City of New York v. Local 28, Sheet Metal Workers' Intern. Ass'n

Page 279

170 F.3d 279

75 Empl. Prac. Dec. P 45,837

The CITY OF NEW YORK and The State of New York, Plaintiffs-Appellees Willie Ellis and Equal Employment Opportunity Commission, Plaintiffs, v. LOCAL 28, SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION Sheet Metal and Air Conditioning Contractors' Association of New York City, Inc., and Sheet Metal and Air Conditioning Contractors' National Association of Long Island, Inc. Defendants-Appellants.

Nos. 98-6159, 98-6160.

United States Court of Appeals Second Circuit.

Argued Jan. 28, 1999.

Decided March 12, 1999.

Ellen S. Ravitch (Michael D. Hess, Corporation Counsel of the City of New York, Stephen J. McGrath, Hilary B. Klein, of counsel ), New York, N.Y., for Plaintiff-Appellee the City of New York.

Andrew Celli (Dennis C. Vacco, Attorney General of the State of New York, Barbara G. Billet, Solicitor General, Chevon Fuller, Melanie Jenkins, Assistant Attorneys General, of counsel ), New York, N.Y., for Plaintiff-Appellee the State of New York.

John O'B. Clarke, Jr., Highsaw, Mahoney & Clarke, P.C., Washington, D.C. (Edmund P. D'Elia, Edmund P. D'Elia, P.C., New York, N.Y., of counsel ), for Defendant-Appellant Local 28, Sheet Metal Workers' International Association.

Martin R. Gold, Gold, Farrell & Marks, LLP, New York, N.Y. (Robert P. Mulvey, of counsel; William Rothberg, Brooklyn, N.Y., on the brief ), for Defendants-Appellants Sheet Metal and Air Conditioning Contractors' Association of New York City, Inc. and Sheet Metal and Air Conditioning Contractors' National Association of Long Island, Inc.

Before: NEWMAN, WALKER, and CALABRESI, Circuit Judges.

JOHN M. WALKER, Jr., Circuit Judge:

Defendants-appellants Local 28 of the Sheet Metal Workers' International Association (the "Union" or "Local 28"), the Sheet Metal and Air Conditioning Contractors' Association of New York City, Inc., and the Sheet Metal and Air Conditioning Contractors' National Association of Long Island, Inc. (together the "Contractors") appeal from a June 24, 1998 order of the United States District Court for the Southern District of New York. Judge Robert L. Carter held the Union in contempt for violating previous orders of the district court and imposed various remedies on the Union.

On appeal, Local 28 challenges the district court's finding of contempt as well as its award of back pay and appointment of a statistical expert at Union expense. The Contractors join in contesting the appointment of a statistical expert. They also contend that the district court's order that a special master investigate the hiring of certain categories of employees extends beyond the "minor and ancillary" relief that a district court is empowered to impose on parties, such as the Contractors, who have not been held liable for any violation of law.

BACKGROUND

These parties appear before us for the second time in connection with these contempt proceedings, and for the fifth time over the life of this litigation. The facts and procedural history of this case have been set out at length in our prior opinions, see, e.g., EEOC v. Local 638, 81 F.3d 1162, 1168-71 (2d Cir.1996), and we recite here only its most important features and recent developments.

I. Early History

On July 18, 1975, after a bench trial, the district court found that Local 28 had discriminated against nonwhites in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. See EEOC v. Local 638, 401 F.Supp. 467, 487 (S.D.N.Y.1975) ("EEOC I "). Among other remedies, the district court ordered the Union to meet a remedial goal of 29 percent nonwhite membership by July 1, 1981. See id. at 489.

The district court entered an Order and Judgment ("O & J") on August 28, 1975. The O & J permanently enjoined Local 28 from discriminating in recruitment or admission to the Union, and it required the parties to work with a court-appointed Administrator to establish an affirmative action program. The Administrator then submitted an Affirmative Action Program and Order ("AAPO") that was adopted by the district court. See EEOC v. Local 638, 421 F.Supp. 603, 617-20 (S.D.N.Y.1975) ("EEOC II ").

On appeal, we affirmed the district court's determination of liability for discrimination. See EEOC v. Local 638, 532 F.2d 821, 825-27 (2d Cir.1976) ("EEOC III "). We also affirmed the appointment of the Administrator, the permanent injunction against the Union, the 29 percent nonwhite membership goal, and, with some modifications, the AAPO. See id. at 829-33. On remand, the district court adopted these modifications in a Revised Affirmative Action Plan and Order ("RAAPO"), and we affirmed the RAAPO. See EEOC v. Local 638, 565 F.2d 31, 36 (2d Cir.1977) ("EEOC IV ").

The July 1, 1981 target date for 29 percent nonwhite membership came and went. In 1982 and again in 1983, the district court held the defendants in civil contempt for violating its prior orders. The district court imposed various remedies and adopted an Amended Affirmative Action Plan and Order ("AAAPO") proposed by the Administrator. On appeal, we affirmed the findings of contempt as to the Union, but reversed the contempt finding against the Contractors. See EEOC v. Local 638, 753 F.2d 1172, 1181-82 (2d Cir.1985) ("EEOC V "). We affirmed the AAAPO, with certain modifications, and affirmed its new membership target of 29.23 percent on the ground that it was a permissible goal, not a permanent quota. See id. at 1185-89. The Supreme Court affirmed in turn. See Local 28 v. EEOC, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986).

II. Current Contempt Proceedings

In July of 1993, the City of New York launched a second round of contempt proceedings by moving that Local 28 once again be held in contempt of the district court's orders. After settlement attempts broke down, Local 28 filed opposition papers in March of 1994. In 1995, the district court held the Union in contempt for 1) violating recordkeeping requirements; 2) failing to meet its membership goal; 3) failing to provide equal work opportunities to nonwhite journeypersons; and 4) maintaining a discriminatory reinstatement policy. See EEOC v. Local 638, 889 F.Supp. 642, 652-68 (S.D.N.Y.1995) ("EEOC VI "). The district court ordered, inter alia, back pay, the creation of a hiring hall and job rotation system, the elimination of certain reinstatement requirements, and the appointment of a field monitor to ensure compliance. See id. at 668-87.

On defendants' subsequent appeal, we affirmed the contempt findings based on the Union's recordkeeping violations and failure to provide equal employment opportunities to nonwhites. We also affirmed the contempt finding based on the Union's two-year limitation on reinstatement, but we vacated the contempt holding based on the Union's other reinstatement conditions on the ground of lack of notice to defendants. See EEOC v. Local 638, 81 F.3d 1162, 1171-76 (2d Cir.1996) ("EEOC VII "). As for the remedies, we 1) vacated the back pay award and remanded to the district court to refashion a remedy that would not allow back pay damages for journeypersons against whom the Union had not discriminated; 2) affirmed the abolition of the two-year rule for reinstatement, but vacated the order based on other conditions for reinstatement; 3) reversed the imposition of a hiring hall and job rotation system; and 4) affirmed the appointment of a field monitor, except for the clause in the appointment order empowering him to investigate and conciliate job-related complaints. See id. at 1176-81.

On remand, the district court made a new finding of contempt based on the Union's imposition of fees and back dues upon reinstatement. Among other remedies, the district court 1) enjoined the Union from charging fees and back dues upon the reinstatement of certain members; 2) fashioned a new back pay procedure that allowed the Union to produce evidence of non-discrimination; 3) established a referral hall; and 4) appointed a referral hall monitor and statistical expert to oversee and analyze the hiring process. See EEOC v. Local 638, 13 F.Supp.2d 453, 459, 462-69 (S.D.N.Y.1998) ("EEOC VIII "). Predictably, this appeal followed.

DISCUSSION

The Union and the Contractors raise numerous challenges to the district court's decision. Many of these challenges are based on an inaccurate reading of the court's opinion. Assessing what the opinion actually holds, we affirm most of the rulings, but reverse the finding of contempt based on the Union's reinstatement policy; reverse, subject to a qualification, the remedy of prohibiting the collection of back dues; and modify slightly one aspect of the remedy concerning the Special Master.

I. 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. See EEOC VII, 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). We review a finding of contempt for abuse of discretion, but because of the formidable and potentially harmful nature of the contempt power, this review is more rigorous than in other contexts. See Local 1804-1, 44 F.3d at 1095-96.

The district court held Local 28 in contempt based on its reinstatement policy. The Union had required a member to pay a $25 reinstatement fee as well as all unpaid dues in order to be reinstated after termination for failure to pay dues. The district court found this policy to be contumacious "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 ... to pay fees and back dues for reinitiation of their membership." EEOC VIII, 13 F.Supp.2d at...