costs are outweighed by the importance of protecting nonwhite journeypersons from impermissible employment discrimination in violation of Title VII. The sheet metal industry is not entitled to thrive at the expense of nonwhite journeypersons and as a result of their oppression.
Given that contractors who show that the work share system will cause them hardship will be exempted from the work share program, see discussion supra p. 77, and that unemployment and the hours disparity will be evaluated on an annual basis by a statistical expert to determine whether the work share program must continue in operation, the program will not have an unduly burdensome effect on the sheet metal industry or on individual contractors.
In conclusion, contractors who have not been found guilty of contempt can be held to the requirements of the work share and hiring hall system, which constitutes no more than minor and ancillary relief. Unlike in General Building Contractors Ass'n, plaintiffs are not seeking monetary payment from the contractors so that the O&J and the AAAPO can be carried out or requiring job training and adherence to minority hiring goals. Plaintiffs seek only to have contractors comply with a job referral and rotation system designed to provide equal employment opportunity. There is no proof that the relief imposed upon the contractors will render them unable to compete in the marketplace or will destroy the sheet metal industry in New York City as a whole. The relief being imposed upon the contractors is nothing like the relief being imposed upon the union, but is indirect and insubstantial. Finally, the proposed remedy is required and appropriate given the extent of the violations against the journeypersons.
3. The Unfair Labor Practices Claim
The Contractors' Associations claim that by signing the stipulation the union has committed an unfair labor practice under 29 U.S.C. § 158(b)(3). The National Labor Relations Board has exclusive primary jurisdiction over any activity "arguably subject" to sections seven or eight of the National Labor Relations Act, 29 U.S.C. §§ 157, 158. Building Trades Council ( San Diego v. Garmon, 359 U.S. 236, 245, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959). Therefore, the court does not have jurisdiction to address this claim.
4. Breach of the Collective Bargaining Agreement
The Contractors' Associations argue that the union's act of signing the proposed stipulation constitutes a breach of the collective bargaining agreement. However, it does not point to any provision of the CBA that the union has violated merely by signing the stipulation, and it has not cited any cases supporting its claim that signing a stipulation requiring the union to breach a CBA is in itself a breach.
The reliance of the Contractors' Associations on W.R. Grace & Co. v. Local Union 759, 461 U.S. 759, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983), in which an employer entered into a conciliation agreement with the EEOC that required him to violate seniority provisions of a CBA he had signed with a union, is misplaced. The Supreme Court found that it was within the employer's power to enter into a conciliation agreement which required him to breach his collective bargaining agreement but that the CBA required him to bear the costs caused by the breach. W.R. Grace & Co., 461 U.S. at 767.
5. Power to Modify the Collective Bargaining Agreement
The Contractors' Associations argue that the court lacks authority to modify the collective bargaining agreement. The Supreme Court has held that in the course of fashioning remedies for discrimination federal courts have the power to modify a collective bargaining agreement even where only one party to the agreement is guilty of discrimination. See General Bldg. Contractors Ass'n, 458 U.S. at 375. In a case resembling this one, the CBA arranged for a hiring hall system but allowed the employers to rehire ("recall") workers within ninety days without going through a hiring hall. See Local 542, 619 F. Supp. 1273. The district court found that the recall provision stood in the way of the union's attempts, pursuant to an earlier court order, to increase the number of hours that minorities worked, and it ordered the employers not to recall workers after thirty days had elapsed. Id. at 1277. The employers were not considered liable for the discrimination that the order was intended to remedy, but the court found that altering the CBA was well within its powers, and this finding was upheld by the Third Circuit. See Commonwealth of Pa. v. Local Union 542, Int'l Union of Operating Eng'rs, 807 F.2d 330 (3rd Cir. 1986).
6. The Court Has the Power to Amend the AAAPO
The Contractors' Associations argue that the court lacks the power to amend the AAAPO. The plaintiffs' motion to amend the AAAPO must be considered in light of the fact that this is a long-term institutional reform case. Institutional reform cases are unique in the extent to which courts must retain jurisdiction over details of the case for years and even decades. In such cases, courts need the power to modify their decrees as circumstances change and also in order to apply the lessons of experience to the litigation, Kozlowski v. Coughlin, 871 F.2d 241, 247 (2d Cir. 1989), and the need for this power is not limited to cases in which the institution to be reformed is a governmental entity. Patterson, 13 F.3d at 38.
Recognizing that this was an institutional reform case requiring ongoing supervision of the union and possibly modification over time, Judge Werker stated, "At any time, any of the parties herein may apply to the Administrator and then to the Court for the purpose of seeking additional orders to insure the full and effective implementation of the terms and intent of this Program." Local 28, 421 F. Supp. at 617. In the O&J the court "retained jurisdiction over this action to ensure compliance with the terms of this Order and the program and to enter such additional orders [as] may be necessary to effectuate equal employment opportunity for non-whites and other appropriate relief." O&J P 28. In particular, the court retains the power
to require Local 28 and/or JAC to modify, amend or change their work referral and employment activities, or institute or undertake additional procedures or activities regarding work referral or employment in order to (i) assist non-white journeymen and apprentices of Local 28 in obtaining employment or (ii) protect non-white journeymen and apprentices of Local 28 from bearing a disproportionate burden of unemployment.