Patterson v. NEWSPAPER AND MAIL DELIVERERS'UNION
| Decision Date | 14 May 1993 |
| Docket Number | No. 73 Civ. 3058 (WCC),73 Civ. 4278 (WCC). Claim No. 277.,73 Civ. 3058 (WCC) |
| Citation | 820 F. Supp. 796 |
| Parties | John R. 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 temporary transfer of the former regular situation holders and Group I employees of IMPERIAL NEWS COMPANY, now bankrupt, to other companies in the industry, pursuant to the terms of the Settlement Agreement, 73 Civ. 3058 (WCC) and 73 Civ. 4278 (WCC), U.S.D.C., S.D.N.Y. |
| Court | U.S. District Court — Southern District of New York |
Grotta, Glassman & Hoffman, P.A., New York City, for Imperial Delivery Service (Richard J. Delello and Mark J. Potel, of counsel).
Proskauer Rose Goetz & Mendelsohn, New York City, for City & Suburban Delivery Systems, a Div. of The New York Times Co. (Joseph Baumgarten, of counsel).
Proskauer Rose Goetz & Mendelsohn, New York City, for New D.N. Co. L.P., the new publisher of the Daily News (Kathleen M. McKenna, of counsel).
Sabin, Bermant & Gould, New York City, for Evening Journal Ass'n and for Newark Morning Ledger Co. (Sidney D. Kress, of counsel).
Hudson News Co., North Bergen, NJ, on behalf of Hudson County News Co. (Marshall E. Lippman, Gen. Counsel).
William S. Ellis, Interim Adm'r, Forsythe, Holbrook, Patton, Bovone, Seward & Ellis, New York City.
In 1973 a class of private plaintiffs and the Equal Employment Opportunity Commission ("EEOC") brought two civil rights actions against the Newspaper and Mail Deliverers' Union of New York and Vicinity ("NMDU" or "Union") and more than fifty news publishers and 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 into 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, with the objective of attaining 25% minority employment. See Settlement Agreement at ¶ 7. 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 establishes an Administrator, appointed by the Court, to implement the provisions of the Consent Decree and supervise its performance. The Consent Decree authorizes the Administrator to hear claims concerning violations of the Decree. Appeals from his decisions are heard in this Court.
Its goals having been reached, the Consent Decree was vacated by a July 8, 1992, Opinion and Order of this Court. See Patterson v. Newspaper and Mail Deliverers' Union, 797 F.Supp. 1174 (S.D.N.Y.1992). However, the Administrator retained jurisdiction over all claims instituted under the Consent Decree before July 29, 1992.1 Pursuant to this grant of authority, on January 29, 1993, Administrator William S. Ellis, Esq. (the "Administrator") issued an order in denominated "Claim 277" (the "Order"). In accord with the Settlement Agreement, defendants Evening Journal Assoc. (EJA), Hudson County News Co. (Hudson), Daily News (the News), Newark Morning Ledger Co. (NML), City & Suburban Delivery Systems (C & S), and Imperial Delivery Service, Inc. (IDS) seek review of this order. The Court has reviewed the memoranda submitted by the parties, and for the reasons set forth below, the Administrator's decision is vacated and remanded for an evidentiary hearing.
In early 1991, Imperial News Co. (Imperial), a signatory to the Patterson Settlement Agreement, sold its assets to Magazine Distributors, Inc. (MDI). This transaction resulted in a number of NMDU-represented Imperial employees being laid off.2 At present, there are two proceedings which might result in the placement of these workers. First Claim 274 is pending before the Administrator and will determine whether MDI is a successor in interest to Imperial and therefore a party to the Consent Decree. This claim has been adjourned at the request of the parties in an attempt to settle the matter. The Administrator's instant opinion predicts that any such settlement will make some provision for the former Imperial employees. Order at 5. The claim at bar is an attempt to transfer these workers under ¶ 18 of the consent decree which allows the reassignment of workers displaced by several types of corporate transactions.3
Since their termination, most of the former Imperial employees have been working off of Group II at the New York Times (the Times) through voluntary placement. In early 1993, the Times relocated and modernized its facilities and, as a result, employment off of Group II at the Times became no longer available. The Administrator responded by attempting to broker a voluntary agreement among several employers in the industry to accept these employees during the pendency of this claim. However, the Administrator's efforts were unsuccessful and an evidentiary hearing was scheduled to resolve the matter. Prior to the hearing, the Administrator issued the instant order temporarily placing the former Imperial employees with eleven employers in the industry. Appellants now seek to overturn the Administrator's order.
The employers challenge both the Administrator's jurisdiction and the adequacy of the procedures below. We uphold the Administrator's jurisdiction to act under ¶ 18 of the Consent Decree, but find that he exceeded his discretion in ordering this relief without a hearing at which the employers might have presented evidence to support their position. Therefore, the order of the Administrator is vacated and remanded for an evidentiary hearing.
There are two challenges made to the Administrator's jurisdiction. First, appellants claim the Administrator's power under ¶ 18 was limited by our termination of the Consent Decree. Second, one appellant claims that the Administrator lacks jurisdiction over it because the claim was not instituted against it before July 29, 1992. We disagree with both contentions.
Appellants argue that the Administrator had no jurisdiction under ¶ 18(a) of the Consent Decree to issue this transfer order because the order does not further the goal of the Consent Decree. Paragraph 18(a) provides:
Individuals who are employed by a defendant employer may ... be added to any other defendant employer's Group I list only if (a) they have lost their regular situation elsewhere in the industry by reason of lay-off, merger, consolidation or permanent suspension of the newspaper or company at which they were employed and (b) the Administrator has certified that such lay-off or merger, consolidation or permanent suspension is legitimate....
Appellants argue that this order can not be justified as furthering the affirmative action objective of the Consent Decree because this Court has held that the Decree's goal has been achieved. The employers support this contention by pointing out that the Administrator did not require that the transferred employees be "matched", and thus, the order does not advance minority representation in the industry. We reject appellants' argument because it is in conflict with our prior instructions to the Administrator.
The natural extension of appellants' argument is that since the Decree's affirmative action objective has been achieved, any order issued by the Administrator would be an abuse of discretion because it would not advance the Decree's goal. Nonetheless our order to vacate instructs the Administrator to hear and decide all pending claims in order to affect an orderly winding down of his office. Having charged the Administrator with the responsibility of disposing of these residual claims, we will not now eliminate his authority to do so.
The Consent Decree was designed to meet an affirmative action objective, but it also established procedures to balance this objective with the interests of employers, organized labor, and non-minority workers. The procedures established under ¶ 18 have governed certain aspects of the industry's operations for nearly two decades, and to avoid prejudicing those workers that acted in reliance on the these procedures, our order vacating the Decree underscored the Administrator's authority to dispose of the remaining claims...
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