Berger v. Iron Workers Reinforced Rodmen Local 201

Decision Date05 April 1988
Docket NumberNo. 85-6217,85-6217
Citation269 U.S. App. D.C. 67,843 F.2d 1395
Parties46 Fair Empl.Prac.Cas. 780, 46 Empl. Prac. Dec. P 37,894, 269 U.S.App.D.C. 67, 56 USLW 2615, 11 Fed.R.Serv.3d 235 Jessie BERGER, et al. v. IRON WORKERS REINFORCED RODMEN LOCAL 201, et al., Appellants. International Association of Bridge, Structural and Ornamental Iron Workers, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 75-01743).

Gary L. Lieber, Washington, D.C., for appellant Const. Contractors Council/AGC Labor Div., Inc. John A. McGuinn, Washington, D.C., also entered an appearance for appellant.

Sally M. Tedrow, with whom James R. O'Connell and Ellen O. Boardman, Washington, D.C., were on the brief, for appellants Local 201, Apprenticeship Committee and Training Program.

Victor J. Van Bourg, with whom Laurence E. Gold, Washington, D.C., was on the brief, for appellant Intern. Ass'n of Bridge, Structural and Ornamental Iron Workers.

John L. Oberdorfer and John F. Dienelt, with whom Thomas D. Roberts and Andrew S. Newman, Washington, D.C., were on the brief, for appellees.

Thomas W. White, with whom John Payton, Washington, D.C., was on the brief, for amicus curiae NAACP Legal Defense and Educational Fund, Inc., urging affirmance.

Michael E. Kennedy, Washington, D.C., was on the brief, for amicus curiae Associated Gen. 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.


This case involves a class action brought by eight black construction workers alleging racial discrimination under 42 U.S.C. Sec. 1981 (1982) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982). The plaintiffs charged that various requirements for admission to Local 201 of the Iron Workers Reinforced 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, Inc. ("CCC"), an organization 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 difficult 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 subsequent remedial order again copied the plaintiffs' proposal; 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 expressed by a number of circuits in strongly disapproving the procedure followed by the trial court in reaching judgment in this case. See, e.g., EEOC v. Federal Reserve Bank, 698 F.2d 633, 639-42 (4th Cir.1983), rev'd on other grounds sub nom. Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984), and cases cited therein. While "the fact that the trial judge has adopted proposed findings does not, by itself, warrant reversal," "it does raise the possibility that there was insufficient independent evaluation of the evidence and may cause the losing party to believe that his position has not been given the consideration it deserves." Photo Elecs. Corp. v. England, 581 F.2d 772, 777 (9th Cir.1978). Indeed, this is surely the case here, where the appellants assert that "the District Court's uncritical acceptance of plaintiffs' proposed findings ... did not provide the even-handed consideration of the evidence necessary 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.

Because of the state of the record on appeal, this case was needlessly given "complex" treatment under this circuit'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.


Rodmen are construction workers who handle and position steel rods for reinforcing concrete and other building materials. Most of the rodmen who worked in the Washington, D.C., area in the early 1970s were employed through referrals by the Union, pursuant to a series of collective bargaining agreements between the Union 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 entered a slump in 1975, Union membership became especially valuable, because limited employment prospects prevented permit workers from obtaining regular employment.

Admission to the Union always has been by examination. 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 Committee, which could grant leave, in its discretion, to rodmen with an unspecified amount of experience 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.

February 1971-June 1971. There were also two paths to the exam at this time. (1) Those who completed the Apprenticeship Program could take the usual exam. (2) All rodmen with two years' experience were eligible to take a special exam--not the one given by the Union before or after this period--which had a higher failure rate. Because all experienced rodmen were allowed to sit an entrance exam without participating in a Union-supervised educational program, these five months are referred to as the "Open Period."

June 1971-September 1972. Throughout this period, only rodmen who had completed the Apprenticeship Program were permitted to take the exam.

September 1972-October 1975. Once again, there were two tracks to the exam. (1) Completion of the Apprenticeship Program, whose admission requirements were unchanged, provided a ticket to the exam. (2) In addition, the Training Program was established, primarily to allow experienced minority workers to gain access to the exam and thus to Union membership. Although race was not a criterion for admission, special efforts were made to recruit minority workers. Participants in the Training Program had to be (a) physically fit, and (b) 31 years of age or older. Unlike the Apprenticeship Program at that time, the Training Program lacked a high school diploma requirement. 1 Moreover, trainees--but not apprentices--were sometimes allowed to take the exam after a minimum of six months' instruction, even though both educational programs were two years long.

Throughout this entire period, no applicant was guaranteed acceptance into an educational program merely because he met the entrance requirements. Enrollment was always limited, and many who qualified for admission were either rejected or not permitted to apply. Once admitted to either program, however, no enrollee was asked or compelled to discontinue participation because of unsatisfactory performance; the only ground for expulsion was failure to meet one of the enrollment requirements described above. Completion of one of the programs resulted almost automatically in Union membership, since virtually all examinees, with the exception of those tested during the Open Period, passed the test. 2

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 start 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 smaller 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 defendants, alleging racial discrimination in violation of Title VII and section 1981. The gravamen of the plaintiffs' complaint is that the preconditions to Union membership in the early 1970s--in particular, the requirement that apprentices hold a high school...

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