Barber v. International Broth. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, Dist. Lodge No. 57

• Decision Date: 04 April 1988
• Docket Number: No. 87-7080,87-7080
• Parties: 46 Fair Empl.Prac.Cas. 1542, 46 Empl. Prac. Dec. P 37,898 Charles R. BARBER, Plaintiff-Appellee, v. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS, AND HELPERS, DISTRICT LODGE # 57, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1067

841 F.2d 1067

46 Fair Empl.Prac.Cas. 1542,

46 Empl. Prac. Dec. P 37,898

Charles R. BARBER, Plaintiff-Appellee, v. INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS, AND HELPERS DISTRICT LODGE # 57, Defendants-Appellants.

No. 87-7080.

United States Court of Appeals Eleventh Circuit.

April 4, 1988.

George C. Longshore, Birmingham, Ala., for defendants-appellants.

Carol Ann Rasmussen, Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before VANCE and CLARK, Circuit Judges, and GARZA ^*, Senior Circuit Judge.

CLARK, Circuit Judge:

The district court in this case has entered two judgments against appellant, District Lodge No. 57 of the International Brotherhood of Boilermakers ("the union"), finding on both occasions that the union intentionally discriminated against appellee Charles R. Barber in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e to 2000e-17 (1982). After the entry of the first judgment, the union appealed to this court, the judgment was vacated, and the case was remanded to the district court for proceedings consistent with our opinion. See Barber v. International Brotherhood of Boilermakers, 778 F.2d 750 (11th Cir.1985). On this appeal, finding that the district court exceeded our mandate by admitting a considerable amount of new evidence and that the evidence that was authorized on remand did not support a finding of intentional discrimination, we reverse.

I. BACKGROUND

The International Brotherhood of Boilermakers is a construction union that negotiates with employers concerning the working rules and conditions of employment in the boilermaking trade. The collective bargaining agreement governing the boilermakers in District Lodge No. 57 is the Southeastern States Articles of Agreement. Under the Southeastern States Agreement, locals of the union maintain an "out-of-work" list from which union members and others are referred to various jobs.

The rates union members are paid depend primarily on their status in the union. "Full-fledged," or journeymen, boilermakers are paid 100% of the rate specified in the Southeastern States Agreement. Those who are not fully qualified boilermakers--those in the union's helper-trainee program--are usually paid less. The trainee program, as it is set forth in the Agreement, provides that union members with less than 2000 hours experience are paid 70% of the specified rate and those with 2000-8000 hours 80% of the specified rate. Once a trainee reaches 8000 qualified hours, he or she becomes a full-fledged boilermaker and is always paid the 100% rate. ¹

Appellee Barber first became affiliated with the union in July 1977. He had been working as a laborer and cement finisher with several members of the union. These members approached Carl Phillips, the business agent of Local 455, about starting Barber in the trainee program. After talking with Barber, and on the belief that he had no boilermaking experience, Phillips signed Barber up as a 70% trainee and the only black in the local.

In the years after 1977, Barber attended a welding school in Ohio and gained considerable experience in welding and rigging. In early 1978, he began receiving referrals at the 80% rate. In 1980, he joined the International Union's National Transient Division (NTD). For this he received a book indicating that he was a full-fledged boilermaker under the terms of NTD's separate collective bargaining agreement. In 1982, Barber asked the union to credit him for his rigging and welding experience as well as hours he had spent boilermaking in 1973. He also asserted that his NTD book entitled him to the 100% rate. The union responded that his NTD book did not alter his trainee status with Local 455 and that it would need documentary proof of his experience in 1973. It is unclear from the record whether Barber was granted hours of credit for his rigging and welding experience. In any event, at the time of the first trial, he was still consistently being referred out at the 80% rate.

On November 2, 1981, Barber filed a complaint with the EEOC charging that whites no more qualified than he were receiving referrals at the 100% rate. The complaint was not Barber's first. He had brought an EEOC claim in 1978, and that claim led to a lawsuit in 1979. On June 30, 1980, Barber and the union settled, "in full compromise settlement and satisfaction of any and all claims and causes of action raised or for which could have been raised." Record, Defendant's Exh. 12 at 3.

On the first trial of this case, the district court found in Barber's favor. The court acknowledged that the June 1980 settlement agreement barred any consideration of discrimination that occurred prior to that date, but found that after June 30, 1980, Barber had been referred at the 80% rate while similarly situated whites had been referred at 100%. The district court's findings were dictated into the record the day after the trial, and they mentioned three white men specifically: John Sharit, Damon Temple, and James Ray. See Supp. Record, Vol. I at 157-58.

On the union's appeal, this court vacated the district court's judgment and remanded the case "for further proceedings consistent with this opinion." Barber, 778 F.2d at 762. In reaching that result, this court closely examined the evidence concerning each of the three white men addressed by the district court. With respect to John Sharit, the court held that he had become a full-fledged boilermaker prior to June 30, 1980, and thus was not situated similarly to Barber during the only period the June 30 settlement permitted the district court to consider. See id. at 756-57. With respect to Damon Temple, the court found that the district court clearly erred when it relied on "internally inconsistent" work records to conclude that Temple, a trainee like Barber, was referred out at 100% after the date of the settlement. The court stated that "[o]n remand, further proceedings will be necessary to establish whether Temple was referred at the 100% rate after June 30, 1980." Id. at 762. Finally, with respect to James Ray, the court declined to upset the district court's finding that Ray's 100% referrals constituted disparate treatment. The court noted, however, that those referrals were not discriminatory if, unlike Barber, Ray had been admitted initially as a full-fledged boilermaker, and it remanded for clarification of that issue. See id. at 759-60.

On remand, the district court reopened discovery, admitted evidence, over the union's objection, concerning tens of additional white union members, and again entered judgment for Barber. See Barber v. International Brotherhood of Boilermakers, 651 F.Supp. 265, 268 (N.D.Ala.1986). In this decision, the court altered its earlier findings with respect to John Sharit and James Ray and found additionally that John McGhee, Williams Burroughs, Ted Gerrard, William Clifford James, and Carl Arrington were examples of similarly situated white union members who received 100% referrals while Barber, because of his race, received 80% referrals. The district court implied that it was not limited to considering only those whites mentioned in this court's order because the district court "never indicated that they were the only similarly situated white employees." Id. at 266 n. 3.

The union argues that in admitting, considering, and basing its finding of discrimination on evidence not put forth in the first trial, the district court exceeded our mandate and violated the law of the case. The union also argues that the evidence at the second trial that was within the mandate's scope failed to establish the union's intent to discriminate. We agree on both points, and reverse for entry of a judgment in favor of the union.

II. THE EFFECT OF THE PRIOR APPEAL

This case is governed by two related doctrines. The first is what commentators have denominated the "mandate rule." See, e.g., J. Moore, J. Lucas & T. Currier, Moore's Federal Practice p 0.404 (2d ed. 1983); see also Litman v. Massachusetts Mutual Life Insurance Co., 825 F.2d 1506, 1511 (11th Cir.1987) (in banc). The mandate rule simply embodies the proposition that "a district court is not free to deviate from the appellate court's mandate." Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440 n. 2 (11th Cir.1984); see Baumer v. United States, 685 F.2d 1318, 1321 (11th Cir.1982). The lower court may consider anew issues not " 'within [the mandate's] compass.' " Quern v. Jordan, 440 U.S. 332, 348 n. 18, 99 S.Ct. 1139, 1148 n. 18, 59 L.Ed.2d 358 (1979) (appropriateness of notice relief could be considered where Court had addressed only constitutionality of notice relief) (quoting Sprague v. Ticonic National Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 781, 83 L.Ed. 1184 (1939)); see Perkins v. Standard Oil of California, 399 U.S. 222, 224, 90 S.Ct. 1989, 1990, 26 L.Ed.2d 534 (1970) (lower courts could consider award of attorneys' fees where Court had addressed only merits of Clayton Act claim). However, where an appellate court remands for "resolution of a narrow factual issue," the lower court may not circumvent the mandate by approaching the identical legal issue under an entirely new theory. Baumer, 685 F.2d at 1321 (district court could not take evidence of fair market value of option when granted where appellate court remanded for determination of option's fair market value when exercised); see EEOC v. International Longshoremen's Ass'n, 623 F.2d 1054, 1058 (5th Cir.1980) (district court could not hold hearing on the equity of merging one of four locals of a union where appellate court directed that all four locals be merged), cert. denied, 451 U.S. 917, 101 S.Ct. 1997, 68 L.Ed.2d 310 (1981). As should be apparent, the application of these mandate rule principles will, in accord with the rule's purpose of promoting finality, depend...