Opinion
90 Civ. 5722 (CSH).
August 2, 2007
MEMORANDUM OPINION AND ORDER
This case is before this Court on remand from the Second Circuit, as directed in a summary order reported at 2007 WL 1157143 (2d Cir. Apr. 18, 2007), familiarity with which is assumed.
In that order the Court of Appeals, reversing this Court, adjudicated defendant District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America ("the District Council" or "the Union") in contempt of the Consent Decree previously entered in the case. Specifically, the Second Circuit held that the Union violated the Consent Decree when in 2001 it failed to give the government, plaintiff in the action, prior notice of the Union's intent to enter into collective bargaining agreements ("CBAs") with associations of contractors which changed the Job Referral Rules incorporated into and forming an integral part of the Consent Decree. The Court of Appeals remanded the case to this Court for the fashioning of an appropriate remedy.
CBAs in the industry are frequently entered into by the District Council, acting as the bargaining agent for its constituent local unions, and associations of contractors acting as bargaining agent for its member contractor companies. The CBAs typically run for five years. The Job Referral Rules forming a part of the Consent Decree were first changed in the CBAs negotiated in 2001. Those changes were reeanacted in CBAs negotiated in 2006. The contempt litigation in this Court and then in the Court of Appeals arose solely out of the District Council's failure to give the government prior notice of its intention to enter into the 2001 CBAs. But the issue of remedy following remand clearly implicates the 2006 CBAs, which are currently in effect.
That question remains sub judice. The government and the Union have filed briefs. The Court granted the motions of several contractors' associations and parties to the 2006 CBAs ("the Intervenors") to intervene as of right on the issue of remedy. The government, on the one hand, and the Union and Intervenors on the other, take differing positions as to how the Union's contempt of the Consent Decree, as adjudicated by the Court of Appeals, should be remedied by this Court. That dispute about remedy has spawned a subsidiary dispute about discovery. The government wishes to take discovery before responding to the written submissions of the Union and the Intervenors. "Specifically, the Government seeks the authority to issue document subpoenas and take depositions of the witnesses whose declarations were included as part of the most recent submissions to the Court." Government Letter dated June 4, 2007 at 1. The Union and the Intervenors oppose the requested discovery. That satellite dispute is also sub judice.
In its main brief on the remedy issue, the Union argues in Point I that the more sweeping remedies advocated by the government should be rejected "in favor of a remedy appropriate to the de minimis effect of the changes negotiated in job referral rule 5(B) in 2001." Union's Br., at 2. In Point II, the Union agues that "[a]nother fact that bears on the remedy to be entered here is that the Consent Decree expired on June 6, 2006, seven years after the term of the IRO ended." Id. at 8. The Union makes that assertion in aid of the proposition that under Second Circuit case law, "a district court can not extend the term of an expired consent decree, because the court lacks power over the parties of [ sic] an expired decree, and because it can not impose terms on the parties they have not agreed to in the decree." Id. at 12.
"IRO" stands for "Investigations and Review Officer," a position created by the Consent Decree and filled, on the parties' consent, by Kenneth Conboy, a former judge of this Court, now in private practice.
The question of whether the Consent Decree presently exists has obvious implications for remedying the effects of the Union's earlier breach of its terms. Accordingly the Court directed counsel for the government and the District Council to file separate briefs on that question. Those briefs are at hand and the question is ripe for decision.
I. BACKGROUND
I begin the analysis with the only two facts upon which the government and the District Council agree: the termination of the IRO's term of office occurred on June 6, 1999; and June 6, 2006 is seven years after that termination. The core question on this motion is the effect, if any, of that latter date upon the continuing existence of the Consent Decree. The government's position is that the effect of the seventh anniversary of the IRO's departure upon the Consent Decree is limited to a specific notice provision in Paragraph 12; the Decree's fundamental purposes remain in full force and effect; and those purposes inform an appropriate remedy for the Union's contempt. The Union, for its part, regards the seventh anniversary of the IRO's termination as the death knell of the Consent Decree; hence the previously quoted contention in its brief: "the Consent Decree expired on June 6, 2006, seven years after the term of the IRO ended" (emphasis added). I note, however, that while stating repeatedly throughout its brief that the "consent decree" expired, the Union also acknowledges that Paragraph 2 of the Decree, which "permanently enjoined" "current and future" District Council and local union officers and members from the prohibited racketeering activity and associations with organized crime, continues to remain in force. The Union concedes that "permanent injunctive language is permanent in nature by its terms." Id. at 9. Thus, it appears the Union actually means to paint with a more narrow brush, its core contention being that certain provisions in the Decree have expired because the Decree should not "be read as establishing a permanent injunction as to terms not specifically denominated as such (compare with paragraph 2 of the Decree)." Union's Reply Br., at 6 (refuting the government's contention that the Decree should be read in that fashion).
The circumstances surrounding the termination of the IRO's tenure are described in a prior opinion reported at 1999 WL 386935 (S.D.N.Y. June 11, 1999).
Accordingly, if during a future year it was shown that a District Council officer maintained a clandestine but close business and personal relationship with the consigliere of an organized crime family, presumably the Union would agree that a violation of a still-existing Consent Decree had occurred. (I employ this fanciful and unlikely hypothetical solely for the purpose of making the point).
The source of this aggravating Seven Year Itch is Paragraph 12 of the Consent Decree, which provides in full:
Future Practices. The parties intend the provisions set forth herein to govern the District Council's practices in the areas affected by this Consent Decree, now and in the future. The District Council shall give prior written notice to the Government and to the Investigations and Review Officer of any proposed changes to the By-Laws. In addition, the District Council shall inform the Government and the Investigations and Review Officer of any changes in any rules or procedures adopted or implemented pursuant to paragraphs 4(g), 4(h), 4(i)(3), 5, 9(c), and 10 of this Consent Decree. For a period of seven (7) years after the termination of the Investigations and Review Officer's term of office, the District Council shall continue to give prior written notice of any such proposed change to the Government. If the Investigations and Review Officer or the Government objects to the proposed change as inconsistent with the terms or objectives of this Consent Decree, the change shall then not occur, provided that, upon such objection the District Council may apply to the Court for a determination as to whether the proposed change is consistent with the terms and objectives of this Consent Decree.
Consent Decree ¶ 12 (emphasis added).
We must now step back and place these provisions in the greater context of the complete Consent Decree. The District Council of New York City and Vicinity is one of several regional councils within the parent United Brotherhood of Carpenters and Joiners of America. As the several regional district councils are the constituent members of the national union, so local carpenters' unions are the constituent members of a district council.
In 1990 the Federal government had become convinced that organized crime had infiltrated, corrupted and controlled the District Council and certain of its constituent local unions. Accordingly, in that year the government filed this civil RICO action against the District Council, certain of its officers, and other individuals alleged to be active in organized crime. The action sought injunctive and related equitable relief. Trial began but was terminated by the entry of the Consent Decree, filed on March 4, 1994.
In the government's view, one of the most flagrant and serious manifestations of the unions' corruption by organized crime involved the job referral system, by which union carpenters and shop stewards are assigned ("referred") to a particular construction jobsite. When organized crime controlled that system, favoritism, no-show jobs, and other improprieties abounded, to the detriment of honest carpenters wishing to participate in honest job referrals.
Consequently, the Consent Decree numbers among its principal objectives (1) the purging of organized crime from the District Council and its constituent locals; (2) ensuring the democratic maintenance and operation of the District Council and the local unions; and (3) a thorough and lasting reform of the job referral system.
The first of these objectives is stated in principle in the fourth "Whereas" paragraph in the preamble to the Consent Decree, which recites the parties' agreement "that there should be no criminal element or La Costra corruption of any part of the United Brotherhood of Carpenters and Joiners of America (the "UBCJA"), including the District Council and its constituent local unions." That principle is implemented in practice by Paragraph 2 of the Consent Decree. Paragraph 2, captioned "Permanent Injunction against Racketeering Activity," provides:
The 17 local unions are then identified by number in this paragraph of the preamble. The reference in that paragraph to the national union is interesting, because the national union was not named as a defendant in the government's RICO complaint and no officer or attorney representing the national union signed the Consent Decree. But these facts are not relevant to the present motion; nor have they caused any complications during the post-Decree evolution of the case.
Paragraph 1 of the Consent Decree recites the parties' agreement that this Court has subject matter jurisdiction over the case and personal jurisdiction over the defendants. While parties to litigation cannot by their agreement confer subject matter jurisdiction upon a federal district court, in the case at bar that jurisdiction is conferred by the RICO statute.
All current and future officers, employees, and members of the District Council and its constituent locals are permanently enjoined:
a. from committing any act of racketeering activity, as defined in 18 U.S.C. § 1961;
b. from knowingly associating with any member or associate of any La Cosa Nostra crime family or any other criminal group, or with any person prohibited from participating in union affairs (hereinafter collectively referred to as "barred Persons"); and
c. from obstructing or otherwise improperly interfering with the work of the officers described in this decree.
Paragraph 3 of the Consent Decree and several following paragraphs deal in varying ways with ensuring that the District Council and the local unions are run and maintained democratically. Paragraph 3 appoints Kenneth Conboy as the IRO "[t]o implement the terms of this Consent Decree." Paragraph 4 describes in detail the IRO's authority and the several areas of his responsibility.
Paragraph 5 of the Consent Decree is captioned "Job Referral Rules" and provides:
Within thirty (30) days after the entry of this Consent Decree, each of the constituent locals shall adopt the job referral rules and procedures attached hereto as Exhibit A and incorporated herein (the "job referral rules"). The constituent locals shall make all job referrals in accordance with the job referral rules and shall comply with the job referral rules in all respects.
The Job Referral Rules, Exhibit A to the Consent Decree, recite in their introductory paragraph that the rules are promulgated "to maintain and administer a processing system for referral of members to employment in a fair and equitable manner, and to establish records and procedures which will be adequate to disclose fully the basis on which each referral is made . . ." The Job Referral Rules that follow that introduction are detailed and precise. I need not fully recount them here.
It is useful to recall that the Second Circuit said the 2001 CBAs "at the least, significantly modified the job referral rules," and held that the Union violated Paragraph 12 of the of the Consent Decree "by failing to give the government prior notice of its intent to enter into the CBAs." 2007 WL 1157143, at *1, *2. The Court of Appeals' instruction to this Court on remand is to fashion an appropriate remedy for the Union's contempt. That issue will be the subject of later opinions. This opinion is confined to the related but separate threshold question of whether the reference in Paragraph 12 to the passage of seven years after the IRO's termination has the effect, those seven years having passed, of causing the Consent Decree, or certain of its provisions, to expire.
Paragraph 4(h) of the Consent Decree, captioned "Job Referral Procedures," provides in part: "The [IRO] shall supervise the adoption, implementation and operation of the job referral rules adopted pursuant to paragraph 5."
The genesis of the Consent Decree and the provisions I have quoted set the stage for the proper interpretation of Paragraph 12 of the Decree, which lies at the heart of the Union's contention that the Consent Decree, or certain provisions in it, have expired.
II. DISCUSSION
The Union and the government dispute how the Consent Decree should be construed. The Union contends that, at the very least, the quoted durational provision in Paragraph 12 has the effect of causing the expiration of those provisions of the Decree not "specifically denominated" as permanent, once seven years passed after the IRO left office. The government contends that the only effect of that provision is to put an end to the District Council's obligation to give the government prior notice of proposed changes to by-laws or rules, and that the rest of the Decree remains in full force and effect.
If the Union's construction is correct, then it would seem to follow as the night the day that Paragraph 5 of the Consent Decree, mandating the adoption by the local unions of the Job Referral Rules, and the Rules themselves, incorporated by reference in Paragraph 5 and attached to the Decree as an exhibit, expired by operation of the durational provision in Paragraph 12, since neither Paragraph 5 nor the Job Referral Rules are "specifically denominated" as permanent in nature. Indeed, that is the reading the Court gave the Union's contention when it ordered further briefing on the question. Consequently, I read with some surprise this disclaimer in the Union's Reply Brief at 1 n. 1:
The District Council would also respectfully correct the statement in the Court's June 18 Order suggesting that the District Council seeks an Order that the Job Referral Rules have expired. The District Council does not seek such an Order in this motion.
To which, given the Union's construction of the Consent Decree, one is tempted to ask: "Why not?" But I content myself with the observation that the Union's most recent briefs do not state clearly what particular effect it thinks a Paragraph 12-engendered expiration of certain provisions of the Consent Decree would have upon the underlying litigation concerning the proper remedy for the Union's contempt. No matter: the parties have diametrically opposite constructions of the Consent Decree. The Court must resolve that dispute, and does so in this opinion.
Accordingly the present dispute turns upon the correct construction of a consent decree. In Berger v. Heckler, 771 F.2d 1556, 1567-68 (2d Cir. 1985), the Second Circuit fashioned guidelines for that exercise:
Consent decrees are a hybrid in the sense that they are at once both contracts and orders; they are construed as contracts but are enforced as orders. . . . [T]he scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of only one of the parties to it.
(citations omitted). The last-quoted sentence evokes the familiar principle of contract law that a court's duty in construing a contract is to discern the intent of the parties, and to discover their intent the court must look first to the language upon which they agreed. The particular issue at bar involves the construction prong of the Berger analysis, not the enforcement prong.
I begin by noting that the Union extrapolates its construction of Paragraph 12 and the asserted effect of its durational provision from other paragraphs of the Decree. The Union must do this, because there is no provision in Paragraph 12 or elsewhere in the Decree explicitly stating that the passage of seven years after the IRO's departure causes any provision of the Decree to expire, other than the District Council's obligation to give the government prior notice of changes the Union proposes to make in by-laws or rules. Apart from the italicized sentence in Paragraph 12, quoted supra, the only other references to duration in the Decree occur in the first sentence of Paragraph 12 which refers to the intended effect of the Decree's provisions "now and in the future"; in Paragraph 2, entitled "Permanent Injunction against Racketeering Activity," which states that "[a]ll current and future officers, employees, and members of the District Council and its constituent locals are permanently enjoined. . . ."; and in Paragraph 9, entitled "Term of Office," which states that the "duration of the Investigations and. Review Officer's and Independent Hearing Committee's authority" "shall extend for thirty (30) months from the date of their appointment" but may also be extended or reduced upon application to the Court.
In opposition to the interpretation advanced by the Union that an expiration date for the Decree or certain or its provisions is to be inferred from Paragraph 12 as being seven years after the expiration of the term of the IRO, the government's interpretation is that given the absence of an explicit expiration provision for the entire Consent Decree, and considering the language of permanence in Paragraph 2 and the reference to "now and in the future" in Paragraph 12, as well as the open-endedness of other requirements set forth in the Decree, the reference to seven years in Paragraph 12 applies solely to the notice requirement of that paragraph. For the reasons stated below, I agree with the government's position and hold that no part of the Decree has expired of its own force.
The District Council's construction largely takes the form of a structural argument about how the various sections of the Decree must be read together. The Union argues that because only Paragraph 2 contains the word "permanently," the concept of permanence was intended to be confined to that section. As the District Council puts it, with respect to the other provisions of the Decree, "there is no basis for permanency to be inferred. The Decree evidences the parties knew how to write a permanent injunction when it was the agreement of the parties to do so. The limitation of the express permanent injunctive language to paragraph 2, alone among the several durational provisions of the Decree, i s conclusive proof the parties did not agree any other provision was permanent." Union's Br., at 10. I do not accept that argument. To the contrary: the parties surely knew how to make an intended expiration of the entire Decree or of specific provisions in it clear, if that was their intention. For an illustration, see, San Antonio Hispanic Police Officers' Org., Inc. v. City San Antonio, 188 F.R.D. 433, 475 (W.D. Tex. 1999) (consent decree stated, "This Consent Decree shall remain in force and effect until September 30, 2002, on which date it shall expire by its own terms on that date without any action by any of the Parties or the Court."). As the government points out, the inclusion of specific durational limits for the IRO's term and the prior written notice requirement only demonstrates the ability of the parties to set time limits where they so chose. See Govt.'s Br., at 3-4.
Moreover, the Consent Decree is not a grab bag of provisions of equal specificity and scope. The permanent injunction against racketeering activity in Paragraph 2, coming on the heels of the jurisdictional provision in Paragraph 1, is a linchpin of the Decree. Paragraph 3 begins, "To implement the terms of this Consent Decree, there shall be appointed for the terms hereinafter specified (1) an Investigations and Review Officer and (b) a committee of five persons (the "Independent Hearing Committee"), from which shall be drawn panels of three Independent Hearing Committee Members ("Independent Hearing Panels")" (emphasis added). In other words, everything that follows Paragraph 2, or at the very least all the provisions concerning the IRO and Independent Hearing Committee, consist of specific rules and procedures adopted in order to implement broader anti-corruption goals, which the Decree at the outset remedied through a permanent injunction. Courts have found that language of permanence in a consent decree is important in indicating the intended duration of the decree. See Roberts v. St. Regis Paper Co., 653 F.2d 166, 172 (5th Cir. 1981) ("We must assume that the parties employed the word `permanently' because they intended the seniority provision of the decree to continue in perpetuity."). By contrast, the durational clause in Paragraph 12 concerning prior written notice is in reference to one specific requirement in the decree. As the government states in its brief, "[T]he only natural reading of the first half of the fourth sentence [in Paragraph 12] is that it modifies just the second half of that same sentence — not the preceding sixteen pages, the rest of the paragraph, and the following eight paragraphs." Govt.'s Br., at 3.
In other words, viewed from this structural perspective, the durational term of seven years included in Paragraph 12, which is smaller in scope, does not qualify or undercut the language of permanence in the more sweeping provision of Paragraph 2. Because these two durational terms do not conflict, this interpretation does not strip any provisions of the Decree of their meaning. See ABN Amro Verzekeringen BV v. Geologistics Americas, Inc., 485 F.3d 85, 102 (2d Cir. 2007) ("The rules of construction of contracts require us to adopt an interpretation which gives meaning to every provision of a contract or, in the negative, no provision of a contract should be left without force and effect.") (citing Muzak Corp. v. Hotel Taft Corp., 133 N.E.2d 688, 690 (N.Y. 1956)).
The Union also contends that "it defies common sense that the drafters of the Decree would have placed the Union in the untenable position of having to provide prior notice of operational changes, subject to government veto and Court review, for seven years after the end of the IRO's term, but continued to have the Union subject to government review, without a prior notice requirement, for an indefinite time afterward." Union's Br., at 12. But I not agree that the government's interpretation of the Decree leads to an illogical result. It does not defy common sense for the Decree to have been structured so as to phase out certain burdens on the District Council over time. The expiration of the IRO's term, prior to the expiration of the notice provision, is just such an example of a phasing out of selected provisions. While the canons of construction "forbid contractual interpretations that lead to absurd results," Gorman v. Consolidated Edison Corp., 488 F.3d 586, 596 n. 9 (2d Cir. 2007) (citation and internal quotation marks omitted), no "absurd" result arises from this interpretation.
The District Council also fails to persuade me of its interpretation of Paragraph 12's reference to "now and in the future." Anticipating that this language might pose a threat to its interpretation that concept of permanence was confined to Paragraph 2, the Union explains that this reference "must have meant something other than `permanent', because when the parties to the Consent Decree agreed that a term was permanent they demonstrated their ability to write it as such, using commonly understood permanent injunction terms of art." Union's Br., at 11. Because the IRO's term of office could be extended, the Union reads the word "future" as a "sensible way of reflecting the `term of office, plus seven (7) years.'" Union's Br., at 12. This reading, however, ignores the scope of the sentence in which "now and in the future" appears. Paragraph 12 is entitled "Future Practices," and its opening sentence reads: "The parties intend the provisions set forth herein to govern the District Council's practices in the areas affected by this Consent Decree, now and in the future." This sentence refers broadly to "the areas affected by this Consent Decree," and I read it as embracing all of the Consent Decree within its sweep. That the specific word "permanent" does not appear in the sentence in no way undermines this interpretation. In the context of the sentence, the phrase "now and in the future" displays more elegant phrasing than a reiterated use of the adverb "permanently" would achieve, without sacrificing clarity of meaning.
While courts may not enforce a decree after it has expired, see E.E.O.C. v. Local 40, Int'l Ass'n of Bridge, Structural Ornamental Iron Workers et al., 76 F.3d 76, 80 (2d Cir. 1996), they must also respect the clear language of the decree in determining whether it has expired by its own terms. In Roberts, the Fifth Circuit found that a consent decree entered into to remedy employment discrimination had not expired, even though it contained a jurisdictional provision stating that "[j]urisdiction in this action for such other and further relief as may be appropriate consistent with this order is hereby retained until January 1, 1977, unless sooner modified, dissolved or extended." Roberts, 653 F.2d at 171. As the dispute in that case arose in 1979, the defendants argued that this provision clearly indicated that the district court had been without jurisdiction to enforce the decree at that time because the decree had already by its own terms expired. The Fifth Circuit disagreed, finding that "[n]othing in [the jurisdictional clause] refers to the life of the decree itself; nor does any other provision of the decree limit in any way the period of time in which the duties and obligations embodied in the decree are to be carried out." Id. at 171. Instead, the court found that another clause in the decree "expressly declares" that the company would "permanently" utilize a system of seniority for the affected class of employees and therefore "[w]e must assume that the parties employed the word `permanently' because they intended the seniority provision of the decree to continue in perpetuity." Id. at 171-72. I find this case persuasive here, where the Consent Decree uses the word "permanently" and the phrase "now and in the future." The Decree contains no general limitation on the duration of the obligations and duties imposed by it, and its only expiration clauses clearly apply to specific provisions with limited application.
The Second Circuit's analysis in Local 40 that the term "permanent" did not "dilute the clear language of paragraph thirteen," 76 F.3d at 80, is not to the contrary, because in that case the consent decree did contain a provision unambiguously specifying an expiration date for the entire decree. The question the court addressed was whether the decree's issuance of a "permanent" injunction undermined this expiration date, and the court held that it did not.
In Vazquez v. Carver, 18 F. Supp. 2d 503 (E.D. Pa. 1998), which involved a consent decree concerning prison conditions, the defendant had made an argument similar to the one made by the Union here, contending that because the decree contained durational language specifying a monitoring period during which the defendant had to periodically update plaintiffs' counsel on its progress and submit copies of various reports, see id. at 506, the decree expired by its own terms at the conclusion of the monitoring period. The district court disagreed, holding that the existence of durational language in this one part of the decree did not mean that the decree expired by its own terms, because "the four corners of the Consent Decree contain no language regarding how long its provisions, with the exception of those relating to the monitoring period, remain in effect." Id. at 507.
The case relied upon by defendant, Patterson v. Newspaper Mail Deliverers' Union of New York, 797 F. Supp. 1174 (S.D.N.Y. 1992), is inapposite. The question in Patterson was whether the consent decree should be terminated once its stated target of 25% minority employment in the industry had been achieved. The question was not whether the decree had expired by its own terms. See id. at 1177, 1184 ("The terms and spirit of the Settlement Agreement, as well as the law of the case, dictate that the Consent Decree be extinguished upon attainment of the 25% target. That target having been attained, this Court hereby orders that the Consent Decree be vacated in its entirety.").
Furthermore, while the court in Patterson recognized that the consent decree had "permanently" enjoined the defendants, the enforceability of those provisions were qualified by the phrase "[s]ubject to the provisions herein," which the court read to mean that "the non-discrimination provisions are binding upon defendants as long as the Consent Decree remains in effect — in other words, until the Court determines that the Consent Decree is no longer needed." Id. at 1184. I do not infer from this that the court was unmoved by the use of "permanently" in the decree, but only that the court found other evidence of the parties' intention to limit the duration of the decree. Moreover, as discussed in text, the context of the court's treatment of the language was a motion to terminate. The court was quite correct in noting that "[t]he fact that paragraphs 1 and 2 are designated `permanent' is not a proscription against their termination. . . . Thus the term `permanent' does not mean irrevocable in perpetuity, and the court has the power to vacate injunctive relief that nominally is `permanent.'" Id. That is a quite different question from the one presented on this motion.
III. CONCLUSION
The Court rejects the Union's contention that the durational provision in Paragraph 12 of the Consent Decree has any effect upon any other provision of the Decree. Specifically, that provision does not cause any other part of the Decree to "expire." There is no explicit language in the Decree requiring such an effect, and no language from which it could reasonably be inferred.The Court agrees with the government's contention that the only effect of the durational provision in Paragraph 12 is to relieve the Union, seven years after the end of the IRO's term, of the obligation to give the government prior notice of proposed by-law or rules changes. Given the government's concern with the malign influence of organized crime upon these unions, and its potential corruption of the job referral system, it is impossible to conclude that the government intended this single, isolated durational provision to cause other provisions of the Consent Decree to expire. The Union's contrary construction is nothing more than an attempt to "satisfy the purposes of one of the parties," Berger, 771 F.2d at 1568; and, as the Second Circuit stressed in Berger, such attempts are not favored by courts in construing consent decrees.
While as noted supra it is not clear what impact the Union believes its construction of the Consent Decree would have upon the ongoing litigation over the remedy for its contempt, that question need not be further pursued because the Union's construction is rejected by the Court.
In consequence, all the other terms and conditions of the Consent Decree remain in full force and effect, pending decision on the Union's further motion to terminate or modify the Decree.
The government's disputed request for discovery will be resolved in a separate opinion.
It is SO ORDERED.