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PATTERSON v. NEWSPAPER AND MAIL DELIVERERS' UNION

June 24, 1991

JOHN E. PATTERSON, ET AL., PLAINTIFFS,
v.
NEWSPAPER AND 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. IN THE MATTER OF THE APPLICATION OF JOHN QUERIM, THOMAS FARKAS, MICHAEL MAK, PETER MAK, THOMAS MEDORA, RUDOLPH J. RELLA, RAFAEL ROSADO, JOHN TOMA, DAVID MONK, ROBERT SHERMAN AND VINCENT GUGLIELMOTTI, TO BE PLACED ON THE GROUP I LIST OF THE NEW YORK TIMES PURSUANT TO THE TERMS OF THE SETTLEMENT AGREEMENT, PATTERSON, ET AL., V. NMDU, ET AL., 73 CIV. 3058 (WCC) AND 73 CIV. 4278 (WCC), U.S.D.C., S.D.N Y



The opinion of the court was delivered by: William C. Conner, District Judge.

OPINION AND ORDER

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 affirmed.

BACKGROUND

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, 1990.*fn1

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 applications.

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 ...


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