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December 13, 1979


The opinion of the court was delivered by: SAND

On October 3, 1979, this Court held that the manner in which Local # 3, International Brotherhood of Electrical Workers ("Local 3") referred workers to Madison Square Garden ("the Garden") for employment as "laborers" violated both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970) and the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1970). *fn1" The Court found that the plaintiffs in the first of these two consolidated class actions, *fn2" the "Ingram" plaintiffs, were entitled to recover under § 1981 only, while plaintiffs in the second action, the "Anderson" plaintiffs, were entitled to recover under both Title VII and § 1981. *fn3" Pursuant to the Court's initial decision to bifurcate the trial into a liability and a remedial stage, a hearing on all remedial issues was held on October 17, 1979, and both parties submitted briefs shortly thereafter.

Plaintiffs seek an injunction ordering Local 3 to regularize its referral practices *fn4" and to refer to the Garden "in order of their current seniority" those class members who desire a laborer's position. Plaintiffs also seek full backpay for all class members who unsuccessfully applied for the job of laborer or who would have applied but for their belief that such application would be futile. Finally, plaintiffs seek an injunction ordering Local 3 to credit all class members who become laborers with full seniority for all purposes for the same number of years that they worked as cleaners at the Garden. Reasonable attorneys' fees and costs are also sought.

 The Court finds that, as a general matter, an award of backpay, retroactive seniority and attorneys' fees is appropriate here. The case will now be referred to Magistrate Leonard A. Bernikow (or such other Magistrate as he shall designate) as Special Master under F.R.Civ.P. 53 who, in accordance with the general guidelines set forth below, will make recommendations to the Court as to both the entitlement of individual class members to such relief and the amount appropriately chargeable to defendant for attorneys' fees and costs. *fn5" Plaintiffs' request for prospective injunctive relief is granted as modified herein.

 I. Retroactive Seniority

 When a court finds that an employer or union has engaged in a policy of unlawful employment discrimination, class action plaintiffs are not required to introduce specific evidence of individual acts of discrimination at the remedial stage of the proceeding. The proof supporting the finding of liability in such a case also "supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy." International Brotherhood of Teamsters v. United States, 431 U.S. 324, 361-2, 97 S. Ct. 1843, 1868, 52 L. Ed. 2d 396 (1977). Where such a policy is found to exist, the Supreme Court has made clear that, as a general matter, the District Court must ordinarily grant seniority relief, absent reasons for denying such relief which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination and making persons whole for injuries suffered. Teamsters v. United States, 431 U.S. at 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396; Franks v. Bowman Transport Co., 424 U.S. 747, 771, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976). Since defendant Local 3 has made no argument that such reasons exist here and since this Court has already found that Local 3 engaged in a policy of unlawful employment discrimination, the Court now concludes that an award of retroactive seniority is appropriate. This, however, does not necessarily mean that each class member is entitled to such relief. Only Actual victims of Local 3's discriminatory referral practices are entitled to retroactive seniority. Teamsters v. United States, 431 U.S. at 324 at 371-372, 97 S. Ct. 1843, 52 L. Ed. 2d 396.

 There are two means by which class members can demonstrate that they are actual victims. The first is for a class member to prove that he or she actually applied to Local 3 for referral to the Garden as a laborer. Once such an application is established, there is a presumption that the class member involved is entitled to retroactive seniority, and the burden is on the union to show that its failure to refer was for nondiscriminatory reasons. Teamsters v. United States, 431 U.S. at 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396. In this case, however, Local 3's referral practices made a formal application for reference to the Garden impossible: there was simply no established application procedure, and union officials deliberately frustrated informal attempts by class members to secure a laborer's position. See Op. at pp. -- - -- ; -- - -- . A liberal construction of the term "application" is thus called for if class members are to be restored to their "rightful place" in the seniority scheme. See Acha v. Beame, 570 F.2d 57 (2d Cir. 1978); James v. Stockham Valves & Fittings Co., 559 F.2d 310 (5th Cir. 1977). Accordingly, any expression by a class member to a Local 3 official evidencing a desire either to become a laborer or to acquire information as to how to obtain a referral will be treated as an "application" for purposes of determining whether that class member was an "actual victim" of Local 3's discriminatory employment practices. To do less would penalize plaintiffs for union referral procedures and recordkeeping practices which have already been condemned by this Court as violative of the employment discrimination laws. See E.E.O.C. v. Local 28 of the Sheet Metal Workers' International Assoc., 532 F.2d 821, 832 (2d Cir. 1976); Carter v. Shop Rite Foods, Inc., 470 F. Supp. 1150 (N.D.Tex.1979) (lack of formal application procedure was itself a tool of discrimination).

 Absent an application as defined above, a second and more difficult way for class members to demonstrate that they were actual victims of Local 3's discriminatory referral practices is to prove that they were qualified for a laborer's position and that they would have applied for a referral had it not been for those practices. Teamsters v. United States, 431 U.S. at p. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (referring to the nonapplicants' "not always easy burden".) In this case, the Court has already found that the atmosphere at the Garden was such that class members could reasonably have believed that seeking a referral from Local 3 would be futile. See Op. at p. -- . Such a finding, while essential to the nonapplicants' case, does not mean that all nonapplicants who now seek laborers' positions are entitled to retroactive seniority. Teamsters v. United States, 431 U.S. at pp. 324 at 369-371, 97 S. Ct. 1843, 52 L. Ed. 2d 396. Each such nonapplicant must come forward with evidence that he or she desired a laborer's job, possessed the requisite qualifications, and would have sought a referral but for the Union's discriminatory practices. Evidence of a class member's desire to become a laborer may consist of an informal inquiry or expression of interest to someone other than a Local 3 official, *fn6" or even an "unexpressed desire credible and convincing." Teamsters v. United States, 431 U.S. at p. 324, n.58, 97 S. Ct. 1843, 52 L. Ed. 2d 396. See, e.g., United States v. East Texas Motor Freight System, Inc., 32 Fair Empl. Prac. Cas. (BNA) 560, 20 EPD P 30,103 (N.D.Tex.1979) (making individual retroactive seniority determinations for nonapplicants). The question is a factual one, but if a change from cleaner to laborer would have entailed a loss of seniority at the time the class member involved desired such a change, *fn7" then whether that class member would have accepted a laborer's position at that time despite the loss of seniority is a relevant if not determinative consideration. See Teamsters v. United States, 431 U.S. at pp. 324 at 370-371, 97 S. Ct. 1843, 52 L. Ed. 2d 396.

 Although plaintiffs seek full seniority for the number of years that qualifying class members who become laborers worked at the Garden, no class member may be given retroactive seniority to a date earlier than the effective date of Title VII or the date of his application or proven "desire", whichever is later. *fn8" Teamsters v. United States, 431 U.S. at pp. 324 at 356-357, 97 S. Ct. 1843, 52 L. Ed. 2d 396. Thus, an applicant or nonapplicant who qualifies for seniority relief under the standards set out above will be granted retroactive seniority as of the date of the next laborer hire resulting from a Local 3 referral which followed the class member's application or qualifying desire, subject to a maximum date of July 2, 1965. See, e.g., Harper v. General Grocers Co., 590 F.2d 713 (8th Cir. 1979); Sagers v. Yellow Freight System, Inc., 529 F.2d 721 (5th Cir. 1976); Linebaugh v. Auto Leasing Co., 18 Fair Empl. Prac. Cas. (BNA) 752, 18 EPD P 8,904 (W.D.Ky.1978) (retroactive seniority awarded "as of date (plaintiff) should have been employed by defendant", I. e., as of date of next hire following her application). The source and date of laborer hires should be drawn from the books and records of the employer and the evidence adduced at trial, but there is a strong presumption that most if not all laborer hires were the result of a Local 3 referral. See Op. at pp. 924-925. Evidence of applications and of the "desire" and qualifications of nonapplicants may be drawn from the testimony at trial, from depositions, interrogatories and other documents admitted into evidence, and, if necessary, from testimony at hearings held before the magistrate. *fn9" Evidence of the union's nondiscriminatory reasons for its failure to refer individual class members should also be presented to the magistrate. *fn10"

 Although this procedure for identifying actual victims of Local 3's discriminatory practices and restoring them to their "rightful place" will "necessarily involve a degree of approximation and imprecision", the Court believes that it is both well within its broad equitable powers under Title VII to fashion the most complete relief possible and consistent with the Supreme Court's specific mandate to " " "recreate (as nearly as possible) the conditions and relationships that would have been had there been no" " unlawful discrimination". Teamsters v. United States, 431 U.S. at p. 372, 97 S. Ct. at p. 1873 (quoting Franks v. Bowman Transport Co., 424 U.S. at p. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444. See also, Achca v. Beame, supra; James v. Stockham Valves & Fittings Co., supra (under "rightful place" doctrine, sufficient retroactive seniority is given to permit the advancement and layoff protection the victim of the discrimination would have enjoyed but for the discrimination).

 Finally, while the Ingram plaintiffs are entitled to recover under § 1981 and not under Title VII, the Court notes that the two statutes have generally been similarly interpreted and applied, See, e.g., Carrion v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976), and sees no reason why successful § 1981 plaintiffs should not be eligible for a retroactive seniority award. See Williams v. DeKalb County, 577 F.2d 248 (5th Cir. 1978) (backpay award appropriate in a § 1981 suit). Accordingly, the Ingram plaintiffs' individual entitlements to retroactive seniority will be determined in accordance with the standards set forth above, including the maximum seniority date of July 2, 1965. See Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1374-75, 1378-79 (5th Cir. 1974) (limiting the availability of backpay relief under § 1981 to the effective date of Title VII). As the Fifth Circuit stated in Johnson, the "balancing of the equities" in the employment discrimination area suggests that backpay relief under § 1981 should be limited to the effective date of Title VII, and this Court believes that the same rule should govern an award of retroactive seniority. Any other conclusion would be particularly unfortunate in this case since two essentially identical plaintiff classes would then be eligible for different measures of relief after having suffered from the same discriminatory practices.

 II. Backpay

 Much of what has already been said about retroactive seniority applies to backpay as well. *fn11" The standard for general availability is identical in both contexts; indeed, that standard was first adopted by the Supreme Court in a backpay decision. Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1974). The standard for determining the eligibility for backpay of individual "applicant" class members is also the same as that employed in the retroactive seniority context. *fn12" See, e.g., Hill v. Western Electric Co., 596 F.2d 99 (4th Cir. 1979); Mitchell v. Mid-Continent Spring Co., 583 F.2d 275 (6th Cir. 1977); Chewning v. Schlesinger, 471 F. Supp. 767 (D.C.D.C.1979). The questions which require extended separate discussion are whether nonapplicants are eligible for backpay relief, the effect of the statute of limitations, the composition of a backpay award, and the availability of front pay. The Court notes before addressing those questions, however, that since defendant has pointed to no reason for denying backpay relief which, "if applied generally, would not frustrate" the purposes of the employment discrimination laws, *fn13" a backpay award is, as a general matter, appropriate here. *fn14"

 Although the Supreme Court opinion in Teamsters v. United States, supra, was not concerned with backpay, courts confronted with the question since Teamsters have held that "nonapplicants" are potentially eligible for a backpay award, and have applied Teamsters eligibility standards to the backpay area. See, e.g., Hill v. Western Electric Co., supra; Mitchell v. Mid-Continent Springs Co., supra; Carter v. Shop-Rite Foods, Inc., supra; Chewning v. Schlesinger, supra. This approach seems consistent with the parallel treatment generally accorded the two remedies by both the Supreme Court and the lower federal courts. Compare Teamsters v. United States, supra, with Albemarle Paper Co. v. Moody, supra. Moreover, the Teamsters Court's concern that imposing an absolute bar on relief to nonapplicants would "put beyond the reach of equity the most invidious effects of employment discrimination" is equally applicable here. Teamsters v. United States, 431 U.S. at pp. 365, 367, 97 S. Ct. at p. 1871. That language at least suggests that limiting the type of relief available to a victim of discrimination because he is a nonapplicant would be inconsistent with the duty of the courts to secure "complete justice" and provide a "make whole" remedy for such victims. Id. at 364, 97 S. Ct. 1843. The Court thus concludes that backpay relief is available to nonapplicants, and that the standards set out in Teamsters v. United States, supra, and described above are to be used in making individual eligibility determinations. *fn15"

 Unlike an award of retroactive seniority which is subject only to the maximum recovery date of July 2, 1965, backpay awards are also subject to a statute of limitations. Title VII specifically provides that "(b)ack pay liability shall not accrue from a date more than two years prior to the filing of a charge with" the E.E.O.C. 42 U.S.C. § 2000e-5(g). *fn16" Thus, the Anderson plaintiffs' backpay award is actually subject to a maximum recovery date of November 24, 1973, which is two years before their charge naming Local 3 was filed with the Commission. *fn17" The Ingram plaintiffs, whose backpay recovery is based on § 1981 rather than Title VII, *fn18" are subject to the applicable state limitations period, Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1974), which in New York is three years prior to the time the lawsuit was commenced. See Cates v. Trans-World Airlines, Inc., 561 F.2d 1064, 1067 n.4 (2d Cir. 1977). The maximum recovery date for the Ingram plaintiffs is thus May 20, 1974, three years before their complaint in this action was amended to include Local 3 as a defendant.

 In calculating the amount appropriate for individual backpay awards, the magistrate should take into account, in addition to wages, fringe benefits such as insurance, pension benefits and vacation and sick pay, as well as overtime pay and shift differentials. See, e.g., Pettway v. American Cast Iron Pipe Co., supra; Farmer v. United Catering, 99 L.R.R.M. 2166, 19 EPD P 9,075 (E.D.Mich.1978) (including such items in a backpay award against a union). From this amount must be deducted the amount earned as a cleaner between the time of the individual class member's recovery date and the backpay termination date. 42 U.S.C. § 2000e-5(g). The backpay termination date in this Circuit is the date of the "actual remedying of the discrimination", I. e., the date on which the class member involved becomes a laborer. E. E. O. C. v. Enterprise Association of Steamfitters, 542 F.2d at 590 (mandating such a cutoff date for a backpay award against a union). This approach, which has been referred to as a "front pay" award in other circuits, See, e.g., United States v. Leeway Motor Freight, supra; White v. Carolina Paperboard Corp., 564 F.2d 1073, 1091 (4th Cir. 1977) (backpay to be continued until class members attain rightful place), is particularly appropriate here since the Garden's seasonal hiring practices suggest that it may be some time before all qualifying class members actually become laborers. See, e.g., Ivey v. Western Electric Co., 23 Fair Empl. Prac. Cas. (BNA) 1028, 16 EPD P 8,299 (N.D.Ga.1978). If, as is likely, front pay awards are to be made to some class members, the magistrate may either recommend a procedure by which the Court will retain jurisdiction until all qualified class members have attained their rightful place in order to make periodic front pay adjustments, See Ivey v. Western Electric, supra, or supplement the backpay award by an amount equal to the estimated present value of lost earnings that are reasonably likely to occur between the final decree and the time when the class member involved can assume a laborer's position. White v. Carolina Paperboard, 564 F.2d at p. 1091. See also, United States v. Leeway Motor Freight, supra; James v. Stockham Valves & Fittings Co., supra.

 Once the above described calculations have been completed, the magistrate may award interest to qualified class members for Past earnings lost as a result of the discrimination. See, e.g., Pettway v. American Cast Iron Pipe Co., supra; Kinsey v. Leg Mason Wood Walker, Inc., 16 EPD para. 8,168 (D.C.D.C.1978), affirmed, 196 U.S. App. D.C. 56, 605 F.2d 572 (D.C. Cir. 1979).

 Finally, the Court notes that since the consent decree entered into between plaintiffs and the Garden and Allied defendants provides for a monetary award, Local 3 will not be held accountable for the total backpay figure resulting from the backpay calculations discussed above. Whether the amount provided for in the consent decree will be subtracted from the total backpay figure, with the union liable for the remainder, Farmer v. United Catering, supra, or whether the union will be held liable for a portion of the total figure, with the remainder attributed to the consent decree, Myers v. Gilman Paper Co., 544 F.2d 837 (5th Cir. 1977); Stevenson v. International Paper Co., 432 F. Supp. 390, 14 EPD P 7,615 (W.D.La.1977), will be determined by the Court after the magistrate submits his report. But see, United States v. East Texas Motor Freight System, Inc., 564 F.2d 179 (5th Cir. 1977) (upholding a district court's denial of a backpay award against a union on the ground that plaintiffs were "fully compensated" by the monetary award contained in a consent decree between plaintiffs and their employer). The magistrate's report should include a recommendation for the total backpay figure, as well as for the amounts owing individual class members.

 III. Prospective Relief

 The prospective relief sought here poses none of the complicated and sensitive questions which confront a court asked to establish hiring goals or quotas. *fn19" See, e.g., Rios v. Enterprise Association Steamfitters Local # 638, 501 F.2d 622 (2d Cir. 1974). Once a violation of either Title VII or § 1981 is established, regularization of employment or referral practices to remedy the vestiges of past discrimination is well within the broad equity power of the trial court. 42 U.S.C. § 2000e-5(g). See United States v. Wood, Wire & Metal Lathers International Union, 471 F.2d 408 (2d Cir. 1973) ("the only limitation on the broad powers of affirmative relief is that restricting preferential quota hiring"); Stamps v. Detroit Edison Co., 17 EPD P 8,583 (E.D.Mich.1978) (ordering defendants to notify class members of their rights under a remedial order by mail). Accordingly, plaintiffs' request that Local 3 be ordered to maintain a referral "register" and to post notices in the Garden of how to apply for a referral is granted. Defendant is ordered to submit to the magistrate for his approval a plan for the establishment of referral lists and copies of the proposed notices to be posted in the Garden.

 Finally, plaintiffs' request that class members be referred to the Garden in order of their "current seniority" is granted only until such time as retroactive seniority dates have been established. After that time, and after the five class members named in the consent decree have obtained laborers positions, Local 3 is ordered to refer class members to the Garden under the terms of the consent decree in the following order: first, applicants or qualified nonapplicants who now seek a laborer's position in order of their retroactive seniority date, I. e., those with the earliest retroactive seniority date should be referred first; second, once this first group of class members has been placed, the remaining class members should be referred in the order that they seek a referral. Where more than one class member in this second group applies for a referral at the same time, they should then be referred in order of their current seniority as cleaners. In the Court's view, this approach recreates the conditions that would have existed but for the discrimination more accurately than would the approach suggested by plaintiffs.

 IV. Attorneys' Fees & Costs

 Reasonable attorney's fees and costs may be allowed the prevailing party in employment discrimination suits under either Title VII or § 1981. See 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988. The standard for determining the amount of such fees is the same under both statutes, and although a fee award is committed to the discretion of the trial court, prevailing plaintiffs in civil rights actions generally recover fees and costs absent special circumstances which would make such an award unjust. See Christiansburg Garment Co. v. E. E. O. C., 434 U.S. 412, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978); Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F.2d 34, 37 (2d Cir. 1978). In this case, defendant's liability has been established and a judgment will ultimately be entered which will both change Local 3's referral practices and provide individual relief for members of the plaintiff classes. There is thus no doubt that plaintiffs' claims were meritorious and that plaintiffs are the "prevailing party" entitled under the appropriate statutes to recover reasonable attorneys' fees. 42 U.S.C. § 2000e-5(k) and 42 U.S.C. § 1988.

 Since Allied and the Garden were initially parties to this litigation, it will be necessary to determine what portion of plaintiffs' fees and costs are chargeable to Local 3. Currently pending before this Court for its approval is an application for a fee award, contained in the consent decree, in connection with legal services performed by plaintiffs' attorney until the time of settlement with Allied and the Garden. In a forthcoming opinion, the Court will determine a reasonable fee award for all such services. However, it is clear that since the three defendants were, until settlement, part of the same consolidated action, these legal services were performed in connection with plaintiffs' claims against all defendants. The Court thus finds that Local 3 shall be liable for one-third of plaintiffs' legal costs incurred from the commencement of this action until the time of settlement, exclusive of any costs incurred by plaintiffs in settlement negotiations to which Local 3 was not a party. See Rogers v. International Paper Co., 510 F.2d 1340, modified on other grounds, 526 F.2d 722 (8th Cir. 1975); Sagers v. Yellow Freight System, Inc., 529 F.2d 721 (5th Cir. 1976); Bush v. Lone Star Steel Co., 373 F. Supp. 526 (E.D.Tex.1974). The additional fees incurred as a result of the trial in which only Local 3 was involved, as well as all fees incurred during the remedial phase of this litigation, must necessarily be borne by Local 3 alone.

 The standards for computing a reasonable fee award have been set out in this Circuit in City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974). After a "lodestar" figure has been calculated, the magistrate may consider additional subjective factors in increasing or decreasing the amount of the fee. City of Detroit, 495 F.2d at 471. Moreover, in an appropriate case, the not-for-profit character of the defendant against whom an award is granted may be considered in adjusting the fee. See Rios v. Enterprise Association Steamfitters Local 638, 400 F. Supp. 993, (S.D.N.Y.1975), Aff'd sub nom. E. E. O. C. v. Enterprise Association Steamfitters Local 638, 542 F.2d 579 (2d Cir. 1976), Cert. denied, 430 U.S. 911, 97 S. Ct. 1186, 51 L. Ed. 2d 588 (1977). The Court notes, however, that any deviation in amount from the "lodestar" fee award figure in recognition of such factors must be supported by specific factual findings indicating the basis for the deviation. City of Detroit, 495 F.2d at 471.

 To arrive at a fee award which is reasonable under all the circumstances, the magistrate must be presented with time logs or affidavits detailing the number of hours spent and identifying the attorneys and activities involved. Distinctions between time spent in court and time attributed to research, administrative and related services may be appropriate in fixing a reasonable hourly rate. See Firebird Society v. Members of the Board of Fire Commissioners, 556 F.2d 642 (2d Cir. 1977). Care should be taken to avoid awarding fees for duplicated services and unnecessary expenditures of time. See Gagne v. Maher, 594 F.2d 336 (2d Cir. 1979); Reynolds v. Coomey, 567 F.2d 1166 (1st Cir. 1978). If the time logs and other supporting documents are sufficiently detailed, they may provide an appropriate basis for determination of a reasonable fee. Rios, 400 F. Supp. at 996. If there are disputes of fact over the elements that comprise the fee award, however, or if there are "factual voids" in the information presented, an evidentiary hearing is "imperative" before an adequate fee can be fairly determined. City of Detroit, 495 F.2d at 473.

 V. Conclusion

 The case is now referred to the magistrate for further proceedings consistent with the guidelines set forth herein. During the course of those proceedings, issues not dealt with in this opinion will undoubtedly arise. The Court does not in any way intend to preclude consideration of such issues by the magistrate who, of course, will have full authority to make recommendations with respect to those issues in light of this opinion.

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