Petition for Writ of Certiorari — Sheet Metal Workers International Ass'n Local Union No. 28 v. Equal Employment Opportunity Commission

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In The

Supreme Court of the United States

October Term, 1995

SHEET METAL WORKERS INTERNATIONAL

ASSOCIATION LOCAL UNION NO. 28,

Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

and

CITY OF NEW YORK,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

EpmunpD P. D’E LIA CHaRLEs J. Coorer*

20 Exchange Place Rosert J. CYNKAR

New York, New York Davip H. THompson

10005 SHAW, PITTMAN, Potts

(212) 269-3233 & TROWBRIDGE

2300 N Street, N.W.

Washington, D.C. 20037

(202) 663-8000

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Ee ee

QUESTIONS PRESENTED

Petitioner Local 28 of the Sheet Metal Workers Interna-

tional Association (“Local 28”) seeks review of a district

order holding it in contempt for violating prior remedial

orders establishing a 29.23% minority membership goal, the

initial imposition of which was upheld a decade ago by this

Court on the explicit expectation that it would be imple-

mented as a flexible “benchmark” rather than an impermissi-

| ble quota. The questions presented are:

1. Was Local 28 properly held in contempt for its

failure to achieve the 29.23% nonwhite mem-

bership goal within the court’s deadline, despite

the fact that since 1987 the union has volun-

tarily and faithfully indentured three nonwhites

for every white into its apprenticeship pro-

gram?

2. Can Local 28 be required to remain under the

district court’s sweeping, race-conscious reme-

dial orders beyond its achievement of the non-

white membership of 29.23%, until it reaches a

new and higher nonwhite membership goal,

raised by the courts below simply to reflect the

increase over the last two decades in the per-

centage of nonwhites living in the New York

City area?

3. Can Local 28 be held responsible for a disparity

in the average number of hours worked by its

nonwhite and white journeypersons despite the

undisputed fact, acknowledged by both courts

below, that the sheet metal contractors have

“unfettered discretion” over the hiring and fir-

ing of journeypersons?

PARTIES TO THE PROCEEDING

The petitioner is Sheet Metal Workers International

Association Local Union No. 28.

The Sheet Metal and Air Conditioning Contractors’

Association of New York City, Inc. and Sheet Metal Air

Conditioning Contractors’ National Association of Long

Island, Inc. were defendant-appellants in the court below.

The respondents are the City of New York, the Equal

Employment Opportunity Commission, and the New York

State Division of Human Rights.

RULE 29.6 STATEMENT

In accordance with Rule 29.6 of the Rules of this Court,

petitioner Local 28 of the Sheet Metal Workers International

Association hereby submits that it has no parent company and

that its only non-wholly owned subsidiary is Local 28 Realty

Inc.

TABLE OF CONTENTS

Page

tg ss By 8 gy | i

PEE UP BONES PRPC EOIN oleic se ee eee eees li

Ee OGTR RMMRUEOTE 55a Sed bok iss eh acc deneevee ii

EF MUR TONE EAD dais ce y ck a wie Kees naecesesnces lil

MERE I PUR RRUUPIR EE EISS 6 0 inc ctcansovesasavivanes v

et REE SECURE Se op th sn b denen bekisceaeuen 1

le ee win a 5 ssh ey a aed ba Kaos 444 os I

II. CONSTITUTIONAL AND STATUTORY PROVI-

OE 6 os yas tc 4b Unga eusk env suns 1

RMON MEMO 3k Ges kb bn 84 Rk wes Kev b bases l

¥. StAtSMent OF THE CASE ..........2.5cceee 4

ma. cme Labtrict Court Decision..........06.06: +

B. The Court of Appeals Decision............. 10

VI. REASON FOR GRANTING THE PETITION.... 13

A. Inflexible Judicial Enforcement Of The 29.23

Percent Nonwhite Membership Goal Has

Transformed The Goal Into An Impermissible

SE ae fos ts bee e AR kk Mi wae oh eee ee 13

B. The District Court’s Order Raising The 29.23

Percent Goal Exceeds Constittitional Limita-

tions On Judicial Remedial Power....... es

C. The Courts Below Erred In Holding The

Union In Contempt For The Racially Dispa-

rate Impact Of The Contractors’ Employment

a ag ride a Nas Kea dad Vineweeu ke s,s i 22

ee ea eS Cede ik y-a'4 wwe ss 00 0k 30

TABLE OF CONTENTS - Continued

Appendix A:

Appendix B:

Page

APPENDICES

Opinion of the United States Court of

Appeals for the Second Circuit, dated

ARG FA, 290O iwan sss danas se la

Opinion of the United States District

Court for the Southern District of New

York, dated March 6, 1995 ............. 43a

Opinion of the United States District

Court for the Southern District of New

York, dated June 6, 1995............. 179a

Constitutional and statutory provi-

pc a RET eT re at ee ea Re a 202a

seen

TABLE OF AUTHORITIES

Page

CASES

Baumgartner v. United States, 322 U.S. 665 (1944)..... 27, 29

Bloom v. Illinois, 391 U.S. 194 (1968) ............. 24, 27

Board of Educ. of Oklahoma City v. Dowell, 498 U.S.

|: FRR pera ee ae ae a ay re cans ETS 19

Bose Corp. v. Consumers Union of the United States,

es Te Ces, CEP coc Cid d sc ccdicer erie eae. 27

City of Richmond v. Croson, 488 U.S. 469 (1989)...16, 18

Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406

SRP ER USS ce vs bo Eke TES VERE RAS Va be hae we ae 20

EEOC vy. Local 638, 401 F.Supp. 467 (S.D.N.Y. 1975),

Sr a. Dae Se -Oak See GM ROT 6 26d i fade kee vie 4

EEOC v. Local 638, 753 F.2d 1172 (2d Cir. 1985)...... 5

EEOC v. Local 638, 81 F.3d 1162 (2d Cir. 1996) ....... I

EEOC v. Local 638, 889 F.Supp. 642 (S.D.N.Y. 1995)..... l

EEOC v. Local 638, No. Civ. 2877 (RLC), slip op.

Cees By PD Fa ie ok bo Ceo Pee ead sees wakes 7

Freeman v. Pitts, 503 U.S. 467 (1992)..... 18, 19, 20, 21

General Bldg. Contractors Ass'n v. Pennsylvania, 458

Ses Ee CO kc wo SSS 3 eEh be eL cea 19, 22, 25

Granny Goose Foods, Inc. v. Brotherhood of Teams-

yp A TO 8 ny ie Te No Sr re 24

Hills v. Gautreaux, 425 U.S. 284 (1976)............... 19

International Longshoremen’s Ass'n, Local 129] v.

Philadelphia Trade Ass'n, 389 U.S. 64 (1967)....... 24

Mita isiec

TABLE OF AUTHORITIES — Continued

Page

International Union, UMWA v. Bagwell, 114 S.Ct.

BOO MEO v5 060s KaCEe TREK EEE ee eke 24, 27

Local 28 v. EEOC, 478 U.S. 421 (1986)........... passim

Milliken v. Bradley, 433 U.S. 267 (1977).............. 19

Missouri v. Jenkins, 115 S.Ct. 2038 (1995) ............ 19

Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424

Le FES eer pe Aint Cangas CxO heen, hiram ae 19

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402

om LEPIED 63 va ON a Pay oer ee re De eet 19

United States v. City of Miami, 2 F.3d 1497 (11th Cir.

dicks ERENT OCT PE Pe CODE Pelee prtiped Bond Cae Lag 20

United States v. Paradise, 480 U.S. 149 sf geeeagapiae rte 17

United States v. Virginia, No. 94-1941, slip op. at

Dae Cee Fe POR is Fs okac hick isk ee 29

Watson v. Ft. Worth Bank, 487 U.S. 977 45 | 17

CONSTITUTIONAL PROVISIONS AND STATUTES

United States Constitution, Amendment V .............. l

eS PUM sb tty eae l

Se ACM TORE a daeich cass 5 soe Peau eae ERR 22

Ta © CN. sna ihbea ae l

AA BONED 5i 0s casa dca ie, a l

RULES AND REGULATIONS

Fed. Rule of Civ. Proc. DOU: + bi ond eS ees. Pores 24

te ae

PETITION FOR WRIT OF CERTIORARI

Petitioner Sheet Metal Workers International Association

Local Union No. 28 (“Local 28” or “Union”) respectfully

requests that a writ of certiorari issue to review the decision

of the United States Court of Appeals for the Second Circuit,

entered on April 10, 1996.

I. OPINIONS BELOW

The opinion of the court of appeals for which review is

sought is reported at 81 F.3d 1162 (2d Cir. 1996) and is

appended to this petition for writ of certiorari at la-42a. The

opinion of the United States District Court for the Southern

District of New York is reported at 889 F. Supp. 642

(S.D.N.Y. 1995) and is appended hereto at 43a-178a.

Il. JURISDICTION

The judgment of the court of appeals was entered on

April 10, 1996. Petitioner invokes this Court’s jurisdiction

under 28 U.S.C. § 1254(1).

Ill. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, amendment V

Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-2(j)

42 U.S.C. § 2000e-5(g)

These provisions are printed in Appendix B.

IV. INTRODUCTION

This case has been here before. Ten years ago a five-

Member majority of the Court upheld an order finding Local

28 in civil contempt for failing, among other things, to meet a

29% goal for the admission of African American and His-

panic individuals (“nonwhites”) into membership in the

Union. See Local 28 v. EEOC, 478 U.S. 421 (1986). The

contempt finding was premised upon the conclusion that

Local 28 had sought to limit the admission of nonwhites into

the Union by deliberately underutilizing its apprenticeship

program, which accounted for the vast bulk (over 90%) of the

Union’s new members. In rejecting the Union’s claim that the

nonwhite membership goal (which had by then been recalcu-

lated and set at 29.23%) was in truth a quota and thus

impermissible under both Title VII of the 1964 Civil Rights

Act and the Constitution, a plurality of this Court, speaking

through Justice Brennan, was satisfied that the district court

would enforce the 29.23% membership requirement as a

“flexible” goal, accommodating any legitimate reason, such

as depressed economic conditions, for the Union’s failure to

meet the nonwhite membership goal by the court-ordered

deadline of August 31, 1987. /d. at 477-478. Justice O’Con-

nor predicted in dissent that the 29.23% membership goal

would operate “as a rigid racial quota that cannot feasibly be

met through good-faith efforts by Local 28.” /d. at 489.

Now, ten years later, Local 28 has again been held in

contempt by the courts below. During the past decade, how-

ever, not only has Local 28 complied with the specific mem-

bership requirements of prior remedial orders, it has gone

beyond them in its efforts to achieve the 29.23% nonwhite

membership “goal.” Indeed, not long after this Court’s deci-

sion was rendered in 1986, the Union voluntarily agreed to

indenture into the apprenticeship program three nonwhites for

every white, and it has faithfully done so ever since. The

district court (Robert L. Carter, J.) nonetheless held Local 28

in contempt for failing to meet the 29.23% nonwhite member-

ship “goal” within the prescribed timeframe, which had been

extended by stipulation until August 31, 1992. The district

court thus fulfilled Justice O’Connor’s prophecy, transform-

ing the flexible membership goal upheld by this Court into an

impermissible quota in its determination simply to achieve

racial balance in this trade.

The courts below also ordered that the 29.23% nonwhite

membership requirement be raised to account for the increase

since 1970 in the percentage of nonwhites living in the New

York City area, as reflected in the 1990 Census (which shows

that blacks and Hispanics now account for 49.6% of New

ee eS ee

York City’s total population).'! Thus, the Union, after almost a

decade of sharply limiting the admission of whites into its

apprenticeship program and just as achievement of the

29.23% nonwhite membership goal was within sight, has been

ordered to continue its racially preferential efforts to increase

its nonwhite membership until it achieves a new and higher

level of racial balance measured by demographic changes for

which it was in no way responsible.

Finally, the courts below have also transformed the

Union’s obligation under the court’s orders to ensure non-

discriminatory admission of nonwhites to membership into an

obligation to ensure nondiscriminatory hiring of nonwhite

Union members by sheet metal contractors. What drives this

case now, and animates every facet of the contempt finding

against the Union, is the existence of a disparity in the

average number of hours worked by white and nonwhite

Union journeypersons; nonwhite journeypersons, on average,

are employed by the contractors for fewer hours than are

white journeypersons. Although the courts below acknow!l-

edged that the contractors have “unfettered discretion” over

the hiring and firing of Union journeypersons, the Union was

nonetheless held responsible for the disparity in the average

hours worked by white and nonwhite journeypersons. The

lower courts interpreted the remedial orders entered in this

case to oblige the Union “to ensure that a non-discriminatory,

race-neutral market existed for workers in the sheet metal

industry,” and they held that the hours disparity violated this

obligation. Pet. App. 19a-20a.

This Court’s prior decisions in the difficult and conten-

tious area of racially preferential remedies for past employ-

ment discrimination have focused on the narrow standards

governing initial imposition of such relief. Now, in many

cases throughout the country, remedial orders containing

race-conscious relief, like those at issue here, have been in

' U.S. Bureau of the Census, General Population Characteristics,

New York, Section | p. 152.

place for many years and are nearing fulfillment. This case

thus presents timely and important issues concerning the

standards governing implementation and, ultimately, termina-

tion of racially preferential remedial measures. At what point

does a race-conscious hiring or admission goal, imposed in

theory as a flexible and temporary measure, become an imper-

missible quota in practice? And under what circumstances is a

court warranted in raising the goal and thus prolonging indefi-

nitely race-conscious relief designed to be temporary?

Finally, can Local 28 be held responsible — indeed, in con-

tempt — for the consequences of hiring practices over which it

has no significant measure of control?

We submit that the courts below answered these impor-

tant questions incorrectly and that this Court’s review is

amply warranted.

V. STATEMENT OF THE CASE

A. The District Court Decision

The long and complicated history of this litigation is

recounted at length in this Court’s prior decision. See Local

28, 478 U.S. at 425-41. Much of this history has no relevance

for this Petition and will not be reiterated here.

1. In 1975 the district court held that Local 28 and the

Local 28 Joint Apprenticeship Committee (“JAC”) had vio-

lated Title VII through “clearly discernible discriminatory

practices in recruitment, selection, training and admission to

[Union] membership of nonwhite workers.” EEOC vy. Local

638, 401 F.Supp. 467, 487 (S.D.N.Y. 1975), aff’d, 532 F.2d

821 (2d Cir. 1976). Over 90% of Local 28’s members enter

this highly-skilled trade through a four-year apprenticeship

program. Once apprentices complete their training and

become journeypersons, Local 28 has no control over their

employment. The Union’s Collective Bargaining Agreement

(“CBA”) with the sheet metal contractors recognizes the

absolute right of the contractors to hire and fire journeyper-

sons at will and the right of journeypersons to work for

whomever they desire. J.A. 998.2 The contractors are not

parties to this litigation.

The district court’s Order and Judgment (“O&J”), and the

several iterations of its affirmative action plan, currently the

Amended Affirmative Action Program and Order (““AAAPO”)

entered in 1983, “aimfed] the relief where it would be most

effective — the apprenticeship program — . . . with an eye

toward increasing the non-white membership of the program

and the union.” EEOC v. Local 638, 753 F.2d 1172, 1184 (2d

Cir. 1985). In particular, the district court’s remedial orders

set a nonwhite membership goal of 29.23% of total member-

ship (apprentices and journeypersons)> and mandated various

specific rules governing the apprentice program to expand

nonwhite participation. J.A. 117. Paragraph | of the O&J

included the following provisions entitled “General Equitable

Relief”:

Local 28 shall not . . . fail or refuse to refer any

individual for employment with sheet metal contractors,

their agents, subsidiaries or successors . . . on the basis

of race, color or national origin, nor shall they take any

other action which would deprive or tend to deprive any

individual of employment opportunities with Local 28

contractors. . . . They shall . . . administer all of the

affairs of Local 28 and the Apprentice Program so as to

ensure that no individual is excluded from equal work

opportunities, . . . on the basis of race, color or national

origin.

Pet. App. 8a. The O&J also enjoined Local 28 to “provide

nonwhite journeymen, and apprentices of Local 28 with the

same assistance, including the assistance of Local 28’s offi-

cers and business agents, in obtaining employment as that

provided to white members and apprentices of Local 28.” Pet.

App. 84a. The AAAPO contained a similar general provision,

stating that “[t]he goal of this [order] is to assure that all...

2 “J.A.” refers to the Joint Appendix filed in the court of appeals.

+ The original goal of 29% was raised to 29.23% in 1983 following

the merger of Local 28 with three other locals. J.A. 761.

ai i

members . . . of Local 28 share equitably in all available

employment opportunities in the industry.” J.A. 213.

2. As previously discussed, in 1986 this Court, by a

five-to-four vote, affirmed an order finding Local 28 and the

JAC in contempt of the district court’s remedial orders, pri-

marily because they “had underutilized the apprenticeship

program to the detriment of non-whites.” Local 28, 478 U.S.

at 443. The majority rejected Local 28’s claim that the

29.23% nonwhite membership goal violated both Title VII of

the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seg., and the

Constitution, concluding that the district court would enforce

the measure as a flexible goal rather than an impermissible

quota. The Court also affirmed the district court’s order

requiring the Union to establish a fund — the Employment,

Training, Education, and Recruitment Fund (“ETER Fund”) —

to be used “to increase the pool of qualified nonwhite appli-

cants for the apprenticeship program” and for other remedial

purposes. Local 28, 478 U.S. at 436.

By early 1987, Local 28’s nonwhite membership, which

had been 3.19% of total membership in July of 1974, stood at

17.32%, and it became clear that the 29.23% nonwhite mem-

bership goal would not be reached by the court-ordered dead-

line of August 31, 1987. At that time the parties stipulated to

extend the deadline to August 31, 1992, and Local 28 volun-

tarily agreed to indenture into the apprenticeship program

three nonwhite applicants for every white applicant. J.A. 346.

Through faithful adherence to the three-to-one indenture

ratio, nonwhite Union membership rose steadily and as of

March 1991 stood at 21.40%. Pet. App. 143a. Indeed, the

apprenticeship program at that time was 66.30% nonwhite,

and 16.44% of ull journeypersons were nonwhite. Nonethe-

less, the Union was unable to reach the goal by the August

1992 deadline, and in 1993 respondent City of New York

(“City”) moved for a finding of contempt against Local 28.

3. The district court ruled on the contempt motion

solely on the basis of the briefs and affidavits submitted by

the parties, adopting the City’s theories of liability and pro-

posed remedies with only a few minor modifications. The

district court found Local 28 in contempt on four grounds,

which the court itself summarized as follows:

[T]he Court found that the union had failed to

achieve a goal of 29.23% non-white membership,

had failed to ameliorate and had contributed to >

disparity between the hours worked by white and

non-white journeypersons, had adopted a reinitia-

tion policy which had the effect of dispropor-

tionately keeping non-white members from re-

entering the union, and had failed to fulfill its

recordkeeping obligations.

EEOC v. Local 638, No. 71 Civ. 2877 (RLC), slip op. at 1-2

(S.D.N.Y. June 7, 1995) (opinion denying stay).

a. The district court concluded that the Union had

not “presented evidence that it has made diligent efforts to

reach the membership goal.” Pet. App. 73a. Far from credit-

ing Local 28’s aggressive 3-to-1 indenture ratio for nonwhite

apprentices, the district court turned that effort against the

Union, accusing Local 28 of “stack[ing] the apprenticeship

program with nonwhites in order to boost its overall nonwhite

membership percentage.” Pet. App. 144a. The district court

equated Local 28’s failure to meet the nonwhite membership

goal with discrimination against nonwhites in admission to

the Union: “The court views the union’s failure to meet the

goal as a symptom of its refusal to stop discriminating against

nonwhites in admission to the union and in the provision of

equal job opportunities to journeypersons, and it is on this

discrimination, not on the failure to meet the membership

goal, that the contempt finding is based.” Pet. App. 75a-76a.

Yet, the court pointed to no evidence of this discrimination

other than the Union’s failure to meet the goal.

The district court was also unmoved by the fact, which

was undisputed, that the Union had fully utilized the appren-

ticeship program, but that depressed economic conditions in

the sheet metal industry had limited the Union’s growth and

thus its progress toward achievement of the nonwhite mem-

bership goal. The district court noted that Local 28 had not

pointed to any “circumstances . . . that were unforeseen when

the membership goal was set” and that “the Union consented

to the .. . deadline [of] August 31, 1992, and thus agreed that

it would be able to meet the goal by that time.” Pet. App. 73a.

The remedies imposed by the district court for the

Union’s failure to achieve the nonwhite membership goal

similarly focused on pure racial balance rather than on actual

discrimination. Concluding that “the Union is required to

achieve the same percentage of nonwhite journeypersons as

there are nonwhites in the relevant labor pool,” Pet. App.

144a, the court ordered the parties to raise the membership

goal to reflect the increase since 1970 in the percentage of

nonwhites living in the New York City area.* The court also

effectively raised the goal by applying it separately to

apprentices and journeypersons, rather than to overall Union

membership. As an additional remedy, the court ordered “rai-

sing the ETER Fund contribution to a level that will cost the

union enough money to provide an incentive to meet the

membership goal. ...” Pet. App. 146a.

b. The district court also based its contempt find-

ing on a disparity in the average number of hours worked by

white and nonwhite journeypersons, despite its acknowledg-

ment that the contractors have “unfettered discretion” in mak-

ing hiring decisions. Pet. App. 130a (emphasis added).

Relying on the general injunctive provisions of the O&J and

the AAAPO, see supra at 5-6, the district court concluded that

Local 28 “is under an obligation to ensure that race does not

play a significant role in the hours worked by union mem-

bers.” Pet. App. 83a. The court determined that the Union had

violated its affirmative obligation to ensure a racially propor-

tional distribution of work opportunities by the contractors in

two ways.

First, the district court found that Local 28’s “business

agents play an important role in helping members find work —

under the CBA, business agents refer members for fan main-

tenance jobs and for jobs with contractors from outside Local

4 The court also stated that the goal should be recalculated to take

into account the demerger of Local 25 which has jurisdiction over northern

New Jersey.

28’s area who are temporarily working inside the area.” Pet.

App. 86a. The court made no mention, however, of the undis-

puted fact that such referrals account for no more than two

percent of the hours worked by Local 28 journeypersons. The

district court, relying on 17 affidavits filed on behalf of the

City by nonwhite journeypersons, concluded that the Union’s

business agents refer nonwhite journeypersons for work “only

sporadically” and thus that the Union “cannot absolve itself of

responsibility for the inability of its nonwhite members to

find work.” Pet. App. 87a-88a. Second, the district court

criticized the Union for failing to invoke two provisions of

the CBA that the court believed would have increased work

opportunities for unemployed journeypersons. The district

court did not explain how implementation of either provision

would ameliorate the hours disparity.

The relief ordered by the district court focused on the

employment decisions made by the contractors. The court

ordered the Union and the contractors to establish a manda-

tory hiring hall and job rotation program.5 The district court

candidly recognized that the relief must “limit a contractor’s

[hiring] discretion” because, “if left to their own devices, the

contractors will continue to hire more whites dispropor-

tionately than nonwhites. . . . Such mnfettered discretion

allows contractors to hire journeypersons based on family,

friends, and union referrals rather than merit.” Pet. App.

129a-130a. In addition, the district court ordered the Union to

award back pay to each nonwhite journeyperson whose hours

worked were two or more standard deviations less than their

expected hours. Pet. App. 14Sa.

c. The district court also found the Union in con-

tempt for its policy restricting reinitiation of members who

> Under the hiring hall stipulation, all contractors would be required

to hire at least 80% of the journeypersons they employed through the hiring

hall. The journeyperson with the least number of hours worked during the

previous year would be the first person sent to a contractor from the hiring

hall when a journeyperson is needed. Pet. App. 147a. The proposed job

rotation system would require layoffs when journeypersons had worked a

specified number of hours during a 52-week period. /d.

had been suspended for more than two years for nonpayment

of dues. The court reached this issue notwithstanding the fact

that Local 28 had, by Stipulation, already abandoned the

policy. To remedy this violation, the court ordered relief that

respondent had not even requested; it ordered Local 28 to

waive all reinstatement fees and back dues for nonwhite

journeypersons who were suspended or terminated from mem-

bership as a result of nonpayment of dues. Pet. App. 149a.

Furthermore, such members were to be allowed to apply for

readmission at any time. Pet. App. 150a.

d. A final area addressed by the district court was

the Union’s long-troubled recordkeeping efforts. Indeed, the

Union had recognized its shortcomings in recordkeeping and

had agreed, by stipulation, to make a substantial investment in

updated computer equipment. Even though the need for

improvement in recordkeeping was not a point of dispute

among the parties, the district court held the Union in con-

tempt for its recordkeeping deficiencies, concluding that “the

Union has not been reasonably diligent and energetic in trying

to meet its recordkeeping responsibilities. . . . ” Pet. App.

6Sa.

B. The Court of Appeals Decision

On appeal, the Court of Appeals for the Second Circuit

affirmed in part, reversed in part, and remanded the case to

the district court. After noting that “[a] party may not be held

in contempt unless ‘the order violated . . . is clear and

unambiguous, [and] the proof of noncompliance is clear and

convincing,’ ” Pet. App. 12a, the court of appeals considered

each of the four bases of the district court’s finding of

contempt.

1. The court of appeals declined to reach Local 28's

contention that its failure to achieve the membership goal was

not a valid ground for holding it in contempt, “because the

district court specifically held that there were numerous other

bases for the contempt finding.” Pet. App. 15a. Nevertheless,

the Second Circuit upheld the district court’s order requiring

that the goal be separately applied to journeypersons and be

Smale

raised to reflect the demographic changes in the New York

City area. Pet. App. 32a. The court also approved of the

increase in the ETER Fund as an appropriate incentive for the

Union to meet the membership goal. Pet. App. 30a-31a.

2. The Second Circuit also upheld the district court’s

determination that Local 28 was in contempt for the hours

disparity between white and nonwhite journeypersons. The

court interpreted the O&J as a “clear order” that required “the

Union take action to ensure that a non-discriminatory, race-

neutral market existed for workers in the sheet metal indus-

try.” Pet. App. at 19a-20a.

As for the conclusion that the Union’s business agents had

made discriminatory job referrals, the court noted that the “eviden-

ce . . . on this issue was in conflict,” consisting largely of opposing

affidavits of nonwhite Union members submitted by both parties.

The court of appeals concluded that the district court’s choice

between the “two conflicting versions” of the business agents’

conduct was not clearly erroneous. The court of appeals also held

that discriminatory intent could be inferred both from the Union’s

prior resistance to court orders and from its recordkeeping viola-

tions. Pet. App. 20a.

In response to the uncontroverted fact that the referrals

made by Local 28’s business agents account for only two

percent of the hours worked by journeypersons, the court of

appeals merely observed that “2% of [the millions of hours

worked by journeypersons] is by no means an insignificant

number of hours for Local 28 to be distributing unequally

among its members.” Pet. App. 22a. The Union’s failure to

invoke the two emergency provisions of the CBA, the court of

appeals concluded, constituted a breach of the Union’s

“explicit obligation to take all steps in its power to try to

reduce the hours disparity, even if unsuccessful.” Pet. App.

23a-24a (emphasis added).

Nevertheless, the court of appeals vacated the hiring hall

and job rotation remedies precisely because they were

addressed to the contractors, who have never been parties to

this litigation and thus have not been found liable of violating

Title VII. The court of appeals also vacated the district court’s

order that would have awarded back pay to all nonwhite

journeypersons whose actual hours were at least two standard

deviations below their expected hours. The court held that

this award, which by the City’s own estimate could have

exceeded $12 million, would have a “potentially disastrous

financial impact” on the Union and thus was inappropriate as

a civil contempt remedy. Pet. App. 29a. Furthermore, the

court stated that the award of back pay was formulated too

broadly insofar as “a journeyperson would be entitled to

receive damages even if there was a legitimate non-discrimi-

natory reason that would explain why the journeyperson was

not hired.” Pet. App. 29a. On remand, the court of appeals

placed the burden upon the Union to “show that a particular

journeyperson was unemployed, not because of its own dis-

crimination, but rather, because the contractors were illegally

discriminating against the journeyperson.” Pet. App. 29a-30a.

3. The Second Circuit also upheld the district court’s

decision finding the Union’s restrictive reinstatement policy

to be contumacious. The appellate court vacated, however, the

district court’s finding of contempt with respect to the rein-

itiation fees and back dues payments because the City had not

challenged these aspects of the Union’s reinitiation policy.

4. The court of appeals concurred with the district

court’s finding that the Union had submitted “inaccurate and

misleading information” and thus had violated its recordkeep-

ing requirements. Pet. App. 15a. The court noted, however,

that “these violations, by themselves, would not justify most

of the remedies imposed by the district court.” Pet. App. 16a.

5. Finally, the Second Circuit assessed whether Local

28 had been “reasonably diligent in attempting to comply”

with the court’s orders. The court of appeals agreed with the

district court that Local 28 had “complied reluctantly” with

its obligations and that there was “no evidence that the Union

was reasonably diligent.” Pet. App. 26a. In reaching this

conclusion, the court of appeals focused its analysis of Local

28’s diligence exclusively on the recordkeeping practices of

the Union. The court stated, “based on the gross recordkeep-

ing violations alone, the court could find that the Union had

not been reasonably diligent.” Pet. App. 26a.

aii

VI. REASONS FOR GRANTING THE PETITION

This case raises timely and important issues concerning

the fundamental limits on a federal court’s power to enforce

race-conscious measures imposed to remedy past discrimina-

tion. At the root of the contempt rulings concerning the

29.23% goal and the hours disparity is the question whether a

Union (or an employer) that is under court orders designed to

remedy its past discrimination can be held responsible

(indeed, in contempt) for events and/or conduct over which it

has no significant measure of control.

AL cae

A. Inflexible Judicial Enforcement of the 29.23 Per-

cent Nonwhite Membership Goal Has Trans-

formed the Goal Into An Impermissible Quota

When a majority of this Court upheld the 29.23% “goal”

for nonwhite membership in Local 28 a decade ago, it con-

cluded that the measure would operate in practice as a “flex-

ible” goal and not as an impermissible quota. In so doing, the

majority emphasized, inter alia, (1) that the goal would not be

“used simply to achieve and maintain racial balance, but

rather as a benchmark against which the Court could gauge

{the Union’s] efforts to remedy past discrimination”; (2) that

the district court would “accommodate legitimate explana-

tions” for any failure to reach the 29.23% nonwhite member-

ship goal by the district court’s deadline of August 31, 1987;

and (3) that the goal was a “temporary” measure, “scheduled

to terminate when [Local 28] achieved the membership goal.”

Local 28, 478 U.S. at 478-79 & n.49. In dissent, Justice

O’Connor, noting that “economic conditions [had] led to a

sharp decline in the demand for the union skills involved in

this case,” concluded that the 29.23% nonwhite membership

goal “clearly could not be met by good-faith efforts on [Local

28’s] part” by the court-imposed deadline of August 31, 1987.

Accordingly, Justice O’Connor predicted that the goal would

operate “as a rigid membership quota, which will in turn

spawn a sharp curtailment in the opportunities of non-

minorities to be admitted to the apprenticeship program.” /d.

at 497-98.

By early 1987 nonwhite Union membership stood at

17.32%, despite the fact that the Union had indentured non-

whites into its apprenticeship program at a disproportionately

high rate (45%). Because it was clear that the nonwhite

membership goal could not be reached by the court-ordered

deadline, the parties entered into a stipulation extending it

five years, until August 31, 1992, and the Union voluntarily

agreed to an indenture ratio of three nonwhites for every

white into its apprenticeship program — “a sharp curtailment

in the opportunities of nonminorities to be admitted to the

apprenticeship program,” as Justice O’Connor had predicted.

Id. at 498. Faithful adherence to the three-to-one indenture

ratio produced nonwhite membership in the apprenticeship

program of over 66% by March 1991, but the Union’s overall

nonwhite membership had not reached 29.23% by the 1992

deadline, and shortly thereafter the City filed its motion to

hold the Union in contempt of court.

The district court, reasoning that “if the union and the

JAC had not discriminated against nonwhites, the union

would contain the same percentage of nonwhites as exists in

the relevant labor force,” concluded that the Union’s failure

to meet the nonwhite membership goal reflected its continued

“discriminat[ion] against nonwhites in admission to the

Union.” Pet. App. 75a. The district court was unmoved by the

fact that Local 28, far from discriminating against nonwhites

in admission to the Union, had actually indentured three

nonwhite apprentices for every white apprentice since 1987.

As a result of its contempt finding, the district court

ordered that the 29.23% membership goal, which was based

on 1970 census data, be raised to account for the “increase in

the minority population of New York City” reflected in the

1990 Census. Pet. App. 77a. The court further held that the

nonwhite membership goal, which has throughout this litiga-

tion applied to overall Union membership (journeypersons

and apprentices), will henceforth be applied separately to

journeypersons alone. Accusing the Union of “stack[ing] the

apprenticeship program with nonwhites in order to boost its overall

nonwhite membership percentage,” the district court ordered Local

28 “to achieve the same percentage of nonwhite journeypersons as

ee ae Oe ene ree Tene ——

there are nonwhites in the relevant labor pool, as well as to achieve

an overall nonwhite membership equal to the percentage of non-

whites in the relevant labor pool.” Pet. App. 143a.

While the court of appeals neither affirmed nor reversed

the district court’s finding of contempt based on Local 28’s

failure to meet the 29.23% goal,® it nonetheless did affirm the

district court’s order requiring that the goal be raised to

account for demographic changes since 1970 and that it be

applied separately to journeypersons. Because “large shifts in

Local 28’s membership have occurred since the goal was last

modified,” the Second Circuit held that the district court’s

decision was within its “broad discretion to adjust the mem-

bership goal when circumstances warrant.” Pet. App. 32a. The

court of appeals also rejected the Union’s contention that

raising the membership goal would be unconstitutional, hold-

ing that the issue had already been litigated and that “the

Supreme Court has made clear that the membership goal is

just that — it is just a goal and is not a quota.” Pet. App. 33a.’

finding was based “on grounds other than the Union’s failure to attain the

membership goal.” Pet. App. 15a.

? The Second Circuit also determined that Local 28 had raised this

constitutional issue for the first time in its reply brief and thus had waived

it. Pet. App. 33a. This inexplicable conclusion is simply wrong. In our

opening brief, no less than in our reply brief, we raised two constitutional

objections to the district court’s order concerning the Union’s 29.23%

nonwhite membership goal. First, we argued that the court’s order

transformed the flexible goal upheld by this Court into an impermissible

quota designed simply to achieve racial balance, and that for the same

reasons that this Court had rejected statutory and constitutional objections

to initial imposition of the membership goal, it was clear that the district

court’s contempt ruling should be reversed. See Brief of Local 28 at 15-18.

Second, we argued that the district court’s order raising the nonwhite

membership goal to account for changed demographics exceeded the

constitutional limits on the district court’s remedial authority. /d. at 48-49.

We reiterated both of these points in our reply brief. See Reply Brief of

Local 28 at 21-22.

It is certainly true that a majority of this Court rejected

Local 28's statutory and constitutional arguments against

imposition of the 29.23% nonwhite membership goal, but it is

equally clear that the Court said nothing in that decision

concerning the legal principles that govern a decision to

increase the nonwhite membership goal and thus to prolong

the implementation of race-conscious relief. Nor did this

Court in any way foreclose the Union from arguing, now 10

years later, that the lower court’s enforcement of the “flex-

ible” 29.23% goal has effectively transformed it into an

impermissible quota. To the contrary, as Justice Powell

expressly noted, at such time as the concerns expressed by

Justice O’Connor in dissent were realized, the Union “will be

free to argue that an impermissible quota has been imposed on

[it].” Local 28, 478 U.S. at 489 n.4 (Powell, J., concurring in

part and concurring in judgment). We turn to this point first.

The premise of the district court’s contempt finding -

that “if the Union and the JAC had not discriminated against

nonwhites, the Union would contain the same percentage of

nonwhites as exists in the relevant labor force” — has been

rejected repeatedly by this Court. Indeed, in this very case,

both the plurality opinion and Justice O’Connor’s opinion in

dissent rejected this proposition. See Local 28, 478 U:S. at

464 n.37 (“[A]n employer or labor union does not engage in

‘discrimination’ simply because of a racial imbalance in its

workforce or membership, and would not be required to

institute preferential quotas to avoid Title VII liability.”)

(plurality opinion); id. at 494 (“[I}t is completely unrealistic

to assume that individuals of each race will gravitate with

mathematical exactitude to each employer or union absent

unlawful discrimination.”) (O’Connor, J., dissenting). In the

years since Local 28, this Court has reiterated this point in a

variety of contexts.®

8 See, e.g., City of Richmond v. Croson, 488 U.S. 469, 507 (1989)

(criticizing a 30% minority contracting goal as resting “upon the

‘completely unrealistic’ assumption that minorities will chose a particular

trade in lockstep proportion to their representation in the local

oe Ope ee ce

Moreover, it is clear that the lower court’s enforcement

of the 29.23% nonwhite membership requirement has trans-

formed the “flexible” goal upheld by this Court into an

impermissible quota used to achieve racial balance for its own

sake. Most strikingly, the district court has refused to “accom-

modate legitimate explanations” for the Union’s failure to

achieve the goal by the August 1992 deadline. No one has

disputed that Local 28 has fully utilized the apprenticeship

program, and that depressed economic conditions in the con-

struction industry in New York City have limited the Union’s

growth in recent years. Nor is there any dispute that since

1987 Local 28 has been indenturing three nonwhite appren-

tices for every white apprentice in order to hasten the Union’s

achievement of its 29.23% nonwhite membership goal. To the

district court, this voluntary effort on the Union's part coun-

ted for nothing: “Nor has the Union presented evidence that it

has made diligent efforts to reach the membership goal.” Pet.

App. 163a-164a. Indeed, in a startling demonstration of the

extent to which the district court’s attitude toward the Union

has been poisoned in this case, the district court turned even

this singular achievement against the Union, accusing it of

“stack[ing] the apprenticeship program with nonwhites.” Pet.

App. 144a. Given that expanding nonwhite participation in

the apprenticeship program — the source of over 90% of all

new members — has always been the central focus of this

litigation, surely it is perverse now to claim that the Union’s

very success in that effort is evidence of its continued dis-

crimination.

Neither the district court nor the City identified how the

Union had discriminated against nonwhites in admission to

membership, nor did they identify what else the Union could

have done to hasten achievement of the 29.23% goal. Rather,

the court simply equated Local 28’s failure to achieve the

population.”); Watson v. Ft. Worth Bank, 487 U.S. 977, 992 (1988) (“It is

completely unrealistic to assume that unlawful discrimination is the sole

cause of people failing to gravitate to jobs and employers in accord with the

laws of chance.”); United States v. Paradise, 480 U.S. 149, 197 (1987)

(O’Connor, J., dissenting) (same).

goal with continued discrimination against nonwhites in

admission to Union membership. Obviously, the court’s

inflexible enforcement of the 29.23% membership goal dem-

onstrates that the goal is being used not as a “benchmark” to

gauge Local 28’s remedial efforts, but rather “simply to

achieve and maintain racial balance” in Union membership.

Local 28, 478 U.S. at 478.

Accordingly, it is clear that the 29.23% membership goal,

though valid when initially imposed, has become in practice a

quota, unlawful under both Title VII and the Constitution. As

Justice Powell’s concurrence in this case put it: “[NJeither the

Constitution nor Title VII requires a particular racial balance

in the workplace. Indeed, the Constitution forbids such a

requirement if imposed for its own sake. . . . Thus, a court

may not choose a remedy for the purpose of attaining a

particular racial balance; rather, remedies properly are con-

fined to the elimination of proven discrimination.” Local 28,

478 U.S. 487. See also Freeman v. Pitts, 503 U.S. 467, 494

(1992) (“Racial balance is not to be achieved for its own sake.

It is to be pursued when racial imbalance has been caused by

a constitutional violation.”); Croson, 488 U.S. at 507 (finding

unconstitutional a quota aimed at achieving “outright racial

balance.”).

B. The District Court’s Order Raising the 29.23 Per-

cent Goal Exceeds Constitutional Limitations on

Judicial Remedial Power

The foregoing analysis applies as well to the remedy

imposed by the lower courts for Local 28’s failure to attain its

membership goal. The court’s order requiring that the goal be

raised to mirror New York City’s changed demographics and

applying it separately to journeypersons is clearly premised

on the view, repeatedly rejected by this Court, that absent

discrimination the Union's racial makeup would mirror that of

the local population. Given that blacks and Hispanics, accord-

ing to 1990 Census data, now constitute over 49% of New

York City’s total population, the court’s order raising the

Union’s nonwhite membership goal will obviously keep the

court’s sweeping remedial orders in place for the foreseeable

future. And, given that the Union has for almost 10 years

actively discriminated in favor of nonwhites in admission to

Union membership, it is clear that the sole purpose of raising

the membership goal is that of “attaining a particular racial

balance,” not “the elimination of proven discrimination.”

Local 28, 478 U.S. at 487 (Powell, J., concurring). The order

raising the goal therefore cannot be squared with either Title

VII or the Constitution.

But there is another constitutional impediment to the

lower court’s order raising the goal: it clearly exceeds the

“ “fundamental limitations on the remedial powers of the

federal courts.’ " General Bldg. Contractors Ass’n v. Pennsyl-

vania, 458 U.S. 375, 399 (1982), quoting Hills v. Gautreaux,

425 U.S. 284, 293 (1976). A federal court’s remediai powers

can “be exercised only on the basis of a violation of the law

and [can] extend no farther than required by the nature and

the extent of that violation.” /d.9 While this principle has been

applied and developed extensively in this Court’s school

desegregation cases, it is “a controlling principle governing

the permissible scope of federal judicial power, a principle

not limited to a school desegregation context.” /d., quoting

Hills, 425 U.S. at 294, n.11.

In keeping with this limitation on equitable relief, this

Court has repeatedly insisted that federal courts carefully

distinguish between conditions that are caused by unlawful

discrimination and conditions that arise from other sources,

such as demographic movements. Equitable relief may be

directed only at the former. Thus, in Pasadena City Bd. of

9 “ ‘(Federal-court] decrees must directiy address and relate to the

constitutional violation itself. Because of this inherent limitation upon

federal judicial authority, federal-court decrees exceed appropriate limits if

they are aimed at eliminating a condition that does not violate the

Constitution or does not flow from such a violation. ...’ ” Board of Educ.

of Oklahoma City v. Dowell, 498 U.S. 237, 247 (1991) (quoting Milliken v.

Bradley, 433 U.S. 267, 282 (1977)); see also Freeman vy. Pitts, 503 U.S.

467, 489 (1992); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.

1, 16 (1971); Missouri v. Jenkins, 115 S. Ct. 2038, 2049 (1995).

Educ. v. Spangler, 427 U.S. 424, 435 (1976), the Court held

that the district court had “exceeded its authority” by requir-

ing the school board to alleviate racial imbalance that arose

from demographic shifts that were not “in any manner caused

by segregative actions chargeable to the defendants.” Sim-

ilarly, in Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420

(1977), the Court instructed the district court to confine its

remedy to the “incremental segregative effect [the defen-

dants’] violations had on the racial distribution of the Dayton

school population as presently constituted. . . . ” More

recently, in Freeman v. Pitts, 503 U.S. 467, 475 (1992), the

Court emphasized that “the school district is under no duty to

remedy imbalance that is caused by demographic factors.” /d.

at 494. Of particular relevance to the instant case is the

following passage from the Court’s opinion:

Where resegregation is a product not of state action

but of private choices, it does not have constitu-

tional implications. It is beyond the authority and

beyond the practical ability of federal courts to try

to counteract these kinds of continuous and massive

demographic shifts. To attempt such results would

require ongoing and never-ending supervision by

the courts of school districts simply because they

were once de jure segregated.

Id. at 495.

The Court of Appeals for the Eleventh Circuit recently

applied these principles in a remarkably similar context. At

issue in United States v. City of Miami, 2 F.3d 1497 (11th Cir.

1993), was a challenge by a firefighters’ union to a 1978

consent decree under which the City of Miami had agreed to a

long-term goal of achieving a workforce that was representa-

tive of the local labor force. The City had implemented the

decree by voluntarily filling 80% of all entry-level positions

with minorities and women. Nevertheless, 15 years after the

decree had been put in effect, the City’s workforce had still

not achieved parity with the local labor pool. The union

objected to the City’s continued adherence to these hiring

goals, contending that the goals had “transformed the Consent

decree from a tool to eliminate the vestiges of prior

’

discrimination into the institutionalized form of hiring and

promotion based solely on race.” Citing Freeman, the Elev-

enth Circuit stated that this Court’s “school desegregation

cases teach us that there is no duty to remedy an imbalance

that is not caused by past discrimination so long as the City’s

current employment and promotional policies and practices

are neutral with respect to race, gender, and ethnicity.” /d. at

1508. Accordingly, the court of appeals remanded the case

back to the district court with the following instruction:

Work force parity may never be achievable

because of shifting demographics and imbalances in

the numbers of qualified applicants for various jobs

due to differing ambitions, education, language

requirements, physical characteristics, etc., of per-

sons in the favored groups. If there is work force

disparity that cannot be attributed to past discrimi-

natory employment practices of the City of Miami,

such disparity is no reason for keeping in force this

consent decree.

Id.

The City of Miami decision thus conflicts sharply with

the Second Circuit’s decision in this case. Both the district

court and the court of appeals in this case ordered that the

Union’s nonwhite membership goal be increased solely

because the nonwhite population of New York City has

increased since 1970, although Local 28 obviously had noth-

ing to do with this demographic change. Accordingly, under

this Court’s consistent teaching, the courts below lacked

remedial power to raise Local 28’s nonwhite membership goal

(which may be set in excess of 50%) and thus to extend the

life of this “temporary” race-conscious measure for the fore-

seeab'e future and beyond. Review by this Court is necessary

to correct the lower courts’ decision and, in any event, to

resolve the conflict it creates with the Eleventh Circuit’s

decision in City of Miami. This Court’s guidance on this

important issue is especially needful at this time, given the

fact that many similar race-conscious remedial decrees in

cases throughout the country are now entering or nearing their

fulfillment.

C. The Courts Below Erred In Holding The Union In

Contempt For The Racially Disparate Impact Of

The Contractors’ Employment Decisions

The basic principle underlying the “fundamental limita-

tions on the remedial powers of the federal courts” is simply

that a party cannot be held responsible, and ordered to cor-

rect, a condition that it had no significant role in bringing

about. This point is illustrated by this Court’s decision in

General Bldg. Contractors. In that case, racial minorities

seeking work as operating engineers in the construction

industry brought a successful suit under 42 U.S.C. § 1981,

alleging racial discrimination in the operation of an exclusive

hiring hall established under collective bargaining agreements

between the local union and construction contractors.

Although the district court found that the union was solely

responsible for administering the hiring hall and that the

construction contractors were not aware of the union’s dis-

criminatory practices, it nonetheless entered injunctive relief

against the contractors and ordered them to pay a portion of

the costs of the remedy against the union. This Court

reversed. Because the construction contractors could not

“properly [be] found liable for the Union’s discrimination,”

the district court's order entering relief against them was

“beyond the traditional equitable limitations upon the author-

ity of a federal court to formulate such decrees.” 458 U.S. at

400-401.

This case is the mirror image of General Bldg. Contrac-

tors, except that here it is the union that has been held

responsible for racial imbalance — the hours disparity —

caused by the employment decisions of the contractors. The

collective bargaining agreement establishes the right of sheet

metal contractors to hire and fire Union journeypersons at

will, as well as the correlative right of Union journeypersons

“to work for whomsoever they shall see fit.” J.A. 745. Indeed,

noting that the “contractors openly admit to their preference

for hiring journeypersons with whom they are personally

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familiar,” the district court acknowledged the contractors’

“unfettered discretion” over employment decisions:

Those journeypersons who the contractors know

well and wish to hire . . . are disproportionately

white. .. . Therefore, if left to their own devices,

the contractors will continue to hire more whites

disproportionately than nonwhites, denying the lat-

ter employment opportunities and contributing to

the appalling hours disparity. Such unfettered dis-

cretion allows contractors to hire journeypersons

based on family, friends, and union referrals rather

than merit.

Pet. App. 129a-130a.

Yet, the district court, affirmed by the Second Circuit,

nonetheless found the Union in contempt for the hours dis-

parity, holding in effect that the court’s prior remedial orders

required the Union not only to ensure equal opportunity in its

own policies and practices, but also to act as its members’

guarantor against employment discrimination by others. The

district court interpreted its prior orders to place the Union

“under an obligation to ensure that race does not play a

significant role in the hours worked by union members.” Pet.

App. 83a. Similarly, the Second Circuit interpreted the reme-

dial orders as obligating Local 28 “to ensure that a non-

discriminatory, race-neutral market existed for workers in the

sheet metal industry.” Pet. App. 19a-20a.

Nothing in the remedial orders entered in this case,

however, even arguably obligates, let alone “clear{ly] and

unambiguous[ly]” obligates, the Union to somehow protect its

nonwhite members from employment discrimination by con-

tractors and others over whom the Union has no control. The

courts below relied specifically upon the “General Equitable

Relief” provisions of paragraph one of the O&J. See supra at

5. The prohibitions contained in that paragraph, however, are

directed exclusively at and seek to control the Union’s own

conduct. Specifically, the relevant provisions of the O&J are

violated only if Local 28, on account of race, (1) “fail[s] or

refuse[s] to refer any individual for employment”; (2) “take[s]

any other action which would deprive or tend to deprive any

individual of employment opportunities”; (3) fails to “admin-

ister all of the affairs of Local 28 . . . so as to ensure that no

individual is excluded from equal work opportunities”; or (4)

fails to “provide nonwhite journeypersons . . . with the same

assistance . . . in obtaining employment as that provided to

white members.” These provisions plainly do not purport to

obligate the Union to control any actions other than its own.

The courts below also relied upon a provision of para-

graph three of the AAAPO. According to the court below,

“the AAAPO mandated that ‘all members . . . of Local 28

share equitably in all available employment opportunities in

the industry.’ ” Pet. App. 84a; see Pet. App. 17a. What para-

graph three really says, however, is this: “The goal of this

[AAAPO] is to assure that... all members . . . of Local 28

share equitably in all available employment opportunities in

the industry.” J.A. 213. Thus, this provision of the AAAPO is

an aspirational expression of the decree’s objective, not, as

the courts below would have it, a “mandate” on Local 28 to

ensure that the contractors, who control “all available

employment opportunities in the industry,” distribute those

opportunities equitably among the Union’s members.

“The most fundamental postulates of our legal order

forbid the imposition of a penalty for disobeying a command

that defies comprehension.” I/nternational Longshoremen’s

Ass'n, Local 1291 v. Philadelphia Trade Ass'n, 389 U.S. 64,

76 (1967). Because “[t]he judicial contempt power is a potent

weapon,” id., and “uniquely is ‘liable to abuse,’ ” /nterna-

tional Union, UMWA v. Bagwell, 114 S. Ct. 2552, 2559 (1994)

(quoting Bloom v. Illinois, 391 U.S. 194, 202 (1968)), both

Congress and this Court have insisted that “a federal court

frame its orders so that those who must obey them will know

what the court intends to require and what it means to forbid.”

International Longshoremen’s Ass'n, 389 U.S. at 76.!° Noth-

ing in the remedial orders entered against Local 28 in this

10 Accord, e.g., Granny Goose Foods, Inc. v. Brotherhood of

Teamsters, 415 U.S. 423, 444 (1974) (“{T]hose against whom an injunction

is issued should receive fair and precisely drawn notice of what the

injunction actually prohibits.”); Fed. Rule of Civ. Proc. 65(d) ("Every order

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case can fairly be read as requiring the Union “to ensure that

a non-discriminatory, race-neutral market existed for workers

in the sheet metal industry.” Pet. App. 19a-20a. The courts

below thus clearly erred in hoiding Local 28 in contempt for

the consequences of employment decisions made by sheet

metal contractors.

Moreover, even if the district court’s remedial orders had

specifically provided that Local 28 shall “ensure that a non-

discriminatory, race-neutral market exist[s] for workers in the

sheet metal industry,” it plainly would have exceeded “funda-

mental limitations on the remedial powers of the federal

courts.” General Bldg. Contractors, 458 U.S. at 399. As we

have previously discussed, this Court has consistently recog-

nized the basic principle that a court cannot order a party to

correct a condition which it did not bring about and over

which it has no control.

In a strained effort to somehow link the hours disparity to

the conduct of the Union, the lower courts found that Local

28 had contributed to the hours disparity by failing to invoke

two emergency provisions of the CBA and by making dis-

criminatory job referrals to sheet metal contractors. Speci-

fically, the lower courts faulted the Union for failing to

invoke two provisions of the CBA, one calling for mandatory

two-week furloughs “[djuring periods of unemployment” and

the other calling for a meeting of the Manpower Committee

“to attempt to place [members] in jobs” whenever the Union

believes that “unemployment has risen to the point where

some corrective action . . . should be taken.” Pet. App.

84a-85a. The courts below essentially dismissed as irrelevant

the Union’s points (1) that it could not implement either of

these CBA provisions without the consent of the contractors

and (2) that in any event there was no reason to assume, and

no evidence to suggest, that implementation of these provi-

sions would have ameliorated the hours disparity between

white and nonwhite journeypersons. After all, implementation

granting an injunction . . . shall be specific in terms; [and] shall describe in

reasonable detail . . . the act or acts sought to be restrained.”)

of the provisions would in no way alter the fact that the

contractors have discretion over the selection of journeyper-

sons. The important point, according to the Second Circuit,

was that the Union had not proved that implementing the

CBA provisions “would not have worked” to reduce the hours

disparity. Pet. App. 23a. Thus, the finding that the Union’s

failure to invoke the CBA provisions had contributed to the

hours disparity not only was not supported by clear and

convincing evidence, it was not supported by any evidence at

all. Moreover, the Second Circuit interpreted the O&J to

obligate the Union “to take all steps in its power to try to

reduce the hours disparity, even if unsuccessful.” Id. Obvi-

ously, the City will always be able to prove that the Union

failed to take some step that might or might not have reduced

the hours disparity. Thus, under the Second Circuit's inter-

pretation of the O&J, so long as there is an hours disparity

among white and nonwhite journeypersons, Local 28 is liable

for it.

Nor is there clear and convincing evidence in the record

supporting the district court’s finding that the Union’s busi-

ness agents “help[ed] white journeypersons find work and

refus[ed] to help nonwhite journeypersons.” Pet. App. 117a.

The evidence on this issue consisted of 17 affidavits of

nonwhite journeypersons filed by the City and six affidavits

of nonwhite journeypersons filed by the Union.'! There is no

dispute over what the Union’s affiants say — in essence, that

they have neither experienced nor observed racial discrimina-

tion by the Union or its business agents. J.A. 884-94. The

dispute is over what the City’s 17 affidavits say. In this

regard, the Second Circuit made two errors, one legal and one

factual.

The court of appeals’ legal error was in failing to subject

to independent appellate review the district court's finding

11 The Union also filed an affidavit, together with documentation and

counter-declarations, by Local 28’s trial counsel, which demonstrated that

the work history of several of the City’s affiants was the likely cause of

their alleged negative experiences with their employers. See J.A. 833-82.

Saat

LIRR adh IN Ra RE AO Rn chal wells Aad ohio Wala ile AG Te We, Seah ne itn inae

that the City had established by clear and convincing evi-

dence the business agents’ racial discrimination in job refer-

rals. Rather, the Second Circuit applied the “clear error”

standard of appellate review to the district court’s finding of

discriminatory referrals, concluding that “[t]he evidence

before the district court on this issue was in conflict,” and

that the district court was therefore free to choose either of

the “two conflicting versions.” Pet. App. 20a-21la.

This deferential standard of appellate review effectively

eviscerated the requirement that in contempt cases noncom-

pliance with the court’s order must be shown by clear and

convincing evidence. As this Court has recognized in a vari-

ety of contexts: “[E]mphasis on the importance of ‘clear,

unequivocal, and convincing’ proof . . . would be lost if the

ascertainment by the lower courts whether that exacting stan-

dard of proof had been satisfied on the whole record were to

be deemed a ‘fact’ of the same order as all other ‘facts’ not

open to review here.” Baumgartner v. United States, 322 U.S.

665, 671 (1944) (citation omitted). See, e.g., Bose Corp. vy.

Consumers Union of the United States, Inc., 466 U.S. 485,

S511 (1984) ("Judges . . . must independently decide whether

the evidence in the record is sufficient to cross the constitu-

tional threshold that bars the entry of any judgment that is not

supported by clear and convincing proof of ‘actual malice.’ ”);

In light of this Court’s frank recognition that “ ‘the

contempt power .. . uniquely is liable to abuse,’ ”

International Union, UMWA, 114 S. Ct. at 2559 (quoting

Bloom v. Illinois, 391 U.S. 194, 202 (1968) (internal citations

omitted)), application of independent appellate review to

findings of noncompliance seems especially warranted.

As a purely factual matter, the district court’s finding of

racially discriminatory job referrals is not supported by clear

and convincing evidence. Indeed, it is clearly erroneous.

First, the record is clear that job referrals by the Union’s

business agents account for at most two percent of the total

hours worked by Local 28 journeypersons. And while the

Second Circuit noted that two percent of the millions of hours

worked by Local 28 journeypersons in the average year “is by

no means an insignificant number of hours,” Pet. App. 22a,

there is no evidence in the record that the Union’s referrals,

even if discriminatory, made or could have made a statis-

tically significant impact on the actual hours disparity

between white and nonwhite journeypersons, which the dis-

trict court calculated to have been a yearly average of 177

hours for the years 1984 to 1991. Pet. App. 80a-8la.

Second, and more importantly, there is simply no evi-

dence in the record that the Union’s business agents referred

journeypersons for work on a racially discriminatory basis.

With all due respect to the district court, the discussion in its

opinion of the 17 affidavits submitted by the City simply does

not reflect a fair and impartial reading of those affidavits.

Indeed, eight of the City’s 17 nonwhite affiants state that the

Union’s business agents did provide referral assistance to

them in their job searches. See J.A. 329, 332, 335, 285, 305,

308, 312, 316. Four other affiants made no mention of the

business agents or referrals at all. See J.A. 295, 299, 324, 325.

And of those affiants who complained about the business

agents, none alleged that the business agents refused to help

them but provided assistance to white journeypersons. See

J.A. 316, 297, 285. Thus, the experiences of the City’s own

affiants actually refute the district court’s finding that the

Union’s business agents have “refus[ed] to help nonwhite

journeypersons.”

It is noteworthy, however, that all 17 of the affidavits

submitted by the City contain allegations of racial discrimina-

tion by the contractors, as the district court itself recognized.

Pet. App. 128a n.14 (The City’s affiants “tell repeated stories

of discrimination on the part of the contractors.”). The City’s

affidavits thus support the common-sense point that the hours

disparity is attributable to those who have control (indeed,

“unfettered discretion”) over the hiring and firing of jour-

neypersons — the contractors. This point is tellingly confirmed

by the relief ordered by the district court. To eliminate the

disparity in hours worked by white and nonwhite Union

journeypersons, the district court did not order the Union to

invoke the emergency provisions of the CBA or to refer

nonwhite journeypersons on a racially nondiscriminatory (or

even preferential) basis. Rather, the City sought and the court

ee eS

ordered the establishment of a hiring hall and job rotation

system that eliminated the contractors’ discretion over

employment decisions. The district court candidly recognized

that the contractors’ at-will employment discretion must be

limited because “if left to their own devices, the contractors

will continue to hire more whites disproportionately than

nonwhites. ...” Pet. App. 129a-130a.

In short, the district court clearly erred in attributing the

hours disparity between white and nonwhite journeypersons

to the Union’s referral practices, and the Second Circuit erred

in simply “[a]ssuming . . . that Local 28’s business agents

have engaged in discrimination against nonwhite journeyper-

sons.” Pet. App. 22a. We well understand that this Court does

not sit to review factual issues, especially where two lower

courts have concurred in the resolution of such issues. Yet, in

cases involving important constitutional rights, this Court has

consistently refused to uphold factual findings that are palpa-

bly deficient. Only last Term, in United States v. Virginia, No.

94-1941, slip op. at 22-25 (June 26, 1996), the Court rejected

the finding of two lower courts that the admission of women

to Virginia Military Institute would substantially change that

institution’s adversative method of education. See also Baum-

gartner, 322 U.S. at 670-671. Here too, the plaintiffs’ evidence

connecting Local 28’s conduct with the hours disparity is so

glaringly insufficient as to merit this Court’s review.

-30

VII. CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Epmunp P. D’E 1a, Cuarces J. Cooper*

20 Exchange Place Rospert J. Cynkar

New York, New York 10005 Davin H. Tuompson

(212) 269-3233 SuHaw, Prrrman, Ports

& TROWBRIDGE

2300 N Street, N.W.

Washington, D.C.

20037-1128

(202) 663-8000

*Counsel of Record

Dated: July 9, 1996

APPENDIX A

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION and City of New York,

Plaintiffs-Appellees,

LOCAL 638, etc., Defendants,

Local 28, 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 [sic], Inc., (collectively the “Contractors’

Associations”); Local Union No. 28, and

Sheet Metal Workers’ International;

Defendants-Appellants.

Nos. 401, 402, 718, Dockets 95-6047,

95-6049, 95-6135.

United States Court of Appeals,

Second Circuit.

Argued Sept. 26, 1995.

Decided April 10, 1996.

City moved to hold sheet metal workers’ union in

contempt of district court’s prior orders in Title VII case

involving court-ordered affirmative action plan. The

United States District Court for the Southern District of

New York, Robert L. Carter, J., 889 F.Supp. 642, found

that union had violated previous orders, and it ordered

back pay award, increased union’s contribution to

employment, training, education and recruitment (ETER)

fund, altered union’s member reinitiation policy, required

parties to recalculate membership goal, imposed hiring

hall and job rotation system on union and contractor

associations, and ordered court-appointed administrator

to appoint person to newly created position of field moni-

tor. Contractors’ motion to vacate was denied, 1995 WL

334688, and district court modified contempt order in

part, ___ FSupp. __, 1996 WL 154123. Union and contrac-

tors appealed. The Court of Appeals, Walker, Circuit

Judge, held that: (1) contempt finding could be affirmed

without reaching union’s contention that district court

impermissibly used affirmative action plan’s membership

goal to infer continuing discrimination; (2) union’s failure

to comply with orders pertaining to recordkeeping and

failure to provide equal employment opportunities to all

of its members supported contempt finding; (3) union

could not escape contempt liability on ground that con-

tractors, rather than union, were responsible for disparity

in hours worked by white and nonwhite members; (4)

union’s new reinstatement policy for suspended members

discriminated against nonwhites, but district court erred

in extending contempt finding to cover other conditions

imposed by union for nonpayment of dues, absent notice

and hearing on those aspects; (5) back pay award was not

narrowly tailored and ignored financial effect on union,

and thus was abuse of discretion; (6) district court could

make general use of increase in ETER fund as method of

coercing union to comply with prior orders and as reme-

dial tool, although without prejudice to union’s right to

challenge actual increases ordered; (7) district court was

within its discretion in ordering reformulation of union’s

membership goal to account for population shifts; (8)

hiring hall and job rotation system imposed impermissi-

ble burden on contractors as non-liable parties; (9)

administrator had authority to appoint and delegate

responsibility to field monitor; (10) requiring contractors

to cooperate in field monitor’s efforts to investigate and

conciliate job related complaints was overly broad; and

(11) administrator lacked authority to enter injunction

against contractors.

Affirmed in part, vacated in part, modified in part,

reversed in part, and remanded.

See also, 565 F.2d 31 and prior cases; 753 F.2d 1172;

478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344.

Defendants-appellants appeal from an order of the

United States District Court for the Southern District of

New York (Carter, J.) holding Defendant-appellant Local

28 of the Sheet Metal Workers International Association

(“Local 28”) in contempt of the district court’s previous

orders, and imposing various remedies. Defendants-

appellants argue that the relevant evidence does not sup-

port a finding of contempt. Defendants-appellants also

appeal on the grounds that the district court exceeded its

authority in imposing a hiring hall and a job rotation

system; awarding back pay to certain nonwhite Union

members; increasing Local 28’s contribution to the

Employment, Training, Education, and Recruitment

Fund; altering Local 28’s reinitiation policy; and recal-

culating the membership goal. Finally, Defendants-appel-

lants contend that the district court erred in refusing to

vacate the order of the court-appointed Administrator

designating a Field Monitor.

Karen M. Moran, Washington, DC (C. Gregory Stew-

art, Gwendolyn Young Reams, Vincent J. Blackwood,

Washington, DC), for Plaintiff-Appellee Equal Employ-

ment Opportunity Commission.

Elizabeth S. Natrella, New York, N.Y. (Paul A. Crotty,

Corporation Counsel of the City of New York, Leonard J.

Koerner, Pamela Seider Dolgow, Hilary B. Klein, Paul E.

Kazanoff, Dennis C. Vacco, Attorney General of the State

of New York, Lula M. Anderson, Angie I. Martell, New

York, NY), for Plaintiffs-Appellees City of New York and

New York State Division of Human Rights.

Charles J. Cooper, Washington, DC (Robert J. Cynkar,

David H. Thompson, Shaw, Pittman, Potts & Trowbridge,

Washington, DC, Jamie K. Nicastri, Edmund P. D’Elia,

P.C., New York, NY), for Defendant-Appellant Local 28 of

the Sheet Metal Workers International Association.

Martin R. Gold, New York, N.Y. (Robert P. Mulvey,

Gillian M. Lusins, Gold, Farrell & Marks, New York, NY,

William Rothberg, Brooklyn, NY, Judy Sandler, Hunt-

ington Station, NY), for Defendants-Appellants Sheet

Metal and Air Conditioning Contractors’ Association of

New York City, Inc. and Sheet Metal and Air Condition-

ing Contractors’ National Association of Long Island, Inc.

(Juan A. Figueroa, Kenneth Kimmerling, New York,

NY) for Amici Curiae Puerto Rican Legal Defense and

Education Fund, Inc. and NAACP Legal Defense and

Educational Fund, Inc.

(David R. Hols, Felhaber, Larson, Fenlon & Vogt,

P.A., Minneapolis, MN) for Amicus Curiae Sheet Metal

and Air Conditioning Contractors’ National Association,

Inc.

eer

Sree ECR SR CNS cree eR we ie ee IY eee ON Wal! et Oe

Aidit rth dye

Before: LUMBARD, WALKER, and CALABRESI, Cir-

cuit Judges.

WALKER, Circuit Judge:

As this case approaches its twenty-fifth birthday, it is

before us for a fourth time. In July 1993, Plaintiff-appellee

City of New York (the “City”) moved for contempt or a

modification of the district court’s prior orders. In an

Amended and Corrected Opinion, dated March 6, 1995,

the United States District Court for the Southern District

of New York (Robert L. Carter, District Judge) found that

Defendant-appellant Local 28 of the Sheet Metal Workers

International Association (“Local 28” or “the Union”) had

violated the district court’s previous orders. As a result of

Local 28’s contempt, the district court ordered a court-

appointed Administrator to award back pay to certain

nonwhite members of the Union; awarded to the plain-

tiffs their attorneys’ fees and costs; increased Local 28's

contribution to the Employment, Training, Education and

Recruitment Fund (the “ETER fund”); altered Local 28’s

reinitiation policy; required the parties to recalculate the

pre-existing membership goal; imposed a hiring hall and

a job rotation system (described infra, pp. 1179-80) both

on Local 28 and on 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 “Contrac-

tors”); and ordered the Administrator to appoint a person

to the newly-created position of Field Monitor. See EEOC

v. Local 638, 889 F.Supp. 642 (S.D.N.Y.1995) (“EEOC VI” or

the “Contempt Order”).

Pursuant to the district court’s order, the Administra-

tor appointed a Field Monitor, outlined his duties,

directed Local 28 and the Contractors to cooperate with

him, and enjoined the parties from interfering with him

(the “Administrator’s order”). The district court denied

the Contractors’ motion to vacate the Administrator’s

order in an opinion, dated June 6, 1995 (the “June 6

Order”). See EEOC v. Local 638, No. 71 Civ. 2877(RLC),

1995 WL 334688 (S.D.N.Y. June 6, 1995).

Local 28 appeals from the finding of contempt and

the remedies imposed upon it by the Contempt Order.

The Contractors appeal from the imposition of the hiring

hall and job rotation system and from the denial of the

motion to vacate.

BACKGROUND

Because an understanding of the long history of this

litigation illuminates the present dispute, we summarize

the previous proceedings before turning to the issues

now before us.

A. Prior Proceedings.

The United States! commenced this case against

Local 28 in 1971, alleging that Local 28 had violated Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et

seq. After a bench trial, the district court held that Local

' The Equal Employment Opportunity Commission

(“EEOC”) was later substituted for the United States. See EEOC

v. Local 638, 753 F.2d 1172, 1175 (2d Cir.1985), aff'd, 478 U.S. 421,

106 S.Ct. 3019, 92 L.Ed.2d 344 (1986).

AS, Es baba” ihe tae KA So A Hy

Rn ae

28 and its Joint Apprenticeship Committee and Trust

(“the JAC”) had discriminated both in admission to the

apprenticeship program and in direct admission to Local

28. See EEOC v. Local 638, 401 F.Supp. 467, 487

(S.D.N.Y.1975) (“EEOC I”). The district court therefore

imposed a remedial racial goal of 29% nonwhite member-

ship on Local 28 and ordered that Local 28 achieve that

goal by July 1, 1981. The district court also ordered the

parties to agree upon a procedure for reaching the 29%

goal under the supervision of a court-appointed Adminis-

trator, although the court did impose some specific provi-

sions, including a requirement that Local 28 and the JAC

maintain lists of whites and nonwhites who sought mem-

bership into Local 28. Finally the court ordered the award

of back pay to those nonwhites who had applied for

membership, had their applications denied, and could

show monetary damages therefrom. Id. at 488-91.

Soon thereafter, the district court entered an Order

and Judgment (“O & J”), dated August 28, 1975. In the

O & J, the district court permanently enjoined Local 28, as

well as its

officers, agents, employees and successors and

all persons in active concert or participation

with them in the administration of the affairs of

Local 28. . . from engaging in any act or practice

which has the purpose or the effect of discrimi-

nating in recruitment, selection, training, admis-

sion to membership in Local 28, admission to

membership in the Local 28 Apprentice Program

. indenturing apprentices, referral, advance-

ment, compensation, terms, conditions, or privi-

leges of employment against any individual or

class of individuals on the basis of race, color or

national origin. Local 28 shall not exclude or

expel any individual from membership in Local

28 or the Apprentice Program . . . or fail or

refuse to refer any individual for employment

with sheet metal contractors, their agents, sub-

sidiaries or successors . . . on the basis of race,

color or national origin, nor shall they take any

other action which would deprive or tend to

deprive any individual of employment oppor-

tunities with Local 28 contractors . . . because of

such individual’s race, color or national origin.

They shall .. . administer all of the affairs . . . so

as to ensure that no individual is excluded from

equal work opportunities, including but not lim-

ited to overtime and advancement, on the basis

of race, color or national origin.

The district court also appointed David Raff to be the

Administrator and ordered Raff and the parties to agree

on an affirmative action program.

In response to the O & J, the Administrator proposed

an Affirmative Action Program and Order (“AAPO”),

which was submitted to the district court. After consider-

ing the parties’ objections, the district court modified the

AAPO and adopted it in a Memorandum and Order. See

EEOC v. Local 638, 421 F.Supp. 603, 617-20 (S.D.N.Y.1975)

(“EEOC II”). The AAPO, as adopted by the district court,

established interim nonwhite membership goals for Local

28 to meet; set non-discriminatory criteria for member-

ship in Local 28’s apprenticeship program and for admis-

sion to journeyman status; and created very specific

recordkeeping requirements for Local 28 and the JAC. Id.

at 606-17.

Cae ae

ais

ASF RCRA MIS as iS ales ned oath Pte cet

Local 28 and the JAC appealed from both the find-

ings of discrimination and the remedies imposed by the

district court. This court affirmed the district court’s

determination of the liability issues. We also affirmed the

appointment of the Administrator, the permanent injunc-

tion against Local 28, the overall membership goal for

Local 28, and the apprenticeship program. We disap-

proved, though, of the requirement that one of the JAC’s

trustees be replaced with a nonwhite trustee, and we

modified the district court’s order to eliminate a required

ratio of white to nonwhite acceptances into the appren-

ticeship program, on the ground that admission to the

apprenticeship program should be “based on test results

alone.” We also modified the back pay remedy to allow

the use of both testimonial and documentary evidence of

an application for and a rejection of membership. See

EEOC v. Local 638, 532 F.2d 821, 827, 829-33 (2d Cir.1976)

(“EEOC III”). On remand, the district court adopted the

modifications in a Revised Affirmative Action Plan and

Order (“RAAPO”). Over a dissent, we affirmed. See EEOC

v. Local 638, 565 F.2d 31, 36 (2d Cir.1977) (“EEOC IV”).

In 1982 and 1983, the City twice moved for an order

holding Local 28, the JAC, and the Contractors in con-

tempt. In two separate orders, the district court found

these parties had violated its orders by their collective

efforts to thwart achievement of the membership goal,

and that Local 28 and the JAC had failed to maintain

proper records and data. To remedy these violations, the

district court ordered the parties to make additional pay-

ments to a training fund and to pay for a computerized

recordkeeping system. The district court also adopted an

Amended Affirmative Action Plan and Order

10a

(“AAAPO”), which had been proposed by the plaintiffs

and the Administrator to replace the RAAPO. On appeal,

we affirmed the findings of contempt, except as to the

Contractors. We also affirmed the entry of the AAAPO,

with two modifications: (a) we allowed the implementa-

tion of an apprenticeship examination prior to the termi-

nation of the AAAPO, and (b) we struck down a

requirement that the JAC indenture one nonwhite for

every white apprentice. More significantly, we affirmed

the district court’s adoption of a new membership goal of

29.23% on the ground that it was a permissible goal, and

not a permanent quota. EEOC v. Local 638, 753 F.2d 1172

(2d Cir.1985) (“EEOC V”). The Supreme Court affirmed in

a five to four decision. Local 28 v. EEOC, 478 U.S. 421, 106

S.Ct. 3019, 92 L.Ed.2d 344 (1986).

B. The Present Proceeding.

In July 1993, the City of New York commenced the

proceedings leading to the instant appeal when it moved

that Local 28 be held in contempt or, in the alternative,

that the AAAPO be modified.2 The City alleged

numerous violations of the AAAPO by Local 28, includ-

ing a failure to ensure or attempt to secure the same

career opportunities for white and nonwhite journeyper-

sons; a failure by Local 28 to make regular and substan-

tial progress toward meeting the membership goal;

adoption of a discriminatory reinstatement policy for

those members terminated for failure to pay dues; and a

? Plaintiff-appellee EEOC did not join the motion below,

but has filed a brief in support of the City in this court.

-4

NS te thet he kts RU

seen a to URE RRO ASIN Fe LEN Ba cle

lla

failure to comply with the recordkeeping provisions of

the AAAPO. The City submitted the affidavits of non-

white members of the Union to demonstrate that union

business agents discriminated in referring nonwhites to

contractors for job opportunities, as well as evidence that

Local 28 had failed to invoke various collective bargain-

ing provisions that might create a more equitable distri-

bution of employment opportunities between white and

nonwhite members. In addition, the City put into evi-

dence the affidavits of an expert, which demonstrated a

significant disparity in hours worked by white and non-

white journeypersons. Among the remedies requested by

the City for Local 28’s alleged contempt were a hiring

hall, through which the Contractors would be required to

hire most of their new workers, and a job rotation system,

in which the Contractors would be required to lay off

employees who had worked more than a certain number

of hours in the past year and to hire workers from the

hiring hall in their place.

In March 1994, after negotiations to settle this dispute

broke off, Local 28 filed its opposition papers to the

contempt motion. Included within these submissions was

Local 28’s own evidence to support its arguments that (1)

the Union’s business agents did not act in a discrimina-

tory manner; (2) the statistical disparity in hours did not

exist and, in any event, was not attributable to Local 28;

(3) the failure to invoke collective bargaining provisions

had no effect on the hours worked by nonwhite jour-

neypersons; and (4) the recordkeeping violations, which

were conceded, could not lead to any inference that the

Union had engaged in any other violations. Local 28 also

challenged the request for an award of back pay and a

12a

change to the membership goai. Local 28 did stipulate to

a revised policy for the reinstatement of suspended mem-

bers, the acquisition of a new computerized recordkeep-

ing system, and the establishment of the hiring hall and

job rotation system.

The Contractors, who were not charged with con-

tempt by the City, filed their own papers in opposition to

the imposition of both the hiring hall and the job rotation

system. They submitted affidavits from various contrac-

tors stating that a hiring hall and a job rotation system

would have a deleterious impact on their ability to com-

pete with nonunion contractors and would interfere with

their ability to estimate accurately the cost of projects.

On February 23, 1995, the district court found in

favor of the City and entered the Contempt Order, which

was amended on March 6, 1995. On April 14, the Admin-

istrator appointed Charles Saunders to the position of

Field Monitor, outlined Saunders’s duties, directed Local

28 and the Contracters to cooperate with him, and

enjoined the parties from interfering with him. The Con-

tractors moved the district court to vacate the Adminis-

trator’s order. The district court denied the motion in the

June 6 Order.

DISCUSSION

A. Liability for Contempt.

A party may not be held in contempt unless “the

order violated by the contemnor is ‘clear and unam-

biguous,’ the proof of non-compliance is ‘clear and con-

vincing,’ and the contemnor was not reasonably diligent

13a

in attempting to comply.” United States v. Local 1804-1,

Int’l Longshoremen’s Ass'n, 44 F.3d 1091, 1096 (2d

Cir.1995). The violation, though, need not be willful. See

EEOC V, 753 F.2d at 1178. Ordinarily, we review the

district court’s legal determinations de novo and its fac-

tual determinations for clear error, but, because the

power of a district court to impose contempt liability is

carefully limited, our review “of a contempt order for

abuse of discretion is more rigorous than would be the

case in other situations in which abuse-of-discretion

review is conducted.” Local 1804-1, 44 F.3d at 1096.

Local 28 argues that none of the foregoing require-

ments for contempt has been met. However, the Union

does not seriously contend that either the O & J or the

AAAPO was unclear or ambiguous, nor would such a

claim, based on the fact that they proscribed discrimina-

tion generally, have any merit. See, e.g., New York State

Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1351-52 (2d

Cir.1989) (injunction containing prohibitions on “tortious

harassment” and allowing only “reasonably quiet conver-

sation” was “sufficiently clear”). Instead, the principal

contentions of the Union are that there was insufficient

evidence to support the contempt finding and that the

Union has been reasonably diligent in attempting to com-

ply with the court’s orders.

In finding the Union in contempt, the district court

pointed to four categories of evidence: (1) the violations

of the recordkeeping requirements of the O & J and the

AAAPO, (2) the failure of Local 28 to meet the member-

ship goal of the AAAPO, (3) the failure of the Union to

l4a

provide equal work opportunities to its nonwhite jour-

neypersons, and (4) the Union’s discriminatory reinstate-

ment policy. In its attack upon the contempt finding,

Local 28 contends that: (i) the recordkeeping violations

should not have been taken into account in the contempt

proceeding, (ii) the failure to meet the membership goal

cannot be the basis for a finding of contempt, (iii) there is

no evidence that Local 28 provides unequal work oppor-

tunities to nonwhite members, and, finally, (iv) the rein-

statement policy did not violate any court order. We

address each argument in turn.

1. The Membership Goal.

The membership goal had its genesis in the AAPO

(adopted by the district court in 1975) and was modified

to its present form in the AAAPO. In previous appeals to

this court and to the Supreme Court, the Union claimed

that the membership goal constituted an impermissible

racial quota. We rejected that interpretation, as did a

Supreme Court majority. See Local 28, 478 US. at 475-79,

106 S.Ct. at 3049-52 (Brennan, J., plurality opinion); id. at

484-89, 106 S.Ct. at 3054-57 (Powell, J., concurring in part

and concurring in the judgment); EEOC V, 753 F.2d at

1186-87. The district court understood that the member-

ship goal could not function as a quota and could not be

the sole basis for the finding of contempt. It specifically

held that the goal was being used only as a “benchmark”

against which “to measure whether defendants are com-

plying with the court’s order.” EEOC VI, 889 F.Supp. at

659.

15a

The Union argues that even the limited use of the

membership goal as a piece of evidence from which to

infer continuing discrimination is not permissible under

the Supreme Court's decision in Local 28. But see Local 28,

478 U.S. at 487, 106 S.Ct. at 3056 (Powell, J., concurring in

part and concurring in the judgment) (“A goal is a means,

useful in limited circumstances, to assist a court in deter-

mining whether discrimination has been eradicated.”).

We need not reach that argument, however, because the

district court specifically held that there were numerous

other bases for the contempt finding. See EEOC VI, 889

F.Supp. at 658-59. Accordingly, although we affirm the

district court’s contempt finding (with one exception

noted below), we do so by relying on grounds other than

the union’s failure to attain the membership goal.

2. The Recordkeeping Violations.

The district court found that “[djespite the plan’s

unequivocal mandate that the union compile and keep

the requisite information, at least since 1984 Local 28’s

maintenance of its records has been irresponsible and

sloppy at best, and purposefully deceptive at worst.” Id.

at 652-53. Not only has Local 28 failed to maintain proper

records, but it has frequently submitted inaccurate and

misleading information, resulting in the inflation of its

nonwhite membership. Id. at 653-54. As a result, the

district court found that “the sheer volume of mishaps

and gross incompetence has led the court to be ‘con-

vinced that . . . [the Union’s] violation . . . reflect[ed]

defendant’s unwillingness to comply with [the affirma-

tive action plan].’ ” Id. at 655 (quoting EEOC V, 753 F.2d at

1182).

l6a

Local 28 does not deny that it has failed to comply

with the district court’s orders as they pertain to

recordkeeping. Rather, the Union attempts to downplay

the significance of such violations by claiming that the

process of complying with the AAAPO’s recordkeeping

provisions has been complicated and that the Union’s

occasional failures are not so great as to justify a finding

of contempt.

This argument ignores the overwhelming evidence.

The AAAPO was originally entered in 1983 and affirmed

in 1985, more than eight years prior to the commence-

ment of these contempt proceedings. We agree with the

district court’s characterization of Local 28’s efforts at

compliance during that period as “irresponsible and

sloppy.” The errors here were not mere clerical mistakes,

but instead tend to demonstrate that Local 28 has system-

atically attempted to undercount white membership and

overcount nonwhite membership. The district court prop-

erly found Local 28 in contempt.

Local 28 also contends that even if its recordkeeping

violations amount to contempt, those errors justify only

the entry of the stipulated changes to the recordkeeping

system. We agree that these violations, by themselves,

would not justify most of the remedies imposed by the

district court. But the Union’s consistent failure to report

accurately nonwhite membership figures serves as yet

another piece of evidence of Local 28’s failure to provide

equal employment opportunities to all of its members, as

we discuss below.

17a

3. The Union's Failure to Provide Equal Employment

Opportunities to its White and Nonwhite Members.

The O & J specifically enjoined the Union from taking

any actions that would “deprive or tend to deprive any

individual of employment opportunities with Local 28

contractors.” The AAAPO requires that “all members

. . of Local 28 share equitably in all available employ-

ment opportunities in the industry.” The district court

found that the Union had violated both of these provi-

sions. It based this conclusion on a review of the statisti-

cal evidence, the evidence that the Union’s business

agents discriminate in their referral practices, and the

Union’s failure to take other affirmative steps to ensure

equal employment opportunities for all of its members.

See EEOC VI, 889 F.Supp. at 660-64. Local 28 claims both

that there has been no showing that the disparity in hours

worked by whites and nonwhites is attributable to race,

and that even if it is, the blame for that disparity lies only

with the Contractors.

In the district court, the City submitted affidavits

from its expert, Dr. Bernard Siskin, who is an adjunct

professor at Temple University Law School and has a

Ph.D. in statist'cs from the University of Pennsylvania.

Dr. Siskin found that Local 28’s nonwhite journeypersons

had worked a statistically significant fewer number of

hours than their white counterparts between 1981 and

1994. Dr. Siskin took a number of steps to ensure that a

person’s unavailability for work would not skew the

study. For example, he eliminated from the study those

journeypersons who had been ineligible for work at some

point during a particular year and those persons who had

ORBLE EE A il

;

18a

not worked any hours during that year. He also per-

formed various regression analyses to determine whether

a factor other than race, such as a member’s seniority,

residence, or specialized skill, could be responsible for

the disparity. Despite all of these safeguards, Dr. Siskin’s

study still showed that nonwhite journeypersons worked

significantly fewer hours than their white counterparts.

Local 28 claims that Dr. Siskin failed to include in his

analysis several important variables: skill level, educa-

tion, and motivation. See Sobel v. Yeshiva University, 839

F.2d 18, 34 (2d Cir.1988), cert. denied, 490 U.S. 1105, 109

S.Ct. 3154, 104 L.Ed.2d 1018 (1989). None of these argu-

ments has merit. First, contrary to Local 28’s argument,

Dr. Siskin did control for skill level, and the Union’s real

complaint is that he did not pick the correct proxy. The

court was entitled to reject Local 28’s view. See Bazemore v.

Friday, 478 U.S. 385, 400-01, 106 S.Ct. 3000, 3009, 92

L.Ed.2d 315 (1986). Second, the district court, after a trial

on the merits, previously held that a high-school diploma

is not required because it is not related to job perfor-

mance. See EEOC I, 401 F.Supp. at 482. Because the Union

submitted no new evidence that would suggest that edu-

cation is any more relevant to the job performance of

sheet metal workers today than it was twenty years ago,

we cannot find fault with Dr. Siskin’s failure to control

for education. See Sobel, 839 F.2d at 34. Finally, Local 28’s

motivation argument is specious. The Union has made

absolutely no showing that whites are any more moti-

vated than nonwhites or that controlling for motivation

would somehow account for the racial disparity. See id.

The primary evidence that Local 28 submitted to

oppose the City’s statistical showing was the affidavits of

19a

Dr. Richard Buchanan. Dr. Buchanan’s work has been

previously criticized by both the district court and the

Administrator. See EEOC VI, 889 F.Supp. at 650. The

district court found his analysis no more compelling this

time, id. at 650-52, and we note that Local 28 has not

attempted to rely on him in this court. We find that the

district court’s holding that there is a statistical disparity

in hours worked is well supported by the evidence.

Local 28 next attempts to escape from contempt lia-

bility on the ground that it should bear no responsibility

for the disparity. It claims that the Collective Bargaining

Agreement (“CBA”) in effect between Local 28 and the

Contractors grants the Contractors unlimited power over

the hiring and firing of members of the Union and that all

employment is at-will. Furthermore, according to Local

28, its actions and those of its agents have, at most, a de

minimis impact on contractor hiring. Thus, any dis-

parities that exist are the result of discrimination by the

Contractors, not by Local 28, and therefore the finding of

contempt should be reversed. Local 28’s arguments mis-

characterize both the district court’s holding and prior

orders.

The district court previously found that, both before

and after the commencement of this litigation, Local 28

has engaged in repeated and pervasive acts of discrimina-

tion against its nonwhite members. See, e.g., EEOC V, 753

F.2d at 1177; EEOC III, 532 F.2d at 824; EEOC I, 401

F.Supp. at 476-87. In its effort to eliminate this ongoing

discrimination by Local 28, the district court did not

simply enjoin the Union from engaging in further dis-

criminatory practices with regard to admission to the

Union; it required that the Union take action to ensure

20a

that a nondiscriminatory, race-neutral market existed for

workers in the sheet metal industry. Thus, as we noted

above, the O & J ordered Local 28 not to take any actions

that would deprive members of employment oppor-

tunities. The district court found that Local 28 had vio-

lated this clear order.

The district court found that the Union’s business

agents had engaged in discriminatory practices in their

referrals to the Contractors. The evidence before the dis-

trict court on this issue was in conflict. The City submit-

ted the affidavits of nonwhite members of the Union who

had received little or no assistance from the Union’s

business agents in finding jobs, and whose personal expe-

rience was that business agents would aid nonwhite

members only reluctantly. Local 28 responded with its

own affidavits from nonwhite members who testified that

they had experienced no discrimination in the union, as

well as the affidavit of one of its lawyers attempting to

discredit the testimony of the City’s witnesses. The dis-

trict court also had before it the evidence of Local 28's

prior resistance to its orders and its inflation of nonwhite

membership in the records submitted to the court, from

which the court could infer discriminatory intent. Cf.

Binder v. Long Island Lighting Co., 57 F.3d 193, 200 (2d

Cir.1995) (“[R]esort to a pretextual explanation is, like

flight from the scene of a crime, evidence indicating

consciousness of guilt... . ”). The district judge, after

reviewing the evidence from both sides, credited the evi-

dence from the City over that of Local 28.

Even under the more strenuous standard for a con-

tempt proceeding, we cannot say that the district court’s

finding that the Local 28 business agents discriminated

SR rb ae AS nei eae eee

ioe ey

2la

constituted clear error. In United States v. United States

Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed.

746 (1948), the Supreme Court held that “[a] finding is

‘clearly erroneous’ when although there is evidence to

support it, the reviewing court on the entire evidence is

left with the definite and firm conviction that a mistake

has been committed.” In Anderson v. City of Bessemer City,

470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518

(1985), the Court clarified that

[i]f the district court’s account of the evidence is

plausible in light of the record viewed in its

entirety, the court of appeals may not reverse it

even though convinced that had it been sitting

as trier of fact, it would have weighed the evi-

dence differently. Where there are two permis-

sible views of the evidence, the factfinder’s

choice between them cannot be clearly erro-

neous.

This rule applies to all district court factual determina-

tions, including those based on documentary evidence or

inferences that are drawn from other facts. Id. at 574, 105

S.Ct. at 1511-12. We are mindful that the clearly erro-

neous standard is more stringent when we review the

district court’s finding of contempt, which must be found

by clear and convincing evidence, not just by a prepon-

derance of the evidence. See Local 1804-1, 44 F.3d at 1096.

Nonetheless, we must give due deference to the district

court’s factual determinations. Here, the district court

faced two conflicting versions and found the City’s ver-

sion more convincing. We cannot say that we are left with

any conviction, let alone a definite and firm one, that the

district court erred.

22a

Local 28 also argues that even if its business agents

have discriminated, the effect of that discrimination was

de minimis because business agents account for only two

percent of the total hours worked by journeymen. Assum-

ing, as we must, that Local 28’s business agents have

engaged in discrimination against nonwhite journeyper-

sons, this effect is not de minimis. The O & J is explicit in

stating that Local 28 is not to deprive its members of

employment opportunities based on race. The hours

worked by Local 28 journeypersons in the average year is

in the millions, and two percent of that is by no means an

insignificant number of hours for Local 28 to be distribut-

ing unequally among its members. The district court was

correct to reject this argument.

The district court also relied on the Union’s failure to

invoke two CBA provisions which might have created

additional job opportunities for nonwhite members. The

first provision, Art. V, § 6 of the CBA, provides that

“[w]henever, in the opinion of the Union, unemployment

has risen to the point where some corrective action, in its

opinion, should be taken, the Manpower Committee shall

meet within forty-eight (48) hours to attempt to place the

men in jobs.” EEOC VI, 889 F.Supp. at 662. Local 28 does

not deny that it has not called for a meeting of the

Manpower Committee. Instead, it posits that there is no

evidence that “such a meeting would have had any

impact on the hours disparity.” Brief of Local 28 at 27. But

Local 28 fails to articulate any reason why invoking this

provision would not have affected the hours disparity. On

its face, § 6 would seem to have at least some promise to

reduce the hours disparity by forcing the Contractors to

focus on the problem. Because Local 28 never tried to use

23a

this provision and there was no evidence to prove that it

would not have worked, the district court could properly

infer that § 6 might have reduced the hours disparity.

Union’s responsibilities and obligations under the O & J.

The O & J requires the Union to “administer all of the

affairs of Local 28 . . . so as to ensure that no individual is

excluded from equal work opportunities, including but

not limited to overtime and advancement, on the basis of

race, color or national origin.” The evidence was over-

whelming that nonwhite journeypersons were working

significantly fewer hours than their white counterparts,

yet Local 28 took no steps to alleviate the problem

(indeed, the district court found that its business agents

were actively exacerbating the problem). Under the O & iy

Local 28 was required to take those steps that were within

its power to eliminate this disparity. The failure to invoke

§ 6 and to attempt to reduce the disparity was a direct

violation of the O & J.

i In any event, Local 28’s argument misapprehends the

The district court also pointed to Art. V, § 7, which

States that “[dJuring periods of unemployment there shall

be established a mandatory two-week furlough system.

The procedures to be adopted and/or formulated con-

cerning said furlough system shall be referred for consid-

eration to a joint subcommittee consisting of both

management and labor.” EEOC VI, 889 F.Supp. at 662.

Again Local 28 argues that for this provision to reduce

the hours disparity would require the agreement of the

Contractors and that there is no evidence that the Con-

tractors would have agreed to the furloughs. But again,

Local 28 misses the point: it was under an explicit obliga-

tion to take all steps in its power to try to reduce the

24a

hours disparity, even if unsuccessful. The Union did not

do so.

Accordingly, we find no error in the district court’s

holding Local 28 in contempt for failing to provide equal

employment opportunities to all of its members regard-

less of race.

4. The Reinstatement Policy.

A Local 28 member who fails to pay his dues for two

months is automatically suspended from membership. To

be reinstated, he must pay the past due amounts, plus a

$25 reinstatement fee. In late 1988, Local 28 adopted a

policy whereby members who had been suspended for

more than two years would not be reinstated. Under this

new policy, never formally adopted or communicated to

Local 28’s membership, a member could appeal the

denial of reinstatement to the Union’s Executive Board,

whose decision was final. EEOC VI, 889 F.Supp. at 664-65.

The City submitted statistical evidence to the district

court showing that a disproportionate share of the per-

sons suspended under the Union’s policy were nonwhite.

According to the City, because nonwhite journeypersons

were terminated at a higher rate than their white counter-

parts, the policy of restricting reentry after two years

disproportionately affected nonwhite members, a viola-

tion of J 1 of the O & J. The City also submitted the

affidavits of several dismissed nonwhite members who

allegedly had been denied an appeal hearing before the

Executive Board, or whose appeals had been rejected.

Finally, the City submitted evidence that similarly situ-

ated white members had received different treatment.

25a

Local 28 submitted its own evidence in rebuttal,

claiming that two of the nonwhite journeypersons who

had been denied reentry had substance abuse problems

and that the white journeypersons were not similarly

situated to the nonwhites. Local 28, however, submitted

no evidence showing that any white members had been

denied readmission, nor that any nonwhite members had

been reinstated under the policy.* Local 28 also submitted

statistical evidence from Dr. Buchanan to show that no

disparate impact existed.

The district court found that Local 28’s new reinstate-

ment policy for suspended members discriminated

against nonwhites under both a disparate treatment and a

disparate impact approach. Based on the evidence before

the district court, we cannot say that this was clear error.

As we noted above, the district court was fully entitled to

rely on Dr. Siskin and not on Dr. Buchanan. Because we

can affirm on the disparate impact ground, we need not

reach the court’s disparate treatment ruling.

We agree with Local 28, however, that the district

court erred when it extended its contempt finding to

cover other conditions (fees and back dues payments)

imposed by the Union for nonpayment of dues additional

to the two-year limitation on reinitiation. We agree with

3 On appeal, Local 28 argues that three nonwhite members

were readmitted under the policy. This evidence, however, was

never brought to the attention of the district court and is

derived solely from massive computer printouts attached to the

Affidavit of Hilary Klein, an attorney for the plaintiffs, without

any additional information concerning the circumstances of the

reinitiation. Because this evidence was not properly tendered to

the district court, we refuse to consider it here for the first time.

26a

Local 28 that the City challenged only the two-year lim-

itation. A party charged with contempt of court (except

where the contempt is made in court and is summarily

punished) is entitled to notice and an opportunity to be

heard. See Taylor v. Hayes, 418 U.S. 488, 496-500, 94 S.Ct.

2697, 2702-04, 41 L.Ed.2d 897 (1974). 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.

5. Local 28's Diligence.

A party may not be held in contempt unless the

district court finds that the party was not “reasonably

diligent in attempting to comply.” Local 1804-1, 44 F.3d at

1096. The district court found that the evidence submitted

by the Union showed only that it had complied reluc-

tantly with orders to remedy its violations of the law and

that it had been willing to come into compliance with the

court’s orders after a contempt motion had been filed.

EEOC VI, 889 F.Supp. at 667-68. Thus, according to the

court, there was no evidence that the Union was reason-

ably diligent. Once again, we are unable to conclude that

the district court’s decision was clear error. Based on the

gross recordkeeping violations alone, the court could find

that the Union had not been reasonably diligent.

27a

To summarize, we affirm the district court’s finding

that Local 28 was in contempt of court for failing to

provide equal employment opportunities to all of its

members and for violating the recordkeeping require-

ments of the district court’s previous orders. We also

affirm the finding that Local 28’s imposition of the two-

year limitation on reinitiation was contumacious, but

vacate the court’s holding of contempt based on the

Union’s other membership conditions. Because the find-

ings that we affirm are sufficient to support the district

court’s ultimate contempt holding, there is no need for us

_to consider whether the district court could properly use

Local 28’s failure to reach the membership goal to sup-

port its finding of contempt.

B. The Remedies.

As remedies for the contempt, the district court

ordered that the Union provide back pay to certain non-

white journeypersons, make additional contributions to

the ETER fund, and pay the plaintiffs’ attorneys’ fees and

costs. The district court also modified the reinitiation

policy and ordered the parties to commence negotiations

for a new membership goal. Finally, at the request of the

City and the Unica, the district court ordered that Local

28 and the Contractors initiate a hiring hall and job

rotation system. Local 28 challenges each of these

remedies, including the hiring hall and job rotation sys-

tem, except for the award of attorneys’ fees and costs.

The Contractors challenge the hiring hall and the job

rotation system.

28a

1. The Back Pay Award.

The district court’s order required the Administrator

to hold hearings to grant back pay to all journeypersons

whose actual hours worked were two or more standard

deviations below their “expected” hours worked, who

were available for and were actively seeking work, and

who mitigated their damages. EEOC VI, 889 F.Supp. at

685. In a civil contempt proceeding, such as this one,

sanctions may be used either to coerce the defendant into

complying with the district court’s orders or to compen-

sate the victim of the defendant’s contemptuous conduct.

Local 28, 478 U.S. at 443, 106 S.Ct. at 3033. The district

court relied on both rationales, but we find that neither

withstands scrutiny.

In deciding whether to impose a coercive remedy, the

district court must consider “(1) the character and magni-

tude of the harm threatened by the continued contumacy;

(2) the probable effectiveness of any suggested sanction

in bringing about compliance; and (3) the contemnor’s

financial resources and the consequent seriousness of the

burden of the sanction upon him.” Dole Fresh Fruit Co. v.

United Banana Co., 821 F.2d 106, 110 (2d Cir.1987). The

district court’s ultimate decision need only be reasonable,

and we review a coercive sanction for abuse of discretion.

See Perfect Fit Indus. v. Acme Quilting Co., 673 F.2d 53, 57

(2d Cir.), cert. denicd, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d

71 (1982).

In opposition to the City’s request, Local 28 submit-

ted the affidavit of Gary Topple, a Certified Public

Accountant. Attached to Topple’s affidavit were Local

28’s consolidated financial statements for 1992 and 1991,

29a

and for the first nine months of 1993. The balance sheets

for those years revealed that the union’s total assets were

no greater than $2.477 million. The City’s own expert

estimated that the total wages lost by nonwhite workers

could easily exceed $12 million.

The district court also rejected Topple’s testimony to

the effect that the Union could cut expenses no further

and found that there was no evidence that the Union's

expenses would be increasing over the next few years.

The district court, however, failed to address the poten-

tially disastrous financial impact of the back pay award,

and, in the face of the unrebutted evidence that such a

large award would bankrupt the Union, the decision to

impose this coercive remedy was an abuse of discretion.

A compensatory remedy “should reimburse the

injured party for its actual damages.” Terry, 886 F.2d at

1353. The district court’s award does not limit an award

only to those nonwhite journeypersons who have been

damaged but, instead, grants back pay to those qualifying

journeypersons who were acttively seeking work and mit-

igated their damages. Under the district court’s approach,

a journeyperson would be entitled to receive damages

3 even if there was a legitimate non-discriminatory reason

that would explain why the journeyperson was not hired.

For instance, a journeyperson could have a poor work

history of which employers became aware after checking

his references, or the journeyperson might only have

sought work from contractors who were looking for

someone more skilled. Indeed, it may even be the case

that the Union can show that a particular journeyperson

was unemployed, not because of its own discrimination,

ee ——

30a

but rather, because the contractors were illegally discrim-

inating against the journeyperson. In the foregoing situa-

tions, a back pay award would be inappropriate. The

Union can only be required to compensate the victims of

its own discriminatory acts. Accordingly, because the dis-

trict court’s back pay award in this case was not suffi-

ciently tailored to compensate actual victims of the

Union's discrimination, we vacate the district court's

order directing the Administrator to hold hearings on the

amount of back pay, and we remand that issue to the

district court to fashion a remedy that compensates with

back pay only those journeypersons who were denied

work because of the Union’s discriminatory conduct.

2. ETER Fund Contributions.

The district court instructed the Administrator “to

submit to the court a proposal for raising the ETER Fund

contribution to a level that will cost the union enough

money to provide an incentive to meet the membership

goal and that will fully fund the activities that this court

intended the Fund to perform.” EEOC VI, 889 F.Supp. at

686. The district court further stated that “the Adminis-

trator is instructed to submit to the court a schedule of

interim goals accompanied by reporting requirements to

determine whether the union has met the interim goals.”

Id.

According to the record before us, the Administrator

has not yet submitted his report, so we are unable to

determine whether the specific increase in Local 28's

contributions to be proposed by him will constitute error.

Thus, at this point we can only state our approval of the

3la

district court’s general use of an increase in the ETER

fund as a method of coercing Local 28 to comply with the

court’s prior orders, and as a remedial tool. This general

approval, however, is without prejudice to a subsequent

contention by the Union, in the district court or in this

court, that the actual increases in the ETER fund ordered

by the district court do not accord with the requirements

of either compensatory or coercive remedies.

3. The Reinstatement Policy.

Local 28 also contests the district court’s rejection of

the parties’ stipulated changes to the reinstatement policy

and its order that the parties and the Administrator meet

to formulate a new policy that, among other things,

exempts any nonwhite journeyperson from the payment

of a reinstatement fee and the payment of dues for the

suspended period. Local 28 argues that this is an imper-

missible “race-conscious” remedy. See Adarand Construc-

tors, Inc. v. Pena, ___ U.S. __, 115 S.Ct. 2097, 132 L.Ed.2d

158 (1995).

Having earlier in this opinion vacated that portion of

the district court’s order that found that all of the Union’s

sanctions for nonpayment of dues, not just the two-year

limitation on reinstatement, to be a contempt of court, it

follows that we now vacate the district court’s remedial

order relating to the reinstatement policy with the excep-

tion of the district court’s rejection of the two-year limita-

tion period for a reinstatement application. In affirming

that part of the order, we agree with the district court that

the new policy must “permit former members who were

suspended or terminated from membership as a result of

32a

nonpayment of dues to apply tur readmission at any

time, regardless of the date of their suspension.” EEOC

VI, 889 F.Supp. at 687. A system that allows reinstatement

without a limitations period is nondiscriminatory and is a

proper remedy for acts challenged by the plaintiffs. On

remand, the district court is free to consider whether

other aspects of the Union’s membership policies consti-

tute contempt, provided the defendants are given notice

and an opportunity to be heard.

4. The Membership Goal.

The district court also ordered the Administrator and

the parties to reformulate the membership goal, to

account for both the demerger of Local 28, which created

a separate local for Northern New Jersey, and shifts in

population since 1989, as reflected in the 1990 census. The

Union claims that this violates our decision in Patterson v.

Newspaper & Mail Deliverers’ Union, 13 F.3d 33, 39 (2d

Cir.1993), cert. denied, __ U.S. __, 115 S.Ct. 58, 130

L.Ed.2d 16 (1994), in which we held that a district court

decree need not reflect demographic changes when the

court had already held that the earlier decree had

achieved its purposes. Patterson, however, undermines

Local 28’s argument. We held in Patterson that a flexible

standard should be applied to the decision to vacate a

consent decree once its primary purpose has been

achieved. Id. at 37-38. Here, the primary purpose of the

district court’s orders has been to eliminate discrimina-

tion, and the district court, sitting as a court of equity,

should have broad discretion to adjust the membership

goal when circumstances warrant. Id. Because it is undis-

puted that large shifts in Local 28’s membership have

33a

occurred since the goal was last modified, the court's

decision to recalculate the goal was proper.

In its reply brief, Local 28 for the first time argues

that a change in the membership goal would be uncon-

stitutional. This issue was litigated earlier in this case,

and the Supreme Court has made clear that the member-

ship goal is just that — it is just a goal and is not a quota.

See Local 28, 478 U.S. at 475-79, 106 S.Ct. at 3049-51

(Brennan, J., plurality opinion); id. at 484-88, 106 S.Ct. at

3054-56 (Powell, J., concurring in part and concurring in

the judgment). Thus, the argument lacks merit. In any

event, Local 28 waived this issue by failing to raise it in

the opening brief. See Amoco Overseas Oil Co. v. Compagnie

Nationale Algerienne de Navigation, 605 F.2d 648, 653 n. 3

(2d Cir.1979). We affirm the district court’s order that the

membership goal be reformulated.

5. The Hiring Hall and Job Rotation System.

The Contractors challenge the district court’s imposi-

tion of both the hiring hall and the job rotation system on

the grounds that these remedies would impose an imper- —

missible burden on them and violate the Constitution and

Title VII. Despite agreeing to the hiring hall and the job

rotation system in the district court, Local 28 now joins

the Contractors in arguing that these remedies are uncon-

stitutional.

Under the plan proposed by the City and endorsed

by the district court, the Contractors would be required

to hire eighty percent of their workers during a twelve-

month period from a hiring hall. The hiring hall would

refer unemployed journeypersons to the Contractors

34a

based on a numerical system in which a journeyperson

would be ranked according to the number of hours he

had worked over the current and the most recent past

year, with the person with the least number of hours

placed first on the list. A journeyperson who is laid off by

three consecutive employers for lack of productivity,

however, would be placed at the bottom of the list. Jour-

neypersons would be asked to designate any special

skills they have, such as roofing, welding, or operating

CAD/CAM equipment. If a contractor needed someone

with a special skill, the person with the lowest number of

hours possessing that skill would be referred. If a person

is laid-off because the person is found to be unqualified

in his special skill, that person would be placed back on

the list but would no longer be listed as having that skill.

The job rotation system requires each contractor to

designate eighty percent of its workers as nonbasic.

Under the system, any journeyperson considered non-

basic must be laid off after working more than 1200 hours

in a fifty-two week span; basic workers must be laid-off

after working 1680 hours over the same span of time.

Those laid-off would return to the hiring hall, but could

not work for the same contractor for one year, after which

they could be rehired as part of the twenty percent not

hired under the hiring hall.

The job rotation system would not go into effect until

at least one year after the implementation of the hiring

hall, and only if (1) the number of hours worked by

nonwhite journeypersons is more than one standard devi-

ation below the number of hours expected to be worked

by such journeypersons (based on the nonwhite percent-

age of membership in the Union), and (2) unemployment

35a

among all of the journeyperson members of Local 28 has

averaged 10% or more.

The problem with the hiring hall and the job rotation

system as they affect the Contractors is that the Contrac-

tors have never been found liable for discrimination.

They have been joined as defendants in this action only to

effectuate the relief granted against the other defendants

and because they are indispensable parties under

Fed.R.Civ.P. 19(a). See EEOC V, 753 F.2d at 1175 (citing

EEOC III, 532 F.2d at 824 n. 3). On appeal, the Contractors

argue that, because they have never been found liable,

the district court’s imposition of the hiring hall and job

rotation system as to them exceeded its remedial powers.

Alternatively, they argue that these remedies violate the

Equal Protection Clause guarantees under the Fifth and

Fourteenth Amendments.

In General Building Contractors Association, Inc. v.

Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835

(1982), the district court had found that the petitioners in

that case had violated 42 U.S.C. § 1981 and the court had

imposed injunctive relief against them. The Supreme

Court reversed, holding that there was no basis for the

finding that the petitioners had violated § 1981. However

the respondent argued that the district court, as part of its

injunction against liable parties, could impose injunctive

relief against the petitioners under its inherent equitable

powers or under the All Writs Act, 28 U.S.C. § 1651(a).

The Court rejected these arguments and held that a non-

liable party could only be subject to provisions of an

injunction that were “minor and ancillary”. Id. at 399, 102

S.Ct. at 3154. The Court further held that the remedies

imposed by the district court were neither minor nor

36a

ancillary because they placed considerable burdens on

the petitioners, including requirements that they meet

certain “minority utilization goals,” make quarterly

reports detailing their compliance, and bear a share of the

financial cost of implementing the injunction. Id. at

399-400, 102 S.Ct. at 3155.

It is plain to us that, as remedies imposed against the

Contractors in this case, neither the hiring hall nor the job

rotation system is minor or ancillary. The hiring hall

sharply curtails an employer’s hiring discretion by

requiring that eighty percent of new hires come from the

hiring hall. For this reason, the Contractors have consis-

tently resisted the efforts of Local 28 to create a hiring

hall.

The City and the EEOC argue that because other

courts (including the district court in General Building

Contractors on remand) have upheld alterations to exist-

ing hiring halls as remedies in employment discrimina-

tion cases, we should affirm the district court’s decision.

See, e.g., EEOC v. Local 580, 669 F.Supp. 606, 622

(S.D.N.Y.1987), aff'd, 925 F.2d 588 (2d Cir.1991); Pennsylva-

nia v. Local 542, 619 F.Supp. 1273, 1279 (E.D.Pa.1985), aff'd,

807 F.2d 330 (3d Cir.1986). But there is a difference

between a change to an existing hiring hall and the

imposition of a new one. As the Court noted in General

Building Contractors, “adjustment([s] in the collective-bar-

gaining contract” may be appropriate. 458 U.S. at 400, 102

S.Ct. at 3155. What the district court ordered here, how-

ever, is not an “adjustment;” rather it is a major alteration

in the relationship between Local 28 and the Contractors.

We do not agree with the district court that, as against the

37a

Contractors, the imposition of the hiring hall constitutes

relief that is minor and ancillary.

If the hiring hall is not minor and ancillary, the job

rotation system is even less so. Even when an employer

has been found to engage in discriminatory practices, the

Supreme Court has resisted requiring the layoff of

workers as a remedy. See, e.g., Wygant v. Jackson Bd. of

Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986)

(striking down as unconstitutional a plan which required

that white teachers be laid-off before nonwhite teachers).

Even though the Contractors have not been found liable,

under certain conditions the job rotation system would

require them to layoff their workers and replace them

with other workers. General Building Contractors makes it

plain that such a system is neither minor nor ancillary.

This does not mean that the district court is barred

from ordering relief which poses some burdens on the

Contractors. For instance, the district court is free to

order the Contractors to make reports to the district

court. See General Bldg. Contractors, 458 U.S. at 405, 102

S.Ct. at 3157 (O’Connor, J., concurring) (“It is .. .

conceivable . . . that quarterly reports providing employ-

ment statistics necessary for the court to ascertain

whether its injunctive decree is being properly imple-

mented could be ordered. ... ”). In addition, as the

Contractors note, the district court could alter Local 28’s

referral process by removing those business agents who

have been found to be discriminating against nonwhite

employees, or by eliminating business agent referrals

altogether, and replacing them with a system patterned

after the hiring hall, which could be termed a referral

hall, in which journeypersons are referred to employers

38a

based on the number of hours worked but the Contrac-

tors retain the discretion whether to hire any individual

worker. However, in ordering relief that affects the Con-

tractors, the district court must take care to ensure that

any additional burdens placed on the Contractors are

truly “minor and ancillary.”

If the plaintiffs wish to have sanctions imposed on

the Contractors or to fashion remedies as to them that are

more than minor and ancillary, they may do so only upon

establishing the Contractors’ liability after adhering to

the appropriate rules of civil procedure. Until such time,

if ever, that the Contractors are properly adjudged to

have violated Title VII, the remedies imposed against the

Contractors may be no more than minor or ancillary, in

conformity with General Building Contractors.

Because we reverse the imposition of the hiring hall

and the job rotation system as neither minor nor ancillary,

we do not reach the Contractors’ constitutional argu-

ments. Ashwander v. Tennessee Valley Auth., 297 U.S. 288,

346-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandeis,

J., concurring); Jews for Jesus, Inc. v. Jewish Community

Relations Council, 968 F.2d 286, 290 (2d Cir.1992).

C. The June 6 Order.

In its Contempt Order, the district court ordered

the union to pay for a field monitor, who will be

chosen by and work under the supervision of

the Administrator to check the accuracy of the

reports filed by the union pursuant to the

AAAPO and the requirements of the hiring hall

and work share program. The monitor may visit

39a

work sites to ensure that the people who the

union and the contractors report as working

there are actually doing so, or he may use what-

ever methods the Administrator deems to be

necessary.

889 F.Supp. at 687. On April 14, 1995, the Administrator,

in a written order, appointed Charles Saunders to be the

Field Monitor, spelled out Saunders’s duties, enjoined

Local 28 and the Contractors “from interfering with or

impeding the Field Monitor in carrying out his duties,

and from retaliating against any person who talks with,

or wishes to talk with, the Field Monitor,” and directed

Local 28 and the Contractors to cooperate with Saunders

by providing him with access to certain sources of infor-

mation. The Contractors moved to vacate the Administra-

tor’s order, but the district court denied the motion. The

Contractors appeal on the grounds that the Administra-

tor’s order exceeded his power, that the order was overly

broad and intrusive, and that the injunction was

improper.

While district courts have long had the power to

appoint special masters to aid them, only recently have

special masters been used to implement the district

courts’ orders. See United States v. Yonkers Bd. of Educ., 29

F.3d 40, 44 (2d Cir.1994), cert. denied, ai ee 2

S.Ct. 2608, 132 L.Ed.2d 853 (1995). Nonetheless, we have

held that the use of a special master in such circum-

stances is permissible so long as the master’s powers are

“tailored to cure the . . . violation.” Id. Indeed, in Local 28

the Supreme Court noted that “in light of the difficulties

inherent in monitoring compliance with the court’s

orders . . . appointment of an administrator was well

40a

within the District Court’s discretion.” 478 U.S. at 482,

106 S.Ct. at 3053. We conclude that just as the district

court had authority to appoint the Administrator, the

Administrator had authority to appoint, and thereby del-

egate a portion of his responsibility to, a Field Monitor; to

delineate the Field Monitor’s duties; and to indicate the

information to which the Field Monitor should be pro-

vided access.

With a single exception, we do not think that the

Administrator’s order violates General Building Contrac-

tors’s prohibition on burdensome remedies. The provi-

sions of the order are, for the most part, carefully tailored

to monitor the union’s compliance with the district

court’s orders. We agree with the Contractors, however,

that the requirement that the Contractors cooperate “in

efforts to investigate and conciliate job related com-

plaints” is overly broad. As the district court noted, the

Administrator has been granted “broad powers to effec-

tuate compliance on the part of Local 28 with the [dis-

trict] court’s affirmative action plan and orders.” June 6

Order at 8. We cannot see, however, how granting the

Field Monitor the power to investigate and conciliate

complaints that union members may have with their

employers (the Contractors) is related to the AAAPO, the

O & J, or any of the district court’s other orders. Instead,

this portion of the Administrator’s order seems to us to

be an intrusion into an area of labor relations that has

traditionally been the province of the National Labor

Relations Board. Therefore, we strike that clause from the

Administrator’s order.

We also agree with the Contractors that it was

improper for the Administrator to enter an injunction

4la

against the Contractors. Unless the parties consent, fed-

eral magistrates are not permitted to hear motions for

injunctive relief. 28 U.S.C. § 636(b)(1)(A). We do not think

that the Administrator, who is only a court-appointed

special master, can have any more authority than that

which Congress has granted to a magistrate. Further-

more, the Administrator, in purporting to enjoin the Con-

tractors, did not address any of the factors we have

required district courts to consider, including irreparable

harm, likelihood of success, the balance of hardships, and

the public interest. See Able v. United States, 44 F.3d 128,

130-31 (2d Cir.1995). Therefore, it was error for the dis-

trict court to refuse to vacate the injunctive portion of the

Administrator’s order, and we remand this issue to the

district court for reconsideration. In all other respects, we

affirm the June 6 Order.

CONCLUSION

The finding of contempt against Local 28 is affirmed,

except that we vacate so much of the district court’s

decision as held that Local 28’s membership policies -

other than the two-year limitation on reinstatement — are

discriminatory. Because we affirm the district court’s con-

tempt finding on other grounds, we do not reach the

issue of whether the district court could rely on Local 28’s

failure to meet the membership goal as evidence of con-

tempt.

The portion of the district court’s order that imposed

the hiring hall and the job rotation system is reversed.

The portion of that same order that awarded back pay is

vacated and remanded to the district court for further

42a

proceedings, in accordance with this opinion. Because we

vacate the contempt finding as to the Union’s member-

ship policies (other than the two-year limitation on rein-

statement), the portion of the district court’s order that

modified those policies is also vacated, except that we

affirm the district court’s rejection of the two-year limita-

tion period. We affirm the district court’s order that the

membership goal be reformulated and we affirm both the

district court’s general use of ETER fund increases to

coerce compliance with its orders, and its use of those

increases as a remedy, but as to whether the specific

increases to be proposed by the Administrator are proper

as either coercive or compensatory remedies, a decision

now would be premature.

The June 6 Order denying the motion to vacate the

Administrator’s Order is affirmed, except that we strike

as overbroad the clause that directs the Contractors to

cooperate “in efforts to investigate and conciliate job

related complaints,” and we reverse that portion of the

June 6 Order which refused to vacate the Administrator’s

purported injunction as against the Contractors, without

prejudice to the entry of an injunction, if so warranted, by

the district court.

The case is hereby remanded for further proceedings

in accordance with this opinion.

43a

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, and The City of

New York, Plaintiffs,

LOCAL 638 ... LOCAL 28 OF the SHEET

METAL WORKERS’ INTERNATIONAL

ASSOCIATION, et al., Defendants.

No. 71 Civ. 2877 (RLC).

United States District Court,

S.D. New York.

March 6, 1995.

New York City and New York State Division of

Human Rights brought action to hold sheet metal

workers’ union in contempt of court for alleged viola-

tions of court-ordered affirmative action program. The

District Court, Robert L. Carter, J., held that: (1) union

failed to achieve 29.23% membership goal; (2) union had

no basis for raising impossibility defense; (3) union

remained bound by court-ordered membership goal that

may no longer exactly reflect relevant population; (4)

even if not solely responsible for continuing failure of

nonwhites to find work as journeypersons, it was liable

for disparity in hours between whites and nonwhites; (5)

union’s adoption of its restrictive reinitiation policy had

disparate impact on nonwhites, supporting contempt

finding; (6) back pay for underemployed nonwhite jour-

neypersons was appropriate to remedy hours disparity;

(7) union was liable for attorney fees and costs incurred

in investigating and pursuing contempt motion; (8) work

share plan passed constitutional muster, since it served

44a

compelling state interest of remedying past discrimina-

tion and was narrowly tailored to meet that interest; (9)

nonliable contractors were subject to requirements of

work share and hiring hall system as minor and ancillary

relief; and (10) court was authorized to amend affirmative

action program in institutional reform case requiring

ongoing supervision of union without determining

whether there has been significant change in law or fact.

So ordered.

Paul A. Crotty, Corp. Counsel of City of New York,

New York City (Hilary B. Klein, Neil M. Corwin, Paul

Kazanoff, John P. Stern, of counsel), for plaintiff City of

New York.

G. Oliver Koppell, Atty. Gen. of State of New York,

New York City (Sanford M. Cohen, of counsel), for plain-

tiff NY State Div. of Human Rights.

Edmund P. D’Elia, P.C., New York City (Edmund P.

D’Elia, Gregory R. Begg, of counsel), for defendant Sheet

Metal Workers Local Union 28.

Gold, Farrell & Marks, New York City (Martin Gold,

of counsel), for defendants Sheet Metal and Air Condi-

tioning Contractors Ass’n of New York City, Inc. and

Sheet Metal and Air Conditioning Contractors Nat. Acs’n

of Long Island, Inc.

AMENDED AND CORRECTED

. OPINION

ROBERT L. CARTER, District Judge.

45a

Plaintiffs City of New York and New York State

Division of Human Rights ask the court to hold defen-

dant Local 28 of the Sheet Metal Workers International

Association (“Local 28”) in contempt of court on the basis

of numerous alleged violations of this court’s Order and

Judgment entered in 1975 (“O & J”) and the Amended

Affirmative Action Program and Order (“AAAPO”)

entered by this court in 1983. In the alternative, they seek

modification of the AAAPO. Plaintiff Equal Employment

Opportunity Commission is not a party to this motion.

The parties also ask the court to approve several stipula-

tions into which they have entered.

This court has continuing jurisdiction over this case

pursuant to 28 U.S.C. § 1331 because the case was origi-

nally brought under Title VII of the 1964 Civil Rights Act,

42 U.S.C. § 2000e-6(a). It also has jurisdiction pursuant to

the court’s inherent powers to enforce its orders and to

punish violators for contempt. Roadway Express, Inc. v.

Piper, 447 U.S. 752, 764-765, 100 S.Ct. 2455, 2463-2464, 65

L.Ed.2d 488 (1980); 18 U.S.C.A. § 401 (1966).

I. Background

Local 28 is a union representing sheet metal workers

who work for contractors in the New York metropolitan

area. The Local 28 Joint Apprenticeship Committee

(“JAC”) is a management-labor committee which runs an

apprenticeship program to teach sheet’ metal skills to

entrants into the union. The Sheet Metal and Air Condi-

tioning Contractors Association of New York City, Inc.

and the Sheet Metal and Air Conditioning Contractors

National Association of Long Island, Inc. (“Contractors’

46a

Associations”) are trade associations of building contrac-

tors which employ sheet metal workers in New York City

and Long Island. The Contractors’ Associations were not

named in the original complaint but have simce been

joined by the court for the purposes of obtaining com-

plete relief.

The background of this case has been thoroughly

documented in previous opinions of this court, the Sec-

ond Circuit and the Supreme Court, see Local 28 of Sheet

Metal Workers’ Int'l Ass'n v. EEOC, 478 U.S. 421, 106 S.Ct.

3019, 92 L.Ed.2d 344 (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, 106 S.Ct. 3019, 92 L.Ed.2d

344 (1986); EEOC v. Local 638 . . . Local 28 of Sheet Metal

Workers’ Int'l Ass'n, 674 F.Supp. 91 (S.D.N.Y.1987) (Carter,

J.), but for purposes of clarity this opinion will provide a

summary of the case.

This case dates back to 1964 when the state of New

York commenced proceedings in state court against Local

28 in response to the union’s refusal to admit blacks as

members and apprentices. In 1971, the United States

charged Local 28, the JAC, and several other unions and

contractors’ associations with violating Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The

Local 28 case was severed, the EEOC was soon substi-

tuted for the United States, and the New York City Com-

mission on Human Rights (“City”) and New York State

Division on Human Rights (“State”) intervened as plain-

tiffs. Judge Werker of this court held a trial and deter-

mined that Local 28 and the JAC had violated Title VII

47a

and New York law by denying nonwhites! access to

employment opportunities in the sheet metal trades.

EEOC v. Local 638, 401 F.Supp. 467 (S.D.N.Y.1975)

(Werker, J.), aff'd in part, 532 F.2d 821 (2d Cir.1976). He

then entered the O & J, which enjoined Local 28 and the

JAC from discriminating against nonwhites and enjoined

a number of specific practices which he found to be

discriminatory. He also ordered the union to achieve 29%

nonwhite membership by July 1, 1981, awarded back pay

to nonwhites excluded from union membership, appoint-

ed an administrator (“Administrator”), and ordered the

parties to design new recruitment and admission pro-

cedures to achieve the membership goal. The Administra-

tor accordingly proposed an affirmative action program,

which the court adopted.

The Second Circuit affirmed Judge Werker’s finding

of liability and most of the remedies that he had ordered,

modifying only part of his remedy regarding the appren-

ticeship program. EEOC v. Local 638 . . . Local 28 of Sheet

Metal Workers’ Int’l Ass'n, 532 F.2d 821 (2d Cir.1976). On

remand, Judge Werker adopted a Revised Affirmative

Action Plan and Order (“RAAPO”) which, among other

things, extended the 29% membership goal for one year,

and the Second Circuit affirmed this plan. EEOC v. Local

638... Local 28 of Sheet Metal Workers’ Int’! Ass'n, 565 F.2d

31 (2d Cir.1977).

* The term “nonwhites” has been used since the beginning

of this case to define the plaintiff class of “black and Hispanic

workers.” See, e.g., Local 28, 674 F.Supp. 91, 93 (S.D.N.Y.1987)

(Carter, J.).

48a

In 1982, the City and State commenced a series of

contempt proceedings strikingly similar to the current

proceeding, alleging that Local 28 and the JAC had failed

to meet the membership goal because they had violated a

number [of] different provisions of the O & J and

RAAPO. Judge Werker issued a civil contempt order,

finding that Local 28 and the JAC had “failed to comply

with RAAPO . . . almost from its date of entry,” and

imposed a fine of $150,000, which he ordered Local 28

and the JAC to deposit in a fund to be used to increase

nonwhite membership in the union. EEOC v. Local

638 . . . Local 28 of Sheet Metal Workers Int'l Ass'n, No. 71

Civ. 2877, 1982 WL 445, *4 (S.D.N.Y. Aug. 16, 1982)

(Werker, J.). In 1983 the City brought a second contempt

proceeding on the basis of the failure of the union and the

JAC to maintain and submit records in violation of the O

& J, the RAAPO, and several administrative orders. The

Administrator found contempt, and Judge Werker

adopted his findings, ordering the union and the JAC to

finance a computerized recordkeeping system. He also

entered an Amended Affirmative Action Plan and Order

(“AAAPO”) which, among other measures, increased the

nonwhite membership goal to 29.23% and extended the

deadline for meeting the goal to August 31, 1987. In 1987

this deadline was again extended to August 31, 1992,

pursuant to a stipulation between the parties.

The Second Circuit affirmed most of Judge Werker’s

contempt findings, upheld the contempt remedies he had

ordered, and affirmed the AAAPO with modifications to

the apprenticeship program, Local 28, 753 F.2d at 1172,

and this opinion was upheld by the Supreme Court. Local

49a

28, 478 U.S. at 482-83, 106 S.Ct. at 3053-54. When Judge

Werker passed away, I inherited the case.

In the instant contempt motion, the plaintiffs allege

that the union has violated the AAAPO and O & J by

failing to achieve the membership goal, ensure equal

work opportunities for its white and nonwhite members,

and keep accurate and complete records. Specifically, the

plaintiffs claim that the union has inflated its census

reports to make it appear as if it were closer to achieving

the membership goal than it actually is, has permitted

and contributed to a disparity between the hours worked

by white and nonwhite members, and has adopted a

reinitiation policy having a disparate impact on minor-

ities.

The plaintiffs seek a wide range of remedies for the

alleged contempt. To remedy the hours disparity, they ask

the court to order the union to operate a hiring hall which

will refer its members to jobs and to implement a work

sharing system in which journeypersons would return to

the hiring hall after working for a given period of time.

They also seek back pay for nonwhite journeypersons

whose hours fall two or more standard deviations below

the norm. To remedy the failure to meet the nonwhite

membership goal, plaintiffs ask the court to calculate the

membership goal separately for journeypersons, to set up

interim goals, and to invalidate the reinitiation policy. To

remedy the inaccurate and incomplete recordkeeping, the

plaintiffs request the court to order the union to imple-

ment and pay for a new recordkeeping system. Finally,

the plaintiffs seek attorneys’ fees, court costs, and reim-

bursement of experts’ fees.

50a

In response to this contempt motion, the parties have

entered into several stipulations which they request the

court to approve. In the first stipulation, the union agrees

to institute a hiring hall and work share program similar

to that requested by the plaintiffs in their contempt

motion, and the plaintiffs agree to withdraw that request

if the stipulation is approved. See Appendix A, Proposed

Stip. & Order Regarding Hiring Practices (“hiring hall

stipulation”). In the second stipulation, the union agrees

to modify its reinitiation policy, and the plaintiffs agree

that as soon as the union has done so they will withdraw

their request for invalidation of the current reinitiation

policy. See Appendix B, Proposed Stip. & Order Regard-

ing Reinitiation to the Union (“reinitiation policy stipula-

tion”). In the third stipulation, the union agrees to

institute and pay for a new computerized recordkeeping

system, and the plaintiffs agree to withdraw their request

for a new recordkeeping system. I have signed the

recordkeeping stipulation - the other two will be dis-

cussed in this opinion.

II. Liability for Contempt

A. Contempt Standards

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 noncom-

pliance [must be] . . . ‘clear and convincing,’ ” and the

union must not have “been reasonably diligent and ener-

getic 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.1981), cert. denied, 454 US. 832, 102 S.Ct.

5la

131, 70 L.Ed.2d 111 (1981)). It is not necessary that the

union willfully disobey the court’s order for there to be

contempt. McComb v. Jacksonville Paper Co., 336 U.S. 187,

191, 69 S.Ct. 497, 499-500, 93 L.Ed. 599 (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 defen-

dants who act without first asking the court to clarify the

order “act[ ] at their own peril.” McComb, 336 U.S. at 192,

69 S.Ct. at 500; see also Maness v. Meyers, 419 U.S. 449, 95

S.Ct. 584, 42 L.Ed.2d 574 (1975). On several prior occa-

sions this court has been forced to remind the union that

it is not free to disregard court orders simply because it

does not believe that it is bound by them. See, e.g., EEOC

v. Local 638. . . Local 28 of Sheet Metal Workers’ Int'l Ass‘n,

No. 71 Civ. 2877, Mem.Decision by Special Master David

Raff, at A-131 - A-132 n. 5 (S.D.N.Y. May 18, 1983)

(Werker, J.) (“Administrator’s Decision”). The union con-

tinues to insist that it may decide when to violate the

court's orders, evincing its blatant disrespect for the court

and for the principles underlying those orders. See infra p.

653.

A contempt proceeding does not provide an oppor-

tunity for a party to relitigate the factual basis of a court

order. United States v. Rylander, 460 U.S. 752, 756, 103 S.Ct.

1548, 1552, 75 L.Ed.2d 521, reh’g denied, 462 U.S. 1112, 103

S.Ct. 2466, 77 L.Ed.2d 1342 (1983). Consequently, the

court will not consider claims that its orders were unrea-

sonable when they were issued, but the union may

defend against the contempt citation by showing that

circumstances have arisen that make compliance with the

52a

court’s order presently impossible and that were unfore-

seen when the order was issued. Id. at 757, 103 S.Ct. at

1552-53; see also Badgley v. Santacroce, 800 F.2d 33, 36 (2d

Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93

L.Ed.2d 1003 (1987); 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 none of

the facts had changed). Defendants have the burden of

production in such cases, and this burden may be diffi-

cult to meet, especially “where the defendants have a

long history of delay and the plaintiffs’ needs are

urgent.” Badgley, 800 F.2d at 36; 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.). An impossibility defense will not lie where the defen-

dant cannot demonstrate that he has made diligent efforts

to comply with the order.

“A person charged with civil contempt is entitled to

notice of the allegations, the right to counsel, and a

hearing at which the plaintiff bears the burden of proof

and the defendant has an opportunity to present a

defense.” United States v. Yonkers, 856 F.2d 444, 452 (2d

Cir.1988). Under Local Civil Rule 43(b), a district court

need not take oral evidence if the alleged contemnor does

not demand a hearing. In this case, the union has not

requested a hearing, and in light of the great volume of

evidence submitted by the parties and the substantial

amount of uncontested evidence, the court does not find

53a

it necessary to hold a hearing and will decide this motion

on the parties’ submissions.2

B. Methodology

Both plaintiffs and the union use statistical experts to

present their evidence regarding the contempt motion,

and each expert attacks the credibility and methodology

of the other. The statistical evidence forms the basis of the

plaintiffs’ case, so the court finds it necessary to assess

the validity of the statistical studies. For over a decade, in

his role as an expert for Local 28, Dr. Richard Buchanan

has used statistics in a misleading manner. At one point

he used methods that were “so clearly misdirected as to

lead to the conclusion thet they were used in a conscious

effort to result in depressed findings.” EEOC v. Local

638. . . Local 28 of Sheet Metal Workers’ Int’l Ass’n, No. 71

Civ. 2877, Memorandum and Order, slip op. at 4 (S.D.N.Y.

Aug. 31, 1983) (Werker, J.). At another, he “lost his cred-

ibility when he attempted to use statistics to explain

away every compliance problem that defendants had,”

EEOC v. Local 638 . . . Local 10, No. 71 Civ. 2877, Report

and Recommendation of Special Master David Raff at 46

* The contractors argue that they are entitled to discovery

or a hearing if the court orders implementation of the hiring hall

and work share plan. The relief in this case is ordered against

the union, not against the Contractors’ Associations. The

contractors have been brought in as defendants to ensure that

the relief ordered against the union is as complete as possible

and to allow the contractors to play a role in shaping the relief to

the extent that it affects them. Consequently, the contractors are

not entitled to discovery or a hearing.

54a

(S.D.N.Y. Jan. 19, 1993) (Carter, J.), and gave opinions that

“defie[d] common sense,” id. at 49-50.

In the report submitted by the union in response to

the plaintiffs’ contempt motion, Dr. Buchanan continues

his practice of attempting to mislead the court. In his

haste to criticize the plaintiffs’ expert, Dr. Bernard Siskin,

Dr. Buchanan often fails to familiarize himself with the

data and to understand Dr. Siskin’s methods. For exam-

ple, Dr. Buchanan claims that Dr. Siskin did not take into

account the fact that the northern counties of New Jersey

demerged from Local 28 in June 1991, and that as a

consequence Dr. Siskin’s data for that year is tainted by

the inclusion of people who were no longe

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