Patterson v. Newspaper and Mail Deliverers Union Appendix to the Petition for a Writ of Certiorari

    No. 93-

In  T h e

Supreme Court of ttje Unttetr states
O c t o b e r  T e r m , 1993

John Patterson, et al.,

v.
Petitioners,

Newspaper and Mail Deliverers Union, et al.,
Respondents.

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

APPENDIX TO THE PETITION FOR 
A WRIT OF CERTIORARI

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Charles Stephen Ralston 
(Counsel of Record)

NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Penda D. Hair 
NAACP Legal Defense and 
Educational Fund, Inc.
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Petitioners

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



1

T a b l e  o f  C o n t e n t s

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

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

Memorandum Opinion and Order of the United States
District Court for the Southern District of New
York, September 19, 1974 .............................................. 15a

Final Order and Judgment, United States District 
Court for the Southern District of New York,
October 25, 1974 .......................................................  33a

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

Memorandum Opinion of the United States District 
Court for the Southern District of New York,
June 10, 1980 ...................................................................  55a

Memorandum Opinion of the United States District 
Court for the Southern District of New York,
December 15, 1986 .......................................................... 63a

Memorandum Opinion of the United States District 
Court for the Southern District of New York,
March 15, 1988 ..............................................................  68a

Opinion and Order of the United States District 
Court for the Southern District of New York,
September 25, 1991 .......................................................  75a

Opinion and Order of the United States District 
Court for the Southern District of New York,
September 30, 1991 ..................................    93a



11

Opinion and Order of the United States District 
Court for the Southern District of New York,
July 8, 1992 ....................... ........................ ............ . .  100a

Opinion and Order of the United States District 
Court for the Southern District of New York,
September 30, 1992 .....................................................  122a



la

Nos. 1476, 1480 -  August Term, 1992 
Docket Nos. 92-7964, 6242

United States Court of Appeals 
Second Circuit

JOHN R. PATTERSON, ROLAND J. BROUSSARD, 
ELMER STEVENSON, on their own behalf and on 

behalf of all other persons similarly situated, and EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiffs-Appellants,

v.

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

Defendants-Appellees.

Argued June 21, 1993 
Decided December 20, 1993.

Before: NEWMAN, Chief Judge,
VAN GRAAFEILAND and ALTIMARI, Chief Judges.

Appeal from the July 30, 1992, order of the United 
States District Court for the Southern District of New York 
(William C. Conner, Judge) vacating a consent decree 
originally approved in 1974, 797 F. Supp. 1174 (S.D.N.Y. 
1992).

AFFIRMED

JON O. NEWMAN, Chief Judge:



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This appeal primarily concerns the appropriate 
standard for modification of a consent decree in litigation 
not involving a governmental entity as a party. The Equal 
Employment Opportunity Commission ("EEOC") and a class 
of minority employees appeal from the July 30, 1992, order 
of the District Court for the Southern District of New York 
(William C. Conner, Judge), vacating in its entirety a consent 
decree originally approved in 1974. Patterson v. Newspaper 
& Mail Deliverers’ Union, 797 F. Supp. 1174 (S.D.N.Y. 1992). 
The decree created a comprehensive affirmative action 
program for New York City area Newspaper Deliverers. In 
addition, the decree contains broad prohibitions against 
discrimination and provides for an Administrator to enforce 
the anti-discrimination and affirmative action provisions. On 
appeal, EEOC and the minority employee class represented 
by the NAACP Legal Defense and Educational Fund, Inc. 
("LDF"), contend that the District Court applied the wrong 
standard in deciding whether to modify any aspect of the 
decree. LDF argues that none of the decree should have 
been vacated; the EEOC argues that the District Court erred 
in vacating the anti-discrimination provisions, but takes no 
position with respect to the affirmative action program and 
the Administrator.

We conclude that the District Court applied the 
correct standard and was entitled to vacate the entire 
consent decree since its essential purpose had been achieved. 
We therefore affirm.

Background

Through closed and union shop agreements, 
defendant Newspaper & Mail Deliverers’ Union ("the 
Union") controls access to newspaper and publication 
delivery jobs in the New York City region. From 1901 to 
1952, the Union limited membership to the legitimate first­
born sons of other Union members. In 1952, the Union 
abandoned its primogeniture system, and, with the 
cooperation of the New York City area newspapers and



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publishers, adopted a new series of membership and work 
rules. This system divided workers into those holding 
permanent jobs, which are said to have "regular situations," 
and those employed irregularly, who are called "shapers." 
The shapers were further divided into groups with 
descending daily hiring priority. Each employer maintained 
a "Group I" list, which was restricted to persons who had 
once held regular situations in the industry. After offering 
daily work to each person on the Group I list, the employer 
next looked to an industry-wide Group II list, which 
consisted of all persons in the industry on Group I lists or 
holding regular situations. Thus, Group II provided an 
opportunity for deliverers to supplement their income at an 
employer other than their usual employer. If additional daily 
work was available, the major employers would look to a 
Group III list, which consisted of persons who appeared for 
daily work a minimum number of times per week, even if no 
work was available. Union membership was limited to 
persons holding regular situations, and minorities were 
discouraged from joining the Group III lists. Moreover, 
although by contract the group lists provided the basis for 
filing vacant regular situations, various abuses made it nearly 
impossible for anyone to move from Group III to a regular 
situation. The Union allowed employees at one employer to 
shift to the Group I list of another employer and 
occasionally provided Group I status to relatives and 
associates of Union members.

In 1973, EEOC and a group of minority deliverers, 
who sued for themselves and others similarly situated, 
brought separate actions against the Union and the 
employers under Title VII of the 1964 Civil Rights Act. 
They contended that the 1952 system, although facially 
neutral, perpetuated discrimination against minorities. The 
cases were consolidated and brought to trial before then- 
District Judge Pierce. After all the evidence was presented, 
but before the District Court ruled, the parties entered into 
a settlement agreement, which Judge Pierce approved and



4a

incorporated into a final judgment. Patterson v. Newspaper 
& Mail Delivers’ Union, 384 F. Supp. 585 (S.D.N.Y. 1974). 
The judgment directs the Union and employers to implement 
and perform the agreement, and retains jurisdiction in the 
District Court for enforcement and any subsequent 
applications. In a written opinion, Judge Pierce made 
detailed factual findings of a long-established pattern of 
discrimination against minorities. Statistically, minorities 
accounted for 30 percent of the eligible workforce, and only 
two percent of deliverers (with an even smaller percentage 
among regular situation holders and Group I members). We 
affirmed Judge Pierce’s decision over the objection of White 
Group III deliverers who complained that the agreement 
unfairly favored minorities. Patterson v. Newspaper & Mail 
Deliverers’ Union, 514 F.2d 767 (2d Cir. 1975), cert, denied, 
427 U.S. 911 (1976).

The settlement agreement contains five sections. The 
introductory section consists of a series of "whereas" clauses, 
stating that there has been no admission of a violation of law 
but acknowledging the existence of a "statistical imbalance" 
in minority representation. The final clause of this section 
states that the agreement "is designed to correct the 
aforesaid statistical imbalance, to remedy and eradicate its 
effects, and to put minority individuals in the position they 
would have occupied had the aforesaid statistical imbalance 
not existed." Section A of the agreement consists of broad 
prohibition against any action with a discriminatory effect by 
either the Union (H 1) or employers (11 2). Section B of the 
agreement creates the office of the Administrator. The 
Administrator is authorized to resolve all complaints 
involving disparate treatment, subject to review by the 
District Court (H 4). His term is fixed as "an initial period of 
five (5) years"; subsequently he or his successor "shall remain 
in office if and for such time as the Court may direct" (H 
6).

Section C of the agreement is a detailed affirmative 
action program. The purpose of the program is to achieve



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"a minimum goal of 25% minority employment in the 
industry . . .  by June 1, 1979" (11 7), although the following 
paragraph states that this level "is not an inflexible quota but 
an objective" (H 8). To achieve this goal, the agreement 
provides that all minorities currently in Group III are to be 
moved up immediately to Group I (H 9); that regular 
situation positions are to be filled exclusively from Group I 
by seniority (It 10); that for each regular situation filled, one 
Group III deliverer will move up to Group I, alternating 
between the most senior minority and most senior 
nonminority (H 11); and that Group III vacancies are to be 
filled with three minorities for every two nonminorities 
(11 15). Various other provisions establish slight variations 
for certain employers (1111 12-13), impose some special one­
time rules (If 14), limit transfers (HIT 18-19), and require the 
Union to offer membership to anyone in Group I (11 20).

Finally, section D of the agreement, entitled "general 
provisions," require employers to help qualified individuals 
apply for employment (11 28), regulates employment 
applications (It 29), requires compliance reports (1111 30-31), 
provides for backpay to certain members of the class (1111 37, 
39), and provides for continued jurisdiction in the District 
Court (H 4). The only provision in section D that arguably 
contemplates the termination of the agreement is paragraph 
33, which states that inconsistent provisions in collective 
bargaining agreements are suspended, but "may be put into 
effect when the order terminates, unless the Court orders 
otherwise."

By 1979, minority employment was only 13.3 percent, 
and Judge Pierce ordered the office of the Administrator 
extended for another five years. Patterson v. Newspaper & 
Mail Deliverers’ Union, 23 Empl. Prac. Dec. (CCH) U 31,001 
(S.D.N.Y. 1980). In 1984, the office was extended on an 
indefinite basis. In 1985, the defendants moved to terminate 
the order embodying the settlement agreement on the 
ground that the 25 percent goal had been reached. In 1987, 
Judge Conner, to whom the case has been reassigned, found



6a

that while some employers had reached 25 percent minority 
employment, the goal of the settlement agreement was 
industry-wide minority representation of 25 percent. Judge 
Conner deferred further consideration of the motion until 
there was sufficient evidence that this goal had been 
attained. In November 1988. Judge Conner concluded that 
there was sufficient evidence to suspend operation of the two 
ratios in the affirmative action program (i.e., the 50 percent 
quota for filling Group I vacancies and the 60 percent quota 
for filling Group III vacancies) pending resolution of the 
motion.

In May 1991, the Interim Administrator submitted a 
report finding an industry-wide figure of 28.53 percent and 
substantial compliance by most employers. After the 
plaintiffs declined to challenge this figure, the District Court 
scheduled a hearing on vacating the entire order. The 
private plaintiffs opposed vacation of any part of the decree. 
EEOC did not oppose termination of the affirmative action 
program, but argued that paragraphs 1, 2, 20, 28, 29, 33, and 
41 of the settlement agreement should be retained.

In a comprehensive opinion dated July 8,1992, Judge 
Conner concluded that the order should be vacated in its 
entirety. He ruled that modem cases have established a 
flexible standard for vacating consent decrees, and that this 
standard allowed termination of a decree once its primary 
purpose had been attained. He rejected the private 
plaintiffs’ argument that the decree had to remain in force 
until every facet of discrimination was eliminated, and 
rejected the EEOC’s argument as a "cut and paste 
approach." Plaintiffs filed a motion to amend the judgment 
under Fed. R. Civ. P. 59(e), which was denied. However, the 
District Court modified its earlier order so as to allow 
discrimination claims filed with the Administrator prior to 
July 8, 1992, to be processed.

Discussion

I. Legal standard for modification of a consent decree



7a

EEOC primarily contends that the District Court 
erred in applying a flexible standard for modification of the 
consent decree instead of applying a more rigorous standard. 
The rigorous standard urged by EEOC dates from United 
States v. Swift & Co., 286 U.S. 106 (9132), in which the 
Supreme Court held that an antitrust consent decree could 
not be modified unless the defendant showed that the 
dangers leading to implementation of the decree had become 
"attenuated to a shadow," id. at 119. The Court also held 
that "[njothing less than a clear showing of grievous wrong 
evoked by new and unforeseen conditions should lead us to 
change what was decreed after years of litigation with the 
consent of all concerned." Id.

The adoption of a more flexible standard was 
intimated in United States v. United Shoe Machinery Corp., 
391 U.S. 241 (1968), in which the Supreme Court cautioned 
that the "grievous wrong" standard should not be read out of 
context, and allowed the United States to obtain 
modification of an antitrust injunction in order to strengthen 
restrictions on the defendant. The seminal case actually 
applying a more flexible standard is New York State 
Association for Retarded Children, Inc. v. Carey., 706 F.2d 956 
(2d Cir.), cert, denied, 464 U.S. 915 (1983). Judge Friendly’s 
opinion read Swint’s "grievous wrong" language as limited to 
the special facts of that case, and found that the appropriate 
standard, at least in an institutional reform case, was one of 
flexibility, leaving to the District Court a "rather free hand," 
id. at 970. Two recent Supreme Court cases have held that 
district courts erred in applying Swift, rather than a more 
flexible standard, to the modification of consent decrees or 
injunctions in institutional reform cases. In Board of 
Education of Oklahoma City Public Schools v. Dowell, 498 
U.S. 237 (1991), the Court held that a finding that a school 
district was operating constitutionally and unlikely to return 
to its past ways mandated the termination of a desegregation 
order. In Rufo v. Inmates of Suffolk County Jail, 112 S.Ct. 
748 (1992), the Court held that any showing of a significant



8a

change in factual conditions or law would justify a 
modification of a decree enjoining double bunking and 
requiring officials to build a new prison; the Court remanded 
for consideration of whether an upsurge in prison population 
had been unforeseen.

In the pending case, the District Court rejected 
EEOC’s contention "that this case is governed solely by . . . 
Swift", 797 F.Supp. at 1179, and looked to the flexible 
standard of Dowell and Rufo. In an important footnote, 
Judge Conner noted that though the flexible standard had 
previously "only been invoked in cases where the conduct of 
a governmental facility or operation was being regulated," 
the present case sufficiently implicated "the public’s right in 
seeing that persons are not deprived of fundamental rights" 
to come within the "institutional reform exception." Id. at 
1180 n.8.

EEOC is probably correct that the District Court’s 
decision is the first to explicitly adopt the flexible standard 
of Dowell and Rufo, rather than the rigorous standard of 
Swift, in a case not involving a governmental entity. It is also 
true that the recent Supreme Court cases have each, to an 
extent, invoked federalism and democratic rule concerns as 
a justification for their use of a flexible standard in the 
context of institutional reform litigation, see Rufo, 112 S.Ct. 
at 758-59; Dowell, 111 S.Ct. at 637. But New York State 
Association makes a more general argument for the flexible 
standard, based on the difficulties in implementing any 
complex decree in the institutional setting, see, 706 F.2d at 
969-70, and the discussion of Swift in each of the leading 
cases, as well as in United Shoe, suggest that Swift is a special 
case that should not be read as setting down a general 
standard for all future cases. See Rufo, 112 S.Ct. at 758 
("Our decisions since Swift reinforce the conclusion that the 
‘grievous wrong’ language of Swift was not intended to take 
on a talismanic quality, warding off virtually all efforts to 
modify consent decrees."); Dowell, 111 S.Ct. at 636; United 
Shoe, 391 U.S. at 248; New York State Association, 706 F.2d



9a

at 968-69. Moreover, we have suggested in a post-Rufo 
decision, Still’s Pharmacy, Inc. v. Cuomo, 981 F.2d 632 (2d 
Cir. 1992), that Rufo constitutes a wholesale change, not 
limited to institutional reform cases. See id. at 636-37 (citing 
District Court decision in this case for approval).

Among other circuits, there appears to be some 
dispute as to the appropriate standard for modifying consent 
judgments. The Seventh Circuit has flatly declared that Rufo 
gave the "coup de grace" to Swift, noting that although Rufo 
involved institutional reform litigation, the ‘flexible standard’ 
. . .  is no less suitable to other types of equitable case." In 
re Hendrix, 986 F.2d 195, 198 (7th Cir. 1993). Three circuits 
have said that Swift’s strict standard has been relaxed in 
institutional reform litigation, Lorain NAACP v. Lorain Bd. 
of Education, 979 F.2d 1141, 1149 (6th Cir. 1992), cert, 
denied, 113 S.Ct. 2998 (1993); W.L. Gore & Associates, Inc. 
v. C.R Bard, Inc., 799 F.2d 558, 562 (Fed. Cir. 1992); Epp v. 
Kerrey, 964 F.2d 754, 756 (8th Cir. 1992), but two of these 
courts have not considered the appropriate standard in 
public issues litigation not involving a governmental entity, 
see Lorain NAACP, 979 F.2d at 1149; Epp, 964 F.2d at 756, 
and one merely declined to apply the flexible standard to 
traditional commercial litigation, W.L. Gore, 977 F.2d at 562.

We agree with Judge Conner that the flexible 
standard outlined in Dowell and Rufo is not limited to cases 
in which institutional reform is achieved in litigation brought 
directly against a governmental entity. The "institution" 
sought to be reformed need not be an instrumentality of 
government. If a decree seeks pervasive change in long- 
established practices affecting a large number of people, and 
the changes are sought to vindicate significant rights of a 
public nature, it is appropriate to apply a flexible standard in 
determining when modification or termination should be 
ordered in light of either changed circumstances or 
substantial attainment of the decree’s objective. Decrees in 
this context typically have effects beyond the parties to the 
lawsuit, as is true of the provisions for affirmative action



10a

remedies in this case. Though it is important to make sure 
that agreements in such litigation are not lightly modified, it 
is also important to enter into constructive settlements so 
that protracted litigation can be avoided and useful remedies 
developed by agreement, rather than by judicial command. 
There is an inevitable tension between the objectives of 
promoting adherence to agreements and of fostering a 
climate in which constructive settlements may be readily 
reached. For plaintiffs, the certainty that an agreement will 
be enforced without modification is an incentive to negotiate 
a settlement that achieves some, though not all, of what 
might have been obtained in litigation. For defendants, 
however, it is the prospect of modification as circumstances 
change or objectives are substantially reached that provides 
the incentive to settle on reasonable terms, rather than 
adamantly resist in a protracted litigation. The tension 
between these competing objectives cannot be eliminated, 
but it can and should be sensitively adjusted by courts of 
equity, exercising their historic powers both to provide 
remedial relief and, when appropriate, to terminate their 
authority. We therefore agree with Judge Conner that it was 
appropriate to apply a flexible standard in determining 
whether to dissolve the decree.

2, Application of the standard

In considering the District court’s decision to vacate 
the entire decree, it will be convenient to focus initially on 
the affirmative action provisions of the decree. Only the 
LDF contends that these provisions should be retained. 
LDF does not dispute that minority representation has 
reached 25 percent, nor even the District Court’s finding that 
minority representation is likely to increase since many white 
employees with regular situations are near retirement age 
and the Group I and Group III lists contain greater than 25 
percent minority representation. LDF also does not dispute 
that it would have been proper to suspend the fixed quotas 
had the defendants achieved the 25 percent goal by 1979. 
But LDF contends that the defendants’ failure to meet that



U a

goal by 1979 requires (a) setting a new goal now, 
commensurate with the percentage of minorities in the 
qualified workforce, and (b) retaining the hiring quotas until 
the new goal is met. LDF states that the 1980 census 
showed that minorities constituted 42 percent of the 
workforce, and that the 1990 census shows a figure of more 
than 50 percent.

LDF relies on Youngblood v. Dalzell, 925 F.2d 954 
(6th Cir. 1991), in which the Sixth Circuit reversed the 
termination of a consent decree and remanded to the 
District Court for further consideration of whether a higher 
affirmative action goal should be set after the defendant 
failed to meet the goal within the deadline set in the decree. 
The decree in that case stated that it was intended to achieve 
a "workforce composition which will not support any 
inference of racial discrimination in hiring." Id. at 961. The 
consent decree in this case could perhaps be read to support 
a similar goal. The decree states that it is intended to 
remedy a "statistical imbalance," and it is clear that the 25 
percent figure was chosen with reference to the 1970 census 
figure of a 30 percent minority workforce. Nevertheless, the 
decree does not suggest that its purpose is to achieve total 
parity, and the 25 percent figure, as a numerical goal, is 
stated in absolute terms, without any suggestion that it is 
subject to modification. Indeed, the decree suggests that if 
any factor is flexible, it is the time limit. Paragraph 6 allows 
extension of the office of Administrator beyond five years, 
and paragraph 8 states that the 25 percent goal "is not an 
inflexible quota but an objective to be achieved by the 
mobilization of available personnel and resources of the 
defendants hereto in a good faith effort to maximize 
employment opportunities for minorities." Both the difficulty 
of achieving 25 percent goal and the likelihood that the 
percentage of minorities in the blue collar workforce would 
increase were foreseeable in 1974. Whether or not the 
District Court might have had discretion to raise the 25 
percent figure as a remedy for not meeting it is originally



12a

contemplated, the Court was surely entitled to conclude that 
such an increase was not required. Finally, with no increase 
in the percentage goal, it was proper to dissolve the 50 
percent quota for promotions from Group III to Group I 
and the 60 percent quota for listings in Group III.

Once the District Court decided that achievement of 
the 25 percent goal justified elimination of the affirmative 
action provisions, without any increase in the percentage, it 
then had to decide whether to vacate the entire decree. 
Though other portions of the decree provide the plaintiff 
class with enforcement mechanisms for redressing any 
ongoing discrimination that may be more expeditious than 
the initiation of new litigation, we agree with Judge Conner 
that the decree has served its purpose, and that all of its 
provisions may be ended. Again, we do not decide that the 
District Court was required to vacate these additional 
provisions, only that it was entitled to do so. Application of 
the flexible standard for modifying decrees in the context of 
this lawsuit seeking broad remedies to change hiring 
practices entitles a court of equity to focus on the dominant 
objective of the decree and to terminate the entire decree 
once that objective has been reached.

Affirmed.



13a

Docket Nos. 92-7964, 6242

United States Court of Appeals 
Second Circuit

JOHN R. PATTERSON, ROLAND J. BROUSSARD; 
ELMER STEVENSON, on their own behalf and on 

behalf of all other persons similarly situated, and EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiffs-Appellants,

v.

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

Defendants-Appellees.

Filed February 7, 1994

At a stated term of the United States Court of 
Appeals for the Second Circuit, held at the United States 
courthouse in the City of New York on the 7th day of 
February one thousand and ninety-four.

A petition for rehearing containing a suggestion that 
the action be reheard in banc having been filed herein by 
Appellant JOHN PATTERSON, ET AL.

Upon consideration by the panel that decided the 
appeal, it is

Ordered that said petition for rehearing is DENIED.



14a

It is further noted that the suggestion for rehearing 
in banc has been transmitted to the judges of the court in 
regular active service and to any other judge that heard the 
appeal and that no such judge has requested that a vote be 
taken thereon.

FOR THE COURT 
GEORGE LANGE, III, Clerk 
By:

Carolyn Clark Campbell 
Chief Deputy Clerk



15a

Nos. 73 Civ. 3058 and 73 Civ. 4278 

Sept. 19, 1974

United States District Court 
S. D. New York

JOHN R. PATTERSON, et. al.

Plaintiffs,

v.

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

Defendants.

Supplemental Opinion Oct. 11, 1974

MEMORANDUM OPINION AND ORDER 

PIERCE, District Judge

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 publication delivery industiy in the New 
York City area. The provisions of the agreement are 
intended to achieve a 25% minority1 employment goal in the

’"Minority" as it is used in this Settlement Agreement refers to the 
definition of that word by the Equal Employment Opportunities

(continued...)



16a

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 
New York City area is approximately 30%. The agreement 
also provide 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 defendants the Newspaper and Mail Delivery 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 distributors, has historically discriminated 
against minorities and that the present structure of the 
collective bargaining agreement combined with nepotism and 
cronyism and other abuses in employment and referral 
practices, have perpetuated the effects of the past 
discrimination, in violation of 42 U.S.C. § 2000 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 discriminatory 
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 
membership. Following another abortive attempt to obtain 
ratification from the membership, the two actions were 
consolidated with each other for a hearing on motions for

'(...continued)
Commission and means people who are Black, Spanish-surnamed, 
Oriental and American Indian.



17a

preliminary relief before this Court. The hearing 
commenced May 14, 1974. At its conclusion on June 12, 
1974, the Court ordered the hearing consolidated with trial 
on the merits, pursuant to Fed.R.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, 1974, 
entered into by all the plaintiffs and all the defendants, and 
ratified by the Union membership.

A hearing on the fairness, adequacy and 
reasonableness of the Settlement with respect to the 
plaintiffs’ 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

As a general proposition, when a settlement 
agreement 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 o f West Virginia v. Chas. ffitzer& Co., 314 F. Supp. 710 
(S.D.N.Y. 1970), aff’d, 440 F.2d 1079 (2d Cir.), cert, denied, 
404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971). Ordinarily, 
the Court is not expected to examine conclusively into the 
underlying facts or legal merits of the action. See, e.g.,



18a

Newman v. Stein, 464 F.2d 689, 691 (2d Cir.), cert, denied, 
409 U.S. 1030, 93 S.Ct. 521, 34 L.Ed.2d 488 (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 particular 
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 mandate. 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 merit 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, Ross v. 
Enterprise Association Steamfitters Local 636, 501 F.2d 622, 
628 n.4 (2d Cir. 1974), explaining United States v. Wood, Wire 
and Metal Lathers International Union, 471 F.2d 408 (2d Cir. 
1973), cert, denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 
398 (1973). Further, a more conclusive examination of the 
merits is necessary in this case because the affirmative 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 Court’s findings and 
conclusions to the extent that they form the necessary legal 
support for the affirmative action proposed.

The Background

Most of the facts are not contested. The Union is the 
exclusive bargaining agent for a collective bargaining unit 
encompassing the work performed in the deliverers’ 
departments of newspaper and publication distributors in the



19a

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.

The nature of the 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 quality of the publication(s) being distributed. 
Thus, each employer by the terms of the Union contract, 
maintains 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 
appeared 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 at the 
this time, only the News and the Times maintain Group III 
lists of any significant size.

All of the jobs in the industry are within the Union’s 
jurisdiction, whether performed by Regular Situation holders



20a

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 Group I and 
II are Union members.

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 members (as that term is defined today). 
Historically it virtually limited membership to the first bom 
legitimate son of a member. The industry had a closed shop 
and Union members were consistently hired before non­
union men at all industry shapes. In 1952, the industry 
adopted the contract which included the rudiments 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 Steamfitters 
Local 638, supra, 501 F.2d 622. 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 foreclose 
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



21a

its face to discard these discriminatory policies and to open 
up regular employment opportunities and Union membership 
to the entire labor force. But, there is uncontroverted 
evidence that certain relevant provisions of the contract have 
been administered haphazardly, and that the Group structure 
has been circumvented by friends and family of Union 
members. In practice, the fact is that no non-Union Group 
III shaper in 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 Group III 
members (212)} Of the total in these categories, 70 persons 
— 2% are Black, Spanish-sumamed, Oriental or American 
Indian. Of the 70 minority persons, 28 are scattered among 2

2Group 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 contract to shape in any shop 
other than their own, in addition to their regular job.



22a

the smaller publishers and distributors; 24 work at the News 
where the force is approximately 900; 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 disproportionate to the percentage of 
minority workers in the relevant labor force, which the 
EEOC suggests is approximately 30%.3 Even allowing for 
the fact that the industry has seen many newspapers 
disappear in these last two decades, with a concomitant loss 
of jobs, the clear inference from these statistics is that abuses 
of the Group structure and indeed the Group 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 ar concerned. 
It is this present impact of past practices which justifies the 
affirmative corrective relief embodied in the Settlement 
Agreement. See, Griggs v. Duke Power Co., 401 U.S 424, 91 
S.Ct. 849, 28 L.Ed.2d 158 (1971); Rios v. Enterprise 
Association Steamfitters Local 636, supra, United States v. 
Wood, Wire and Metal Lathers International Union, supra-, 
United States v. Bethlehem Steel Corp., 446 F.2d 652 (2d Cir. 
1971).

The Terms of the Agreement

As with many resolutions of employment 
discrimination 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, 360 F. Supp. 979 
(S.D.N.Y. 1973) and the agreement in Wood, Wire (68 Civ.

3See p. 593 [pp. 28a-29a of this Appendix].



23a

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.4 
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 plan 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.

The plan is built upon the outline of the present 
Group priority structure of the collective bargaining 
agreement. 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 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

“The parties have defined "employment" as encompassing 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.



24a

minority persons for every two non-minority persons. In 
addition, minorities who 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 into the Group I list. 
These minorities will be given pension benefits they would 
have earned but for the disadvantages they have 
encountered. With the same purpose, funds have been 
established by the defendants to provide back pay awards 
chiefly to these persons.

The Intervenors’ Objections

The Group III list the News numbers 178. Scattered 
throughout the list, in terms 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, 
unlocking Group III and Group I, Regular Situations and 
Union 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 elevation to Group I go into 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



25a

Group III non-minorities.

The facts selected by the intervenors in support of 
their objections are so. And, at first glance their frustration 
and anger with this Settlement Agreement is understandable, 
and their solution is appealing. These intervenors from 
Group III, as individuals, have also suffered the effects of 
the Union’s nepotism; they have also attacked the present 
practices and abuses in other forums, under different 
statutes. Certainly this Court does not accept the argument 
that these particular men have benefited from a 
discriminatory system.

But, on deeper examination of the Settlement 
Agreement and the intervenors’ objections, there are a 
number of 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 achieve 
Regular Situation or Group I 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-



26a

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.

Further, even if the Settlement Agreement did not 
provide non-minorities with these benefits, the intervenors’ 
position is not factually or legally sound. Their premise is 
that the Settlement Agreement will oust them from what 
they perceive as vested seniority rights in their Group III 
order. If, in fact, this Settlement Agreement affected firm 
and realistic seniority rights and expectation of innocent non­
minority workers, there could be doubts as to the validity of 
the relief afforded. See e.g., United. States v. Bethlehem Steel 
Corp., 446 F.2d 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 realistic 
expectation of such movement actually occurring. As noted 
above, no Group III worker has moved up the list to a 
Regular Situation since 1963.

Their expectations with respect to daily shape 
priorities must be viewed in a somewhat different light. 
Then 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



27a

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 are not 
indefeasibly vested rights but mere expectations derived from 
a bargaining agreement subject to modification." United 
States v. Bethlehem Steel Corp, supra, 446 F.2d at 663. 
Indeed, the intervenors themselves recognize this principle 
when they approve of many changes made in the collective 
bargaining agreement by the proposed Settlement.

Also, it must be said that the relief the intervenors 
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, 
including drastically higher rates of unemployment and 
privation among racial minority groups." United States v. 
Wood, Wire and Metal Lathers International Union, Local 
Union 46, 341 F. Supp. 694, 699 (S.D.N.Y. 1972). Title VII



28a

is an expression of a commitment to correct minority 
employment discrimination and, hopefully, the vast social 
consequences that flow from it and afflict the whole of the 
nation. The statute does not undertake to correct all forms 
of employment discrimination. Thus, to the extent that what 
the intervenors seek here is relief equal to that afforded 
minorities, it has no legal foundation, in this case. Under 
the law, relief here must be limited to victims of the kind of 
discrimination prohibited by Title VII. United States v. 
Bethlehem Steel Corp., supra, 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, 502 F.2d 622, 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 
the candidate for deliverers’ work, the EEOC has extracted 
figures for Black males over 16 years of age with a high 
school diploma or less. With considerable ingenuity, the 
agency has also extrapolated comparable figures for 
minorities other than Black. Added together they indicate 
that the relevant labor force is 30% minority. Although the 
private plaintiffs and the intervenors have submitted other 
calculations 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



29a

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 not so interfere with the rights of the 
intervenors as to require disapproval.

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.

SUPPLEMENTAL OPINION and ORDER
On September 19, 1974, this Court filed a 

Memorandum Opinion and Order approving the proposed 
settlement of these actions. As part of that settlement the 
parties agreed to the appointment of an Administrator to 
supervise its implementation. While they agreed that the 
Court would appoint a person of its own choosing, they 
indicated a preference for a particular individual whose 
reputation as an experienced person in labor-management 
relations is undisputed.

This Court is mindful that given the context of a suit 
pursuant to Title VII of the Civil Rights Act of 1964 
experience in labor-management relations is not without 
significant value to an Administrator. But this is not to say 
that under all circumstances an Administrator in a Title VII 
action must be recruited from the ranks of the labor-



30a

management specialists. There are instances, and the Court 
believes this to be one of them, when other qualities may 
assume greater importance in meeting the commitment to 
the broad social policies which underpin the 1964 Act.

The Administrator appointed in these consolidated 
actions will be charged with the responsibility of seeing that 
the terms of the Settlement Agreement under Title VII of 
the Civil Rights Act of 1964 are diligently and 
conscientiously implemented. This Act was designed 
primarily to protect, and provide a more effective means to 
enforce, the civil rights of persons within the jurisdiction of 
the United States. It aims, inter alia, to eliminate 
discriminatory practices by business, labor unions, or 
employment agencies and thereby to encourage the growth 
of economic opportunities for minority individuals, thus 
strengthening the economic foundation essential to the full 
enjoyment of civil rights. When President Lyndon B. 
Johnson signed the 1964 Act he declared that its overriding 
social goal was "to promote a more abiding commitment to 
freedom, a more constant pursuit of justice and a deeper 
respect for human dignity."

In light of these broad national purposes, this Court 
considers it of paramount importance that the Administrator 
it appoints here possess a finely tuned sensitivity to the social 
impact of past discriminatory employment practices, and a 
balanced sense of dedication and commitment to the 
elimination of these practices.

Further, while in some cases the very nature of the 
industry in which the Settlement Agreement is to operate 
and the unusual complexity of its labor-management 
problems may dictate the appointment of an individual with 
a background in labor-management relations, such is not the 
case here. Here, the Court is concerned with an important 
but relatively small and centralized industry involving the 
deliveiy of newspapers, magazines, books, etc. The 
bargaining unit of the Newspaper and Mail Deliverers’



31a

Union encompasses only about 3,000 employees most of 
whom are employed by the three major newspapers in the 
New York City metropolitan area. Given these 
characteristics, this Court finds that experience in labor- 
management relations need not be the major consideration 
which should guide the Court in its appointment of an 
Administrator.

This finding is buttressed by the fact that the 
Settlement Agreement here is quite detailed and specific. 
Were such an Agreement broad in its terms, the 
Administrator would be faced with the need to establish 
procedures, define specific objectives, and develop the 
methods to be employed. In such an instance, an
Administrator with an extensive background in labor- 
management work and possibly even familiarity with the 
industrial unit involved would seem to be indicated. In 
contrast where the Settlement Agreement is highly detailed, 
as here, the responsibilities of the Administrator are clearly 
defined and consequently, his discretion is accordingly more 
circumscribed and the need for a particular expertise 
becomes correspondingly less important.

Not to be disregarded, of course, in appointing an 
Administrator is the assessment of the proposed 
Administrator by the parties. Since their respective interests 
clearly will be affected by the Court-appointed Settlement 
Agreement, there should be some assurance that there is 
confidence in the person to be appointed. In this case, the 
proposed Administrator is said to be completely satisfactory 
both to the private plaintiffs and to the EEOC. While it is 
true that the defendants have not expressed like sentiments, 
their reservations are centered on the proposed 
Administrator’s lack of experience in labor-management 
relations. But, as the Court has already indicated, such 
experience while frequently desirable and even essential 
should not always be the prevailing consideration. Sensitivity 
to the broad social purposes of civil rights legislation and the 
disposition to fairly and adequately administer the agreement



32a

are qualities which in this Court’s view, in this case outweigh 
whatever lack of expertise may exist. Further, the parties 
herein have demonstrated a commendable spirit of 
cooperation which the Court confidently expects will 
continue during the implementation state of these 
proceedings. To that extent the Administrator’s task will be 
made immeasurably less difficult.

Having carefully considered the matter in light of the 
principles briefly discussed above and after a careful review 
of a number of qualified men and women who might be 
available for appointment, the court has decided to appoint 
the person named in the Court’s letter of September 11, 
1974 as the Administrator.

It is so ordered.



33a

No 73 Civ. 3058 
No. 73 Civ. 4278

Filed October 25, 1974

United States District Court 
Southern District of New York

JOHN R. PATTERSON, et al.,

Plaintiffs,

v.

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

Defendants.

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION

Plaintiff,

v.

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

Defendants.

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

INTER VENORS.



34a

FINAL ORDER AND JUDGMENT

Upon the consent of the parties, endorsed hereon by 
their attorneys, and upon the Settlement Agreement between 
the parties, dated June 27, 1974, and attached hereto as 
Exhibit A, and upon this Court’s Memorandum Opinion and 
Order approving the Settlement Agreement, dated 
September 19, 1974, and upon this Court’s Supplemental 
Opinion and Order, dated October 11, 1974, appointing 
William S. Ellis, Esq., as the Administrator, it is hereby

ORDERED, ADJUDGED AND DECREED:

1. The Settlement Agreement is hereby approved 
as a basis for settlement of these actions and the defendants 
in these actions, including those in default, are hereby 
directed to implement and perform the Settlement 
Agreement in accordance with its terms and with the 
provision of this Order and Judgment.

2. Failure to comply with this Order and 
Judgment, including breach of the Settlement Agreement, 
shall be punishable as a contempt of court.

3. A copy of the Settlement Agreement and of 
this Order and Judgment shall be kept available and 
displayed by all defendant employers in a permanent place 
where notices to their delivery department employees are 
usually posted and by defendant union in a prominent place 
at the union’s offices.

4. This Order and Judgment and the Settlement 
Agreement shall be binding upon plaintiffs and all members 
of the class or classes they represent, and defendants and 
their officers, agents, servants, employees, assigns, and upon 
those persons in active concert or participation with them 
who receive actual notice of the order by personal service or 
otherwise.

5. William S. Ellis, Esq., is hereby appointed as 
the Administrator under the Settlement Agreement, and he



35a

shall be compensated at an hourly rate of $65.00 plus 
expenses.

6. This Court’s temporary restraining order of 
March 19, 1974, extended by consent of the parties on April 
5, 1974, until the entry of this final order, is dissolved as of 
the effective date of this Final Order and Judgment.

7. These actions are hereby marked "settled," 
with prejudice and the Court hereby retains continuing 
jurisdiction over these actions for the purpose of the 
enforcement of compliance with this Order and Judgment 
and the Settlement Agreement and the punishment of 
violations thereof, and for the purpose of enabling any of the 
parties to apply to the court for such further orders and 
directions as may be necessary or appropriate.

8. This Order and Judgment shall take effect on 
November 11,1974, and any application to the United States 
District Court for a stay thereof shall be made in writing and 
not later than October 29, 1974, at 10:00 O’clock a.m.

Dated: New York, New York

October 24, 1974.

United States District Judge



36a

No. 626

Docket No. 74-2548 
Argued Jan. 9, 1975 

Decided March 20, 1975

United States Court of Appeals 
Second Circuit

JOHN R. PATTERSON, et al,

Plaintiffs,

v.

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

Defendants-Appellees,

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,

Plaintiffs,

v.

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

Defendants-Appellees

DOMINICK VENTRE, et al.,

Intervenors.



37a

Before: FEINBERG, MANSFIELD and OAKES, 
Circuit Judges

MANSFIELD, Circuit Judge:

At issue on this appeal is the appropriateness of relief 
against discrimination in the employment of news deliverers. 
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. § 2000 
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 affirmative 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 agreement between the plaintiffs, who are 
minority persons seeking employment as news deliverers, the 
defendant Newspaper 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, seeks to set aside the agreement as 
unlawful on the ground that it affords benefits to minority



38a

workers1 not given to similarly situated white workers, 
regarding the advancement rate and diluting the work 
opportunities of these white workers.

Because he 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 
settlement to the goals of Title VII and the rights of the 
parties. See, 384 F.Supp. 585 (S.D.N.Y. 1974). We find no 
abuse of discretion in Judge Pierce’s approval of the 
settlement and therefore affirm.

The appeal arises out of the two consolidated actions. 
One was brought by the Equal Employment Opportunity 
Commission 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 perpetuate 
the effects of past discrimination in a manner that violated 
Title VII. The defendant publishers are alleged to have 
acquiesced in these practices. Appellant Larkin is one of 
approximately 100 white non-union "Group III" workers at 
the News who are given permission to intervene under F.R. 
Civ. P. 24(a)(2) because of their potential interest in the 
relief to be fashioned.

The Union is the exclusive bargaining agent for the 
collective bargaining unit which embraced all workers in the 
delivery departments of newspaper publishers and of

The term minority" as used herein means persons who are Black, 
Spanish-surnamed, Oriental and American Indian. "White" or "non- 
minority" refers to all other persons.



39a

publications 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 
members, 995 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, Group 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 
exhausted, it enable regular and Group I members to obtain 
extra daily work at employers other than their own.

Major employers maintain a Group III list, which 
consists of persons who have never held a Regular Situation 
in the industry. Members of Group III are given daily work



40a

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 are theoretically entitled 
by shop seniority to any Regular Situation that become 
available, if the Group I list had been exhausted. Group IV 
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 bom 
son of a member. Aside from the chilling effect which 
restriction of Union membership to whites might in itself 
have upon minority persons seeking delivery work, there is 
evidence that minorities were also discouraged 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 industry (which includes 2,460 
Regular Situation holders, 123 Group I shapers, and 273 
Group III shapers only 70, or 2.45%, are minority persons.

While the current Group Situation 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 
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 holders 
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 fictitious lay-offs, 
enabling the Union member to transfer to Group I of the 
different employer, and outright false assertion of Group I



41a

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

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

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

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



42a

minority2 persons to two (2) non-minority persons. As each 
Regular Situation is filled by a Group I member, one Group 
III member shall be moved to Group I and offered Union 
membership. This is to be done on an alternating one-for- 
one basis between minority and non-minority workers. Each 
two vacancies in Group I will thus be filled by the minority 
worker in Group III having highest seniority and the highest 
seniority non-minority worker. The agreement also modifies 
these provisions insofar as they apply to the smaller 
employers and to the Daily News, taking into account special 
conditions affecting each. At the News, an equal number of 
non-minority persons from Group III will follow those 
minority workers who move into the Group I list on the date 
of the order, also, for a certain time, one minority and one 
non-minority person will replace each person on the Group 
I list promoted to the Regular Situation.

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

Tntervenor 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.



43a

attacks the 25% goal.3

DISCUSSION

The scope of our review of a district court’s approval 
of a settlement agreement is limited. "[T]he appellate court 
should intervene only on a clear showing that the trial judge 
was guilty of an abuse of discretion," State o f West Virginia v. 
Chas. Pfizer & Co., 440 F.2d 1079 (2d Cir.), cert, denied, 404 
U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971). While the 
public objective embodied in Title VII warrant a careful 
review of the provisions of the settlement in light of those 
policies, see, Rios v. Enterprise Assn. Steamfitters, Local 638, 
501 F.2d 622, 628 n.4 (2d Cir. 1974), the clear policy in favor 
of encouraging settlements must also be taken into account, 
see Florida Trailer & Equipment Co. v. Deal, 284 F.2d 567, 
571 (5th Cir. 1960), particularly in an area where voluntary 
compliance by the parties over an extended period will 
contribute significantly toward ultimate achievement of 
statutory goals. Nor should we substitute our ideas of 
fairness for those of the district judge in the absence of 
evidence that he acted arbitrarily or failed to satisfy himself 
that the settlement agreement was equitable to all persons 
concerned and in the public interest, cf. United States v. 
Wood, Wire & Metal Lathers Inti. Union, Local No. 46, 471 
F.2d 408, 416 (2d Cir.), cert, denied, 412 U.S. 939, 93 S.Ct. 
2773, 37 L.Ed.2d 398 (1973), especially in a case like the 
present one where the settlement was approved and two 
hearings with respect to the fairness and adequacy of the 
proposed agreement. Furthermore, unlike appeals from 
decrees of the district court entered after trial on the basis 
of findings and conclusions where we may modify the terms

3Intervenor, in addition, suggests procedural infirmities on the 
Court’s approval of a plan to which he objected. It is difficult to think 
of a way in which appellant was denied procedural rights however, 
since Judge Pierce afforded him a hearing, and thoroughly considered 
his objections.



44a

of the decree, see, e.g., United, States v. Bethlehem Steel Corp., 
supra, we are powerless to rewrite the provisions of the 
settlement agreement. Our only alternative, if we concluded 
that Judge Pierce had abused his discretion, would be to set 
aside his approval of the settlement and remand the case for 
completion of the trial. United States v. Automobile 
Manufacturers Assn., 307 F. Supp. 617 (C.D. Calif.), affd,per 
curiam sub nom., City o f New York v. United States, 397 U.S. 
246, 90 S.Ct. 1105, 25 L.Ed.2d 280 (1970).

Although Larkin objects to the use of a 25% goal and 
to Judge Pierce’s conclusion that the minority make-up of 
the relevant part of the labor force is 30%, he does not 
suggest any alternative or more reliable figures as to the 
labor force, he merely calls the court’s figures "contrived." 
In contrast to his failure to provide any evidentiary support 
for his objections, the record reveals that, in concluding that 
the 25% goal was appropriate, Judge Pierce relied on 
population figures in the Department of Commerce’s 
publications, General Population Characteristics — 1970 
Census o f Population and General Social and Economic 
Characteristics, 1970 Census o f Population and took into 
account the relevant geographic area and demographic 
characteristics of those making up the news delivery work 
force. Thus, his conclusion, laid down in Rios v. Enterprise 
Assn. Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974), 
was adequately based.4

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

"Nothing contained in this subchapter shall 
be interpreted to require any employer, employment 
agency, labor organization, or joint labor- 
management committee subject to this subchapter to 
grant preferential treatment to any individual or to 
any group because of race color, religion, sex, or

(continued...)



45 a

Larkin’s argument that he is entitled to the same 
benefits as the minority workers must also be rejected. This 
case arises under a statute which by its terms is limited to 
protection against employment discrimination based on an 
individual’s race, color, religion, sex, or national origin." 42 
U.S.C. § 2000e-2(a)(l). Larkin does not allege 
discrimination against him based on any of these factors. He 
argued only that the industry’s part practices discriminated 
against all Group III members, minority and non-minority, 
and that while the settlement agreement remedies the 
discrimination against minority persons it fails to afford any 
relief for the harm caused to non-minority persons. Worse 
still, he asserts, the relief to minority persons is at the 
expense of the white Group III workers.

At first glance this argument has much appeal. As 
the district court recognized, Group III workers were the 
victims of some practices that were harmful to all Group III 4

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

It is well settled in this Circuit that this section does not preclude the 
use of racial hiring quotas to remedy the effects of past discrimination. 
R io s  v. E nterprise A ssn . S team fitters, L o c a l 638, su pra , 501 F.2d at 630- 
31; Vulcan S o cie ty  v. C ivil Serv. C o m m ., 490 F.2d 367 (2d Cir. 1973); 
U nited  S ta tes  v. W ood, Wire & M eta l L athers, supra .



46a

members, regardless of race. Minority members, on the 
other hand, were the targets of racial discrimination on the 
part of the virtually all-white Union. In this Title VII action 
we are limited to consideration of the fairness of relief 
directed only to the latter. The objective of Title VII is to 
"attack the scourge of racial discrimination" which has 
"caused manifold economic injuries, including drastically 
higher rates of unemployment and privation among racial 
minority groups." United States v. Wood, Wire & Metal 
Lathers Inti. Union, 341 F. Supp. 694, 699 (S.D.N.Y. 1972), 
affd. 471 F.2d 408 (2d Cir.), cert, denied, 412 U.S. 939, 93 
S.Ct. 2773, 37 L.Ed.2d 398 (1973). It creates no rights or 
benefits in favor of non-minority persons or groups. Any 
past denial of promotion rights to Larkin is clearly not 
remediable under Title VII. Indeed, Group III white 
workers have unsuccessfully sought relief for themselves 
under other statutes. It is thus apparent that Larkin has no 
right to any of the affirmative relief afforded to the minority 
groups, including the back pay provisions.5 Our review, 
therefore, must be limited to the question of whether the 
settlement agreement, in remedying minority discrimination, 
treats the intervenors fairly. See State of West Virginia v. 
Chas. Pfizer & Co., 440 F.2d 1079 (2d Cir.), cert, denied, 401 
U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971).

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

5U nited  S ta tes  v. R o a d w a y  Express, In c., 457 F.2d 654 (6th Cir. 
1972) relied on by the intervenor does not suggest otherwise. There 
the court was faced with a settlement agreement in which the union 
had agreed to give some benefits to white as well as minority non­
union workers. When white union members objected the court 
refused to invalidate the agreement. The case does not require that 
a settlement give equivalent benefits to minority and non-minority 
workers.



47a

major employers to Group I and for the filing of Group I 
openings by alternately promoting one minority worker and 
then one non-minority worker from Group III to Group I 
mean that a white Group III worker will advance to Group 
I less rapidly than would be possible if straight shop seniority 
were the basis of promotion. Indeed, a time will shortly 
come when minority persons not employed in the industry at 
all on the date when the agreement went into effect may 
achieve Group I status before many Group III whites with 
seniority. Although this feature of the agreement is not as 
beneficial to Larkin as would be promotion on the basis of 
straight non-minority regardless of race, the agreement 
nevertheless benefits Larkin. It presents him with an 
opportunity he never had before: the chance to move up to 
Group I, and eventually to a Regular Situation. Before, 
there was in effect no seniority system with respect to 
promotion into Group I. Thus any plan for advancement of 
Group III members to Group I could only be beneficial to 
Larkin. Approval of the plan can hardly be labelled as abuse 
of discretion because it does not advance Larkin as rapidly 
as minority persons with less seniority. A reasonable 
preference in favor of minority persons in order to remedy 
past discrimination injustices is permissible. See Rios v. 
Enterprise Assn. Steamfitters, 501 F.2d 622 (2d Cir. 1974).

Second, the agreement affects daily work priorities. 
Its provision that all present incumbent Group III minority 
workers shall move at once into Group I immediately drops 
Group III whites in daily priority by whatever number of 
minority workers of lesser seniority are added to the higher 
priority Group I. Furthermore, the one-to-one ratio for 
promotion thereafter of workers from Group III into Group 
I as openings in Group I become available means that an 
average non-minority Group III worker will not advance as 
quickly up the daily priority ladder within Group III as he 
would under straight raceless seniority. This results from the 
fact that, whenever two openings in Group I become 
available, one will be filled by a white worker senior to him



48a

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

The situation is even less favorable at the Daily News 
where for an initial period as each Group I opening (rather 
than two openings) becomes available, the employer will add 
one minority and one non-minority employee to Group I. 
The effect of the expansion of Group I to take in minority 
members of lesser seniority is likely to slow down the rate of 
advancement of non-minority persons within Group III more 
than under a one-for-one arrangement limited to an equal 
number of vacancies in Group I. Of course, in all cases once 
a Group III white employee reached Group I, he will move 
up in daily work priority (and priority for a Regular 
Situation) on the same basis as existed before the agreement.

Appellant characterizes these effects as "leap­
frogging" or "bumping" of incumbent white workers, see 
United States v. Bethlehem Steel Corporation, supra, 446 F.2d 
at 659, and argues that we have rejected other affirmative 
action programs having such an effect. It is true that we 
have suggested that court ordered relief involving minority 
employment goals be confined to entry level positions. Thus 
in Bridgeport Guardians, Inc. v. Bridgeport Civil Serv. Comm., 
482 F.2d 1333 (2d Cir. 1973), we upheld the imposition of 
racial hiring quotas at the patrolman’s level, the entry level 
of the police force, but rejected the use of such quotas for 
promotion to higher ranks. In United States v. Bethlehem 
Steel Corp., 446 F.2d 652 (2d Cir. 1971), we simply noted that 
minority transferees under the court’s order would be 
transferred into job vacancies created in the normal course 
of business and that no incumbent employee would be 
"bumped" out of his job. Id. at 664. In neither case did we 
specifically pass on the propriety or fairness of "bumping" an 
incumbent.

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



49a

any discrimination within the promotional system, the proof 
being limited to discrimination at the point of entry into the 
police force, i.e., in qualifying for the rank of patrolman. See 
482 F.2d at 1333-41. In the present case, on the other hand, 
there has been racial discrimination throughout the industry. 
Furthermore, even assuming the desirability of confining use 
of quotas to entry level positions, the effective point of entry 
into employment in the industry has been at Group I, not 
Group III. Judge Pierce found that "Group III workers do 
not have full-time employment, nor do many of them have 
great expectations or intentions of working full-time while 
they shape from the Group III list." It is true, as appellant 
points out, that both Group I and Group III workers must 
shape regularly and neither has assurance of regular work. 
But the fact remains that traditionally a worker who reached 
Group I was on the road to a Regular Situation, whereas 
one who was in Group III would not progress above that 
level.

Even assuming that "bumping" of incumbents from 
their present jobs is inadvisable in an affirmative hiring 
scheme, it is inaccurate to characterize Group III workers as 
having been "bumped." They have retained their position: 
they have not been delisted in favor of minorities. 
Moreover, we are not dealing with workers who have been 
steadily employed under conditions where seniority is 
synonymous with an assured job but with a fluctuating group 
of shapers competing for a limited amount of work that 
varies widely from day to day. Although some may have 
declined somewhat in their daily work priority, as Judge 
Pierce pointed out, the actual effect of this decline is difficult 
to gauge since the availability of work at a given shape 
depends on the stability of the total number of jobs available 
from shift to shift and whether or not the new person 
chooses to shape the same shift. In other words, assessing 
a shaper’s expectation is a highly speculative exercise." In 
addition, the number of minority workers promoted to 
Group I on the date the agreement became effective, which



50a

solely accounts for any decline in daily work priority, is quite 
small. Only 13 of 178 Group III members at the News were 
minority persons, 6 of 34 at the Times.

The impact of any dilution of daily work 
opportunities resulting from the settlement agreement is, 
furthermore, softened by the fact that all current Group III 
members will be elevated to Group I within a fairly short 
time. The News estimates that within a month after 
implementation of the plan all non-minority workers above 
47 on the Group III list will be elevated to Group I and that 
thereafter about 27 non-minority persons per year will be 
promoted from Group III to Group I. This suggests that any 
decline in daily work priority attributable to the promotion 
of presently incumbent minority workers to Group I will be 
offset for most workers by a rise in priority within Group III 
resulting from the expeditious upward movement of Group 
III whites, also made possible by the program. Finally, 
should some Group III workers have difficulty finding work, 
the agreement empowers the administrator to assure that any 
existing work opportunities in the industry be made available 
to those unable 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 
discrimination in the industry, more minority persons would 
have been able to enter Group III and to gain seniority over 
many whites within Group III. Thus, although Larkin has 
been the victim of a system which excluded Group III 
members, minority and white, from promotion to Group I, 
he may well have been the modest beneficiary, vis-a-vis the 
minority work force, of a policy that discouraged minority 
persons from entering Group III. To the extent that the 
settlement may cause a temporary decline in Group III white 
worker’s rate of promotion and daily work priority, it merely 
compensates for past discrimination by allowing a reasonable 
number of minority persons to be promoted to the "rightful 
place on the seniority ladder, which they would have



51a

occupied but for industry-wide racial discrimination.

In any event it must be recognized that rights of the 
kind Group III workers here assert "are not indefeasibly 
vested rights but mere expectations derived from a 
bargaining agreement and subject to modification." United 
States v. Bethlehem Steel Corp., supra, 446 F.2d at 663. Here 
appellant has applauded those modifications of the collective 
bargaining agreement that are favorable to him, such as the 
removal of the provision limiting Group I to former Regular 
Situation holders. Under the peculiar circumstances that 
have governed employment in this industry it does not strike 
us as unfair to impose certain modifications on the manner 
in which promotions or qualifications for daily work are 
determined. Job seniority need not be the only standard for 
determining promotions. Orders requiring that job vacancies 
be filled by means other than normal routes o internal 
promotion have been upheld as necessary to remedy past 
discrimination. Gates v. Georgia-Pacific Corp., 492 F.2d 292 
(9th Cir. 1974); cf. Allen v. City of Mobile, 331 F. Supp. 1134, 
1142-43 (S.D. Ala. 1971), aff’d. per curiam, 466 F.2d 122 (5th 
Cir. 1973), cert, denied, 412 U.S. 909, 93 S.Q. 2292, 36 
L.Ed.2d 975 (1973) (§ 1983 actions), and indeed, affirmative 
relief displacing white with greater seniority has been 
granted, see United States Sheet Metal Workers International 
Assn., Local 36, 416 F.2d 123, 133-34 (8th Cir. 1969).

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

FEINBERG, Circuit Judge (concurring)



52a

I concur in the result.

This case involves the difficult issue whether a hiring 
quota based upon race can be legally imposed under the 
Civil Rights Act of 1964 or the United States Constitution. 
In the past few years, this court has twice held that such 
quotas may be utilized to correct past discriminatory 
practices in public employment. Vulcan Society v. Civil 
Service Comm’n., 490 F.2d 387 (2d Cir. 1973) (firemen); 
Bridgeport Guardians,Inc. v. Civil Service Comm’n., 482 F.2d 
1333 (2d Cir. 1973), petition for cert, filed, 43 U.S.L.W. 3282 
(U.S. Nov. 11, 1974) (policemen). We have also permitted 
such remedial quotas in two cases in which the employment 
was in the private sector of the economy. Rios v. Enterprise 
Ass’n Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974); 
United States v. Wood, Wire & Metal Lathers, Local 46., 471 
F.2d 408 (2d Cir.), cert, denied, 412 U.S. 939, 93 S.Ct. 2773, 
37 L...Ed.2d 398 (1973).

Nevertheless, I believe a strong note of caution is 
called for and should be stated. In Rios, Judge Hays wrote 
a powerful dissent, arguing that section 703(j) of the Civil 
Rights Act, 42 U.S.C. § 2000e-2(j), bars the use of court- 
ordered racial hiring quotas.1 He distinguished our

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

(continued...)



53a

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

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

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

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



54a

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.



55a

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

United States District Court 
Southern District Of New York 

June 10, 1980

JOHN R. PATTERSON, et al, 

Plaintiffs,

v.

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

Defendants.

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION.

Plaintiff,

v.

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

Defendants,
JAMES LARKIN, et al.,

Intervenors.



56a

PIERCE: D.J.:

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

History o f Actions

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

By Memorandum Opinion and Order dated 
September 19, 1974, this Court approved the settlement 
agreement. Patterson v. Newspaper and Mail Deliverers’ 
Union of New York and Vicinity, [8 EPD 119736], 384 F. Supp. 
585 (S.D.N.Y. 1974). It was noted in that decision that the 
nepotistic membership policy of the defendant union prior to 
1952 had resulted in discrimination against minority 
applicants, since few, if any, members of the union were 
from minority groups. Id. at 589. Indeed, as stated by the 
Court of Appeals for the Second Circuit on review of the 
aforesaid decision, "[historically the Union has excluded



57a

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

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

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

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



58a

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

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

Motion for Further Relief and 

Modification of Agreement

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



59a

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

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

Both the EEOC and the Interim Administrator have 
responded to the proposed plan in compliance with the 
request of this Court. The EEOC has indicated that it will 
not function as a substitute for the Administrator. It is 
prepared, however, to assume a role in three areas formerly 
filled by the Administrator. It will initially process 
complaints through its "Rapid Charge Processing System." 
It will also forward all claims to the employers and the union 
for voluntary resolution or to the Adjustment Board for 
arbitration. The EEOC will also monitor the periodic 
reports from the defendants which have been monitored in 
the past by the Administrator. See Settlement Agreement 11 
7 at p. 5. The statement by the EEOC regarding the extent 
to which it will be able to participate in the implementation 
of the settlement agreement is consistent with the plan 
proposed by the defendant/movants.

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



60a

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

Discussion

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

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



61a

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

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

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

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



62a

June 11, 1975.

So Ordered.



63a

No. 73-Civ. 3058 (WCC) 
No. 73-Civ. 4278 

Filed December 15, 1986

United States District Court 
Southern District of New York

JOHN R. PATTERSON, et seq., 

Plaintiffs,

v.

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

Defendants.

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION

Plaintiff,

v.

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

Defendants.



64a

CONNER, D.J.:

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

On September 19,1974, then-District Judge Lawrence 
W. Pierce issued an opinion and order approving a 
settlement between the parties. Patterson v. Newspaper & 
Mail Delivers’ Union, [8 EPD If 9736), 384 F. Supp. 585 
(S.D.N.Y. 1974), aff’d [9 EPD U 10,033], 514 F,2d 767 (2d 
Cir. 1976), cert, denied [12 EPD 11 11,008], 427 U.S. 911 
(1976). The settlement agreement provided that all 
defendants would be "permanently enjoined from engaging 
in any act or practice which has the purpose or the effect of 
discriminating against any individual or class of individuals 
on the basis of race, color or national origin." Settlement 
Agreement 1111 1,2. The Union was required to "receive and 
process applications for membership, admit members, handle 
grievances and otherwise administer all of the affairs of the 
NMDU so as to ensure that no individual represented by it 
is excluded from equal advancement, on the basis of race, 
color or national origin." Id. If 1. The employers agreed not 
to "fail or refuse to hire for employment any [individual in 
their bargaining unit represented by the union], [or to] take 
any other action which would deprive any such individual of



65a

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

In addition, the settlement agreement included an 
affirmative action program that set a minimum goal of 25% 
minority employment in Regular Situation and group 
positions in the industry by June 1, 1979. Id. H 7. In an 
order dated June 10, 1980, Judge Pierce extended the 
consent decree for another five-year period because the goal 
of 25% minority employment had not been reached. Now 
the Administrator and defendants report that the goal has 
been reached.

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

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

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



66a

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

At the February hearing, the only issue before the 
Court will be whether the consent decree should be 
terminated with respect to some or all of the defendants.1 
The hearing will not be for the purposes plaintiff has 
suggested: i.e., to determine whether defendants have 
violated Title VII of the Civil Rights Act of 1964 or the 
consent decree. If plaintiffs believe that defendants have 
violated the consent decree, they should apply to the 
Administrator for relief pursuant to the decree.2 If they 
believe that the decree was insufficient to end discrimination 
in the industry, they must bring a new action for the relief 
they seek. This Court cannot grant such relief by modifying 
the consent decree.

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

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

2Under the terms of the settlement, the Court’s role is limited to 
review of decisions by the Administrator where timely objection is 
made in writing. The express terms of the decree provide that alleged 
violations of the decree are to be brought before the Administrator. 
Any questions of discovery related to such claims should also be 
brought before the Administrator in the context of those proceedings.



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

67a

So Ordered.



68a

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

United States District Court 
Southern District of New York

March 15, 1988

JOHN E. PATTERSON, et al, . 

Plaintiffs, 

v.

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

Defendants.

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,

Plaintiff.

v.

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

Defendants.

CONNER, D.J.

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



69a

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

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

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

I. Background

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



70a

that no individual represented by it is excluded from equal 
work opportunities including overtime and advancement, on 
the basis of race, color or national origin." Id. 11 1. The 
employers agreed not to deny employment to individuals in 
the bargaining units represented by the Union, or to deprive 
such individuals of equal employment opportunities, or 
otherwise adversely affect their status as employees or 
applicants for employment because of their race, color or 
national origin. Id. 112.

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

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

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



71a

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

The affirmative action program incorporated in the 
settlement agreement was designed to correct this 
discrimination by modifying the group system. The program 
eliminates the contract provision that the restricted group I 
to former regular situation holders, and provides for the 
orderly flow of group III shapers into group I, and from 
there into regular situations. The agreement mandates that 
for each non-minority group III member elevated to group 
I, a minority group III member must also be elevated. 
Settlement Agreement, 111. In addition, for every two non­
minority persons added to the group III list, three minority 
persons must be added. Id. at 1115. Regular situations are 
filled as they become available by advancing the most senior 
group I member, without regard to race, color or national 
origin. Id. at U 10(c). The goal of the affirmative action 
program is 25% minority employment in the bargaining unit 
throughout the industry. Id. at 11 7.

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

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



72a

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

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

II. Discussion

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

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



73a

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

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

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

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



74a

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

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

III. Conclusion

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

So Ordered.



75a

JOHN E. PATTERSON, et al, 
Plaintiffs

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

Defendants.

In the Matter of the Group III List of 
THE NEW YORK TIMES, pursuant to the 

terms of the Settlement Agreement. 
U.S.D.C., S.D.N.Y.

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

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

OPINION AND ORDER

WILLIAM C. CONNER, District Judge.

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



76a

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

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

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

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

Pursuant to the Settlement Agreement, plaintiffs seek



77a

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

BACKGROUND

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

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

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



78a

approximately 175 names effective August 15, 1985.1 A 
minority person was placed into every fourth position on the 
new list. Prior to the issuance of the Preliminary Group III 
list, the Group III list of the Times had rarely been greater 
than 40 employees.2

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

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

1 The Adjustment Board is provided for in the collective 
bargaining agreement. It is composed of two Times and two NMDU  
representatives.

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



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transcript later, in July 1988.

The Administrator’s Findings

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

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

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

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

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

3 This term means that for every five employees added to the 
Group III list, three were to be minorities and two were to be non­
minorities.

Paragraph 15 provides in relevant part:
Defendant employers shall offer positions available 
... on the basis of three (3) minority employees for 
every two (2) other employees.



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

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

The testimony given before the Administrator 
indicated to him that the method by which an applicant 
applied for placement on the Preliminary Group III list was 
to give a slip of paper with the name and social security 
number of the applicant to a foreman or a union official.4 
These slips of paper were collected and treated by the 
Adjustment Board as applications for Group III. The 
testimony of various officials who handled these applications 
indicated that at times no one was sure who was keeping 
them or where they were being kept. This method of 
submitting applications for placement on Group III is not set 
forth in any official document of either the Times or the 
NMDU or in the Settlement Agreement.

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

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



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

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

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

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

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



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to offlist hiring.5

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

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

Remedies

In light of his findings of fact and conclusions of law 
the Administrator prepared a Group I list on a one-to-one 
basis, consisting of 48 minorities and 48 non-minorities and 
a Group III list, as of September, 1985.6 The Administrator 
also awarded back pay to those claimants whom he found to 
have proved individual claims of discrimination with regard 
to the creation of the Preliminary Group III list. The back 
pay award covered the period from the date of the issuance 
of the Preliminary Group III list to November 30, 1988, the

5The Administrator concluded that the plaintiffs failed to prove 
that there was a pattern and practice of intentional discrimination and 
that the new list had an adverse impact. Administrator’s 
Determination at 59.

6In the fall of 1988, the Administrator applied to the Court for 
permission to issue an Interim Group I list due to delays in the 
resolution of Claim 186. The court granted the application by an 
order dated November 30, 1988 in Claim 229. An Interim Group I 
list was issued soon thereafter.



83a

date on which the Interim Group I list was issued.7

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

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

DISCUSSION

The Agreement provides the Administrator with 
broad authority to take all actions he deems necessary to 
implement the provisions and to ensure the performance of 
the Order. It further provides that the Administrator shall 
hear and determine a wide variety of claims arising under 
the Agreement, which may then be brought before the Court 
for review. Agreement 11 4.

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

7Back pay was to include benefits, vacation pay, pension 
contributions, and interest on any back pay award.



84a

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

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

Paragraph 29 provides in pertinent part:

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



85a

report concerning said applications.

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

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

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



86a

of the authority given to him by the Settlement Agreement, 
it is obvious that he did not act hastily or without having 
access to all of the relevant facts. While it may be argued 
that these findings do not represent the only set of 
conclusions which the evidence might have supported, I find 
them to be reasonable and not capricious, arbitrary, or 
manifestly unfair and therefore affirm that portion of the 
Administrator’s Determination finding intentional 
discrimination against all claimants in offlist hiring and 
against eighteen claimants in the creation of the Preliminary 
Group III list.8

*  *  *

Remedies

As the Times notes, "the formation of these lists is 
not a simple task." Times Brief at 17. This Court concurs 
and finds that in crafting the Second Revised Interim Group 
I list in March 199o, the Administrator reconstructed as 
closely as possible the status that successful claimants would 
have held if the Settlement Agreement had not been violated 
and racial discrimination had not occurred. Those persons 
heretofore on the Second Revised Interim Group I list at the 
Times shall be considered hereafter members of Group I. 
The Union is directed to issue Union cards to all of the 
employees on Group I. The Union is directed to give 
priority numbers to the first one-fourth of the Group I list as 
if they had been inducted on September 1, 1986, and to the 
second half of the Group I list as if they had been inducted 
on September 1, 1988.

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

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



87a

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

It is clear that the parties to the Settlement 
Agreement intended the Consent Decree to subsume alleged 
violations of Title VII.9 This is borne out by the language 
of the Settlement Agreement providing:

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

9The provisions of the Settlement Agreement do not indicate that 
plaintiffs w aived  their Title VII rights by agreeing to submit Title VII 
claims (of the type contemplated by the Consent Decree) to the 
Administrator. On the contrary, submission of such grievances is the 
functional equivalent of a plenary lawsuit, since compliance with the 
Consent Decree is tantamount to compliance with Title VI. 
Settlement Agreement 11 42. Moreover, appeals from the 
determinations of the Administrtor are heard in this Court.



88a

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

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

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

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

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



89a

Administrator for relief pursuant to the Consent Decree. 
Paragraph 42 provides that compliance with the Settlement 
Agreement in compliance with Title VII and accords a res 
judicata effect to the all issues of law and fact and matters of 
relief resolved by the Administrator.10 Retroactive seniority 
and back pay are routinely awarded to victims of racial 
discrimination in violation of Title VII. The Settlement 
Agreement cannot afford complainants fewer types of relief 
than are available through Title VII litigation. To hold 
otherwise would deprive complaints under the Settlement 
Agreement of the remedies available to them through Title 
VII litigation. Accordingly, this Court concludes that the 
Settlement Agreement, while not explicitly authorizing the 
Administrator to award back pay, does not proscribe the 
award of back pay.

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

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



90a

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

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

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

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

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

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



91a

of The Times and the NMDU.11

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

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

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

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



92a

CONCLUSION

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

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

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

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

SO ORDERED



93a

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

United States District Court 
S.D. New York.

JOHN E. PATTERSON, et al., 

Plaintiffs,

v.

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

Defendants.

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,

Plaintiff,

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

Defendants.

September 30, 1991.

OPINION AND ORDER

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



94a

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

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

BACKGROUND

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



95a

personnel and resources... in a good faith effort to maximize 
employment opportunities in the bargaining units in the 
industry represented by the NMDU." See Settlement 
Agreement at 11 8. The Decree provided, as the means for 
achieving this 25% goal, an Affirmative Action program 
setting specified ratios for the employment and advancement 
of minority persons.

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

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

The Affirmative Action program eliminates the 
contract provisions that restricted Group I to former regular 
situation holders, and provides for the orderly flow in Group 
III shapers into Group I, and from there into regular 
situations. The agreement mandates that for each non­
minority Group III member elevated to Group I, a minority 
Group III member must also be elevated. Settlement 
Agreement at H 11. In addition, for every two non-minority 
persons added to the Group III list, three minority persons 
must be added. Id. at 11 15. Regular situations are filled as 
they become available by advancing the most senior Group 
I member without regard to race, color, or national origin. 
Id. at H 10(c).

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



96a

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

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

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

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



97a

the industry as a whole.

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

DISCUSSION

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

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



98a

arguments.2

The LDF argues that defendants have not proved 
with admissible evidence that a 25% minority representation 
has been reached. Moreover, the LDF has stated that it 
would object to any motion for entry of the Compliance 
Reports into evidence as the submissions are 
"overwhelmingly unverified, self-serving hearsay, 
unsupported, and unreliable."3 Thirteen of the fourteen 
employer submissions are unsworn. The Administrator has 
not placed in evidence an affidavit verifying the information 
contained in the compliance reports on the basis of his 
examination of those reports and independent investigation.

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

CONCLUSION

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

2LDF argues that it was unable to undertake a complete analysis 
of the unverified information contained in those documents since it 
only received the documents in the early evening of September 10, 
1991, four days before the dead line to file it surreply.

3The LDF also objects to entry and consideration of the 
Administrator’s Report as it is alleged to be based on wholly 
unverified data.



99a

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

SO ORDERED.



100a

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

United States District Court 
S.D. New York.

JOHN E. PATTERSON, et al., 

Plaintiffs,

v.

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

Defendants.

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,

Plaintiff,

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

Defendants.

July 8, 1992.

OPINION AND ORDER

WILLIAM C. CONNER, District Judge.

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



101a

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

On September 19,1974, then-District Judge Lawrence 
W. Pierce issued an opinion and order approving a 
settlement between the parties and incorporating the 
Settlement Agreement in a Consent Decree, familiarity with 
which is presumed.1 See Patterson v. Newspaper and Mail 
Deliverers’ Union, 384 F.Supp. 585 (S.D.N.Y. 1974), aff’d, 514 
F.2d 767 (2d Cir. 1975), cert, denied, 427 U.S. 911, 96 S.Ct. 
3198, 49 L.Ed.2d 1203 (1976).

The Settlement Agreement established a goal of 25% 
minority employment in the industry within NMDU 
bargaining units. See Settlement Agreement at 11 7. That 
"goal" was defined as "not an inflexible quota but an 
objective to be achieved by the mobilization of available 
personnel and resources . . .  in a good faith effort to 
maximize employment opportunities for minorities in the 
bargaining units in the industry represented by NMDU." See 
Settlement Agreement at 1! 8. To achieve this goal the 
Settlement Agreement implements an affirmative action 
program which modifies the hiring procedures for newspaper 
deliverers under the industry-wide collective bargaining

The Settlement Agreement is divided into four sections: 
Equitable Relief (1111 1-2), The Administrator (1111 3-6), Affirmative 
Action Program (HU 7-27), and General Provisions (HH 28-42).



102a

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

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

The Settlement Agreement provides for the orderly 
flow of Group III shapers into Group I, and from there, into 
regular situations. The Agreement mandates that for each 
non-minority Group III member elevated to Group I, a 
minority Group III member must also be elevated. 
Moreover, the Agreement requires that for every two non­
minority persons added to the Group III list, three minority 
persons must be added. Through this process, it was 
intended that the proportion of minority workers in the 
industry would increase to the 25% goal by June 1979. See 
Settlement Agreement 111! 11, 12, 15. When that goal was 
not reached by the specified date, the relevant provisions 
were extended and later extended again.

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

BACKGROUND

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



103a

Order and Judgment in this matter dated October 24, 1974, 
and Rule 60(b), Fed.R.Civ.P., to vacate or modify said Final 
Order and Judgment on the grounds that (1) the terms of 
the Final Order and Judgment have been satisfied; and (2) 
relief therefrom is justified under present circumstances.2 
On February 23, 1987, the Court held a hearing to consider 
defendants’ motion to terminate the Settlement Agreement. 
At the conclusion of the hearing, the Court ruled from the 
bench that notwithstanding that some employers had reached 
or exceeded the 25% figure within their respective 
operations, the goal to be realized was "25% minority 
employment in the industry." See Hearing Transcript at 125. 
Accordingly, this Court deferred its decision on the motion 
to terminate the Decree until defendants could produce 
sufficient evidence to demonstrate that minority employment 
in the bargaining unit had reached 25% throughout the 
industry as a whole.3

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

2 On or about April 23, 1985, New York News Inc., the then- 
publisher of the New York D a ily  N ew s, made a similar motion.

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



104a

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

On November 27, 1991, the Administrator provided 
the Court with a declaration under the penalty of perjury, in 
accordance with 28 U.S.C. § 1746, from each of the 
defendant companies, through an authorized agent, to the 
effect that the compliance reports consisted of and/or were 
based upon corporate business records.4 Plaintiffs never 
availed themselves of the opportunity to conduct discovery 
of the defendant companies with respect to their compliance

4 The statements provided the Court on November 27, 1991 
affirm the accuracy of the compliance reports. LD Fs argument that 
no credence can be accorded to what it asserts are "unsworn" 
statements is unpersuasive. Defendants’ statements affirming the 
accuracy of the compliance reports are declarations subscribed to 
under the penalty of perjury. By the plain terms of 28 U.S.C. § 1746, 
such statements are the equivalent of a sworn affidavit, having "like 
force and effect." Accordingly, in prescribing this verification 
procedure, the Administrator has established a sufficient basis for the 
compliance reports to be admitted into evidence and relied upon by 
the Court.



105a

reports.3 * 5 On April 2, 1992, Interim Administrator Ellis 
circulated a letter in which he indicated that the LDF did 
"not intend to conduct any further investigation concerning 
the compliance reports." The Interim Administrator’s letter 
makes no reference to any request by the LDF for an 
evidentiary hearing concerning the validity of the compliance 
reports. On April 7, 1992, the Court restored the pending 
motion to modify or vacate the Patterson Consent Decree to 
its calendar for consideration.

This matter is presently before the Court on the 
motion of defendants Times, Maxwell Newspapers, Inc. 
("Maxwell"), New York Post ("Post"), and the NMDU 
pursuant to paragraph 7 of the Consent Decree6 and Rule 
60(b), Fed.R.Civ.P.,7 to vacate or modify the Consent 
Decree. For the reasons discussed below defendants’ motion

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

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

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

On motion and upon such terms as are just, the court may 
relieve a party or a party’s legal representative from a final 
judgment, order, or proceeding for the following reasons: . 
. . (5) the judgment has been satisfied, released, or 
discharged, or a prior judgment upon which it is based has 
been reversed or otherwise vacated, or it is no longer 
equitable that the judgment should have prospective 
application; or (6) any other reason justifying relief from the 
operation of the judgment.



106a

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

DISCUSSION

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

Applicable Legal Standard

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

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



107a

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

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

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



108a

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

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

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

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

112 S.Ct. at 758.

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



109a

vestiges of racial discrimination in the industry had been 
removed. As stated in the Consent Decree, the attainment 
of 25% minority employment industry-wide was the standard 
established for measuring compliance with this objective. 
Since the Patterson Consent Decree "involve[s] the 
supervision of changing conduct or conditions," see Swift, 286 
U.S. at 114, 52 S.Ct. at 462, the Court concludes that the 
more rigid standard set forth in Swift is inapplicable and that 
the more flexible standard of demonstrating satisfaction of 
the Decree’s purposes applies to the decision of whether to 
terminate or modify the Consent Decree.8

8Moreover, as the Supreme Court has noted, the strict standard 
for modification or vacation of a consent decree announced in Sw ift 
should not be read out of context: the Sw ift consent decree evolved 
out of a prolonged antitrust battle between the Government and the 
meat-packing industry. See R u fo , 112 S.Ct. at 757. The Supreme 
Court, as well as lower federal courts, have distinguished Sw ift from 
cases arising in an institutional reform setting. Indeed, the Second 
Circuit has explained that where a decree is the product of 
institutional reform, an application for the modification of such decree 
"should . . .  be viewed with generosity," and modified with "rather a 
free hand." N e w  Y ork S ta te  A s s ’n fo r  R etarded  C hildren, 706 F.2d at 
970-71.

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



110a

Motion to Modify or Vacate the Consent Decree.

The Administrator’s statistical complication of 
September 17, 1991, which is drawn from the compliance 
reports, establishes that approximately seven months age 
minority representation among regular situation and Group 
I personnel industry-wide was 27,97%. See Letter of Interim 
Administrator Ellis to the Court, dated Sept. 17, 1991. 
Subsequent reports show that this level of minority 
employment has been maintained.9 As the Court has often 
noted, minority representation in the membership of NMDU 
in the newspaper industry in metropolitan Nw York was less 
than 1% when the Consent Decree was issued in 1974. The 
present employment statistics indicate that the pervasive 
discrimination which caused the near total absence of 
minority opportunities in 1974 has vanished. The stated 
objective of the affirmative action program set forth in the 
Consent Decree— 25% minority employment industry­
wide— has been achieved. The structure put in place in 
1974 to achieve that end is now an unnecessary and 
expensive relic, and ought to be retired.10

9The latest revised Quarterly Report of the Administrator, 
submitted May 26, 1992, indicates that minority representation in the 
industry represented by the NMDU was 27.78% as of March 30, 1992.

10The Court agrees with the Times that a foundation is now in 
place which suggests that minority representation in the industry will 
continue to increase, notwithstanding vacation of the Consent Decree, 
because of a "carryover" effect resulting from concentration of 
minorities in lower seniority positions on regular situation and Group 
I lists, coupled with increased voluntary attrition through retirement 
of more senior, predominantly non-minority NMDU personnel. For 
example, the Administrator’s Report, dated September 9, 1991, 
demonstrates that while minorities hold only 11 of the first 100 
positions on the Times’ regular situation list, minority presence 
increases dramatically thereafter, minorities hold 45 of the positions 
numbered 100 through 199; 39 of the positions numbered 200 through

(continued...)



111a

The LDF argues that the Consent Decree must 
continue in effect since it contains no expiration date 
applicable to its substantive provisions. Accordingly, the 
LDF contends that the parties intended the Consent Decree 
"to remain in force indefinitely" pending a judicial finding 
that "every facet" of defendants’ operations is free of 
discrimination. LDF Memo., dated June 27, 1991, at 22. 
The LDF further submits that such a showing cannot be 
made at this time and, therefore, that the Consent Decree 
should remain in force with an Administrator at its helm for 
another five years.

The parties to the Settlement Agreement could not 
have intended that the Affirmative Action program and the 
Administrator provisions would be of infinite duration. 
Rather, it is clear that those provisions were to remain in 
place only as long as necessary to effectuate the goal of 25% 
minority employment in the industry represented by the 
NMDU. This intent is evidenced by the language of the 
settlement Agreement itself. For example, the Settlement 
Agreement specifically states that: 10

10(... continued)
299; and 22 of the positions numbered 300 through 367. In addition, 
roughly 50% of the tunes’ Group I list is comprised of minorities, the 
situation at other employers is similar. Accordingly, the posture in 
which the Consent Decree leaves these lists virtually ensures, via 
retirements, deaths, buyouts, and attrition, increased minority 
presence in the industry after the Decree is vacated.

The fact that there are pending or completed proposals by the 
Times and Imperial Delivery Service, Inc. ("IDS") to purchase the 
assets of several defendant companies—whereby "28% of the regular 
situation and Group I positions covered by the Consent Decree will 
be under new ownership" ("Times Supp. Memo., dated may 1, 1992, 
at 7)— does not prevent the Court from concluding that the parties 
have shown compliance with the goal of 25% minority representation 
industry-wide. Indeed, it is likely that the buyouts offered employees 
in conjunction with these transactions will be exercised by many more 
senior employees, thereby accelerating minority movement up the lists.



112a

Any terms and provisions of any collective bargaining 
agreements between NMDU and any defendant 
employer which have been suspended by operation of 
the Order may be put into effect when the Order 
terminates, unless this Court orders otherwise.

Settlement Agreement at 1133 (emphasis added.) Similarly, 
the Settlement Agreement did not intend that the 
Administrator’s functions would continue indefinitely:

The Administrator designated by the Court shall 
remain in office for an initial period of five (5) years 
after the date of entry of the Order ... and he or his 
successor thereafter shall remain in office if and for 
such time as the court may direct.

Id. at 11 6 (emphasis added).

The affirmative action plan embodied in the Patterson 
Consent Decree, like that approved by the Supreme Court 
in United Steelworkers of America v. Weber, 443 U.S. 193, 209, 
99 S.Ct. 2721, 2730, 61 L.Ed.2d 480 (1979), was "not 
intended to maintain racial balance but simply to eliminate 
a manifest racial imbalance." To maintain the temporary 
affirmative action provisions provided for in the Settlement 
Agreement after they have served their stated purpose would 
not only be beyond the intent of the parties but would also 
infringe on the legitimate expectations of non-minority 
employees. In EEOC v. Local 638 ... Local 28 of Sheet Metal 
Workers’ Int’l Ass’n, 753 F.2d 1172, 1186-87 (2d Cir. 1985), 
A ff’d, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986), 
the Second Circuit, following the Supreme Court’s decision 
in United Steelworkers of America v. Weber, held that "a 
temporary, race-conscious affirmative action remedy such as 
a membership goal" lasts "only until the effects of the past 
discrimination have been eliminated...." The purpose of the 
Consent Decree in the instant matter has been achieved— 
the 25% goal agreed to by all parties to the Patterson action 
with the intention of eliminating the effects of past



113a

discrimination has been attained. The time has come for this 
Court to vacate the Consent Decree and allow the industry 
to self regulate subject, of course, to the laws preventing 
racial discrimination.11

The LDF’s Request for a Hearing

The LDF argues that the Court may not terminate or 
modify the Consent Decree without a full evidentiary 
hearing. The LDF requests a hearing so that it may prove: 
(1) that the industry has committed numerous discriminatory 
acts and violations of the Settlement Agreement, even during 
the period while the motions to terminate were pending; (2) 
that the industry is not capable of self-policing; (3) that 
racial discrimination will escalate if the office of the 
Administrator is eliminated or other protections afforded by 
the Settlement Agreement are removed; (4) that' an 
Administrator is desperately needed to protect the rights of 
minority workers and applicants; (5) that the labor market 
for jobs within the jurisdiction of the NMDU is now well 
over 50% minority and (6) that hiring ratios are still needed 
in order to prevent massive racial discrimination in hiring. 
LDF Memo., dated June 27, 1991, at 18-19.

Such a hearing, however, is neither required nor 
necessary. In the instant case, the Administrator, as well as 
the Court, has monitored compliance with the Settlement 
Agreement since its inception. With respect to the instant 
motion to vacate or terminate the Consent Decree, the 
parties have presented extensive arguments to this Court in

“Moreover, the Court notes that the parties, in entering into the 
Consent Decree, could not have intended that defendants should be 
bound for all eternity to incur the expenses attendant to maintaining 
the office of the Administrator. Those expenses have been substantial 
—  for example, the Administrator’s fees and expenses for the period 
January 1975 through March 1985 totalled $575,773. See Aff. of 
Richard J. Jordan, Esq., Director of Labor Relations of the News, at 
H 11 (annexed to News Memo., dated April 23, 1985).



114a

various motion papers, at a conference held on May 30, 
1991, and at a hearing held on February 23, 1987. There is, 
accordingly, a vast evidentiary foundation—both statistical 
and experiential—which this Court may explore in order to 
decide whether vacation of the Decree is appropriate.

Even assuming arguendo, the LDF’s proposition that 
defendants have continued to violate the Consent Decree 
and that discrimination remains prevalent in the industry, 
such arguments are not relevant to defendants’ application 
for vacation of the Consent Decree.12 As this Court has 
stated previously:

12Similarly irrelevant is the LD Fs argument that 25% minority 
employment is not longer the appropriate goal given the current 
relevant labor market. In effect, the LDF asks the Court to ignore 
the bargained for goals as set forth in the Settlement Agreement— a 
goal negotiated by the parties and approved by the Court— simply 
because the goal was not achieved as of June 1, 1979. This the Court 
will not do. Although the parties set June 1, 1979 as a target date for 
attainment of the goal, in the event that the goal was not reached by 
June 1, the Settlement Agreement provides for the reappointment of 
an Administrator by this Court beyond that period. Surely, had the 
parties intended the goal to vary depending on the labor market pool 
in a particular year, they would have drafted an agreement to that 
effect.

LDF cites Y ou n gb lood  v. D alze ll, 925 F.2d 954 (6th Cir. 1991), 
in which the Sixth Circuit reversed the District Court su a  sp o n te  
termination of a consent decree and ordered the lower court to 
consider the possibility that the city’s racial composition had changed 
to much since the date the decree was executed that the original 
hiring goal was obsolete. LDFs reliance on this case is misplaced. 
The consent decree there specifically directed the defendants to 
achieve minority representation in the work force consistent with 
minority representation in the relevant labor market. 925 F.2d at 956. 
Although a numerical minimum also was stated, the labor market 
"party" language in the decree furnished a basis for the conclusion that 
the minority goal fluctuates with changes in the labor market. No 
comparable language that would warrant a similar conclusion is 
present in the P atterson  Consent Decree.



115a

The hearing will not be for the purposes plaintiff has 
suggested: i.e. to determine whether defendants have 
violated Title VII of the Civil rights Act of 1964 or 
the consent decree. If plaintiffs believe that 
defendants have violated the consent decree, they 
should apply to the Administrator for relief pursuant 
to the decree. If they believe that the decree was 
insufficient to end discrimination in the industry, they 
must bring a new action for the relief they seek. This 
Court cannot grant such relief by modifying the 
consent decree.

Patterson v. NMDU, 42 Empl. Prac. Dec. H 36,722, at 45,281, 
1986 WL 14976 (S.D.N.Y., December 15, 1986). The Court 
granted the LDF an opportunity to request an evidentiary 
hearing before the Administrator on the only fact relevant to 
the issue of whether to terminate the Consent Decree -- 
whether the 25% minority employment goal as been 
achieved. The LDF did not avail itself of that opportunity 
for over six months and cannot be heard to complain now.

To the extent that the LDF feels that discrimination 
in the industry continues, despite the attainment of the 25% 
goal, it is free to bring a new action for the relief it seeks. 
Indeed, if discrimination is as rampant as the LDF asserts 
after eighteen years of the Consent Decree, it would be 
manifest that the Decree has been "insufficient to end 
discrimination in the industry" and that the LDF should, 
consistent with the Court’s ruling, "bring a new action for the 
relief [it] seek[s]."13 Id. Because new suits may be directed

13Title VII channels are open to any potential complainants. In 
addition, since 1987 the NMDU labor contracts have routinely 
included an anti-discrimination clause. As a result, minority 
employees throughout the industry can assert and pursue grievances 
arising from their employers’ or the Union’s asserted discriminatory 
conduct through the NMDU labor contracts’s grievance procedure. 
Failure on the part of the Union to properly represent a grievant in

(continued...)



116a

against the NMDU alone or particular employers, enterprises 
that have achieved substantial minority presence in their 
work forces and police themselves in other relevant respects 
need not be entangled in such litigation.

Plaintiffs’ Request that Certain Provisions be Retained

The Times argues that the termination provisions of 
Paragraph 7, which provide the basis for extinguishing the 
Affirmative Action program, also apply to the remainder of 
the Consent Decree. The Times argues, therefore, that the 
Consent Decree must be vacated in its entirety. Both the 
EEOC and the LDF argue that each of the sections of the 
Settlement Agreement is independent and consequently, 
paragraphs 15, 17, 20, 21, 28, 29, 30, 33, and 41 should be 
retained, either in part or in their entirety, irrespective of the 
disposition of the other parts of the Settlement Agreement. 
See EEOC Memo., dated June 27, 1991, at 15-21; LDF 
Memo., dated June 27, 1991, at 34-37. Nothing in the 
Settlement Agreement, however, supports, this type of cut 
and paste approach. The Settlement Agreement is one 
cohesive document the goal of which was to increase 
minority employment in the industry to 25%. The 
Agreement created the mechanism by which to reach that 
goal. Again, the parties to the Consent Decree could not 
have envisioned that jurisdiction however would be retained 
indefinitely so as to establishing, in effect,a permanent 
system of court supervision of the industry—an ongoing 
burden of perhaps endless duration that should not be within 
the Court’s ambit.

The Court, cannot agree with the argument of the 
EEOC that retention of certain of these provisions is 13

13(...continued)
such matters would permit the grievant to file charges with the 
National Labor Relations Board. Thus, an aggrieved employee also 
has the grievance and arbitration mechanism of the Collective 
Bargaining Agreement in the event a claim of discrimination arises.



117a

necessary since the purpose of the consent decree extends 
beyond the goal of 25% minority employment to remedying 
and preventing nepotism, cronyism and word-of-mouth 
hiring. EEOC Reply Memo., dated aug. 19, 1991, at 4-9. 
The Settlement Agreement was obtained by the EEOC in 
the enforcement of Title VII with the express purpose of 
remedying and preventing race discrimination in the industry. 
Unless there is disparate impact on minority persons, 
nepotistic practices do not furnish the basis for finding a 
violation of Title VII. See, e.g., Scott v. Pacific Maritime 
Ass’n. 695 F.2d 1199, 1205-07 (9th Cir. 1980) (no violation of 
Title VII based on racial discrimination where plaintiffs 
failed to make prima facie showing of disparate impact in 
operation of union’s permissive rule, providing that the son 
or daughter of a deceased longshoreman or clerk is to be 
granted Class B registration if he or she is the sole support 
of the deceased’s widow and over the age of 18 years). 
Because minorities are not now underrepresented in the 
industry, nepotistic practices could, if they existed, advantage 
minority persons as much as non-minorities. The objective 
of the Consent Decree was the elimination of minority 
underprepresentation in the industry, and no more. Since 
the 25% goal has been attained, the Decree has served its 
purpose, and its vacation, consistent with the intent which 
accompanied its entry, is appropriate.

Nor is the retention of paragraphs 1 and 2 of the 
Settlement Agreement justified, those paragraphs parallel 
federal law and prohibit discrimination against individuals on 
the basis of race, color, or national origin. While it is true 
that paragraphs 1 and 2 purport to enjoin defendants 
"permanently," the enforceability of these provisions is 
qualified. Both begin with the phrase "[sjubject to the 
provisions herein." Accordingly, defendants are permanently 
enjoined from committing discriminatory acts "subject to" the 
other provisions of the Consent Decree. The only intelligible 
construction of this "subject to" language is that the non­
discrimination provisions are binding upon defendants as



118a

long as the Consent Decree remains in effect—in other 
words, until the Court determines that the Consent Decree 
is no longer needed. In any event, paragraphs 1 and 2 do no 
more than prohibit conduct that is already prohibited by 
Title VII. Given this redundancy, there is no point in 
continuing those provisions after the remainder of the 
Consent Decree has been terminated."14

The fact that paragraphs 1 and 2 are designated 
"permanent" is not a proscription against their termination. 
As the Supreme Court noted in Milk Wagon Drivers Union, 
Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 298, 61 
S.Ct. 552, 557, 85 L.Ed. 836 (1941):

The Injunction which we sustain is "permanent" only 
for the temporary period for which it may last. It is 
justified only by the [the circumstances] that induced 
it and only so long as it counteracts [those 
circumstances]. Familiar equity procedure assures 
opportunity for modifying or vacating an injunction 
when its continuance is no longer warranted.

Thus, the term "permanent" does not mean irrevocable in 
perpetuity, and the court has the power to vacate injunctive 
relief that nominally is "permanent."

Indeed, courts have indicated that permanent 
injunctive relief should be vacated when its requires nothing 
more than compliance with the law that was the source of its 
issuance. In S.E.C. v. Warren, 583 F.2d 115 (3d Cir. 1978), 
the Third Circuit ruled that the district court did not abuse 
its discretion in dissolving a permanent injunction which

I4The EEOC is mistaken in its contention that at a conference 
held on May 30, 1991, this Court indicated that it would not dissolve 
paragraphs 1 and 2 of the Consent Decree. The Court did not so 
rule, rather, it referred to the effective continuation of these 
provisions by the laws against discrimination.



119a

contained a restraint from future violations of the Securities 
Exchange Act. The court noted that:

In effect the injunction requires defendants to "obey 
the law" in the future "a requirement with which they 
must comply regardless of the injunction. Dissolution 
of the injunction decree removes the possibility of 
contempt proceedings in the event of a future 
violation; the right to prosecute ... civilly still exists.4

583 F.2d at 121. See also Payne v. Travenol Laboratories, 
Inc., 565 F.2d 895, 898 (5th Cir.), cert, denied, 439 U.S. 835, 
99 S.Ct. 118, 56 L.Ed.2d 131 (1978) ("[t]he word 
‘discriminating’ ... is too general. The provision is more 
specific than Title VII itself only in that it does not prohibit 
employment discrimination based on religion and natural 
origin ... Such ‘obey the law’ injunctions cannot be 
sustained").15 * * * 19

The terms and spirit of the Settlement Agreement, as 
well as the law of the case, dictate that the Consent Decree 
be extinguished upon attainment of the 25% target. That 
target having been attained, this Court hereby orders that 
the Consent Decree be vacated in its entirety. After 
eighteen years of Court and Administrator supervision, the 
goal has been achieved. Both equity and judicial economy 
dictate that the EEOC resume its role as the initial forum

15The rationale for this principle is that an "obey the law" 
injunction is too vague to enforce under the standards of Rule 65, 
Fed.R.Civ.P., since contempt is a possible remedy for its violation. 
The Court of appeals for the Second Circuit has acknowledged that
Rule 65(d) "reflects Congress’ concerns with the dangers inherent in
the threat of a contempt citation for violation of an order so vague 
that an enjoined party may unwittingly and unintentionally transcend 
its bounds." S an ders v. A ir  L in e  P ilo ts A s s ’n. I n t’l., 473 F.2d 244, 247
(2d Cir. 1972) (citing I n t’l. L o n g sh o rem en ’s  A s s ’n. L o c a l 1291  v. 
P h ila d elp h ia  M arine T rade A s s ’n ., 389 U.S. 64, 76, 88 S.Ct. 201, 208,
19 L.Ed.2d 236 (1967).



120a

for review of allegations of discrimination under Title VII. 
As the Court of Appeals for the Sixth Circuit stated in 
Youngblood v. Dalzell, 925 F.2d 954 (6th Cir. 1991):

The concerns originally voiced in the decree may yet 
remain.... Yet our interest in seeing that the decree 
is not dissolved prematurely is coupled with a 
realization that not every wrong in the Cincinnati fire 
department can be righted by a decree which is now 
17 years old, and the district court may find that 
other . . . litigation offers a better vehicle for 
addressing any alleged legal wrongs in the City’s 
policies today once those initial goals have been 
achieved.

925 F.2d at 961-62 (footnote omitted). Like the court in 
Youngblood, this Court recognizes that the current Consent 
Decree may not offer the best solution to any ongoing 
concerns that today’s victims of discrimination may voice."16 
Id. at 961.

lfThe LD Fs Offer of Proof, dated August 19, 1991, contains the 
declaration of 29 minority regular situation holders at the defendants 
Long Island News Co., Metropolitan News Co., the News, the Post, 
the Times, Newark Newsdealers Supply, Passaic County News, 
Westfair News, and Imperial News Co. These individuals make 
allegations of intentional discrimination in connection with assignment 
of work, discipline, compensation, selection of foremen, adjustment of 
routes following route consolidation, bidding, and tractor-trailer 
certification. Such assertions are not properly raised at this time. In 
December 1986, this Court instructed the LDF to prosecute alleged 
violations of the Consent Decree before the Administrator. Such 
matters are not to be raised for the first time in this proceeding. S ee  
P atterson  v. N M D U , 42 Empl. Prac. Dec. 1136,722, at 45,281, 1986 WL 
14976 (S.D.N.Y. Dec. 15, 1986). Assuming, argu en do, that the 
declarants’ accusations are true this Court reiterates that "not every 
wrong ... can be righted by a decree which is now [18] years old." 925 
F.2d at 961. Other litigation may today offer a better vehicle for 
addressing any alleged legal wrongs.



121a

It must be emphasized that the termination of the 
Consent Decree does not alter defendants’ substantive legal 
obligation to obey the law. Nor does vacating the Consent 
Decree permit defendants to discriminate against minorities 
in employment decisions. Title VII and other similar laws 
remain in effect and are fully applicable to defendants. As 
in all other sectors of the economy, aggrieved individuals will 
be able to take any complaints they may have to the EEOC, 
and ultimately to the courts if appropriate, for processing.

CONCLUSION

The Consent Decree is hereby vacated in its entirety. 
In order to affect an orderly winding down of the 
Administrator’s office he is instructed to hear and decide all 
claims that have been instituted prior to the date of this 
Order. Until such cases are disposed of the Administrator’s 
services shall be continued, but for the sole purpose of 
completing said cases. This Court shall retain jurisdiction 
over any appeals from those claims. No new claims shall be 
initiated or processed.

SO ORDERED.



122a

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

United States District Court 
S.D. New York.

JOHN E. PATTERSON, et al.,

Plaintiffs,

v.

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

Defendants.

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION,

Plaintiff,

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

Defendants.

Sept. 30, 1992

OPINION AND ORDER

WILLIAM C. CONNER, District Judge:

This matter is presently before the Court on the 
motion of the NAACP Legal Defense Fund, pursuant to 
Rule 62(c), Fed.R.Civ.P., requesting that the Court stay its



123a

Judgment Order of July 29, 19921 and restore the injunction 
of the Patterson Consent Decree pending appeal of that 
judgment to the Second Circuit Court of Appeals.

BACKGROUND

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

On September 19,1974, then-District Judge Lawrence 
W. Pierce issued an opinion and order approving a 
settlement between the parties and incorporating the 
Settlement Agreement in a Consent Decree, familiarity with 
which is presumed.2 See Patterson v. Newspaper and Mail 
Deliverers’ Union, 384 F.Supp. 585 (S.D.N.Y. 1974), aff’d. 514 
F.2d 767 (2d Cir. 1975), cert, denied, 427 U.S. 911, 96 S.Ct. 
3198, 49 L.Ed.2d 1203 (1976). Paragraphs 1 and 2 of the

1 The LDF styles this as an application to stay the Court’s July 
8, 1992 Order even though its Notice of Appeal indicates the appeal 
is from the Judgment entered July 29, 1992. See  Times Exh. A.

2 The Settlement Agreement is divided into four sections: 
Equitable Relief (1111 1-2). The Administrator (1111 3-6), Affirmative 
Action Program (UH 7-27), and General Provisions (HU 28-42).



124a

Consent Decree permanently enjoin both the Union and the 
defendant employers from engaging in "any act or practice 
which has the purpose or the effect of discriminating against 
any individual or class of individuals in their bargaining units 
represented by NMDU on the basis of race, color or national 
origin." The injunction provisions also prohibit all 
defendants from taking "any action which would deprive any 
such individual of equal employment opportunities or 
otherwise adversely affect his status as an employee or as an 
applicant for employment because of such individual’s race, 
color or national origin."

The Settlement Agreement established a goal of 25% 
minority employment in the industry within NMDU 
bargaining units. See Settlement Agreement at 11 7. That 
"goal" was defined as "not an inflexible quota but an 
objective to be achieved by the mobilization of available 
personnel and resources . . .  in a good faith effort to 
maximize employment opportunities for minorities in the 
bargaining units in the industry represented by NMDU." See 
Settlement Agreement at U 8. To achieve this goal the 
Settlement Agreement implements an affirmative action 
program which modifies the hiring procedures for newspaper 
deliverers under the industrywide collective bargaining 
agreement. Under the Consent Decree, each employer 
maintains a work force of regular situation holders for its 
minimum delivery needs. To accommodate fluctuations in 
circulation, the publishers are permitted to supplement their 
work force with daily shapers.

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



125a

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

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

On April 17,1985, the New York Times (the "Times") 
moved for an order, pursuant to Paragraph 7 of the Final 
Order and Judgment in this matter dated October 24, 1974, 
and Rule 60(b), Fed.R.Civ.P., to vacate or modify said Final 
Order and Judgment on the grounds that (1) the terms of 
the Final Order and Judgment have been satisfied; and (2) 
relief therefrom is justified under present circumstances.3 
On February 23, 1987, the Court held a hearing to consider 
defendants’ motion to terminate the Settlement Agreement. 
At the conclusion of the hearing, the Court ruled from the 
bench that notwithstanding that some employers had reached 
or exceeded the 25% figure within their respective 
operations, the goal to be realized was "25% minority 
employment in the industry." See Hearing Transcript at 125.

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



126a

Accordingly, this Court deferred its decision on the motion 
to terminate the Decree until defendants could produce 
sufficient evidence to demonstrate that minority employment 
in the bargaining unit had reached 25% throughout the 
industry as a whole.4

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

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

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



127a

validity of defendants’ compliance reports" "[i]f plaintiffs so 
request." Opinion and Order, dated Sept. 30, 1991, at 8.

On November 27, 1991, the Administrator provided 
the Court with a declaration under penalty of perjury, in 
accordance with 28 U.S.C. § 1746, from each of the 
defendant companies, through an authorized agent, to the 
effect that the compliance reports consisted of and/or were 
based upon corporate business records. Plaintiffs never 
availed themselves of the opportunity to conduct discovery 
of the defendant companies with respect to their compliance 
reports. On April 2, 1992, Interim Administrator Ellis 
circulated a letter in which he indicated that the LDF did 
"not intend to conduct any further investigation concerning 
the compliance reports." The Interim Administrator’s letter 
makes no reference to any request by the LDF for an 
evidentiary hearing concerning the validity of the compliance 
reports. On April 7, 1992, the Court restored the pending 
motion to modify or vacate the Patterson Consent Decree to 
its calendar for consideration.

After some additional briefing, in an Opinion and 
Order dated July 8, 1992, this Court granted the motion of 
defendants Times, Maxwell Newspapers, Inc. ("Maxwell"), 
New York Post ("Post"), and the NMDU and terminated the 
Consent Decree in its entirety.5 The Office of the 
Administrator was retained only to the extent necessary to 
complete the processing of claims filed prior to the date of 
the Order—no new claims were to be initiated or processed.

Subsequently, however, the LDF and the EEOC filed 
a joint motion pursuant to Rule 59(e), Fed.R.Civ.P., seeking 
to alter or amend the Judgment or Order, dated July 8,1992. 
The motion sought to establish a thirty-day grace period in 
which individuals could file claims regarding matters that 
accrued prior to July 8, 1992. On July 29, 1992, following

5 Familiarity with the Court’s Decision is presumed.



128a

oral argument, the Court denied that motion, ruling instead 
that it would enter a Judgment Order authorizing the 
Administrator to hear and decide all claims instituted prior 
to July 29, 1992. The LDF filed a Notice of Appeal from 
the July 29, 1992 Judgment Order on August 28, 1992, and 
the EEOC filed a Notice of Appeal from that same 
Judgment Order on September 25, 1992.

DISCUSSION

The LDF requests, pursuant to Rule 62(c), 
Fed.R.Civ.P., restoration of the Consent Decree pending 
appeal of the Judgment Order entered on July 29, 1992, 
vacating the Consent Decree and concomitant Settlement 
Agreement in their entirety.6 The LDF alleges that since 
the termination of the Decree, various defendant employers 
and the NMDU have engaged in numerous discriminatory 
and retaliatory actions against minority employees with the 
intention of wearing them down and discouraging them from 
standing up for their rights. LDF Memo, at 6-11. Submitted 
to substantiate the allegations of the LDF are the 
Declarations of ten minority individuals.

Rule 62(c), Fed.R.Civ.P., provides in pertinent part:

When an appeal is taken from in interlocutory or 
final judgment granting, dissolving, or denying an 
injunction, the court in its discretion may suspend, 
modify, restore or grant an injunction during the

While the LDFs motion is titled "Motion to Restore 
Injunction Pending Appeal," a review of the Memorandum 
accompanying the motion evidences the LD Fs intention to seek 
restoration of the entire Consent Decree, not simply Paragraphs 1 and 
2, the permanent injunction provisions. See  LDF Memo at 15 ("[N]on 
compliance requires the restoration of the decree—and particularly 
the permanent provisions in Part A  and the administrative provisions 
in Part B—pending appeal.") The motion is thus more akin to one 
seeking reconsideration of the Court’s prior decision terminating the 
Consent Decree in its entirety.



129a

pendency of the appeal upon such terms as to bond
or otherwise as it considers proper for the security of
the rights of the adverse party.

Rule 62(c) is an exception to the general rule that 
jurisdiction passes to the appellate court once a timely notice 
of appeal is filed. The Rule "does not restore jurisdiction to 
the district court to adjudicate anew the merits of the case 
after either party has invoked its right of appeal and 
jurisdiction has passed to an appellate court." McClatchy 
Newspapers v. Central Valley Typographical Union No. 46, 686 
F.2d 731, 734 (9th Cir.), cert, denied, 459 U.S. 1071,103 S.Ct. 
491, 74 L.Ed.2d 633 (1982). Rather, Rule 62(c) codifies the 
limited right of the trial court to grant only such relief as 
may be necessary to preserve the status quo pending an 
appeal where consent of the Circuit Court has not been 
obtained. See Int’l Ass’n o f Machinists and Aerospace 
Workers, AFL-CIO v. Eastern Air Lines, Inc, 847 F.2d 1014, 
1018 (2d Cir. 1988); New York v. Nuclear Regulatory Comm’n, 
550 F.2d 745, 758-59 (2d Cir. 1977).

The LDF filed its appeal of the Judgment Order 
dated July 29, 1992 on August 28, 1992, thereby vesting in 
the Second Circuit Court of Appeals jurisdiction over the 
instant action. Accordingly, this Court may act only to 
maintain the status quo during pendency of that appeal. 
Because the status quo as of July 8, 1992, the date of the 
Court’s Opinion and Order terminating the Decree, is that 
the Consent Decree is of no force and effect, restoration of 
the Decree based on allegations that the Union and some of 
the defendant employers have engaged in acts of 
discrimination subsequent to its termination would be 
beyond the authority of this Court. While the LDF’s Rule 
62(c) motion could be denied on this basis alone, the Court 
believes that a discussion of the Rule 62(c) standard as it 
applies to the facts of this case is instructive

The criteria to be used in determining whether an 
application under Rule 62(c) should be granted are much the



130a

same as would be employed on application for a preliminary 
injunction. Thus, to secure the relief sought in the present 
case, the LDF must (1) make a strong showing that it is 
likely to succeed on the merits of the appeal; (2) establish 
that unless the Consent Decree is restored, the private 
plaintiffs will suffer irreparable injury; (3) show that 
restoration of the Decree’s provisions will not substantially 
injure other parties interested in the proceeding; and (4) 
show that the public interest favors restoration of the 
Consent Decree. Hilton v. Braunskill, 481 U.S. 770, 776,107 
S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987); United States v. Infl  
Brotherhood of Teamsters, 728 F.Supp. 920, 923 (S.D.N.Y. 
1989).

A. Likelihood of Success on the Merits

This Court adheres to the reasoning set forth in its 
Opinion and Order dated July 8, 1992, terminating the 
Consent Decree in its entirety. Accordingly, an extensive 
exposition of the reasons why the Court believes the LDF is 
not likely to succeed on the merits of its appeal is 
unnecessary, and the Court will confine itself to a few brief 
remarks on this point.

As the Court has noted previously, the Consent 
Decree was "designed to correct the . . .  statistical imbalance 
[of minority individuals]" by "putting] minority individuals in 
the positions they would have occupied had the aforesaid 
statistical imbalance not existed." See Settlement Agreement, 
Whereas Clauses. The attainment of 25% minority 
employment industry-wide was the standard established for 
measuring compliance with this objective. Minority 
representation in the membership of the NMDU in the 
newspaper industry in metropolitan New York was less than 
1% when the Consent Decree was issued in 1974. As of 
March 30, 1992, minority representation was proven to be 
27.78% industry-wide. Thus, the stated objective of the 
affirmative action program set forth in the Consent D ecree- 
25% minority employment industry-wide--has been achieved.



131a

Finding that the purposes of the litigation as incorporated in 
the Consent Decree had been achieved, see United States v. 
United Shoe Machinery Corp., 391 U.S. 244, 248, 88 S.Ct. 
1496,1499, 20 L.Ed.2d 562 (1968), this Court terminated the 
Decree.

Contraiy to the apparent belief of the LDF, the 
Decree nowhere states that it should remain in effect until 
each and every claim of discrimination is resolved. See LDF 
Memo, at 17. Indeed, it is inconceivable that the defendants 
would have entered into an agreement, the termination of 
which depended solely upon the unilateral decisions of 
employees regarding whether or not to charge a given 
employer with acts of discrimination. Vacation of the 
Consent Decree, however, does not permit defendants to 
discriminate against minorities in employment decisions. 
Title VII and other similar laws remain in effect and are 
fully applicable to defendants. If subsequent events disclose 
continuing discrimination, the LDF has every right to 
proceed against the alleged wrongdoer(s) in a new action,

B. Irreparable Injury

Pointing to what it alleges to be discriminatory acts 
occurring in the workplaces of certain defendant employers, 
the LDF argues that the dissolution of the Consent Decree 
and the "freeing of defendants from its restraints and from 
the immediate, ongoing supervision of the Interim 
Administrator has already resulted in substantial injury to 
minority workers." LDF Memo, at 17. The LDF has failed 
to establish, however, that vacation of the Consent Decree 
leaves any minority individual irreparably harmed, if, in fact, 
it is later determined that the alleged conduct was unlawful. 
There are numerous avenues open to those individuals who 
allege that they have been the victims of discrimination: an 
individual may bring a claim before the EEOC; the New 
York State Division of Human Rights; an arbitrator under 
the applicable labor agreement, or the NLRB if the Union 
breaches its duty of fair representation by denying proper



132a

access thereto; and, of course, the courts, without exhausting 
Title VII administrative requirements, by commencing an 
action under 42 U.S.C. § 1981.

The vague references to the alleged pressure on 
minorities to accept buyouts from their employers and the 
allegations that minorities are given less desirable jobs 
because of their race or in retaliation against those who 
speak out when things are not done by the rules do not 
suffice to convince the Court that irreparable harm will 
result if the Decree is not reinstated. Restoration of the 
Consent Decree would only afford the individuals allegedly 
discriminated against one more forum, albeit a familiar and 
convenient one, in which to pursue their claim.

C. Injury to Other Parties if the Consent Decree is 
Restored

It is no argument to say, as the LDF does, that mere 
compliance with the law will shield the defendants from any 
injury that may come to them from restoration of the 
Consent Decree. Such an argument overlooks the fact that 
under the terms of the Settlement Agreement, each 
defendant is responsible for its share of the costs of the 
Administrator’s services, regardless of whether that particular 
defendant has been charged with, much less been proved to 
have committed, discriminatory acts. As this Court noted in 
its Opinion and Order dated July 8, 1992, the expenses 
attendant to maintaining the office of the Administrator are 
substantial. See Opinion at 12, 15, n. 11. Accordingly, the 
Court adheres to its belief that the more equitable solution- 
given the fact that the goal of 25% minority employment in 
the newspaper industry represented by the NMDU has been 
exceeded—is dissolution of the Consent Decree, so that 
those employers who have demonstrated an ability to police 
themselves may be freed from the expense of processing 
charges against other employers.



133a

D. The Public Interest

The plaintiffs have not demonstrated that the public 
interest would be served by restoration of the Consent 
Decree. Public confidence in the law will be increased with 
the denial of the LDF’s application, and, should it be 
warranted following the commencement of a new action, the 
design of a remedial scheme better suited to redressing 
continuing discrimination, if any, that may be proved 
thereafter.

CONCLUSION

For the foregoing reasons, the LDF’s motion to 
restore the Consent Decree pending appeal of the Judgment 
Order of this Court, dated July 29, 1992, is denied.