requested" if he had the authority to do so. Memorandum and Order, David Raff, Administrator, No. 71 Civ. 2877, dated 8/16/95, at 5, 6, 8, 11. Thus, the Administrator denied plaintiff's motion and reversed his oral order providing for compensation.
As noted in previous opinions and orders, "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 [AAAPO]." EEOC v. Local 638 . . . Local 28, 421 F. Supp. 603, 617 (S.D.N.Y. 1975) (Werker, J.).
The Second Circuit has affirmed the court's continuing jurisdiction "to enter such orders as may be necessary to effectuate the equal employment opportunities for non-whites and other appropriate relief" without there being a change in law or fact that may be necessary for modification in other situations. EEOC v. Local 638 . . . Local 28, 753 F.2d 1172, 1185 (2d Cir. 1985); see also EEOC v. Local 638 . . . Local 28, 889 F. Supp. at 683. (citing Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S. Ct. 748, 116 L. Ed. 2d 867 (1992)).
A. Hiring Hall Committee
The court modifies the Contempt Order to authorize the formation of the Hiring Hall Committee.
The court is persuaded that the committee is a reasonable method for securing the guidance and experience of all parties regarding the qualifications for the hiring hall operator and the development of an effective process for recommendations and candidate evaluations. It also assures the direct involvement of the representatives of the class. See Memorandum and Order, David Raff, Administrator, No. 71 Civ. 2877, dated 8/16/95, at 4.
With regard to compensation, plaintiff argues that payment to its committee representatives by the Union is consistent with the court's intent that the Union pay for the implementation and operation of the hiring hall as well as the implementation costs of its orders. Local 28 counters that "something must be done to stop the bleeding." (Def.'s Affirmation in Opp'n. to Pl.'s Mot. to Modify Court Order P 12). Therefore, it argues, this motion should be stayed, pending the court-authorized financial audit to assess the financial implications of the Contempt Order, because it cannot absorb more costs. While the Union's acts that led to the most recent and previous contempt findings reveal that Local 28 did little to alleviate the suffering of its nonwhite members due to years of discriminatory treatment, the Union's plea fails because the sum requested is but a small and finite amount.
At the time plaintiff made the present motion in October, 1995, the committee was meeting every two weeks for approximately two and a half hours. At $ 35.00 per hour, Green and Pearson each would receive $ 87.50 per meeting. At a minimum, the Union would have to pay each man approximately $ 1600.00 (nine months of meetings twice per month) up through March, 1996, and another $ 1050.00 apiece if the meetings continued at the same pace for another 6 months.
Even under a more costly scenario, where the committee met more frequently, the sum would be small.
The court does not find compensation to be so burdensome as to warrant delay until the financial audit is completed. The defendant has not provided persuasive evidence to the contrary.
Although the contemnor--Local 28--does not have the burden of production on the issue of financial resources, the contemnor's failure to provide information about its financial resources "may not be charged against the [plaintiff] or result in a holding that the district court abused its discretion in imposing the sanction." EEOC v. Local 638 . . . Local 28, 889 F. Supp. at 668 (citing Dole Fresh Fruit Co. v. United Banana Co., 821 F.2d 106, 110 n.3 (2d Cir. 1987) and Grand Jury Witness v. Grand Jury Witness, 835 F.2d 437, 443 (2d Cir. 1987), cert. denied sub nom. Arambulo v. United States, 485 U.S. 1039, 108 S. Ct. 1602, 99 L. Ed. 2d 917 (1988)). Therefore, it is within the district court's equitable powers to direct the Union to compensate plaintiff's representatives in order to bring the contemnor into compliance. EEOC v. Local 638 . . . Local 28, 889 F. Supp. at 668 (citing Perfect Fit Indus., Inc. v. Acme Quilting Co., 673 F.2d 53, 57 (2d Cir.), cert. denied, 459 U.S. 832, 103 S. Ct. 73, 74, 74 L. Ed. 2d 71 (1982).
The court's modification of the Contempt Order moots defendant's comparative argument--that unlike the Four Year Experience Board, the Joint Advisory Committee, or the Apprentice Selection Board, the hiring committee is not a long-term committee created to effectuate the AAAPO and therefore compensation is not warranted--because the committee is now established pursuant to the Contempt Order.
The court also rejects the Union's suggestion that compensation to plaintiff's representatives should come from the ETER fund. As all parties are aware, payment into the fund by defendant was a coercive measure to induce the Union to increase its nonwhite membership. EEOC v. Local 639 . . . Local 28, 753 F.2d at 1184; EEOC v. Local 639 . . . Local 28, Contempt Order at 670. While part of the ETER fund's purpose is "to provide financial support for out-of-work nonwhite journeymen to encourage them to stay in the trade and to upgrade their skills," EEOC v. Local 639 . . . Local 28, 753 F.2d at 1178, the participation of plaintiff's representatives on the committee fulfills a different purpose: "to effectuate the equal employment opportunities for non-whites and other appropriate relief" by enabling the establishment of the hiring hall.
The court takes note of the economic disparity between Green and Pearson and the other committee representatives who have been consistently employed in high level jobs.
However, it is the Union's history of discrimination and spurning of court-ordered remedies that compels the court to modify the Contempt Order to ensure effective implementation of the intent and terms of the AAAPO and O&J. The court-ordered hiring hall is a mechanism to ensure equal employment for nonwhites once they become journeypersons--an area where the court previously found Local 28 most effectively discriminated. Contempt Order at 673 ("The hiring hall system would require the union to wield its job-referral power on behalf of its nonwhite members as it does for its white members.").
Thus, it is imperative that both defendant and plaintiff be represented on the committee and that plaintiff's representatives contribute their insight into and knowledge of the craft and industry. Plaintiff's representation on the committee also ensures that selection of a hiring hall operator does not become an opportunity for Local 28 to recast the remedy of a hiring hall in its favor. Compensation to plaintiff's representatives by Local 28 facilitates plaintiff's ability to participate in the selection of a hiring hall operator--a necessary component for effectuating the intent and terms of the AAAPO and O&J.
The Administrator shall establish a hiring hall committee with representatives from the class members, Local 28, and other parties as is appropriate.
Local 28 shall compensate plaintiff's representatives each at the journeyperson rate of $ 35.00 per hour for attendance of and preparation for committee meetings, plus travel time and expenses, less any $ 50.00 per meeting payment received pursuant to the Administrator's Order dated August 16, 1995. Each $ 50.00 payment that is subtracted from Local 28's payment to plaintiff's representatives should then be paid to the ETER fund.
IT IS SO ORDERED.
Dated: New York, New York
April 2, 1996
ROBERT L. CARTER