Berger v. Iron Workers Reinforced Rodmen, Local 201

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 30, 1998 Decided March 30, 1999

No. 97-7019

"COMPLEX"

Jessie Berger, et al.,

Appellees/Cross-Appellants

v.

Iron Workers Reinforced Rodmen, Local 201, et al.,

Appellees/Cross-Appellants

International Association of Bridge, Structural and

Ornamental Iron Workers,

Appellant/Cross-Appellee

Consolidated with

Nos. 97-7020; 97-7021; 97-7027; 97-7029;

97-7031 and 97-7124

Appeals from the United States District Court

for the District of Columbia

(75cv01743)

Laurence E. Gold and Victor Van Bourg argued the cause

for appellants/cross-appellees. With them on the briefs were

Sally M. Tedrow and Ellen O. Boardman.

St. John Barrett argued the cause and filed the briefs for

appellants Albert Berger, Alfonzia Berger, and Wordia W.

Parks.

John F. Dienelt and John L. Oberdorfer argued the cause

for appellees/cross-appellants. With them on the brief was

Christopher L. Killion. Melvin White, Joseph M. Sellers,

James A. Treanor, III, Douglas M. Mangel, Michael R.

Goodstein, Jonathan M. Malis, David J. Farber, David G.

Leitch, Bonnie H. Rothell, Robert B. Duncan, William C.

Edgar, Samuel G. Rubenstein, and Mark E. Martin entered

appearances.

Before: Silberman, Sentelle, and Garland, Circuit

Judges.

Opinion for the Court filed Per Curiam.

Concurring opinion filed by Circuit Judge Silberman.

Opinion concurring and dissenting in part filed by Circuit

Judge Sentelle.

Opinion concurring and dissenting in part filed by Circuit

Judge Garland.

Per Curiam: This case presents what we hope to be the

penultimate chapter in a 23-year-old litigation involving racial

discrimination by iron workers' unions against a class of

African-American construction workers. We upheld the un-

ions' liability a decade ago, and all of the remaining issues in

the case concern the remedy due, if any, to those claimants

who have thus far not settled with the unions. Although we

are reluctant to prolong this unduly protracted litigation any

longer, the district court's failure adequately to resolve the

questions presented on appeal compels us to remand many of

these challenges to the district court for further factual

findings and supporting explanation. In those instances in

which the district court's findings and explanations make it

possible for us to resolve an issue definitively, we affirm or

reverse the district court's award.

I. Background

The background of this case is set out in full in our prior

opinion, see Berger v. Iron Workers Reinforced Rodmen

Local 201, 843 F.2d 1395, 1405-07 (D.C. Cir. 1988) (Berger I),

and we see little need to repeat the details here. Suffice it to

say that in 1975 a class of African-American rodmen--

construction workers who handle and position steel rods for

reinforcing concrete and other building materials--sued Local

201 of the Iron Workers Reinforced Rodmen and the Interna-

tional Association of Bridge, Structural and Ornamental Iron

Workers for discriminatorily denying them union membership

in violation of Title VII, 42 U.S.C. s 2000e et seq., and 42

U.S.C. s 1981. Rodmen obtained work for construction em-

ployers in the Washington, D.C. area through referrals dis-

tributed at Local 201's hiring hall, and although referrals

were available to non-union "permit men," priority, along with

the other benefits of union membership, went to the union

members. See Berger I, 843 F.2d at 1405. The class pursued

and succeeded on several theories of liability at trial, but we

essentially upheld the district court's liability determination

on one theory alone.1 We held that the unions were liable for

imposing training and apprenticeship prerequisites to taking

the journeyman's examination--the entrance examination for

union membership. The class demonstrated with statistical

evidence, to which the unions offered no rebuttal, that the

educational prerequisites to taking the entrance examination

worked to discriminate against "experienced" African-Ameri-

can rodmen (those rodmen with at least two-years' experience

which, according to the class' expert, approximated 2,150

rodmen hours). See Berger I, 843 F.2d at 1414-15.2 We

reversed the district court's finding that the unions' various

__________

1 We also upheld liability for several individual claims of retalia-

tion, none of which is relevant in this appeal.

2 We clarified on rehearing that the Apprenticeship Committee

and the Training Program, which administered the educational

entrance prerequisites from 1967 to the filing of the suit in

1975 constituted a single, continuing pattern of intentional

discrimination. Central to this holding was our conclusion

that the so-called "Open Period" from February to June 1971,

during which all experienced rodmen were permitted to take

the union entrance examination (though a more difficult one),

marked a sharp break in the unions' admissions practices.

See id. at 1422-23. We thus limited the liability period to the

time between June 1971, the close of the "Open Period" and

the beginning of the Training and Apprenticeship prerequi-

sites, and the filing of the suit on October 21, 1975. See id. at

1422.

Since the trial bifurcated liability and damages, the district

court on February 15, 1989, referred the case to a Special

Master, Magistrate Patrick J. Attridge, and directed him in

an "Order of Reference" to conduct proceedings to calculate

the amount of back pay to be awarded to class members and

to determine whether class members were entitled to com-

pensatory and punitive damages and any other relief that

might be appropriate. The Order stated that the class con-

sisted of the eight named plaintiffs, and any other claimant

who could make a prima facie case that he was a member of

the class--subject to the unions' rebuttal by clear and con-

vincing evidence. It specified the applicable back pay period

as follows:

Each individual class member may present a claim for

back pay for the period commencing on the date when he

first attempted to become, or was deterred or discour-

aged from becoming, a member of Local 201 and/or the

International, and concluding on the date when he first

was allowed to take the journeyman examination, pas-

sage of which is required for membership in Local 201

__________

prerequisites, were not jointly liable with Local 201 and the Inter-

national. Liability, we said, was established only with respect to

the unions' imposition of the requirements themselves, and was not

based on the administration of the programs by the Apprenticeship

Committee and Training Program. See Berger v. Iron Workers

and the International, or was given a bona fide opportu-

nity to take the examination. However, in no event shall

the back pay period of any class member commence

earlier than October 21, 1972, which is three years prior

to the filing of the complaint in this case.

The Order also set forth procedures governing the burdens of

proof for establishing the amount of back pay and other relief

(prima facie case by claimants subject to the unions' rebuttal

by clear and convincing evidence), notice to the class, a

schedule for submitting claims, the formula for determining

back pay awards, creation of a Relief Account in which the

unions would deposit awards for each successful claimant,

adjustment of pension records, legal representation of claim-

ants at individual hearings, and status reports to be filed by

the Special Master every six months.

The parties conducted discovery in 1989, and in 1990 the

Special Master held individual trials for the 64 remaining

claimants3 and heard the parties' respective expert witnesses.

By March of 1991, 47 claimants remained, and the parties

submitted proposed findings to the Special Master. Nearly

two years later, the class filed a request for a ruling from the

district court. The district court did not respond to this

request, nor to a renewed request by the class filed in April

1993. In July 1993, the class sought a writ of mandamus

from this court compelling the Special Master to rule, which

we denied, expressing confidence (unfortunately unjustified)

that the district court would promptly issue a final order

resolving all matters covered by the Order of Reference.

When the Special Master still had not filed his report by

March of 1994 (and thus the district court obviously had not

issued a final order either), the class filed a second petition

for a writ of mandamus with this court. Finally, on April 14,

1994, three years after the parties submitted proposed find-

ings, the Special Master issued his report resolving the claims

of the 35 remaining claimants.

__________

Reinforced Rodmen Local 201, 852 F.2d 619, 620-21 (D.C. Cir.

1988) (Berger II).

3 One hundred and seventy-three claimants participated in the

damages phase originally, but many settled their claims and others

were excluded for filing untimely claims.

In making the class membership determinations, the Spe-

cial Master defined "experience" on a case-by-case basis,

rejecting the unions' contention that 2,150 hours of Local 201

rodmen experience was a prerequisite to class membership,

as well as their position that a claimant's failure to pass the

journeyman's examination is a per se bar to class member-

ship. The Special Master concluded that 11 claimants failed

to prove membership in the class, and he awarded the

remaining 24 claimants back pay, based on a formula multi-

plying the hourly rodmen wage rate for each year times the

difference between the number of hours the claimant actually

worked each year as a rodman and the number of hours he

would have worked as a union member (less any non-rodwork

interim earnings pursuant to 42 U.S.C. s 2000e-5(g)). The

Special Master derived the number representing the average

hours a claimant "would have worked"--the so-called "bench-

mark proxy"--from the pension records of Local 201, and

rejected alternative benchmark figures proposed by experts

for both the class and the unions. He also awarded prejudg-

ment interest at a rate of 6% compounded annually, awarded

22 claimants compensatory damages for mental or emotional

distress, and denied all of the requests for punitive damages.

The parties filed objections to the report, and before the

district court could rule, five of the successful claimants and

two of the dismissed claimants settled.

We denied the class' second petition for mandamus after

the Special Master issued his report in April 1994, and

assumed in that order that the district court would act

promptly on the report "in light of the long delays in this

case." The district court issued its opinion and order on

January 26, 1995. The court adopted the Special Master's

report with respect to the class-wide issues and the awards to

the 19 remaining successful claimants, making small correc-

tions in the amount of the award where appropriate, but

specifically noting that its order would not constitute a final,

appealable order until the court's subsequent order address-

ing the excluded claimants' claims issued. That March 16,

1995 order upheld the Special Master's exclusion of the nine

remaining claimants from the class, and amended the January

26 order by finding clear error, in light of the parties' 1990

stipulation to the contrary, in the Special Master's failure to

include overtime in the back pay calculations of the successful

claimants.

The next two years of this litigation involved premature

appeals by the unions and six of the excluded claimants;

although the district court indicated in its January 1995 order

that the order would become final upon issuance of the March

1995 order, the court ordered the plaintiffs to submit pro-

posed judgment orders and did not certify any of the claims

for appeal pursuant to Federal Rule of Civil Procedure 54(b).

Accordingly, this court dismissed the unions' appeal pursuant

to the class' motion, and dismissed the remainder of the

excluded claimants' appeals on its own motion. The district

court entered an order of judgment on January 3, 1997, from

which the unions, the class on behalf of the 19 successful

claimants, and three excluded claimants, appealed to this

court.

The unions challenge a number of legal conclusions and

factual findings, both class-wide and with respect to individual

claimants, in the district court's opinion (and the Special

Master's report that the opinion adopted), including: the

method for calculating the "benchmark proxy" from which

individual awards were derived; the standard of review used

to determine class membership; the conclusion that several

individuals were properly included in the class; the calcula-

tion of several class members' awards; the conclusion that

some class members did not fail to mitigate their damages;

and the award of compensatory damages and prejudgment

interest. The class members obviously defend all of those

decisions. In addition, the class argues that the district court

erroneously calculated several back pay awards in the unions'

favor; incorrectly concluded that four claimants abandoned

their efforts to join the union and forfeited their right to back

pay subsequent to their abandonment; erred by failing to

award punitive damages; and should have awarded even more

prejudgment interest. Three individual class members also

appeal the district court's decision to exclude them from the

class.

II. The Benchmark Determination

The unions advance numerous arguments against the

benchmarks chosen by the Special Master, and the conse-

quent awards of back pay to the members of the plaintiff

class. We are convinced that the Special Master, and thus

the district court, did commit clear error in two respects.

The Special Master failed to include "zero-hour" workers

(workers who for a number of years worked zero hours as

union rodmen) in the determination of the average number of

hours worked by a union rodman in the relevant time period,

and he failed entirely to address the "fixed-pie" issue raised

by the unions' expert, Dr. Farrell Bloch. First, the zero-hour

workers reflect the inherent risk in the work, and failure to

adequately account for their absence is clear error. If the

risk of injury is calculated back into the equation when

individual back pay awards are determined, it needs to be

done explicitly, and the specific experiences of individual

rodmen can be measured against the baseline risk of injury to

see if they surpass it. Individual claimants whose injury-time

exceeds the statistical average should then be adjusted down-

ward to reflect the difference between their actual experience

and the average. Second, as we explain below, the fixed-pie

analysis permits the court to determine what would have

happened in the absence of the discrimination, International

Bhd. of Teamsters v. United States, 431 U.S. 324, 372 (1977),

and the burden for showing what those conditions would have

been falls on the plaintiff, who is responsible for proving

damages.

A.The Special Master's Methodology

We review the findings of fact by the district court, includ-

ing the findings of the Special Master to the extent that they

were adopted by the district court, under a clearly erroneous

standard. See Cuddy v. Carmen, 762 F.2d 119, 123-24 (D.C.

Cir.), cert. denied, 474 U.S. 1034 (1985); 28 U.S.C.

s 636(b)(2); Fed. R. Civ. P. 53(e)(2). "The findings of a

master, to the extent that the court adopts them, shall be

considered as the findings of the court." Fed. R. Civ. P. 52(a).

The basic standard for devising back pay awards in a Title

VII case is undisputed by the parties. A court must, "as

nearly as possible, recreate the conditions and relationships

that would have been, had there been no unlawful discrimina-

tion," International Bhd. of Teamsters v. United States, 431

U.S. at 372 (quoting Franks v. Bowman Transp. Co., 424 U.S.

747, 769 (1976) (internal quotations omitted)). The Order of

Reference directed the Special Master to determine how

many additional hours class members would have worked in

the absence of discrimination, and award back pay by multi-

plying the expected hours worked by the average wage rate

in effect during the year that the class member would have

worked. The back pay period began for each individual class

member when he was denied access to the examination or

deterred from applying for the examination for union mem-

bership by the educational requirement, and ended when he

either took or had a bona fide opportunity to take the

entrance examination. No back pay award could be granted

for periods before October 21, 1972, three years before the

suit was filed, or after April 10, 1986, when the district court

issued its remedial order granting comprehensive injunctive

relief. The amount of back pay awarded to any given mem-

ber of the plaintiff class is the product of the average wage

rate in effect during the time during which the union discrimi-

nated against him multiplied by the number of hours worked

by the average rodman during that time period.

Each side put on expert testimony and presented documen-

tary evidence sponsoring a method for computing the number

of hours worked by the average rodman for purposes of

determining the proper amount of a back pay award. The

Special Master noted that one of the primary difficulties with

the calculation was the fact that the union did not employ

people, but referred them to employers, who individually

determined the terms and length of employment. The Spe-

cial Master rejected the methods proposed by the expert

witnesses in this case, Marc Bendick, Jr. for the claimants

and Daniel Quinn Mills and Dr. Bloch for the unions, and

created a method of his own based on the documentary

evidence in the record. The Special Master determined that

the best proxy for hours worked in the absence of discrimina-

tion was the hours actually worked by union members during

the years in question. He therefore examined the pension

records of Local 201 and calculated how many hours fully

employed rodmen worked on average. The Special Master

noted that the "pension records automatically take into ac-

count the unemployment levels of District of Columbia union

rodmen and the average number of days lost due to injury,

sickness and attrition." Report of Special Master, J.A. 341.

He explained his choice as follows:

From the Local 201 pension records, a representative

group of workers is readily identifiable. The representa-

tive group are those workers who received steady refer-

rals during the relevant time period, as evidenced by a

consistent number of hours worked per year. Workers

with consistent referrals worked remarkably similar total

numbers of hours for any given year. Excluded from

this group are non-representative workers, i.e., those

who for several years during the relevant time period

worked no hours at all.

By taking an average of the number of hours worked

by those engaged in full time employment and checking

that figure for ball-park accuracy against certain indica-

tors of local iron worker productivity during the relevant

time periods, the undersigned arrived at the representa-

tive or "proxy" number of hours per year that an iron

worker could be expected to work. Based upon these

indicia, and taking into account the testimony regarding

the relatively recent concept of "double breasting" [in

which contractors worked both union and non-union

crews], and having also considered all the testimony and

exhibits received in evidence, the Special Master finds

that the annual hours reasonably expected to be worked

by a member of Local 201 is as follows:

Year Hours Worked

1972 1711

1973 1557

1974 1627

1975 1447

1976 1419

Year Hours Worked

1977 1253

1978 1179

1979 1230

1980 1210

1981 1263

1982 1168

1983 1126

1984 953

1985 1397

1986 1549

See Report of the Special Master at 50-51, J.A. 342-43.

Based on his calculations, he arrived at an average of 1,339

hours per year.

B.Alleged Errors in the Master's Method

The unions argue that the Special Master committed clear

error in the method he adopted for devising a benchmark for

purposes of awarding back pay. Specifically, they argue that

he did not sufficiently explain his choice, or show why he

failed to adopt the methodology of their expert, Dr. Bloch,

which has been endorsed for Title VII remedies in the past.

Like the Special Master, Dr. Bloch used a cohort analysis

based on pension records, but he used a smaller category of

workers, those who were admitted to the union during the

period when the union discriminated against the plaintiff

class. Dr. Bloch's calculations also differed from the Special

Master's in that they included the zero-hour workers, on the

reasoning that a longitudinal analysis of the cohort should

incorporate the risk of disabling injury. Finally, Dr. Bloch

limited the number of hours that could be awarded with a

"fixed-pie" analysis. He adjusted the benchmark by adding

the total number of hours worked by all rodmen, including

union members, traveling members from another local, and

permit men (non-union workers who were referred to jobs

from the union hall). Members of the plaintiff class, he

assumed, would have become union members if the discrimi-

nation had not occurred, and would have replaced non-union

members on jobs that were referred by the union. In some

years, however, there were limited referrals to non-union

members, which Dr. Bloch assumed was due to limited em-

ployment in the industry generally. In such years, since only

a limited number of hours were available to non-union work-

ers, class members could not possibly have replaced only non-

union workers, but would also have displaced other union

members. Reflecting this, the total hours available for such

years was placed in a "fixed-pie," and the hours were divided

by the total number of union workers plus the number of

proven members of the class. The assumption is that the

hours would have been divided equally between all members.

See Declaration of Farrell Bloch Ph.D., at 9-11, J.A. 1383-85.

The unions argue that the reason the Special Master gave

for rejecting Dr. Bloch's analysis--that the cohort group for

1973, consisting of 38 individuals, was a statistically insignifi-

cant sample--was wrong as a matter of fact and as a matter

of law. The unions point out that Dr. Bloch's proxy group

included the aggregate of all 135 journeymen admitted be-

tween 1971 and 1975, and that the size of the group used by

Dr. Bloch exceeds the sample size of union and non-union

workers used by the class to establish liability in the first

instance. See Berger, 843 F.2d at 1415. The unions also

argue that the Special Master misunderstood Segar v. Smith,

738 F.2d 1249 (D.C. Cir. 1984), which he cited for the proposi-

tion that the sample was too small. They distinguish Segar

by noting that it applied to a liability decision, not a damages

decision. Further, the Segar panel's analysis took issue with

breaking cohorts into smaller and smaller subgroups, until

they did become insignificant. The unions claim that Dr.

Bloch's much larger cohort does not resemble those found

objectionable in Segar.

The unions cite a line of cases beginning with Pettway v.

American Cast Iron Pipe Co., 494 F.2d 211, 262 (5th Cir.

1974), for the proposition that matching the plaintiff class

with a comparable group is a favored method of determining

what would have happened absent discrimination. See also

Green v. United States Steel Corp., 640 F. Supp. 1521, 1526-

29 (E.D.Pa.1986) (calculating damages based on comparable

class, and adjusting cohort class for attrition rate), modified

on other grounds, Green v. USX Corp., 843 F.3d 1511 (3d Cir.

1988), vacated USX Corp. v. Green, 490 U.S. 1103 (1989);

Stewart v. General Motors Corp., 542 F.2d 445, 453-54 (7th

Cir. 1976), cert. denied, 433 U.S. 919 (1977) (same). They

also cite a series of cases that have adopted the comparison

group methodology in determining Title VII remedies in the

construction industry. See Hameed v. International Ass'n of

Bridge, Structural and Ornamental Iron Workers, Local

Union No. 396, 637 F.2d 506, 520-21 (8th Cir. 1980); Rios v.

Enterprise Ass'n Steamfitters Local 638 of U.A., 651 F. Supp.

109, 111-12 (S.D.N.Y. 1986), modified and remanded, 860

F.2d 1168, 1177 (2d Cir. 1988).

The class counters that we should adopt the Special Mas-

ter's analysis, and argues that if he erred, he did so on the

low side, because the total he reached, 1,339 hours, was well

below the 1,400-hour estimate published by the Institute of

Ironworking Industry. The Special Master as trier of fact

was free to accept or reject expert testimony, and was free to

draw his own conclusion. See United States v. Jackson, 425

F.2d 574, 577 (D.C. Cir. 1970); Powers v. Bayliner Marine

Corp., 83 F.3d 789, 797-98 (6th Cir. 1996); Michel v. Total

Transp., Inc., 957 F.2d 186, 192 (5th Cir. 1992); United

States v. 0.161 Acres of Land, 837 F.2d 1036, 1040-41 (11th

Cir. 1988). The Special Master rejected Bloch's figures be-

cause his cohort group was too small, and because the Special

Master did not credit the fixed-pie theory. The Special

Master found that the union could have found sufficient work

for its members, so the pie was not fixed. The class suggests

that this court can recreate the Special Master's results from

the record, and should affirm because he cannot be found to

have committed clear error.

While we agree that the use of a cohort methodology

substantially similar to that used by Dr. Bloch has met with

approval in the cases cited by the unions, those cases do not

require us to hold that the methodology adopted by the

Special Master for defining the cohort to include all union

members was clear error. The cases relied upon by the

unions establish neither a specific minimum size of the cohort

nor a particular degree of similitude needed to meet the

mandates of Title VII. We therefore hold that rejecting the

specific cohort methodology urged by Dr. Bloch was not clear

error.

C.Zero-Hour Workers

Nonetheless, the Special Master is required to establish, as

nearly as possible, what would have occurred in the absence

of discrimination. International Bhd. of Teamsters, 431 U.S.

at 372. After reading the full report submitted by Dr. Bloch,

it becomes clear why he included the zero-hour rodmen in his

calculation. "The mean based on all journeymen including

those working zero hours in a given year is appropriate to use

in the back pay calculations because it incorporates individual

attrition from Local 201 resulting from such factors as tempo-

rary illness or injury, aversion to rodmen [sic] work, a

geographic move away from Local 201's jurisdiction, or the

decision to become a contractor." Report of Dr. Farrell

Bloch at 6-7. Dr. Bloch did not include zero-hour rodmen

who had died, retired, were incarcerated or permanently

disabled, all conditions which would have limited the unions'

liability. Id. at 7. The more cursory explanation by the

Special Master does not make it clear why he removed the

zero-hour workers from the calculation, other than his feeling

that they are not representative. See Report of Special

Master at 50. By removing them from the calculus, the

Special Master removes from the equation the risk of disabl-

ing injury, or of finding another more desirable job, or

whatever other reason a person might not work full time. It

is a false assumption that all of the members of the plaintiff

class would have remained full time in the industry, given the

dangers and disincentives inherent in the work. The very

real risk that they would have been unable or unwilling to

continue working has been improperly removed. The amount

an individual would work at full employment should be multi-

plied by the likelihood that they would remain fully employed.

By leaving the zero-hour workers in, Dr. Bloch removed the

need for coming up with a figure to approximate that risk.

The historic value of that risk is represented by the zero-hour

rodmen. Discounting of this type is a common practice when

attempting to fix speculative damages. The failure to account

for the risks inherent in the industry does amount to clear

error. The Special Master did limit awards where he found

that claimants had been disabled for lengthy periods. How-

ever, as we explain in Part IV, because there is no quantifica-

tion of the amount of lost time built into the hours calculation,

it is impossible to determine when a claimant is injured for a

period that exceeds the anticipated lost time, and the Special

Master's inconsistent treatment of claimants when determin-

ing individual back pay awards shows the need for further

analysis on this factual issue. A specific number can be

calculated that quantifies the risk of injury, and then individu-

als' actual experience should be compared against that figure.

We are not deciding today that each claimant's award must

be reduced for excessive injury-time. It is only because the

district court appeared to operate on that assumption, yet

applied that assumption without sufficient facts and in an

inconsistent manner, that we are compelled to remand these

questions. In this regard, we think it is necessary to note the

interrelationship between the inclusion or exclusion of the

"zero-hour" workers in the benchmark proxy and the injury-

time calculation for each claimant. Both of course are means

of discounting back pay awards to reflect unavailability for

work during the liability period. The district court might

conclude, if he includes the "zero-hour" workers in the bench-

mark proxy to reflect the overall risk of injury, that individual

re-adjustments for individual claimants with "excessive"

injury-time would not be necessary. In other words, treating

all claimants like hypothetically average claimants might obvi-

ate the need to analyze unavailability for work due to injury

for individual claimants. We do not in any way endorse that

outcome, and indeed think the analytical differences between

the overall discounting of the proxy caused by inclusion of the

"zero-hour" workers and the specific discounting of an indi-

vidual's award caused by excessive injury-time reductions

easily could support doing both. We wish only to emphasize

the interrelationship between these two inquiries, and to

direct the district court to consider that relationship when it

resolves these issues on remand.

D."Fixed-Pie" Analysis

We now turn to the Special Master's fixed-pie analysis, and

the flawed assumption that underlies it. The Special Master

assumed that the union could have found additional work for

its members if it wanted to, had the numbers been increased

by admitting the plaintiff class. See Report of the Special

Master at 47-48. There is no evidence in the record to

suggest that there was additional work in the D.C. area for

Local 201 rodmen. In fact, the evidence on the issue of

double-breasting suggests that the portion of rodwork avail-

able to unions generally was declining, as evidenced by the

limited work available for permit men. There is no evidentia-

ry basis for the assumption made by the Special Master.

Common sense and experience suggest that a union will

attempt to bring as many projects as possible under union

control, and that it will not slow its attempts when the

additional work will be allocated to non-members, i.e., permit

men, much less when the number of hours available to union

members is declining. Nonetheless, the Special Master cited

such a determination on the part of Dr. Bloch as speculative.

The Special Master impermissibly switched the burden of

proof on this issue. If the class wished the court to award

damages on the basis of hours not referred through the hall,

it follows that they would have the burden of at least making

a prima facie showing that additional hours were available to

Local 201. Local 201 cannot be faulted for not allocating

work that was never brought under its control. The Special

Master placed the burden on the unions to prove that those

hours were not available: "There was no evidence presented

that the union would not have solicited other employment

opportunities for its members had it been faced with an influx

of members, or taken other actions to expand its piece of the

rod work 'pie.' " Report of the Special Master at 47. The

unions made a prima facie showing that the hours were not

available based on the declining hours referred out of the hall

and the evidence they introduced of the declining market

share available to the union due to double-breasting. As the

unions noted in their brief, the record showed that "[t]he

percentage of union jobs in the metropolitan Washington D.C.

area was 77% in calendar years 1973 and 1974; peaked at

89% in 1975; and then dropped precipitously to 66% in 1976

and 47% in 1977, and then gradually declined to 22% in 1984

before rising to 33% in 1986." Def. Br. at 16. We remand to

the district court to consider the effect of the fixed-pie on the

number of hours available to be allocated to the plaintiff class,

and to apply the correct burden of proof. The district court

should bear in mind the goal of recreating as nearly as

possible the situation that would have occurred in the absence

of discrimination. International Bhd. of Teamsters, 431 U.S.

at 372. That means that it should make findings as to the

number of members of the original plaintiff class who actually

would have been awarded union membership, and for any

given year calculate how many had actually gained member-

ship, and how many remained to be added into the fixed-pie

calculation. It may well be that the difference by the end of

the period is insignificant. Nonetheless, the failure to consid-

er the issue, based as it was on the flawed and factually

unsupported assumption that additional work was necessarily

available to the union, leaves us with no option but to remand.

Judge Garland's dissent takes issue with our holding that

the Special Master's failure to consider the "fixed-pie" when

calculating damages, and the district court's subsequent adop-

tion of his report, amounts to clear error. First, he argues

that the unions did not argue that the district court erred in

failing to consider this issue. The unions argued that the

district court erred in failing to adopt Dr. Bloch's methodolo-

gy. Among the points they enumerate in favor of Dr. Bloch's

analysis is the following: "Once the actual number of claim-

ants in each year was known, Dr. Bloch would adjust each

annual average so that the recalculated claimant hours did

not produce a total hours figure for all workers that exceeded

the actual total hours worked through Local 201, as derived

from the Local 201 pension records." Def. Br at 28. While it

does not use the specific term "fixed pie," as Judge Garland

notes, the argument raised by the unions' brief is the argu-

ment described by that term. The fact that the brief argued

that all of the methodology used by their expert be adopted

does not mean that we may examine either all or none of the

points raised. As we note in our opinion, it is the Special

Master's outright rejection of the issue, based on the unsup-

ported assumption that the union could have found more jobs

if it had so chosen, that we find to be clearly erroneous.

Judge Garland also misconstrues our reasoning with regard

to the assumption that the union could bring more rod work

under its control if it so chose. The fact that some 1,649 job

requests went unfilled over a 10-year period does not mean

that the union had enough work for the 173 putative class

members to be fully employed over that same 10-year period.

Fluctuations on a given day that would result in a specific job

referral being listed as unfilled are not the same as a finding

that hundreds of thousands of hours were available. As we

note, the evidence on double-breasting and the steadily de-

clining share of work available to permit men, annual drop-

offs of tens of thousands of hours, shows just the opposite.

Moreover, the work available, according even to the Special

Master's calculations, showed significant disparities over the

period. For instance, in 1972, the average rodman would

have worked 1,711 hours, in 1973, 1557 hours, and in 1974,

1627 hours. By 1977, that number had dropped to 1,253

hours, and stayed below that level until 1985, bottoming out

at 953 hours in 1984. It makes no sense to conclude a

fortiori that a union could readily have found full-time work

for 173 additional union members when its existing members

were working some 400 fewer hours per year than during the

full employment period. We agree with Judge Garland that

it is the gross hours available for referral, not trends, that are

relevant to the validity of the fixed-pie theory. While a more

detailed examination of the record, considering such factors

as an increasing percentage of class members gaining union

membership in the years in question, may once again yield

the same conclusion reached below, we cannot affirm, on the

record before us, on the basis of the court's stated reasoning,

which we find to be clearly erroneous.

III. Class Membership

A.Burden of Proof

We now turn to the issue of the burden of proof at the

remedial phase of a Title VII class action suit. Class action

lawsuits brought under Title VII are typically bifurcated into

two phases, a liability phase and a damages phase, as was

done in this case. The first phase establishes whether the

employer is liable to the class because of a pattern or practice

of discrimination. See International Bhd. of Teamsters, 431

U.S. at 359. The second phase addresses questions of class

membership and the degree of damage suffered by individual

class members. The district court, in its February 1989

Order of Reference, required each claimant to make a prima

facie showing of class membership, which could in turn be

rebutted by the defendants by "clear and convincing evi-

dence." This instruction was in keeping with D.C. Circuit

precedent, requiring the defendant to disprove class member-

ship by clear and convincing evidence at the second phase of a

Title VII class-action suit. See Trout v. Lehman, 702 F.2d

1094, 1107 (D.C. Cir. 1983), rev'd on other grounds, Lehman

v. Trout, 465 U.S. 1056 (1984); McKenzie v. Sawyer, 684 F.2d

62, 75-78 (D.C. Cir. 1982). The unions argue that a super-

vening Supreme Court case, Price Waterhouse v. Hopkins,

490 U.S. 228 (1989), decided weeks after the Order of Refer-

ence, established that the proper standard of proof in Title

VII cases is a preponderance, for both plaintiffs and defen-

dants. After careful consideration, we agree. We review this

question of law de novo. See United States of America v.

Perkins, 161 F.3d 66, 69 (D.C. Cir. 1998).4

The unions acknowledge that Hopkins involved a mixed-

motives case finding discrimination against an individual, not

a disparate-impact class action. However, they note that "in

both situations it remains for a particular individual to prove

the defendant's liability to him.... Each claimant is re-

lieved of the burden of proving that defendants discriminated

against the class, not that he is part of the class." Def. Br. at

33. This is because in the remedial stage of a class action,

"as to the individual members of the class, the liability phase

__________

4 Because this portion of the panel's decision resolves an appar-

ent conflict between two of our prior decisions and Price Water-

house v. Hopkins, it has been separately considered and approved

by the full court and thus constitutes the law of the circuit. See

Irons v. Diamond, 670 F.2d 265, 268 n. 11 (D.C. Cir. 1981).

of the litigation is not complete." Hopkins, 490 U.S. at 266

(O'Connor, J., concurring).

The class counters that the district court applied the cor-

rect burden of proof for three reasons. First, in the damages

phase of a class action suit, the defendant is already a proven

discriminator, therefore, they argue, increasing the defen-

dant's burden of proof as to class membership is appropriate.

Second, the class argues that the Hopkins case is distinguish-

able because it was the liability phase of a mixed-motives

case, not the damages phase of a class action suit. Finally,

they argue that the unions made no attempt to show a

business justification for their testing requirement, and the

court is not weighing liability. Therefore they contend, the

court should retain the clear and convincing standard estab-

lished in McKenzie.

In McKenzie, we read the Supreme Court's precedent as

requiring that once the employer was a proven discriminator,

" 'all doubts are to be resolved against the proven discrimina-

tor rather than the innocent employee.' " McKenzie, 684

F.2d at 77 (quoting International Bhd. of Teamsters, 431 U.S.

at 372). We went on to hold that the finding of liability in the

first phase of the trial established the prima facie case

against the employer, and that the employer "should be

required to rebut the plaintiffs' individual showings by clear

and convincing evidence." Id. at 77-78.

Since our holding, the Supreme Court has revisited the

issue of the burden of proof in Title VII lawsuits. In

Hopkins, the Court overturned this circuit's holding that an

employer in a Title VII sex discrimination case who had

allowed a discriminatory motive to play a motivating part in

an employment decision was required to show by clear and

convincing evidence that it would have reached the same

decision in the absence of the discriminatory motivation.

Hopkins, 490 U.S. at 238 n.2, reversing Hopkins v. Price

Waterhouse, 825 F.2d 458, 470-71 (D.C. Cir 1987). The

proposition specifically applicable to this case states that no

heightened burden is required in Title VII cases, even where

a burden shift has occurred.

Conventional rules of civil litigation generally apply in

Title VII cases, and one of these rules is that parties to

civil litigation need only prove their case by a preponder-

ance of the evidence. Exceptions to this standard are

uncommon, and in fact are ordinarily recognized only

when the government seeks to take an unusual coercive

action--action more dramatic than entering an award of

money damages or other conventional relief--against an

individual. Only rarely have we required clear and

convincing proof where the action defended against seeks

only conventional relief, and we find it significant that in

such cases it was the defendant rather than the plaintiff

who sought the elevated standard of proof--suggesting

that this standard ordinarily serves as a shield rather

than, as Hopkins seeks to use it, as a sword.

Hopkins, 490 U.S. at 253 (plurality opinion) (internal citations

omitted). While Justice Brennan was writing for himself and

Justices Marshall, Blackmun, and Stevens, Justice White

concurred in the judgment "[b]ecause the Court of Appeals

required Price Waterhouse to prove by clear and convincing

evidence that it would have reached the same employment

decision in the absence of improper motive, rather than

merely requiring proof by a preponderance of the evidence."

Id. at 260.

We think Hopkins mandates that in this case the clear and

convincing standard is inappropriate, and the ordinary pre-

ponderance of the evidence standard must apply. Hopkins

makes it clear that the heightened burden should not apply in

Title VII cases where the heightened burden would be used

as a sword not a shield. While this case may not be on all

fours with Hopkins, as the distinctions noted by the class

demonstrate, the basic principle stated by the Court applies.

Raising the burden of proof to clear and convincing evidence

is not justified in Title VII cases; instead a preponderance

applies as to all factual issues, regardless of which party

bears the burden, as in other civil actions. The Court relied

on the basic principle it articulated--in Title VII cases, the

standard burden of proof in civil cases will apply--to decide

Hopkins. The distinctions to which the class points therefore

make no difference to our determination that the preponder-

ance of the evidence standard, and not a clear and convincing

standard, should apply in this case. The burden shift itself is

sufficient to meet the Court's admonition that doubts be

resolved in favor of the employee, because the party that

bears the burden also bears the risk that he will be unable to

carry that burden due to doubts on the part of the factfinder.

With these principles firmly in mind, we now go on to

consider how that decision affects the facts in this case.

B.Disputed Findings

The district court's adoption of an incorrect standard for

the unions' rebuttal burden requires remand of the Special

Master's findings of class membership with respect to two

claimants, because we are unable to determine whether the

Master would have made the same findings if he had applied

the correct burden of proof. In the remaining disputed cases,

the validity of the Master's findings turns not on the quantum

of the parties' evidence, but on issues that can be resolved

without reference to the burden of proof. Our disposition of

the findings disputed by the parties is as follows:

1. O.C. Brown. The plaintiff class includes those experi-

enced rodmen who attempted to become, or were deterred or

discouraged from becoming, members of Local 201 during the

liability period-i.e., between June 1971 and October 21, 1975.

See Order of Reference, J.A. 216; see also Berger I, 843 F.2d

at 1411. Although there was uncontested evidence to support

the Special Master's finding that O.C. Brown was "discour-

aged and deterred from admission" to Local 201, J.A. 86, the

conclusion that this occurred during the liability period

depends upon disputed inferences from circumstantial evi-

dence. Because we are unable to determine whether the

Master would have reached the same conclusion had he

applied the correct burden of proof, we remand Brown's case

for redetermination.

2. Silburn Francis. There was conflicting testimony and

other evidence as to whether Silburn Francis sought union

membership during, rather than after, the liability period.

See J.A. 400-04. Because the Special Master weighed this

evidence according to an incorrect standard, we remand for

redetermination under the correct burden of proof.5

3. John Offer. The unions do not dispute that John Offer

sought union membership in June 1972. They contend, how-

ever, that this "predat[es] the critical period," which they

define as October 21, 1972 to October 21, 1975. The unions

are mistaken as to the start of the liability period. October

21, 1972 starts the period for which the remedy of back pay is

available under 42 U.S.C. s 1981. See Order of Reference,

J.A. 216. However, as Berger I held, membership in the class

is established by having sought (or having been deterred from

seeking) entry into the union "from the end of the Open

Period [June, 1971] until the filing of suit on October 21,

1975"--notwithstanding that back pay may not be awarded

for the early part of that period. See 843 F.2d at 1422. See

generally Thomas v. Denny's, Inc., 111 F.3d 1506, 1513-14

(10th Cir. 1997) (discussing distinction between a liability

limitation period, which may effectively be extended by a

continuing violation, and "the period within which damages

can be recovered," which is fixed by statute).

The unions also contend that Offer was ineligible for the

Apprenticeship Program for the "lawful reasons" that he

could not meet that Program's educational (high school diplo-

ma) and age requirements. However, because Berger I es-

tablished that the Apprenticeship Program itself was an

unlawful prerequisite to union membership for experienced

rodmen, see 843 F.2d at 1414, 1421, that Program's own

prerequisites are irrelevant. Offer's membership in the class

is affirmed.

__________

5 In making his determination of the appropriate back pay

period for Francis, the Special Master noted that Francis was told

he could not apply for membership until he was a U.S. citizen. J.A.

404. Since discrimination on the basis of citizenship was neither

alleged in the lawsuit nor made a part of the liability finding in

Berger I, on remand it should play no part in determining Francis'

class membership or eligibility for back pay.

4. Wordia Parks. Wordia Parks appeals from the Spe-

cial Master's finding that he abandoned efforts to join Local

201 prior to the eligibility period, and that he therefore

neither sought nor was discouraged from seeking member-

ship during that period. See J.A. 461. The Special Master

also found that Parks' evidence was "inconsistent and contra-

dictory," and that he had "repeatedly impeached his own

responses to interrogatory questions." J.A. 462. The Mas-

ter's findings regarding Parks are not clearly erroneous and

therefore are affirmed.

5. Charles Dean and Eldridge Harmon. To be a mem-

ber of the class, a claimant must have been an "experienced"

rodman. The unions challenge the Special Master's finding

that Charles Dean and Eldridge Harmon were sufficiently

experienced, on the ground that the Master counted non-

union rodwork toward the number of hours required to be

regarded as "experienced." This, the unions contend, is

contrary to the "law of the case," because Berger I assertedly

established that only union-referred rodwork could be count-

ed as experience. We reject this contention because nothing

in Berger I limited the definition of experience to union-

referred rodwork. See 843 F.2d at 1414-15, 1421-22.

Counting non-union-referred experience, the Special Mas-

ter accepted the deposition testimony that Charles Dean had

the 2,150 hours of experience that all agree is sufficient to

establish the necessary experience. See J.A. 990. The Mas-

ter further noted in his report that "by 1974, Dean had

performed rodwork for seven years," J.A. 391, which is far in

excess of the two-year figure from which the 2,150-hours

number was extrapolated. See Berger I, 843 F.2d at 1414.

Because the unions offer no evidence to rebut this prima

facie case--no evidence at all that Dean's total hours were

less than 2,150--Dean's membership in the class is affirmed.

With regard to Eldridge Harmon, the Special Master ex-

pressly credited Harmon's testimony that he had worked over

2,150 hours by December 1972. J.A. 407. Although the

unions complain that the Master should have required Har-

mon to provide documentation to substantiate his testimony,

they offer no evidence to rebut Harmon's prima facie case.

Accordingly, Harmon's membership is affirmed as well.

6. Alfonzia Berger. Claimant Alfonzia Berger appeals

the Special Master's decision to deny him class membership

on the ground that he had no rodwork experience prior to

1974. Although Berger now argues that he was discouraged

from seeking the very experience that would have made him a

class member, the holding in Berger I was limited to discrimi-

nation against experienced rodmen. 843 F.3d at 1419. Al-

fonzia Berger is not a member of the class of experienced

rodmen, and the Special Master's determination is therefore

affirmed.

7. Paul Brown, James Hicks, and James Brown. The

unions contend that the Special Master should have excluded

from the class two claimants who failed the Open Period

exam (Paul Brown and James Hicks), and one claimant who

assertedly failed to take that exam despite being given an

opportunity to do so (James Brown), because those failures

allegedly demonstrate that these claimants were not qualified

to be union journeymen. Berger I, however, made clear that

the relevant question is not whether a claimant was qualified

during the Open Period, but whether he was qualified during

the liability period--which did not begin until the Open

Period ended. The union is liable, we said, "to those class

members who were experienced workers, but were delayed

entry to union ranks by the particular educational prerequi-

sites affecting them from the end of the Open Period until the

filing of suit on October 21, 1975." 843 F.2d at 1422. That is

the issue upon which the Special Master properly focused.

See, e.g., J.A. 383, 412.

Although a failure on the Open Period exam may have

rendered a claimant unqualified to enter the union during

that period, contrary to Judge Sentelle's dissent it did not by

itself render him unqualified to do so during the liability

period. The Local did not have a rule that an applicant who

failed the Open Period exam (or any other pre-liability period

exam) was ineligible to gain entry by subsequently taking and

passing the exam during the liability period. Indeed, claim-

ant Hicks was permitted to do just that, and passed the exam

in 1974. J.A. 412. Failing to pass the exam during the Open

Period is no different than having had less than 2,150 hours of

rodwork experience during that period. It may mean a

claimant was unqualified to be a journeyman at that time; it

does not mean he could not become qualified by the time of

the liability period.

Nor was a failure on the Open Period exam conclusive

evidence that a claimant would have failed had he been

permitted to take the exam during the liability period. As we

noted in Berger I, the Open Period exam was different from

and notably more difficult than the exam offered during the

liability period. During the Open Period, only 70.6% of white

examinees and 35.3% of black examinees passed the exam.

By contrast, 100% of white rodmen and 97.6% of black

rodmen who took the exam given during the liability period

passed. 843 F.2d at 1405-06 n.2.

The Special Master's determination of class membership

for these claimants is affirmed.

8. Albert Berger. Finally, claimant Albert Berger ap-

peals the Special Master's decision to deny him class mem-

bership on the ground that he failed the exam and then failed

to avail himself of an opportunity to retake the exam during

the Open Period. This denial is inconsistent with the Mas-

ter's correct decision not to exclude the preceding claimants

for the same reason. Berger's failure prior to the liability

period neither rendered him unqualified to retake the exam

during the liability period, nor indicated he would fail again if

permitted to do so. Indeed, like Hicks, Berger ultimately did

retake and pass the exam in 1974. J.A. 361. He was not

permitted to do so, however, until he completed the Training

Program--a requirement we held unlawfully discriminatory

in Berger I. 843 F.2d at 1414, 1421. Accordingly, Albert

Berger's exclusion from the class is reversed.

IV. Back Pay

The unions challenge as clearly erroneous the back pay

awards to several class members, contending that the district

court failed to deduct from these claimants' awards for cer-

tain periods of time during which, for one reason or another,

they were not entitled to recover back pay. The class

disagrees, but also challenges as clearly erroneous the district

court's decision to reduce several other awards for a period of

time during which, the class argues, the claimant was entitled

to recover.6 We consider each contested claim below.

1. James Brown. As we noted above, the district court's

Order of Reference entitles a claimant to back pay "for the

period commencing on the date when [the claimant] first

attempted to become, or was deterred or discouraged from

becoming, a member of Local 201 and/or the International,"

such period not to begin prior to October 21, 1972. The

unions contest the $242 back pay award to James Brown in

1973 because, according to Brown's own testimony, J.A. 797,

Brown first attempted to join the union in 1974. The class

counters that, although Brown's attempt to join the union in

1971 predates the applicable liability period, the 1971 attempt

gave the unions knowledge, or should have given them knowl-

edge, that Brown wanted to join the union. According to the

unions, Brown presented no evidence below that he was

discouraged from joining the union in 1972 or 1973, and the

class does not point to any such evidence in their brief. The

Special Master awarded Brown 1973 back pay without ad-

dressing this question. J.A. 375. In its discussion of class-

wide issues, the district court approved of the class' knowl-

edge theory, J.A. 528 n.10, and appeared to agree that it was

unnecessary for the Special Master specifically to identify the

__________

6 The class asserts that the unions' challenges to the back pay

awards are numerically incorrect because the challenges rely on the

Special Master's benchmark proxy, which erroneously excluded

overtime earnings. But as the unions concede, the parties stipu-

lated in 1990 that overtime should be included, and the district

court in its March 16, 1995 order concluded that the Special Master

erred and ordered the parties to recalculate the back pay figures.

J.A. 572. This presents some confusion since the specific dollar

amounts discussed in the briefs are not technically accurate. We

leave it to the district court to calculate the actual amount owed to

any claimant consistent with the correct back pay figures, including

overtime.

date on which a claimant first attempted to become a union

member, or was discouraged from doing so, since the Special

Master implicitly did so when he determined the years of

applicable back pay for each claimant. In its discussion of

Brown's award, the district court adopted the Special Mas-

ter's findings without further comment. J.A. 547.

We think the 1973 back pay award to James Brown is

clearly erroneous. Despite the district court's apparent ac-

ceptance of the class' "knowledge" theory, the district court's

Order of Reference authorizes back pay only for those claim-

ants who attempted to join the union, or were discouraged

from doing so, within the relevant period--not, as the class

would have it, those who did nothing during that period, but

whom the union knew or should have known wanted to join

because of prior attempts. Although evidence of discourage-

ment in joining would be sufficient, the class points to no such

evidence as to Brown. And we think the district court's

suggestion that the Special Master implicitly found discour-

agement from whatever date that he began the back pay

award is too much of a stretch, even for deferential review.

We note that the district court's resolution of this award is

not affected by our instruction to the court on remand to

apply the correct burden of proof as to class membership,

since the complete absence of evidence supporting Brown's

position entitled the unions to prevail even under the more

stringent standard.

2. Sherman Johnson. The unions challenge the 1972

award to Sherman Johnson for substantially the same reason

that they challenge James Brown's award. In Johnson's

case, however, we affirm the back pay award because the

Special Master specifically found that Johnson sought to join

the union in 1972. J.A. 434. It is true that Johnson testified

that he only sought entrance to the union in 1970, 1971, and

1973, but the Special Master acknowledged that testimonial

omission and pointed instead to Johnson's certification form,

which stated that Johnson sought to join in 1972. J.A. 431

n.100. The unions do not challenge the Special Master's

findings on the certification form and thus have waived any

objection to it. We therefore affirm the 1972 award to

Johnson, subject of course to any necessary re-calculation if

the district court alters the benchmark figures on remand.

3. Robert Posley. The unions challenge the back pay

award to Robert Posley for the portion of 1974 (29%) in which

he did not have 2,150 hours of Local 201 union experience.

The class' only response is that the Special Master did not err

by measuring experience in union and non-union hours. As

we held above, although we agree with the class that experi-

ence can be measured in union and non-union hours, a

showing of 2,150 hours of experience is a prerequisite to class

membership. Because of the Special Master's contrary posi-

tion on this latter point, we cannot be confident at this

juncture that his conclusion that by October 1972 Posley "had

been doing iron work for both union and non-union contrac-

tors for over four years" is consistent with the 2,150 hour

prerequisite. Indeed, the Master said nothing about the

number of hours Posley worked at all. This uncertainty is

complicated by the stringent burden of proof that the Special

Master erroneously imposed upon the unions to rebut Pos-

ley's testimony. We leave it to the district court on remand

to decide whether Posley's award for 1974 is consistent with

the principles we have outlined in this opinion.

4. Randolph Jackson and Ernest Bellamy. The district

court's Order of Reference directed that a class member's

entitlement to back pay ends on "the date when he first was

allowed to take the journeyman examination ... or was given

a bona fide opportunity to take the examination." J.A. 216-

17. The unions challenge the 1975 back pay award to Ran-

dolph Jackson to the extent the award postdates Jackson's

failure of the exam in March 1975. The class challenges the

back pay award to Ernest Bellamy for the opposite reason;

they claim that the Special Master erroneously denied Bella-

my back pay for the period after September 30, 1974, the

date on which Bellamy failed the journeyman's examination.

We think it obvious that the Special Master's findings,

which the district court adopted without comment, are incon-

sistent. In discussing Jackson's award, the Special Master

awarded Jackson back pay for all of 1975, even though

Jackson failed the exam in March of that year. But in

discussing Ernest Bellamy's award, the Special Master cut off

back pay after the date on which Bellamy failed the exam,

noting the Order of Reference and the fact that there were no

challenges to the validity of the examination itself at the

merits stage. J.A. 365 & n.61. We reconcile the inconsisten-

cy by reversing the 1975 award to Jackson and affirming the

truncated award to Bellamy.

The class' sole argument in support of the contrary result

is that the Order of Reference should be read to cut off back

pay when a claimant is given a bona fide opportunity to take

the exam. The class reads "bona fide opportunity" to mean

"bona fide exam," and argues that neither Jackson's nor

Bellamy's exam was a bona fide one. The class further

argues that the Special Master implicitly credited Jackson's

contention that Ronnie Vermillion, the union business manag-

er, was lying when he claimed that Jackson failed the exam in

March 1975 because Jackson, an experienced rodmen, did not

know the steel tubing sizes. J.A. 424-25. In addition, the

class contends that the Special Master erroneously excluded

evidence that Bellamy intended to use to demonstrate that his

exam too was not a bona fide one.

We think the unions are quite correct in contending that

these arguments are really challenges to the administration of

the journeyman's exam--challenges which were not made at

the merits stage and which we cannot, and will not, entertain

at this late stage. The Special Master recognized this point

in his discussion of Bellamy's award, and in his discussion of

another claimant not part of this appeal, J.A. 398-99, but

awarded Jackson a full award because he did not believe that

Jackson's exam was bona fide. Moreover, as the unions point

out, this court has repeatedly noted that the Title VII liability

of the unions in this case is not related to the journeyman's

exam itself or to its administration, but solely to the edu-

cational prerequisites to taking the examination. Berger I,

843 F.2d at 1440; Berger II, 852 F.2d at 621. And although

we do not cast doubt on the Special Master's factual finding

that Vermillion lied to Jackson about his failure of the exam,

the Order of Reference speaks only to the fact of taking the

exam, not to the validity of the union's determination that a

claimant passed or failed the exam. And no one contests that

Jackson or Bellamy actually took the exam. Finally, the

term "bona fide" in the order of reference clearly modifies the

term "opportunity," both of which are set off by a disjunctive

from the phrase "allowed to take the ... exam." The class is

thus wrong when it argues that the unions' interpretation

would render the term "bona fide opportunity" meaningless.

Rather, to accept the class' reading would be to excise

"allowed to take the ... exam" from the Order of Reference,

converting the remedial inquiry into the altogether distinct

liability question of the bona fides of the exam. For back pay

purposes, the inquiry into bona fides in this case is limited to

examining, where appropriate, whether a claimant passed up

a legitimate opportunity to take the exam.

We therefore affirm this aspect of Bellamy's award7 and

reverse the district court's decision to grant Jackson an

award for the period following his 1975 failure. We instruct

the district court to reduce Jackson's 1975 award by the

appropriate amount, considering of course any alterations to

the benchmarks that the court might make on remand. We

note finally that although the district court's error was harm-

less for 1976, since Jackson was not entitled to any recovery

for 1976 under the current benchmark proxy, any alteration

of the benchmarks must not result in a 1976 award to Jackson

__________

7 The unions also contend that Ernest Bellamy's back pay

award for 1972 was erroneously calculated, given that his 1972 tax

return listed his earnings at $13,217, whereas the Special Master

used Bellamy's social security earning record which listed his 1972

earnings as $9,178.75. The class agrees that the district court

clearly erred in the 1972 award. On remand, Bellamy's 1972 award

should be recalculated using the correct 1972 earnings amount.

given our holding that his entitlement to back pay ended

when he took the exam.

5. Eldridge Harmon. The unions challenge the back pay

award to Eldridge Harmon for the years 1985 and 1986

because Harmon forewent the opportunity to join Iron Work-

ers Local 84 in Houston, where Harmon resided from 1976 to

1985. Local 84 is, like Local 201, an affiliate of the Interna-

tional, and the International's governing constitution provides

that a two-year member of any Iron Workers local may

obtain a "clearance card" from his local union to apply for a

transfer of membership to any other local. Harmon complet-

ed Local 84's two-year training program, but did not obtain

membership in that union because he failed to pay the

initiation fee. The unions assert that Harmon's back pay

awards for 1985 and 1986 are clearly erroneous because

Harmon failed to avail himself of the opportunity to become a

member of Local 84, which would have enabled him to join

Local 201 without having to complete Local 201's discrimina-

tory prerequisites. The unions further argue that the Special

Master's refusal to accept this argument is inconsistent with

his treatment of Edgar James, another claimant who was

denied class membership in part because of his failure to avail

himself of membership in Local 201 through a "clearance

card" procedure. J.A. 427-30. The class counters that the

unions' argument is highly speculative since the Internation-

al's governing constitution gives Local 201 the discretion to

reject a clearance card from another local union.

We affirm this aspect of Harmon's award. The Order of

Reference only requires back pay termination when a claim-

ant takes the journeyman's exam, or has a bona fide opportu-

nity to do so; it has no provision for terminating back pay in

light of a failure to avail oneself of an alternative mechanism

for becoming a Local 201 member. And although it is true

that the Special Master discussed Edgar James' failure to

take advantage of a "clearance card" procedure to gain

entrance to Local 201, that discussion focused on James'

inability to prove membership in the class. James had never

attempted to join Local 201, and the Special Master found

that James could not have been discouraged from doing so

(the alternative means of proving class membership) since

James could have joined Local 201 through the "clearance

card" procedure. J.A. 430. Harmon, on the other hand, is

clearly a member of the class because he actually applied for

membership in Local 201 and was denied (rendering the

discouragement issue irrelevant). There is thus no inconsis-

tency between the Special Master's treatment of Harmon and

James, and no basis under the Order of Reference to reverse

the award to Harmon as clearly erroneous. This is so even

though the unions were subjected to the incorrect clear and

convincing evidence standard since, under the more lenient

preponderance of the evidence standard, Harmon still would

be entitled to his award.

6. Jessie Berger, Silburn Francis, Eldridge Harmon,

Thomas Kirkland, and Sherman Johnson. The unions

assert that these five claimants were erroneously given back

pay awards for periods during which they had injuries and

were unavailable to work.8 The class counters that the

benchmark proxy figure already takes into account time off

due to minor injuries and bad weather, making it unnecessary

to reduce an individual claimant's award for those reasons.

For the same reason, the class challenges the Special Mas-

ter's reduction of Sherman Johnson's award for the one

month in 1975 during which Johnson had asthma and could

not work. The district court upheld all of these awards

without comment.

The Special Master recognized its obligation in adopting a

back pay formula to "as nearly as possible, recreate the

__________

8 The unions also claim that, because O.C. Brown testified to

his special difficulty in working in cold weather, his back pay award

also should be reduced to account for the three-month period in

which he was unavailable for work each year. Unlike the unions'

challenges to claimants who had unusually excessive injury-time, we

think this challenge to O.C. Brown's award is more appropriately

resolved under the duty to mitigate doctrine, which we discuss

below.

conditions and relationships that would have been had there

been no unlawful discrimination." International Bhd. of

Teamsters, 431 U.S. at 372. The Special Master's proxy does,

as the class contends, factor in the "average number of days

lost due to injury, sickness, and attrition." J.A. 341. But the

Teamsters obligation arguably requires the district court to

modify the benchmark proxy for any claimant whose absen-

teeism is so extreme as to be beyond the proxy's statistical

average. The Special Master recognized as much in the case

of Van Edward Lewis, whose three-year shoulder injury

represented an "extensive period of unemployment due to

injury [that] falls outside our statistical model of reasonable

hours" developed in the benchmark proxy. J.A. 445. The

problem, however, is that neither the Special Master nor the

district court explained the extent to which the "statistical

model of reasonable hours" factors in absenteeism due to

injuries. Consequently, the district court had no objective

basis on which to determine when a claimant's injury-time

was sufficiently excessive to render it beyond the statistical

average.

It is not surprising, then, that the analysis below is an ad

hoc, internally inconsistent evaluation of the back pay calcula-

tion for claimants who suffered injuries during the back pay

period. For example, the Special Master reduced Eldridge

Harmon's back pay for the one month that he could not work

due to a back injury, J.A. 409,9 and reduced Sherman John-

son's back pay for the one month that he could not work due

to an asthma condition. J.A. 144. At the same time, the

Special Master ignored the evidence relating to Jessie Ber-

ger's 12-week prostate surgery recovery in 1974, J.A. 367,

__________

9 The unions contend, and the class concedes, that the Special

Master erroneously stated that Harmon's injury began in Novem-

ber 1974, when it in fact began on September 28, 1974. Since the

difference between a one-month and a three-month injury might be

significant in determining the amount of back pay reduction, if any,

we reverse for clear error the district court's finding that Harmon

was injured in November of 1974. Also, the unions are correct that

Harmon's interim earnings for 1974 were $10,299, and not $8,316, as

the Special Master clearly erroneously found. J.A. 1501-03; 409.

ignored evidence relating to Silburn Francis' six-week injury

in 1980 after a rod struck him in the stomach, J.A. 405, and

ignored evidence of Thomas Kirkland's six-week back injury

in 1976, awarding full back pay for the relevant period to each

claimant. Clearly, if a one-month injury warrants a reduc-

tion, so too must injuries lasting six and twelve weeks. But

we, like the district court, have no objective basis on which to

resolve the inconsistency because there has been no finding

as to the statistical injury average or how long an injury must

last to go beyond that average.10 We therefore remand to the

district court for a determination of the average injury-time

built into the benchmark figures, and a thorough inquiry into

whether each challenged award involves a claimant whose

injury-time exceeds that average.

There is one back pay challenge, however, that we can

partially resolve now. The district court awarded Thomas

Kirkland a full back pay award for 1976, even though Kirk-

land stipulated that he was unable to work for the six weeks

when he had a back injury and was therefore not asking for

back pay for that period. J.A. 660. The award is therefore

clear error; we remand for the district court to reduce

Kirkland's award to reflect the six-week injury.

7. John Thomas. The class challenges the district court's

denial of back pay to John Thomas for the years 1973 to 1975.

The sole basis on which the Special Master and the district

court denied back pay for this period was that Thomas'

pension records show steady and full-time employment during

__________

10 The Special Master also appears to have adopted conflicting

methods for reducing back pay because of excessive injury-time.

In some instances, he reduced the benchmark proxy for the rele-

vant period by the percentage of time during which the claimant

was unavailable for work, and subtracted the claimant's actual

work-time from the reduced benchmark. See, e.g., J.A. 436 (Sher-

man Johnson). However, on other occasions he simply reduced the

earnings shortfall (the final back pay award) by the percentage of

time during which the claimant was unable to work. See, e.g., J.A.

409-10 (Eldridge Harmon). On remand, we instruct the district

court to apply one method of injury-time reduction consistently, and

to explain the basis for picking that method.

that period. But the class is correct that steady employment

only deprives a claimant of back pay if the earnings from that

employment exceed the benchmark earnings for that year.

The Special Master did not conduct the necessary analysis,

and as the class demonstrates, it appears that Thomas' earn-

ings for each year between 1972 and 1975 fell short of the

benchmark amount. The unions concede the class' general

argument, but argue that the district court did not err by

denying Thomas an award for 1973 because Thomas' employ-

er for that year reported the maximum amount ($10,800) that

any single employer was required to report for FICA taxes.

The class counters that the question is whether Thomas

earned less than the $13,917 benchmark in 1973, which ac-

cording to their calculations, he did.

The denial of all back pay for 1972-75 years is clear error.

We remand Thomas' award for the district court to carry out

the analysis and award the appropriate back pay pursuant to

the method used to resolve the other claimants' awards. In

this regard, the 1973 award is no different from the 1972,

1974, and 1975 awards that the unions concede were errone-

ously denied to Thomas. We leave it to the district court to

determine whether, as the class contends, Thomas' 1973

earnings result in a short-fall entitling him to an award for

that year. This calculation may obviously be affected by any

alteration to the benchmark proxy figures on remand.

8. Charles Dean. The class also argues that the district

court's determination that Charles Dean was admitted to

Local 201 in January 1981 is clear error; the record clearly

shows he was admitted in January 1982, and the unions

concede the class' argument. If the district court does not

alter the benchmarks on remand, or lowers them, this error is

of no consequence because Dean's 1981 earnings exceed the

current benchmark. However, if the benchmarks are raised

on remand such that Dean would otherwise be entitled to an

award for 1981, we instruct the district court not to apply its

clearly erroneous finding to deprive Dean of an award.

V. Mitigation

The unions challenge many of the Special Master's back

pay awards on the ground that the claimants failed to miti-

gate their damages adequately. Under Title VII, "[i]nterim

earnings or amounts earnable with reasonable diligence by

the person or persons discriminated against shall operate to

reduce the back pay otherwise allowable." 42 U.S.C.

s 2000e-5(g). This creates a statutory duty to minimize

damages on the part of Title VII claimants, which requires

them "to use reasonable diligence in finding other suitable

employment." Ford Motor Co. v. EEOC, 458 U.S. 219, 231

(1982).11 The victim of discrimination, however, is "merely

required to make 'reasonable efforts' to mitigate his loss of

income, and only unjustified refusals to find or accept other

employment are penalized under this rule." Oil, Chem. &

Atomic Workers Int'l Union v. NLRB, 547 F.2d 575, 602

(D.C. Cir. 1976). "[T]he employee is held ... only to reason-

able exertions in this regard, not the highest standard of

diligence." NLRB v. Madison Courier, Inc., 472 F.2d 1307,

1318 (D.C. Cir. 1972) (Madison Courier I) (internal quota-

tions and citations omitted).

A claimant "forfeits his right to back pay if he refuses a job

substantially equivalent to the one he was denied." Ford

Motor, 458 U.S. at 232. But "the unemployed or underem-

ployed claimant need not go into another line of work, accept

a demotion or take a demeaning position." Id. at 231. Nor is

he "required to accept employment at a great distance from

his home." Oil, Chem. & Atomic Workers, 547 F.2d at 604.

On the other hand, a claimant may reasonably conclude that

he should lower his sights and seek other work, including

work outside the industry. NLRB v. Madison Courier, Inc.,

505 F.2d 391, 396 (D.C. Cir. 1974) (Madison Courier II).

"The claimant," after all, "cannot afford to stand aside while

the wheels of justice grind slowly toward the ultimate resolu-

__________

11 The back pay provisions of Title VII were modeled on those

of the National Labor Relations Act (NLRA), and the Supreme

Court has therefore applied principles developed in the NLRA

context to Title VII remedies. See Ford Motor, 458 U.S. at 226 n.8.

tion of the lawsuit. The claimant needs work that will feed a

family and restore self-respect." Ford Motor, 458 U.S. at

221. Indeed, a claimant "may be required ... to 'lower his

sights' by seeking less remunerative work after he has unsuc-

cessfully attempted for a reasonable period of time to locate

interim employment comparable with his improperly denied

position." Madison Courier I, 472 F.2d at 1321.

As the above discussion suggests, the elements of the

mitigation doctrine can create a dilemma for a claimant. As

we said in Madison Courier I,

If the discriminatee accepts significantly lower paying

work too soon after the discrimination in question, he

may be subject to a reduction in back pay on the ground

that he willfully incurred a loss by accepting an unsuit-

ably low paying position. On the other hand ... if he

fails to 'lower his sights' after the passage of a reason-

able period of unsuccessful employment searching, he

may be held to have forfeited his right to reimbursement

on the ground that he failed to make the requisite effort

to mitigate his losses.

Id. Because of this dilemma, we held that "courts must be

careful when applying" the mitigation doctrine, and that "it

would not be unreasonable ... to resolve doubts in this area

in favor of the innocent discriminatee." Id. "[T]he burden of

establishing facts in mitigation of the back pay liability" is

therefore upon the violator. Id. at 1318; accord Oil, Chem. &

Atomic Workers, 547 F.2d at 603.

In addressing the unions' mitigation challenges, we are

hampered by the Master's failure to address the mitigation

question with respect to a number of the challenged claim-

ants. Where the Master has been silent, we can uphold an

award only if the unions offer nothing to support a claim of

non-mitigation other than an inadequate legal theory, and

hence fail to satisfy their burden of proving non-mitigation.

A.

We begin with four claimants whom the unions contend

"did not consistently seek Local 201 referrals" between 1972

and 1975, when there was a surfeit of work available through

the Local. Def. Br. at 54. Because the Local had more than

enough work during this time for any permit man who

wanted it, the unions contend that a failure to seek referrals

from the union constituted a failure to mitigate. See id. at

54-55, 59-60.

1. O.C. Brown. Surprisingly, the first claimant the un-

ions offer as an example of one who failed to seek referrals

from the Local is O.C. Brown, who the unions concede did

seek and receive many referrals between 1972 and 1978. Id.

at 56. The problem with Brown, the unions assert, is that he

held few of those referred jobs for very long because of his

"chronic, voluntary, premature quits," and that as a result his

yearly work hours were low. Id. at 57. The Special Master,

however, credited Brown's testimony on the subject and

found that the reason for those "quits" was that "even when

referred, Brown was fired on instructions from the business

agent [for the union] solely because of his status as a permit

man...." J.A. 382. The unions cite only one specific exam-

ple of a "quit," Brown's decision to leave a job at Wahib Steel

because of a dispute with a foreman. But the Master found

that "Brown was not unemployed after quitting Wahib but

appears to have immediately obtained employment" from

another employer. J.A. 381. Accordingly, the Master con-

cluded that no deduction from Brown's back pay award was

required, and we cannot find that conclusion clearly errone-

ous.

As noted in Part IV above, however, the unions have

asserted another ground for deduction in Brown's case: that

Brown voluntarily absented himself from the workforce every

winter. There is evidence in the record to support this

assertion. See J.A. 772-75. Although there may be reasons

why such absences do not constitute a failure to mitigate (e.g.,

because little rodwork was done in the winter, a point made

by the unions' own expert, see J.A. 332), the Master did not

address Brown's seasonal absences at all, and we therefore

must remand his award for further consideration.12

__________

12 On remand, the district court should also consider the unions'

contention that Brown failed to mitigate during the period 1975-78.

2. Silburn Francis. The second claimant the unions

challenge for not seeking Local 201 referrals is, again, a

claimant who the unions concede did seek and receive refer-

rals from the union. Moreover, the unions concede that

Silburn Francis, unlike O.C. Brown, "worked high numbers of

hours through Local 201 between January 1, 1971 and June

30, 1974." Def. Br. at 57. Nonetheless, the unions contend

that Francis "achieved those hours only by working an unusu-

ally high number of different jobs," and thus was "a chroni-

cally lackadaisical worker" who could not hold a job. Id. at

56-57. Once again, the Special Master drew a different

conclusion from the same testimony and documentary record.

The Master read Francis' employment history not as indicat-

ing that he was "lackadaisical," but as "demonstrat[ing] Fran-

cis' tenacity in seeking work as an ironworker." J.A. 405.

Francis, the Master found, "made good faith and diligent

efforts to obtain employment through references from Local

201." J.A. 405. That finding is not clearly erroneous.13

3. Eldridge Harmon and James Hicks. Although El-

dridge Harmon did seek referrals from the union, he mostly

worked on non-union jobs. Similarly, James Hicks worked

for a number of non-rodwork employers. Because there was

more than enough union rodwork available during this period,

and because that work presumably paid higher wages,14 the

unions contend that claimants' failure to seek solely Local 201

work during this period constituted a failure to reasonably

mitigate. They were "not available for Local 201 referrals,"

the unions contend, when they were "working elsewhere."

Def. Br. at 60.

__________

The unions cite evidence that Brown never sought employment

from a specific company he believed would have hired him, see Def.

Br. at 64, notwithstanding that he worked few hours during that

period, see J.A. 379-80.

13 Francis' award is subject, however, to the outcome of the

remand of his class membership, as discussed in Part III.B.2 above.

14 This appears to be the unstated (and undisputed) premise of

the unions' argument.

Whether the decisions of these claimants not to seek work

solely through the Local constituted a failure to mitigate

depends on the reasons they had for taking other work. As

we noted in Oil, Chemical & Atomic Workers, it may be

reasonable for a claimant to decline an interim job from his

employer (other, of course, than the very job at issue in his

lawsuit) in favor of a lower-paying but more permanent job

from someone else. 547 F.2d at 604-05. A fortiori, it may

be reasonable to decline to leave an existing job when doing

so would only make oneself available for possible referral to a

better-paid one. We do not know whether these kinds of

considerations explain Harmon's or Hicks' decisions, however,

because the Special Master did not discuss mitigation with

respect to Harmon or Hicks at all. Accordingly we have no

choice but to remand their awards for further consideration.

B.

The unions next address the post-1975 period, which saw

employment patterns in the rodwork industry fluctuate.

"Even during this period," the unions argue, "Local 201-

referral jobs went unfilled for lack of applicants." Def. Br. at

60. The unions therefore again contend that a claimant did

not reasonably mitigate if he did not seek work through Local

201. In a set of further, sometimes contradictory arguments,

however, the unions contend that a claimant did not reason-

ably mitigate if he did not also seek union rodwork in other

cities, seek non-union rodwork, seek other construction work,

and register with government employment agencies. We

consider these individual challenges below.

1. James Brown. The unions do not dispute that James

Brown sought and received referrals from Local 201. In a

one-sentence challenge to Brown's award, however, they ar-

gue that he "did not seek work through any other Iron

Workers Local union or through any other union during 1975

and 1976." Id. at 63. That argument is insufficient to satisfy

the unions' burden. First, this kind of challenge to Brown's

1975 award directly contradicts the unions' argument--dis-

cussed in Part V.A above--that because Local 201 had more

than enough work for permit men from 1972-75, a claimant's

failure to seek work solely through Local 201 during that

period constituted a failure to mitigate.15 Nor do the unions

offer evidence that in 1976 Brown would have had a better

chance of obtaining union work in other cities than by con-

tinuing to seek referrals from Local 201. Since, as the

Master noted, Brown's strategy of seeking work through

Local 201 earned him nearly as much or more than the

benchmark wages in 1972-74, J.A. 375, and since the unions

concede "Local 201-referral jobs went unfilled for lack of

applicants" even during the post-1975 period, Def. Br. at 60,

the unions' single-sentence challenge does not meet their

burden of showing that Brown was unreasonable in continu-

ing to seek work through Local 201. Brown's awards are

affirmed.

2. Sherman Johnson. The unions contend that Johnson

should not have been awarded back pay for 1975 because he

sought no work from non-union companies, non-Local 201

unions, or non-rodwork employment during that year. Once

again, this directly contradicts their contention that 1975 was

a "full employment" year at Local 201, with plenty of work

for any permit man who wanted it, and consequently that any

__________

15 See Def. Br. at 54-55, 59-60. As noted above, the unions

contended that a claimant failed to mitigate if he took jobs with

non-union employers during this period, thus making him "not

available for Local 201 referrals when he was working elsewhere."

Id. at 60. The unions further contended that:

Local 201 was unable to fulfill employer requests that it

dispatch workers for 4,432 jobs during the period 1972-75....

Local 201 fell short of supplying workers only because it

exhausted the rodmen who were available to be referred on all

classes on its list. And, during pension years 1973 to 1976,

union members were only able to work 36%, 32%, 35% and 48%

respectively, of the hours worked by all workers referred by

Local 201. At least during this period, then, a claimant would

exercise reasonable diligence only by consistently seeking em-

ployment through Local 201, just as the union's member did.

Id. at 55.

claimant who did not seek work solely through Local 201

failed to mitigate. The award is affirmed.

3. Charles Dean. The unions argue that Charles Dean

failed to mitigate because he never applied to the leading non-

union employer, Miller & Long, during the 1975-79 period.

The unions, concede, however, that Dean did work for other

non-union firms, id. at 64, and offer no evidence that Dean

could have done better at Miller & Long. Indeed, the Master

found that Dean's actual hours during this period approached

or exceeded the benchmark figures in all relevant years.

Accordingly, the unions cannot meet their burden of showing

a failure to reasonably mitigate. The awards are affirmed.

4. Van Edward Lewis. The unions challenge Lewis'

awards for 1977 and 1979, claiming that he ceased seeking

work through Local 201 in 1976 and did not return to the

union until 1980. The unions offer no evidence, however, that

supports this claim. The portion of Lewis' testimony cited in

support says that he ceased trying to "join the training

program" in 1976, not that he ceased seeking permit man

work through Local 201. See Def. Br. at 65 (citing J.A. 736).

The Master's report does suggest that Lewis may not have

sought Local 201 work in 1979, but that is only because it

shows he worked for Miller & Long during that year--the

same non-union employer from which the unions insist

Charles Dean should have gotten his work. Accordingly, the

awards are affirmed.

5. Thomas Kirkland. Citing a less-than-clear portion of

Kirkland's testimony, the unions contend that he voluntarily

ceased looking for work during the last quarter of 1976 and

hence failed to mitigate during that period. The Master did

not address this issue at all, and we therefore remand this

portion of Kirkland's award for reconsideration.

6. John Offer. The unions challenge Offer's awards for

1975 and 1976, on the ground that he did not seek in-town

work from non-union rod companies, or out-of-town work

from union companies. The challenge to the 1975 award fails

for the same reason it failed in the cases of James Brown and

Sherman Johnson. We must remand the 1976 award, howev-

er, because the Special Master failed to discuss the mitigation

issue despite claimant's low earnings that year.

7. John Thomas. The unions challenge Thomas' awards

for 1976, 1977 and 1979 on the basis of his asserted failure to

adequately mitigate. With respect to 1976, they contend that

he principally collected unemployment compensation rather

than working. Because Thomas earned only $338 in that

year, and because the Master did not address the mitigation

issue for that year at all, we remand the 1976 award. With

respect to the remaining two years, however, the Master

noted that Thomas earned approximately 80% of the bench-

mark figure in 1977 (by working for Miller & Long) and 98%

of the benchmark figure in 1979. J.A. 480. These figures

suggest reasonable mitigation in those years, and because the

unions offer no evidence that Thomas could have done better

by seeking any other kind of employment, we affirm those

awards.

8. Ronald Tucker. The unions challenge the awards of

back pay to Tucker for 1975 and 1977, on the ground that he

did not seek work through any union other than Local 201 or

register with an employment agency. The challenge with

respect to 1975 fails for the same reason it failed in the case

of the other claimants' 1975 awards. With respect to 1977,

the Master awarded back pay to Tucker for only one calendar

quarter and noted that during that entire quarter Tucker

worked for a steel company in Baltimore. The unions have

proffered no evidence that other work would have paid more,

or that Tucker's mitigation efforts were otherwise unreason-

able. They are thus unable to satisfy their burden of showing

a failure to mitigate. The awards are affirmed.

C.

Finally, we also consider the class' challenges to the Special

Master's decision to truncate the awards of four claimants on

the ground that after certain dates those claimants "aban-

doned" Local 201. We remand two of those decisions, and

affirm the other two.

1. James Brown and Ronald Tucker. The Special Mas-

ter cut off Brown's and Tucker's back pay awards after 1976

and 1977, respectively, because they obtained non-union em-

ployment and ceased to seek union referrals. J.A. 376, 483.

We agree with the unions that this issue is properly evaluated

by applying the mitigation doctrines described above. See

Def. Reply Br. at 6, 13-14. But the Master's decision to

truncate the awards solely because the claimants chose to

keep working at alternative employment, rather than con-

stantly to seek new union referrals, misapplies those doc-

trines and requires a remand.

To infer a breach of the duty to mitigate solely from a

claimant's acceptance of other work implicates the dilemma

noted at the beginning of this Part, and creates a Catch-22

situation for the claimant. As the Third Circuit has said:

[T]he fact that a plaintiff takes a job in an unrelated field

to meet her obligation of mitigation should not be con-

strued as a voluntary withdrawal from her former profes-

sion. Otherwise, a plaintiff would be put in the intoler-

able position of choosing between foregoing a source of

earnings during the interim before trial or risking an

adverse finding on abandonment of her profession. Such

a rule would also work to the disadvantage of employers

because the scope of the mitigation obligation necessarily

would be relaxed. It is conceivable that a plaintiff,

wronged by discrimination, would decline to take a job

that would substantially mitigate damages because such

employment could be construed as an abandonment of

her former vocation.

Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir. 1987).

Here, claimants did not even choose work in an unrelated

field, as the plaintiff did in Ellis. Rather, they did just what

the unions have asserted they were obligated to do: when

unable to fill their hours with Local 201 work, they sought

and successfully obtained non-union work instead. See supra

Part V.B. To cut off their back pay now would truly be to

apply a Catch-22: claimants would have been ineligible for

back pay had they not tried to obtain non-union work, and

would now be ineligible precisely because they succeeded in

obtaining it.

It may be that a reasonable claimant would have known he

could have done even better by constantly checking with

Local 201 for referrals, although there was record evidence

that such constant checking (and the tardiness it would have

caused at the claimant's current employment) would have put

his non-union work in jeopardy. See J.A. 663, 761-62, 808-

11.16 It is also possible that having obtained non-union work,

those claimants were satisfied and had no intention of ever

returning to Local 201, although they contend they "would

have preferred to work out of Local 201 as journeymen" and

took the non-union work only because they had no choice. Pl.

Br. at 60. None of these points was discussed by the Special

Master, however, and no findings were made on either side.

Accordingly, we must remand the truncation of these awards

for further consideration and appropriate application of the

law relating to mitigation.

2. Sherman Johnson and John Offer. The Special Mas-

ter's decision to truncate the awards of Johnson and Offer

presents a different question. The Master found that John-

son's medical condition (chronic bronchial asthma) caused him

to abandon his pursuit of union referrals in 1976. J.A. 437.

Similarly, the Master found that Offer abandoned rodwork

altogether after 1976 because the work was too physically

demanding for him. J.A. 458. Although both claimants

obtained work in other fields, the Master's decision to trun-

cate their awards did not rest simply on the fact that they

took that work, but rather on his finding that the reason they

did was because they were no longer able to do the kind of

work referred by Local 201. This does not raise the Catch-

22 concern noted above, and the Master's finding was not

clearly erroneous. The truncation of these two awards is

affirmed.

__________

16 There was also testimony that returning to the Local after

taking a non-union job would have been futile, since rodmen who

worked for non-union employers were regarded as "scabs" and not

given referrals by the union hiring hall. See J.A. 903, 1095.

VI. Compensatory Damages

The unions challenge the Special Master's decision to

award compensatory damages to 18 claimants. They correct-

ly note that compensatory damages serve only to compensate

injuries that result from violations of constitutional or statuto-

ry rights, and may not be "presumed to flow from every

deprivation" of those rights. Carey v. Piphus, 435 U.S. 247,

263 (1978). "Where no injury [is] present, no 'compensatory'

damages [may] be awarded." Memphis Community Sch.

Dist. v. Stachura, 477 U.S. 299, 308 (1986).

The Supreme Court, however, has distinguished the imper-

missible award of compensatory damages--where they are

presumed merely from the violation of a right--from the

"form of presumed damages [that] may possibly be appropri-

ate ... [to] roughly approximate the harm that the plaintiffs

suffered...." Id. at 311. Similarly, in Hobson v. Wilson,

this court stated that "in appropriate circumstances the inflic-

tion of emotional distress may be inferred from the circum-

stances of the violation." 737 F.2d 1, 62 n.173 (D.C. Cir.

1984). The critical distinction made by both Memphis and

Hobson is that courts may properly infer emotional distress

from factual circumstances--and award damages to compen-

sate for that distress--but may not presume damages from a

bare violation of a statutory or constitutional right. See 477

U.S. at 311; 737 F.2d at 62 n.173.

The awards in the instant case are supported by the proper

kind of inference. There can be little doubt that claimants,

who were experienced rodmen, suffered emotional distress by

having to subject themselves to an unnecessary training

program for up to two years before being permitted to take

the union entrance exam. Those circumstances more than

adequately support the extremely modest awards granted

here, which range from $2,500 to $25,000.

The unions also complain that the Special Master granted

compensatory damages to three claimants who did not seek

them. The district court upheld those awards on the basis of

Fed. R. Civ. P. 54(c), which provides that "every final judg-

ment shall grant the relief to which the party in whose favor

it is rendered is entitled, even if the party has not demanded

such relief in the party's pleadings." J.A. 537 (Mem. Op.)

(quoting Fed. R. Civ. P. 54(c)). Although the cited rule may

provide the discretionary authority necessary to make the

awards to the three claimants, no explanation was offered as

to why the Special Master simultaneously failed to award

compensatory damages to another claimant for no reason

other than that he did "not seek compensatory damages."

J.A. 435 n.101 (Sherman Johnson); see also J.A. 451 (estate of

James McGee). Without such an explanation, we are unable

to determine whether this inconsistency reflects a rational

distinction or an abuse of discretion, and we therefore remand

the compensatory damage awards to James Brown, Paul

Brown and Silburn Francis for reconsideration and explana-

tion. With those exceptions, the compensatory damages

awards are affirmed.

VII. Punitive Damages

The class alleges that the Special Master applied an incor-

rect standard in denying them an award of punitive damages.

The Master stated that "punitive damages will be recoverable

for conduct exhibiting malice, evil motive, recklessness or

callous indifference to a federally protected right." J.A. 319

(citing Smith v. Wade, 461 U.S. 30, 52 (1983)). This is the

same standard relied upon by both the majority and the

dissent in this circuit's leading case on the issue. See Kolstad

v. American Dental Ass'n, 139 F.3d 958, 964-65 (D.C. Cir.

1998) (en banc), cert. granted, 119 S. Ct. 401 (1998); id. at 971

(Tatel, J., dissenting).17 Moreover, as we also noted in Kol-

__________

17 In this case, the class' punitive damages claim is based on 42

U.S.C. s 1981, since Title VII's punitive damages remedy was not

added to the statute until 1991, long after this lawsuit was filed. It

is nonetheless appropriate to apply the principles outlined in Kol-

stad, which was brought under Title VII, and Smith, which was

brought under 42 U.S.C. s 1983, because we have consistently

applied the same punitive damages standard under all three stat-

utes. See Kolstad, 139 F.3d at 962-65 (applying Smith and s 1981

standards in Title VII action); Barbour v. Merrill, 48 F.3d 1270,

1277 (D.C. Cir. 1995) (applying Smith standard in s 1981 action).

stad, "punitive damages 'are never awarded as of right, no

matter how egregious the defendant's conduct.' " 139 F.3d at

965 (quoting Smith, 461 U.S. at 52). Rather, they are

"awarded or rejected in a particular case at the discretion of

the fact finder." Id. (internal quotation omitted); accord id.

at 280 (Tatel, J., dissenting). We have no basis for overturn-

ing the Master's discretionary decision here.

VIII. Prejudgment Interest

Finally, both the unions and the class challenge the award

of prejudgment interest at a rate of 6%, compounded annual-

ly, for the entire period of the litigation. The unions argue

that no interest should have been awarded at all or, in the

alternative, that no interest should have been awarded for

certain periods of time. The class argues that 6% is too low a

rate, and that interest should have been awarded at a variable

rate. We reject all of these contentions and affirm the

decision of the district court.

The back pay provision of Title VII "is a manifestation of

Congress' intent to make persons whole for injuries suffered

through past discrimination," and "[p]rejudgment interest, of

course, is an element of complete compensation." Loeffler v.

Frank, 486 U.S. 549, 558 (1988) (internal citations and quota-

tions omitted). For that reason, we have held that "prejudg-

ment interest 'must be an ordinary part of any award of back

pay ... under s 1981.' " Barbour v. Merrill, 48 F.3d 1270,

1278 (1995) (quoting Williamson v. Handy Button Mach. Co.,

817 F.2d 1290, 1297 (7th Cir. 1987)). The decision as to how

to compute prejudgment interest is within the discretion of

the district court. Forman v. Korean Air Lines Co., 84 F.3d

446, 450 (D.C. Cir. 1996).

In the instant case, both sides cited a variety of circum-

stances that might support an exclusion of certain time

periods on the one hand, or a variable rate of interest on the

other. The district court, after reviewing these arguments,

chose the 6% rate for the entire period, principally on the

ground that the parties had once consented to that rate. J.A.

521-22. The unions are wrong in arguing that delays for

which they are not responsible mandate tolling of prejudg-

ment interest. See Bufco Corp. v. NLRB, 147 F.3d 964, 967

(D.C. Cir. 1998) (refusing to toll interest when NLRB may

have been responsible for delay). The class, on the other

hand, is equally wrong in contending that it was an abuse of

discretion for the district court to impose a fixed rate in large

part because of their earlier concession that such an interest

rate would make them whole. See TI Fed. Credit Union v.

DelBonis, 72 F.3d 921, 928 (1st Cir. 1995) (distinguishing

between binding effects of factual and legal stipulations). We

thus affirm the decision of the district court awarding pre-

judgment interest at the rate of 6%, compounded annually,

for the entire period of the litigation.

Silberman, Circuit Judge, concurring: We have strained

hard--perhaps too hard--to decide as much of this case as we

could. As our background section indicates, the district

court's interminable delays are inexcusable and have caused a

great hardship to the parties, particularly the class. I am

terribly concerned that our remand to this district judge is

equivalent to dropping the case into a well, and, therefore, we

should be prepared to grant extraordinary relief if there is

further unjustified delay.

It seems to me that all the district judges--the whole

district court--should assume responsibility for unwarranted

delays in the processing of cases. The court of appeals has a

rule, the September Rule, which has been vigorously en-

forced, that prevents any judge from sitting on cases in the

fall if he or she has more than three assigned majority

opinions outstanding over six months. I see no reason why

the district court could not adopt an analogous rule, more

tailored to its circumstances, that would force district judges

to process cases in a timely fashion or else be disqualified.

The court of appeals can only act episodically as cases are

brought to us; it is not our responsibility to supervise district

judges.

Sentelle, Circuit Judge, concurring and dissenting in

part: I concur in the court's opinion with the exception of

Part III.B.7, discussing the eligibility of claimants Paul

Brown, James Hicks, and James Brown. There the court

determines that failing the Open Period examination, or

failing to take it when offered, does not exclude a claimant

from class membership. The conclusions reached in the

court's opinion do not follow from our holding in Berger I.

Accordingly, I respectfully dissent.

The language quoted by the court as defining the class is

correct, so far as it goes, but it is based on an incomplete

examination of our opinion. As the majority notes, "[t]he

union is liable, we said 'to those class members who were

experienced workers, but were delayed entry to union ranks

by the particular educational prerequisites affecting them

from the end of the Open Period until the filing of suit on

October 21, 1975.' " An applicant who failed the Open Period

exam, as Paul Brown and James Hicks did, or failed to take it

despite being offered an opportunity to do so, as James

Brown did, was kept out of the union on the basis of that

failure, not on the basis of an impermissible educational

prerequisite.

In Berger I, we recognized that the rod trade has histori-

cally been apprenticeable, and noted that "it stands to reason

that on-the-job experience alone may not necessarily teach all

that a fully qualified rodman should know." Berger, 843 F.2d

1395, 1420. We pointed to the existence of the Open Period

exam as proof that the union could devise an examination that

properly tested experienced rodmen to see if they were

qualified even though they had not been through an appren-

ticeship program. "In our view, the Open Period establishes

that experience can qualify one to be a journeyman rodman,

and, not incidentally, that the Union is capable of devising

an exam that screens out insufficiently competent applicants

for journeyman status." Id. at 1421 (emphasis in original).

Under our analysis, the Union remains free, among other

things, to (1) require significant rodman experience be-

fore an applicant may be admitted to the journeyman

exam, (2) offer (cured of discrimination against experi-

enced workers) both the Apprenticeship and Training

programs, and (3) devise a more exacting or thorough

exam for rodmen who eschew classroom training to

assure that skills (e.g., reading blueprints) learned in the

classroom have been learned on the job (so long, of

course, as any such "stepped-up" exam satisfies the

bedrock requirements of job-relatedness).

Id. If we are pointing to the Open Period exam as proof that

the union could create an acceptable exam, it does not follow

that failure of that exam should not properly be deemed to

preclude someone from membership as unqualified. There-

fore the proper course for the union to take with regard to

someone who failed the Open Period examination was to do

precisely what it did, require them to take courses in an

apprenticeship program, and then administer the second test.

In Berger I, we recognized that it may have been harder, but

accepted the increased difficulty. However, one significant

factor, overlooked by the majority opinion, that may explain

the difference in passage rates between the two exams is that

the rodmen taking the second examination had just finished

taking a course designed specifically to help them pass that

examination. Rodmen who could not pass the membership

examination and were thus deemed "insufficiently competent

applicants for journeyman status" cannot show that they were

impermissibly discriminated against by the unions, and are

not properly members of the class.

Garland, Circuit Judge, concurring and dissenting in

part: I concur in the court's opinion with the exception of

Part II. In that Part, the court remands the Special Master's

benchmark determination--that is, his calculation of the

hours claimants would have worked in the absence of discrim-

ination. The questions my colleagues raise about the Mas-

ter's calculation are not unreasonable ones. But that is not

the test on appeal. It does not matter that we might have

made a different calculation had we been sitting as the triers

of fact. See Anderson v. Bessemer City, 470 U.S. 564, 573-74

(1985). Instead, to justify remand, appellants must demon-

strate that the Master's calculation was clearly erroneous.

See id.; 9A Wright & Miller, Federal Practice and Proce-

dure s 2585, at 565 (2d ed. 1995). Because they have not

done so, I would affirm the Master's determination rather

than needlessly prolong this decades-old case.

I.

In order to determine the number of hours the claimants

would have worked had they not been subject to discrimina-

tion, the Special Master consulted Local 201 pension records

to calculate the average number of hours a representative

group of union workers actually worked during the relevant

period. The court's first objection to the Master's methodolo-

gy is that he excluded from that group "those who for several

years ... worked no hours at all." J.A. 342-43. By not

including these "zero-hour" workers in calculating the hours

of an average worker, the court contends that "the Special

Master remove[d] from the equation the risk of disabling

injury, or of finding another more desirable job, or whatever

other reason a person might not work full time." Op. at 14.

The inclusion of zero-hour workers may be a reasonable

way to account for the risk that an individual claimant would

have stopped working even if he had been admitted to the

union. But it is not the only, or even the most direct, way.

The most direct way is simply to deny back pay to those

claimants who actually did stop working, rather than build

into the benchmark the statistical probability that a hypothet-

ical claimant would have done so. Not unreasonably, the

Special Master chose the direct approach.

The Master's benchmark accounted for the risks of injury

and attrition as follows. First, he included within the repre-

sentative pool those workers whose hours had been reduced

by short-term injuries or other absences. As the court notes

in Part IV, the "Special Master's proxy does ... factor in the

'average number of days lost due to injury, sickness and

attrition.' " Op. at 34 (quoting J.A. 341). Second, the Master

excluded those who had worked zero hours "for several

years," because they were not representative of union mem-

bers who were actually working during the relevant period.

J.A. 342-43.1 Finally, to ensure that a claimant who worked

zero hours did not receive a windfall, the Master reduced the

pay of claimants where there was "an 'extensive period of

unemployment due to injury [that] falls outside [the] statisti-

cal model of reasonable hours' developed in the benchmark

proxy." Op at 34 (quoting J.A. 445).

I do not disagree that the Master appears to have per-

formed this last calculus inconsistently. For that reason, I

join Part IV.6 of the court's opinion, which remands certain

challenged back pay determinations for an "inquiry into

whether each challenged award involves a claimant whose

injury-time exceeds th[e] average." Op. at 35. But that

limited remand is sufficient to remedy the error. As long as

the Master denies claimants back pay for actual absenteeism

"so extreme as to be beyond the proxy's statistical average,"

Op. at 34, there is no reason to require him also to build the

probability of lengthy absences into the benchmark. As the

court itself notes in Part II, "[b]oth ... are means of dis-

counting back pay awards to reflect unavailability for work

__________

1 It is important to note that the Special Master did not exclude

all zero-hour workers from the proxy group--he excluded only

those who had worked zero hours "for several years." J.A. 342-43.

Similarly, defendants' own expert excluded some, but not all, zero-

hour workers from his preferred benchmark proxy--he excluded

"zero-hour rodmen who had died, retired, were incarcerated or

permanently disabled." Op. at 14 (citing J.A. 1381). Neither the

court nor defendants explain why the exclusions made by defen-

dants' expert were permissible, while those made by the Master

were clearly erroneous.

during the liability period." Op. at 15. Even if the

probability-based, zero-hour approach were preferable, it can-

not be clearly erroneous for the Master to have chosen the

direct-reduction approach instead. See Anderson, 470 U.S. at

574 ("Where there are two permissible views of the evidence,

the factfinder's choice between them cannot be clearly errone-

ous.").

II.

The court's second criticism of the Special Master's calcula-

tion is its asserted failure to recognize that the number of

work-hours available for union members during the relevant

period was a "fixed pie." If the claimants had been admitted

into the union, the court contends, that fixed pie of hours

would have been divided among a greater number of workers.

Hence, each union member would have worked fewer hours

than union members actually worked during the period.

There are two reasons to reject this critique.

First, defendants did not make this argument in their

briefs before this court. Indeed, the term "fixed pie" cannot

be found anywhere therein. See Def. Br. at 24-32; Def.

Reply Br. at 4-6. We routinely and for good reason refuse to

consider contentions not raised in a party's briefs. See Boggs

v. Rubin, 161 F.3d 37, 42 (D.C. Cir. 1998) (holding that "[w]e

will not consider at this late stage an argument that the

appellant failed to raise" in his briefs); Diamond Walnut

Growers, Inc., v. NLRB, 113 F.3d 1259, 1263 (D.C. Cir. 1997)

(en banc) ("[I]t is well-established ... that we do not consider

arguments not presented to us."). Although it is not impossi-

ble to tease the recipe for a fixed-pie argument out of a single

sentence in which defendants described the calculations per-

formed by their own expert, their briefs did not argue that a

fixed-pie problem rendered the Special Master's calculations

clearly erroneous. As we have said in another context, a

reviewing body "need not sift pleadings and documents to

identify arguments that are not stated with clarity by a

petitioner." Bartholdi v. FCC, 114 F.3d 274, 279 (D.C. Cir.

1997) (internal quotations omitted); see also United States v.

Gilliam, No. 97-3084, slip op. at 20 n.10 (D.C. Cir. Feb. 26,

1999) ("[T]he court will not construe the briefs to raise an

argument that is hinted at but never stated.").2

Second, there is substantial support in the record for the

Master's conclusion that "there really [was] no fixed pie" of

available hours. J.A. 339. As the court explains, the Local

referred work to both union members and non-union workers.

The defendants' expert assumed that had claimants become

members of the union, they would have displaced non-union

workers first. There would thus be no fixed-pie problem, the

expert said, as long as the hours referred to non-union

workers in a given year were more than the potential "claim-

ant hours"--which he defined as the product of the number of

eligible claimants and the mean hours worked by union

members that year. J.A. 1383 (report of defendant's expert).

Examination of two charts prominently displayed in defen-

dants' own brief reveals that in fact, the number of hours the

Local referred to non-union workers did exceed the number

of potential claimant hours every year through 1981. Def. Br.

at 15, 28. That is because in each of those years the union

referred in excess of 100,000 hours to non-union workers,

more than enough to accommodate 173 claimants without

displacing any union members.3 Hence, even assuming that

__________

2 To a lesser extent, the zero-hour argument discussed above

suffers from the same disability. Although one of defendants'

briefs did use the term "zero-hour" (once), it did so only in

describing the work of defendants' expert. It did not expressly

argue that the failure to include zero-hour workers rendered the

Master's benchmark clearly erroneous.

3 The chart on page 15 of defendants' brief discloses the

number of hours the union referred to non-union workers in each

year. The chart on page 28 shows the mean union-member hours

for each year as determined by defendants' expert. When the

latter figures are multiplied by the 173 putative class members, the

resulting claimant hours are less than the non-union hours for every

year through 1981.

the union could not have attracted additional work for addi-

tional members, there simply was no fixed-pie problem

through 1981.4 If there were an error in the Master's

calculation, then, it would apply only to awards for years after

1981--and only one claimant received such an award. At

most, the fixed-pie theory would necessitate a remand of the

award to Eldridge Harmon, who received $2,075 for 1985-86.

But the court is also factually incorrect in stating that

"[t]here is no evidence in the record to suggest that there was

additional work in the D.C. area for Local 201 rodmen"

beyond that actually handled by its union members and non-

union referrals. Op. at 16. Defendants' own briefs provide

the contrary evidence, demonstrating that during the entire

relevant period, Local 201 had more job requests from em-

ployers than both its union and non-union workers could

absorb. Defendants state that from 1972 to 1975, "Local 201

was unable to fill 4,432 jobs due to an insufficient number of

workers seeking jobs through the hiring hall." Def. Br. at 14

(citing J.A. 274-75). And from 1976 to 1986, "Local 201 was

unable to fill 1,649 jobs." Id. at 15; see also id. at 60 ("Even

after the 1972-75 'full employment' period, Local 201-referral

jobs went unfilled for lack of applicants."). Defendants'

evidence makes clear that this circumstance existed in every

year for which there are records, see J.A. 275, despite the fact

that the "union never deliberately let a job go unfilled." Def.

Br. at 14. Hence, the defendants' own briefs provide the

"prima facie showing that additional hours were available to

Local 201" upon which the court insists. Op. at 16.5

__________

4 This roughly accords with the concession of defendants' own

expert that in the 1970s there would have been sufficient hours

available for the claimants had they been admitted to the union.

See J.A. 339 (citing expert's testimony).

5 The court states that the fact that jobs went unfilled does not

necessarily mean that the union had enough work for the claimants,

since it might be explained merely by "[f]luctuations on a given day

that would result in a specific job referral being listed as unfilled."

Op. at 18. But this theoretical possibility, like the year-to-year

disparities to which the court also points, is hardly sufficient to

justify a conclusion that the Master's determination was clearly

Finally, the fact that the union had to turn down jobs also

undermines the court's declaration that "[c]ommon sense and

experience suggest that a union will attempt to bring as many

projects as possible under union control." Op. at 16. That

may be the case where a union and its non-union referrals are

able to handle all the work they can bring in. But where a

local is already turning down unsolicited job referrals, it has

no incentive to bring still more projects under its control.

Under these circumstances, neither common sense nor expe-

rience militates against the Master's finding that there was

no fixed pie. J.A. 339.6

III.

The burden is on the appellants to establish that the

decision below was clearly erroneous. See Bellevue Gardens,

Inc. v. Hill, 297 F.2d 185, 187 (D.C. Cir. 1961); 9A Wright &

Miller s 2585, at 565. Because they have not met that

burden, there is no reason for us to prolong the final resolu-

tion of plaintiffs' back pay awards by remanding the Special

Master's benchmark determination for further consideration.

__________

erroneous. See Anderson, 470 U.S. at 573-74. The court also

contends that defendants "made a prima facie showing that the

hours were not available" for the claimants, based on evidence of

"the declining hours referred out of the hall and [on] evidence

[defendants] introduced of the declining market share available to

the union." Op. at 16. But it is the gross hours potentially

available for the claimants, not the evidence of trends and percent-

ages, that is relevant to the validity of the fixed-pie theory.

6 For the same reasons, and contrary to the court's contention,

the Special Master did not shift the burden of proof to defendants

by characterizing the fixed-pie theory as "at best speculative." J.A.

340. Indeed, the defendants' expert himself described the theory in

words of speculation. See J.A. 1383 (stating that the benchmark

"may require [an] adjustment ... [to] reflect[ ] the fixed number of

union-referred hours") (emphasis added); id. at 1384 (stating that a

fixed-pie adjustment would be required "if there are no permitmen

and travelers working in a given year") (emphasis added).