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EEOC v. LOCAL 638 . . . LOCAL 29 OF THE SHEET META

April 2, 1996

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, and THE CITY OF NEW YORK, Plaintiffs, against LOCAL 638 . . . LOCAL 29 OF THE SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, et al., Defendants.


The opinion of the court was delivered by: CARTER

 CARTER, District Judge

 Plaintiff the City of New York (the "City") moves to modify the court's order and opinion of March 8, 1995, EEOC v. Local 638 . . . Local 28, 889 F. Supp. 642 (S.D.N.Y. 1995) (Carter, J.) (the "Contempt Order") pursuant to Rule 7, F.R.Civ.P., and Paragraph 27 of the Order and Judgment in this case dated August 28, 1975 ("O&J"). Plaintiff seeks such modification to establish a hiring hall operator selection committee that will recommend an operator for the hiring hall established in the Contempt Order and to provide compensation to plaintiff's representatives to such committee. Defendant Local 28 of the Sheet Metal Workers International Association ("Local 28" or "the Union") opposes only the compensation of plaintiff's representatives and requests the court to postpone determination pending the findings of an audit of Local 28's financial condition ordered by the Administrator pursuant to the court's opinion dated June 7, 1995, EEOC v. Local 638 . . . Local 28, No. 71 Civ. 2877, slip op. at 8-9 (S.D.N.Y. June 7, 1995) (Carter, J.). Alternatively, Local 28 seeks an order that any such compensation be paid from the Employment, Training, Education and Recruitment Fund ("ETER fund").

 I. Background

 In the Contempt Order, with which familiarity is assumed, the court ordered, inter alia, the establishment of a hiring hall, as one of the remedies for the Union's violations of the Amended Affirmative Action Plan & Order ("AAAPO") and O&J. *fn1" While the court directed the Administrator to choose the hiring hall operator from among candidates proposed by plaintiffs and defendants, the Contempt Order did not specify a method for so doing.

 Defendant does not contest plaintiff's recital of the facts subsequent to the Contempt Order. On May 1, 1995, and with the parties' consent, the Administrator established a committee to screen candidates for the hiring hall operator position. *fn2" He requested that plaintiff and defendant each select appointees to the committee. Within the next week or so, plaintiff and defendant notified the Administrator of their respective appointees. *fn3" On May 30, 1995, the Sheet Metal Air Conditioning Contractors National Association of Long Island, Inc. notified the Administrator of its appointee. *fn4"

 On June 1, 1995, the City wrote to the Administrator requesting that the Union compensate the plaintiff's appointees to the hiring hall committee at the journeyperson hourly rate. The Union did not oppose the City's request until June 23, 1995--after the first meeting of the committee (on June 19, 1995) in which the Administrator, having received no opposition from the Union, had so ordered the Union to compensate the plaintiff's appointees for their time.

 In its June 23, 1995 letter of opposition, *fn5" the Union stated that it refused to accept responsibility for paying plaintiff's appointees for their time, that its own appointees had volunteered their time, and that alternatively, plaintiff's appointees should be paid from the ETER fund. Plaintiff then moved the Administrator for an order compelling Local 28 to pay the plaintiffs' appointees.

 The Administrator rendered a Memorandum and Order, dated August 16, 1995, in which he concluded, inter alia, that Local 28 had not objected to compensation of plaintiffs' appointees in a legally untimely manner; that the submissions before him were insufficient to make a finding of retaliation by Local 28 against Green and Pearson for speaking against the Union's discriminatory history; *fn6" that Local 28's distinction between the long-term nature of other committees and the short-term nature of the Hiring Hall Committee was frivolous and therefore rejected; and that he would have ordered Local 28 to pay "the small amount of compensation 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.

 II. Modification

 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.). *fn7" 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. *fn8" 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 ...


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