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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1105

## Text

88-6 99°

f

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
Ii

cG

Ya

nn

aldsO

1, Apprenticeship Committee and Training Pro-

2a

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.

3a

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-

4a

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

Bi
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
AA

6a

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.

fa

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 * 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
}
it

‘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.

a

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

a

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,

a

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

a

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

}
A
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

]
}
i

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

—

4
Va

Or

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

7
(Sth Cir. 1976); see also Kaplan v. laternational Alli-
)
J

171 of Theat ical rae Stage Limp/oyees, 525 F.2d 1354,
1360 (9th Cir. 1975) as a a ve e 4]
LU) { \ comparison oO] ne raclai COMpositions oj ne

Apprenticeship Program and the Training Program fur-

“17 is ‘ +7 is we .9 n4 - 4 ] 3 » na 4 ’
r istrates the discriminate effects of defendants
urrent prerequisites for taking the journeyman exam-

. 4° A , . Bo Me. ] > | ‘
1? on, \ -odme} Exhibit 69 shows, 20.8% of the

prentice completions since 1970 have been minorities.

-@ -¢ > +] ; " ; , . ] bo . ,
SO. O] ne ralning program completions have
I
} 4 hh ] +3 ] , .
PP) mins i ne (] sp oport onately LOW rats Ol
, , + , , + ‘ i? nre?) L1C¢ nip 1)? sory mM : r

l | rere f Sit wing
108. In short, defendants have created two racia
( ead to the journeyman examinatior
) n vhite apprenticeship “track” and a pre-

"Ty +} ”? ay heey ¢ Tory ifieantiv ] . effective meat . QO]
‘ a i Lill al t\ it S LLeCtl f means J
; { +} ‘ nNinstinr Thiice th hifiye:
l KE @ @Xa2l allon, inus, the olrure
pool of experienced workers according to ag
, +] tin) footy, narallel “nreexamination” nro.
O] » Parallel preexamination pro
f y*] rc] y Vat ‘ ]
} ( : Iiminated agains Dia} roa-
! 1) denied them journeyman mem-
f ale ? ? } ; yla OY nt ; +} . " y {
l and ( nen in rie OP) erTer)
y ‘ sy
l? f e Dargalning agrreemen Detweel
, , : ,
nion e CCl s disparity violates ho
' t ry '
| Vil { 1% ]
4) \ hy 1s4
es ( thé S Ipe visory respons ) \ (
y . f 4 TY 1. . Dae . ] |
e ope : he Training Program and the Appre!
1) ; . }
Y) | ry ne 1d ne ne d 1T\ TO @y) SL1)'¢
7 vy
140 rr) “le ; } 4 - * 4 ; . }
142. The CCC knew o1 should hae [sic known of the
} , ) ’ * ys ot t +1} “af “yn | + hinl hh «
4 , VY impa¢ O] ne referral system, which Ni
. { °

( { rT)
( } (
ry? }
App cs
; ) +
" {
|

quarters in the District of Columbia, engaged in an in-

146a

lustry affecting ecommerce. as defined in Title VII, 42
U.S.( 2000 ¢b e)}, and is a person within the mean-
ge of 42 U.S.C. § 198]

5 CCC is an incorporated employer association whose
membe are contractors and subcontractors engaved jn
bridge, structural and Oranamental iron work in the
Washington Metropolitan Area. CCC is subject to th
1) ns of Title VII, 42 U.S.C. § 2000 ct seq nd j

person Ww ithi the meaning yf 1? U S.C 1981.

11p Committee IS a JOINt lanpor-managce-

1 . rire . "
1 + mm? ¢ Ss defined 17 Title VII ya | s .( OOO
] ] 4 s
nd person within the meaning of 4:
| ~ f LGS]
he y n joint labor-manageme}
. rT", rY YT Y . ‘ ‘
1} ‘ } | f VI] i‘ 5 S( 2 OOO
44 +] ° 9) Cc
’ } W] } n ne meé 1? ng O] 19 | ~~
rT -L+ ; 4
OULNT pursuval LO Tf D)
Ts, VT ra eae rin r ar {
| VII of the Civil Rights Act of 1 164, 4%
T ) 7 . 7] 7 + . S|
~ | AOO0 ( e(qd., and section l ot the ( Vv) R ont
4 ‘i p ‘ ‘ , rr ; y a 1
\ T 1X66 .Z. | ss. ( O81. his (Court } 1 } Sc} C
¢) ’ P ¢ (\ ‘ ‘ cm 7)
! | 7 ot ; 2000e (2) and ? ct...
TONAH t7 ‘) Y ) |
43. Vi proper pursuat 028 U.S. 1391 (b
{9 if m } eer e > P 9 ntiff: have ex} 11ISTEé
{ ‘ emedies
y mac i. y fy renrecay ( ) 1) )
? ) )
» Rule 2 2 he Federal Rules of Civil Proc
. ’ }. .
( mp [ CK pe? O?} Who Nn; ( (
! ) f mM members} D ll T 2()]
T
é 1! f } t On Da} l¢ Ip TIO? ’ r Ap}
rr . ‘
ri TY) | 1? OL aa ()' le rat a } d ~f ry
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8) ( eT ¢é qants ing v8 a DiaCK pe} !
: ] ] | ]
y ! Dé CUIsCOuUraged Dy reé KI V\
. { lof
y I ( { ‘) } aqeTend ) |
rT\Y T

147a
Local 201 and or applying for admission to the Appren-
ticeship and ‘or Training Programs.

8. Title VII forbids employers, labor organizations,
and apprenticeship and other training programs from
using race, color or national origin as factors in em-
ployment or employment-related decisions. Title VII pro-
vides in relevant part, 42 U.S.C. § 2000e-2:

(a) It shall be an unlawful employment practice
for an employer

(1) to fail or refuse to hire or discharge any
individual, or otherwise to discriminate seainst
any individual with respect to his compensation,
terms, conditions, or privileges or employment,
because of such individual’s race, color. religion,
sex, or national origin; or

(2) .o limit, segregate, or classify his em-
ployees or applications for employment in any
way which would deprive or tend to deprive any
individual of employment opportunities or other-
wise adversely affect his status as an employee,
because of such individual’s race, color, religion,
sex, or National origin ..

(c) It shail be an unlawful employment practice
for a labor organization

(1) to exclude or expel from its membership,
or otherwise to discriminate against. eny indi-
vidual beeause of his race, co'or, religion.
national origin:

1

(2) to limit, segregate. classify its mem!
ship or applicants for membership, or to Classify
of fail or refuse to refer for employment any
individual, in any way which would deprive or
tend to deprive any individual of employment
opportunities, or would limit such employment

148a

opportunities or otherwise adversely affect his

Status as an employee or as an applicant for

employment, because of such individual’s race,
color, religion, sex, or national origin: or

tO Cause or attempt to cause an employer
to discriminate against an individual in viola-
tion of this section.
‘d) It shall be an unlawful employment practice
for any employe r, labor organization, or joint Jabo

Ss Liit bath i tee

management committee controlling apprenticeship
therwise training or retaining, including on-the-

—

Or OG

job training programs to discriminate against any

individual because of his race, color, religion. sex. |
national origin in admission to, or employment in,

any program established te provide apprenti

’ ri 3 oh . a "9h 3% is

9. Section 1981 forbids discriminatioy
of race, and provides a federal remedy against such dis-
crimination in private employment. Section 198] pro-

vides, 42 U.S.C. © 19R1-

Olales SNail Nave the same rignt in every State and
y sone: 4+ ery 4 + - } + +> + 4 4 ]
Territory O Make and entoree con racltS, lO Sue De¢
> wet =¢ 9 1
1, 429-51 (]
(*1 17 ~
r evidence \

}

In tnelr treatment of aditrers

1 1 . *,7
}

ls ‘ly situated black ‘ wrhites wraith ‘acneact ft mnlov-
APIV SILUALEL wacKS and whites with respec CO employ

ypportunities, such as access of experienced rodmen
to the journeyman examination and thus to union mem-
bership and preferred referral status, access to the Ap-

prenticeship Program, and hours worked. This evidence
demonstrated that whites fare proportionately better than
blacks in employment opportunities controlled by defend-
ants. Plaintiffs also calculated the probability that the

+

black White disparities were due tO Gnance.

tions indicated that there were disparities that were

tatictinally cionificant be 1 a Pees seer ee Serra nee
statistically significant at the .Vo level or at lower levels.
Se Hameed V. lronworke rs, Local 96, 637 F.2d 506,

514 (8th Cir. 1980): Reynolds v. Sheet Metal Workers

’ pri, I
im 2 ; lat ~e a .
L5. Because plaintiffs have es ablished a prama fac
]
‘ f mr! 17 > \t 17 7] 7 1+} | + ]. 1 ’ hy 7] ;
case OF empioyment dsc} Imination, defendants burden 1S
s ; ] ar) Serer eae
to rebut this showing by adequate proof that plaintiffs

showing that tne demonstrated aisparate Impact resulted

from the use of legpliimate criterla whieh are jJustifie d by
ly: 11) " sty t] . 2) aay yo Y 1 909
business necessity. Dothard v. Raiclinson, 433 U.S. 321
— = - ¥ wv 7 7 ) { » f ‘ ¢ *)>
29 (1975): Griggs Vv. Duke Power Co., 401 U.S. at 481.

16. Defendants have offered no business justification

: - ; ry Biv as ; | » + . 1
elr CONQUCL. inereiore, 1m ordel O revul

] + ; + | + rif +] . 1]
m, tha actually bias the results,
] * rt + | a & + + + 1) ]
and tha he blas was sufficiently extensive a would
4 t+ ¢ha | + , Intifta? , yot : {
AIT e¢ ne Valladl ( 1) MvUuTTS (if O! ratlon = Ol (i1S-
+ ] ]
parate impa Defendants failed be : sf hel)
} yo] } t cle ) YQT) nao T ' re *}" i
iraen O qemon ne ‘ C Cralne erro) WOULG
{} ] lin ] } ]
It e( Tne Wnawne QO] (j crin nat1yar he () HO
; + " ]
{ / ) ( supposed 1] we TD (*1¢ } ) quceqd Y)
ore ~ ges, and pilall ffs erger, el-
T oat i os — 1 +} + ‘ ] how “YY +
Lut IS GQesec!} ea] veliea hreats and narassmen
efendants. The actions of defendants
, , | + are ‘asslc exam} les OI retalla ion con-
, = 4 a ». a . i ;
my! under section i(U4!tal. The Taliure or a union to
] ¢ . 4 ‘ ee ee ey wae =
er membd - ») ! { aust Ol nel) protecte ac
. .
] oO + © thac
Ss, resulting 1! educed earning’ O} nose parties
. :
s plal} nro} } ec

28. There is overwhelming ahingaied that defendants
and their agents knew of plaintiffs’ participation in this
suit or in otherwise protected conduct.

29. Defendants have attempted to rebut portions of
plaintiffs’ prima facie case by proffering other reasons
for their conduct. While they do not dispute that various
plaintiffs were laid off or not referred, they do dispute
the reasons for the | However, the showing of
other sufficient justification for defendants’ conduct does
not defeat plaintiffs’ claim of retaliation. Rather, the
issue then becomes whether this proffered justification is
being used as a “pretext” for a action taken for motives
prohibited by Title VII. It is sufficient that plaintiffs

156a

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 75-1743

JESSIE BERGER, ef al.,
Plaintiffs,
V.

TRON WORKERS REINFORCED RODMEN
LOCAL 201, et al.,
Defendants.

[Filed April 11, 1986]

AMENDED ORDER

WHEREAS, the Court has found after trial that De-
fendants Iron Workers Reinforced Rodmen Local 201
(Local 201); the International Association of Bridge
Structural and Ornamental Iron Workers (Interna-
tional) ; the Apprenticeship Committee for Iron Workers
Reinforced Rodman, Local 201 (Apprenticeship Commit-
tee! ; the National Iron Workers and Employees Training
Program (Training Program); and the Construction
Contractors Council (CCC) have engaged in persistent,
pervasive and intentional discrimination against black
rodmen in violation of Title VII of the Civil Rights Act
of 1964 and 42 U.S.C. § 1981, that Defendants’ actions
against Plaintiffs and the class constitute continuing vio-
lations of Title VII and 42 U.S.C. §$ 1981, that Plaintiffs
and the class are suffering irreparable harm and that
they are entitled to declaratory and injunctive relief,

|

157a

‘t+ is HEREBY DECLARED that Defendants’ actions

violate Title VII and 49 U.S.C. $ 1981, and

It is HEREBY ORDERED that Defendants are per-
nently enjoined as follows:

ry) «
| la

I. Disei iminatory Practice Ss

Defendants are enjoined from:

A. Administering the membership policies of Local 201
and the International such that the number of black
members is significantly lower than the number of jour-
neymen members who would be expected to be black in
the absence of racial discrimination;

B. Denying blacks qualified to be journeyman mem-
bers of Local 201 and the International the opportunity
to take an examination which would qualify them for
journeyman membership and thus preferred status for
referral to work under the collective bargaining agree-
ment between Local 201/International and the CCC and
its members ‘Collective Bargaining Agreement) ;

C. Requiring qualified blacks to complete an Appren-

ticeship Program or a Training Program as a prerequi-

ow

site to taking the examination referred to in Paragraph

D. Imposing the requirement of a high school diploma
oy its eqnivalent for entrance to the Apprenticeship
Program ;

Ef. Delaving admission to membership in Local 201 and
the International for blacks until they have worked sig-
nificantly more hours in the rodman trade than whites
have at the time they gained admission;

F. Operating a Training Program for the purpose of

delaying or denying blacks the opportunity to become
members of Local 201 and the International;

G. Operating the referral system in such a manner

that blacks work significantly fewer hours than whites;

158a

H. Giving preference to white union members with
respect to wage scale, overtime opportunities, layoffs and
nature of work including without limitation assignment
'o positions as superintendents, foremen and shop stew-
ards: and

I. Engaging in acts of retaliation (such as threats,
denial of referrals, assignment of lower-paying jobs,
cenial of overtime! against Plaintiffs and members of
the class for exercising their civil rights by bringing
this case.

II. Admission To Membership

Defen’ants Loeal 201 and the International shal}:

A. Admit Plaintiffs Tucker, Simmons, Lewis and Mce-
Millian to journeyman membership in Local 201 and the
International:

B. Admit each class member (as determined according
to the procedures set forth in Paragraph III H below)
‘1: who has worked at least 3.000 hours as a rodman,
on jobs referred by Local 201 as well as other jobs includ-
‘ny without limitation non-union jobs, and has passed
the examination administered by Defendants for journey-
2an membership, or (2) who, as of the date of this
Amended Order, has worked at least 6,000 hours as a
ro¢man, on jobs referred by Local 201 or another local
union affiliated with the International, to journeyman
s‘atus without requiring him to participate in the Ap-
prenticeship or Training Program or to meet any require-
ments of the DEF or any similar program.

A class member who, as of the date of this Amended
Order, has reached the 3.000-hour qualifying level de-
scribed in subparagraph (1) above shall be permitted to
take the examination administered by Defendants for
journevman status on the next date on which the examin-
ation is administered, but in any event no later than 30
days after the receipt by Defendant’s counsel of the cer-

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16la

covered by the Collective Bargaining Agreement, a form
designating the person’s race and including his signature;

B. A registration book shall at all times be maintained
at the hiring hall of Local 201. Each person seeking
referral through Local 201’s hiring hall on a given day
shall be required to sign his name on that day between
6:30 a.m. and 8:00 a.m. in the registration book as a
condition of being referred for werk on that day;

C. Referrals, including any referrals after 8:15 a.m.,
shall be made in order of sign-in, except as provided in
this Paragraph III C, below, and in Paragraph III G.
No person shall be referred for work who has not per-
sonally signed the registration book as provided in Para-
graph III B except (1) when there is no registrant pres-
ent at the hiring hall who is willing to accept the referral
or (2) in connection with jobs requiring special skills
(certified welder, welder certified by Maryland Depart-
ment of Highways, tower crane erection and dismantling,
and post-tensioning). In the exceptional circumstances
described in this Paragraph III C (1) or (2), above, re-
ferrals will be made by calling persons on an alternating
class member non-class member basis, based on lists of
persons possessing the necessary skills (such lists to %e
developed and agreed to by Plaintiffs and Defendart
cal 201 or their designated representatives}. De
Local 201 shall publicize and make available info: vation
concerning how interested class members may seek train-
ing and certification in the aforementioned special skills
and shall periodically provide classroom training, to the
extent practicable, in welding, tower crane erection and
dismantling, and post-tensioning.

D. The forms and a copy of the registration book shall
be made available to Plaintiffs’ counsel within three ¢ 3
of any written request made to counsel for Local 2. ;

E. Local 201 shall prepare and maintain a list of
members of Local 201 and or the International who are

j ~ f -— _
ps - + — june rm _ = ~ -
= > >» ~ ro
= = - - = . “es ~
ae x - ~ — o' 1 aor
é b “3 ~ f - + - v a f = 4
= . = & ¢ wt £2, bf ¥
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ye - “a — = # a
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- ™] > 23 pt xa mt hd —w - te
- 1 c_~ ~ oF | a” - a ) a x ais 2 -, dean ~ x4 + + Qe
\ | a j 4 e — me — = . — —_ + = =
, 4 c * - : . a C oo
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“ai a >
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-

164a

referral pursuant to Paragraph III G, each named Plain-
tiff and class member must certify that he is a named
Plaintiff and or class member on the form discussed be-
low and (to commence the referral priority) must have
been admitted to journeyman membership in Local 201,
either pursuant to Paragraph II B above or otherwise.
From the date of his first referral after notice to De-
fendants of certification for a period of one year, the
named Plaintiff and or class member shail be entitled to
referral in the “class member’ category as described
above.

Pursuant to Paragraph VIII below, a notice shall be
distributed by Defendants to the named Plaintiffs and
those persons who are believed to be class members, to-
gether with a form on which the recipient of the notice
may certify that he is a named Plaintiff and or class
member. Plaintiffs and persons who believe themselves to
be class members shall return the form to Plaintiffs’ coun-
sel, whowill [sic] thereafter advise Defendants’ counsel of
the name of the person who shall receive priority in re-
ferral pursuant to Paragraph III G, and shall provide
copies of such forms te counsel for Local 201. Defendant
Local 201 may challenge the entitlement of any certify-
ing class member, except Plaintiffs. to admission to mem-
bership and or referral! priority by filing a challenge with
the Court within 10 days of receipt of the certification
and serving a copy on Plaintiffs’ counsel. Within 10 days
of the service, there shall be a hearing before the Court
‘or a magistrate or special master designated by the
Court) to determine whether the challenge to the certi-
fication is valid. Any such challenge or lack thereof shal]
be without prejudice to any other position, claim or de-
fense of any party or class member in this action.

IV. Escrow Account

A. All payments made into the escrow account es-
tablished pursuent to the Stipulation in this action dated

December 7, 1983 or otherwise paid by named Plaintiffs

165a

or class members pursuant to any assessment for pay-
ment of Defendants’ legal fees and expenses in connec-
tion with this action, shall be returned within 14 days
of the date of this Order to the persons who made such
payments and any obligation of the named Plaintiffs and
class members to pay for Defendants’ legal fees and costs
in connection with this action shall be void;

B. Defendants are permanently enjoined from taking
any action to suspend, punish, fine or otherwise adversely
affect any named Plaintiff or member of the class on
whose behalf this action was brought for failure 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 Defend-
ants’ legal fees and other costs of defending this action.

V. Backpay, Damages and Attorneys’ Fee

A status eall will be convened to schedule proceedings
for a determination of all backpay, other benefits to be
provided in compensation, including without limitation
pension, health insurance compensation and vacation ben-
efits, and damages, including compensatory and punitive
damages, and the award of costs and attorneys’ fees.

VI. Modification of the Collective Bargaining Agreement

To the extent the Collective Bargaining Agreement and
any other rules governing the activities enjoined or or-
dered herein are inconsistent with this Order, they shez!
forthwith be modified to bring them into compliance
with this Order.

VII. Notice of this Court’s Order

Defendant Local 201 shall post in a conspicious place
in the hiring hall a notice advising union members and
others of the Court’s Order, including « copy of that
Order.

166a

VIII. Notice to Class Members and Cert ification

Within twenty days from the date hereof, Defendants
shall mee the annexed Notice to Class Members and Cer-
tification by first class mail, selon gonial to (1) the
eet identified as potential class members by counsel
for Plaintiffs, and (2) those rodmen whom Defendants
are able to identify as black workers who were referred
by Local 201 between October 21, 1972 and October 21,
1975. A copy of the notice and certification shall also be
posted in a conspicuous place in Local 201’s hiring hall.
The Defendants shall bear the expenses of sending the
notice and certification to potential class members.

XIV. Retention of Jurisdiction

This Court shall retain jurisdiction over this matte
for a period of five years to ensure that its Order ‘
complied with.

s’ John Garrett Penn
United States District Judge

Dated: Apr. 10. 1986

167a

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 75-1743

JESSIE BERGER, et al.,
Plaintiffs,

V.

IRON WORKERS REINFORCED RODMEN
LOCAL 201, et al.,
Defendants.

[Filed Apr. 11, 1986]

NOTICE TO CLASS MEMBERS

THE COURT IN THIS CASE HAS RULED THAT
LOCAL 201 AND THE OTHER D¥FENDANTS EN-
GAGED IN UNLAWFUL RACE DISCRIMINATION
AGAINST BLACK RODMEN. AS A RESULT, CLASS
MEMBERS ARE ENTITLED TO CERTAIN RELIEF.
YOU MAY BE A CLASS MEMBER. IF YOU THINK
YOU ARE A MEMBER OF THE CLASS CERTIFIED
BY THE COURT, COMPLETE THE FORM AT-
TACHED TO THIS NOTICE AND RETURN IT AS
DIRECTED BY THIS NOTICE.

On July 26, 1976, the Court certified the following
class under Rules 23(a) and 23(b)(2) of the Federal
Rules of Civil Procedure:

1) all black persons who have applied for or sought,

from representatives of Local 201 or the Inter-

Aaavrd

168a

national, membership in Local 201 and, in con-
nection therewith, the International or who have
applied for or sought, from representatives of
Local 201, the Apprenticeship Program or the
Training Program, admission to the Apprentice-
ship Program and or the Training Program and
who have been or might be excluded from Local
201 and, in connection therewith, the Interna-
tional or the Apprenticeship Program or the
Training Program or any of the above by the
alleged discriminatory practices of the Defend-
ants 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 the class representatives filed the
instant lawsuit.

2) all black persons who have been referred for
employment by Local 201 or who have applied
to Local 201 for referral for employment by any
means, including filling out a referral slip, or
presenting themseives at Local 201 and request-
in representatives of Local 201 to refer them for
work, and who have been or might be discour-
aged from applying for membership in Local 201
and in connection therewith, the International,
and’or Apprenticeship Program and or the
Training Program by the allegedly racially dis-
criminatory 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.

IT IS IMPORTANT THAT YOU PROMPTLY FILL
OUT THE CERTIFICATE AND RETURN IT, FOR
TWO REASONS:

169a

FIRST, the Court’s order granted certain affirmative
relief to class members. That relief provides for admis-
sion to union membership and job referral priority for
persons having certain qualifications. After you fill out
and return this form, you may be entitled to some or
all of these benefits.

SECOND, the Court ordered that proceedings should
be held to decide the remaining issues in the case, in-
cluding backpay, other benefits (such as pension, health
insurance compensation and vacation benefits) and dam-
ages, and the award of costs and attorneys fees. These
issues will be decided in separate proceedings before the
Court, or a magistrate or special master designated by
the Court.

It is therefore now necessary to identify individual
class members. Accordingly, if you believe that you are
a member of the class and you want to share in the
benefits of any judgment favorable to the class, please
complete the certification form that is attached to this
notice and return it to:

John Oberdorfer, Esq.
Patton, Boggs & Blow
2550 M Street, N.W.
Washington, D.C. 20037

-Or-
John F. Dienelt, Esq.
Reid, Smith, Shaw & McClay
1150 Connecticut Ave., N.W.
Suite 900
Washington, D.C. 20056

The certification must be notarized at the time you
sign it.

You must return the certification no later than 30
days from the date defendants send this notice ‘date
given below! in order to seek admission to journeyman
status and or referral priority under the order, or to

|

170a

participate in the proceedings concerning backpay and
other damages. There is, of course, no guarantee that
a class member will be awarded any monetary damages
or backpay.

IF YOU ARE INCLUDED WITHIN THE CLASS
DEFINITION, YOU MAY NOT EXCLUDE YOUR-
SELF FROM THIS CLASS ACTION. ANY JUDG-
MENT ENTERED IN THIS CASE WILL BE BIND-
ING UPON YOU AND WILL PRECLUDE YOU FROM
RAISING IN ANY OTHER FORUM CLAIMS COV-
ERED BY THIS ACTION.

If you have any questions about this lawsuit, including
any questions about whether you are a member of the
plaintiff class, please call John Oberdorfer or Andrew
Newman at 202-457-6000, or John Dienelt at 202-457-
6147. PLEASE DO NOT CALL THE COURT WITH
QUESTIONS.

DATED:

l7la

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 75-1743

JESSIE BERGER, et a/.,
Plaintiffs,
Vv.

IRON WORKERS REINFORCED RODMEN

LOCAL 201. ef al..
Defendants.

[Filed Apr. 11, 1986]

CERTIFICATION
INSTRUCTIONS: If you believe that you are a member
of the plaintiff class in the above lawsuit, please FILL
IN the blanks and check the “Yes” and “No” blank,
for as many of the statements that apply to you. Not
all statements will apply to you, so please READ
CAREFULLY.
Name:
Address:
Telephone No.:

Social Security +:

Date of Birth:

EE eee

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l75a
Per Cumam

For The Court

/

s/ Constance L. Dupre
CONSTANCE L. DUPRE
Clerk

Date: April 5, 1988

Per Curiam Opinion for the Court filed by Circuit Judges
Edwards, Starr and D.H. Ginsburg.

176a

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

JESSIE BERGER, et al.
Ws

IRON WORKERS REINFORCED RODMEN
LOCAL 201, et al.,
Appellants

INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL AND ORNAMENTAL IRON WORKERS, et al.
and consolidated cases 86-5027, 86-5028,
86-5275, 86-5276, 86-5277

[Filed July 29, 1988]

Before: Edwards, Starr and D.H. Ginsburg, Circuit
Judges.
ORDER

Upon consideration of the Petition for Rehearing of
Appellants Rodmen Local 201, Apprenticeship Committee
and Training Program, the response thereto and of Ap-
pellants’ Motion for Leave to File Reply, it is

ORDERED, by the Court, that the Clerk is directed
to file Appellants’ lodged reply and upon consideration of
all of the foregoing, it is

FURTHER ORDERED, by the Court, for the reasons
more fully set forth in the opinion of the Court filed this
date, that appellants’ aforesaid petition is granted.

178a

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 85-6217

—
reo
yp

IE BERGER, et al.
¥.
IRON WORKERS REINFORCED RODMEN,
LOCAL 201, et al.,
Appellants
INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL 2nd ORNAMENTAL IRON WORKERS, ef ai.

and consolidated cases 86-5027, 86-5028,

86-5275, 86-5276, 86-5277
| Filed July 29, 1988 |

Before: Edwards, Starr and D.H. Ginsburg, Circuit
Judges

ORDER

Upon consideration of the Motion of Appellant Inter-
national Association of Bridge, Structural and Ornamen-
tal Iron Workers, et al. for Leave to Late File a Petition
for Rehearing and or Suggestion for Rehearing En Lane,
It 1s

ORDERED, by the Court, that the motion is granted
and the Clerk is directed to file the lodged petition
suggestion, and upon consideration thereof, it is

FURTHER ORDERED, by the Court

, that the petition
for rehearing is denied.

179a

FOR THE COURT:

CONSTANCE L. DUPRE
Clerk

Robert A. Bonner
ROBERT A. BONNER
Deputy Clerk

180a

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 85-6217

JESSIE BERGER, et al.
v.

IRON WORKERS REINFORCED RODMEN,
LOCAL 201, et ai.,
Appellants

INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL and ORNAMENTAL IRON WORKERS, et al.
and consolidated cases 86-5027, 86-5028,
86-5275, 86-5276, 86-5277

[Filed July 29, 1988]

ee

Before: Wald, Chief Judge; Robinson, Mikva, Ed-
wards, Ruth B. Ginsburg, Starr, Silberman,
Buckley, Williams, D.H. Ginsburg, and Sen-
telle, Circuit Judges

ORDER

The suggestion for rehearing en banc of appellants In-
ternational Association of Bridge, Structural and Orna-
mental Iron Workers, et al. has been circulated to the
full Court. No member of the Court requested the tak-
ing of a vote thereon. Upon consideration of the fore-
going, it is

ORDERED, by the Court en banc, that the suggestion
is denied.

18la

/S/

FoR THE COURT:

CONSTANCE L. DUPRE
Clerk

Robert A. Bonner
ROBERT A. BONNER
Deputy Clerk

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0339%3A2. Public record. Not legal advice.