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RIOS v. ENTERPRISE ASSN. STEAMFITTERS LOCAL 638 OF

November 18, 1986

George RIOS, et al., Plaintiffs,
v.
ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL 638 OF U.A., et al., Defendants; EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. ENTERPRISE ASSOCIATION STEAMFITTERS LOCAL 638 OF U.A., et al., Defendants.



The opinion of the court was delivered by: BONSAL

MEMORANDUM AND ORDER

BONSAL, District Judge.

 These proceedings were instituted by the plaintiffs as a class action and by the Equal Employment Opportunity Commission ("EEOC") against Enterprise Association Steamfitters Local 638 of U.A., et al. (the "Union"). Following a trial, the Union was adjudged to have discriminated against black and Spanish-surnamed persons who had applied for membership in the Union's A Branch (United States v. Local 638, etc., 360 F. Supp. 979 (1973)). Members of the A Branch who claimed they had suffered discrimination filed claims for back pay.

 On June 21, 1973 this court appointed Vincent D. McDonnell, Esq. as Administrator with respect to the claims for back pay. In 1979, Mr. McDonnell was relieved of his duties at his request. Mr. McDonnell recommended to the EEOC, the National Employment Law Project, Inc. ("NELP"), and the Union that Marshall E. Lippman, Esq. should thereafter serve in his stead. By letter dated May 16, 1979 Mr. McDonnell informed the court that Mr. Lippman had been approved by all the parties to conduct the back pay proceeding. Since that time, Mr. Lippman has performed the Administrator's duties under the title of Administrator-Designee.

 This court's Judgment of June 21, 1973 laid down the requirements that a claimant had to prove to establish his right to back pay, which Judgment was modified by the Court of Appeals. Equal Employment Opportunity Commission v. Enterprise Association Steamfitters Local No. 638 of U.A., 542 F.2d 579 (2d Cir.1976). A claimant is required to prove that he had applied for, and was denied, admission to the A Branch after August 19, 1967; that at the time of his application he resided within the geographical jurisdiction of the Union (the five boroughs of New York City, and Nassau and Suffolk Counties); that he was subsequently admitted to the Union's A Branch; and that by reason of the discrimination he has sustained monetary damages in the form of lost back pay.

 The Administrator-Designee conducted hearings to determine which claimants had established that the Union was liable to them for back pay, (Phase I). The Administrator-Designee filed his report with the court on July 10, 1984. His report showed that 68 persons filed back-pay claims and that, after hearings, he found that 31 claimants had established liability for back pay. He dismissed the remaining 37 claims. With respect to each of the claims the Administrator-Designee made findings of fact and conclusions of law. Of the 68 claims which he heard and adjudicated, five have not been appealed. The EEOC and the NELP have appealed 32 decisions where the Administrator-Designee dismissed the claims, while the Union has appealed 31 decisions in which the Administrator-Designee found liability established. On October 9, 1984 this court confirmed the report of the Administrator-Designee.

 Thereafter, the Administrator-Designee conducted hearings to determine the amount of the loss of back pay, if any, suffered by the claimants whose claims had been allowed, (Phase II).

 On May 8, 1986 the Administrator-Designee distributed a preliminary draft report, which was reviewed by the parties. At the court's direction, the Administrator-Designee held further conferences with the parties so that they had a further opportunity to review his calculations and supporting data. On July 22, 1986 the Administrator-Designee filed his Final Report for Phase II, listing the successful claimants and the amounts of back pay, if any, to which he found each was entitled.

 Detailed objections to the Administrator-Designee's Final Report have been filed on behalf of the plaintiffs by the NELP and the EEOC, and on September 26, 1986 the Union filed a memorandum in opposition to plaintiffs' objections to the Final Report of the Administrator-Designee.

 Plaintiffs contend that the Administrator-Designee used an arbitrary or unfair procedure in calculating starting dates for back-pay entitlement. The Back-Pay Order, dated October 9, 1975, provides:

 Discrimination . . . for purpose of back pay will commence on the date on which the next applicant for membership in the A Branch who does not qualify as a member of the plaintiff class was admitted to the A Branch.

 Plaintiffs state that in determining the "next applicant," the Administrator-Designee failed to include admissions into the A Branch of B Branch members and apprentices; transfers-in from other locals; paragraph 12's (non-minorities admitted to the A Branch pursuant to paragraph 12 of the Court's Order dated June 21, 1973); and reinitiations. These matters were considered by the Administrator-Designee in his decision of May 14, 1985. With respect to the admission of B Branch members, the Administrator-Designee stated:

 Moreover, the issue of admission to the "B-Branch" is, itself, integrally involved in the subsisting issues of the suit. I do not find the transfers from the "B Branch" to the "A Branch" were necessarily as "neutral" as "transfers-in" from other locals. However, in reviewing the admission of non-minorities for "triggering" back-pay, I have not found any instance where a determination of this issue affects the entitlement of any member of the claimant class and accordingly I find it unnecessary at this time to determine the issue.

 As to apprentice members, they were not "new" A Branch members since they tracked into the A Branch after completing their training. With respect to transfers from other locals, the Administrator-Designee found that these were not admissions over which the Union exercised any discretion, citing ...


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