E.E.O.C. v. Local 638 . . . Local 28 of Sheet Metal Workers' Intern. Ass'n

Decision Date16 January 1985
Docket NumberNos. 1106,s. 1106
Citation753 F.2d 1172
Parties36 Fair Empl.Prac.Cas. 1466, 36 Empl. Prac. Dec. P 34,966 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, and The City of New York, Plaintiff-Appellee-Cross-Appellant, v. LOCAL 638 ... LOCAL 28 OF the SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, Local 28 Joint Apprenticeship ..., Sheet Metal and Air-Conditioning Contractors' Association of New York City, Inc., Defendants-Appellants-Cross-Appellees. LOCAL 28, Third-Party Plaintiff, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, Third-Party Defendant-Plaintiff-Appellee. LOCAL 28 JOINT APPRENTICESHIP COMMITTEE, Fourth-Party Plaintiff, v. NEW YORK STATE DIVISION OF HUMAN RIGHTS, Fourth-Party Defendant. to 1111, Dockets 82-6241, 82-6243, 83-6353, 83-6357, 83-6295, 83-6299.
CourtU.S. Court of Appeals — Second Circuit

Otto v. Obermaier, New York City (Ronald C. Minkoff, Obermaier, Morvillo & Abramowitz, Edmund P. D'Elia, New York City, William Rothberg, Brooklyn, N.Y., of counsel), for defendants-appellants-cross-appellees Local 28 and Local 28 Joint Apprenticeship Committee.

Martin R. Gold, New York City (Jane G. Stevens, Deborah Sherman, Gold, Farrell, & Marks, New York City, William Rothberg, Brooklyn, N.Y., of counsel), for defendant-appellant Sheet Metal and Air Conditioning Contractors' Association of New York City, Inc.

Sheila Abdus-Salaam, Asst. Atty. Gen. of the State of N.Y., New York City (Robert Abrams, Atty. Gen. of the State of N.Y., Rosemarie Rhodes, Alan D. Aviles, Asst. Attys. Gen., New York City, of counsel), for plaintiff-appellee State Division of Human Rights.

Charles R. Foy, New York City (Frederick A.O. Schwarz, Jr., Corp. Counsel, Francis Caputo, New York City, of counsel), for plaintiff-appellee-cross-appellant City of New York.

Warren Bo Duplinsky, Atty., Equal Employment Opportunity Commission, Washington, D.C. (David L. Slate, General Counsel, Philip B. Sklover, Associate General Counsel, Barbara Lipsky, Acting Asst. General Counsel, Equal Employment Opportunity Commission, Washington, D.C. of counsel), for plaintiff-appellee Equal Employment Opportunity Commission.

Before MANSFIELD, WINTER and PRATT, Circuit Judges.

George C. PRATT, Circuit Judge:

Defendants, Local 28 of the Sheet Metal Workers' International Association (Local 28), the Local 28 Joint Apprenticeship Committee (JAC), and the Sheet Metal and Air Conditioning Contractors' Association of New York City (contractors' association) appeal from several orders of the United States District Court for the Southern District of New York, granted by the late Henry F. Werker, Judge, which (1) held all defendants in contempt of court for violating numerous provisions of the Revised Affirmative Action Program and Order (RAAPO) governing defendants' employment practices relating to nonwhites (black and Spanish-surnamed workers); (2) imposed both compensatory and coercive contempt fines to be used to fund supplemental training for nonwhite apprentices; and (3) adopted a new Amended Affirmative Action Plan and Order (AAAPO) proposed by plaintiffs. The City of New York (city) cross-appeals from an order, incorporated in AAAPO, establishing a temporary nonwhite membership goal for Local 28 of 29.23%. As to Local 28 and the JAC, we affirm all but one of the contempt findings and all of the sanctions ordered below; as to the contractors' association, we reverse the only contempt finding attributable to it, and reverse the award of administrative expenses, costs, and attorneys fees against it. We also affirm, with two modifications, the AAAPO entered by the district court. Because Judge Werker's findings with regard to the membership goal contained in AAAPO were not clearly erroneous, we affirm the cross-appeal.

These appeals and cross-appeal arise from yet another attempt to force Local 28 and its JAC to correct the discriminatory practices they have used to keep nonwhites out of Local 28. As we have stated before, "Local 28 and the JAC are no strangers to the courts", EEOC v. Local 638, 532 F.2d 821, 824 (2d Cir.1976), and for a more complete history of this protracted struggle we refer the uninitiated reader to the many earlier opinions dealing with these defendants. E.g., State Commission for Human Rights v. Farrell, 43 Misc.2d 958, 252 N.Y.S.2d 649 (New York Cty. 1964); State Commission of Human Rights v. Farrell, 47 Misc.2d 244, 262 N.Y.S.2d 526 (New York Cty. 1965); State Commission of Human Rights v. Farrell, 52 Misc.2d 936, 277 N.Y.S.2d 287 (New York Cty. 1967), aff'd, 27 A.D.2d 327, 278 N.Y.S.2d 982 (1st Dep't), aff'd, 19 N.Y.2d 974, 281 N.Y.S.2d 521, 228 N.E.2d 691 (1967); United States v. Local 638, Enterprise Association, etc., 347 F.Supp. 164 (S.D.N.Y.1972); EEOC v. Local 638, 401 F.Supp. 467 (S.D.N.Y.1975), aff'd as modified, 532 F.2d 821 (2d Cir.1976); EEOC v. Local 638, 421 F.Supp. 603 (S.D.N.Y.1975); EEOC v. Local 638, 565 F.2d 31 (2d Cir.1977).

I. BACKGROUND

Local 28 is a union composed of workers who perform sheet metal work in the New York metropolitan area. At the time this litigation was instituted Local 28 represented sheet metal workers only in New York City; but in 1981 it merged with several of its sister locals and now represents sheet metal workers in New York City, in Nassau and Suffolk counties in New York State, and in Essex, Passaic, Hudson, and Bergen counties in New Jersey.

The JAC is a management-labor committee responsible for operating the Sheet Metal Work Apprenticeship Training Program (apprenticeship program), a four-year program designed to teach sheet metal skills. A student entering the apprenticeship program is indentured, and upon graduation becomes a journeyman.

The contractors' association, as its name implies, is a trade association of building contractors who perform sheet metal work in New York City. Although not named in the original complaint, the contractors' association was joined by the court to permit complete relief. EEOC v. Local 638, 532 F.2d at 824 n. 3.

A. Prior Proceedings.

This action was instituted in 1971 by the United States Department of Justice under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982), against Local 28 and the JAC to enjoin a pattern and practice of discrimination against nonwhites. Shortly thereafter, the Equal Employment Opportunity Commission (EEOC) was substituted as plaintiff, the city intervened as a plaintiff, and the New York State Division of Human Rights (state), initially named as a third-party defendant, realigned itself with the EEOC and the city. After a three-week trial in 1975, Judge Werker found that Local 28 and the JAC had purposefully discriminated against nonwhites in violation of Title VII. EEOC v. Local 638, 401 F.Supp. at 486.

The district court found that the discriminatory methods used by Local 28 and the JAC effectively obstructed every route that nonwhites might use to gain admission to the union. There are four ways to become a member of the local: (1) graduation from the apprenticeship program; (2) successful performance on a journeyman's examination; (3) transfer from a sister local; and (4) organization of nonunion shops coupled with certification of both employer need and worker ability.

Judge Werker found that a majority of Local 28's members were admitted through the apprenticeship program. He further found that entry of nonwhites into that program had been blocked by the JAC and Local 28 by using invalid entrance exams, by requiring that applicants possess a high school diploma, and by inquiring into applicants' arrest records. Significantly, Judge Werker also noted that proof of the plaintiffs' case was made extremely difficult because the union refused to keep records showing each applicant's race and national origin as required by EEOC regulations.

Judge Werker further found that the local had impeded the other avenues of entry into the union by using invalid journeymen's examinations, by refusing to accept nonwhite transfers from sister locals while issuing termporary work permits primarily to white workers, and by selectively organizing only those shops having a high percentage of white employees. Id. at 476-87. In July 1975 Judge Werker entered an order and judgment (O & J) which not only prohibited the defendants from discriminating against nonwhites seeking union membership, but also (a) appointed a special master, called an "administrator", to propose and implement an affirmative action plan to govern defendants' employment practices; (b) established a nonwhite union membership goal of 29% to be reached by July 1, 1981; (c) directed defendants to administer a nondiscriminatory "hands-on" journeymen's examination at least once a year; (d) directed defendants to issue temporary work permits on a nondiscriminatory basis; and (e) ordered defendants to conduct a publicity campaign designed to increase nonwhite awareness of employment opportunities in the union. Id. at 489-90.

On appeal, we affirmed Judge Werker's finding that Local 28 and the JAC had intentionally violated Title VII, but reversed two provisions of the relief ordered in the O & J and in the Affirmative Action Plan and Order (AAPO), which was adopted by the district court during the pendency of the appeal from the O & J. EEOC v. Local 638, 532 F.2d at 833. After remand, Judge Werker adopted a Revised Affirmative Action Plan and Order (RAAPO) to reflect the modifications this court made to the O & J and AAPO. We subsequently approved RAAPO. EEOC v. Local 638, 565 F.2d at 36.

Generally, RAAPO incorporated the provisions of the O & J. It also established intermediate nonwhite membership goals in order to accomplish the ultimate 29% goal, and ordered defendants to develop the apprenticeship program, to increase and maintain nonwhite enrollment, to maintain detailed records regarding union employment practices, and to submit periodic reports summarizing those...

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