EEOC v. Local 638

• Decision Date: 30 September 1987
• Docket Number: No. 71 Civ. 2877 (RLC).,71 Civ. 2877 (RLC).
• Citation: 674 F. Supp. 91
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. LOCAL 638 ... Local 28 of the Sheet Metal Workers International Association, Local 28 Joint Apprenticeship Committee, Sheet Metal and Air Conditioning Contractors' Association of New York City, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

674 F. Supp. 91

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. LOCAL 638 ... Local 28 of the Sheet Metal Workers International Association, Local 28 Joint Apprenticeship Committee, Sheet Metal and Air Conditioning Contractors' Association of New York City, et al., Defendants.

No. 71 Civ. 2877 (RLC).

United States District Court, S.D. New York.

September 30, 1987.

COPYRIGHT MATERIAL OMITTED

E.E.O.C., New York City, Robert L. Williams, Regional Atty., Tanya C. Lewis, Sr. Trial Atty., James L. Lee, Supervisory Trial Atty., Anna M. Stathis, Trial Atty., for plaintiff.

Edmund P. D'Elia, P.C., New York City, for defendants; Edmund P. D'Elia, Jamie K. Ficco, Ian J. Gazes, of counsel.

OPINION

ROBERT L. CARTER, District Judge.

This is the latest chapter in a saga of employment discrimination which entered the courts of the State of New York over 23 years ago and has persisted in federal court for the last 16 years. Still in controversy at this late date are backpay claims pursuant to Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.¹

The Equal Employment Opportunity Commission ("EEOC") has prosecuted this action on behalf of a class of black and Hispanic workers in the sheet metal construction industry. Defendants are Local 28 of the Sheet Metal Workers' International Association ("Local 28"), a labor union representing sheet metal workers in the greater New York area, and the Local 28 Joint Apprenticeship Committee ("the JAC"), a joint labor-management committee which oversees a four-year apprenticeship training program for novice sheet metal workers.

The apprenticeship program serves as the primary conduit into Local 28; approximately 80 percent of those who joined the union during the period relevant to this opinion were graduates of that program. The balance of new members (1) passed a battery of written and practical tests at the journeyman (skilled worker) level, (2) transferred from a "sister" local union, or (3) were employed as journeymen by a nonunion metal shop at the time Local 28 organized the shop.

In 1975, after a three-week trial, Judge Werker found that both defendants had purposefully, consistently and egregiously discriminated against blacks and Hispanics in all four of the aforementioned admission procedures. EEOC v. Local 638 ..., 401 F.Supp. 467 (S.D.N.Y.1975) (Werker, J.). The court held defendants in violation of Title VII as well as New York law, and it ordered, among a number of remedial measures, that defendants compensate the victims of their unlawful discrimination with backpay. Id. at 490-91. See 42 U.S.C. § 2000e-5(g).

Judge Werker imposed several limitations on the backpay remedy. Backpay claimants would be required to provide documentary evidence that they applied for direct admission to Local 28 based on either the journeyman-level tests or transfer from a sister union; that they were qualified for admission and were discriminatorily excluded; and that as a result they suffered monetary damages. Backpay would be denied to those who could provide only testimonial evidence of their application to Local 28, and to those who sought entrance to Local 28 through the apprenticeship program or as employees of a previously nonunion sheet metal shop, because Judge Werker thought such damages were too "hypothetical" and "speculative." 401 F.Supp. at 491.

The backpay remedy was also limited in time. Damages were to begin accruing on the date of discrimination against the claimant, but in no event for discriminatory acts occurring prior to July 2, 1965, the effective date of Title VII's backpay provision. 42 U.S.C. § 2000e-5(g). See Pub.L. No. 88-352, § 716. Damages would continue to accrue until the earlier of the date of the claimant's admission to Local 28 or July 18, 1975, the date of Judge Werker's decision. Moreover, any individual alleging entitlement to backpay was required to file a notice of claim with a court-appointed special master, the "administrator," on or before January 15, 1976.²

The Court of Appeals subsequently modified Judge Werker's backpay order and affirmed it as modified. EEOC v. Local 638 ..., 532 F.2d 821 (2d Cir.1976). The Court of Appeals noted that denial of backpay to claimants who cannot provide documentary evidence of their applications would have the perverse effect of rewarding Local 28 and the JAC for their record-keeping failures. Concluding that such a limitation would "`frustrate the central statutory purposes' of Title VII," the Court of Appeals expanded the class of eligible claimants to include those who can show with either testimonial or written evidence that they were discriminatorily excluded from Local 28 or the apprenticeship program. Id. at 832-33 (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975)).

Pursuant to the backpay decision as modified by the Court of Appeals, the administrator, David Raff, Esq., thereafter promulgated rules for the adjudication of backpay claims. As amended and adopted by Judge Werker on October 6, 1977, the backpay rules reiterated, clarified, and in some respects modified the court's prior decision. They established four classes of black and Hispanic claimants: (1) those who had applied for direct admission into Local 28 (by taking the journeyman-level tests or by transfer from a sister local); (2) those who had applied for admission to the apprenticeship program; (3) those who had been employed in a shop organized by Local 400 of the Sheet Metal Workers' International Association, a predominantly nonwhite local, at a time when Local 28 refused to organize the shop; and (4) those employees of a nonunion shop to whom Local 28 had refused admission upon its organization of the shop. The rules also extended the period during which backpay might accrue from July 18, 1975 to October 11, 1975.

A small number of individual claims were settled or tried before the administrator and approved by Judge Werker. Id. at 832. The administrator found Local 28 liable to one claimant in particular, Charles Moss, and Judge Werker adopted the administrator's decision in its entirety on April 23, 1984. However, the administrator made no final determination of the amount of damages owing to Moss until April 16, 1987. The administrator's determination will be considered in conjunction with the other backpay claims before the court.

After Judge Werker's death in May, 1984, the case was reassigned to me. In view of the substantial delay already occasioned in the determination of backpay claims — notwithstanding Judge Werker's adoption of rules to systematize the process —the parties were informed at a conference on November 6, 1987, that outstanding backpay claims would be adjudicated at a single hearing before the court rather than in multiple proceedings before the administrator. The parties conducted discovery during the months of November and December, 1986, and the court held a four-day hearing on damages on January 5-8, 1987.

At the hearing, defendants first moved to dismiss the backpay claims on various grounds. The court took the motion under advisement. The EEOC then presented the claims of 33 individuals.³ Of the 33 claimants, the EEOC now concedes that nine suffered no damages, rendering them ineligible for backpay.⁴ Thus, in addition to the appeal from the decision of the administrator awarding backpay to Charles Moss, 24 claims are now before the court.

FINDINGS OF FACT

On the basis of the evidence presented at the hearing, the court renders the following findings of fact:

1. C. Nigel Allison attempted to transfer into Local 28 as journeyman in February, 1971. (Hearing Transcript "Tr." 425). He was qualified for transfer by virtue of thirteen years of experience in sheet metal work, including nine years as a journeyman in other unions. (Tr. 423-25). Indeed, when he later passed a journey-man-level examination, Local 28 refused to offer him employment on the ground that he was overqualified for work as a journeyman. (Tr. 430). Local 28 did not subsequently offer work to Allison. (Tr. 431). Allison found alternative, lowerpaying work in the sheet metal trade throughout most of the backpay period. (Tr. 435-42). During periods of unemployment — July to October, 1973, May to December, 1974, and June to October, 1975 — he actively searched in newspapers, by telephone, and in person for work in sheet metal shops as well as other businesses. (Tr. 440-42).

2. Raymond H. Brown applied for admission to Local 28 as a journeyman in 1969. (Tr. 51-52). He became qualified for admission as a journeyman no later than June, 1969, when, after joining the sister union Local 400 in 1962, he completed a sheet metal work apprenticeship program and attained journeyman status in Local 400. (Tr. 61). Local 28 initially denied Brown's request for a transfer from Local 400. On October 29, 1973, Local 28 issued a transfer card to Brown. (Tr. 72-73; Plaintiff's Exh. 32). However, even after receiving the transfer card, the employers for which Local 28 acted as bargaining agent refused to hire Brown. (Tr. 53-54, 81-82). After an extensive search for work, Brown left Local 28 and found alternative employment on his own. (Tr. 81-82).

3. Reginald Jones applied for transfer into Local 28 as a journeyman in October, 1968. (Tr. 239-41). He was qualified for transfer based on eight years of experience as a sheet metal worker and his admission as a journeyman into Local 400 earlier in 1968. (Tr. 238). Local 28 denied Jones's request for transfer and did not subsequently offer him admission. (Tr. 240-41). Jones continued with alternative, lower-paying jobs throughout the backpay period (Tr. 257-60). Although his employment was part-time in 1973 and 1974, he sought additional work, without success, both inside and outside of the sheet metal trade. (Tr. 260-62).

4. John McLean first became employed as a sheet metal worker in Trinidad in 1957. (Tr. 622). He moved to the...