holding that it was appropriate to presume that as a result of race discrimination those class members 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 union entrance exam and therefore damages award was supported and appropriate
How later courts described this case
- holding that it was appropriate to presume that as a result of race discrimination those class members 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 union entrance exam and therefore damages award was supported and appropriate
- “[C]ourt[s] must, ‘as nearly as possible, recreate the conditions and relationships that would have been, had there been no unlawful discrimination.’” (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 372 (1977)
- To share in relief, class members “must make some showing that they were potential victims of the discriminatory employment practices”
- noting the awards ranged from $2,500 to $25,000
Written by the judges who cited it.
The opinion
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 historically 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 apprenticeship 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 before an applicant may be admitted to the journeyman exam, (2) offer (cured of discrimination against experienced 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 *1141 failure of that exam should not properly be deemed to preclude someone from membership as unqualified. Therefore 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.