The opinion of the court was delivered by: 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
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 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. 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 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 review of
a determination by Administrator William S. Ellis, Esq. (the
"Administrator"), denominated "Claim 255." 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
The claim before the Court arises from the complaint of a
number of individuals who shape and work at the New York Times
(the "Times") as casuals concerning the failure of the
Administrator to recommend them for placement on the Interim
Group I list issued on November 20, 1988 and amended on March 16,
Since the approval of the revised Interim Group I list two
employees who were in the Armed Forces during the period prior to
March 1990 were added to the bottom of the list and one employee,
who had been on the original list and then on disability, was
restored to the list. These three additions and the reasons for
such actions were communicated to the court.
In May 1990, the plaintiffs herein applied to the Administrator
to place them on the bottom of the Interim Group I list. The
Administrator denied their request, and the plaintiffs appealed
to this Court. On inquiry by the Court, the Administrator
suggested that the applicants be granted a full hearing on their
On August 17, 1990, the seven original applicants (John Querim,
Thomas Farkas, Michael Mak, Peter Mak, Thomas Medora, Rudolph
Rella, Rafael Rosado) along with David Monk, Robert Sherman, and
Vincent Guglielmotti were granted a full hearing.*fn2 The
evidence presented by the applicants revealed that of the ten men
all were casual employees and three were minorities. After
reviewing the complainants' shift records and upon comparison of
those records with the records of minority and non-minority
employees set forth on the schedules attached to the revised list
dated March 16, 1990, the Administrator found no basis for giving
these applicants preference over the minority and non-minority
employers who had shaped for a number of years but still had not
shaped sufficient shifts to warrant placement on the revised
Interim Group I list.
The plaintiffs argue that since shaping effort is not noted at
the Delivery Department, their shift records do not accurately
reflect their true merit and steady efforts. Although such
allegations were made before the Administrator and considered by
him, they failed to persuade the Administrator that such
claimants deserved to be placed on the Interim Group I list.
The complainants raised before the Administrator a number of
issues regarding alleged abuse of the Group II list and its
impact on them. The Administrator found such arguments immaterial
and irrelevant to their applications, concluding that his
determination in Claim 255 did not turn on any act of the Group
II employees, but ...