Berger v. Iron Workers Reinforced Rodmen, Local 201

• Citation: 335 US App DC 179,170 F.3d 1111
• Decision Date: 30 March 1999
• Docket Number: 97-7031 and 97-7124,97-7029,97-7021,97-7027,97-7020,Nos. 97-7019,s. 97-7019
• Parties: 79 Fair Empl.Prac.Cas. (BNA) 1018, 335 U.S.App.D.C. 179 Jessie BERGER, et al., Appellees/Cross-Appellants, v. IRON WORKERS REINFORCED RODMEN, LOCAL 201, et al., Appellees/Cross-Appellants. International Association of Bridge, Structural and Ornamental Iron Workers, Appellant/Cross-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1111

170 F.3d 1111

79 Fair Empl.Prac.Cas. (BNA) 1018, 335

U.S.App.D.C. 179

Jessie BERGER, et al., Appellees/Cross-Appellants, v. IRON WORKERS REINFORCED RODMEN, LOCAL 201, et al.,

Appellees/Cross-Appellants.

International Association of Bridge, Structural and

Ornamental Iron Workers, Appellant/Cross-Appellee

Nos. 97-7019, 97-7020, 97-7021, 97-7027, 97-7029, 97-7031

and 97-7124.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 30, 1998.

Decided March 30, 1999.

Appeals from the United States District Court for the District of Columbia (75cv01743).

Laurence E. Gold and Victor Van Bourg argued the cause for appellants/cross-appellees. With them on the briefs were Sally M. Tedrow and Ellen O. Boardman, Washington, DC.

St. John Barrett, Washington DC, argued the cause and filed the briefs for appellants Albert Berger, Alfonzia Berger, and Wordia W. Parks.

John F. Dienelt and John L. Oberdorfer, Washington, DC, argued the cause for appellees/cross-appellants. With them on the brief was Christopher L. Killion. Melvin White, Joseph M. Sellers, James A. Treanor, III, Douglas M. Mangel, Michael R. Goodstein, Jonathan M. Malis, David J. Farber, David G. Leitch, Bonnie H. Rothell, Robert B. Duncan, William C. Edgar, Samuel G. Rubenstein, and Mark E. Martin entered appearances.

Before: SILBERMAN, SENTELLE, and GARLAND, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge SILBERMAN.

Opinion concurring and dissenting in part filed by Circuit Judge SENTELLE.

Opinion concurring and dissenting in part filed by Circuit Judge GARLAND.

PER CURIAM:

This case presents what we hope to be the penultimate chapter in a 23-year-old litigation involving racial discrimination by iron workers' unions against a class of African-American construction workers. We upheld the unions' liability a decade ago, and all of the remaining issues in the case concern the remedy due, if any, to those claimants who have thus far not settled with the unions. Although we are reluctant to prolong this unduly protracted litigation any longer, the district court's failure adequately to resolve the questions presented on appeal compels us to remand many of these challenges to the district court for further factual findings and supporting explanation. In those instances in which the district court's findings and explanations make it possible for us to resolve an issue definitively, we affirm or reverse the district court's award.

I. Background

The background of this case is set out in full in our prior opinion, see Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1405-07 (D.C.Cir.1988) (Berger I), and we see little need to repeat the details here. Suffice it to say that in 1975 a class of African-American rodmen--construction workers who handle and position steel rods for reinforcing concrete and other building materials--sued Local 201 of the Iron Workers Reinforced Rodmen and the International Association of Bridge, Structural and Ornamental Iron Workers for discriminatorily denying them union membership in violation of Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. Rodmen obtained work for construction employers in the Washington, D.C. area through referrals distributed at Local 201's hiring hall, and although referrals were available to non-union "permit men," priority, along with the other benefits of union membership, went to the union members. See Berger I, 843 F.2d at 1405. The class pursued and succeeded on several theories of liability at trial, but we essentially upheld the district court's liability determination on one theory alone. ¹ We held that the unions were liable for imposing training and apprenticeship prerequisites to taking the journeyman's examination--the entrance examination for union membership. The class demonstrated with statistical evidence, to which the unions offered no rebuttal, that the educational prerequisites to taking the entrance examination worked to discriminate against "experienced" African-American rodmen (those rodmen with at least two-years' experience which, according to the class' expert, approximated 2,150 rodmen hours). See Berger I, 843 F.2d at 1414-15. ² We reversed the district court's finding that the unions' various entrance prerequisites from 1967 to the filing of the suit in 1975 constituted a single, continuing pattern of intentional discrimination. Central to this holding was our conclusion that the so-called "Open Period" from February to June 1971, during which all experienced rodmen were permitted to take the union entrance examination (though a more difficult one), marked a sharp break in the unions' admissions practices. See id. at 1422-23. We thus limited the liability period to the time between June 1971, the close of the "Open Period" and the beginning of the Training and Apprenticeship prerequisites, and the filing of the suit on October 21, 1975. See id. at 1422.

Since the trial bifurcated liability and damages, the district court on February 15, 1989, referred the case to a Special Master, Magistrate Patrick J. Attridge, and directed him in an "Order of Reference" to conduct proceedings to calculate the amount of back pay to be awarded to class members and to determine whether class members were entitled to compensatory and punitive damages and any other relief that might be appropriate. The Order stated that the class consisted of the eight named plaintiffs, and any other claimant who could make a prima facie case that he was a member of the class--subject to the unions' rebuttal by clear and convincing evidence. It specified the applicable back pay period as follows:

Each individual class member may present a claim for back pay for the period commencing on the date when he first attempted to become, or was deterred or discouraged from becoming, a member of Local 201 and/or the International, and concluding on the date when he first was allowed to take the journeyman examination, passage of which is required for membership in Local 201 and the International, or was given a bona fide opportunity to take the examination. However, in no event shall the back pay period of any class member commence earlier than October 21, 1972, which is three years prior to the filing of the complaint in this case.

The Order also set forth procedures governing the burdens of proof for establishing the amount of back pay and other relief (prima facie case by claimants subject to the unions' rebuttal by clear and convincing evidence), notice to the class, a schedule for submitting claims, the formula for determining back pay awards, creation of a Relief Account in which the unions would deposit awards for each successful claimant, adjustment of pension records, legal representation of claimants at individual hearings, and status reports to be filed by the Special Master every six months.

The parties conducted discovery in 1989, and in 1990 the Special Master held individual trials for the 64 remaining claimants ³ and heard the parties' respective expert witnesses. By March of 1991, 47 claimants remained, and the parties submitted proposed findings to the Special Master. Nearly two years later, the class filed a request for a ruling from the district court. The district court did not respond to this request, nor to a renewed request by the class filed in April 1993. In July 1993, the class sought a writ of mandamus from this court compelling the Special Master to rule, which we denied, expressing confidence (unfortunately unjustified) that the district court would promptly issue a final order resolving all matters covered by the Order of Reference. When the Special Master still had not filed his report by March of 1994 (and thus the district court obviously had not issued a final order either), the class filed a second petition for a writ of mandamus with this court. Finally, on April 14, 1994, three years after the parties submitted proposed findings, the Special Master issued his report resolving the claims of the 35 remaining claimants.

In making the class membership determinations, the Special Master defined "experience" on a case-by-case basis, rejecting the unions' contention that 2,150 hours of Local 201 rodmen experience was a prerequisite to class membership, as well as their position that a claimant's failure to pass the journeyman's examination is a per se bar to class membership. The Special Master concluded that 11 claimants failed to prove membership in the class, and he awarded the remaining 24 claimants back pay, based on a formula multiplying the hourly rodmen wage rate for each year times the difference between the number of hours the claimant actually worked each year as a rodman and the number of hours he would have worked as a union member (less any non-rodwork interim earnings pursuant to 42 U.S.C. § 2000e-5(g)). The Special Master derived the number representing the average hours a claimant "would have worked"--the so-called "benchmark proxy"--from the pension records of Local 201, and rejected alternative benchmark figures proposed by experts for both the class and the unions. He also awarded prejudgment interest at a rate of 6% compounded annually, awarded 22 claimants compensatory damages for mental or emotional distress, and denied all of the requests for punitive damages. The parties filed objections to the report, and before the district court could rule, five of the successful claimants and two of the dismissed claimants settled.

We denied the class' second petition for mandamus after the Special Master issued his report in April 1994, and assumed in that order that the district court would act promptly on the report "in light of the long delays in this case." The district court issued its opinion and order on January 26, 1995. The court adopted the Special Master's report with respect to the class-wide issues and the awards to the 19 remaining successful cla...