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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. LOCAL 638 ETC.

April 6, 2005.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, THE CITY OF NEW YORK, and THE NEW YORK STATE DIVISION OF HUMAN RIGHTS Plaintiffs, and THE HISPANIC SOCIETY and INDIVIDUAL NONWHITE LOCAL 28 MEMBERS Plaintiff-Intervenors
v.
LOCAL 638 ETC.; LOCAL 28 OF THE SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, et al. Defendants.



The opinion of the court was delivered by: ROBERT CARTER, Senior District Judge

OPINION

Plaintiff-Intervenors, for themselves and on behalf of a class of similarly situated individuals, together with the Equal Employment Opportunity Commission ("EEOC") ask the court to hold defendant Local 28 of the Sheet Metal Workers' International Association ("Local 28" or "the union") in contempt of court for violations of this court's Order and Judgment entered in 1975 ("O&J") and Amended Affirmative Action Program and Order ("AAAPO") entered by this court in 1983.

  BACKGROUND

  Familiarity with this more than thirty-year-old race discrimination suit is presumed. See EEOC v. Local 638, 401 F.Supp. 467 (S.D.N.Y. 1975) (Werker, J.), aff'd sub nom, EEOC v. Local 638, Local 28 of Sheet Metal Workers' Int'l Ass'n, 532 F.2d 821 (2d Cir. 1976); EEOC v. Local 638 & Local 28 of Sheet Metal Workers' Int'l Ass'n., 1982 WL 445 (S.D.N.Y.) (Werker, J.), aff'd in part, rev'd in part, 753 F.2d 1172 (2d Cir. 1985), aff'd sub nom, Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421 (1986); EEOC v. Local 638, Local 28 of Sheet Metal Workers' Int'l Ass'n, 889 F.Supp. 642 (S.D.N.Y. 1995) (Carter, J.), aff'd in part, rev'd in part sub nom, EEOC v. Local 638, 81 F.3d 1162 (2d Cir. 1996); EEOC v. Local 638-Local 28 of Sheet Metal Workers' Int'l Ass'n, 13 F.Supp. 2d 453 (S.D.N.Y. 1999) (Carter, J.), aff'd in part, rev'd in part sub nom, City of New York v. Local 28, Sheet Metal Workers' Int'l Ass'n, 170 F.3d 279 (2d Cir. 1999); EEOC v. Local 638 etc.; EEOC v. Local 28, 2001 WL 66327, at *2 — *3 (S.D.N.Y) (Carter, J.); Local 28 of the Sheet Metal Workers' Int'l Ass'n, 2003 WL 21767772 (S.D.N.Y.) (Carter, J.); EEOC v. Local 638 etc.; Local 28 of the Sheet Metal Workers' Int'l Ass'n, 2003 WL 21804837 (S.D.N.Y.) (Carter, J.); EEOC v. Local 638 etc.; Local 28 of the Sheet Metal Workers' Int'l Ass'n, 2004 WL 2414013 (S.D.N.Y.) (Carter, J.). Only those facts relevant to this decision are recited below.

  This race discrimination suit was originally brought by government agencies against Local 28 on behalf of black and Hispanic members of the union. In 1975, this court found that Local 28 had discriminated against black and Hispanic union members in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and entered an order permanently enjoining Local 28 from discriminating in its recruitment or admission to the union and requiring the parties to work with a court-appointed administrator to establish an affirmative action program. Over the years, this court has issued a series of orders in an attempt to remedy Local 28's past discrimination and ensure its compliance with court-imposed remedies. Much of the litigation to date has resulted from Local 28's non-compliance with this court's orders after liability was established in 1975.

  Local 28 has been held in civil contempt on three separate occasions for violating this court's orders. In 1982, Judge Werker, from whom the court inherited the case, held defendant in contempt for, among other things: adopting a policy of underutilizing its apprenticeship program to the detriment of nonwhites; refusing to conduct the court-ordered publicity campaign targeting nonwhite workers; issuing unauthorized work permits to white workers from sister locals to the detriment of nonwhite workers; and, failing to maintain and submit records and reports as required by court-order. See EEOC v. Local 638, 1982 WL 445 (S.D.N.Y.) (Werker, J.), aff'd in relevant part sub nom., 753 F.2d 1172 (2d Cir. 1985). The following year, in 1983, Judge Werker once again found Local 28 in contempt and adopted the AAAPO, which was affirmed by the Second Circuit, with modifications, and ultimately by the United States Supreme Court. See EEOC v. Local 638 & Local 28 of Sheet Metal Workers' Int'l Ass'n, 1982 WL 445 (S.D.N.Y.) (Werker, J.), aff'd in part, rev'd in part, 753 F.2d 1172 (2d Cir. 1985), aff'd sub nom, Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421 (1986). Then, in 1993, another round of contempt proceedings strikingly similar to the present one was initiated. The court ultimately found Local 28 in contempt — this time for the period from January 1, 1984 to March 31, 1991 — and entered in a series of remedial measures. See EEOC v. Local 638, Local 28 of Sheet Metal Workers' Int'l Ass'n, 889 F.Supp. 642 (S.D.N.Y. 1995) (Carter, J.), aff'd in part, rev'd in part sub nom., EEOC v. Local 638, 81 F.3d 1162 (2d Cir. 1996). Central to the court's 1995 contempt finding, and the subject of the current contempt motion, was the existence of a work hours disparity between white and nonwhite members of the union. Relying on the statistical analysis of court-appointed expert Dr. Bernard Siskin, the court found clear and convincing evidence of a continued statistically significant disparity between the hours worked by white and nonwhite members of Local 28. The court held that the disparity was attributable to Local 28's discrimination and that the union had "actively contributed to the inability of nonwhites to find work." Local 28, 889 F.Supp. at 663, aff'd in relevant part, 81 F.3d at 1174.

  In 2001 and 2002, government plaintiffs and Local 28 entered into settlement negotiations that culminated in the submission of a proposed consent order. In response to the proposed consent order, the Hispanic Society of Local 28 and a group of individual black and Hispanic members of Local 28 filed a motion to intervene in this action as plaintiffs and objecting to the proposed consent order. By decisions dated July 30, 2003, and August 6, 2003, respectively, the court granted the motion to intervene and rejected the proposed consent order. See EEOC v. Local 638 etc.; Local 28 of the Sheet Metal Workers' Int'l Ass'n, 2003 WL 21767772 (S.D.N.Y.) (Carter, J.); EEOC v. Local 638, 2003 WL 21804837 (S.D.N.Y.) (Carter, J.). On October 27, 2004, the court granted plaintiff-intervenors' motion for class certification on behalf of all black and Hispanic persons who are or were at any time since 1984 members, either as journeypersons or apprentices, of Local 28 and who are or were "underemployed" as compared to their white counterparts.*fn1 See EEOC v. Local 638 etc.; Local 28 of the Sheet Metal Workers' Int'l Ass'n, 2004 WL 2414013 (S.D.N.Y.) (Carter, J.). It is these now certified plaintiff-intervenors who, in conjunction with the EEOC, have initiated the present contempt motion.*fn2 In the current motion before the court, plaintiff-intervenors and the EEOC (hereinafter "Plaintiffs") ask the court to hold Local 28 in contempt for continued violations of the O&J and the AAAPO for the period starting April 1, 1991, through May 2, 2003.*fn3 Specifically, plaintiffs claim that Dr. Siskin's new regression analyses for the 1991 to 2003 period demonstrate that statistically significant work hours disparities between white and nonwhite workers persist, that the disparities are attributable to race and that Local 28 has failed to make diligent efforts to remedy these disparities.

  DISCUSSION

  Procedural Arguments

  As a preliminary matter, Local 28 raises a number of procedural defenses, including that plaintiffs' motion is one for criminal, and not civil, contempt and that it is time-barred under various theories. Each of these defenses is essentially a rehashing of procedural arguments that have previously been considered and rejected by this court and the Second Circuit in conjunction with the last contempt motion. The back pay remedy Local 28 claims is criminal in nature is precisely the same remedy we ordered, and the Second Circuit affirmed, during the 1995 contempt finding. See Local 28, 170 F.3d at 284 (affirming, as a proper remedy for civil contempt, district court's back pay remedy and procedures for determining individual back pay awards, and rejecting Local 28's argument that the remedy was actually a punitive remedy for criminal contempt). Moreover, the current contempt motion is neither barred by the statute of limitations nor the doctrine of laches. Plaintiffs are not commencing an action under Title VII but rather bringing a motion for contempt based on Local 28's disregard of court orders, which is, under Second Circuit law, an equitable proceeding "subject to equitable defenses and not legal defenses such as the statute of limitations." Brennan v. Nassau County, 352 F.3d 60, 63 (2d Cir. 2003) (refusing to apply Title VII statute of limitations to a motion to enforce a consent decree that had been entered under Title VII). Furthermore, plaintiffs did not unreasonably delay in raising their claims that Local 28 was in contempt but rather moved for intervention within one month of receiving notice that they had a legally protectable interest that was not being adequately protected. See Local 28, 2003 WL 21767772, at *1. The court thus rejects Local 28's procedural defenses and examines the allegations of contempt.

  Liability for Contempt

  A party may be held in contempt only if it is proven by "clear and convincing" evidence that the party violated a "clear and unambiguous" order of the court. Local 638, 81 F.3d at 1171 (quoting United States v. Local 1804-1, 44 F.3d 1091, 1096 (2d Cir. 1995)). The violation need not be willful, but it must be demonstrated that "the contemnor was not reasonably diligent in attempting to comply." Id. (quoting Local 1804-1, 44 F.3d at 1096).

  O&J and AAAPO Provisions

  Pursuant to the O&J entered by Judge Werker in 1975, Local 28 is permanently enjoined from taking any action which would "deprive or tend to deprive any individual of employment opportunities with Local 28 contractors. . . ." O&J ¶ 1. Specifically, the union is barred from "fail[ing] or refus[ing] to refer any individual for employment with sheet metal contractors," id. ¶ 1, and the O&J mandates that "Local 28 . . . shall provide nonwhite journeymen, and apprentices of Local 28 with the same assistance, including the assistance of Local 28's officers and business agents, in obtaining employment as that provided to white members and apprentices of Local 28." Id. ...


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