distributors within the Union * s 

jurisdiction. The other action is a private class action 

on behalf of minority persons. Both actions charge that the 

Union, with the acquiescence of the publishers and d istributors,



23a

has historically discrimin'ted against minorities" and that 

the present structure of the collective bargaining agreement, 

combined with nepotism and cronyism and other abuses i 

employment and referral practices, have perpetuated the effects 

of the past discrimination, in violation of 42 U.S.C. §§2QOOe 

et seq. (Title VII).. Each lawsuit sought an affirmative action 

program designed to achieve for minorities the Status they 

would have had.in this industry but for the alleged discrimi­

natory practices.

Both actions were filed in 1973. After months of 

negotiation, the parties reached a settlement agreement in 

early 1974, but it was rejected by vote of the Union's member­

ship. Following another abortive attempt to obtain ratifica­

tion from-the membership, the two actions were consolidated 

with each other for a hearing on motions for preliminary relief 

before this Court. The hearing commenced May 14, 1974. At
i

its conclusion on June 12, 1974, the Court ordered the hearing 

consolidated with trial on the merits, pursuant to Fed.H..Civ.P. 

65(a)(2), giving the parties the opportunity to present 

further evidentiary submissions or testimony. No further 

evidence was presented. Instead, the parties having once 

again entered into settlement discussions, brought before 

this Court for approval a Settlement Agreement dated June 27,



24a

1974, entered into by all the plaintiffs' and all the defen- 

• dants, and ratified by the Union membership.

A hearing on the fairness, adequacy and reasonableness 

of the Settlement with respect to the plaintiffs1 class was 

held on August 27, 1974, after due notice to that class. On 

the same date the Court also held a separate hearing on the 

legality of the relief provided in the Settlement and its 

impact on a group of non-minority workers who had, prior to 

trial, been permitted to intervene in the consolidated actions 

for the purpose of challenging any affirmative relief which 

might have affected their interests.

The Standards
A

As a general proposition, when a settlement agree­

ment is presented to the Court for approval, the Court’s 

role is limited to the exercise of its equitable powers.

The Court is not to substitute its judgment for that of the 

parties. See, e.g,, Glicken v. Bradford, 35 F.R.D. 144, 151 

(S.D.N.Y. 1964); United States v. Carter Products, Inc., 211 

F.Supp. 144, 148 (S.D.N.Y. 1962). Instead, its role is to 

assure that the settlement is fair to the class and the parties 

and represents a reasonable resolution of the dispute. See, 

e.g., State of West Virginia v. Chas. Pfizer & Co., 314 F.Supp 

710 (S.D.N.Y. 1970), aff’d , 440 F.2d 1079 (2d Cir.), cert.



2 5a

denied, 404 U.S. 871 (1971,. Ordinarily, the Court is not 

expected to examine conclusively into the'underlying facts •

*or legal merits of the action. See, e.g., Newman v. Stein,

464 F.2d 689, 691-93 (2d Cir.), cert, denied, 409 U.S. 1039 

(1972); United States v. Carter Products, Inc., supra, 211 F. 

Supp. at 148.

But, this is not an ordinary case. It must be 

recognized that efforts to correct discrimination affect the 

strongest public sensitivities. The interests involved are 

far broader than those of the particular parties in a particu­

lar lawsuit. Therefore, the parties cannot be permitted to 

settle for less than, or for more than, the facts of the case 

and public policy expressed in Title VII mandates. Thus, 

although the Court is of the opinion that even at this late 

stage public policy is served by an agreement rather than an 

adjudication, a more searching discussion of the merits is 

warranted. In fact, the state of the law In this Circuit may 

require certain findings of fact to support affirmative action 

in a Title VII case even when it is resolved by settlement.

See, Rios v. Enterprise Association Steamfitters Local 638, 

#73-2110, Slip Op. at 4379 n.4 (2d Cir., June 24, 1974), 

explaining United States v. Wood, Wire and Metal Lathers 

International Union, 471 F.2d 408 (2d Cir. 1973), cert, denied,



26a

412 U.S. 939 (1973). Furtuer, a more conclusive examination 

c f  the merits is necessary in this case because the affirma­

tive action program and the minority goal in principle, and 

the 25% minority goal, are all vigorously disputed by the 

intervenors.

Inasmuch as this Court has heard a four-week 

completed trial in these actions, it is in a unique position 

to find facts and to set forth conclusions of law. Therefore 

what follows shall constitute this Court1s findings and con­

clusions to the extent that they form the necessary legal 

support for the affirmative action proposed.

The Background

Host of the facts are not contested. The Union 

is the exclusive bargaining agent for a collective bargaining 

unit encompassing the work performed in the delivery depart­

ments of newspaper and publication distributors in the New 

York area. Its geographic jurisdiction has been variously 

stated, but it is fair to define it by where the employers 

in the industry are located: in the metropolitan area of

New York City (within a fifty mile radius of Columbus Circle) 

the New York counties of Nassau and Suffolk, the New Jersey 

counties of Bergen, Essex, Hudson, Middlesex, Monmouth, 

Passaic and Union, and the Connecticut county of Fairfield.



27a

1 he nature of thv delivery industry is such that 

the employers' needs for delivery department employees vary 

from day to day, and indeed, shift to shift, depending upon 

the size and quantity of the publications) being distributed. 

Thus, each employer by the tprms of the Union contract, main­

tains a regular work force (Regular Situation holders) for 

its minimum needs, and depends upon daily shapers

to supplement the force. By the terms of the contract, 

at the major employers the shapers are categorized into groups 

with descending daily hiring priorities. The Group I list of 

shapers is restricted, by contract, to persons who have at 

one time held a Regular Situation in the industry. They have 

first shaping priority at every shift, in order of their shop 

seniority. After the Group I is exhausted at any given shift, 

the contract provides that the next hiring priority shall go 

to Group II members. Group II consists of all persons in 

Group I and all persons holding Regular Situations in the 

industry. Once all of the Group II members who have appearec 

for the shape are put to work, the contract provides that the 

remaining open jobs, if any, will go to Group III members who 

have appeared for the shape, In order of their shop tenure.

The shaping system is considerably less structured 

for the smaller publications and distributors, and, in fact



28a

at this time, only the Na s and the Times maintain Group 

III lists of any significant site.

All of the jobs in the industry are within the 

Union's jurisdiction, whether performed by Regular Situation 

holders or by any of the members of.the various groups, or 

any one who shapes at all. The jobs are essentially the 

same, regardless of the status of the worker who fills them, 

and are all relatively unskilled. Most workers drive trucks 

or do floor work* However, because the contract provides 

that a Regular Situation is a prerequisite to Union membership 

only Regular Situation holders and members of Groups I and 

II are Union members, A

In theory at least, in addition to structuring the 

daily hiring priorities, the Group system also represents . 

the priority list for filling Regular Situations as they may . 

become vacant in the newspapers shops.

The Union was founded in 1901, long before the 

present Group structured contract was in existence. There 

is no evidence to indicate that at that time it had any 

minority [.-embers (as that term is defined today). Histori­

cally it virtually limited membership to the first born legiti 

mate son of a member. The industry-had a closed shop and 

Union members were consistently hired before non-Union men



29a

at all industry shapes. In 1.952, the industry adopted the 

contract which included the rudimerjts of the Group structure 

described above.

It is abundantly clear that the nepotistic policy 

of the Union prior to 1952 resulted in discrimination against 

minorities. See, e.g., Rios v. Enterprise Association Steam- 

fitters Local 638, supra, at 4377-78; United States v. Wood, 

Wire and Metal Lathers International Union, 328 F.Supp.429,

432 (S.D.N.Y. 1971). The fact that the Union's intent was 

not to discriminate against minorities, but to prefer Union 

members and their sons, does not change the basic conclusion. 

The effect of such policies, deliberate or not, was^to fore­

close minorities from employment in the industry. It is the 

discriminatory effect of practices and policies, not the 

underlying intent, which is relevant in a Title VII action.

The Group structure, instituted in 1952, appears 

on its face to discard these discriminatory policies and 

to open up regular employment opportunities and Union member­

ship to the entire labor force. But, there is uncontroverted 

evidence that certain relevant provisions of the contract have
9

been administered haphazardly, and that the Group structure 

has been ci.rcumvented by friends and family of Union members. 

In practice, the fact is that,go non-Union Group III shaper in



30a

the industry has achieved a Regular Situation, and thus 

Union membership, by moving up the Group system since 1963.

Testifying at trial, the Union president credibly 

asserted that the Union was not motivated by any intent 

to discriminate against minorities, but went on to say that, 

"I would be the first to admit that we favor and we are 

partial to our members and I'm not ashamed of that." This 

attitude is, of course, admirable under most circumstances. 

There would be nothing unlawful about its effect under Title 

VII providing that minorities, historically, had been provided 

free and equal access to Union membership. But the facts 

indicate that such is not the case here. And even without 

evidence of abuse of the Group system, the statistics alone 

reveal the present situation.

There are presently some 4,200 members of' the 

Union, including some 900 pensioners. More than 99% of 

these Union members are White (non-minority).

There are, at present, a total of 2,855 persons

actively working in the Industry--this includes Regular

Situation holders (2,460), Group I members (123), and
2/Stroup III members (272).~  Of the total in these categories,

70 persons--2%-— are Black, Spanish-surnamed, Oriental or 

American Indian. Of the 70 minority persons, 28 are scattered



31a

among the smaller publisherand distributors; 24 work at 

the News where the force is approximately 900; 17 work at 

the Times where the force is approximately 400; and 1 works 

at the Post where the force is approximately 318.

These figures demonstrate that 20 years after the

industry instituted a neutral Group structure of employment

and hiring priorities, the participation of minorities in

this industry is still grossly disportionate to the percentage

of minority workers in the relevant labor force, which the
3/

EEOC suggests is approximately 30%.“  Even allowing for 

the fact that the industry has seen many newspapers disappear 

in these last two decades, with a concomitant loss qf jobs, 

the clear inference from these statistics is that abuses 

of the Group structure and indeed the Groun structure itself, 

is serving--however unintentionally--to "lock-in" minorities 

at the non-Union entry level of the industry, and to thereby 

perpetuate the impact of past discrimination on the minorities 

with whom these Title VII actions are concerned. It is this 

present impact of past practices which justifies the affirmative, 

corrective relief embodied in the Settlement Agreement. See, 

Griggs v.. Cuke Power Co. , 401 U.S. »424 (1971); Rios v. Enter­

prise Association Stenmfitters Local 638, supra; United States 

v. Wood, Wire and Lathers International Union, supra; United



32a

Statas v. Bethlehem Steal P a-p., 446 F.2d 652 (2d Cir. 1971).

The Terms of the Agreement 

A:; with many resolutions of employment discrimina­

tion cases, the Settlement Agreement in these actions contains 

general provisions permanently enjoining the defendants from 

discriminatory practices in violation of■Title VII. And, like 

the judgment in Rios (71 Civ. 847, S.D.N.Y., June 24, 1973) 

and the agreement in Wood, Wire (68 Civ. 2116, S.D.N.Y.,

Feb, 25, 1970), this Settlement Agreement sets forth a 

minority employment goal. In this case, it is for 25% 

minority employment in the industry within five years.— ^

But, unlike Rios and Wood, Wire, this Settlement Agreement 

does not merely commit the parties to the future development 

of a plan to achieve that goal. Instead, it sets forth a pl±r. 

with great specificity, including variations on the general 

theme to account for varying circumstances between different 

employers. Such detail indicates that the plan is the result 

of hard, serious and good faith negotiations, and that the 

different pressures, perspectives and interests of the parties 

have been confronted and already resolved. This serves to 

increase the Court's confidence that the plan is workable, 

and can be implemented immediately.



33a

The plan is built epon the outline of the present

Group priority structure of the collective bargaining agree-{
r'-Ofit. It provides for an administrator whose duties include 

not only close supervision of the plan, but also of employment 

opportunities in the industry on behalf of: all workers. Its 

major features include elimination of past abuses of the Group 

system; elimination of'the contract provision which restricted 

Group I to former Regular Situation holders; provision for an 

orderly flow of Group III shapers--alternating one minority 

person with one non-minority person— into steady and secure 

employment in the industry, first as members of Group I and 

from there, as Regular Situations become vacant, to Regular
4

Situations. Union membership will be offered to each Group 

III worker as he reaches the bottom of Group I. The plan 

further provides that until the.25% minority employment goal 

is achieved, employers shall hire, at the entry level, three 

minority persons for every two non-minority persons. In 

addition, minorities v?ho are presently active on Group III 

at the News and the Times will immediately move to the bottom 

of the Group I list, with an equal number of non-minorities 

to immediately follow them onto the Group I list. These 

minorities will be given pension benefits they would have 

earned but for the disadvantages they have encountered. With



34a

Che same purpose, funds have been established by the defendants 

to provide back pay awards chiefly to these persons.

The Intervenors' Objections /

The Group III li-jt at the News numbers 178. Scattered 

throughout the list, in terns of tenure, are 13 minority persons 

The intervenors purport to speak for the other 165 persons on 

the list, and more broadly for all non-minority, non-Union 

workers in the industry.

Most of the provisions of the Settlement Agreement 

are applauded by the intervenors, as well they might be. By 

regulating employment opportunities in the industry, unlock­

ing Group III and Group I, Regular Situations and Urtion 

membership, the Agreement will operate beneficially for the 

intervenors as well as for the minorities.

The focus of their objection is on the order of 

the flow from Group III to Group I. They assert that the 

flow ought to be in strict order of tenure on Group III. To 

Immediately move all of the present Group III minorities to 

the Group I list ahead of some non-minorities who have been 

listed for a longer period of time on Group III, they assert, 

is to engage in "leap-frogging" not intended by Title VII. 

Further, they argue, that the system becomes even more onerous 

when the provisions for alternating minority/non-minority



35a

elevation to Group I go inti effect, because after the few 

minorities who have any tenure in the shop are moved to Group 

I, the employer will be required to move minorities with no 

tenure at all ahead of some present Group III non-minorities.

The facts selected by the intervenors in support 

of their objections are so. And, at first glance their frus­

tration and anger with this Settlement Agreement is understand­

able, and their solution is appealing. These intervenors from 

Group III, as individuals, have also suffered the affects of 

the Union's nepotism; they have also attacked the present 

practices and abuses in other forums, under different statutes. 

Certainly this Court do.-: not accept the argument that these 

particular uen have benefited from a discriminatory system.

But, on deeper examination of the Settlement Agree­

ment and the intervenors* objections, there are a number cf 

reasons why this Court does not, and indeed can not, view the 

intervenors as raising countervailing considerations of such 

a substantial nature as to preclude approval of the plan.

First and dispositive of all the issues raised 

by the intervenors, the Settlement Agreement simply does 

not trample on their employment opportunities. In the long 

run, it must be acknowledged by all concerned that the effect 

of this Agreement, if it operates as predicted, will be to



36a

achieve Regular Situation i.: Group 1 status for all members 

of Group III, minority and non-minority alike, within a 

relatively short time-span. Without this Settlement, Group 

III workers had little if any hope of ever achieving either 

status under the present system. The intervenors do not 

contend otherwise. Instead, their objections deal in the 

main with interim measures which do, in fact, move some 

minorities faster than some non-minorities. But it must be 

noted that once a Group III non-minority is elevated to 

Group I, his daily shaping opportunities will be no less 

than they presently are and indeed they may be greater.

The News projections submitted to this Court indicate that 

within a month after implementation of the plan, the non- 

minority who is number 47 on the Group III list, and all 

non-minorities above him, will have been elevated to Group I. 

The progression thereafter is expected to be approximately 

27 non-minority persons to Group I each year. Also the 

Settlement Agreement provides other benefits to Group III 

non-minorities, not the least of which is the appointment of 

an administrator who is empowered to assure that existing 

work opportunities in the industry shall be made available 

to any Group III person unable to get at least 45 shifts of 

work in any calendar quarter.



37a

• . Further, even ii the Settlement Agreement did not 

provide non-minorities with these* benefits, the intervenors 1 

position is not factually or legally sound. Their premise 

is that the Settlement Agreement will oust them from what they 

perceive as vested seniority rights in their Group III order. 

If, in fact, this Settlement Agreement affected firm and 

realistic seniority rights and expectations of innocent non­

minority workers, there could be doubts as to the validity

of the relief afforded. See, e.g., United States v« Bethlehem
446 F .2d

Steel Corp. , supra,/at 661. But, in this case, regardless 

of the priority structure of the present contract, and the 

language which may be used in it, the fact remains that 

Group III workers do not have full-time employment, nor do 

many of them have any great expectations or intention of 

working full-time while they shape from the Group III list. 

They are shapers. And, to the extent that the present 

contract structure, in theory, gives them certain priorities, 

by tenure on Group III, to achieve Regular Situations, the. 

facts have demonstrated that they could not have any realis­

tic expectation of such movement actually occurring. As 

noted above, no Group III worker has moved up the list to 

a Regular Situation since 1963.



38a

Their expectation.;?, with respect to daily shape 

priorities must be viewed in a somewhat different light.

When an additional person is placed in front of a shaper, 

theoretically his chances of working any particular shift 

are decreased by a factor of one job. This, of course, 

depends on the stability of the total number of jobs 

available from shift to shift and whether or not the new 

person chooses to shape the same shift. In other words, 

assessing a shaper's expectation is a highly speculative 

exercise. The Court does not mean to minimize a Group III 

member's vested emotional interest in his position at a 

shape, but it cannot be equated with the worker who'might 

be ’’bumped" from a steady and seemingly secure position by 

an outside minority with less seniority than him. Further, 

it must be pointed out that even if these shaping priorities 

were viewed as providing firm expectations, "[such] seniority 

advantages sire not indefeasibly vested rights but mere expec­

tations derived from a bargaining agreement subject to 

modification." United States v. Bethlehem Steel Corn., 

supra, 446 F.2d at 663. Indeed, the intervenors themselves 

recognize this principle when they approve of many changes 

made in the collective bargaining agreement by the proposed

Settlement.



39a

Also, it must bo said that the relief the interveners 

suggest, which would observe strict tenure of the Group III 

list, would most likely not provide the relief mandated by 

Title VII for minorities. Given the fact that the active 

work force at the News numbers 900 and includes only 24 

minority persons, it would clearly take a far longer period 

of time to reach a goal of 25% minority employment. Because 

the minority percentage is so low, the same objection holds •. 

true if, as the intervenors have suggested,, the Group I and 

Group III lists were dovetailed by shop tenure.

Finally, it must not be forgotten that this is 

a Title VII case. Such cases, as Judge Frankel has*said 

in Wood, Wire are "launched by statutory commands, rooted 

in deep constitutional purposes, to attack the scourge of • 

racial discrimination in employment. . . . [a]nd we know 

that, in addition to the spiritual wounds it inflicts, such 

discrimination has caused manifold economic injuries, includ­

ing drastically higher rates of unemployment and privation 

among racial minority groups." United States v. Wood, Wire 

and Netal Lathers International Union. Local Union 46, 341 

F.Supp. 694, 699 (S.D.N.Y. 1972). Title VII is an expression 

of a commitment to correct minority employment discrimination 

and, hopefully, the vast social consequences that flow from



it . id afflict the whole o': the nation. The statute does 

not undertake to correct all forms of employment discrimina­

tion. Thus, to the extent that what the interveners seek here 

is relief equal to that afforded minorities, it has no legal 

foundation, in this case. Under the law, relief here must 

be limited to victims of the kind of discrimination prohibited 

by Title VII. United States v. Bethlehem Steel Corp. , sunra, 

446 F.2d at 665. There is no evidence and no assertion that, 

the intervenors have been discriminated against on account of 

race, religion, color, sex, national origin, or because they 

have made charges, testified, assisted or participated in any 

enforcement proceedings under Title VII.

The 25% Minority Employment Goal 

There remains the requirement of Rios v. Enterprise 

Association Steamfitters Local 638, supra, at 4387, for 

reliable factual support for the 25% goal. All of the 

parties have agreed to the figure. The EEOC has based its 

conclusion on relevant labor force statistics contained in 

the tables published by the United States Department of 

Commerce in a publication entitled General Social and Economic 

Characteristics, 1970 Census of Population, for the relevant 

geographic areas of the Union's jurisdiction. Using what 

this Court agrees is the most reliable profile possible of

4 0a



41a.

the candidate for deliverers1 work, the EEOC has extracted 

figures for Black males over 16 years of age with a high 

school diploma or less. With considerablytingenuity, the 

agency has also extrapolated comparable figures for minorities 

other than Black. Added together they indicate that the 

relevant labor force is 30% minority. Although the private 

plaintiffs and the intervenors have submitted other calcula­

tions and bases with respect to minority representation in 

the relevant labor force, in this Court's view the EEOC 

analysis is the soundest and provides ample support for the 

25% minority goal included in the Settlement Agreement.

Conclusion
-------- —........ ■■ ■-  » *

This Court has found that the affirmative relief

provided in the Settlement Agreement is justified by the 

facts of this case. It has found that the 25% minority goal 

is supported by reliable statistics. It has found that the 

affirmative relief provides members of the plaintiffs' class 

and other minorities with an adequate, fair and reasonable 

route to their "rightful place" in this industry, and that 

the Settlement Agreement is enforceable, legal and in the 

public interest. The Court has also found that the Settlement 

Agreement does nut so interfere with the rights of the inter­

venors as to require disapproval.



4 2a

Therefore, the motion of the parties for approval 

of the Settlement Agreement is hereby granted. Settle Order, 

upon the consent of the parties, endorsed thereon by their 

attorneys, accordingly.

SO ORDERED.

Dated: New York, New York
September 19, 1974

/$'/L.fiuj/z.&vc(S («j. PraPaE
LAWRENCE W. PIERCE 

U. S. D. J.



"Minority" as it is used in this Settlement 
Agreement refers to the definition of thac word 
by the Equal Employment Opportunities Commission, 
and means people who are Black, Spanish-surnamed, 
Oriental and American Indian.

. Group II is not counted here because Group II 
is constituted of persons who also hold Regular 
Situations or Group I positions in the industry. 
They are permitted by the contract to shape in 
any shop other than their own, in addition to 
their regular jobs.

See pp. 23-24.

The parties have defined "employment" as encompas 
sing Regular Situations and Group I positions. 
Their view is that a place in either, of these two 
groups represents a steady, secure job in the 
industry. The Court agrees, at this time. The 
definition is subject to revision by terms of the 
Settlement Agreement.



44a

UNITED STATES COURT OF APPEALS 

SECOND CIRCUIT

At a Stated Term of the United States 

Court of Appeals, in and for the Second Cir­

cuit, held at the United States Court House, 

in the City of New York, on the twenty-ninth 

day of April, one thousand nine hundred and 

seventy-five.

Present:

HON. WILFRED FEINBERG,

HON. JAMES L. OAKES,

HON. WALTER R. MANSFIELD,

Circuit Judges.

JOHN R. PATTERSON, et al..

Plaintiff, 
v .

NEWSPAPER & MAIL DELIVERS UNION OF NEW 
YORK & VICINITY, et al.,

x

Defendants.

x



EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,

v.

NEWSPAPER & MAIL DELIVERERS'

JAMES V. LARKIN,

UNION, etc. 

Defendants,

Intervenor-Appellant.

A petition for a rehearing having been 

filed herein by counsel for the intervenor- 

appellant, JAMES V. LARKIN,

Upon consideration thereof, it is 

Ordered that said petition be and hereby 

is denied.

A. DANIEL FUSARO 
Clerk



46a

UNITED STATES COURT OF APPEALS 
SECOND CIRCUIT

At a stated term of the United States 

Court of Appeals, in and for the Second Cir­

cuit, held at the United States Court House, 

in the City of New York, on the twenty-ninth 

day of April, one thousand nine hundred and 

seventy-five.
----------— —  ---- ■--- ----------------------- x

JOHN R. PATTERSON, et al.,

Plaintiffs,
v.

NEWSPAPER & MAIL DELIVERERS' UNION OF NEW 
YORK, et al.,

Defendants.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff,
v. Docket No.

74-2548
NEWSPAPER & MAIL DELIVERERS' UNION OF NEW 
YORK, et al.,

Defendant.



47a

DOMINICK VENTRE, PRANK SCHILLEMI, GERALD 
KATZ,

Intervenors,
JAMES V. LARKIN,

Intervenor-Appellant.

—  —  ---- — -- -— — ----—  --- ------- x

A petition for rehearing containing a 

suggestion that the action be reheard in banc 

having been filed herein by counsel for the 

intervenor-appellant, JAMES V. LARKIN, and no 

active judge or judge who was a member of the 

panel having requested that a vote be taken 

on said suggestion,

Upon consideration thereof, it is 

Ordered that said petition be and it here­
by is denied.

IRVING R. KAUFMAN, Chief Judge