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June 24, 1998


Robert L. Carter, U.S.D.J.

The opinion of the court was delivered by: CARTER


ROBERT L. CARTER, District Judge

 Plaintiff City of New York seeks an order modifying the court's Contempt Order dated February 23, 1995, and amended March 8, 1995, (the "Contempt Order"). Pursuant to Rule 7, F.R. Civ. P. and the Order and Judgment in this case, dated August 28, 1975 ("O&J"), plaintiff asks that the Contempt Order be amended to include the following: (1) an order enjoining Local 28 from charging fees and back dues to nonwhite journeypersons who seek reinstatement or reinitiation to the union, pending a determination by Special Master, David Raff, as to whether they were underemployed during the period preceding their period of suspension or termination, (2) an order mandating that, upon reinstatement or reinitiation, nonwhite journeypersons be restored full membership rights, including but not limited to funeral benefits, (3) an order reinstating the back pay remedy according to certain procedures (as described in the declaration of Paul Kazanoff), (4) an order establishing a referral hall, (5) an order enjoining union business agents, union employees, or other agents of the union from engaging in job referrals, (6) an order enjoining the union to pay for plaintiff's statistical expert to analyze contractors' work records on an ongoing basis, (7) an order awarding plaintiff $ 159,019.78 plus prejudgment interest from the date of the Contempt Order for expert fees incurred in the preparation of plaintiffs' contempt motion, and (8) other such relief as the court deems just and proper.

 I. Background

 The background of this case has been documented in detail in previous opinions of this court, the Second Circuit, and the Supreme Court, Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 92 L. Ed. 2d 344, 106 S. Ct. 3019 (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, 92 L. Ed. 2d 344, 106 S. Ct. 3019 (1986); Local 638, 700 F. Supp. 739 (S.D.N.Y. 1988)(Carter, J.); Local 638, 674 F. Supp. 91 (S.D.N.Y. 1987) (Carter, J.); Local 638, 1982 U.S. Dist. LEXIS 14901, 1982 WL 445 (S.D.N.Y. Aug. 16, 1982)(Werker, J.), aff'd in part, 753 F.2d 1172 (2d Cir. 1982); Local 638, 421 F. Supp. 603 (S.D.N.Y. 1975)(Werker, J.), aff'd in part, 532 F.2d 821 (2d Cir. 1976), with which familiarity is assumed.

 II. Present Proceeding

 A. 1995 Contempt Order Issued by this Court

 In 1995, this court considered a motion for contempt against the defendants. In that motion the plaintiffs alleged that the union had violated the outstanding O&J and Amended Affirmative Action Program and Order ("AAAPO") by failing to achieve the 29.23% membership goal mandated by the AAAPO, by failing to ensure equal work opportunities for its nonwhite members, and by failing to keep accurate and complete records. Specifically, the plaintiffs claimed that the union had inflated its census reports so as to make it appear as if it were closer to achieving the membership goal than it actually was; had permitted and contributed to a disparity between the hours worked by white and nonwhite members; and had adopted a reinitiation policy having a disparate impact on minorities. The plaintiffs sought a wide range of remedies for the alleged contempt.

 In an order dated February 23, 1995, and amended on March 8, 1995, the court granted the motion on the basis that the union had failed to achieve the 29.23% membership goal and otherwise meet the requirements of the AAAPO and O&J. EEOC v. Local 638 ... Local 28, 889 F. Supp. 642, 656-68 (S.D.N.Y. 1995)(Carter, J.). The finding of contempt also was supported by the court's determination that the union was liable for the disparity in work hours between white and nonwhite journeypersons and that the union's reinitiation policy had a disparate impact on nonwhites. Id. at 652-68.

 The contempt order mandated a variety of remedies. These included the following: (1) a recalculation of union's nonwhite membership goal, (2) back pay to underemployed nonwhite journeypersons, (3) an increase in the union's contribution to the employment, training, education, and recruitment ("ETER") fund, (4) a work share plan and hiring hall system to prevent future hours disparities between white and nonwhite journeypersons, (5) alterations in the unions reinitiation policy, (6) the appointment of a field monitor for the hiring hall system by the administrator *fn1" of this case, and (7) reasonable attorneys, fees and costs. Id. at 669-87. The court subjected the Contractors to the requirements of the work share plan and the hiring hall system. Id. at 671-83. The court deemed this relief minor and ancillary, but necessary to remedy the union's violations of the AAAPO and O&J. Id. at 672-79.

 B. Second Circuit's Ruling on the Contempt Order

 On appeal the Second Circuit approved the issuance of the contempt order. E.E.O.C. v. Local 638 ... Local 28, 81 F.3d 1162, 1172-76 (2d Cir. 1996).

 In affirming the court's order, the Circuit Court upheld many of the remedies mandated by the district court. It held that it is within the district court's discretion to reformulate the nonwhite membership goal required by the AAAPO, id. at 1178-79, and affirmed the Special Master's authority to appoint a field monitor, to delineate the monitor's duties, and to indicate to which information the monitor should have access. Id. at 1181. The Court of Appeals also upheld the district court's finding that the union's policy of barring from reinitiation journeymen whose membership had been suspended for nonpayment of dues for more than two years (the "two-year rule") has a disparate discriminatory impact upon nonwhite journeypersons. Id. at 1175-76.

 However, the Court of Appeals vacated that part of the district court's opinion which limited the union's fee and back dues requirements for reinitiation. Id. at 1176. The Circuit held that the district court violated the union's due process rights by limiting the union's ability to collect these fees and dues, absent notice and a hearing on the discriminatory effect of these policies. Id.

 Moreover, the Circuit Court found that the back pay award was not narrowly tailored, and vacated the court's order to the Special Master to hold hearings on the amount of such awards. Id. at 1177. In rejecting the back pay award, it was noted that, in crafting this remedy, the district court impermissibly had failed to take account of the union's financial status. Id.

 The Court of Appeals reversed the district court's extension of the order's requirements to the Contractors. Specifically, the Court held that the hiring hall and job rotation systems imposed impermissible burdens on the Contractors, and that it was not within the court's authority to require the Contractors to cooperate in the field monitor's efforts to investigate and conciliate job related complaints. Id. at 1179-80. In addition, it was held that the Special Master lacked authority to enter an injunction against the Contractors. Id. at 1182.

 Finally, the district court's ruling regarding the ETER fund was modified. While finding that the district court may order the union to increase its contribution to the fund, the Second Circuit held that the union retained the ability to challenge the specific amount of increase ordered by the court. Id. at 1178.

 Accordingly, on remand the court's obligation is to consider the back pay award, the limitation on the fees the union may charge underemployed nonwhite journeypersons for reinitiation, the hiring hall system, and plaintiff's request for certain amendments to the Contempt Order, in light of the Second Circuit's decision and instructions. In addition, the City and the union have submitted memoranda of law and affidavits to support their positions on the issues presented on remand, and the court has considered their submissions and arguments in reaching its decision.

 III. Discussion

 A. The Reinitiation Policy

 The Second Circuit having determined that the union is entitled to due process as to whether the union's policy of charging underemployed nonwhite journeypersons fees and back dues is contumacious, the court must decide what type of process is due to the defendants. Defendants argue that they are entitled to a full evidentiary hearing on the issue of whether this policy is contumacious. (Def.'s Mem. of Law at 4). They base this contention on their characterization of the Second Circuit's action regarding the court's rulings relating to fees and back dues for reinitiation as the "vacation of the liability determination with respect to the Union's reinitiation policy." Id. at 2.

 The court agrees that the Second Circuit has instructed it to reach a determination as to whether the union's practice of charging fees and back dues to underemployed nonwhite members violates the outstanding orders in this case. The opinion explicitly states as much.

Local 28 was given no opportunity to address whether the other aspects of its policies concerning the non-payment of dues violated the court's orders. Thus, we affirm only the finding that the two-year limitation is a contempt, and vacate the district court's other findings regarding Local 28's membership policies. On remand, the district court is free to consider, upon appropriate notice to Local 28, whether any of the other membership conditions violate its orders.

 Id. at 1176.

 Contrary to defendants' contention, however, nothing in the Second Circuit's opinion requires the court to reach such a determination only after a full evidentiary hearing. The Court of Appeals' mandate to the district court was not specific. The Second Circuit did not conclude that the court could reach a determination regarding whether the relevant policies violate its orders only by holding a full evidentiary hearing on the matter. Rather, the Circuit's language was general in nature, instructing the district court to provide defendants with an "opportunity to address whether other policies concerning the non-payment of dues violated the court's orders." Id. The Court of Appeals left it to the district court to reach a decision concerning the nature of the process due to defendants.

 Nor is the union's position supported by the precedent on civil contempt. *fn2" Full evidentiary hearings generally are not required in cases where civil contempt sanctions are imposed. In International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 827-29, 129 L. Ed. 2d 642, 114 S. Ct. 2552 (1994), the Supreme Court explained that "because civil contempt sanctions are viewed as nonpunitive and avoidable, fewer procedural protections for such sanctions have been required." Id. at 831. Civil sanctions may be imposed "in an ordinary civil proceeding upon notice and an opportunity to be heard." Id. at 827. "Neither a jury trial nor proof beyond a reasonable doubt is required." Id.

 While carving out an exception to this general rule in cases involving out-of-court disobedience to complex injunctions in which crucial facts are in close dispute, which may necessitate the holding of a hearing, the calling of witnesses, and the presentation of evidence by the parties, id. at 834, the Bagwell Court expressly left "unaltered the longstanding authority of judges to ... enter broad compensatory awards for all contempts through civil proceedings." Id. The case cited by the Court in support of this proposition was its decision in the instant case upholding Judge Werker's 1982 civil contempt order, Sheet Metal Workers' v. EEOC, 478 U.S. 421, 92 L. Ed. 2d 344, 106 S. Ct. 3019 (1986). Thus, the Court acknowledged that the exception carved out in Bagwell is inapposite to this case.

 In any event, the nature of the issues presented on remand makes a full evidentiary hearing and extensive fact-finding unnecessary. The evidentiary record in this case is abundant, extending over two decades and including the evidence presented by the parties in the hearing on plaintiff's 1995 contempt motion. The great volume of evidence submitted by the parties over time and the court's familiarity with the record mitigates the need for a full evidentiary hearing in which extensive findings of fact would be made.

 Moreover, the court's judgment on whether the reinitiation procedures in question are contumacious turns on legal analysis not on disputed issues of material facts. This conclusion is based on two realities.

 First, the facts that underlie the specific practice alleged to be contumacious are not controverted. The plaintiffs agree with the defendant that the union's policy of charging fees and back dues for reinitiation is race neutral on its face. (Pl.'s Motion at 2). The absence of a dispute over the nature of the policy makes a full evidentiary hearing in which the court would conduct extensive findings of fact unnecessary. See Sassower v. Sheriff of Westchester Cnty., 824 F.2d 184, 190 (2d Cir. 1987)(holding that due process requires an evidentiary hearing when parties' submissions in contempt proceedings raise disputed issue of material fact); Agur v. Wilson, 498 F.2d 961, 965 (2d Cir.)(rejecting a constitutional challenge to New York's civil contempt statutes on ground that they allow findings of contempt without evidentiary hearings and noting that New York courts generally construe statutes to require hearing where affidavits reveal genuine issues of fact), cert. denied, 419 U.S. 1072, 42 L. Ed. 2d 669, 95 S. Ct. 661 (1974).

 Second, since the underlying facts about the reinitiation practices are uncontroverted, to reach a determination of whether the union's facially race neutral policy concerning payment of fees and back dues for reinitiation is contumacious requires the court to consider the practice in light of the language contained in the O&J and AAAPO, its own prior decisions, those of the Second Circuit and the Supreme Court.

 The above cited circumstances distinguish the instant action from the exception carved out in Bagwell, 512 U.S. 821, 834, 129 L. Ed. 2d 642, 114 S. Ct. 2552 (1996). Accordingly, the court concludes that it does not require a full evidentiary hearing in order to reach its determination on the issue of the contumacy of the reinitiation policies in question. Moreover, the issue of whether the policy is contumacious is discussed thoroughly in the parties' submissions, and the court concludes that a consideration of the arguments made therein, together with the lengthy, pre-existing record in this case, is sufficient to guarantee the union's due process rights. *fn3"

 1. Liability Determination

 In order for the court to find contempt on the part of the union for not complying with a court order, the order must be "clear and unambiguous, the proof of noncompliance [must be] . . . 'clear and convincing,'" and the union must not have "been reasonably diligent and energetic in attempting to accomplish what was ordered." Local 28, 753 F.2d at 1178 (quoting Powell v. Ward, 643 F.2d 924, 931 (2d Cir.), cert. denied, 454 U.S. 832, 70 L. Ed. 2d 111, 102 S. Ct. 131 (1981). It is not necessary that the union willfully disobey the court's order for there to be contempt. See McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 93 L. Ed. 599, 69 S. Ct. 497 (1949); Local 28, 753 F.2d at 1178. Parties are bound by a court order until the court modifies the order or releases them from it, and defendants who act without first asking the court to clarify the order "act[] at their own peril." McComb, 336 U.S. at 192; see also Maness v. Meyers, 419 U.S. 449, 42 L. Ed. 2d 574, 95 S. Ct. 584 (1975).

 Defendants have the burden of production in such cases, and this burden may be difficult to meet, especially "where the defendants have a long history of delay and the plaintiffs' needs are urgent." Badgley v. Santacroce, 800 F.2d 33, 36 (2d Cir. 1986), cert. denied, 479 U.S. 1067, 93 L. Ed. 2d 1003, 107 S. Ct. 955 (1987); see also EEOC v. Local 580, Int'l Ass'n of Bridge, Structural & Ornamental Ironworkers, 669 F. Supp. 606, 611 (S.D.N.Y. 1987) (Carter, J.), aff'd, 925 F.2d 588 (2d Cir. 1991). The burden is "certainly not less where the obligations in question were accepted in a decree entered on consent." Aspira of N.Y., Inc. v. Board of Educ. of N.Y., 423 F. Supp. 647, 654 (S.D.N.Y. 1976) (Frankel, J.).

 The union may defend against the contempt citation by showing that circumstances have arisen, unforeseeable when the order was issued, that make compliance with the court's order presently impossible. Id. at 657; see also Badgley, 800 F.2d at 36. An impossibility defense will not lie where the defendant cannot demonstrate that it has made diligent efforts to comply with the order, and no circumstances have changed. See United States v. Chase Manhattan Bank, N.A., 590 F. Supp. 1160 (S.D.N.Y. 1984)(Goettel, J.)(refusing to permit impossibility defense where no facts had changed).

 Having considered the parties' arguments for and against contempt, the court finds that the policy at issue is contumacious in a narrow context: to the extent that nonwhite journeymen who were underemployed between 1984 to 1991 because of the union's discrimination were 1) suspended or terminated from the union, and 2) subsequently required either to pay fees and back dues for reinitiation of their membership, or refused union membership because of the two-year rule. Given the court's prior finding that the two-year rule is discriminatory, E.E.O.C. v. Local 638 ... Local 28, 889 F. Supp. 642, 664-65 (S.D.N.Y. 1995)(Carter, J.), and the Second ...

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