Patterson v. Newspaper & Mail Deliverers Union

738 F. Supp. 804
CourtDistrict Court, S.D. New York
DecidedJuly 3, 1990
DocketNos. 73 Civ. 3058 (WCC), 73 Civ. 4278 (WCC); Claim No. 216
StatusPublished

This text of 738 F. Supp. 804 (Patterson v. Newspaper & Mail Deliverers Union) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Patterson v. Newspaper & Mail Deliverers Union, 738 F. Supp. 804 (S.D.N.Y. 1990).

Opinion

OPINION AND ORDER

WILLIAM C. CONNER, District Judge.

On September 19, 1974, the Court issued an opinion and order approving the settlement of this case and incorporating the settlement agreement (the “Agreement”) in a consent decree, familiarity with which is presumed. See Patterson v. Newspaper & 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 Agreement implements an affirmative action program which modifies the hiring procedures for newspaper deliverers under the industry-wide collective bargaining agreement. In the claim now before the Court, Jack Lavache appeals a decision by Administrator William S. Ellis, Esq. (the “Administrator”) arising under the Agreement. For the following reasons, I uphold the Administrator’s determination.

BACKGROUND

Lavache, a minority employee of The Daily News (the “News”), appeals from the determination of the Administrator issued in Claim 216 on November 22, 1988. The following procedural history is relevant to the disposition of this case on appeal. In the fall of 1986, a number of individuals were added to the Group III list of the News. A challenge to the News’ action was brought before the Administrator by Penda Hair, an attorney for the NAACP Legal Defense and Educational Fund, Inc. (“LDF”), on behalf of the class of beneficiaries under the Agreement. On March 24, 1987, the Administrator held a conference concerning these additions to the Group III list.

On July 22, 1987, the Administrator issued his first decision in Claim 216, determining that the- individuals had been hired without regard to the hiring ratio set forth in paragraph 15 of the Agreement1 and directing the News to add eleven minority persons to its Group III list and to credit them with priority and shifts worked as though they had been added in October, 1986. The Administrator further directed that a minimum of six of these eleven persons be taken from the Group IV list of the News. The Newspaper and Mail Deliverers’ Union of New York and Vicinity (“NMDU”) appealed, and this Court affirmed the decision in all respects on March 15, 1988.

In Claim 223, the Administrator, on April 7, 1988, approved the transfer of thirteen non-minority persons to the News’ Group I list and ordered that they be matched by thirteen minority persons in accordance with paragraph 18(b) of the Agreement. The Court approved the determination in Claim 223 in an opinion and order dated June 29, 1989.

[806]*806On May 16, 1988, the Adjustment Board, appointed pursuant to an agreement between the News and the NMDU, issued a decision adding persons to the Group III and Group I lists in compliance with the orders in Claims 216 and 223. The end result of this decision was that two “wild card”2 minority persons were elevated to the Group III list and then the Group I list and Lavache, more senior than either of them, was raised from the Group IV list to the Group III list.

On May 26, 1988, the Administrator, by letters to the parties, objected to the portion of the Administrative Board decision which resulted in the two wild cards’ addition to the Group I list and ordered the Adjustment Board to modify its decision. The NMDU filed a notice of intent to review the Administrator’s letter. On July 11, 1988, the Administrator amended his May 26, 1988 letter and directed the Adjustment Board to move wild cards Conrad Ephram and Gilbert Rodriguez, Jr. from Group I to Group III and to place Lavache and another employee at the bottom of Group I.

By letter dated August 15, 1988, the law firm of Alter and Barbero notified the Administrator that it had been retained to represent Lavache in Claim 216. By letter dated August 19, 1988, the Administrator gave notice to the parties that a meeting would be held on September 12, 1988 to pursue settlement of Claim 216. In September 1988, the meeting was held and attended by the News, the NMDU, the LDF and others, including Lavache. At that meeting, a settlement was reached whereby four minority persons, including Lavache, and four non-minority persons would be elevated from Group III to Group 1.

At a conference on October 20, 1988 concerning the settlement, attended by the News, the NMDU, the LDF and others, including Lavache, the Administrator questioned Lavache as to who had represented him at the September meeting. The Administrator did not notify the law firm of Adler and Barbero of this meeting. In a determination dated November 22, 1988, in which the Administrator approved the September 1988 settlement and directed its implementation by the News, the Administrator found that Lavache had been represented by the LDF during the settlement. The Administrator further stated that La-vache could pursue the issue of his priority number through his new counsel.

On November 29, 1988, Alter and Barbe-ro notified the Administrator that Lavache intended to seek review of the November 22, 1988 determination. On December 2, 1988, the Adjustment Board implemented the settlement and ordered the elevation of eight individuals, including Lavache, to the Group I list.

DISCUSSION

Standard of Review

In determining the appropriate standard of review of the Administrator’s decision, this Court first turns to the Agreement itself. Although the Agreement does not specify the standard of review to be applied, paragraph 4 of the Agreement empowers the Administrator to take all actions he deems necessary to implement the provisions and to ensure the performance of the Order. It further provides that the Administrator shall hear and determine a wide variety of claims arising under the Agreement, which may then be brought before the Court for review. It is clear, therefore, that the Agreement provides the Administrator with wide-ranging and broad authority.

In Foreman v. Wood, Wire & Metal Lathers Intl. Union Local No. 46, 557 F.2d 988, 992 (2d Cir.1977), the Second Circuit Court noted that the scope of review of an independent administrator appointed to ensure compliance with a settlement decree was similar to that applied to an arbitrator’s decision. The court, however, declined to decide whether the standard of review was in all respects the same. More recently in United States v. International [807]*807Bhd. of Teamsters, 905 F.2d 610 (2d Cir. 1990), the Second Circuit Court reiterated that an administrator’s decision is “entitled to great deference.” With this in mind, the Court turns to the Administrator’s decision.

Effect of October Hearing on Settlement

Lavache asserts that he hired the law firm of Alter and Barbero to represent him personally because he believed that the LDF would not adequately represent his interests. Lavache contends that because his testimony was taken at the October hearing without notice to his personal counsel, he is not bound by his representation that he agreed to the terms of the September 1988 settlement.3 Lavache cites no authority for this proposition.

In his November 1988 determination, the Administrator concluded that Lavache was represented at the settlement conference by the LDF, with whom Lavache had consulted during the conference before accepting the terms of the settlement. At the October 20, 1988 hearing, the following exchange took place between the Administrator and Lavache:

Q. ...

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Cite This Page — Counsel Stack

Bluebook (online)
738 F. Supp. 804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patterson-v-newspaper-mail-deliverers-union-nysd-1990.