Appendix — International Ass'n of Bridge, Structural & Ornamental Ironworkers v. Berger

Supreme Court brief1989

Ask Donna

What actually matters in this document.

Text

88-6 99°

FILED

é Buprame Court, Us.

Phe, oscncene OCT 26 1988

- SPANIOL, JR.

CLERK

IN THE —

Supreme Court of the United States

OCTOBER TERM, 1988

INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND

ORNAMENTAL IRON WORKERS,

Petitioner,

JESSIE BERGER, et al.,

Respondents.

IRON WORKERS REINFORCED RODMEN, LOCAL 201,

Petitioner,

JESSIE BERGER, et a/.,

: Respondents.

JOINT APPENDIX TO PETITIONS FOR

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JAMES R. O’CONNELL VICTOR J. VAN BOURG

SALLY M. TEDROW * SANDRA RAE BENSON

O’ DONOGHUE & O’ DONOGHUE VAN BourG, WEINBERG, ROGER

4748 Wisconsin Ave., N.W. & ROSENFELD

Washington, DC 20016 875 Battery Street, 3rd Floor

(202) 362-0041 San Francisco, CA 94111

Counsel for Petitioner (415) 864-4000

Iron Workers Reinforced LAURENCE E. GOLp

vodmen, Local 201 CONNERTON, RAY & SIMON

1920 L Street, N.W., 4th Floor

Washington, DC 20036

(202) 466-6790

Counsel for Petitioner

international Association of

Bridge, Structural and

Ornamental Iron Workers

* Counsel of Record

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 ;

® chaste 60

INDEX TO JOINT APPENDIX

Docume nt

OPINION OF COGQURT OF APPEALS ENTERED

APRIL 5, 1988

OPINION OF COURT OF APPEALS ON APPEL-

LANTS’ PETITION FOR REHEARING ENTERED

JULY 29, 1988

TRIAL FINDINGS OF DISTRICT COURT ENTERED

JUNE 7, 1985

AMENDED ORDER OF DISTRICT COURT EN-

TERED APRIL 11, 1986 :

JUDGMENi OF COURT OF APPEALS ENTERED

APRIL 5, 1988

ORDER OF COURT OF APPEALS ON PETITION

FOR REHEARING OF APPELLANTS RODMEN

LOCAL 201, ET AL., ENTERED JULY 29, 1988

ORDER OF COURT OF APPEALS ON MOTION OF

APPELLANT INTERNATIONAL ASSOCIATION

OF BRIDGE, STRUCTURAL AND ORNAMENTAL

IRON WORKERS FOR LEAVE TO LATE FILE A

PETITION FOR REHEARING AND/OR SUG-

GESTION FOR REHEARING EN BANC, EN-

TERED JULY 29, 1988

ORDER OF COURT OF APPEALS ON SUGGESTION

FOR REHEARING EN BANC OF APPELLANT

INTERNATIONAL ASSOCIATION OF BRIDGE,

STRUCTURAL AND ORNAMENTAL IRON

WORKERS, ENTERED JULY 29, 1988

Page

88a

176a

180a

Gary re.

Council

entered a

Sally M. Tedrow, with whom James R. O’Connell

Ellen O.

Local 20

yram.

Argued October 27, 198%

; , = :

eve r appellant mstruction

Lieber for appellant Construction

AGC Labor Division, Inc. John A. M

n appearance for a

Boardman were on the brief, for

‘

( ont

aldsO

1, Apprenticeship Committee and Training Pro-

Victor J. Van Bourg, with whom Laurence E. Goid was

on the brief, for appellant International Association of

Bridge, Structural and Ornamental Iron Workers.

John L. Oberdorfer and John F. Dienelt, with whom

Thomas D. Roberts and Andrew S, Newman were on

the brief, for appellees.

Thomas W. White, with whom John Payton was on

the brief, for amicus curiae NAACP Legal Defense and

Educational Fund, Inc., urging affirmance.

Michael E. Kennedy was on the brief for amicus curiae

Associated General Contractors of America, Inc., urging

reversal.

Before: EDWARDS, STARR and D. H. GINsBuRG, Circuit

Judges.

Opinion for the Court filed by EDWARDS, STARR and

D.H. GINSBURG, Circuit Judges.

Per CuRIAM: This case involves a class action brought

by eight black construction workers alleging racial dis-

crimination under 42 U.S.C. § 1981 (1982) and Title VII

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

(1982). The plaintiffs charged that various requirements

for admission to Local 201 of the Iron Workers Re-

inforeed Rodmen (the “Union’’) and to its international

union, the International Association of Bridge, Structural

and Ornamental Iron Workers (the ‘“International”),

discriminatorily denied black rodmen the benefits of union

membership. The plaintiffs sued both the Union and the

International, along with the Union’s Apprenticeship

Committee, the National Iron Workers and Employers

Training Program, and the Construction Contractors

Council/AGC Labor Division, Ine. (‘CCC’), an organiza-

tion that negotiated collective bargaining agreements with

the Union on behalf of most employers of rodmen in and

around Washington, D.C. Suit was filed in 1975, the case

went to trial in 1981, and the District Court rendered its

decision in 1985.

The trial court’s decision raises very d ifficult problems

for this court. Having received over eighty-five pages of

proposed findings of fact and conclusions of law from the

plaintiffs in December 1981, the District Court adopted

them almost verbatim after a lapse of three and a half

years, retaining most of the plaintiffs’ typographical

errors but deleting their references to the record. thus

hampering review. Not surprisingly, the District Court

found all of the defendants liable for all of the alleged

violations of Title VII and section 1981. The court’s sub-

sequent remedial order again copied the plaintiffs’ pro-

posal; an amended order was issued in April 1986. The

defendants then appealed from the trial court’s decision

and order.

In considering this appeal, we embrace the view ex-

pressed by a number of circuits in strongly disapproving

the procedure followed by the trial court in reaching

judgment in — case. See, €.9., EEOC | v. federal Re-

serve Bank, 698 F. 2d 633, 639-42 (4th ( 1983), rev'd

on other paleo sub nom. Cooper v. Pederal Reserve

ce 467 U.S. 867 (1984), and cases cited therein.

While “the fact that the trial judge has : idopted proposed

seat does not, by itseif, warrant reversal,” “it does

raise the possibility that there was insufficient jnde-

pendent evaluation of the evidence and may cause the

losing party to believe that his position has not been

given the consideration it seo id Photo Elecs. Corp.

England, 581 F.2d 772, 777 (9th Cir. 1978). Indeed,

is is surely the case here, wher ve the appellants assert

that “the District Court’s uncritical acceptance of plain-

tiffs’ proposed findings . . . did not provide the even-

— pemgerion es of the evidence neces ssary to a fair

adjudication of the issues.” Brief of Appellant CCC at

28. After ten years of litigation in District Court. the

appellants had a right to expect something more,

was needlessly given “complex” treatment under this cir-

cuit’s Case Management Plan, and then it required more

exacting scrutiny than this court ordinarily accords the

District Court’s findings. A meticulous review of the

District Court’s conclusions uncovered a number of clearly

erroneous factual findings and several errors of law. We

therefore reverse in part and affirm in part.

I. BACKGROUND

Rodmen are construction workers who handle and posi-

tion steel rods for reinforcing concrete and other building

materials. Most of the rodmen who worked in the Wash-

ington, D.C., area in the early 1970s -were employed

through referrals by the Union, pursuant to a series of

collective bargaining agreements between the Unicn and

CCC. The Union’s referral system ensured that Union

members were offered employment opportunities before

jobs were made available to non-Union permit workers

who applied for positions through the Union’s hiring hall.

When Washington’s commercial construction industry en-

tered a slump in 1975, Union membership became espe-

cially valuable, because limited employment prospects pre-

vented permit workers from obtaining regular employ-

ment.

Admission to the Union always has been by examina-

tion. The prerequisites for taking the entrance exam,

however, have varied over time. Four different sets of

prerequisites are relevant to the adjudication of this case.

1965-February 1971. During this period, there were

two routes to the exam: (1) by permission of the Union’s

Executive Cemmittee, which could grant leave, in its dis-

cretion, to rodmen with an unspecified amount of experi-

ence to take the exam; and (2) by completion of the

two-year Apprenticeship Program, admission to which

was contingent upon the applicant (a) being between 18

and 31 years of age, (b) possessing a high school diploma,

and (c) being physically fit.

ae |

- o 4 ~ 4 ry‘. R _ a on I , ‘ Lh

February 1971-June Zé ld. inere were also two paths

to the exam at this time. (1) Those who completed the

Apprenticeship Program could

All rodmen with tWo years’

’ «A

‘

take the usual exam. (2)

experience were eligible to

take a special exam—not the one given by the Union

before or after this period—which had a higher

rate. Because all experienced rodmen were allowed to

sit an entrance exam without participa

supervised educational program,

failure

ting in a Union-

these five months are

AULd

referred to as the “Open Period.”

June 1971-September 1972. Throughout. this period,

nly rodmen who had completed the Apprenticeship rro-

yyre , u . ‘mitt 1 + ta] t} ys

ram were permitted to take the exam.

September 1972-October 1975. Once again, there were

two tracks to the exam. (1) Completion of the Appren-

iceship Program, whose admission

n requirements were un-

changed, provided a ticket to the exam. (2) In addition

the Training Program was established. primarily to allov

I> LO Yaln access to he eXam

experienced minority worke

. 4 ee. » . . leh 99 cle - " _ -

and thus to Union membership. Although race was not

ee ee sae admission wiel effast ee — 4

Pe | Criverion iO} al mission, speci: Cl1LUITLS Vere made LO

recruit minority workers. Participants in the Training

Program had to be (a) physically fit, and (b) 31 years

of age or older. Unlike the Apprentice ship Program

a} cA LU

4 «4 + 1 tna **) " . Da. cy yee le at ‘ cr} | ]

hat time, the Training Program lacked a nigh school

qaqipioma requirement. Moreover. trainees OU not ap-

se rt+in . , . > : + 1) tz ] +o] ] ‘ Y ‘ » .

yrenticeS—were sometimes aliowed to take the eCXam atte}

; e os or ie é ~ 1

1 ninimum of six montns instruc iO, even NOouLgH potn

les 25) +3 “yi 4 . > ,

CUUCa, lona!l brograms \ ere LWO years i yT Ye

Nrougnou nis en re erod no applica Was guar-

uieed acceptance into an educational progran merel\

+ ] ~ + . =

im€ ne me Une CrP) Ut if eme! I Nn} men

S alWays limited, and many who qu ed for admission

Tr}

| (

]

4 2 ry I> 4

I 5 i

were either rejected or not permitted to apply. Once ad-

mitted to either program, however, no enrollee was asked

or compelled to discontinue participation because of un-

satisfactory performance; the only ground for expulsion

was failure to meet one of the enrollment requirements

described above. Completion of one of the programs re

sulted almost automatically in Union membership, since

virtually all examinees, with the exception of those tested

during the Open Period, passed the test.°

Prior to the passage of Title VII, the membership of

Local 201 was overwhelmingly white. The Union’s racial

composition changed after 1965, when Title VII took

effect, but only gradually. At the state of 1967, only four

of approximately 200 members were black. Trial Finding

(“Tr. F.”’} 63. Four years later, the Union numbered

16 black and 260 white members. Tr. F. 63. Although

black membership increased markedly with the advent

of the Open Period, the percentage of blacks entering the

Union was plainly smatler than the percentage of blacks

among non-Union permit workers. For example, while

approximately 40% of those admitted to the Union in the

three years prior to the initiation of this suit were black,

Brief of Local 201 at 18, blacks comprised 50-60% of

non-Union workers seeking employment through the

Union’s hiring hall. Brief of Appellees at 7.

On October 21, 1975, six black rodmen who were not

members of the Union filed suit against all of the de-

fendants, alleging racial discrimination in violation of

Title VII and section 1981. The gravamen of the plain-

2 All white rodmen who took the normal cutrance exam during

this lengthy period passed it, whereas 97.6% of black rodmen (in-

cluding five workers who took the exam twice} received passing

scores. Brief of Local 201 at 19. During the Open Period. how-

ever, when a different exam was given to non-apprentices, 70.6%

(24 of 34) of the white examinees and only 35.3% (12 of 34) of the

black examinees passed this special exam. Trial Finding (“Tr. F.’’)

76. The appellants do not challenge the accuracy of this finding.

tiffs’ complaint is that the preconditions to Union mem

in tl Os—in particular, the require

that apprentices hold a high school diploma

requirement that rodmen enroll in either the Apprentice-

ship or the Training Program before | aking the Union’s

entrance exam—excluded a higher proportion of black:

than whites from Union membership and that these

1343 1 3 { + 44 tle pala ] Vatthata

CONAdAItLIONS could not be justified on work-related YYTOUNKCS.

Pursuant to a pretrial stipulation by the parties, the

District Court certified the loilowing two classes on J

1) All black persons who have applied for cr si

trom representatives of Local 201 or the Interna-

tional, membership in Local 201 and. in connection

ewith, the International or who have applied for

or sought, from representatives of Local 201. the

Apprenticeship Program or the Trai! ling Program,

admission to the Apprenticeship Program and or the

Training Program and who have been or might be

excluded from Local 201 and, in connection there-

with, the International or the Apprenticeship Pro-

ram or the Training Program or any of the above

by the alleged discriminatory practices of the De-

fendants and who could have filed time]

with the EEOC when their class representatives filed

‘Nnarges or who could have filed timely lawsuits

vnen the ¢@class representatives filed ne instant law-

. A 1) ) ‘) 1, , ) ] h.« y ] 1" . 1}? , }*

L Ali oplaekK pel SONS WnO Nave deen referred ro]

‘Jl for referral for employment by any means. in-

lise *<« +

cluding Nuing out a referral slip, or present neo them-

PS »f Loca! 20] ¢ nd reques l] 2) } Y) esent +] eS oO]

. + . + sir | ] ™

Local 201 to eler them for work, and who } ve dee}

] = { ] |

mich e aiscouraged from applying for member-

D Loc 0] nd In @onne on the ey ‘)

] ° | }

ernational, andor Apprenticeship Program and

or the Training Program by the allegedly racially

discriminatory practices of the Defendants and who

could have filed timely charges with the EEOC when

their class representatives filed such charges or who

could have filed timely lawsuits when their class

representatives filed the instant lawsuit.

Order (July 26, 1976), reprinted in Record Excerpts

(“He }

On March 6, 1978, the District Court allowed the six

named plaintiffs to amend their complaint by adding two

black rodmen—Simmons and MecMillian—because it ap-

peared that the original six might not include suitable

representatives of both classes. Memorandum and Order

(Mar. 6, 1978), reprinted in R.E.

After the District Court denied separate motions for

summary judgment by the Apprenticeship Committee, the

International, and CCC, the case was tried during the

summer and fall of 1981. More than three and a half

years later, on June 7, 1985, the District Court issued

its Trial Findings, merely copying, with insignificant

changes, the proposed findings of fact and conclusions of

law submitted by the plaintiffs on December 18, 1981.

The court found all of the defendants liable for the

allegedly racially discriminatory admissions policies of

the Union dating back to at least 1965, as well as for

retaliatory actions alleged to have been taken against

several named plaintiffs.

The District Court issued a remedial order on Decem-

ber 10, 1985, which was superseded by an Amended

Order handed down on April 10, 1986. The Amended

Order increased access to the entrance exam or to Union

membership for experienced black rodmen, and provided

for future proceedings to determine awards of backpay

and damages. In addition, the court ordered the Union

to return money collected from class members pursuant

to a uniform levy on all Union workers to pay the

Union’s legal expenses in connection with this action.

The defendants appeal from the District Court’s Trial

Findings and Amended Order, contending that many of

the District Court’s findings of fact were clearly erro-

neous, that a large number of its legal conclusions were

also mistaken, and that the court abused its discretion in

choosing remedies.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 52(a) provides in part

that “[fljindings of fact ... shall not be set aside un-

less clearly erroneous, and due regard shall be given to

the opportunity of the trial court to judge the credibility

of the witnesses.” The appellants have asked this court,

however, to perform a more rigorous appraisal of the

District Court’s findings than this rule prescribes. They

contend that the trial judge’s almost verbatim transcrip-

tions of the plaintiffs’ extensive proposals do not consti-

tute genuine “findings” of fact, and thus that de novo

review, or something approaching it, is appropriate in

the unique circumstances of this case.

We disagree. Although we strongly disapprove of the

District Court’s wholesale adoption of the plaintiffs’ pro-

posed findings—especially in a case of this magnitude—

we adhere to the view that de novo review “would be

wholly inconsistent with the function of an appellate

court.” Southern Pac. Communications Co. v. AT & T,

740 F.2d 980, 984 (D.C. Cir. 1984), cert. denied, 470

U.S. 1005 (1985). An appellate court is generally ill-

equipped to conduct de novo review, and the assignment

cf that task to courts of appeals would waste judicial

resources. De novo review, moreover, would be contrary

to the plain meaning of Rule 52(a}, which requires

courts to set aside factual findings only if they are

“clearly erroneous.” It would also contravene the settled

doctrine of this court and the Supreme Court. As the

Court recently stated:

10a

We, too, have criticized courts for their verbatim

adoption of findings of fact prepared by prevailing

parties, particularly when those findings have taken

the form of conclusory statements unsupported by

citation to the record. .. . Nonetheless, our previous

discussisons of the subject suggest that even when

the trial judge adopts proposed findings verbatim,

the findings are those of the court and may be re-

versed only if clearly erroneous.

Anderson v. City of Bessemer City, 470 U.S. 564, 572

(1985) .°

We adhere to the standard of review enunciated in

Rule 52(a) and shall set aside factual findings only if

we deem them clearly erroneous; however, we note that

3CCC contends that the Supreme Court created an exception

to the “clearly erroneous” standard in Anderson and mandated

de novo review by an appellate court whenever a trial court has

“uneritically accepted findings prepared without judicial guidance

by the prevailing party.” Anderson, 470 U.S. at 572; see Brief of

Appellant CCC at 28-30, 40-41. We reject this reading of Anderson.

In that case, after noting that its earlier decisions had without

exception upheld the “clearly erroneous” standard even when a trial

judge had accepted proposed findings verbatim, the Court found

that the district court had net “uncritically accepted” proposed

findings, and thus that there was “no reason to subject those find-

ings to more stringent appellate review than is called for by the

applicable rules.” 470 U.SC. at 572-73. We recognize that this

language is enigmatic, but we do not believe that it admits an

exception to the standard of review enunicated in Rule 52(a).

The Supreme Court nowhere in Anderson so much as mentions the

possibility of de novo review by an appellate court, nor does it

hold that the standard of review under Rule 52(a) fluctuates with

the quality of a district court’s efforts at factfinding. We therefore

see no reason to depart from our precedents in this regard. If the

record below does not permit a confident assessment of the trial

court’s findings, the preper course for an appellate court is to re-

mand for further factfinding, not to engage in its own guesswork.

See Andre v. Bendix Corp., 774 F.2d 786 (7th Cir. 1985). We are

fortunate indeed that the record in this case allows us to dispose

of all the issues raised on appeal without the necessity of a remand.

lia

the function of appellate review that we must undertake

in a case of this sort is substantially different (and more

difficult) than what is normally required. In Southern

Pacific, we explained that when a trial judge ‘“abdi-

cate|s] to a party his duty to provide a reasoned ex-

planation for his decision” and merely copies submitted

proposals, it is incumbent on this court to check the

adopted findings against the record “with particular, even

painstaking, care.” 740 F.2d at 984; see also Sealy, Inc.

v. Easy Living, Inc., 743 F.2d 1378, 1385 n.3 (9th Cir.

1984) (“special scrutiny”); EEOC v. Federal Reserve

Bank, 698 F.2d 633, 639-42 (4th Cir. 1983) (“careful

scrutiny” is necessary and findings must be “more nar-

rowly” examined when trial court merely reprints pro-

posed findings), rev’d on other grounds sub nom. Cooper

v. Federal Reserve Bank, 467 U.S. 867 (1984); Amstar

Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 258 (5th

Cir.), cert. denied, 449 U.S. 899 (1980). The “special

care’ we devote to reviewing “findings [that] were not

initially penned by the district judge,” Valentino v.

United States Postal Serv., 674 F.2d 56, 60 n.2 (D.C.

Cir. 1982), differs from that which we ordinarily display,

not in the test that we apply to a particular finding of

fact—individual findings will only be reversed if clearly

erroneous—but in the volume of evidence we sift in judg-

ing the correctness of such findings and in the number

of discrete findings we review without benefit of express,

thoroughly supported allegations of error by the opposing

party. Although we undertake with great reluctance

what in this case has proven a Herculean task, the Dis-

trict Court’s inexplicable failure to reason independently

and to address the defendants’ leading arguments leave

us no choice.

III. CLAss ACTION ISSUES

The appellants raise four objections to the District

Court’s certification of the two plaintiff classes in this

case. First, they argue that the District Court failed to

12a

ascertain whether the requirements of Federal Rule of

Civil Procedure 23(a) were met with respect to each of

them, and that this court should therefore remand for

such a determination. Second, the appellants contend

that the District Court failed to set temporal boundaries

to the classes, and that a remand is necessary to allow it

to do so. Third, the appellants submit that none of the

named plaintiffs adequately represents the class of those

black permit workers who were allegedly injured by the

Apprenticeship Program’s high school diploma require-

ment in violation of Title VII and section 1981. Fourth,

they claim that the plaintiff class should be limited to

(hose who actually applied for admission to the Union or

one of its educational programs, and that the second

class of “discouraged” nonapplicants should be decerti-

fied.

We find the first two arguments meritless. We agree,

however, that none of the named plaintiffs is a suitable

representative of those who were allegedly wronged by

the Apprenticeship Program’s high school diploma re-

quirement; accordingly, that portion of the plaintiffs’

case should not have been permitted to go forward to

judgment, and the District Court’s decision on this issue

must be reversed. The appellants’ fourth objection is mis-

guided insofar as it applies to the plaintiffs’ remaining

challenge to the Union’s requirement that experienced

rodmen enroll in an educational program before taking

the entrance exam.

A. Possible Failure to Conduct a Rule 23(a) Analysis

The Supreme Court has stated that “a Title VII class

action, like any other class action, may only be certified

if the trial court is satisfied, after a rigorous analysis,

that the prerequisites of Rule 23(a) have been satisfied.”

General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982).

13a

The two classes in this case were conditionally certified

upon stipulation by all the parties. Order (July 26,

1978), reprinted in R.E. It is unclear, however, whether

the District Court performed the required analysis re-

garding the prerequisites of Rule 23(a). Nevertheless,

we find the District Court’s failure to articulate the rea-

sons for its decisions an insufficient reason to remand.

The defendants have not pointed to any possible errors

in the District Court’s definition of the classes apart

from those considered separately below. See Brief of

Local 201 at 34-39. Nor have we identified any our-

selves. In the absence of any reason to suspect that the

District Court’s decisions in this regard were mistaken,

we cannot label the court’s silence an abuse of discretion

warranting a remand. See Postow v. OBA Fed. Sav. &

Loan Ass’n, 627 F.2d 1370, 1380 n.24 (D.C. Cir. 1980).

B. Temporal Limits to the Classes

The appellants contend that, while the class definitions

contained in the 1976 certification order and reproduced

in the Amended Order “purport[] to accord with rele-

vant time frames,” the District Court’s “numerous errors

in construing what such limitations actually mean

require a remand for the purpose of specifically defining

both backward and forward class limitations by date,

even if [the] class definition[s] (at least as to time)

[are] to be adhered to.” Brief of Local 201 at 49. We

reject this contention as frivolous. The appellants, by

their own admission, do not find fault with the temporal

aspects of the District Court’s class definitions. Hence,

there is no reason at all to remand on this point. To the

extent that the appellants quarrel with the District

Court’s application of this unquestionably acceptable def-

inition in specifying remedies, their objections are prop-

erly considered under that heading.

14a

C. The Ability of Class Representatives to Challenge

the Apprenticeship Program’s High School Diploma

Requirement

As the appellants correctly note, the plaintiffs’ chal-

lenge to the Apprenticeship Program’s admission require-

ments focused exclusively on the rule that apprentices

hold high school diplomas, and the District Court found

this requirement alone to violate Title VII and section

1981. See Brief of Local 201 at 41; Tr. F. 85-100. No

objections were raised to the requirements that appren-

tices be physically fit or that they be under thirty-one

vears of age.

The Supreme Court has “repeatedly held [that] a class

representative must be part of the class and ‘possess the

same interest and suffer the same injury’ as the class

members.” East Tex. Motor Freight Sys. v. Rodriquez,

431 U.S. 395, 403 (1977) (quoting Schlesinger v. Re-

servists Comm. to Stop the War, 418 U.S. 208, 216

(1974)). The plaintiffs may therefore only bring a class

action challenging the high school diploma requirement

of the Apprenticeship Program if one of the named plain-

tiffs was allegedly injured by that requirement. Hence,

this part of the action may not proceed unless one of the

eight named plaintiffs was, during the Title VII or sec-

tion 1981 limitations period, refused admission to the

Apprenticeship Program or discouraged from applying

for admission because he lacked a high school diploma,

notwithstanding his having met the age and fitness re-

quirement at that time.

Two of the named plaintiffs—McMillan and Simmons

—graduated from high school, and thus may not serve as

class representatives. Tr. F. 18-19. The other six did

not have high school diplomas at times relevant to this

suit. All of them, however, either were too old to chal-

lenge the high school diploma requirement within the

statutory limitations periods, or were not injured by it

l5a

because they had no interest in enrolling in the Appren-

ticeship Program during those periods.

A plaintiff may bring a Title VII action only if he

has first filed charges with the Equal Employment Op-

portunity Commission (“EEOC”) within 180 days of suf

fering injury in violation of the statute. 42 U.S.C.

$ 2000e-5(e) (1982). Thus, one of the six named plain-

tiffs without a high school degree could challenge the

Apprenticeship Program’s high school dipioma require-

ment only if, within 180 days of filing charges with the

EEOC, he was under 31 years of age and physically fit,

and if he was at that time denied admission or was dis-

couraged from applying because he lacked a high school

diploma. Plaintiff Lewis was the first of the named plain-

tiffs to file charges with the EEOC. He did so either

in December 1974, or on January 13, 1975, depending

upon which of the District Court’s inconsistent findings

is correct. Compare Tr. F. 5 with Tr. F. 15. The 180-

day limitations period under Title VII therefore began

to run in June or July 1974. However, Lewis had turned

31 prior to that date, as had all of the other plaintiffs

who had not graduated from high school.! None of the

six could therefore demonstrate that he was injured by

the Apprenticeship Program’s high school diploma _ re-

quirement after June 1974, because all were or would

have been excluded by virtue of their age, and the age

limit was never challenged or found to be discrimine ory.

Hence, the class action challenge to the high school

diploma requirement may not be brought under Title

VIL.

* The years in which these six plaintiffs turned 31 are as follows:

Berger (1967); Tucker (1968); Jackson (1970); Kirkland (1970):

Bellamy (1972); and Lewis (1973). The District Court’s finding

regarding Bellamy’s age, see Tr. F. 17, was clearly erroneous.

Plaintiffs’ counsel acknowledged in oral argument before this court

that Bellamy was born on September 18, 1941; his thirty-first birth-

day therefore fell on September 18, 1972.

16a

Although section 1981 does not contain its own statute

of limitations, 42 U.S.C. $1988 requires that the most

nearly analogous District of Columbia statute of limi-

tations be applied to suits under section 1981. In Banks

». Chesapeake & Potomac Tel. Co., 802 F.2d 1416 (D.C.

Cir. 1986), this court held that the most closely analogous

period for purposes of section 1981 is that set by D.C.

CopE ANN. § 12-801/8) (1981), which specifies a three-

year limitations period for personal injury claims not

specified elsewhere in the D.C. Code. In reaching that

decision, however, “ne court faced only the question

whether the three-year statute of limitations for specified

personal injury el, as or the one-year period provided

by the D.C. Human nights Act, D.C. Cope ANN. § 1-2544

(1981), applied to suits under section 1981. The court

did not determine whether the one-year limitations pe-

riod for most intentional torts, D.C. CopE ANN. § 12-

901(4), or the three-year period applicable to other per-

sonal injuries is more appropriately applied to section

1981 suits. Although a majority of the three-judge panel

argued at length that the three-year limitations period

applied, see Banks, 802 F.2d at 1426-29, the majority

recognized that it was “eonsider[ing] the issue in dicta

only, and only in order to answer” objections raised in a

concurring opinion. Id. at 1427. The question whether

a one-year or a three-year limitations period governs ac-

tions under section 1981 therefore remains open.

We need not resolve it now. Regardless of which limi-

tations period is correct, none of the six original plain-

tiffs fulfilled the requirements for challenging the high

school diploma requirement under section 1981. If the

one-year period should» applied, then the plaintiffs’

suit was plainly foreclosed, because all six turned thirty-

one prior to October 91. 1974, the date one year before

suit was filed. See note 4 supra. If the three-year period

is proper, then five of the six would once again have been

excluded from the Apprenticeship Program by reason of

_—————————

17a

age; only Lewis was under thirty-one years of age on

October 21, 1972. However, Lewis testified at trial that

he did not apply for admission to the Apprenticeship

program between October 21, 1972, and his thirty-first

birthday, and he never claimed that he would have ap-

plied had there been no high schoo! diploma requirement.

He apparently only thought of applying to the Appren-

ticeship Program after he had turned thirty-one: “I

didn’t apply for the apprenticeship program because they

said you couldn’t get in over 30.” Transcript (“Tr.”) at

471. Since Lewis did not allege injury by the Appren-

ticeship Program’s high school diploma requirement, he

cannot serve as the representative of a plaintiff class

contesting the lawfulness of that requirement under sec-

tion 1981. The class action challenging the high school

diploma requirement under both Title VII and section

1981 therefore fails for want of a suitable representative.”

The plaintiffs did, however, satisfy the jurisdictional

prerequisites for assailing the Union’s requirement that

experienced workers enroll in either the Apprenticeship

or the Training Program before taking the entrance

exam. Although the appellants have not denied that the

named plaintiffs adequately represent the class of those

allecedly injured by this requirement, and thus have

waived any objection they might have raised, see Banks,

209 F.2d at 1427, we note that Kirkland was experienced,

physically fit, and desirous of taking the entrance exam

5 Jf we viewed the Appre nticeship Program’s high school diploma

requirement as part of a pervasive “pattern of discrimination,”

see McKenzie v. Sawyer, 684 F.2d 62, 73 (D.C. Cir. 1982), then the

plaintiffs might have heen able to challenge it even though they

alleged injury by the requirement outside of the limitations period,

since the requirement, by hypothesis, would have been part of a

connected series of violations that extended into the limitations

period and at least one element of which was properly contested

within that period. However, we reject the suggestion that such

a pattern existed in this case, see Part IV.E infra, and reverse the

District Court’s contrary finding, Tr. F. 82, as clearly erroneous.

——<———— & -=£° ©

18a

within six months of the filing of charges with the

EEOC on his behalf and within six months of the filing

of this law suit. See Tr. F. 6, 14. Because this require-

ment was in effect since the end of the Open Period in

June 1971, all class members who were injured by the

requirement after that date may join in this suit and

any recovery under it.

D. Should Discouraged Nonapplicants Be Part of the

Plaintiff Class?

The appellants contend that the class definition should

not have included “persons who have never actually ap-

plied for membership in Local 201, or for admission to

the training or apprenticeship programs.” Brief of Local

201 at 46. This objection apparently derives from a mis-

understanding of at least part of the plaintiffs’ theory of

liability. The plaintiffs’ contention with respect to the

educational prerequisite for taking the entrance exam,

if not with regard for the Apprenticeship Program’s high

school diploma requirement, is that compelling experi-

enced rodmen to participate in some educational program

for six months or more before allowing them to take the

exam was itself unlawful. There is no reason why those

who were unwilling to subject themselves to an allegedly

unlawful regimen but who would have taken the exam

had this obstacle net been placed in their path, may not

challenge that requirement. We therefore see no merit

in the appellants’ objection insofar as it applies to the

plaintiffs’ attack on the instructional prerequisite to sit-

ting the entrance exam.

IV. PLAINTIFFS’ STATISTICAL PROOF OF DISCRIMINATION

A. Leqal Framework

1. Law Governing Establishment of a Prima Faci

Case by Statistical Proof

The legal framework governing plaintiffs’ claims is

straightforward. Under now-familiar Title VII law,

20a

to three standard deviations between expected and actual

results is sufficient to demonstrate that the disparity is

the product of something other than chance. See Cas-

taneda v. Partida, 430 U.S. 482, 496 n.17 (1977).

There is, however, a large gap between two and three

standard deviations, and thus the Supreme Court’s teach-

ing in this respect has not been entirely dispositive.

Under this circuit’s precedent, in most instances a dif-

ference of just under two standard deviations has been

deemed sufficient to establish a prima facie case. See

Palmer v. Shultz, 815 F.2d 84, 91-92 (D.C. Cir. 1987).

As we shall presently see, the statistical disparities in

this case are well above two standard deviations; we are

thus not faced with nettlesome issues such as whether

1.96 or 2 standard deviations ought to be the standard,

or whether a one-tailed or two-tailed statistical test

applies.°

A difference of two standard deviations corresponds

roughly to a five percent probability that the disparity

is the result of chance; this five percent standard is com-

monly referred to as the “.05 level of significance.” See

Segar v. Smith, 738 F.2d at 1282-83. Thus, if the likeli-

hood that a fluctuation from expected results occurred by

chance is five percent or less, a statistically significant

difference is proved, and a prima facie case of discrimi-

nation is established.

It is, of course, elementary that intent to discriminate

is a necessary element of Title VII disparate treatment

cases.’ But here too, statistics play an important part.

6 For a thorough explanation of the use and role of statistical

evidence in Title VII cases, including the nuances of one-tailed or

two-tailed tests, see Palmer v. Shultz, 815 F.2d 84 (D.C. Cir. 1987).

7 The standards and order of proof in section 1981 cases have

been held to be identical to those governing Title \ disparate

treatment cases. See Carter v. Duncan-Higgins, Inc., 727 F.2d 1225

(D.C. Cir. 1984); see also Stallworth v. Shuler, 777 F.2d 1431,

Zla

The basic office of statistical proof is to seek to eliminate

non-discriminatory explanations for racia! disparities;

thus a statistically valid showing of a substantial dis-

parity between expected and actual results may give rise

to an inference of discriminatory intent. Teamsters, 431

U.S. at 336 n.15; Hazelwood, 433 U.S. at 307-08.

What is more, this court has squarely held that, even

absent specific anecdotal evidence of discrimination,

statistical proof alone may establish a prima facie case

of intentional discrimination. Segar v. Smith, 738 F.2d

at 1277-79, 1286-87; see also McKenzie v. Sawyer, 684

F.2d 62, 71 (D.C. Cir. 1982) (“Statistics alone will suf-

fice to show illegally discriminatory treatment, if they

are condemning enough.) In the course of enunciating

this rule, the court in Segar rejected the proposition that

to establish intentional discrimination a showing of

gross disparities,” rather than mere statistically sig-

nificance disparities, is required. Segar v. Smith, 738 F.2d

aed ae dled

at 1277-78.

sé

2. Law Governing Rebuttal of a Statistically Based

Prima Facie Case

Once plaintiffs establish a prima facie case, the burden

shifts to the defendants to articulate a legitimate non-

discriminatory explanation for the statistical disparity.

See Segar v. Smith, 738 F.2d at 1267-68: Davis v. Cali-

fano, 613 F.2d 957, 961-62 (D.C. Cir. 1979).* Alterna-

1433 (11th Cir. 1985). As in Title VII disparste treatment cas

section 1981 prohibits only intentional discrimination. See General

Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375 (1982

To make out a claim under section 1981 a plaintiff must demo

strate that he was (1) treated differently than others who wer

milarly situated (2) because of his rae

“If defendants identify a racially neutral employment. pr;

In attempting to explain the disparities, a disparate /) cf analysis

s implicated. This is so because defendants will have identified

racially neutral business practice as the cause for racial disparities;

zon

tively, defendants can also meet their burden by demon-

strating that plaintiffs’ statistics are so flawed as to be

meaningless, or by introducing alternative statistical evi-

dence. See Dothard v. Rawlinson, 4383 U.S. 321, 331

(1977) (“If the employer discerns fallacies or deficien-

cies in the data offered by the plaintiff, he is free to

adduce countervailing evidence of his own.”); Segar v.

Smith, 738 F.2d at 1267-68.

We hasten to observe that, as the Supreme Court has

stated, “statistics are not irrefutable.” Teamsters, 431

U.S. at 340. After plaintiffs put on a statistical case,

it remains open on rebuttal for defendants to rely on

all types of evidence, statistical and otherwise. In the

typical case, defendants’ rebuttal case will likely focus

on (1) inadequacies in the plaintiffs’ statistical case,

(2) an alernative, more favorable statistical case, or

(3) a non-discriminatory explanation for the statistical

disparities. Since the ultimate burden of persuasion rests

always with plaintiffs, see United States Postal Serv.

Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983);

Segar v. Smith, 738 F.2d at 1284, district courts must

weigh in the balance al] the evidence—both plaintiffs,

statistical proof and defendants’ rebuttal—in reaching

the ultimate conclusion as to liability. Again, we draw

from the Supreme Court’s teaching:

Whether ... a [statistical] analysis does carry the

plaintiffs’ ultimate burden will depend in a given

ease on the factual context of each case in light of

all the evidence presented by both the plaintiff and

the defendant. However, as long as the court may

fairly conclude, in light of all the evidence, that it is

under traditional disparate impact analysis, they must also justify

the racially neutral employment practice as demanded by business

necessity. See Albemarle Paper Co. &. Moody, 422 U.S. 405, 425

(1975): see also Segar v. Smith, 738 F.2d at 1270; id. at 1303-04

(Edwards, J., concurring ).

. | — i

23a

more likely than not that impermissible discrimina-

tion exists, the plaintiff is entitled to prevail.

Bazemore v. Friday, 106 S. Ct. 3000, 3009 (1986) (per

curiam) (Brennan, J., concurring for a unanimous Court

on this point) (emphasis added).

B. Plaintiffs’ Statistical Challenge to the Union's Educa-

tional Prerequisite to the Journeyman Exam

In light of the governing legal framework, we turn

again to the case at hand. At bottom, plaintiffs claim

that (1) unnecessary barriers to taking the journeyman ®

exam prevented (or delayed) the entry of otherwise quali-

fied workers into Union ranks, and (2) those barriers

disproportionately disadvantaged black rodmen. The pro-

portion of eligible blacks who became Union members,

plaintiffs contend, is much lower than the proportion of

eligible whites who did. Inasmuch as the high school

diploma requirement is no longer part of the case, see

supra Part III.C.,"° the employment practices we are

called on to consider are two: the Apprenticeship Pro-

gram and the Training Program. It bears emphasis that

plaintiffs’ challenge is simple and direct: An educational

prerequisite—either Apprenticeship or Training—dis-

criminaterily delayed union membership for qualified

black permit workers. According to plaintiffs the educa-

tional prerequisite is utterly unnecessary if one can pass

the journeyman exam. Under this theory, since those

workers who are sufficiently experienced to take (and

pass) the exam without undergoing an educational pro-

]

* Full Union members are sometimes referred to as “jJourney-

men” or “journeyrnen rodmen,” and the exam as the “journeyman

exam.”

'0No proper challenge to the high school diploma requirement

was made; as a result, we have no occasion to consider either

statistical model by which plaintiffs sought to prove that the high

school diploma requirement disproportionateiy excluded blacks from

the Apprenticeship Program.

24a

gram are disproportionately black, delaying membership

by means of such a program ts untawfuly discriminatory.

1. The Experienced Pool Analysis

To prove that the Union’s" educational prerequisite

to the journeyman’s exam is discriminatory, plaintiffs-

were required to demonstrate that during the period in

question the percentage of eligible blacks who became

Union members—i.e., took and passed the journeyman

exam—was significantly lower than the percentage of

eligible whites. To accomplish this, plaintiffs relied on

an expert in labor economics, Professor Sheldon Haber,

to contruct a statistical model, which he dubbed the

“experienced pool” analysis.

Plaintiffs counted and identified as to race both poten-

tial and actual journeyman examinees, and compared the

racial composition of the two groups. Complicating the

analysis was the fact that the Union does not keep statis-

ties regarding applications to take the exam; * thus, a

proxy for identifying potential applicants had to be de-

vised. One important fact was deemed to be of especial

relevance in crafting a proxy. During the 1971 Open

Period, the Union itself relied on two years’ experience

as the criterion for determining who was qualified to take

the journeyman exam. In identifying a proxy for poten-

tial applicants. Professor Haber therefore took two years

as the benchmark for sufficient experience to take the

11 The parties have assumed, and we do not question their as-

sumption, that Local 201, the Apprenticeship Committee, and the

Training Program, although all separately named defendants, are

jointly liable for any discriminatory conduct in the operation of

the Apprenticeship and Training Programs.

12 Even had the Union kept application records, they would

have been of little value for purposes of the statistical analysis

in this case, because the fact remains that the Union’s educational

prerequisite would have deterred experienced rodmen from apply-

ing to take the exam.

25a

exam. With this benchmark in hand, Haber sought to

identify non-member permit workers with at least two

years’ experience in order to determine the pool of “likely

examinees.” This pool was then compared to the pool of

workers who actually took the exam, who were referred

to as “actual examinees.”

Another complication arose, however, in completing the

analysis: Union pension records reflects workers’ experi-

ence in terms of hours, not years. In consequence, Pro-

fessor Haber had to calculate (or estimate) the number

of hours that closely approximates two years’ experience

in the rodman trade. To determine this figure, Haber

referred back to the examinees during the Open Period

in 1971, and calculated the average number of hours

worked by those examinees in the two years (1969 and

1970) prior to the Open Period. Professor Haber then

calculated three averages: one for whites, one for blacks,

and a combined white and black workers average. With

these three averages, he chose the lowest average figure

of 2150 hours (for whites) as the benchmark. This con-

servative methodology assured that the pool of likely

examinees would not be skewed in favor of blacks."

Piaintifis then determined the percentage of workers

with 2150 hours of experience who took the entrance

exam ‘almost all of whom passed, and therefore became

Union members, see infra n.15)."* For the three-year

period prior to the filing of this lawsuit (October 22,

1972 through October 21, 1975), the proportion of experi-

enced whites who became Union members was 33.6 per-

cent (49 out of 146); however, the proportion of experi-

enced blacks who became members was a much lower

13 All permit workers who actually took the exam and became

members of the Union were likewise included in the pool of likely

examinees, regardless of the number of hours they had in fact

worked.

14 The task of identifying “actual examinees” was not difficult

because the Union kept records of who took the exam.

26a

15.3 percent (19 out of 124). See Tr. F. 82; see also

Brief of Appellees at 63.!° The possibility that a differ-

ence of this magnitude would occur by chance is approxi-

mately one in 1000, well over the requisite two standard

deviations." See Tr. F. 82. Plaintiffs also introduced

evidence relating to Union admissions going back to 1967,

all of which showed a statistically significant disparity

between the proportion of eligible blacks and whites who

became Union members. See 2d.

15We note that the percentage of blacks who took the exam

was 16.9 percent (21 out of 124). See Tr. F. 80. The minor

difference between the percentage of those who took the exam

and those who actually became members is attributable to the

fact that two blacks failed the cxam, and therefore did not become

members. Despite this slight discrepancy, we agree that taking the

exam can, for all practical purposes, be considered tantamount to

becoming a Union member. Over the October 1972-October 1975

period, the pass rate on the journeyman exam for whites was 100

percent, and 97.6 percent for blacks, a difference that plaintiffs

concede is not statistically significant. See Brief of Appellees at 69;

see also Brief of Local 201 at 19.

16The District Court stated that the statistical divergence

amounted to 3.3 standard deviations. See Tr. F. 82. We have

doubts about the District Court’s (or, more accurately, the plain-

tiffs’) arithmetic accuracy. For the June 1, 1971-October 21, 1972

period, the measures of black and white new members as a per-

centage of “likely examinees’ were 9.2 percent and 33.3 percent

respectively, corresponding to 29.25 standard deviations, see Tr. F.

82: for the Ocotber 1972-October 1975 period, the respective per-

centages were 15.3 percent and 33.6 percent—a smaller disparity

yet the District Court found that this corresponded to 3.5 standard

deviations. Id. It scems that either (or both) the 3.25 or 2.3 figure

is incorrect. Although we doubt the accuracy of some of plaintiffs’

specific statistics, we nonetheless do not doubt that the standard

deviations were all above the requisite level of two. More funda-

mentally, defendants have not challenged these calculat ions, nor have

they disagreed that if we accept plaintiffs’ methodology, the figures

show large disparities between the levels of whites and blacks

achieving Union membership. We thus see no need to remand this

already overlong case for clarification of the District Court’s cal-

culations.

rere rreeneeemernnill

Zia

Dr. Haber’s experienced pool analvsis thus showed that

the difference in the proportion of eligible white and

black achievement of Union membership far surpassed

the five percent significance level. The District Court

concluded, accordingly, that plaintiffs had established

a prima facie case of racial discrimination. Tr. F. 81.

The burden of rebutting the prima facie case then shifted

to defendants.

C. Defendants’ Objections to Plaintiffs’ Statistical Case

As in the District Court, defendants launch several

broad attacks on plaintiffs’ statistical case. At least one

contention, namely that Professor Haber was not a credi-

ble witness, can readily be disposed of. Credibility deter-

minations are obviously for the trial court to make; our

function on appeal is inconsistent with revisiting the

credibility of an expert witness unless his testimony was

“natently unsound.” 9 W. WRIGHT & A. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 2586, at 740 (1971). We are

unpersuaded that Professor Haber’s testimony can fairly

be dismissed on the basis of that daunting standard.

However, defendants’ other arguments merit fuller treat-

ment.

1. The Nature of Defendants’ Burden on Rebuttal

As we indicated above, to demonstrate that statistical

evidence is invalid, the challenger must present “credible

evidener ‘hat the statistical proof is defective’ and “a

plausibie explanation of how the asserted flaw is likely

to bias the results against his or her position.” Palmer

v. Shultz, 815 F.2d 84, 101 n.13 (D.C. Cir. 1987) (quot-

ing D. BALpUS & J. COLE, STATISTICAL PROOF OF DIS-

CRIMINATION vii (1986 Supp.)). In Bazemore v. Friday,

106 S. Ct. 3000, 3009 (1986) (per curiam), Justice

Brennan, concurring for a unanimous Court on this

point, stated:

28a

[I]t is clear that a [statistical] analysis that in-

cludes less than ‘“‘all measurable variables” may serve

to prove a plaintiff’s case. A plaintiff in a Title VII

suit need not prove discrimination with scientific

certainty; rather, his or her burden is to prove dis-

crimination by a preponderance of the evidence.

To rebut, the challenger must adduce proof specifically

showing that an alleged defect actually biases the results.

Mere conjecture or general assertions of inadequacies in

the opponent’s statistical case, without demonstrating

their effect on the results, will not suffice. Palmer ».

Shultz, 815 F.2d at 101 (diseussing Bazemore’s “dic-

tates”). With this additional background, we turn to

defendants’ specific attacks on plaitiffs’ prima facie

statistical case.

2. Defendants’ Objections to Plaintiffs’ Statistical

Results

Defendants argue that the experienced pool analysis

is so flawed and divorced from reality as to be meaning-

less. Their challenges are several. According to defend-

ants, the chosen benchmark of 2150 hours did not repre-

sent the cumulative experience of the Open Period exam-

inees, but rather their average hours for the two prior

years. Thus, the actual experience of the Open Period

examinees most likely exceeded 2150 hours by a large

margin. Defendants argue that this inacurracy renders

the experienced pool analysis useless, because 2150 hours

has no basis either as a measure of the actual experience

relied on by the Union during the Open Period, or as an

objective anproximation of the amount of experience

which qualifies one to take the exam.

Of course, there may be instances in which the relevance of

a claimed inadequacy is so obvious that pointing out its omission

is sufficient by itself to rebut plaintiffs’ statistical case. See Baze-

more, 106 S.Ct. at 3009 n.10; Palmer v. Shultz, 815 F.2d at 101,

Og eee

29a

This asserted shortcoming in the experienced pcol anal-

ysis, however, biases the results in dejendants’ favor.

Professor Haber testified that he purposely chose the

lower (white) average in order to maximize the number

of whites in the pool.’ According to defendants them-

selves, “the lower the ‘benchmark,’ the lower the propor-

tion of blacks in the ‘experienced pool.’” Brief of Lecal

201 at 106. Given the unmanipulable nature of the fig-

ure of actual new members, the ultimate percentage of

eligible workers selected for Union membership depends

entirely on the number of individuals in the eligible

pool: the more blacks in the pool of “likely examinees,”

the lower the percentage of black “actual examinees” as

a proportion of black “likely examinees’”’ will be, and vice

versa. Because white non-members on average had

worked fewer hours than black non-members, a lower

benchmark increases the number of white “likely exam-

inees” relative to the number of black “likely examinees.”’

The resnective percentages of “likely examinees” who be-

came “actual examinees,” it follows, are correspondingly

lower for whites and higher for blacks. Thus, rather than

demonstrating that the 2150 hour benchmark biases the

results in favor of plaintiffs, defendants’ analysis sug-

gests exactly the opposite.

Defendants also argue that the failure to segregate

the experienced pool by age (that is, to analyze sepa-

rately the group over age 30 and the group under age

31) fatally skewed the results in favor of plaintiffs. De-

fendants maintain that there was no reason not to seg-

regate by age when available data made it possible to do

so; this failure is significant, they argue, because the

respective paths to Union membership in the Apprentice-

ship and Training contexts were so different. Defendants

maintain that in the under-31 greup, blacks as a propor-

18 The average number of hours for the white examinees

the Open Period was 2150, the benchmark chosen. For blacks, th

average was over 2800 hours. See Tr. F. 69.

30a

tion of the total experienced pool constituted 24.8 percent

‘the black “availability rate’), while black participation

in the Apprenticeship Program was 30.3 percent, a figure

obviously greater than the black “availability rate.” See

Brief of Local 201 at 98. Similarly, in the over=30 pool,

blacks constituted 75.8 percent of the experienced work-

ers, with their participation rate in the Training Pro-

gram at 96.2 percent, again a figure well above the black

“availability rate.” Jd. Defendants maintain that the

failure to segregate the experienced pool analysis by age

therefore skewed the results in plaintiffs’ favor.

This argument suffers from a fatal flaw. Defendants’

analysis focuses on black participation in the Apprentice-

ship and Training programs, rather than black comple-

tion of the programs (i.e., achievement of Union member-

ship). If one focuses on black participation as a whole—

not segregating by age, the asserted flaw in plaintiffs’

analysis—the results are also favorable to defendants.

Thus, the failure to segregate by age had no independent

demonstrable effect on the validity of the experienced

pool analysis. This suggests that defendants’ challenge

to plaintiffs’ statistical case is in fact an attack on the

premises underlying the statistical model, to which we

now turn.

3. Defendants’ Attack on the Premises of the Ex-

perienced Pool Analysis

Defendants attack several fundamental aspects of the

experienced pool analysis. Among their objections are:

(1) that the concept of “access” to the exam relied on by

plaintiffs is flawed; (2) that not all experienced rodmen,

i.e., “likely examinees,” were interested in becoming

journeymen; (3) that no specific procedure within the

Apprenticeship or Training Program was shown to be

discriminatory; (4) that the Union cannot be forced to

increase the size of i membership in order to achieve

most centrally, that the experi-

)

racial balance: and |

3la

enced pvol did not account for “minimum objective quali-

fications” of the trade because an educational prerequi-

site is, and always has been, uniformly required.

(a) The “False” Concept of “Access”

First, defendants argue that it is wrong to regard

only those workers who completed one of the educational

programs and took the exam as having “access” to the

exam. Rather, they maintain, the proper definition of

“access” to membership includes those who were ad-

mitted to either the Apprenticeship or Training pro-

grams. As defendants see it, the only “requirement’’_to

gain access to Union membership is to secure admission

to one of the two educational programs; no one “fails”

or is otherwise forced out of either program, as evi-

denced by the fact that virtually all who finished their

respective program passed the exam. To survive the

educational component of either program, defendants

maintain, all one needed to do, in effect, was show up

for class. Therefore, the real source of disparity in mi-

nority membership, the argument goes, is the dispropor-

tionate number of minority dropouts from the Appren-

ticeship Program and, especially, the Training Program.

According to defendants, those who chose not to complete

one of the educational programs had no less access to

Union membership than did their colleagues who dili-

gently completed their particular programs.

If we accepted defendants’ invitation to focus on the

rate of participation in the educational programs, rather

than the rate of completion, then plaintiffs’ prima facie

case would indeed disappear. Defendants are correct that

the racial disparity in admissions to Union membership

can be explained entirely by the disproportionate rate of

minority dropouts from the educational programs.’? In

19 Tt is appropriate to observe at this juncture that the Training

Program, as a Department of Labor-funded affirmative action

32a

defendants’ view, it follows that, inasmuch as there were

no allegations of discrimination in the administration of

the programs, the experienced pool analysis is of no

relevance in determining the ability of minorities to gain

Union membership.

With all respect, the Union’s focus on participation in

the educational programs misses plaintiffs’ fundamental

point. Plaintiffs challenge the very existence of a train-

ing program as a discriminatory barrier to Union mem-

bership. So viewed, the higher dropout rate for biacks

obviously buttresses plaintiffs’ case: Absent rebuttal,

the fact of disproportionately high minority dropouts

demonstrates the effectiveness of the barrier to member-

ship represented by Local 201’s educational requirements,

particularly the Training Program. Defendants are thus

fundamentally in error in grandly asserting that plain-

tiffs cannot “simply cite the requirement of training as

the discriminatory practice at issue.” Brief of Local 201

at 97 n.106. The requirement of “training” is precisely

the issue. See infra Part IV.C.3.e.

(b) The Assumption That All Experienced Work-

ers Desired Union Membership

Defendants contend, next, that the experienced pool

analysis is inadequate because it assumes that all ex-

perienced workers desired to become Union members.

program, was overwhelmingly comprised of minorities. It is thus

hardly surprising that dropouts from the minority-dominated pro-

gram were predominantly minorities. There were many more ex-

perienced non-members over age 30 than under that age: those

individuals were overwhelmingly black. Combined dropouts from

‘as well as combined admissions to) both the Apprenticeship and

Training programs would therefore tend to be dominated by the

larger Training Program, and thus by minority workers. More-

over, apprentices had more incentive to stay in their program be-

cause during the early 1970s, unlike trainees, they paid an initiation

fee and full Union dues.

—eeoerereeeeeor

] a ‘oe

, the record demonstrates that

nee does not necessarily make one a “likely ex-

minee.” During the early 1970’s, permit workers ana

1] . , ] ] P . 23 °f} +

ourneymen alike were fully employed. In those circum-

stances, there was little incentive for a rodman to

undergo the considerable inconvenience ‘(and expense) of

hecomine a Union member. Indeed, several of the named

— — fa . Y ee 4 ><]

would have led to Union membership. See Brief of Loca

9Nn1 at G2 TNefendante nr that +] xperienced pool

201 at 93. Defendants urge that tne. experienced poo!

! ‘s therefore flawed bv virtue of this unfounded

sun )) T'o hold to the contrary, they maintain,

| be to require the Union somehow to force workers

7 T ] } . | ache e rac] »] halar e 9

) Ol} Union 1h Ordel » af \ ] alan som

1 17 1 1 ¢

’ that ndisuntal not required (and indeed for-

| q | ) ” oT 4 (

iden) by Title Vil. See Brief of Local 201 at 94

We « safe sume that, for one reason or another

} ]

1] aoes ? ( {) Thaw the experienced poo

; +1 | ie } = - ‘ees 4

! ; therel rendered inadequate, or tha

] satieuasl an . {

[ ] somenoy I n required to torce ers

] a] ‘ ial hal Rat} ) We he.

l In ordel acCnieve racla yalance LaLne \

7 , 5 |

‘ fone 7 cen y rY) / ¢ T ‘ a Tne

] 4 . . hx 7 "V6

need } : not undermined b yar-

P i , . enn

} } r s17mM? Yn } experlenced workers

CUCU < ‘ I ‘ \}

I reasotl is | ~ ] ere S

, j £4

; 4 é (7 ‘7 Cra pif f

. wil +}

T ‘ car ;

Lv 4 |

y ? 7 ( ¥ eT ¥ ‘

\\ , tan d

34a

less interested in Union membership than whites. Cer-

tainly, defendants have presented no persuasive argu-

ments or evidence to the contrary. Indeed, during the

Open Period, when blacks and whites had equal oppor-

tunity to take the exam, they did so in relatively equal

proportions. Absent a showing that the demonstrated

inadequacy in the experienced pool analysis biased the

results in plaintiffs’ favor—that is, that black non-

members did not desire to be members in roughly equal

numbers as white—defendants fail to undermine the

prima facie case.

(ec) The Failure to Identify Specific Discrimina-

tory Procedures, or to Demonstrate that De-

fendants’ Conduct Caused the Racial Dis-

parities

Defendants next urge that plaintiffs failed to identify

the specific test, procedure or practice alleged to have had

a discriminatory impact, or (under a disparate treat-

ment or section 1981 analysis) to demonstrate that dis-

criminatien was the Union’s “standard operating proce-

dure.” See Brief of Local 201 at 94-96. Defendants

arcue that a prima facie case discrimination was there-

fore not made out. These arguments can be dealt with

in short order.

Quite simply, defendants once again decline to recog-

nize the thrust of plaintiffs’ challenge. The “specific pro-

cedure” under challenge is the requirement of classroom

training before eX] erienced workers may qualify to enter

the ranks of journeymen rodmen. That theory of the case

fully satisfies defendants’ obvious right to know precisely

what is under challenge. And defendants -have failed to

explain why the asserted barrier of an absolute educa-

tional requirement, regardless of experience and ability,

is somehow shielded from attack. With respect to the

alleged failure to demonstrate that discrimination was

the Unien’s “standard operating procedure,” plaintiffs’

statistical proof, reaching the requisite showing of ap-

sing ap two standard deviations, supphes an infer-

ence of discriminatory intent for the reasons set forth

in Part [V.A.1. of this epinion.

Defendants counter that there has been no showing of

4 causal connection between the challenged practice and

the alleged discriminatory result. According to defend-

ants, “|t|he Court cannot indulge in the assumption that

Defendants caused people to drop out of the apprentice

or training programs.” Brief of Local 201 at 96. De-

fendants argue that no evidence suggested, much less

demonstrated, that the higher minority drepout rate from

the two programs Was attributable to any of their ac-

tions. Here too, defendants have missed a basic point,

which we have already elucidated: in a case based on

statistical proof, direct evidence of discrimination is un-

necessary. Se Hazelwood School Dist. v. United States,

132 U.S. 299, 307-08 (1977); Segar v. Smith. 738 F.2d

249. 1277-79 (D.C. Ci LOS4 ceyt. denied, 471 U.s

} 4 45 a 1s t . } r+ 4 OY ; bs ata . ;

ndeed. the entire notion of employing stats ical prool

. 4 liz enat san-ediserimmingtorv cia eacccea.” (ORG lik Ve ;

LS ‘i 6S iminate né n-discriminalory CAUSES AD 1KeLy exX-

nations tor racial disparities. In the present conte a

. : , 1c h Qc fs \« . re ] ; + |- . ‘ . °

it seems to us that as a matter Oi Logic there are tout

’ shi —ar > 4 ez 117 : ° C 6.41191 “ - .

no-sible explanations tO ace unt 10} the tallure ol blacks

to gain Union membership in equal proportions to whites:

pure chance; b) blacks did not desire to join

Union in roughly equal numbers es whites; ¢) blacks

}

‘led the exam in greater percentages

d) the educational prerequisite discouraged blacks from

takine the exam in greater proportion than whites. Pos-

Dill (a) Was, OF COUrsé elimi ted Ss Dart OL pi -

fis Tat: tis | y 11] (b) ean

( i e ellinin« ted sin (lisc ed apove, the e 1s

} SO] tO 1 tna NAC in ren had les cle-

hit to join tl Union Indeed, aS we Sa

hove, the evidence as to the Upel Period ugg @X-

36a

actly the opposite). Possibility (c) is untrue as a matter

of fact, as the parties agree. That being so, plaintiffs by

their statistical proof established a prima facie case that

possibility ‘(d) provides the true explanation. Under

settled principles, the burden thereupon shifted to de-

fendants to demonstrate to the contrary. Defendants are

therefore off the mark in arguing that plaintiffs have not

shown causation. Contrary to defendants’ protestations,

the burden fell to them to show that some racially neu-

tral explanation existed for why blacks were failing, dis-

proportionately, to become Union members.

(di The Experienced Pool Analysis Would Re-

quire the Union to Maximize its Membership

anks to Achieve a Racial Balance

Defendants argue that the experienced pool analysis

operate so as to penalize the Union for not maximizing

its membership ranks to achieve racial balance. See Brief

of Local 201 at 103-05, According to defendants, the

largest portion of the experienced peol consisted of work-

ers over age 30; this group also happened to be dis-

proportionately black. Defendants reason that because the

Training Program was an affirmative action program,

and whites over age 30 therefore had less effective ave-

nues to Union membership than did blacks, plaintiffs’

complaint boils down to a quibble that greater numbers

of blacks over age 30 were not admitted to Union ranks.

And, defendants continue, the only reason for admitting

these more experienced workers would be to achieve a

desired racial balance. According to defendants, Title

VII does not require them to achieve a racially balanced

membership.

To be sure, defendants are correct that unions have

a legitimate, racially neutral interest in limiting the size

of their memberships in accord with market demands.

No one in this case has quarreled with the proposition

that, at least insofar as the civil rights laws are con-

eee meee

37a

cerned, Local 201 should be permitted to continue to

“determine[] its number of apprentice and trainee in-

dentures based on available employment.” Brief of Local

201 at 105.

But it is equally clear that Unions are not permitted

to limit their rolls in a discriminatory manner. Plaintiffs

do not claim, and we emphatically do not hold, that the

Union’s vice was in failing to open its doors to all ex-

perienced blacks over the age of 30."' Rather, we hold

today only that the means chosen by the Union to achieve

its legitimate end of limiting membership were, in the

face of plaintiffs’ proof, impermissibly discriminatory.

The Union remains at liberty to employ a more stringent

exam, or any other job-related system of qualifying work-

ers for Union membership, so long as the result is not

violative of the civil rights laws.

(e) The Experienced Pool Analysis Did Not Ac-

count For Minimum Objective Qualifications

Defendants’ final challenge to the plaintiffs’ prima

facie case is fundamental in nature. It is well estab-

lished that if a statistical model does not take into ac-

count the legitimate, objective qualifications for the jobs

being analyzed, then it fails sufficiently to focus on an

anpropriate labor pool, and is therefore deficient in es-

tablishing a prima facie case. See Palmer v. Schultz, 815

F.2d 84, 91 n.6 (D.C. Cir. 1987); Segar v. Smith, 738

F.2d 1249, 1274 (D.C. Cir. 1984), cert. denied, 471 US.

1115 (1985) According to defendants, the experienced

pool analysis, in assuming that experience alone can

qualify one to be a journeyman, fails to account for mini-

mum objective qualifications for becoming a Union mem-

“1 We do not quarrel with the Union’s point that blacks over

30 had greater access to Union membership than whites of the

same age. This too is irrelevant, though we observe that much

of the reason for this state of affairs is that far more non-members

over age 30 were black.

38a

ber. Defendants argue that plaintiffs’ statistical proof

therefore failed to establish a prima facie case.

At first blush, defendants’ argument appears formid-

able. A basic premise of the experienced pool analysis,

and indeed of plaintiffs’ entire case, is that the Appren-

ticeship and Training programs are unnecessary for some

workers, namely those sufficiently experienced to pass the

rodman exam without classroom training. But it is un-

disputed that the rodman trade has historically been ap-

prenticeable; moreover, it stands to reason that on-the-job

experience alone may not necessarily teach all that a

fully qualified rodman should know. Nonetheless, al-

though there was conflicting testimony at trial, the Dist-

trict Court was unsatisfied that the Training Program

classes to which plaintiffs were subjected were in fact

substantive in nature or that workers learned through

attendance at such classes.**

But there is another factor as well. During the 1971

Open Period, the Union admitted workers to the exam

based entirely on experience at the trade. See Tr. 1484

(vol. 1), 1563-64 (vol. i) (testimony of Mr. Grigsby,

Local 201’s Business Manager). All workers who were

not journeymen members with at least two years’ ex-

peyience—the approximate length of the apprenticeship

period—-were invited by the Union to take the exam dur-

ing that period. It was by this very amount of experience,

on which the Union itself had relied in the past, that

plaintiffs employed as the minimum necessary to qualify

“2 In this regard, we are frankly troubled by the District Court’s

casual intimations to the contrary in view of the record. See Tr.

F. 14, 103-05. The weight of the evidence, which the District Court

chose not to treat specifically, clearly was that the Training Pro-

gram classes were substantive. See, e.y., Tr. 1514-15 (volume h)

(Testimony of Mr. Grigsby, Local 201’s Business Manager); Tr.

1830-43 (vol. k) (Testimony of Mr. Masler, an instructor in the

Training Program). Unfortunately, the trial court failed to address

the evidence, and we are left without the benefit of the District

Court’s specific views in this respect.

—

39a

for the exam in constructing the statistical case. In our

view, the existence of the Open Period points to the con-

clusion that the Union itself has not viewed an educa-

tional requirement as an absolute, minimum objective

qualification for becoming a journeyman rodman.

We do not doubt that the Union could reasonably con-

clude that apprenticeship or training is preferable to ex-

perience alone in identifying and choosing journeymen

rodmen. As we have said earlier, absent discriminatory

practices, the Union remains free to utilize any such job-

related vehicles. But the Union has, in effect, hoisted

itself on its own petard, having chosen in the Open Pe-

riod to treat experience alone as sufficient for admission

to the journeyman exam. It therefore cannot now he

heard to complain that classroom training was, all along.

absolutely indispensable.

Recognizing the vulnerability posed by the Open Pe-

riod, defendants respond that that episode was an iso-

lated, short-term event, a one-time practice imposed by

the International. Moreover, they protest, the exam

utilized during that brief period was different from the

normal journeyman’s exam, with the concomitant result

that workers failed the exam in high numbers. We have

no quarrel with these asserted facts, but we disagree

with the Union as to their significance. In our view,

the Open Period establishes that experience ¢an 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 jowr-

neyman Status.

We hasten to add that there is nothing remarkable in

our rejecting defendants’ argument with respect to mini-

mum objective qualifications. We in no wise disparage

the legitimate qualifications for becoming a journeyman

redman, see Griggs v. Duke Power Co., 401 U.S. 424,

436 (1971); nor do we in any manner suggest that the

40a

Union is required to admit unqualified individuals, see

Local 28, Sheet Metal Workers Intl Ass’n v. EEOC, 106

S Ct. 3019 (1986). Under our analysis, the Union re-

mains free, among other things, to (1) require signifi-

cant rodman experience before an applicant may be ad-

mitted to the journeyman exam, (2) offer (cured of dis-

crimination against experienced workers) both the Ap-

prenticeship and Training programs, and (3) devise a

more exacting or thorough exam for rodmen who eschew

classroom training to assure that skills (eg.. 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}.

D. Defendants’ Rubuttal Case

Defendants’ various objections to plaintiffs’ statistical

case are best considered as an effort to undermine the

validity of the experienced pool analysis. The record is,

indeed, devoid of any affirmative rebuttal case—that is,

seeking to prove by their own evidence that admission

to Union ranks was not racially disproportionate. We

therefore conclude, in light of our earlier analysis, that

plaintiffs’ prima facie case went unrebuttted. The Union

is thus liable to those class members who were exper-

enced workers, but were delayed entry to Union ranks

by the particular educational prerequisite affecting them

from the end of the Open Period until the filing of suit

on October 21, 1975.*°

23 This time-frame theoretically includes some workers who were

experienced (and therefore delayed membership by virtue of the

Apprenticeship Program) prior to the institution of the Training

Program in September 1972. It certainly includes workers who

were experienced, yet were deterred by the barrier of Apprentice-

ship or Training after September 1972.

4la

E. Plaintiffs’ Failure to Show a Pattern of Discrimina-

tion

The District Court stated broadly that “plaintiffs .

demonstrated that, since 1967, all of the rules used by

the defendants for selecting examinees have discrimina-

torily prevented blacks from gaining membership in [the

Union],” Tr. F. 82, and that these “discriminatory ac-

tions against plaintiffs and the class are continuing vio-

lations of Title VII and section 1981.” Trial Conclusion

of Law (“Tr. C.”) 22; see also Tr. C. 21 (“The evidence

presented demonstrates persistent, pervasive and inten-

tional discrimination against black rodmen.”) The Dis-

trict Court thus found defendants liable for all selection

procedures used since 1967, under a theory of continuing

violation or pervasive pattern of discrimination. See

Milton v. Weinberger, 645 F.2d 1070, 1074-75 (D.C. Cir.

1981) (referring to continuing violations as “series of

related cast, one or more of which falls within the limi-

tations period, or the maintenance of a discriminatory

system both before and during the stautory period”

(quotation and citations omitted)); United Air Lines,

fic. v. Evans, 431 U.S. 553, 558 (1977): Valentino v.

United States Postal Serv., 674 F.2d 56, 65-66 (D.C.

Cir. 1982).

Plaintiffs’ theory is that, over many years, the Union

erected a series of barriers which, in suecession, accom-

plished the discriminatory purpose of keeping blacks out

of the Union. In plaintffs’ view, the various selection

systems chosen by the Union, taken together, reflect an

insidious pattern: “deny access to an exam, allow access

to an exam but fail blacks disproportionately, then deny

access again.” Brief of Appellees at 29. P.aintiffs hope

to connect the violations which are clearly within the

limitations period—the delay inherent in requiring ex-

perienced workers to undergo apprenticeship or training

to the violations we have held to be outside the limita-

tions period—-the allegedly discriminatory Open Period

42a -

exam and the allegedly discriminatory high school di-

ploma requirement. The District Court agreed with

plaintiffs and held defendants liable for all the alleged

violations.

Under settled principles, the appropriate analysis with

respect to continuing violations focuses on whether the

current violations were taken pursuant to the same em-

ployment policy as the actions sought to be challenged

outside the normally applicable limitations period. United

Air Lines, Inc. v. Evans, 481 U.S. 553, 558 (1977);

Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 473

(D.C. Cir. 1976), cert. denied, 434 U.S. 1086 (1978).

The inquiry is thus whether the various admission proce-

dures since 1967, taken together, constituted a single

policy to discriminate. For reasons which we will explain

below, we hold that they do not. Based on the entire

record, we are unpersuaded that the totality of the

Union’s selection procedures constitute a “pattern of dis-

crimination,” McKenzie v. Sawyer, 684 F.2d 73 (D.C.

Cir. 1982), or “a chain of connected events,” Bethel v.

Jefferson, 589 F.2d 631, 636 (D.C. Cir. 1978), suffi-

cient to justify relaxing the normal limitations periods

for challenging those practices. Indeed, plaintiffs have

introduced no evidence connecting the varicus procedures

so as to establish an ongoing policy and plan to dis-

eriminate.

First and foremost, the Open Period procedure marked

a sharp break in the Union’s traditional admission prac-

tices. Suddenly, any individual with the requisite level

of experience was permitted access to the exam. There-

after, the new system instituted at the conclusion of the

Open Period likewise broke any connettion to prior selec-

tion practices. It manifestly represented a break from

the Open Period. We cannot fail to note that the Train-

ing Program, instituted after the Open Period, was a

federally funded, approved, and supervised, affirmative

action program. The dual Apprenticeship Training sys-

45a

tem was thus an entirely novel system, unconnected to the

Open Period procedure or to the earlier Executive Board /

Apprenticeship system. Absent any evidence of intent to

exclude blacks over time in the fashion plaintiffs hypo-

theize, the various systems are more naturally and rea-

reasonably viewed as separate. There certainly has been

no showing that the Union long ago conceived a plan to

exclude blacks by whatever means seemed efficacious as

time progressed. Accordingly, the District Court’s find-

ings to the contrary are reversed.

V. PLAINTIFFS’ ALLEGATIONS OF RETALIATORY CONDUCT

UNDER TITLE VII

The District Court found that the defendants “or other

agents” not further identified unlawfully retaliated

against p'aintiffs Jackson, Kirklan, Berger, Lewis. and

Bellamy in violation of seceion 704(a) of Title VII.

which makes it

an unlawful employment practice for an employer to

discriminate against any of his employees or appli-

cants for employment, fer an employment agency,

or joint labor-management committee controlling ap-

prenticeship or other training or rertaining, includ-

ing on-the-job training programs. to discriminate

against any individual, or for a labor organization

to discriminate against any member thereof or ap-

plicant for membership, because he has opposed any

practice made an unlawful employment practice by

this subchapter, or becnuee he has made a charge,

testified, assisted or participated in any manner in

an investigation. proceeding. or hearing under this

subchapter.

42 U.S.C. § 2000e-3 (a).

Te establish a prima facie case under section 704(a).

a plaintiff must show: 1) that he or she engaged in

activity protected by the statute: 2) that the employer,

44a

joint labor-management committee, or labor organization

engag me in conduet having an adverse impact on the

tiff: and 3) that the adverse action was causally

related to the plaintiff's exercise of protected rights.

Mitchell v. Baldridge, 759 F.2d 80, 86 (D.C. Cir. 1985) ;

McKenna v. Weinberger, 729 F.2d 788, 790 (D.C. Cir.

1984). Once that burden has been met, the defendant

may introduce rebuttal evidence providing legitimate,

nonretaliatery reasons for its conduct. The plaintiff may

then attempt to show that the defendant’s asserted jus-

tification is “merely a ‘pretext’ covering up unlawful

retaliation through the guise of innocent business p!an-

ning.” Williams v. Boorstin, 663 F.2d 109, 116 (D.C.

Cir. 1980). The evidence presented by the parties may

at this point suggest that the reasons for the defendant’

conduct are mixed, consisting of both retaliatory and

lecitimate factors. For that reason, this circuit has

adopted 2 “but for” test of causation: “If the plaintiff

has made a showing of ‘pretext,’ the defendant ... must

by clear and convincing evidence that

the plaintiff would have [been subject to the defendant’s

actions! anyway absent retaliation for the plaintiff's

participation in protected conduct.” /d. at 117.

then demonstrate

The District Court held that each of the plaintiffs had

established a sie facie case of retaliation. Tr. C. 29.

In addition to specific findings “-elating the adversity eech

of the plaintiffs had suffered, the court made two addi-

tional, but very general, findings. First, the court found

that “[tlhere is overwhelming evidence that defendants

and their agents knew of plaintiffs’ participation in this

suit or in otherwise protected edie Tr. C. 28. Sec-

ond, the court rejected the unspecified justifications the

defendants had offered, apparently regarding them as

pretextual. Tr. C. 29. For reasons we discuss below, we

find that with one exception the District Court’s findings

of retaliation are clearly erroneous

4da

A. Plaintiffs Berger and Lewis

The court’s findings respecting plaintiffs Berger and

Lewis share common features; in both instances, the Dis-

trict Court found that the plaintiffs had been subjected

to oral threats after they participated in this lawsuit.

The court found that “Berger heard Tommy Gilmer, then

business agent for Local 201, state at a union member-

ship meeting ... that he was going to make it hard on

those who filed this suit.” Tr. F. 113. The court also

found that Gilmer threatened to withhold from Lewis an

application for the Training Program until Lewis agreed

to drop his charges of discrimination. Tr. F. 114. In

neither case, however, did the District Court find that

the “threat” was carried forward.

In the absence of a finding that the plaintiff has suf-

fered adverse action, a retaliation claims fails as a matter

of law. Evans v. Davie Truckers, Inc., 769 F.2d 1012,

i014 (4th Cir. 1985).°°The District Court made no spe-

cific findings that Berger or Lewis were subject to ad-

verse treatment, and we cannot agree that Gilmer’s state-

ments, standing alone, can reasonably be viewed as

“veiled threats and harassment” amounting to “classic

examples of ‘retaliation.’” Tr. C. 27. Our review of the

record, in fact, reveals that Jackson himself testified that

Gilmer did not threaten to withhold the Training Pro-

gram application from him, but merely asked Lewis if he

would drop the charges of discriminatien once he was

accepted into the program.*' Similarly, Gilmer’s state-

ment that “he was going to make it hard” on the plain-

tiffs, though probative of retaliatory animus, *had no

effect itself on Berger, and was not put into effect

“! Lewis testified:

Q: So [Gilmer] didn’t tell you that you had to drop [the

charges] in order to get in the program.

A: No, he asked me was I willing to drop the charges.

Tr. at 469.

———————————eEeEeEeEeEeEeEeEeEeEEEeEeeeereee

46a

through any action against Berger; it can best be char-

acterized as “ill-advised but essentially harmless.” Leese

vw. Patesville Casket Co., 25 Fair Empl. Prae. Cas.

(BNA) 1472, 1477 (D.D.C. 1981).

Because the Discrict Court’s findings lack an essential

ingredient of a retaliation claim, they are insufficient to

suppovt its judgment against the defendants. We recog-

nize, however, that repeated threats against individuals

in response to their exercise of protected rights may

amount to harassment sufficient to establish a claim of

retaliation. See Rogers v. McCall, 488 F. Supp. 689, 697

(D.D.C. 1980) ; B. SCHLEI & P. GROSSMAN, EMPLOYMENT

DISCRIMINATION LAW 554 (2d ed. 1983). For that rea-

son we have reviewed the record with particular care for

any evidence of repeated threats or other individualized

harm to either Berger or Lewis that can fairly be re-

earded as retaliatory. See Reese, 25 Fair Empl. Prac.

Cas. at 1477. That search, however, has been fruitless.“

The judgment of the District Court concluding that

plaintiffs Berger and Lewis had suffered unlawful retali-

ation at the hands of appellants is, therefore, reversed.

B. Plaintiff Jackson

The District Court found that plaintiff Jackson “twas

laid off in January 1975, after charges of discrimination

had been filed with the [EEOC], and was told by the

superintendent of the job site that he had orders from

'a former Loeal 201 official] to fire him.” Tr. F. 111.

Jackson's testimony is the only evidence of the Union’s

“5 We do note that Berger testified that after Gilmer stated that

he “was going to make it hard” on the plaintiffs, Berger worked

only a total of four days in the sixteen-month period preceding

trial. Berger’s testimony was rebutted by pension records indicat-

ing that he worked over 1200 hours in this period, more than the

average journeyman. We must assume that the District Court

credited the rebuttal evidence since there is no finding that Berger

suffered from retaliation in being denied referrals.

47a

(or any other defendant’s) participation in his layoff,

and the portion of his testimony that makes this connec-

tion was, upon objection, excluded from the record by

the District Court. Tr. at 249-50. The only record evi-

dence bearing on the circumstances surrounding Jack-

son’s layoff and the involvement of the defendants therein

is the testimony of the same superintendent whom Jack-

son alleges made the statements implicating Local 201.

The superintendent—himself a member of the plaintiff

class—testified that Local 201 was not involved in Jack-

son’s layoff. Tr. at 2543. Because there is no competent

evidence linking any of the defendants to Jackson’s lay-

off, the District Court’s finding is clearly erroneous.

Even if we were to accept Jackson’s proffered testi-

mony, the District Court’s finding would remain unsound.

Jackson testified that the reason for his layoff was _ be-

cause he was black, Tr. at 250, and because the Union

“found out 'he}] was making $24,000 a year {and} that

that is too much for a permit man, especially [a] black

lone].” Jd. at 279. Clearly, Jackson does not view him-

self as a victim of retaliatory conduct; in fact, nowhere

in his testimony is the charged filed with the EEOC men-

tioned, much less connected with his layoff.

Read in the light most favorable to the plaintiff, Jack-

son’s testimony at most suggests that he was discrimi-

nated against on the basis of.race. It is simply irrelevant

to a charge of retaliation.*®

It is apparent that the District Court confused the

standards applicable to claims of retaliation with the

26 See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 799-800

(1973) (emphasis added) :

section [§ 704(a)] relates solely to discrimination against

an applicant or employee on account of his participation in

legitimate civil rights activities or protests, while [section

703(a)(1) of Title VII] deals with the broader and centrally

important question under the Act of whether, for any reason,

a racially discriminatory employment decision has been made.

48a

standards applicable to claims of racial discrimination.

Whatever merit Jackson’s claim may have under Title

VII’s provisions prohibiting racial discrimination in em-

ployment, that is not the claim before us. The court’s

conclusion that Jackson was laid off in retailation for

the exercise of protected statutory rights is reversed.

C. Plaintiff Kirkland ‘

The District Court found tha it t plaintiff Kirkland had

been laid off in retaliation for participating in this law-

suit. Tr. F. 112. The layoff occurred approximately one

week after a conversation between Kirkland and his

supervisor, Kay Coda, in which Coda questioned Kirk-

land about the lawsuit. Although Kirkland’s testimony

thus establishes the essential elements of a retaliation

claim against his employer—z.e., engaging in protected

activity, an adverse employment action, and knowledge

of the protected activity on the part of the employer—

that employer was not named as a defendant in this case.

Our review of the record indicates that there is no

evidence linking Kirkland’s layoff with any of the named

defendants in this case; nor does the sequence of events

leading up to the layoff provide a basis from which an

inference could be drawn that the hands of any of the

defendants were lent in support of the employer’s ac-

tions. We also discern no basis in the record for treating

Kirkland’s employer as an “agent” for any or all of the

defendants.

The plaintiffs argue that Local 201 may nonetheless be

held liable for retaliation because it has an affirmative

duty to challenge employer discrimination against union

members and failed to de so in this case. It is true that

the Supreme Court has recently held that a union that

ignores or refuses to process its members’ grievances

against employers for alleged racial discrimination may

be held liable under Title VII and section 1981. Goodman

49a

v. Lukens Steel Co., 107 S. Ct. 2617, 2625 (1987). That

decision, however, provides no support for the argument

here advanced by the plaintiffs. The District Court

found that the alleged retaliatory act against Kirkland

consisted in the layoff, not in the defendants’ failure af-

firmatively to oppose the employer’s discriminatory con-

duct. Tr. C. 27. Thus, whether any or all of the defend-

ants had an affirmative duty to take action against

Kirkland’s employer, is an issue that was neither argued

before, nor addressed by, the District Court.27 We there-

fore hold that the District Court erred in finding the de-

fendants liable for retaliation against Kirkland.

D. Plaintiff Bellamy.

In a letter dated November 11, 1974, plaintiff Bellamy

complained to the International about the Union’s dis-

criminatory practices. Shortly thereafter, he was laid off

from employment by Y & M Steel.** When he next re-

ported to Local 201’s referral hall, a Union official

confronted Bellamy about the letter, the two men “ex-

*7 Even if the argument pressed by the plaintiffs were properly

before this court, Goodman would not be controlling. There is no

evidence that Kirkland appealed to the defendants for relief through

grievance or other available procedures. In Gocdman, the Court

specifically declined to address the question whether “mere pas-

sivity” in the face of employer discrimination. against union mem-

bers is sufficient to establish a claim under Title VII or section 1981

against the union representing those employees. Goodman, 107

S. Ct. at 2623. Even “mere passivity,” however, implies that the

defendants were at least aware of the employer’s discriminatory

practice. Although we may assume that Local 201 was aware of

Kirkland’s layoff, we cannot first assume, in the absence of any

evidence, that any of the defendants knew, should have known,

suspected, or should have suspected that the layoff was made for

other than legitimate business reasons.

78 Although the plaintiffs appear to argue that the layoff itself

was retaliatory, see Brief for Appellees at 83, this claim is not

supported by the District Court’s findings; we therefore decline to

address this issue.

violations of Title VII and section 1981. Supra Part IV.

We have now upheld the court’s finding that plaintiff

}

Pa ~e Pees os, + ] 4 > i oe ee tAtalsiat+ M .

beuwamM Was subjected to unlawful reLanation :.1n the

Li ; ] ‘)¢)7 hag *) dj ’ ‘oportionat: 1M 19 pt ‘aD!

8) Gre | oe \ I J Serene! rat Isp! WULILLIVUIIAa LiLLPIACL i

form of reduced wages. Without more, however, these

conclusions Go not implicate the International. The cir-

‘umstances under which an international union may be

eld lable for discriminatory practices of an affiliated

al union, or for retaliatory conduct occurring at the

| level, is a question of first impression in this circuit.

As we explain more fully below, we have little difficulty

mcluding that the International’s involvement in the

membership practices of Local 201 was sufficiently ex-

ensive to subject it to liability under Title VII and sec-

tion 1981. By contrast, we are unable to discern any

basis for subjecting the International to liability for

Bellamy’s retaliatory wage reduction.

A. Le a | 1/ Backgi omnd

It has long been established that a collective entity, In-

luding a labor organization, “may only be held resnpoxsi-

ble for the authorized or ratified actions of its officers

nd agents.” Shimman v. Frank. 625 F.2d SO, 95 (+ 6th

Cir. 1980) (quoting North American Coal Co. v. United

Mine Werkers, 497 F.2d 459, 466-67 (6th Cir. 1974)

This standard of liability extends generally to situations

In which an international union is sued for the condnet of

its affiliated local. More specifically, in Section 301(e) of

the Labor-Management Relations Act, 1947 (“LMRA’’).

29 ULS.C. § 185'e) (1982), which governs suits for vio-

tons of contracts between an employer and a union or

]

}

tween two labor organizations, Congress “adopted a

52a

common-law agency test” to govern the liability of an

international for the acts of its affiliated locals. Carbon

Fuel Co. v. United Mine Workers, 444 U.S. 212, 217

(1979) ; see also Shimman, 625 F.2d at 97-99. In Carbon

Fuel, the Supreme Court held that in order to hold an in-

ternational union liable in damages for “wildcat” strikes

engaged in by its locals, a plaintiff must adduce specific

evidence that the international “instigated, supported,

ratified, or encouraged” those actions, id. at 218, or “that

what was done was done by their agents in accordance

with their fundamental agreement of association.” Jd.

at 217 (quoting Coronado Coal Co. v. Mine Workers, 268

U.S. 295, 304 (1925)); see also United Mine Workers

v. Gibbs, 383 U.S. 715, 735-42 (1966).

The plaintiffs argue that the cases in which common

law agency principles have been invoked to determine

whether an international should be held to account for

the activities of a local “have nothing to do with Title

VII or section 1981.” Brief of Appellees at 103. True

enough. The question is therefore whether any different

standard for holding the International liable obtains in

this arguably different context. The plaintiffs claim that

these civil rights statutes create an “affirmative duty” in

the International to eliminate discrimination, such that

the International may be held responsible for the dis-

criminatory acts of its local if the plaintiffs demonstrate

merely a “sufficient connection” between the Interna-

tional and the discriminatory practices in issue.

The primary authority upon which the plaintiffs rely

is the Fifth Cireuit’s decision in Myers v. Gilman Paper

Corp., 544 F.2d 837, modified on other grounds, 556 F.2d

758 (5th Cir.). cert. denied, 434 U.S. 801 (1977), which

pre-dates the Supreme Court’s decision in Carbon Fuel.

In Myers, the court found an international liable for the

discriminatory effects of a collective bargaining agree-

ment administered by one of its locals, despite the in-

ternational’s claim that there was no “specific proof that

53a

it caused, participated in, or ratified its local’s acts or

omissions.” Jd. at 850. The court concluded that a “suffi-

cient connection” existed between the international and

the discriminatory practices by virtue of the “close rela-

tionship” between the international and the local:

Here the international established a close relation-

ship with its locals, under which the international

would generally provide advisors who would review

and often comment upon the local’s bargaining posi-

tion. An additional aspect of the relationship was

the international’s requirement that locals submit

contracts to it for its approval.

Id. at 851.

While the plaintiffs are certainly correct in arguing

that § 301 of the LMRA does not directly control this

case, we are convinced that the common-law agency prin-

ciples underlying it provide the appropriate analytical

framework as well under Title VII and section 1981.

Two reasons support this conclusion. First, the Court’s

decision in Coronado Coal, which predated the enactment

of the original National Labor Relations Act, suggests

that where Congress has not otherwise declared the

standards governing vicarious liability, a union’s liabil-

ity for the acts of another is to be determined under

common-law agency principles. Second, when Congress

adopted a common-law agency standard in the LMRA.

it recognized that a local union may in practice enjoy a

considerable degree of actual autonomy, despite its for-

mal dependence upon the parent international for its

continued existence. See also Boss v. International Bhd.

of Boilermakers, 567 F. Supp. 845, 847 (N.D.N.Y.).

atPd, 742 F.2d 146 (2d Cir. 1983), cert. denicd, 469 U.S.

S16 (1984). That implicit premise would, of course.

apply equally in the context of Title VII 2nd section

1981. Against this background, we think that if Con-

gress intended that international unions be held liable

for the failings of their locals with regard to civil rights

d4a

under a special standard, it would have given some indi-

cation to that effect.

Moreover, having studied the Fifth Circuit’s decision

in Myers, we do not think that the “sufficient connection”

test was structured or given content by _ principles

meaningfully distinguishable from common-law agency

principles. In Myers, the court found not only that the

international and its local had a general “close relation-

ship,” but more important, that the international had

in fact “provided an ‘advisor’ to the local in its negotia-

tions and... approved the resultant collective bargain-

ing agreement.” Jd. at 851. Having thus participated in

and approved a practice of the locai that was later found

to be discriminatory in effect, the international would

surely have been held accountable for the local’s conduct

under the agency standard of the common law, as articu-

lated in Carbon Fuel. We do not believe, therefore, that

the “sufficient connection” test, as applied in J/yers, sup-

ports a less stringent standard of vicarious liability un-

der Title VII and section 1981 than the common-law

agency standard that Congress and the Supreme Court

have determined is applicable in other contexts.

Other Title VII and section 1981 cases in which the

“sufficient connection” test has been applied are of no

different import; indeed, we believe that these cases,

while speaking of an international union’s “affirmative

duty,” confirm our holding that common-law agency prin-

ciples apply to unions in the civil rights context.

In Sinyard v. Foote & Davis Div. of McCall Corp., 577

F.2¢ 943, 945 (5th Cir. 1978), the Fifth Circuit noted

that, “|a]ls a general proposition ... international labor

unions must bear a heavy responsibility in giving effect

to the remedial provisions of . . . Title VII,” but cau-

tioned that the imposition of any affirmative duty de-

pends ‘“‘on the relationship between the international and

the local and the amount and type of involvement which

the international has” with the discriminatory practice

—

under challenge. Jd. Citing Myers, the court further

noted that, “[t]he precedents on which appellants rely

do not sanction our blanket imposition of an affirma-

tive duty on international unions to police their locals

to insure nondiscrimination—an undertaking which on

occasion may be beyond their capacity.” Jd. And although

the court endorsed the “sufficient connection” formula-

tion, it applied common-law agency principles to ex-

onerate the international. Thus, the ccurt noted that

“the International had not caused or participated in and

did not approve the condition complained of.” Jd. at 947;

see Howard v. Inte rnational Moulders & Allied Workers

Union, 779 F.2d 1546, 1548 (11th Cir.), cert. denied,

106 S. Ct. 2902 (1986) (international liable where its

representative ‘‘worked closely” with lccal negotiators,

resulting in discriminatory bargaining agreement): ac-

cord Sagers v. Yellow Freight Sys., 529 F.2d 721, 737-38

(Sth Cir. 1976); see also Kaplan v. laternational Alli-

)

171 of Theat ical rae Stage Limp/oyees, 525 F.2d 1354,

1360 (9th Cir. 1975)< international liable where it ne-

gotiated and signed discriminatory collective bargaining

agreement).

That common-law agency principles apply equally to

determine an international union’s liability under the

civil rights laws as they do in other contexts is also the

unavoidable implication of the Supreme Court’s decision

in General Building Contractors Ass’n v. Pennsylvania,

458 U.S. 375 (1982). In that case, the Court declined

to impose liability under section 1981 on an employers

association for the discriminatory marner in which a

union had implemented a collective bareaining agreement

that the association had negotiated. The district court

had found that the association, by agreeing to the refer-

ral system the union administered at its hiring hall, had

“delegated” anthority to the union to select workers for

the assoclation’s employers: it was therefore chareed with

the ““‘duty to see that discrimination does not take place

in the selection of one’s workforce,’ regardless of where

56a

the discrimination occurs.” Jd. at 392 (quoting Pennsyl-

vania v. Local 542, Int’l Union of Operating Engineers,

469 F. Supp. 329, 412 (E.D. Pa. 1978) ).

‘eé

The Supreme Court, however, found this theory “flawed

on its own terms,” declining to sanction the “imposition

of liability on [the employers association] based on the

acts of a party with whom it had no agency or employ-

ment relationship.” Jd. Accordingly, we see no prin-

cipled reason for dispensing with the requirement of an

agency relationship between the International and _ its

local here. Instead, we believe General Building Con-

tractors underscores the need, under Title VII and sec-

tion 1981, to base one party’s liability for the acts of

another party on something more than the abstract and

unbounded premise that the entities regulated by those

laws have an “affirmative duty” to end discrimination.

unbounded premise that the entities regulated by those

laws have an “affirmative duty” to end discrimination.

That something more is to be found in accordance with

longstanding agency principles, the “core” of which in-

volves a “ ‘fiduciary relation’ arising from the ‘consent

by one person to another that the other shall act on his

behalf and subject to his control.’” Jd. (quoting Re-

STATEMENT (SECOND! OF AGENCY § 1 (1958) ).°°

We do not doubt that a labor organization may in

some circumstances have an obligation actively to oppose

discriminatory conduct on the part of individuals or en-

tities with which it has no agency relationship, see Good-

man v. Lukens Steel Co., 107 S. Ct. 2617, 2625 (1987);

Macklin v. Spector Freight Sys., 478 F.2d 979, 898 (D.C.

Cir. 1973), and our discussion above should not be read

is indicating anything to the contrary. Neither Goodman

“9 The traditional indicia of an ageney relationship include ‘“(1)

consent; (2) fiduciary duty; (3) absence of gain or risk to the

agent; and (4) control by the principal.” Boss, 567 F.Supp. at 847

n.l (quoting H. REUSCHLEIN & W. GRECORY, AGENCY AND PARTNER-

SHIP 11 (1979) ).

57a

nor any other case, however, suggests that a union’s fail-

ure to act in opposition to discriminatory practices of an

organization with which it has no agency relationship

renders it vicariously liable for that organization’s dis-

criminatory practices; rather, the point of those cases is

that the union’s failure to act may be an independent

basis for liability under Title VII and section 1981.%° In

this case, therefore, the concerns underlying Goodman

and Macklin, and the question whether the International

has breached an affirmative duty to oppose the discrimi-

natory practices of Local 201, are inapposite. The plain-

tiffs did not argue before the district court, and do not

argue before this court, that they were discriminated

against by the International’s failure to act, in breach

of an affirmative duty; rather, they argue that the Intor-

national is vicariously liable for the discriminatory con-

duct of Local 201. Thus, breach of an affirmative duty

is not the theory against which the evidence in this case

must be measured. The International’s liability depends

upon the existence of an agency relationship between the

International and local 201.

While we believe that an agency relationship between

the International and Local 201 with respect to the par-

ticular discriminatory practices in issue is both a neces-

sary and a sufficient basis for holding the International

liable under a theory of disparate impact under Title

“Where a union’s failure to act violates Title VII or section

1981, the discriminatory practices of the organization that the

union failed to oppose may nonetheless weigh heavily in fashioning

appropriate relief. If those discriminatory practices would not have

occurred but for the union’s failure to act, the union may be re-

quired to redress the injuries sustained as a result of those prac-

tices. It may remain open to the union, however, to demonstrate

that even if it had acted, and satisfied its affirmative duty, the other

organization’s practices would not have been altered and the in-

juries would not have been prevented or abated. We express no

opinion on whether such a showing would be sufficient to relieve a

union of responsibility for remedying such injuries.

58a

VII, the same conclusion does not follow a fortiori with

respect to the plaintiffs’ claims under section 1981. This

is because liability can be established without a showing

of discriminatory intent under Title VII but not under

section 1981. Goodman, 107 S. Ct. at 2622; General

Building Contractors, 458 U.S. at 391. Thus, we must

further determine whether, under section 1981, an

agency relationship between the International and Local

201 is sufficient to impute from the local to the Inter-

national the requisite discriminatory intent.

In General Building Contractors, the Court assume,

without deciding, that an organization may be liable

under section 1981 for acts of intentional discrimination

perpetrated by its agents. See id. at 395. Cases in our

sister circuits provide no more guidance on the question.

In Myers, for example, the court made no distinction be-

tween Title VII and section 1981, apparently, but only

apparently, thereby deciding that the “sufficient connec-

tion” test applies equally to both. Accord Howard, 779

F.2d at 1548.

The implication of the Supreme Court’s decisions in

Carbon Fuel and Coronado Coal, however, is instructive:

in the absence of an explicit congressional directive to the

contrarv, common-law agency principles govern an inter-

national’s liability for the unlawful actions of its locals.

Applving those principles under section 1981, we find

that at common law a principal may be held lable for

the intentional torts of its agent if the agent’s conduct

its within the scope of his agency and “if, with knowledge

of the conditions, [the principal] intends the conduct, or

if he intends its consequences. ” RESTATEMENT (SEC-

OND! OF AGENCY § 212 (1958); see id. at $216. Thus,

we hold that an international union may be liable under

section 1981 if, with knowledge of the surrounding cir-

cumstances, it authorizes, ratifies, or approves a local’s

actions the effects of which are sufficient to establish a

claim of intentional discrimination against the local.

59a

With these principles in mind, we turn to the facts

that we believe do establish that the International is

liable for the central discriminatory conduct in this case.

B. International’s Liability for the Educational Pre-

requisite to the Journeyman Examination

In holding the International liable in this case, the

district court relied extensively on provisions in the In-

ternational’s Constitution, finding that these provisions

“establish[] the pervasive authority of the International

over the affairs of its affiliated local unions such as Local

201. ... In a word, the Constitution identifies and treats

affiliated local unions as ‘subordinate bodies.’” Tr. F.

116. As we interpret this finding, the District Court

believed that, for purposes relevant here, an agency rela-

tionship between the International and Local 201 could

be established by merely looking to those terms of the

International’s Constitution that govern its relations with

its locals.

The terms of an international’s constitution can, un-

doubtedly, provide some evidence of such an agency rela-

tionship. See Shimman, 625 F.2d at 97; Boss, 567 F.

Supp. at 847; see also Local Union 984 v. Humko Co..

287 F.2d 231, 241-42 (6th Cir. 1961); cert. denied, 366

U.S. 962 (1961); International Bhd. of Teamsters v.

United States, 275 F.2d 610, 612 (4th Cir. 1960). cert.

denied, 362 U.S. 975 (1961). To the extent that pro-

visions of the constitution deal specifically with the prac-

tices found to be discriminatory, moreover, they may be

sufficient in themselves to raise an inference that the

local is its agent. In many situations, however, an in-

ternational’s constitution will point a misleading picture

of the actual relatonship it has with its loeals. A local

that is nominally semi-autonomous may actually be sub-

servient. Alternatively, “a local union may remain auton-

omous and independent notwithstanding the fact that the

International retains a degree of supervisory authority.”

60a

Boss, 567 F. Supp. at 847 (citing Baldwin v. Pough-

keepsie Newspapers, Inc., 268 F.2d 871 (7th Cir. 1958),

cert. denied, 361 U.S. 869 (1959) ).

For this reason, an agency relationship cannot simply

be presumed rather than proved; “the diverse situations

possible in the varied relationship between parent and

local unions make individual examination of the facts,

rather than a mechanical application of assumptions, a

vital necessity.” Sinyard, 577 F.2d at 947. In that exam-

ination, “what should matter is not so much the Inter-

national’s theoretical control over the local as the nature

and extent of actual control.” Shimman, 625 F.2d at 98

n. 36 (citing Harnschfeger Corp. v. Sheet Metal Workers

Int'l Ass’n, 436 F.2d 351 (6th Cir. 1970)); see also Sin-

yard, 577 F.2d at 946 (declining to find a “sufficient

connection” between an international and its local on the

basis _of international constitution providing interna-

tional with “full power’ to regulate its locals).

In this case, the International’s Constitution indicates

that the International had an interest in and potentially

a substantial involvement with Local 201’s membership

practices. It provides the International with authority to

oversee its locals’ membership practices, stating that “[a]

copy of every candidate’s application for membership [in

an affiliated local] shall be sent to Headquarters for ap-

proval. . . If a candidate is rejected, the application of

such rejected candidate with the reason or reasons for

rejection must be sent to Headquarters.” Constitution of

the International Ass’n of Bridge, Structural and Orna-

mental Iron Workers, Art XXI, § 2. As is usual, mem-

bership in the International is ordinarily automatic for

anyone admitted to membership in an affiliated local. The

International also receives a portion of the initiation fees

and monthly dues that each member is responsible for

paying to a local.

The Constitution does not, however, explicitly require,

or authorize locals to require, applications for member-

6la

ship to complete a Union-supervised educational program.

Instead, the Constitution merely requires that, to be ad-

mitted to membership, an applicant “must be a practical

workman versed in the duties of some branch of the trade

. , of good moral character and competent to demand

standard wages.” Jd. at Art. II, § 2. Thus, even if we

were inclined to give considerable weight to the Consti-

tution standing alone, we would not be compelled to con-

clude that the International “authorized,” much less di-

rected, the discriminatory practices of Local 201.

Looking beyond the terms of the International’s Con-

stitution, however, we find that the International was

involved with the membership practices of Local 201 to

such an extent that the District Court could infer that

the local is the agent of the International with respect to

the practices at issue here.

First, it is clear that the International believes, and

indeed continues to argue, that the rodman trade is an

apprenticeable one, requiring extensive classroom train-

ing. See Brief of Appellant International at 35-38. The

International has thus at all times endorsed the general

principle that there should be an educational prerequisite

for membership. Second, and more specifically, it is rea-

sonably clear that the International was fully aware of

Local 201’s membership policies. According to undis-

puted record evidence, the International had, on at least

one occasion prior to the Open Period, met with Local

201 about membership practices and “discussed at length

the reasons why the local should adopt a standard pro-

cedure for the acceptance of non-members as well as why

non-members shouid be accepted.” Tr. F. 130.

Most particularly, the facts could reasonably be viewed

by the District Court as establishing that the educational

requirement was a valve regulating access to union mem-

bership, which, to a considerable degree was controlled

by the International. Since 1971, there has been only one

short-lived departure—the “Open Period”—from the re-

62%

quirement that applicants complete a Union-supervised

educational program. The Open Period, during which

rodmen having two or more years of experience were

allowed to take a special journeyman examination with-

out completing an educational program, was the creation

of the International. The local implemented it only on

the express instructions of the International, Tr. F. 133,

and then only to prevent “future litigation, such as oc-

curred in [other locals.]” TR. F. 132. After the Open

Period ended in June 1971, the International developed

and endorsed the Training Program as a replacement for

the Open Pericd’s reliance solely on an examination in

admitting experienced rodmen. International President

Lyons testified that one of the primary reasons for devel-

oping the Training Program was to avoid “diluting” the

Apprenticeship Program or creating “a bunch of second-

class ironworkers.” Tr. ut 3290. With the Training Pro-

gram, the International “acted to create a vehicle that

would bring into [the ironworkers trade] a high percent-

age of minorities who when they finished this training

program would be qualified to earn a living at the iron-

v orkers’ negotiated wage scale.” Tr. at 3298. As ap-

plied to mexperienced blacks, the program did indeed open

new avenues of opportunity that previously may have

been closed; in that respect, the Training Program is to

be commended. But in aiming the Training Program

broadly at all non-members who were not qualified to en-

ter the Apprenticeship Program, the International en-

dorsed a system that placed unnecessary barriers between

experienced black rodmen and Union membership.

The International does not really dispute that it played

a significant role in establishing the requirement that ap-

plicants complete a Union-supervised educational program

before being allowed to take the journeyman examina-

tion; rather, it attempts to distance itself from these prac-

tices by arguing that the decision to establish an Ap-

prenticeship Program or a Training Program remained

63a

at all times within the discretion of each local. In addi-

tion, the International adamantly insists that it had no

control over the day-to-day operation of these programs.

These arguments cannot parry the thrust of the plain-

tiffs’ claim of discrimination. That claim is not that the

Training Program or the Apprenticeship Program (set-

ting aside the high school diploma requirement) were

themselves discriminatory; rather it is that the require-

ment that rodmen complete such a program before being

allowed to take the journeyman examination worked dis-

criminatory effects. It is this requirement from which

the International has not successfully divorced itself.

Even if it did not require locals to develop and to ad-

minister educational program, we find ample evidence

in the record to support the District Court’s conclusion

that the International actively participated in and ap-

proved of Local 201’s membership procedures. Tr. C. 30.

That is sufficient to establish an agency relationship be-

tween the International and Loca] 201; accordingly, we

affirm the court’s judgment holding the International

liable under Title VII.

We must next consider whether the International had

sufficient knowledge of the circumstances prevailing in

Local 201, when it participated in and approved the

local’s discriminatory practices, to impute to it the in-

tent necessary to establish liability under section 1981.

This question need not detain us long, however, because

in this case the intent to discriminate may be inferred

from the plaintiff's statistical] showing; the evidence of

intent under section 1981 need not be direct. The Inter-

national’s support of and participation in the very prac-

tices to which the plaintiffs’ Statistics apply is a sufficient

basis from which the intent to discriminate on the part

of the International may properly be inferred. In a case

based upon direct evidence of the local’s discriminatory

intent, it would not necessarily be possible to infer an

unlawful intent on the part of the international; a prin-

64a

cipal may innocently delegate authority to an agent who

independently and unbeknownst to the principal brings

an unlawful purpose to its exercise of that authority.

This is not such a case, however.

C. The International’s Liability for Retaliation Against

Plaintiff Bellamy

In contrast to the overwhelming evidence of the Inter-

1ational’s awareness of and participation in Local 201’s

membership practices, there is not a shred of evidence

nor any finding by the District Court linking the Inter-

national to Bellamy’s wage cut.

That was a matter purely between Bellamy, the local,

and Bellamy’s employer. To find the International lable

in this circumstance would impose an unbounded obliga-

tion on it to police the actions of its locals, no matter

how discrete or spontaneous those action may be. Be-

cause we find no evidence indicating that the Interna-

tional participated in, approved, ratified, or even had

knowledge of Bellamy’s wage cut, we reverse the District

Court’s judgment holding the International liable for re-

taliation.

VII. LIABILITY OF CONSTRUCTION CONTRACTORS COUNCIL

A. Liability Under Title VII

Defendant CCC is a multi-employer association that

has two undisputed connections with this lawsuit: on be-

half of its member employers, it negotiated collective

bargaining agreements that govern the referral practices

of Local 201, and it appointed trustees to the governing

bodies of the Training and Apprenticeship Programs.

On the basis of these connections, the District Court

found that CCC had violated Title VII and section 1981.

Tr. C. 32. Before discussing the merits of this portion of

the appeal, we must first determine whether the District

65a

Court properly exercised jurisdiction over the plaintiffs’

claims against CCC.

CCC argues that the District Court lacked subject mat-

ter jurisdiction over the plaintiffs’ Title VII claims

against it because the plaintiffs failed to adduce any evi-

dence that CCC was named as a respondent in the

plaintiffs’ charge filed with the EEOC, that CCC ever

received notice of any charges against it relating to rod-

men, or that the EEOC issued a notice of right to sue

naming CCC. Title VII generally requires that, prior to

filing suit in district court, a plaintiff must file a timely

charge of discrimination with the EEOC. Within ten days

of receiving this charge, the agency is required to notify

the respondent named in the charge.*' Thereafter, the

EEOC initiates an investigation, and may attempt to

bring about a conciliation between the charging party

and the respondent. In general, if after 180 days from

the time the charge was filed it remains unresolved, or

if the agency dismisses the charge, the EEOC is re-

quired to issue a notice informing the charging party

and the respondent of the charging party’s right to sue

in district court. Specifically, section 706(f) (1) of Title

VII, 42 U.S.C. § 2000e-5(f) (1), provides that, once ad-

ministrative remedies are exhausted, a “civil action may

be brought against a respondent named in the charge.”

The District Court found that ‘on September 15, 1975,

the Lawyers’ Committee for Civil Rights Under Law

[“the Lawyers’ Committee”], on behalf of numerous

black rodmen, . . . filed a timely third party charge of

$142 U.S.C. § 2000e-5(e) provides, in relevant part:

A charge under this section shall be filed within one hundred

and eighty days after the alleged unlawful employment prac-

tice occurred and the notice of the charge (including the date,

place and circumstances of the alleged unlawful employment

practice) shall be served upon the person against whom such

charge is made within ten days thereafter. .

66a

racial discrimination against all defendants. In Septem-

ber 1976, the Lawyers’ Committee received from the EEOC

a notice of its right to sue all defendants.” Tr. F. 6.

(emphasis added). At trial, John O’Neil, Executive Di-

rector of CCC, testified that CCC had in its files a no-

tice that charges of discrimination had been filed with

the EEOC against it, but O’Neil did not identify whether

this notice referred to the discriminatory practices at

issue in this case. When the plaintiffs attempted to in-

troduce into evidence the document to which O’Neil re-

ferred, the District Court sustained an objection based

on the fact that the document was not submitted in ac-

cordance with the plaintiffs’ schedule of exhibits and that

it was irrelevant because it did not explicitly identify

the source or nature of the discriminatory conduct with

which CCC had_ been charged. Tr. at 2006-08. The

plaintiffs have not pointed to any record evidence that

Supports the contention that a charge against CCC was

filed with the EEOC.

If the record were no more counter-indicative than

this, we might be constrained to conclude that the Dis-

trict Court did not clearly err in finding that the plain-

tiffs had filed with the EEOC a charge against CCC.

In fact, however, the contrary inference is compelled by

the record considered as a whole. As CCC points out, the

notice of right to sue issued to the Lawyers’ Commit-

tee by the EEOC did not name CCC as a respondent.

The District Court clearly erred in finding that this no-

tice referred to “all defendants.” With no evidence but

O’Neil’s ambiguous testimony to indicate that CCC re-

ceived notice of the Lawyers’ Committee’s charge, and

clear evidence that it did not receive notice of the plain-

tiffs’ right to sue, the District Court could not reason-

ably conclude that these viaintiffs had filed a charge of

discrimination against this defendant; the District Court’s

findings lack competent evidentiary support and are

clearly erroneous.

67a

The plaintiffs argue that even if a charge was not

filed and a right to sue letter was not issued, the Dis-

trict Court could properly entertain the case against

CCC. They rely primarily on Zipes v. Trans World Air-

lines, Inc., 455 U.S. 385, 397 (1982), in which the Su-

preme Court stated that “the provision for filing charges

with the EEOC should not be construed to erect 2 juris-

dictional prerequisite to suit in the district court.”

This statement cannot be used, however, to read out

of the statute the administrative procedures with which

a prospective plaintiff must comply. As we have stated

in the past, “|Title VII’s] statutory enforcement scheme

. embodies a clearly defined policy of deferring action

in federal court until a charge has been filed with the

agency and an opportunity afforded the agency to at-

tempt private settlement.” Macklin, 478 F.2d at 985-86.

Zipes suggests nothing to the contrary. There, the ques-

tion confronting the Court was not whether a plaintiff

can simply disregard the administrative procedures fa-

cially made a prerequisite to suit under Title VII: to state

that question is to answer it. Instead, Zipes raised the

much narrower question “whether the statutory time

limit for filing charges under Title VII... is 2 jurisdic-

tional prerequisite to suit in the District Court.” Zipes,

455 U.S. at 387. The Court held that this time limit was,

“like a statute of limitations, .. . subject to waiver,

estoppel, and equitable tolling.” Jd. at 393: see Baldwin

County Welcome Center v. Brown, 466 U.S. 147, 152 n.6

(1984) (“We did not in Zipes declare that the [charge

filing| requirement need not ever be satisfied: we merely

stated that it was subject to waiver and tolling.”); see

also Noe v. Ward, 754 F.2d 890, 892 (10th Cir. 1985).

ven if exhaustion of the administrative procedures of

Title VII is not jurisdictional but is subject to omission

when equity so requires, this would not be such 2 case,

First, the plaintiffs argue that CCC had notice of the

charges through its “representatives” on the governing

68a

committees of the Apprenticeship and Training Programs,

both of which bodies were named in the charge. There

may be, circumstances in which an EEOC charge and

right to sue notice against one party may provide notice

to another related party sufficient to satisfy the plain-

tiff’s duty to comply with the legislatively mandated ad-

ministrative prerequisites to suit. See Kaplan v. Inter-

national Alliance of Theatrical & Stage Employees, 525

F.2d 1354, 1358-59 (9th Cir. 1975). Here, while it is

true that CCC appointed trustees to these committees on

behalf of its member employers, the committees are dis-

tinct legal entities with which CCC has no ongoing rela-

tionship. The relationship between CCC and the commit-

tees is too attenuated to conclude that notice to the com-

mittees is sufficient to impute notice to CCC.“

Second, the plaintiffs-argue that CCC “waived” the

administrative prerequisites because it failed to raise the

issue before the trial court in accordance with deadlines

for dispositive motions to which the parties and the court

agreed. This argument is frivolous. There is no con-

clusion by the District Court that CCC “waived” the

statutory prerequisites to suit; instead, the District Court

*= In Gray v. International Bhd. of Electrical Workers, 10 Fair

Empl. Cas. (BNA) 565 (D.D.C. 1975), the District Court allowed

plaintiffs to maintain a Title VII action against an employers

association not named in the administrative charge. The court

found that the association received “ample notice” of the EEOC

charges because it was a member of a “related” joint apprenticeship

and training program that received notice of the administrative

charge. Even if we were to regard this authority as persuasive,

however, this case is quite different. CCC is not a “member” of

either the Training or the Apprenticeship committee, nor is there

any indication that CCC is otherwise “related” to the committees.

We further note that there is no allegation here that CCC is an

indispensable party under Federal Rule of Civil Procedure 19, which

in some circumstances may provide a basis for joinder of a party

in a Title VII suit despite the absence of any charge filed with the

EEOC naming that party as a respondent. See Evans v. Sheraton

Park Hotel, 503 F.2d 177 (D.C. Cir. 1974).

69a

specifically (and erroneously) found that a charge against

“all defendants” had been filed with the EEOC and

that a notice of the right to sue had been issued against

‘all defendants.” In this it erred; so far as the rec-

ord reveals, the plaintiff failed to comply with the ad-

ministrative prerequisites to filing suit in the District

Court. We therefore reverse the District Court’s judg-

ment holding CCC liable for racial discrimination under

Title VII.

B. Section 1981 Liability

The procedural requirements applicable to Title VII

claims need not be satisfied before a claim under section

1981 may be entertained by the courts. Macklin, supra,

478 F.2d at 996. We must therefore still consider the

merits of the plaintiffs’ section 1981 claim against CCC.

The District Court found CCC liable under section

1981 because it negotiated the collective bargaining agree-

ment with Local 201, Tr. F. 140, appointed trustees to

the Training and Apprenticeship committees, Tr. F. 141,

and knew or shouid have known of the discriminatory

impact of Local 201’s referral system. Tr. F. 142. As

we noted above, in General Building Contractors, supra,

the Supreme Court has held that an employers associa-

tion may be liable under section 1981 for the discrimina-

tory acts of a labor organization with which it has ne-

gotiated a collective bargaining agreement only if an

agency relationship can be established between the union

and the association. The plaintiffs attempt to distinguish

this ease from General Building Contractors on the ground

that CCC is directly, not vicariously, liable for acts of

discrimination against the plaintiff classes.

The collective bargaining agreement between CCC and

Local 201, including the referral clause, is racially neu-

tral on its face. Indeed, it provides expressly that ‘‘|t|he

Union shall select and refer applicants for employment

without discrimination by reason of .. . race, creed, color

70a

or national origin... .”’ Defendant’s Exhibit 10. The

agreement operated in a discriminatory manner only be-

cause of the local’s restrictive membership policies. CCC’s

role as a negotiator in the collective bargaining process

is therefore indistinguishable from that of the multi-

employer agent in General Building Contractors. See id.

at 392-93 n.18. The plaintiffs claim, however, that un-

like the bargaining agent in General Building Contrac-

tors, CCC knew or should have known of the discrimina-

tory effects of the referral clause, and the District Court

so found. CCC’s willingness to agree to a clause that it

knew was discriminatory, it is argued, is itself an act of

discrimination.

Assuming that the referral system operated in such a

way as to discriminate against black rodmen, see Tr.

F. 109, Tr. C. 21th), and assuming for the moment that

the District Court did not clearly err in finding that

CCC knew or should have known that the referral clause

had a discriminatory impact, Tr. F. 142, 144, we none-

theless fail to see how these findings support the infer-

ence that CCC itself discriminated. It is undisputed that

CCC had nothing to do with Local 201’s membership

practices. It is also undisputed that CCC does ‘hot play

a role in determining which rodmen well be referred to

particular jobs. Thus, CCC’s involvement in the referral]

system was limited to negotiating the facially neutra!

system’s inclusion in the collective bargaining agreement.

Even if the collective bargaining agreement were taken

to evidence CCC’s knowledge, indeed its approval, of the

local’s discriminatory practices—and we do not. so read

it—that agreement is not self-executing. Whatever know]-

edge CCC may have had of the discriminatory practices

at issue in this case, the plaintiffs cannot escape the fact

that it was the local’s actions and policies that discrimi-

nated against the plaintiffs. Therefore. the plaintiffs’

section 1981 claims, insofar as they rely on CCC’s role in

negotiating the collective bargaining agreement, depend

Tla

upon the existence of an agency relationship between

CCC and the local.

The same conclusion holds true with respect to CCC’s

involvement in the Apprenticeship and Training Pro-

grams. It is undisputed that the apprenticeship and

training committees, not CCC, administer these programs.

As a result, CCC’s liability again turns on the existence

of an agency relationship, here between it and the com-

mittees. We therefore reject the plaintiffs’ attempt to

remove this case from reach of the principles set forth

in General Building Contractors.

In applying these principles, we first address two of

the District Court’s findings that, if not clearly erron-

eous, would distinguish the facts of this case from those

of General Building Contractors. First, the court found

that CCC knew or should have known that Local 201 was

discriminating against experienced black rodmen and

that the referral system “had the effect of implementing

and perpetuating racial discrimination.” Tr. F. 142. Cf.

General Building Contractors, 458 U.S. at 381 (noting

that district court found plaintiffs failed to prove that

employer associations “were actually aware of the union

discrimination”). Second, the court found that “CCC

controls access to employment on unionized rodman jobs.”

Tr. F. 140.

We need not consider whether the findings, taken

together or viewed separately, are sufficient to establish

the agency relationship between CCC and the other de-

fendants required by General Building Contractors. Our

review of the record and the District Court’s reasoning

reveals that these findings were conceived in error.

There is no direct evidence that CCC knew that the

local’s membership practices were discriminatory or that

the referral system had a discriminatory effect. Instead.

the court found it “proper to infer” that CCC had such

knowledge on the basis of four factors: (1) the bargain-

72a

ing relationship between CCC and the loeal; (2) CCC’s

attempt to negotiate the referral clause out of the collec-

tive bargaining agreement; (3) a letter in CCC’s file

suggesting that the referral system operated by another

local was discriminatory; and (4) CCC’s “participation”

in the Apprenticeship and Training Programs. Tr. F,

142-44. We take these factors up in turn.

(1) CCC employs only two persons. Its primary func-

tion is to negotiate collective bargaining agreements on

behalf of its member employers. The collective bargain-

ing agreements that it has negotiated with the local, as

we stated above, are all facially neutral with respect to

race, and the latest agreement expressly requires the local

to implement the referral system in a racially neutral

manner. CCC does not employ rodmen; it does not police

the local’s implementation of their agreement; it has re-

ceived no complaints from rodmen or employers concern-

ing the discriminatory manner in which the local has

implemented the agreement. See Tr. at 1981. We simply

fail to understand how the mere fact that CCC negotiated

collective bargaining agreements with the loca! provides

a reasonable basis for inferring the CCC knew or should

have known that the referral system had the effect of

“implementing and perpetuating” racial discrimination

practiced by the Union through its membership polices.

(2) We smilarly disagree that CCC’s attempt to elim-

inate the referral clause during its negotiation of the

agreements is in any way indicative that CCC knew

about the local’s discriminatory practices. There is no

evidence to suggest that CCC’s attempt to eliminate the

referral clause was based on knowledge of its discrimina-

tory effects. Indeed, CCC maintains that it attempted to

eliminate the clause because its employer members wished

to have greater control over which employees to hire;

seen in this light, CCC’s proposal merely reflects employ-

ers’ normal dissatisfaction with the exclusivity of the

hiring hall arrangement and the concomitantly higher

73a

costs of employing journeymen rather than non-union

rodmen. We find this conventional explanation for CCC’s

bargaining proposal much more plausible than the specu-

lative proposition that CCC was responding to the local’s

discriminatory practices. Absent even a scintilla of evi-

dence that the local’s discriminatory practices played a

motivating role in CCC’s decision to seek the elimination

of the clause, we do not believe that that decision supports

the inference that CCC knew that the clause operated in

a discriminatory manner.

(3) We are also puzzled by the suggestion that a

memorandum in CCC’s files relating to a different local’s

referral system supports the inference that CCC knew or

should have known of Local 201’s discriminatory policies.

The memorandum suggested that the referral system of

Local Union 5 may have been operated by that local

in a manner that violated the ‘Washington Plan,” an

affirmative action plan to which Local 5 was _ subject.

Local 201 was not subject to the plan. Moreover, even

if Local 5’s referral system were identical to Local 201’s

(and there is no evidence that it was even similar), it

would not follow that CCC’s knowledge that Local 5’s

referral system failed to comply with an affirmative ac-

tion plan provided a basis for inferring that Local 201’s

referral system failed to comply with statutory anti-

discrimination laws. The inherent illogie of such a leap

is magnified when one realizes that the Washington Plan

did not purport to operate in a racially neutral manner.

The memorandum therefore provides no basis whatever

for inferring that CCC knew or should have known of

the racially discriminatory practices implemented by Local

201.

(4) Finally, we consider the District Court’s finding

that “CCC’s participation in the Training Program and

the Apprenticeship Program is sufficient itself to justify

the finding that CCC knew or should have known of the

racial discrimination.” Tr. F. 142. We first note that

74a

CCC’s participation in these programs is extremely lim-

ited. It has no authority over the administration of these

programs and does not participate in their actua) opera-

tion. Instead, CCC’s “participation” is limited to its

appointment of three trustees for the Apprenticeship

Program and to the appointment of the employer’s rep-

resentatives to the Training Program. Tr. at 1959-60.

We cannot agree that this limited relationship with the

| education: = programs makes it reasonable to charge CCC

ith knowledge of the local’s discrimination against ex-

perienced black rodmen, much less perpetuation thereof

through the referral system. There is no evidence of an

on-going relationship between CCC and the trustees it

appointed, nor even that CCC ever communicated with

them. Perhaps the District Court assumed that these

trustees acted as CCC’s agents. If so. their knowledge

of the local’s discriminatory practices might provide some

support for the District Court’s finding. See REsTATrE-

MENT (SECOND) OF AGENCY § 272 (“[T]he liability of

a principal is affected by the knowl dge of an agent con-

cerning a matter as to which he acts within his power

to bind the principal or upon which it is his duty to give

the principal information.”). An agency relationship be-

tween CCC and the trustees cannot be assumed, howev: r,

on the facts of this case. As the Supreme Court held in

General Building Contractors, for the trustees of an ap-

prenticeship program to be the agents of an employer,

he employer must .. . enjoy a right to control

tivities of [the apprenticeship committee], and

is no record basis for believing that to be the

case. Neither is a right of control inferable merel}

from the power of the associations to appoint half

of the |apprenticeship committee's} trustees. It is

entirely adauiids that the trustees, once appointed,

owe a fiduciary duty to the apprenticeship commit-

ee nd the apprentices enrolled in its programs

oe |

rather than to the entities that appointed them.

O_O EE

, ral Building Contractors, 458 U.S. at 395 ‘citing

NLRB v. Amax Coal Co.. 453 U.S. 377 (1981) ).

Because we can see no basis on which the District

ourt could infer that CCC-appointed apprenticeship or

lining committee trustees acted as CCC’s agents, we

ail

nnot accept the District Court’s finding that CCC’s

“participation” in those committees is sufficient to infer

t CCC knew or had reason to know of the local’s

ny) mats ~T nparptira

scriminatory practices.

7 |

We next consider the District Court’s finding that CCC

“controls access to employment on unionized rodman

os."" There is a complete dearth of evidence to support

is broad and facially implausible finding. It neces-

rily implies that CCC “controls” the local. for it is

t is responsible for the day to day adminis-

tion of the referral system, which is the exclusive

neans by which rodmen ean obtain employment on union-

reac jt hs. Ag 11N. (re ye ya] B vildij g Contractors is in-

In the run of cases, the relationship between an em-

nlover and the Tal that ‘A a TS j 2 nlovees

. piv cannot be accurately cnaracterized as one be-

“ : ] - + . Pa

tween principal and agent. . . . Indeed, such a con-

ception 1s alien to the fundamental assumptions upon

which the federal labor laws are structured.

Without the support of clearly erroneous findings. the

intiffs’ claim, and the District Court’s conclusion that

" ] ' 1 ¢ ry l+ ,«y + , ye ; é La

( ( lO ed section 19S]. ultima ely rest unon tacts that

i ndistinguishable from those in Genera] Building

raCcTOrS. SO, oo, must he the result. Accordingly.

we reverse that yortion of the District Court’s judgment

olding CC¢ ladle Ior intentional discrimination under

76a

VIII. REMEDIES

Defendants challenge several aspects of the District

Court’s Amended Order granting relief. Defendants urge

that in its Order the District Court “failed to fulfill one

of its most basic responsibilities—fashioning remedial

relief appropriate to its Trial Findings. Instead, the

Court foisted upon Local 201 a groundless judicial man-

date which will have far-reaching and permanently harm-

ful effects.” Brief of Local 201 at 120. In crafting Title

VII relief, a district court must, of course, “tailor its

order[s] to fit the nature of the violation it seeks to

eorrect.”” Local 28, Sheet Metal Workers Int'l Ass’n v.

FEOC, 106 8S. Ct. 3019, 3050 (1986) (“Sheet Metal

Workers”). Ordinarily, remedial orders may seek only to

eliminate the discriminatory practices at issue; they

may not lawfully force a union to admit unlimited mem-

bers or to admit unqualified workers. See Texas Dep’t

of Community Affairs v. Burdine, 450 U.S. 248, 259

(1981); Furnco Constr. Corp. v. Waters, 438 U.S. 567,

577-78 (1978).

A. The Argument that the Amended Order Impermis-

sibly Requires the Union to Admit Unlimited Num-

bers of Members

Defendants challenge three specific aspects of the

Amended Order, which we will discuss in a moment.

°*In some situations, where past discrimination has been per-

sistent and obstinate, relief going beyond traditional make-whole

remedies has been deemed appropriate. See, e.g., Sheet Metal

Workers, 106 S. Ct. at 3035-37; United States v. Paradise, 107 S. Ct.

1053 (1987). This is obviously not such a case, see supra, Part

IV.E. Moreover, the relief ordered in this case is not the sort of

a race-conscious affirmative relief challenged in cases such as Sheet

Metal Workers and Paradise. In this case, the Amended Order

grants relicf only to specific victims of discrimination, namely the

members of the plaintiff classes; the relief here is entirely backward

looking, imposing on defendants no future burdens to achieve any

sort of specific racial percentages. In short, this case deals only with

traditional make-whole relief.

77a

As an initial matter, however, we deal with defendants’

broadside that the Amended Order impermissibly re-

quires the Union to admit unlimited numbers of members

to its roles. We reject this argument. First, it is not at

all clear that the impact of the Amended Order on the

Unicn’s membership ranks will be profound, for the class

of plaintiffs is not overwhelmingly large. Second, even

if the impact of the Order on the size of Union ranks

were significant, the Order does no more than remedy the

wrongs done to individual workers who were victims of

discrimination. Defendants, we are constrained to con- -

clude, have ignored the remedial nature of the Amended

Order. In our view, the District Court was more than

justified in seeking to remedy the individual wrongs per-

petrated against each class member.

B. Special Benefits for Four Named Members

Part II(A) of the Amended Order requires the Union

immediately to admit, without requiring any examina-

tion or educational training, the four named plaintiffs

who (as of the time of the Amended Order) were not yet

members. In their briefs, defendants urge that this was

an abuse of discretion. However, at oral argument, de-

fendants’ counsel conceded that the particularized relief

for the four named members is, from a practical stand-

point, no longer at issue. This is so because the Union,

even if it prevailed on this point, indicates that it would

not seek to remove the two plaintiffs who are now Union

members; in addition, the two plaintiffs who have failed

to join the Union appear by their own conduct no longer

to have an interest in securing Union membership under

the umbrella of the specific relief fashioned by the trial

court.*' We thus take counsel at her word and decline

to consider further what appears to be a non-issue.

34The Amended Order, which was entered on April 11, 1986,

has been in effect for more than a year. See Brief of Appellees at

3. According to counsel’s representations nat oral argument, two of

OOOO

78a

C. Permitting Class Members with 3009 Hours of Ex-

perience to Take the Journeyman Exam Without

Classroom Training

Defendants also object to Part II(B) of the Amended

Order, which (in part) requires the Union to allow class

members with 3000 hours of experience to take the jour-

neyman exam without undergoing classroom instruction

of any sort. Defendants urge that this requirement ig-

nores the Union’s legitimate interest in assuring that

only qualified workers become rodmen, and in limiting its

membership ranks. In defendants’ view, the District

Court “simply ignored the principle that Title VII re-

medial orders cannot require the placement of those who

lack the appropriate qualifications.” Brief of Local 201

at 127. Defendants argue that the breadth of the court’s

remedial power is limited by this unalterable command.

We agree with defendants’ articulation of the prin-

ciple, but disagree that it was violated by this aspect of

the District Court’s order. As we have previously indi-

cated, the Union may not lawfully impose the sort of

educational requirement it has heretofore mandated as an

absolute prerequisite for admission, regardless of a rod-

man’s experience and ability. As it should, then, the

Amended Order seeks to remove the discriminatory bar-

rier posed by the absolute educational prerequisite. The

appropriate way to remedy the injury inflicted on class

members—that is, to put them in the position they would

have enjoyed absent discrimination—is to allow them to

take the exam once they are sufficiently experienced to

do so.

Therefore, defendants’ only plausible objection is that

3000 hours constitutes too little experience for the exam

alone to serve as a sufficient check to screen out the in-

the specially benefited named plaintiffs are today members of Local

291, and two have chosen, for whatever reason, not to take ad-

vantage of Part II(A) of the Amended Order.

79a

competent. Although we are sympathetic with the propo-

sition that there is no way definitively to determine the

precise quantum of on-the-job experience that qualifies

one to take the exam, this is, in truth, a reason to affirm

the District Court’s choice of 3000 hours.

It is, of course, elementary that Congress has granted

district courts broad discretion to craft Title VII reme-

dies. See 42 U.S.C. § 2000e-5(g) (1982); see also Sheet

Metal Workers, 106 S. Ct. at 3034-35; International Bhd.

of Teamsters v. United States, 431 U.S. 324, 364-67

(1977); Franks v. Bowman Transp. Co., 424 U.S. 747,

770-71 (1976). Because 3000 hours is, beyond serious

dispute, within a reasonable realm, we cannot say that

the District Court abused its discretion in embracing that

figure. We disagree with defendants’ objection that 3000

hours has no basis as a measure of experience sufficient

to qualify one to become a journeyman rodman. Three

thousand hours is obviously substantially more than the

level of the experienced pool benchmark (2150 hours),

and in our view is sufficiently reasonable to serve as an

appropriate standard.

We are comforted in this conclusion by two facts:

first, the 3000-hour figure was negotiated by the parties;

and second, defendants have not come forward with an

alternative figure. Defendants downplay the significance

of the negotiated nature of the Amended Order, and we

agree that under the circumstances that factor is not

worthy of great weight. But in determining whether the

District Court abused its discretion, the fact that defend-

ants had a hand in negotiating the figure is at least

pertinent. Moreover, defendants’ failure to offer an al-

ternative as to the amount of experience sufficient to

qualify for entrance to the exam makes us most reluctant

to conclude that 3000 hours is outside the bounds of the

District Court’s discretion.

80a

D. Automatic Membership for Class Members With

6000 Hours of Experience

Part II(B) of the Amended Order also requires that

class members with at least 6000 hours of experience

be exempted from both classroom training and the jour-

neyman exam, and admitted immediately to full Union

membership. Defendants object to this requirement as

unwarranted by the record because there has been no

allegation or finding that the journeyman exam itself

was in any way-unlawful. We agree. Indeed, it would

be hard to imagine such an allegation since the pass rate

on the exam (since the end of the Open Period) was

virtually 100 percent. We therefore hold that the Dis-

trict Court abused its discretion in ordering the Union

to admit forthwith all class members with 6000 hours

of experience, and vacate that portion of the Amended

Order.

IX. THE UNION’S LEVY OF A SPECIAL ASSESSMENT ON

MEMBERS TO FINANCE THE PRESENT LITIGATION

In 1982, Local 201 determined that it lacked sufficient

funds to meet the legal expenses it had incurred in this

case. Accordingly, local officials proposed_to levy a spe-

cial assessment against local members. At the September

1982 union meeting, a resolution to that effect was intro-

duced, discussed and when no objections were raised, ap-

proved by a vote of 43 to 14. Local 201’s General Execu-

tive Board thereafter ratified the resolution, and each

member was assessed $182. When several members

refused to pay their assessment, the local instituted in-

ternal disciplinary proceedings against them. The plain-

tiffs moved the District Court for a preliminary injunc-

tion to restrain the local from pressing charges against

any members of the plaintiff classes.

The parties reached a tentative resolution of this dis-

pute, which the District Court approved. Berger v. Iron

8la

Workers Reinforced Rodmen, Local 201, No. 75-1748,

Stipulation (D.D.C. Dee. 29, 1983). They established an

interest-bearing escrow account into which class members

were required to deposit, in periodic installments, an

amount equal to their assessment. Local 201 agreed to

refrain from taking any assesment-related disciplinary

action against members of the plaintiff classes, the plain-

tiffs agreed that such forebearance would be without

prejudice to the union’s claim of right to make the assess-

ments, and to impose discipline for non-payment, and both

sides preserved their right to appeal the ‘decision of the

[District] Court as to any matter relating to this case.

cs See

In its Amended Order of April 11, 1986, the District

Court ordered all payments deposited into the escrow

account returned to the plaintiffs. The court also per-

manently enjoined the local from taking any disciplinary

action against members of the plaintiff classes “for fail-

ure to pay any dues, charges, fees (whether previously

levied or levied in the future) assessed against members

of Local 201 and ‘or the International in order to pay for

Defendants’ legal fees and other costs of defending this

action.” Berger v. Iron Workers Reinforced Rodmen,

Local 201, No. 75-1743, Amended Order at 12 (D.D.C.

Apr. 11, 1986).

The provisions of the District Court’s order respecting

the escrow account and the special assessment are not

accompanied by findings of fact or conclusions of law.

Rather than speculate about the reasoning supporting

them, we would ordinarily remand the case to the Dis-

trict Court for further findings. In the circumstances

of this too-prolonged litigation, however, a remand would

3° We reject as frivolous the plaintiffs’ suggestion that, having

submitted this issue to the District Court, the defendants are

somehow foreclosed from arguing that that court exceeded its

remedial powers in ordering the escrowed funds returned to the

plaintiffs.

82a

be as unfortunate as it is unnecessary. Given the origin

of such findings and conclusions as the court did enter,

we are satisfied that the plaintiffs will present us with

any possible reasoning upon which the District Court’s

order may have been grounded. As we find their argu-

ments unpersuasive, we have no occasion to remand on

this issue.

The plaintiffs do not argue that the assessment itself

was discriminatory in purpose or effect. The court’s or-

der therefore cannot be justified as a remedy for an in-

dependent violation of Title VII or of section 1981. We

also reject the plaintiffs’ contention that the Amended

Order may apprepriately be viewed as an award of com-

pensatory or punitive damages under section 1981.*° The

District Court has neither held hearings on damage is-

sues nor entered a final order determining that compensa-

tory and punitive damages are warranted in this case.

See id. at 12.

The plaintiffs offer two addition

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.