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PATTERSON v. NEWSPAPER & MAIL DELIVERERS' UNION

July 8, 1992

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.



The opinion of the court was delivered by: WILLIAM C. CONNER

 CONNER, D.J.:

 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. *fn1" 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 P7. 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 P8. 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.

 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 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. *fn2" 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. *fn3"

 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 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 "if 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" "if 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. *fn4" Plaintiffs never availed themselves of the opportunity to conduct discovery of the defendant companies with respect to their compliance reports. *fn5" 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 Decree *fn6" and Rule 60(b), Fed. R. Civ. P., *fn7" to vacate or modify the Consent Decree. For the reasons discussed below defendants' motion 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 "putting 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, 76 L. Ed. 999, 52 S. Ct. 460 (1932), the Supreme Court held that:


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