EEOC v. SHEET METAL WORKERS'INTERN., 71 Civ. 2877 (RLC).

• Decision Date: 06 March 1995
• Docket Number: No. 71 Civ. 2877 (RLC).,71 Civ. 2877 (RLC).
• Citation: 889 F. Supp. 642
• 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

889 F. Supp. 642

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.

No. 71 Civ. 2877 (RLC).

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

March 6, 1995.

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Paul A. Crotty, Corp. Counsel of City of New York, New York City (Hilary B. Klein, Neil M. Corwin, Paul Kazanoff, John P. Stern, of counsel), for plaintiff City of New York.

G. Oliver Koppell, Atty. Gen. of State of New York, New York City (Sanford M. Cohen, of counsel), for plaintiff NY State Div. of Human Rights.

Edmund P. D'Elia, P.C., New York City (Edmund P. D'Elia, Gregory R. Begg, of counsel), for defendant Sheet Metal Workers Local Union 28.

Gold, Farrell & Marks, New York City (Martin Gold, of counsel), for defendants Sheet Metal and Air Conditioning Contractors Ass'n of New York City, Inc. and Sheet Metal and Air Conditioning Contractors Nat. Ass'n of Long Island, Inc.

AMENDED AND CORRECTED

OPINION

ROBERT L. CARTER, District Judge.

Plaintiffs City of New York and New York State Division of Human Rights ask the court to hold defendant Local 28 of the Sheet Metal Workers International Association ("Local 28") in contempt of court on the basis of numerous alleged violations of this court's Order and Judgment entered in 1975 ("O & J") and the Amended Affirmative Action Program and Order ("AAAPO") entered by this court in 1983. In the alternative, they seek modification of the AAAPO. Plaintiff Equal Employment Opportunity Commission is not a party to this motion. The parties also ask the court to approve several stipulations into which they have entered.

This court has continuing jurisdiction over this case pursuant to 28 U.S.C. ? 1331 because the case was originally brought under Title VII of the 1964 Civil Rights Act, 42 U.S.C. ? 2000e-6(a). It also has jurisdiction pursuant to the court's inherent powers to enforce its orders and to punish violators for contempt. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-765, 100 S.Ct. 2455, 2463-2464, 65 L.Ed.2d 488 (1980); 18 U.S.C.A. ? 401 (1966).

I. Background

Local 28 is a union representing sheet metal workers who work for contractors in the New York metropolitan area. The Local 28 Joint Apprenticeship Committee ("JAC") is a management-labor committee which runs an apprenticeship program to teach sheet metal skills to entrants into the union. 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. ("Contractors' Associations") are trade associations of building contractors which employ sheet metal workers in New York City and Long Island. The Contractors' Associations were not named in the original complaint but have since been joined by the court for the purposes of obtaining complete relief.

The background of this case has been thoroughly documented in previous opinions of this court, the Second Circuit and the Supreme Court, see 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); EEOC 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); EEOC v. Local 638 ... Local 28 of Sheet Metal Workers' Int'l Ass'n, 674 F.Supp. 91 (S.D.N.Y.1987) (Carter, J.), but for purposes of clarity this opinion will provide a summary of the case.

This case dates back to 1964 when the state of New York commenced proceedings in state court against Local 28 in response to the union's refusal to admit blacks as members and apprentices. In 1971, the United States charged Local 28, the JAC, and several other unions and contractors' associations with violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. ? 2000e et seq. The Local 28 case was severed, the EEOC was soon substituted for the United States, and the New York City Commission on Human Rights ("City") and New York State Division on Human Rights ("State") intervened as plaintiffs. Judge Werker of this court held a trial and determined that Local 28 and the JAC had violated Title VII and New York law by denying nonwhites¹ access to employment opportunities in the sheet metal trades. EEOC v. Local 638, 401 F.Supp. 467 (S.D.N.Y.1975) (Werker, J.), aff'd in part, 532 F.2d 821 (2d Cir.1976). He then entered the O & J, which enjoined Local 28 and the JAC from discriminating against nonwhites and enjoined a number of specific practices which he found to be discriminatory. He also ordered the union to achieve 29% nonwhite membership by July 1, 1981, awarded back pay to nonwhites excluded from union membership, appointed an administrator ("Administrator"), and ordered the parties to design new recruitment and admission procedures to achieve the membership goal. The Administrator accordingly proposed an affirmative action program, which the court adopted.

The Second Circuit affirmed Judge Werker's finding of liability and most of the remedies that he had ordered, modifying only part of his remedy regarding the apprenticeship program. EEOC v. Local 638 ... Local 28 of Sheet Metal Workers' Int'l Ass'n, 532 F.2d 821 (2d Cir.1976). On remand, Judge Werker adopted a Revised Affirmative Action Plan and Order ("RAAPO") which, among other things, extended the 29% membership goal for one year, and the Second Circuit affirmed this plan. EEOC v. Local 638 ... Local 28 of Sheet Metal Workers' Int'l Ass'n, 565 F.2d 31 (2d Cir.1977).

In 1982, the City and State commenced a series of contempt proceedings strikingly similar to the current proceeding, alleging that Local 28 and the JAC had failed to meet the membership goal because they had violated a number different provisions of the O & J and RAAPO. Judge Werker issued a civil contempt order, finding that Local 28 and the JAC had "failed to comply with RAAPO ... almost from its date of entry," and imposed a fine of $150,000, which he ordered Local 28 and the JAC to deposit in a fund to be used to increase nonwhite membership in the union. EEOC v. Local 638 ... Local 28 of Sheet Metal Workers Int'l Ass'n, No. 71 Civ. 2877, 1982 WL 445, *4 (S.D.N.Y. Aug. 16, 1982) (Werker, J.). In 1983 the City brought a second contempt proceeding on the basis of the failure of the union and the JAC to maintain and submit records in violation of the O & J, the RAAPO, and several administrative orders. The Administrator found contempt, and Judge Werker adopted his findings, ordering the union and the JAC to finance a computerized recordkeeping system. He also entered an Amended Affirmative Action Plan and Order ("AAAPO") which, among other measures, increased the nonwhite membership goal to 29.23% and extended the deadline for meeting the goal to August 31, 1987. In 1987 this deadline was again extended to August 31, 1992, pursuant to a stipulation between the parties.

The Second Circuit affirmed most of Judge Werker's contempt findings, upheld the contempt remedies he had ordered, and affirmed the AAAPO with modifications to the apprenticeship program, Local 28, 753 F.2d at 1172, and this opinion was upheld by the Supreme Court. Local 28, 478 U.S. at 482-83, 106 S.Ct. at 3053-54. When Judge Werker passed away, I inherited the case.

In the instant contempt motion, the plaintiffs allege that the union has violated the AAAPO and O & J by failing to achieve the membership goal, ensure equal work opportunities for its white and nonwhite members, and keep accurate and complete records. Specifically, the plaintiffs claim that the union has inflated its census reports to make it appear as if it were closer to achieving the membership goal than it actually is, has permitted and contributed to a disparity between the hours worked by white and nonwhite members, and has adopted a reinitiation policy having a disparate impact on minorities.

The plaintiffs seek a wide range of remedies for the alleged contempt. To remedy the hours disparity, they ask the court to order the union to operate a hiring hall which will refer its members to jobs and to implement a work sharing system in which journeypersons would return to the hiring hall after working for a given period of time. They also seek back pay for nonwhite journeypersons whose hours fall two or more standard deviations below the norm. To remedy the failure to meet the nonwhite membership goal, plaintiffs ask the court to calculate the membership goal separately for journeypersons, to set up interim goals, and to invalidate the reinitiation policy. To remedy the inaccurate and incomplete recordkeeping, the plaintiffs request the court to order the union to implement and pay for a new recordkeeping system. Finally, the plaintiffs seek attorneys' fees, court costs, and reimbursement of experts' fees.

In response to this contempt motion, the parties have entered into several stipulations which they request the court to approve. In the first stipulation, the union agrees to institute a hiring hall and work share program similar to that requested by the plaintiffs in their contempt motion, and the plaintiffs agree to withdraw that request if the stipulation is approved. See Appendix A, Proposed Stip. & Order Regarding Hiring Practices ("hiring hall stipulation"). In the second stipulation, the union agrees to modify its reinitiation policy, and the plaintiffs agree that as soon as the union has done so they will withdraw their request for invalidation of the current reinitiation policy. See Appendix B, Proposed Stip. & Order Regarding Reinitiation to the Union ("reinitiation policy stipulation"). In the third stipulation, the union agrees to institute and pay for a new computerized recordkeeping system, and the plaintiffs agree to withdraw their request for a new recordkeeping system. I have...