Second Circuit Court of Appeals jurisdiction over the instant action. Accordingly, this Court may act only to maintain the status quo during pendency of that appeal. Because the status quo as of July 8, 1992, the date of the Court's Opinion and Order terminating the Decree, is that the Consent Decree is of no force and effect, restoration of the Decree based on allegations that the Union and some of the defendant employers have engaged in acts of discrimination subsequent to its termination would be beyond the authority of this Court. While the LDF's Rule 62(c) motion could be denied on this basis alone, the Court believes that a discussion of the Rule 62(c) standard as it applies to the facts of this case is instructive.
The criteria to be used in determining whether an application under Rule 62(c) should be granted are much the same as would be employed on application for a preliminary injunction. Thus, to secure the relief sought in the present case, the LDF must (1) make a strong showing that it is likely to succeed on the merits of the appeal; (2) establish that unless the Consent Decree is restored, the private plaintiffs will suffer irreparable injury; (3) show that restoration of the Decree's provisions will not substantially injure other parties interested in the proceeding; and (4) show that the public interest favors restoration of the Consent Decree. Hilton v. Braunskill, 481 U.S. 770, 776 (1987); United States v. Int'l Brotherhood of Teamsters, 728 F. Supp. 920, 923 (S.D.N.Y. 1989).
A. Likelihood of Success on the Merits
This Court adheres to the reasoning set forth in its Opinion and Order dated July 8, 1992, terminating the Consent Decree in its entirety. Accordingly, an extensive exposition of the reasons why the Court believes the LDF is not likely to succeed on the merits of its appeal is unnecessary, and the Court will confine itself to a few brief remarks on this point.
As the Court has noted previously, the Consent Decree was "designed 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." See Settlement Agreement, whereas Clauses. The attainment of 25% minority employment industry-wide was the standard established for measuring compliance with this objective. Minority representation in the membership of the NMDU in the newspaper industry in metropolitan New York was less than 1% when the Consent Decree was issued in 1974. As of March 30, 1992, minority representation was proven to be 27.78% industry-wide. Thus, the stated objective of the affirmative action program set forth in the Consent Decree -- 25% minority employment industry-wide -- has been achieved. Finding that the purposes of the litigation as incorporated in the Consent Decree had been achieved, see United States v. United Shoe Machinery Corp., 391 U.S. 244, 248 (1968), this Court terminated the Decree.
Contrary to the apparent belief of the LDF, the Decree nowhere states that it should remain in effect until each and every claim of discrimination is resolved. See LDF Memo. at 17. Indeed, it is inconceivable that the defendants would have entered into an agreement, the termination of which depended solely upon the unilateral decisions of employees regarding whether or not to charge a given employer with acts of discrimination. Vacation of the Consent Decree, however, does not permit defendants to discriminate against minorities in employment decisions. Title VII and other similar laws remain in effect and are fully applicable to defendants. If subsequent events disclose continuing discrimination, the LDF has every right to proceed against the alleged wrongdoers in a new action.
B. Irreparable Injury
Pointing to what it alleges to be discriminatory acts occurring in the workplaces of certain defendant employers, the LDF argues that the dissolution of the Consent Decree and the "freeing of defendants from its restraints and from the immediate, ongoing supervision of the Interim Administrator has already resulted in substantial injury to minority workers. " LDF Memo. at 17. The LDF has failed to establish, however, that vacation of the Consent Decree leaves any minority individual irreparably harmed, if, in fact, it is later determined that the alleged conduct was unlawful. There are numerous avenues open to those individuals who allege that they have been the victims of discrimination: an individual may bring a claim before the EEOC; the New York State Division of Human Rights; an arbitrator under the applicable labor agreement, or the NLRB if the Union breaches its duty of fair representation by denying proper access thereto; and, of course, the courts, without exhausting Title VII administrative requirements, by commencing an action under 42 U.S.C. § 1981.
The vague references to the alleged pressure on minorities to accept buyouts from their employers and the allegations that minorities are given less desirable jobs because of their race or in retaliation against those who speak out when things are not done by the rules do not suffice to convince the Court that irreparable harm will result if the Decree is not reinstated. Restoration of the Consent Decree would only afford the individuals allegedly discriminated against one more forum, albeit a familiar and convenient one, in which to pursue their claim.
C. Injury to Other Parties if the Consent Decree is Restored
It is no argument to say, as the LDF does, that mere compliance with the law will shield the defendants from any injury that may come to them from restoration of the Consent Decree. Such an argument overlooks the fact that under the terms of the Settlement Agreement, each defendant is responsible for its share of the costs of the Administrator's services, regardless of whether that particular defendant has been charged with, much less been proved to have committed, discriminatory acts. As this Court noted in its Opinion and Order dated July 8, 1992, the expenses attendant to maintaining the office of the Administrator are substantial. See Opinion at 12, 15 n.11. Accordingly, the Court adheres to its belief that the more equitable solution -- given the fact that the goal of 25% minority employment in the newspaper industry represented by the NMDU has been exceeded -- is dissolution of the Consent Decree, so that those employers who have demonstrated an ability to police themselves may be freed from the expense of processing charges against other employers.
D. The Public Interest
The plaintiffs have not demonstrated that the public interest would be served by restoration of the Consent Decree. Public confidence in the law will be increased with the denial of the LDF's application, and, should it be warranted following the commencement of a new action, the design of a remedial scheme better suited to redressing continuing discrimination, if any, that may be proved thereafter.
For the foregoing reasons, the LDF's motion to restore the Consent Decree pending appeal of the Judgment Order of this Court, dated July 29, 1992, is denied.
Dated: New York, New York
September 30, 1992
William C. Conner
United States District Judge