Patterson v. Newspaper and Mail Deliverers' Union of New York and Vicinity Brief of Defendant-Appellee

    DOCKET NO. 74-2548

IN THE UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

JOHN R. PATTERSON, et al.f
Plaintiffs-Appellees,

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

Defendants-Appellees,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiffs-Appellees,
-against-

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

Defendants-Appellees,
DOMINICK VENTRE, FRANK CHILLEMI, GERALD KATZ, 
et al.,

Intervenors
JAMES V. LARKIN,

Intervenor-Appellant

BRIEF OF DEFENDANT-APPELLEE 
NEWSPAPER AND MAIL DELIVERERS' UNION 
OF NEW YORK AND VICINITY

O'DONNELL & SCHWARTZ, ESQS. 
501 Fifth Avenue 
New York, N. Y. 10017 (212) 682-1261

Michael Klein, Esq.
Of Counsel



TABLE OF CONTENTS

PRELIMINARY STATEMENT

ARGUMENT:
The Approval By The Court Below Of The 
Settlement Agreement Was In Accordance 
With The Requirements And Objectives Of 
Title VII Of The Civil Rights Act

CONCLUSION



TABLE OF CASES CITED
PAGE NOS.

Griggs v. Duke Power Co. 
401 U.S. 424 (1971) 12

Humphrey v. Moore 
375 U.S. 335 (1963) 5

Rios v. Enterprise Association Steamfitters 
Local 638, 501 F. 2d 408 (2nd Cir. 1973) 3, 12

Trans World Airlines, Inc. v. State Human 
Rights Appeal Board, et al, N. Y. Sup. Ct., 
App. Div., 2d Dept., N. Y. Law Journal, 
December 5, 1974, pp. 1, 5. 4

U. S. v. Bethlehem Steel Corp. 
446 F. 2d 652 (2nd Cir. 1971) 7, 10, 12

U. S. v. Wood, Wire & Metal Lathers International
Union Local Union No. 46
471 F. 2d 408 (2nd Cir. 1973) 3, 7, 12

STATUTES
Civil Rights Act, 42 U.S.C. 2000(e) et seq. 1,2,6,8,10,11

Labor-Management Relations Act 
29 U.S.C. 141 et seq. 5, 6.



DOCKET NO. 74-2548

IN THE UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

JOHN R. PATTERSON, et al.,
Plaintiffs-Appellees,

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

Defendants-Appellees,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiffs-Appellees,
-against-

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

Defendants-Appellees,
DOMINICK VENTRE, FRANK CHILLEMI, GERALD KATZ, 
et al.,

Intervenors
JAMES V. LARKIN,

Intervenor-Appellant

BRIEF OF DEFENDANT-APPELLEE 
NEWSPAPER AND MAIL DELIVERERS' UNION 

OF NEW YORK AND VICINITY



PRELIMINARY STATEMENT

This is an appeal by one of the intervenors, Larkin, 
in which he seeks to reverse an Opinion and Order rendered on 
September 19, 1974, by United States District Court Judge 
Lawrence W. Pierce in the United States District Court for the 
Southern District of New York. In his aforesaid Opinion and 
Order, Judge Pierce had approved a settlement agreement dated 
June 27, 1974, in which the plaintiffs, the Defendant Union and 
the Defendant Employers had all joined and which settled two con­
solidated actions brought by a class of private plaintiffs and 
by the United States Attorney for the Southern District of New 
York on behalf of the Equal Employment Opportunity Commission, 
(hereinafter "EEOC"), pursuant to Title VII of the Civil Rights 
Act (42 U.S.C. §2000 (e) , et seq.)

Since the essential facts and background of events 
leading up to the settlement agreement are adequately stated in 
Judge Pierce's Opinion and Order dated September 19, 1974 and in 
the brief submitted to this Court on behalf of EEOC, it is not 
necessary to burden the Court with a repetitious recital of such 
facts and chronology. Sufficient it is to confine this brief to 
a rebuttal of the contentions made by Appellant Larkin in his
brief.



ARGUMENT

It is the fundamental contention of the Defendant- 
Appellee Union that the approval by Judge Pierce in the Court 
below of the settlement agreement was proper in all respects, 
in accordance with the requirements and objectives of Title VII 
of the Civil Rights Act, and should accordingly be affirmed. 
Conversely, if the settlement agreement is set aside, serious 
disruption could again affect the industry which is now returning 
to a state of stability following many months of unsettled labor 
conditions during the pendency of the Title VII litigation.

As noted by Judge Pierce in his Opinion , the settle­
ment agreement now under attack by Intervenor Larkin was reached 
by the parties after a four-week trial on the merits of the two 
consolidated actions. It was preceded by many months of frequent, 
intensive negotiations and discussions by and among the various 
parties. Indeed, an earlier tentative settlement agreement had 
been rejected by a vote of the Union's membership. Following 
the trial, the present settlement agreement was ratified by the 
Union membership in a secret ballot.

Prior to his approval of the settlement agreement.
Judge Pierce held a hearing on its fairness, adequacy and reason­
ableness after due notice to the class of plaintiffs noticed

-2-



in this law suit. On that same date, he also held a hearing 
on the legality of the relief provided in the settlement agree­
ment with regard to its impact on the intervenors, including 
Larkin, all of whom are non-minority "shapers" in the industry.
His Opinion reflects that he gave careful consideration to each 
and every contention raised by Larkin on this appeal - and he 
properly rejected each such contention.

After noting that the instant settlement agreement sets 
forth a goal of achieving 25% minority employment in the industry 
within five years, consistent with the results in Rios v. Enterprise 
Association Steamfitters Local 638, 501 F. 2d 622 (2nd Cir. 1974) 
and in U. S. v. Wood, Wire and Metal Lathers International Union, 
Local No. 46, 471 F. 2d 408 (2nd Cir. 1973), Judge Pierce mani­
fested the thoughtful and careful consideration he gave to the 
approval of the instant settlement agreement by stating:

"But, unlike Rios and Wood Wire, this settle­
ment agreement does not merely commit the par­
ties to the future development of a plan to 
achieve that goal. Instead, it sets forth a 
plan with great specificity, including varia­
tions on the general theme to account for vary­
ing circumstances between different employers.
Such detail indicates that the plan is the re­
sult of hard, serious and good faith negotia­
tions, and that the different pressures, per­
spectives 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."

-3-



1.
It is axiomatic that a settlement agreement is a com­

promise involving a "give and take" process in which each party 
or group settles for less than a "perfect" satisfaction or pro­
tection of its respective intents. This is especially true in 
seniority disputes. The chief characteristic of seniority is 
that it is relative in nature. The seniority claim of any in­
dividual or group necessarily affects adversely the seniority 
interest of others in the bargaining unit.*

From this standpoint, none of the parties and groups 
affected by the instant settlement agreement can be ideally satis­
fied with all of its contents. The Defendant Union encountered 
considerable difficulty in persuading its membership to accept a 
settlement agreement. Certainly, the plaintiffs sought more in 
the relief requested by their complaints. The various Defendant 
Employers undoubtedly would have preferred less stricture and 
regulation with respect to employment in their industry and they 
cannot be pleased with the substantial money damages charged to 
them in the Final Order and Judgment predicated on the settlement 

agreement.
In this context, it is not surprising that Intervenor 

Larkin is displeased with the settlement agreement. However, his 
disagreement with some of its contents is not a basis for setting

* See N. Y. Law Journal, December 5, 1974, pp 1, 5, for decision 
by N. Y. Supreme Court, App. Div., 2d Dept., in Trans World 
Airlines, Inc, v. State Human Rights Appeals Board, et al, 
which dramatically illustrates how the correction of past dis­
crimination necessarily affects the seniority standing of others.

-4-



it aside. In his Opinion, Judge Pierce asserted that the 
intervenors will benefit from the settlement agreement. He 
described these benefits as follows:

"Most of the provisions of the settlement agree­
ment are applauded by the intervenors, as well 
they might be. By regulating employment oppor­
tunities in the industry, unlocking Group III 
and Group I, Regular Situations and Union mem­
bership, the agreement will operate beneficially 
for the intervenors as well as the minorities."

'There can be no dispute that the Defendant Apellee
agent of the

Union is the duly recognized/bargaining unit involved in this 
litigation, including Intervenor Larkin and the other shapers he 
purports to represent. In this connection, the role of the Union 
in fulfilling its duty of fair representation when there are com­
peting and conflicting seniority interests by members of a bar­
gaining unit was settled by the United States Supreme Court in 
Humphrey v. Moore, 375 U.S. 335 (1963). The action of the Union 
in entering into this settlement agreement conforms to the hold­
ing in Humphrey v. Moore.

2.

In substance, Intervenor Larkin is attempting improper­
ly in this appeal to convert the instant Title VII law suit into 
a proceeding under The Labor-Management Relations Act, 41 U.S.C.

-5-



§141, et seq, whereby individuals may invoke the unfair labor 
practice procedures of the National Labor Relations Board to 
remedy violations of that Act resulting from preferential em­
ployment treatment accorded to employees by reason of Union 
membership. In this regard, the record reflects that Intervenor 
Larkin and the class of shapers he purports to represent are non­
minorities (to the extent that there are minority shapers, they 
are included in the class represented by the plaintiffs).

In his earlier Opinion and Order of April 30, 1974, 
in which the appellant and others were permitted to intervene, 
Judge Pierce strictly limited such intervention to the impact on 
them of relief granted in this Title VII action involving racial 
discrimination and expressly excluded any effort by intervenors 
to enforce such rights as they may have under the National Labor 
Relations Act for complaints of alleged discrimination on grounds 
other than those authorized in Title VII. In that connection, 
he chided some of the intervenors for attempting to utilize the 
present Title VII proceeding to enforce an NLRB order which in­
volved the Defendant Appellee Union and one of the Defendant Ap­
pellee Employers and which has been affirmed by this Court in 

1972.
Again, in his Opinion and Order of September 19, 1974, 

Judge Pierce emphatically excluded the granting of relief to any

-6-



of the intervenors which would be based on grounds other than
discrimination within the meaning of Title VII. Thus, in reject­
ing the contention raised again in this appeal by Intervenor 
Larkin, Judge Pierce cogently concluded:

"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 constitu­
tional purposes, to attack the scourge of ra­
cial discrimination in employment . . .(a)nd
we know that, in addition to the spiritual wounds 
it inflicts, such discrimination has caused mani­
fold economic injuries, including drastically 
higher rates of employment 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 is an expression of a commitment to cor­
rect minority employment discrimination and, hope­
fully, the vast social consequences that flow from 
it and afflict the whole of the nation. The sta­
tute 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 found­
ation, in this case. Under the law, relief here 
must be limited to victims of the kind of discri­
mination 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 ac­
count of race, religion, color, sex, national 
origin, or because they have made charges, testified, 
assisted or participated in any enforcement proceed­
ings under Title VII."

3.
Repeatedly, the brief submitted on behalf of Inter­

venor Larkin in this appeal erroneously informs this Court that

-7-



the Court below found that the white shapers he purports to 
represent have suffered ’fequally" with minorities the effects of 
past discrimination. Based on this distorted view, the appellant 
inappropriately quotes the maxim that "Equality is Equity" and 
pedantically cites "Pomeroy Eq. Jur. Section 405" as his autho­
rity for this assertion. In effect, the appellant offers the 
specious arqument that the Court below should not qrant any re­
lief that did not give non-minorities equal treatment with the 
minorities.

Although the Court below did acknowledge a past history 
of discrimination against so-called Group III shapers on grounds 
unrelated to Title VII, it is inaccurate to state that the Court 
concluded that minorities and non-minorities had "suffered 
equally" and therefore, that the Court had erred in not granting 
"equal relief" to the appellant and to the group for x>?hich he 

claims to speak.
Under the guise of seeking "equal relief", the appellant 

is actually attempting to scuttle the relief accorded to minori­
ties in a Title VII proceeding. Ironic, indeed, is Intervenor 
Larkin's reference to the stirring words of the recent civil 
rights song, "We shall overcome". Instead of "Black and white 
together", he wants the minorities to march behind him on their 
way to jobs in this industry!

-8-



Equally cynical and irresponsible is the appellant's
citation of sources dealing with the Nazi destruction of 
European Jewry as a ground for attack on Judge Pierce's Order 
approving the instant settlement agreement. Does Intervenor 
Larkin dare to insinuate that Judge Pierce's decision in the 
Court below can be compared to the Nazi code in dealing with the 

"Jewish Question"?
The appellant's pious pretense in quoting from the 

Bible is absurdly misplaced. It adds neither sanctity nor sanc­
tion to his groundless argument on this appeal.

4.

In a futile attempt to bolster his untenable argument 
that the settlement agreement grants proscribed "super-seniority" 
to minorities which permits them to "leap-frog" illegally past 
him and other Group III non-minorities, the appellant inaccu­
rately ascribes the qualities of vested seniority rights of a 
fUH-time employee to himself and to those in his class.

Judge Pierce expressly found that Larkin and the Group 
III class to which he belongs are shapers who "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." It is common knowledge in the industry that 
many of the Group III shapers hold full-time jobs in civil ser­

-9-



vice and elsewhere and utilize thei.r status in this industry to 
supplement their income. This is hardly the type of employment 
which warrants granting them such a protected status as to shield 
them from the appropriate relief available to minorities in a 
Title VII action.

In commenting on a Group III shaper's work expectations 
Judge Pierce made the following persuasive analysis:

"In other words, assessing a shaper's expecta­
tion is a highly speculative exercise. The 
Court does not mean to minimize a Group III 
member's vested emotional interest in his po­
sition 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 minor­
ity with less seniority than him. Further, it 
must be pointed out that even if these shaping 
priorities were viewed as providing firm expecta­
tions, '(such) seniority advantages are not in- 
defeasibly vested rights but mere expectations 
from a bargaining agreement subject to modifica­
tion. ' United States v. Bethlehem steel Corp., 
supra, 446 F. 2d at 663."

Moreover, Judge Pierce rejected outright the contention 
of the intervenors that the settlement agreement was harmful to 
them. Thus he said:

"First and dispositive of all the issues raised 
by the intervenors, the settlement agreement 
simply does not trample on their employment op­
portunities. In the long run, it must be acknow­
ledged 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. With­
out this settlement, Group III workers had little 
if any hope of ever achieving either status under 
the present system."



5.

After the four-week trial, Judge Pierce made a find­
ing that minority employment in this industry is less than 2%.
The parties to the settlement agreement stipulated therein that 
there is a statistical imbalance within the industry in relation 
to those individuals defined as minorities in Title VII.

In this connection, Judge Pierce accepted as credible 
the testimony at the trial of the Union's President that the 
Union had historically favored employment practices partial to 
its members and that the Union v;as not motivated by any intent 
to discriminate against minorities. Although Judge Pierce des­
cribed this Union position as "admirable under most circumstances", 
he ruled that "it is the discriminatory effect of practices and 
policies, not the underlying intent, which is relevant in a 
Title VII action".

Accordingly, the Defendant-Appellee Union had no 
choice except to enter into the settlement agreement which gave 
reasonable protection to its members and to all others in the 
bargaining unit at the same time that it provided an affirmative 
action program which fulfills the objectives of Title VII in 
detailing plans whereby a goal of 25% minority employment in 
the industry will be reached in five years. To permit Inter- 
venor Larkin and a small group of non-minority shapers for whom 
he might possibly speak to upset this settlement agreement could 

only serve to plunge the employment practices of this industry

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back into the chaos from which it has just emerged.

6 .

In approving the settlement agreement, including its 
five-year goal of achieving 25% minority employment in the in­
dustry, Judge Pierce asserted that "It is this present impact 
of past practices which justifies the affirmative, corrective 
relief embodied in the settlement agreement." In so doing he 
relied on the United States Stipreme Court's decision in Griggs 
v. Duke Power Co., 401 U. S. 424 (1971), as well as on the tri­
logy of decisions by this Court in Rios, Wood, Wire, and Bethle­
hem Steel, supra. The appellant's efforts to twist the meaning 
and effect of these decisions in order to defeat the instant 
settlement agreement should not be upheld by this Court.

CONCLUSION

For the foregoing reasons, this appeal by Intervenor 
Larkin should be denied in all respects and the Opinion and Order 
of Judge Pierce in the Court below, dated September 19, 1974, 
should be affirmed.

Respectfully Submitted,
O'DONNELL & SCHWARTZ 
501 Fifth Avenue 
New York, N. Y. 10017 
Attorneys for Defendant- 
Appellee Newspaper & Mail 
Deliverers Union of New York 
and Vicinity

Michael Klein 
Of Counsel