Equal Emp't Opportunity Comm'n v. Local 638

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION And 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... LOCAL 28 OF THE SHEET METAL WORKERS'

INTERNATIONAL ASSOCIATION, LOCAL 28 JOINT APPRENTICESHIP COMMITTEE...SHEET METAL

AND AIR CONDITIONING CONTRACTORS ASSOCIATION OF NEW YORK CITY, INC., etc., Defendants.

VAMCO SHEET METALS, INC., Complainant,

v.LOCAL 28 OF THE SHEET METAL WORKERS' INTERNATIONAL ASSOCIATIONand LOCAL 28 JOINT APPRENTICESHIP COMMITTEE, Respondents.

71 Civ. 2877 (LAK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date: August 9, 2012

Date: August 10, 2012

(Before the Special Master)

OPINION AND ORDER

PARTIES

Wendell V. Shepherd, Esq.

Lauren M Kugielska, Esq.

Barnes, Iaccarino & Shepherd, LLP

Counsel for Respondent

Local 28 of the Sheet Metal Workers' International Association

William Rothberg, Esq.

Law Offices of William Rothberg

Counsel for Respondent

Local 28 Joint Apprenticeship Committee

Brendan R. Wolf, Esq.

Fox & Kowalewski, LLP

Counsel for Complainant Vamco Sheet Metals, Inc.

DAVID RAFF, SPECIAL MASTER

INTRODUCTION

Complainant Vamco Sheet Metals, Inc. ("Vamco") filed a complaint with the Special Master (also referred to as "the Administrator" in some of the court's various orders) pursuant to the complaint procedures established in the Amended Affirmative Action Program and Order ("AAAPO") ¶ 62 and 63. Vamco alleges that respondents Local 28 of the Sheet Metal Workers' International Association ("Local 28" or "union") and the Local 28 JointApprenticeship Committee ("JAC") (collectively, "respondents") violated those provisions of AAAPO that require apprentices to be assigned to employers on the basis of one apprentice to every four working joumeypersons for those employers performing sheet metal work within Local 28's jurisdiction. See AAAPO ¶¶ 22 and 43. Vamco further alleges that as a consequence of respondents' failure to comply with the apprentice assignment provisions of AAAPO it has suffered financial injury.

Both respondents have moved, under Fed. R. Civ. P. 12(b)(6), to dismiss the complaint for failure to state a claim.¹ In addition, respondent JAC moved, under Fed. R. Civ. P. 12(b)(1), to dismiss the complaint for lack of subject matter jurisdiction; and respondent Local 28 has asserted that Vamco lacks standing to bring the instant complaint. Vamco opposes these motions. For the reasons set forth below, respondents' respective motions to dismiss are denied in their entirety.

BACKGROUND

Vamco is a sheet metal contractor incorporated in New York State and headquartered in Putnam County. (Amended Complaint dated March 27, 2012 ("Amended Compl.") ¶¶ 1-2).² Respondent Local 28 is a union that represents individuals who work on air driven heating and cooling systems for office buildings, hospitals, malls, and the like, as well as central air systemhousing. Its jurisdiction encompasses the five boroughs of New York City and Nassau and Suffolk counties. See AAAPO ¶ 2 (as amended after the Sheet Metal Workers' International Association separated the Northern New Jersey jurisdiction from Local 28 in 1991 and created Local 25 of the Sheet Metal Workers International Association). Respondent JAC administers a five year classroom and on-the-job training program for apprentices with the goal of training them to become members of Local 28, or "journeypersons." See Stipulation and Order "So Ordered" July 18, 2007.

Vamco's complaint is not a plenary action. Rather, it is a limited proceeding initiated within the main case pursuant to the complaint provisions established by the court in AAAPO.³ See also Order & Judgment, dated September 2, 1975, ("O&J") ¶ 15.⁴ Accordingly, Vamco's allegations cannot be considered in isolation from the main case.

In order to appreciate the context of Vamco's allegations, the complaint must be viewed against the long history of respondents' failure to comply with Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the court's remedial orders. 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. Aug. 16, 1982) (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. Jan. 26, 2001) (Carter, J.); Local 28 of the Sheet Metal Workers' Int'l Ass'n, 2003 WL 21767772 (S.D.N.Y. July 30, 2003) (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. Aug. 6, 2003) (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. Oct. 28, 2004) (Carter, J.); EEOC v. Local 638 etc.; Local 28 of the Sheet Metal Workers' Int'l Ass'n, 2005 WL 823915 (S.D.N.Y. April 8, 2005) (Carter, J.). Only those facts relevant to respondents' respective motions to dismiss are recited below.

1. The Main Case As It Affects Apprenticeship Job Assignments

In 1975, the court found that Local 28 and the JAC had discriminated against nonwhite union members, apprentices and applicants in violation of Title VII. EEOC v. Local 638, 401 F. Supp. 467. It entered the O&J, which permanently enjoined Local 28, "its officers, agents, employees and successors and all persons in active concert or participation with them" from, among other things, "engaging in any act or practice which has the purpose or the effect of discriminating in . . . indenturing apprentices, referral ... or privileges of employment" or from taking "any other action which would deprive or tend to deprive any individual of employment opportunities with Local 28 contractors . . . ." O&J ¶ 1. See also id. ¶ 8 (equivalent injunctive provision applicable to the JAC).

The O&J also ordered the establishment of an affirmative action program. Id. ¶¶ 21-22. After earlier iterations of an affirmative action program, and two contempt citations for violating previous orders, the court entered AAAPO in 1983. Those contempt citations and AAAPO were upheld by the United States Supreme Court in 1986. See Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 426-40, 443-83 (1986) (discussing respondents' history in the New York State and federal courts from 1964 through 1983 and affirming contempt findings, comprehensive affirmative action remedial relief, and appointment of a Special Master with broad powers).

AAAPO established, as a goal of the court's remedial orders, "that all members and apprentices of Local 28 share equitably in all available employment opportunities in the industry." AAAPO ¶ 3. In furtherance of that goal, AAAPO imposed obligations upon respondents that were applicable for all apprentices, not just nonwhite apprentices. To this end,the JAC was required to "take all reasonable steps to insure that all apprentices indentured receive adequate employment and training opportunities." (Emphasis added). Id. ¶ 25. Such steps included requiring the JAC to "assign apprentices for employment in a ratio of not less than one apprentice for every four journeymen working" ("1:4 ratio"), id. ¶ 22, and directing that "each Local 28 employer shall be required to maintain a ratio of one apprentice for every four journeymen," id. ¶ 43.

The importance of the apprenticeship program as a pathway to union membership cannot be emphasized enough. Although there are several ways for an individual to become a member of Local 28, the majority are admitted through its apprenticeship program. See EEOC v. Local 638 . . . Local 28, 1982 WL 445, at *1 - *2. The apprenticeship program is thus a crucial entry point for nonwhites looking to become journeypersons.

AAAPO's 1:4 ratio seeks to ensure that employers hire more apprentices. EEOC v. Local 638 . . . Local 28, 753 F.2d at 1187. The Second Circuit characterized the ratio as "a critical element in the AAAPO," and warned the union that "[employers] will have the court's assistance in overcoming union opposition .. . ." Id.

2. Local 28's and the JAC's History of Contempt

Over the years, the court has issued a series of orders to remedy Local 28's and the JAC's past discrimination and to ensure their compliance with court-imposed remedies. Much of the litigation to date has resulted from Local 28's non-compliance with these orders.

In 1982, Judge Werker held respondents in contempt for, among other things, adopting a policy of underutilizing its apprenticeship program to the detriment of nonwhites. See EEOC v. Local 638, 1982 WL 445 at *2. The following year, in 1983, Judge Werker once again foundLocal 28 and the JAC in contempt and adopted AAAPO. See EEOC v. Local 638 .. . Local 28, 753 F.2d at 1177. In 1993, another round of contempt proceedings was initiated. The court ultimately found Local 28 in contempt and ordered additional 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). See also EEOC v. Local 638, Local 28 of Sheet Metal Workers' Int'l Ass'n, 13 F. Supp.2d 453 (S.D.N.Y. 1998) (Local 28 found in contempt again), aff'd in part, rev'd in part, and remanded, 170...