E.E.O.C. v. Local 638

• Citation: 81 F.3d 1162
• Decision Date: 10 April 1996
• Docket Number: 718,No. 28,D,Nos. 401,402,28,s. 401
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and City of New York, Plaintiffs-Appellees, v. LOCAL 638, etc., Defendants, Local 28, Sheet Metal and Air Conditioning Contractors' Association of New York City, Inc., and the Sheet Metal and Air Conditioning Contractors' National Association of Long island, Inc., (collectively the "Contractors' Associations"); Local Union, and Sheet Metal Workers' International; Defendants-Appellants. ockets 95-6047, 95-6049, 95-6135.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 1162

81 F.3d 1162

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION and City of New

York, Plaintiffs-Appellees, v. LOCAL 638, etc., Defendants,

Local 28, Sheet Metal and Air Conditioning Contractors'

Association of New York City, Inc., and the Sheet Metal and

Air Conditioning Contractors' National Association of Long

island, Inc., (collectively the "Contractors'

Associations"); Local Union No. 28, and Sheet Metal

Workers' International; Defendants-Appellants.

Nos. 401, 402, 718, Dockets 95-6047, 95-6049, 95-6135.

United States Court of Appeals,

Second Circuit.

Argued Sept. 26, 1995.

Decided April 10, 1996.

Karen M. Moran, Washington, DC (C. Gregory Stewart, Gwendolyn Young Reams, Vincent J. Blackwood, Washington, DC), for Plaintiff-Appellee Equal Employment Opportunity Commission.

Elizabeth S. Natrella, New York, N.Y. (Paul A. Crotty, Corporation Counsel of the City of New York, Leonard J. Koerner, Pamela Seider Dolgow, Hilary B. Klein, Paul E. Kazanoff, Dennis C. Vacco, Attorney General of the State of New York, Lula M. Anderson, Angie I. Martell, New York, NY), for Plaintiffs-Appellees City of New York and New York State Division of Human Rights.

Charles J. Cooper, Washington, DC (Robert J. Cynkar, David H. Thompson, Shaw, Pittman, Potts & Trowbridge, Washington, DC, Jamie K. Nicastri, Edmund P. D'Elia, P.C., New York, NY), for Defendant-Appellant Local 28 of the Sheet Metal Workers International Association.

Martin R. Gold, New York, N.Y. (Robert P. Mulvey, Gillian M. Lusins, Gold, Farrell & Marks, New York, NY, William Rothberg, Brooklyn, NY, Judy Sandler, Huntington Station, NY), for Defendants-Appellants Sheet Metal and Air Conditioning Contractors' Association of New York City, Inc. and Sheet Metal and Air Conditioning Contractors' National Association of Long Island, Inc. (Juan A. Figueroa, Kenneth Kimmerling, New York, NY) for Amici Curiae Puerto Rican Legal Defense and Education Fund, Inc. and NAACP Legal Defense and Educational Fund, Inc.

(David R. Hols, Felhaber, Larson, Fenlon & Vogt, P.A., Minneapolis, MN) for Amicus Curiae Sheet Metal and Air Conditioning Contractors' National Association, Inc.

Before: LUMBARD, WALKER, and CALABRESI, Circuit Judges.

WALKER, Circuit Judge:

As this case approaches its twenty-fifth birthday, it is before us for a fourth time. In July 1993, Plaintiff-appellee City of New York (the "City") moved for contempt or a modification of the district court's prior orders. In an Amended and Corrected Opinion, dated March 6, 1995, the United States District Court for the Southern District of New York (Robert L. Carter, District Judge ) found that Defendant-appellant Local 28 of the Sheet Metal Workers International Association ("Local 28" or "the Union") had violated the district court's previous orders. As a result of Local 28's contempt, the district court ordered a court-appointed Administrator to award back pay to certain nonwhite members of the Union; awarded to the plaintiffs their attorneys' fees and costs; increased Local 28's contribution to the Employment, Training, Education and Recruitment Fund (the "ETER fund"); altered Local 28's reinitiation policy; required the parties to recalculate the pre-existing membership goal; imposed a hiring hall and a job rotation system (described infra, pp. 1179-80) both on Local 28 and on the Sheet Metal and Air Conditioning Contractors' Association of New York City, Inc. and the Sheet Metal and Air Conditioning Contractors' National Association of Long Island, Inc. (together the "Contractors"); and ordered the Administrator to appoint a person to the newly-created position of Field Monitor. See EEOC v. Local 638, 889 F.Supp. 642 (S.D.N.Y.1995) (" EEOC VI " or the "Contempt Order").

Pursuant to the district court's order, the Administrator appointed a Field Monitor, outlined his duties, directed Local 28 and the Contractors to cooperate with him, and enjoined the parties from interfering with him (the "Administrator's order"). The district court denied the Contractors' motion to vacate the Administrator's order in an opinion, dated June 6, 1995 (the "June 6 Order"). See EEOC v. Local 638, No. 71 Civ. 2877(RLC), 1995 WL 334688 (S.D.N.Y. June 6, 1995).

Local 28 appeals from the finding of contempt and the remedies imposed upon it by the Contempt Order. The Contractors appeal from the imposition of the hiring hall and job rotation system and from the denial of the motion to vacate.

BACKGROUND

Because an understanding of the long history of this litigation illuminates the present dispute, we summarize the previous proceedings before turning to the issues now before us.

A. Prior Proceedings.

The United States ¹ commenced this case against Local 28 in 1971, alleging that Local 28 had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. After a bench trial, the district court held that Local 28 and its Joint Apprenticeship Committee and Trust ("the JAC") had discriminated both in admission to the apprenticeship program and in direct admission to Local 28. See EEOC v. Local 638, 401 F.Supp. 467, 487 (S.D.N.Y.1975) ("EEOC I "). The district court therefore imposed a remedial racial goal of 29% nonwhite membership on Local 28 and ordered that Local 28 achieve that goal by July 1, 1981. The district court also ordered the parties to agree upon a procedure for reaching the 29% goal under the supervision of a court-appointed Administrator Soon thereafter, the district court entered an Order and Judgment ("O & J"), dated August 28, 1975. In the O & J, the district court permanently enjoined Local 28, as well as its

                although the court did impose some specific provisions, including a requirement that Local 28 and the JAC maintain lists of whites and nonwhites who sought membership into Local 28.   Finally the court ordered the award of back pay to those nonwhites who had applied for membership, had their applications denied, and could show monetary damages therefrom.  Id. at 488-91
                

officers, agents, employees and successors and all persons in active concert or participation with them in the administration of the affairs of Local 28 ... from engaging in any act or practice which has the purpose or the effect of discriminating in recruitment, selection, training, admission to membership in Local 28, admission to membership in the Local 28 Apprentice Program ... indenturing apprentices, referral, advancement, compensation, terms, conditions, or privileges of employment against any individual or class of individuals on the basis of race, color or national origin. Local 28 shall not exclude or expel any individual from membership in Local 28 or the Apprentice Program ... or fail or refuse to refer any individual for employment with sheet metal contractors, their agents, subsidiaries or successors ... on the basis of race, color or national origin, nor shall they take any other action which would deprive or tend to deprive any individual of employment opportunities with Local 28 contractors ... because of such individual's race, color or national origin. They shall ... administer all of the affairs ... so as to ensure that no individual is excluded from equal work opportunities, including but not limited to overtime and advancement, on the basis of race, color or national origin.

The district court also appointed David Raff to be the Administrator and ordered Raff and the parties to agree on an affirmative action program.

In response to the O & J, the Administrator proposed an Affirmative Action Program and Order ("AAPO"), which was submitted to the district court. After considering the parties' objections, the district court modified the AAPO and adopted it in a Memorandum and Order. See EEOC v. Local 638, 421 F.Supp. 603, 617-20 (S.D.N.Y.1975) ("EEOC II "). The AAPO, as adopted by the district court, established interim nonwhite membership goals for Local 28 to meet; set non-discriminatory criteria for membership in Local 28's apprenticeship program and for admission to journeyman status; and created very specific recordkeeping requirements for Local 28 and the JAC. Id. at 606-17.

Local 28 and the JAC appealed from both the findings of discrimination and the remedies imposed by the district court. This court affirmed the district court's determination of the liability issues. We also affirmed the appointment of the Administrator, the permanent injunction against Local 28, the overall membership goal for Local 28, and the apprenticeship program. We disapproved, though, of the requirement that one of the JAC's trustees be replaced with a nonwhite trustee, and we modified the district court's order to eliminate a required ratio of white to nonwhite acceptances into the apprenticeship program, on the ground that admission to the apprenticeship program should be "based on test results alone." We also modified the back pay remedy to allow the use of both testimonial and documentary evidence of an application for and a rejection of membership. See EEOC v. Local 638, 532 F.2d 821, 827, 829-33 (2d Cir.1976) ("EEOC III "). On remand, the district court adopted the modifications in a Revised Affirmative Action Plan and Order ("RAAPO"). Over a dissent, we affirmed. See EEOC v. Local 638, 565 F.2d 31, 36 (2d Cir.1977) ("EEOC IV ").

In 1982 and 1983, the City twice moved for an order holding Local 28, the JAC, and the Contractors in contempt. In two separate orders, the district court found these parties had violated its orders by their collective efforts to thwart achievement of the membership goal, and that Local 28 and the JAC had failed to maintain proper records and data. To remedy these violations, the district court ordered the parties to make additional

                payments to a training fund and to pay for a computerized recordkeeping system.   The district court also adopted an Amended Affirmative Action Plan and Order ("AAAPO"), which had been proposed by the plaintiffs and the Administrator to replace the RAAPO.

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