Opinion
71 Civ. 2877 (RLC)
December 19, 2002
ANDREW G. CELLI, JR., ELISABETH C. YAP, Of Counsel, ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK, New York, New York, for the New York State Division of Human Rights.
PHOEBE ROOSEVELT, HILLARY KLEIN, Of Counsel, MICHAEL A. CARDOZO, CORPORATION COUNSEL OF THE CITY OF NEW YORK, New York, New York, for the City of New York.
KATHERINE BISSELL, LOUIS GRAZIANO, Of Counsel, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, NEW YORK DISTRICT OFFICE, New York, New York, for Equal Employment Opportunity Commission.
EDMUND P. D'ELIA, P.C., New York, New York, for Defendant.
OPINION
The parties to this case have proposed a consent order after more than thirty years of litigation. Over the years, there has been difficulty and resistance on the part of Local 28 to end its discrimination against nonwhites. Recently, however, it appears that the Union is making sincere efforts to come to terms with its responsibilities.
The court has problems with some parts of the consent order, but overall it seems that, after having the case before this court for over thirty years and before me for over twenty, it may be time to see whether the parties can work out their problems on their own.
DISCUSSION
The proposed consent order contains several major components. First, it provides for a back pay award of 4.4 million dollars.
Second, it sets an affirmative action goal for nonwhite journeypersons at 40 percent. This percentage must be maintained for one year before the Union may petition the court to terminate the case.
Third, it provides that the Workforce Reporting System, a system designed to measure equality of work opportunities, will continue to operate for a minimum of three years (or two years under limited circumstances), even if the Union reaches and maintains the 40 percent affirmative action goal for the requisite one-year retention period.
Fourth, pursuant to the proposed order, the Union will take certain affirmative steps to provide equal work opportunities for its members. For example, the Union will be required to review on a monthly basis reports that identify contractors with statistically significant hours disparities between white and nonwhite journeypersons, and to send letters to these contractors requesting an explanation for the disparity and suggesting a meeting between the contractor and plaintiffs.
In addition, if the Union is advised of possible contractor discrimination, it will be obligated to send a letter to the contractor requesting an explanation of the alleged discriminatory conduct and suggesting a meeting between the contractor and plaintiffs. In that event, the Union will assist the member or members in filing discrimination charges with an administrative agency, such as the EEOC.
Finally, the Union will send a letter annually to its members advising them of the procedure for notifying the Union of alleged discrimination by contractors and advising members that it will assist them in filing charges with an administrative agency when discrimination is alleged.
The court is prepared to approve the proposed consent order, subject to one condition. It has come to the court's attention that, contrary to representations made by Local 28, it is possible for Union members to purchase pension credits from the National Pension Fund as part of a court ordered settlement of back pay.
The Sheet Metal Workers' National Pension Fund Plan provides, in pertinent part:
Section 1.20 Hour of Work
(a) The term "Hour of Work" shall mean each hour for which an Employee is paid or entitled to payment for the performance of duties for an Employer or each hour for which back pay, regardless of mitigation of damages, is either awarded or agreed to by the Employer. Hours of Work shall be computed and credited in accordance with Labor Regulation Section 2530.200(b).
Pursuant to this section, the Fund has stated that, where there is a back pay entitlement, a minority journeyperson may earmark part or all of this entitlement for a particular year to the Fund in order to gain a pension credit he does not currently enjoy for that year. To record such credit, the award must sufficiently identify the person to whom the award is paid, the Hours of Work, the contribution rate, and the month for which contributions are paid.
Marc Le Blanc, Fund Administrator, stated this in a letter to Jesse Strauss, special counsel for Local 25. Mr. Strauss has been negotiating the settlement of a discrimination case with the EEOC.
Of concern to the court is the possibility that the definition of back pay in the proposed consent order might preclude the use of settlement monies to purchase pension credits, because it provides (at ¶ 3) that the money is for "general remedial purposes" and that "[b]ackpay shall not be deemed actual compensation for lost wages." See Anderson v. W. Conference of Teamsters Pension Trust Fund, 1993 WL 413138 (E.D.Cal. June 22, 1993). Although the court is not convinced that Anderson is analogous to this case, out of an abundance of caution to prevent any possibility of precluding the purchase of pension credits, the court will accept the proposed consent order on the condition that back pay recipients will be able to purchase pension credits on the basis of the court's back pay award.
The parties may establish this fact in one of several ways. They may provide the court with a letter from the Fund stating that nothing in the proposed consent order would preclude eligible back pay recipients from purchasing pension credits. Alternatively, the parties may change the language of the proposed consent order to ensure that there is no ambiguity with regard to the rights of back pay recipients to purchase pension credits. Finally, if there is another way of providing the court with assurance that nothing in the proposed consent order will preclude the purchase of pension credits, the parties may pursue that course.
In tentatively approving the proposed consent order, subject to the above condition, the court strongly suggests three additional remedial measures. The court will not withhold its approval based on these, but it hopes that Local 28 will give these suggestions the utmost consideration.
First, when there are allegations that a contractor is discriminating, or a disparity of hours is found to exist, Local 28 should go beyond merely sending a letter suggesting a meeting between the contractor and plaintiffs; the Union should participate in these meetings in an effort to alleviate the situation. Active involvement by the Union would demonstrate that the letter it sends is not a mere formality, but a true indication to the contractor that it takes problems of discrimination seriously. The only reason the court does not make this involvement a condition rather than a suggestion is that the court has decided to give the parties a chance to show how they operate the proposed system in the first year.
Second, the court suggests that the computerized referral system used by Local 28, currently required only for journeypersons, also be implemented in the apprentice program to rectify the significant disparity between white and nonwhite apprentice hours.
The system would operate in accord with the referral requirements set forth in the 1983 Amended Affirmative Action Program and Order. The court notes that the core of a computerized apprentice referral and monitoring system already exists, and has been in operation for the past 18 months in Local 580.
Finally, the court urges Local 28 to incorporate into its collective bargaining agreement an explicit non-discrimination provision. Making discrimination a contract violation would be an important signal to nonwhite members that Local 28 takes seriously employer discrimination in hiring and terms and conditions of employment.