E.E.O.C. v. Local 638...Local 28, 71 Civ. 2877(RLC).
| Decision Date | 24 June 1998 |
| Docket Number | No. 71 Civ. 2877(RLC).,71 Civ. 2877(RLC). |
| Citation | 13 F.Supp.2d 453 |
| Parties | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, and the City of New York, Plaintiffs, v. LOCAL 638 ... LOCAL 28 OF THE SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Corporation Counsel of the City of New York, New York City (Michael D. Hess, Hilary B. Klein, Paul Kazanoff, of counsel), for City of New York.
Attorney General of the State of New York, New York City (Dennis Vacco, Angie Martell, of counsel), for New York State Division of Human Rights.
Edmund P. D'Elia, P.C., New York City (Edmund P. D'Elia, Charles J. Cooper, of counsel), for Sheet Metal Workers Local Union 28.
Gold, Farrell & Marks, New York City (Martin R. Gold, William Rothberg, Robert P. Mulvey, of counsel), for Sheet Metal and Air Conditioning Contractors Ass'n of New York City, Inc. and Sheet Metal and Air Conditioning Contractors National Ass'n of Long Island, Inc.
Plaintiff City of New York seeks an order modifying the court's Contempt Order dated February 23, 1995, and amended March 8, 1995, (the "Contempt Order"). Pursuant to Rule 7, F.R. Civ. P. and the Order and Judgment in this case, dated August 28, 1975 ("O & J"), plaintiff asks that the Contempt Order be amended to include the following: (1) an order enjoining Local 28 from charging fees and back dues to nonwhite journey-persons who seek reinstatement or reinitiation to the union, pending a determination by Special Master, David Raff, as to whether they were underemployed during the period preceding their period of suspension or termination, (2) an order mandating that, upon reinstatement or reinitiation, nonwhite journeypersons be restored full membership rights, including but not limited to funeral benefits, (3) an order reinstating the back pay remedy according to certain procedures (as described in the declaration of Paul Kazanoff), (4) an order establishing a referral hall, (5) an order enjoining union business agents, union employees, or other agents of the union from engaging in job referrals, (6) an order enjoining the union to pay for plaintiff's statistical expert to analyze contractors' work records on an ongoing basis, (7) an order awarding plaintiff $159,019.78 plus prejudgment interest from the date of the Contempt Order for expert fees incurred in the preparation of plaintiffs' contempt motion, and (8) other such relief as the court deems just and proper.
The background of this case has been documented in detail in previous opinions of this court, the Second Circuit, and the Supreme Court, Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986); E.E.O.C. v. Local 638 ... Local 28 of Sheet Metal Workers' Int'l Ass'n, 753 F.2d 1172 (2d Cir.1985), aff'd, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986); E.E.O.C. v. Local 638, 700 F.Supp. 739 (S.D.N.Y.1988) (Carter, J.); E.E.O.C. v. Local 638, 674 F.Supp. 91 (S.D.N.Y.1987) (Carter, J.); E.E.O.C. v. Local 638, 1982 WL 445 (S.D.N.Y. Aug.16, 1982) (Werker, J.), aff'd in part, E.E.O.C. v. Local 638, 753 F.2d 1172 (2d Cir.1985); E.E.O.C. v. Local 638, 421 F.Supp. 603 (S.D.N.Y.1975) (Werker, J.), aff'd in part, 532 F.2d 821 (2d Cir.1976), with which familiarity is assumed.
In 1995, this court considered a motion for contempt against the defendants. In that motion the plaintiffs alleged that the union had violated the outstanding O & J and Amended Affirmative Action Program and Order ("AAAPO") by failing to achieve the 29.23% membership goal mandated by the AAAPO, by failing to ensure equal work opportunities for its nonwhite members, and by failing to keep accurate and complete records. Specifically, the plaintiffs claimed that the union had inflated its census reports so as to make it appear as if it were closer to achieving the membership goal than it actually was; had permitted and contributed to a disparity between the hours worked by white and nonwhite members; and had adopted a reinitiation policy having a disparate impact on minorities. The plaintiffs sought a wide range of remedies for the alleged contempt.
In an order dated February 23, 1995, and amended on March 8, 1995, the court granted the motion on the basis that the union had failed to achieve the 29.23% membership goal and otherwise meet the requirements of the AAAPO and O & J. E.E.O.C. v. Local 638 ... Local 28, 889 F.Supp. 642, 656-68 (S.D.N.Y.1995) (Carter, J.). The finding of contempt also was supported by the court's determination that the union was liable for the disparity in work hours between white and nonwhite journeypersons and that the union's reinitiation policy had a disparate impact on nonwhites. Id. at 652-68.
The contempt order mandated a variety of remedies. These included the following: (1) a recalculation of union's nonwhite membership goal, (2) back pay to underemployed nonwhite journeypersons, (3) an increase in the union's contribution to the employment, training, education, and recruitment ("ETER") fund, (4) a work share plan and hiring hall system to prevent future hours disparities between white and nonwhite journeypersons, (5) alterations in the unions reinitiation policy, (6) the appointment of a field monitor for the hiring hall system by the administrator1 of this case, and (7) reasonable attorneys' fees and costs. Id. at 669-87. The court subjected the Contractors to the requirements of the work share plan and the hiring hall system. Id. at 671-83. The court deemed this relief minor and ancillary, but necessary to remedy the union's violations of the AAAPO and O & J. Id. at 672-79.
On appeal the Second Circuit approved the issuance of the contempt order. E.E.O.C. v. Local 638 ... Local 28, 81 F.3d 1162, 1172-76 (2d Cir.1996).
In affirming the court's order, the Circuit Court upheld many of the remedies mandated by the district court. It held that it is within the district court's discretion to reformulate the nonwhite membership goal required by the AAAPO, id. at 1178-79, and affirmed the Special Master's authority to appoint a field monitor, to delineate the monitor's duties, and to indicate to which information the monitor should have access. Id. at 1181. The Court of Appeals also upheld the district court's finding that the union's policy of barring from reinitiation journeymen whose membership had been suspended for nonpayment of dues for more than two years (the "two-year rule") has a disparate discriminatory impact upon nonwhite journeypersons. Id. at 1175-76.
However, the Court of Appeals vacated that part of the district court's opinion which limited the union's fee and back dues requirements for reinitiation. Id. at 1176. The Circuit held that the district court violated the union's due process rights by limiting the union's ability to collect these fees and dues, absent notice and a hearing on the discriminatory effect of these policies. Id.
Moreover, the Circuit Court found that the back pay award was not narrowly tailored, and vacated the court's order to the Special Master to hold hearings on the amount of such awards. Id. at 1177. In rejecting the back pay award, it was noted that, in crafting this remedy, the district court impermissibly had failed to take account of the union's financial status. Id.
The Court of Appeals reversed the district court's extension of the order's requirements to the Contractors. Specifically, the Court held that the hiring hall and job rotation systems imposed impermissible burdens on the Contractors, and that it was not within the court's authority to require the Contractors to cooperate in the field monitor's efforts to investigate and conciliate job related complaints. Id. at 1179-80. In addition, it was held that the Special Master lacked authority to enter an injunction against the Contractors. Id. at 1182.
Finally, the district court's ruling regarding the ETER fund was modified. While finding that the district court may order the union to increase its contribution to the fund, the Second Circuit held that the union retained the ability to challenge the specific amount of increase ordered by the court. Id. at 1178.
Accordingly, on remand the court's obligation is to consider the back pay award, the limitation on the fees the union may charge underemployed nonwhite journeypersons for reinitiation, the hiring hall system, and plaintiff's request for certain amendments to the Contempt Order, in light of the Second Circuit's decision and instructions. In addition, the City and the union have submitted memoranda of law and affidavits to support their positions on the issues presented on remand, and the court has considered their submissions and arguments in reaching its decision.
A. The Reinitiation Policy
The Second Circuit having determined that the union is entitled to due process as to whether the union's policy of charging underemployed nonwhite journeypersons fees and back dues is contumacious, the court must decide what type of process is due to the defendants. Defendants argue that they are entitled to a full evidentiary hearing on the issue of whether this policy is contumacious. (Def.'s Mem. of Law at 4). They base this contention on their characterization of the Second Circuit's action regarding the court's rulings relating to fees and back dues for reinitiation as the "vacation of the liability determination with respect to the Union's reinitiation policy." Id. at 2.
The court agrees that the Second Circuit has instructed it to reach a determination as to whether the union's practice of charging fees and back dues to underemployed nonwhite members violates the outstanding orders in this case. The opinion explicitly states as much.
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