United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 30, 1998 Decided March 30, 1999
No. 97-7019
"COMPLEX"
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
Consolidated with
Nos. 97-7020; 97-7021; 97-7027; 97-7029;
97-7031 and 97-7124
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.
St. John Barrett argued the cause and filed the briefs for
appellants Albert Berger, Alfonzia Berger, and Wordia W.
Parks.
John F. Dienelt and John L. Oberdorfer 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 un-
ions' 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 Interna-
tional Association of Bridge, Structural and Ornamental Iron
Workers for discriminatorily denying them union membership
in violation of Title VII, 42 U.S.C. s 2000e et seq., and 42
U.S.C. s 1981. Rodmen obtained work for construction em-
ployers in the Washington, D.C. area through referrals dis-
tributed 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-Ameri-
can 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
__________
1 We also upheld liability for several individual claims of retalia-
tion, none of which is relevant in this appeal.
2 We clarified on rehearing that the Apprenticeship Committee
and the Training Program, which administered the educational
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 prerequi-
sites, 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 com-
pensatory and punitive damages and any other relief that
might be appropriate. The Order stated that the class con-
sisted 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 con-
vincing 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 discour-
aged 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, pas-
sage of which is required for membership in Local 201
__________
prerequisites, were not jointly liable with Local 201 and the Inter-
national. Liability, we said, was established only with respect to
the unions' imposition of the requirements themselves, and was not
based on the administration of the programs by the Apprenticeship
Committee and Training Program. See Berger v. Iron Workers
and the International, or was given a bona fide opportu-
nity 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 claim-
ants 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
claimants3 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 find-
ings, the Special Master issued his report resolving the claims
of the 35 remaining claimants.
__________
Reinforced Rodmen Local 201, 852 F.2d 619, 620-21 (D.C. Cir.
1988) (Berger II).
3 One hundred and seventy-three claimants participated in the
damages phase originally, but many settled their claims and others
were excluded for filing untimely claims.
In making the class membership determinations, the Spe-
cial 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 member-
ship. 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 multi-
plying 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. s 2000e-5(g)). The
Special Master derived the number representing the average
hours a claimant "would have worked"--the so-called "bench-
mark 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 prejudg-
ment 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 claimants, making small correc-
tions in the amount of the award where appropriate, but
specifically noting that its order would not constitute a final,
appealable order until the court's subsequent order address-
ing the excluded claimants' claims issued. That March 16,
1995 order upheld the Special Master's exclusion of the nine
remaining claimants from the class, and amended the January
26 order by finding clear error, in light of the parties' 1990
stipulation to the contrary, in the Special Master's failure to
include overtime in the back pay calculations of the successful
claimants.
The next two years of this litigation involved premature
appeals by the unions and six of the excluded claimants;
although the district court indicated in its January 1995 order
that the order would become final upon issuance of the March
1995 order, the court ordered the plaintiffs to submit pro-
posed judgment orders and did not certify any of the claims
for appeal pursuant to Federal Rule of Civil Procedure 54(b).
Accordingly, this court dismissed the unions' appeal pursuant
to the class' motion, and dismissed the remainder of the
excluded claimants' appeals on its own motion. The district
court entered an order of judgment on January 3, 1997, from
which the unions, the class on behalf of the 19 successful
claimants, and three excluded claimants, appealed to this
court.
The unions challenge a number of legal conclusions and
factual findings, both class-wide and with respect to individual
claimants, in the district court's opinion (and the Special
Master's report that the opinion adopted), including: the
method for calculating the "benchmark proxy" from which
individual awards were derived; the standard of review used
to determine class membership; the conclusion that several
individuals were properly included in the class; the calcula-
tion of several class members' awards; the conclusion that
some class members did not fail to mitigate their damages;
and the award of compensatory damages and prejudgment
interest. The class members obviously defend all of those
decisions. In addition, the class argues that the district court
erroneously calculated several back pay awards in the unions'
favor; incorrectly concluded that four claimants abandoned
their efforts to join the union and forfeited their right to back
pay subsequent to their abandonment; erred by failing to
award punitive damages; and should have awarded even more
prejudgment interest. Three individual class members also
appeal the district court's decision to exclude them from the
class.
II. The Benchmark Determination
The unions advance numerous arguments against the
benchmarks chosen by the Special Master, and the conse-
quent awards of back pay to the members of the plaintiff
class. We are convinced that the Special Master, and thus
the district court, did commit clear error in two respects.
The Special Master failed to include "zero-hour" workers
(workers who for a number of years worked zero hours as
union rodmen) in the determination of the average number of
hours worked by a union rodman in the relevant time period,
and he failed entirely to address the "fixed-pie" issue raised
by the unions' expert, Dr. Farrell Bloch. First, the zero-hour
workers reflect the inherent risk in the work, and failure to
adequately account for their absence is clear error. If the
risk of injury is calculated back into the equation when
individual back pay awards are determined, it needs to be
done explicitly, and the specific experiences of individual
rodmen can be measured against the baseline risk of injury to
see if they surpass it. Individual claimants whose injury-time
exceeds the statistical average should then be adjusted down-
ward to reflect the difference between their actual experience
and the average. Second, as we explain below, the fixed-pie
analysis permits the court to determine what would have
happened in the absence of the discrimination, International
Bhd. of Teamsters v. United States, 431 U.S. 324, 372 (1977),
and the burden for showing what those conditions would have
been falls on the plaintiff, who is responsible for proving
damages.
A.The Special Master's Methodology
We review the findings of fact by the district court, includ-
ing the findings of the Special Master to the extent that they
were adopted by the district court, under a clearly erroneous
standard. See Cuddy v. Carmen, 762 F.2d 119, 123-24 (D.C.
Cir.), cert. denied, 474 U.S. 1034 (1985); 28 U.S.C.
s 636(b)(2); Fed. R. Civ. P. 53(e)(2). "The findings of a
master, to the extent that the court adopts them, shall be
considered as the findings of the court." Fed. R. Civ. P. 52(a).
The basic standard for devising back pay awards in a Title
VII case is undisputed by the parties. A court must, "as
nearly as possible, recreate the conditions and relationships
that would have been, had there been no unlawful discrimina-
tion," International Bhd. of Teamsters v. United States, 431
U.S. at 372 (quoting Franks v. Bowman Transp. Co., 424 U.S.
747, 769 (1976) (internal quotations omitted)). The Order of
Reference directed the Special Master to determine how
many additional hours class members would have worked in
the absence of discrimination, and award back pay by multi-
plying the expected hours worked by the average wage rate
in effect during the year that the class member would have
worked. The back pay period began for each individual class
member when he was denied access to the examination or
deterred from applying for the examination for union mem-
bership by the educational requirement, and ended when he
either took or had a bona fide opportunity to take the
entrance examination. No back pay award could be granted
for periods before October 21, 1972, three years before the
suit was filed, or after April 10, 1986, when the district court
issued its remedial order granting comprehensive injunctive
relief. The amount of back pay awarded to any given mem-
ber of the plaintiff class is the product of the average wage
rate in effect during the time during which the union discrimi-
nated against him multiplied by the number of hours worked
by the average rodman during that time period.
Each side put on expert testimony and presented documen-
tary evidence sponsoring a method for computing the number
of hours worked by the average rodman for purposes of
determining the proper amount of a back pay award. The
Special Master noted that one of the primary difficulties with
the calculation was the fact that the union did not employ
people, but referred them to employers, who individually
determined the terms and length of employment. The Spe-
cial Master rejected the methods proposed by the expert
witnesses in this case, Marc Bendick, Jr. for the claimants
and Daniel Quinn Mills and Dr. Bloch for the unions, and
created a method of his own based on the documentary
evidence in the record. The Special Master determined that
the best proxy for hours worked in the absence of discrimina-
tion was the hours actually worked by union members during
the years in question. He therefore examined the pension
records of Local 201 and calculated how many hours fully
employed rodmen worked on average. The Special Master
noted that the "pension records automatically take into ac-
count the unemployment levels of District of Columbia union
rodmen and the average number of days lost due to injury,
sickness and attrition." Report of Special Master, J.A. 341.
He explained his choice as follows:
From the Local 201 pension records, a representative
group of workers is readily identifiable. The representa-
tive group are those workers who received steady refer-
rals during the relevant time period, as evidenced by a
consistent number of hours worked per year. Workers
with consistent referrals worked remarkably similar total
numbers of hours for any given year. Excluded from
this group are non-representative workers, i.e., those
who for several years during the relevant time period
worked no hours at all.
By taking an average of the number of hours worked
by those engaged in full time employment and checking
that figure for ball-park accuracy against certain indica-
tors of local iron worker productivity during the relevant
time periods, the undersigned arrived at the representa-
tive or "proxy" number of hours per year that an iron
worker could be expected to work. Based upon these
indicia, and taking into account the testimony regarding
the relatively recent concept of "double breasting" [in
which contractors worked both union and non-union
crews], and having also considered all the testimony and
exhibits received in evidence, the Special Master finds
that the annual hours reasonably expected to be worked
by a member of Local 201 is as follows:
Year Hours Worked
1972 1711
1973 1557
1974 1627
1975 1447
1976 1419
Year Hours Worked
1977 1253
1978 1179
1979 1230
1980 1210
1981 1263
1982 1168
1983 1126
1984 953
1985 1397
1986 1549
See Report of the Special Master at 50-51, J.A. 342-43.
Based on his calculations, he arrived at an average of 1,339
hours per year.
B.Alleged Errors in the Master's Method
The unions argue that the Special Master committed clear
error in the method he adopted for devising a benchmark for
purposes of awarding back pay. Specifically, they argue that
he did not sufficiently explain his choice, or show why he
failed to adopt the methodology of their expert, Dr. Bloch,
which has been endorsed for Title VII remedies in the past.
Like the Special Master, Dr. Bloch used a cohort analysis
based on pension records, but he used a smaller category of
workers, those who were admitted to the union during the
period when the union discriminated against the plaintiff
class. Dr. Bloch's calculations also differed from the Special
Master's in that they included the zero-hour workers, on the
reasoning that a longitudinal analysis of the cohort should
incorporate the risk of disabling injury. Finally, Dr. Bloch
limited the number of hours that could be awarded with a
"fixed-pie" analysis. He adjusted the benchmark by adding
the total number of hours worked by all rodmen, including
union members, traveling members from another local, and
permit men (non-union workers who were referred to jobs
from the union hall). Members of the plaintiff class, he
assumed, would have become union members if the discrimi-
nation had not occurred, and would have replaced non-union
members on jobs that were referred by the union. In some
years, however, there were limited referrals to non-union
members, which Dr. Bloch assumed was due to limited em-
ployment in the industry generally. In such years, since only
a limited number of hours were available to non-union work-
ers, class members could not possibly have replaced only non-
union workers, but would also have displaced other union
members. Reflecting this, the total hours available for such
years was placed in a "fixed-pie," and the hours were divided
by the total number of union workers plus the number of
proven members of the class. The assumption is that the
hours would have been divided equally between all members.
See Declaration of Farrell Bloch Ph.D., at 9-11, J.A. 1383-85.
The unions argue that the reason the Special Master gave
for rejecting Dr. Bloch's analysis--that the cohort group for
1973, consisting of 38 individuals, was a statistically insignifi-
cant sample--was wrong as a matter of fact and as a matter
of law. The unions point out that Dr. Bloch's proxy group
included the aggregate of all 135 journeymen admitted be-
tween 1971 and 1975, and that the size of the group used by
Dr. Bloch exceeds the sample size of union and non-union
workers used by the class to establish liability in the first
instance. See Berger, 843 F.2d at 1415. The unions also
argue that the Special Master misunderstood Segar v. Smith,
738 F.2d 1249 (D.C. Cir. 1984), which he cited for the proposi-
tion that the sample was too small. They distinguish Segar
by noting that it applied to a liability decision, not a damages
decision. Further, the Segar panel's analysis took issue with
breaking cohorts into smaller and smaller subgroups, until
they did become insignificant. The unions claim that Dr.
Bloch's much larger cohort does not resemble those found
objectionable in Segar.
The unions cite a line of cases beginning with Pettway v.
American Cast Iron Pipe Co., 494 F.2d 211, 262 (5th Cir.
1974), for the proposition that matching the plaintiff class
with a comparable group is a favored method of determining
what would have happened absent discrimination. See also
Green v. United States Steel Corp., 640 F. Supp. 1521, 1526-
29 (E.D.Pa.1986) (calculating damages based on comparable
class, and adjusting cohort class for attrition rate), modified
on other grounds, Green v. USX Corp., 843 F.3d 1511 (3d Cir.
1988), vacated USX Corp. v. Green, 490 U.S. 1103 (1989);
Stewart v. General Motors Corp., 542 F.2d 445, 453-54 (7th
Cir. 1976), cert. denied, 433 U.S. 919 (1977) (same). They
also cite a series of cases that have adopted the comparison
group methodology in determining Title VII remedies in the
construction industry. See Hameed v. International Ass'n of
Bridge, Structural and Ornamental Iron Workers, Local
Union No. 396, 637 F.2d 506, 520-21 (8th Cir. 1980); Rios v.
Enterprise Ass'n Steamfitters Local 638 of U.A., 651 F. Supp.
109, 111-12 (S.D.N.Y. 1986), modified and remanded, 860
F.2d 1168, 1177 (2d Cir. 1988).
The class counters that we should adopt the Special Mas-
ter's analysis, and argues that if he erred, he did so on the
low side, because the total he reached, 1,339 hours, was well
below the 1,400-hour estimate published by the Institute of
Ironworking Industry. The Special Master as trier of fact
was free to accept or reject expert testimony, and was free to
draw his own conclusion. See United States v. Jackson, 425
F.2d 574, 577 (D.C. Cir. 1970); Powers v. Bayliner Marine
Corp., 83 F.3d 789, 797-98 (6th Cir. 1996); Michel v. Total
Transp., Inc., 957 F.2d 186, 192 (5th Cir. 1992); United
States v. 0.161 Acres of Land, 837 F.2d 1036, 1040-41 (11th
Cir. 1988). The Special Master rejected Bloch's figures be-
cause his cohort group was too small, and because the Special
Master did not credit the fixed-pie theory. The Special
Master found that the union could have found sufficient work
for its members, so the pie was not fixed. The class suggests
that this court can recreate the Special Master's results from
the record, and should affirm because he cannot be found to
have committed clear error.
While we agree that the use of a cohort methodology
substantially similar to that used by Dr. Bloch has met with
approval in the cases cited by the unions, those cases do not
require us to hold that the methodology adopted by the
Special Master for defining the cohort to include all union
members was clear error. The cases relied upon by the
unions establish neither a specific minimum size of the cohort
nor a particular degree of similitude needed to meet the
mandates of Title VII. We therefore hold that rejecting the
specific cohort methodology urged by Dr. Bloch was not clear
error.
C.Zero-Hour Workers
Nonetheless, the Special Master is required to establish, as
nearly as possible, what would have occurred in the absence
of discrimination. International Bhd. of Teamsters, 431 U.S.
at 372. After reading the full report submitted by Dr. Bloch,
it becomes clear why he included the zero-hour rodmen in his
calculation. "The mean based on all journeymen including
those working zero hours in a given year is appropriate to use
in the back pay calculations because it incorporates individual
attrition from Local 201 resulting from such factors as tempo-
rary illness or injury, aversion to rodmen [sic] work, a
geographic move away from Local 201's jurisdiction, or the
decision to become a contractor." Report of Dr. Farrell
Bloch at 6-7. Dr. Bloch did not include zero-hour rodmen
who had died, retired, were incarcerated or permanently
disabled, all conditions which would have limited the unions'
liability. Id. at 7. The more cursory explanation by the
Special Master does not make it clear why he removed the
zero-hour workers from the calculation, other than his feeling
that they are not representative. See Report of Special
Master at 50. By removing them from the calculus, the
Special Master removes from the equation the risk of disabl-
ing injury, or of finding another more desirable job, or
whatever other reason a person might not work full time. It
is a false assumption that all of the members of the plaintiff
class would have remained full time in the industry, given the
dangers and disincentives inherent in the work. The very
real risk that they would have been unable or unwilling to
continue working has been improperly removed. The amount
an individual would work at full employment should be multi-
plied by the likelihood that they would remain fully employed.
By leaving the zero-hour workers in, Dr. Bloch removed the
need for coming up with a figure to approximate that risk.
The historic value of that risk is represented by the zero-hour
rodmen. Discounting of this type is a common practice when
attempting to fix speculative damages. The failure to account
for the risks inherent in the industry does amount to clear
error. The Special Master did limit awards where he found
that claimants had been disabled for lengthy periods. How-
ever, as we explain in Part IV, because there is no quantifica-
tion of the amount of lost time built into the hours calculation,
it is impossible to determine when a claimant is injured for a
period that exceeds the anticipated lost time, and the Special
Master's inconsistent treatment of claimants when determin-
ing individual back pay awards shows the need for further
analysis on this factual issue. A specific number can be
calculated that quantifies the risk of injury, and then individu-
als' actual experience should be compared against that figure.
We are not deciding today that each claimant's award must
be reduced for excessive injury-time. It is only because the
district court appeared to operate on that assumption, yet
applied that assumption without sufficient facts and in an
inconsistent manner, that we are compelled to remand these
questions. In this regard, we think it is necessary to note the
interrelationship between the inclusion or exclusion of the
"zero-hour" workers in the benchmark proxy and the injury-
time calculation for each claimant. Both of course are means
of discounting back pay awards to reflect unavailability for
work during the liability period. The district court might
conclude, if he includes the "zero-hour" workers in the bench-
mark proxy to reflect the overall risk of injury, that individual
re-adjustments for individual claimants with "excessive"
injury-time would not be necessary. In other words, treating
all claimants like hypothetically average claimants might obvi-
ate the need to analyze unavailability for work due to injury
for individual claimants. We do not in any way endorse that
outcome, and indeed think the analytical differences between
the overall discounting of the proxy caused by inclusion of the
"zero-hour" workers and the specific discounting of an indi-
vidual's award caused by excessive injury-time reductions
easily could support doing both. We wish only to emphasize
the interrelationship between these two inquiries, and to
direct the district court to consider that relationship when it
resolves these issues on remand.
D."Fixed-Pie" Analysis
We now turn to the Special Master's fixed-pie analysis, and
the flawed assumption that underlies it. The Special Master
assumed that the union could have found additional work for
its members if it wanted to, had the numbers been increased
by admitting the plaintiff class. See Report of the Special
Master at 47-48. There is no evidence in the record to
suggest that there was additional work in the D.C. area for
Local 201 rodmen. In fact, the evidence on the issue of
double-breasting suggests that the portion of rodwork avail-
able to unions generally was declining, as evidenced by the
limited work available for permit men. There is no evidentia-
ry basis for the assumption made by the Special Master.
Common sense and experience suggest that a union will
attempt to bring as many projects as possible under union
control, and that it will not slow its attempts when the
additional work will be allocated to non-members, i.e., permit
men, much less when the number of hours available to union
members is declining. Nonetheless, the Special Master cited
such a determination on the part of Dr. Bloch as speculative.
The Special Master impermissibly switched the burden of
proof on this issue. If the class wished the court to award
damages on the basis of hours not referred through the hall,
it follows that they would have the burden of at least making
a prima facie showing that additional hours were available to
Local 201. Local 201 cannot be faulted for not allocating
work that was never brought under its control. The Special
Master placed the burden on the unions to prove that those
hours were not available: "There was no evidence presented
that the union would not have solicited other employment
opportunities for its members had it been faced with an influx
of members, or taken other actions to expand its piece of the
rod work 'pie.' " Report of the Special Master at 47. The
unions made a prima facie showing that the hours were not
available based on the declining hours referred out of the hall
and the evidence they introduced of the declining market
share available to the union due to double-breasting. As the
unions noted in their brief, the record showed that "[t]he
percentage of union jobs in the metropolitan Washington D.C.
area was 77% in calendar years 1973 and 1974; peaked at
89% in 1975; and then dropped precipitously to 66% in 1976
and 47% in 1977, and then gradually declined to 22% in 1984
before rising to 33% in 1986." Def. Br. at 16. We remand to
the district court to consider the effect of the fixed-pie on the
number of hours available to be allocated to the plaintiff class,
and to apply the correct burden of proof. The district court
should bear in mind the goal of recreating as nearly as
possible the situation that would have occurred in the absence
of discrimination. International Bhd. of Teamsters, 431 U.S.
at 372. That means that it should make findings as to the
number of members of the original plaintiff class who actually
would have been awarded union membership, and for any
given year calculate how many had actually gained member-
ship, and how many remained to be added into the fixed-pie
calculation. It may well be that the difference by the end of
the period is insignificant. Nonetheless, the failure to consid-
er the issue, based as it was on the flawed and factually
unsupported assumption that additional work was necessarily
available to the union, leaves us with no option but to remand.
Judge Garland's dissent takes issue with our holding that
the Special Master's failure to consider the "fixed-pie" when
calculating damages, and the district court's subsequent adop-
tion of his report, amounts to clear error. First, he argues
that the unions did not argue that the district court erred in
failing to consider this issue. The unions argued that the
district court erred in failing to adopt Dr. Bloch's methodolo-
gy. Among the points they enumerate in favor of Dr. Bloch's
analysis is the following: "Once the actual number of claim-
ants in each year was known, Dr. Bloch would adjust each
annual average so that the recalculated claimant hours did
not produce a total hours figure for all workers that exceeded
the actual total hours worked through Local 201, as derived
from the Local 201 pension records." Def. Br at 28. While it
does not use the specific term "fixed pie," as Judge Garland
notes, the argument raised by the unions' brief is the argu-
ment described by that term. The fact that the brief argued
that all of the methodology used by their expert be adopted
does not mean that we may examine either all or none of the
points raised. As we note in our opinion, it is the Special
Master's outright rejection of the issue, based on the unsup-
ported assumption that the union could have found more jobs
if it had so chosen, that we find to be clearly erroneous.
Judge Garland also misconstrues our reasoning with regard
to the assumption that the union could bring more rod work
under its control if it so chose. The fact that some 1,649 job
requests went unfilled over a 10-year period does not mean
that the union had enough work for the 173 putative class
members to be fully employed over that same 10-year period.
Fluctuations on a given day that would result in a specific job
referral being listed as unfilled are not the same as a finding
that hundreds of thousands of hours were available. As we
note, the evidence on double-breasting and the steadily de-
clining share of work available to permit men, annual drop-
offs of tens of thousands of hours, shows just the opposite.
Moreover, the work available, according even to the Special
Master's calculations, showed significant disparities over the
period. For instance, in 1972, the average rodman would
have worked 1,711 hours, in 1973, 1557 hours, and in 1974,
1627 hours. By 1977, that number had dropped to 1,253
hours, and stayed below that level until 1985, bottoming out
at 953 hours in 1984. It makes no sense to conclude a
fortiori that a union could readily have found full-time work
for 173 additional union members when its existing members
were working some 400 fewer hours per year than during the
full employment period. We agree with Judge Garland that
it is the gross hours available for referral, not trends, that are
relevant to the validity of the fixed-pie theory. While a more
detailed examination of the record, considering such factors
as an increasing percentage of class members gaining union
membership in the years in question, may once again yield
the same conclusion reached below, we cannot affirm, on the
record before us, on the basis of the court's stated reasoning,
which we find to be clearly erroneous.
III. Class Membership
A.Burden of Proof
We now turn to the issue of the burden of proof at the
remedial phase of a Title VII class action suit. Class action
lawsuits brought under Title VII are typically bifurcated into
two phases, a liability phase and a damages phase, as was
done in this case. The first phase establishes whether the
employer is liable to the class because of a pattern or practice
of discrimination. See International Bhd. of Teamsters, 431
U.S. at 359. The second phase addresses questions of class
membership and the degree of damage suffered by individual
class members. The district court, in its February 1989
Order of Reference, required each claimant to make a prima
facie showing of class membership, which could in turn be
rebutted by the defendants by "clear and convincing evi-
dence." This instruction was in keeping with D.C. Circuit
precedent, requiring the defendant to disprove class member-
ship by clear and convincing evidence at the second phase of a
Title VII class-action suit. See Trout v. Lehman, 702 F.2d
1094, 1107 (D.C. Cir. 1983), rev'd on other grounds, Lehman
v. Trout, 465 U.S. 1056 (1984); McKenzie v. Sawyer, 684 F.2d
62, 75-78 (D.C. Cir. 1982). The unions argue that a super-
vening Supreme Court case, Price Waterhouse v. Hopkins,
490 U.S. 228 (1989), decided weeks after the Order of Refer-
ence, established that the proper standard of proof in Title
VII cases is a preponderance, for both plaintiffs and defen-
dants. After careful consideration, we agree. We review this
question of law de novo. See United States of America v.
Perkins, 161 F.3d 66, 69 (D.C. Cir. 1998).4
The unions acknowledge that Hopkins involved a mixed-
motives case finding discrimination against an individual, not
a disparate-impact class action. However, they note that "in
both situations it remains for a particular individual to prove
the defendant's liability to him.... Each claimant is re-
lieved of the burden of proving that defendants discriminated
against the class, not that he is part of the class." Def. Br. at
33. This is because in the remedial stage of a class action,
"as to the individual members of the class, the liability phase
__________
4 Because this portion of the panel's decision resolves an appar-
ent conflict between two of our prior decisions and Price Water-
house v. Hopkins, it has been separately considered and approved
by the full court and thus constitutes the law of the circuit. See
Irons v. Diamond, 670 F.2d 265, 268 n. 11 (D.C. Cir. 1981).
of the litigation is not complete." Hopkins, 490 U.S. at 266
(O'Connor, J., concurring).
The class counters that the district court applied the cor-
rect burden of proof for three reasons. First, in the damages
phase of a class action suit, the defendant is already a proven
discriminator, therefore, they argue, increasing the defen-
dant's burden of proof as to class membership is appropriate.
Second, the class argues that the Hopkins case is distinguish-
able because it was the liability phase of a mixed-motives
case, not the damages phase of a class action suit. Finally,
they argue that the unions made no attempt to show a
business justification for their testing requirement, and the
court is not weighing liability. Therefore they contend, the
court should retain the clear and convincing standard estab-
lished in McKenzie.
In McKenzie, we read the Supreme Court's precedent as
requiring that once the employer was a proven discriminator,
" 'all doubts are to be resolved against the proven discrimina-
tor rather than the innocent employee.' " McKenzie, 684
F.2d at 77 (quoting International Bhd. of Teamsters, 431 U.S.
at 372). We went on to hold that the finding of liability in the
first phase of the trial established the prima facie case
against the employer, and that the employer "should be
required to rebut the plaintiffs' individual showings by clear
and convincing evidence." Id. at 77-78.
Since our holding, the Supreme Court has revisited the
issue of the burden of proof in Title VII lawsuits. In
Hopkins, the Court overturned this circuit's holding that an
employer in a Title VII sex discrimination case who had
allowed a discriminatory motive to play a motivating part in
an employment decision was required to show by clear and
convincing evidence that it would have reached the same
decision in the absence of the discriminatory motivation.
Hopkins, 490 U.S. at 238 n.2, reversing Hopkins v. Price
Waterhouse, 825 F.2d 458, 470-71 (D.C. Cir 1987). The
proposition specifically applicable to this case states that no
heightened burden is required in Title VII cases, even where
a burden shift has occurred.
Conventional rules of civil litigation generally apply in
Title VII cases, and one of these rules is that parties to
civil litigation need only prove their case by a preponder-
ance of the evidence. Exceptions to this standard are
uncommon, and in fact are ordinarily recognized only
when the government seeks to take an unusual coercive
action--action more dramatic than entering an award of
money damages or other conventional relief--against an
individual. Only rarely have we required clear and
convincing proof where the action defended against seeks
only conventional relief, and we find it significant that in
such cases it was the defendant rather than the plaintiff
who sought the elevated standard of proof--suggesting
that this standard ordinarily serves as a shield rather
than, as Hopkins seeks to use it, as a sword.
Hopkins, 490 U.S. at 253 (plurality opinion) (internal citations
omitted). While Justice Brennan was writing for himself and
Justices Marshall, Blackmun, and Stevens, Justice White
concurred in the judgment "[b]ecause the Court of Appeals
required Price Waterhouse to prove by clear and convincing
evidence that it would have reached the same employment
decision in the absence of improper motive, rather than
merely requiring proof by a preponderance of the evidence."
Id. at 260.
We think Hopkins mandates that in this case the clear and
convincing standard is inappropriate, and the ordinary pre-
ponderance of the evidence standard must apply. Hopkins
makes it clear that the heightened burden should not apply in
Title VII cases where the heightened burden would be used
as a sword not a shield. While this case may not be on all
fours with Hopkins, as the distinctions noted by the class
demonstrate, the basic principle stated by the Court applies.
Raising the burden of proof to clear and convincing evidence
is not justified in Title VII cases; instead a preponderance
applies as to all factual issues, regardless of which party
bears the burden, as in other civil actions. The Court relied
on the basic principle it articulated--in Title VII cases, the
standard burden of proof in civil cases will apply--to decide
Hopkins. The distinctions to which the class points therefore
make no difference to our determination that the preponder-
ance of the evidence standard, and not a clear and convincing
standard, should apply in this case. The burden shift itself is
sufficient to meet the Court's admonition that doubts be
resolved in favor of the employee, because the party that
bears the burden also bears the risk that he will be unable to
carry that burden due to doubts on the part of the factfinder.
With these principles firmly in mind, we now go on to
consider how that decision affects the facts in this case.
B.Disputed Findings
The district court's adoption of an incorrect standard for
the unions' rebuttal burden requires remand of the Special
Master's findings of class membership with respect to two
claimants, because we are unable to determine whether the
Master would have made the same findings if he had applied
the correct burden of proof. In the remaining disputed cases,
the validity of the Master's findings turns not on the quantum
of the parties' evidence, but on issues that can be resolved
without reference to the burden of proof. Our disposition of
the findings disputed by the parties is as follows:
1. O.C. Brown. The plaintiff class includes those experi-
enced rodmen who attempted to become, or were deterred or
discouraged from becoming, members of Local 201 during the
liability period-i.e., between June 1971 and October 21, 1975.
See Order of Reference, J.A. 216; see also Berger I, 843 F.2d
at 1411. Although there was uncontested evidence to support
the Special Master's finding that O.C. Brown was "discour-
aged and deterred from admission" to Local 201, J.A. 86, the
conclusion that this occurred during the liability period
depends upon disputed inferences from circumstantial evi-
dence. Because we are unable to determine whether the
Master would have reached the same conclusion had he
applied the correct burden of proof, we remand Brown's case
for redetermination.
2. Silburn Francis. There was conflicting testimony and
other evidence as to whether Silburn Francis sought union
membership during, rather than after, the liability period.
See J.A. 400-04. Because the Special Master weighed this
evidence according to an incorrect standard, we remand for
redetermination under the correct burden of proof.5
3. John Offer. The unions do not dispute that John Offer
sought union membership in June 1972. They contend, how-
ever, that this "predat[es] the critical period," which they
define as October 21, 1972 to October 21, 1975. The unions
are mistaken as to the start of the liability period. October
21, 1972 starts the period for which the remedy of back pay is
available under 42 U.S.C. s 1981. See Order of Reference,
J.A. 216. However, as Berger I held, membership in the class
is established by having sought (or having been deterred from
seeking) entry into the union "from the end of the Open
Period [June, 1971] until the filing of suit on October 21,
1975"--notwithstanding that back pay may not be awarded
for the early part of that period. See 843 F.2d at 1422. See
generally Thomas v. Denny's, Inc., 111 F.3d 1506, 1513-14
(10th Cir. 1997) (discussing distinction between a liability
limitation period, which may effectively be extended by a
continuing violation, and "the period within which damages
can be recovered," which is fixed by statute).
The unions also contend that Offer was ineligible for the
Apprenticeship Program for the "lawful reasons" that he
could not meet that Program's educational (high school diplo-
ma) and age requirements. However, because Berger I es-
tablished that the Apprenticeship Program itself was an
unlawful prerequisite to union membership for experienced
rodmen, see 843 F.2d at 1414, 1421, that Program's own
prerequisites are irrelevant. Offer's membership in the class
is affirmed.
__________
5 In making his determination of the appropriate back pay
period for Francis, the Special Master noted that Francis was told
he could not apply for membership until he was a U.S. citizen. J.A.
404. Since discrimination on the basis of citizenship was neither
alleged in the lawsuit nor made a part of the liability finding in
Berger I, on remand it should play no part in determining Francis'
class membership or eligibility for back pay.
4. Wordia Parks. Wordia Parks appeals from the Spe-
cial Master's finding that he abandoned efforts to join Local
201 prior to the eligibility period, and that he therefore
neither sought nor was discouraged from seeking member-
ship during that period. See J.A. 461. The Special Master
also found that Parks' evidence was "inconsistent and contra-
dictory," and that he had "repeatedly impeached his own
responses to interrogatory questions." J.A. 462. The Mas-
ter's findings regarding Parks are not clearly erroneous and
therefore are affirmed.
5. Charles Dean and Eldridge Harmon. To be a mem-
ber of the class, a claimant must have been an "experienced"
rodman. The unions challenge the Special Master's finding
that Charles Dean and Eldridge Harmon were sufficiently
experienced, on the ground that the Master counted non-
union rodwork toward the number of hours required to be
regarded as "experienced." This, the unions contend, is
contrary to the "law of the case," because Berger I assertedly
established that only union-referred rodwork could be count-
ed as experience. We reject this contention because nothing
in Berger I limited the definition of experience to union-
referred rodwork. See 843 F.2d at 1414-15, 1421-22.
Counting non-union-referred experience, the Special Mas-
ter accepted the deposition testimony that Charles Dean had
the 2,150 hours of experience that all agree is sufficient to
establish the necessary experience. See J.A. 990. The Mas-
ter further noted in his report that "by 1974, Dean had
performed rodwork for seven years," J.A. 391, which is far in
excess of the two-year figure from which the 2,150-hours
number was extrapolated. See Berger I, 843 F.2d at 1414.
Because the unions offer no evidence to rebut this prima
facie case--no evidence at all that Dean's total hours were
less than 2,150--Dean's membership in the class is affirmed.
With regard to Eldridge Harmon, the Special Master ex-
pressly credited Harmon's testimony that he had worked over
2,150 hours by December 1972. J.A. 407. Although the
unions complain that the Master should have required Har-
mon to provide documentation to substantiate his testimony,
they offer no evidence to rebut Harmon's prima facie case.
Accordingly, Harmon's membership is affirmed as well.
6. Alfonzia Berger. Claimant Alfonzia Berger appeals
the Special Master's decision to deny him class membership
on the ground that he had no rodwork experience prior to
1974. Although Berger now argues that he was discouraged
from seeking the very experience that would have made him a
class member, the holding in Berger I was limited to discrimi-
nation against experienced rodmen. 843 F.3d at 1419. Al-
fonzia Berger is not a member of the class of experienced
rodmen, and the Special Master's determination is therefore
affirmed.
7. Paul Brown, James Hicks, and James Brown. The
unions contend that the Special Master should have excluded
from the class two claimants who failed the Open Period
exam (Paul Brown and James Hicks), and one claimant who
assertedly failed to take that exam despite being given an
opportunity to do so (James Brown), because those failures
allegedly demonstrate that these claimants were not qualified
to be union journeymen. Berger I, however, made clear that
the relevant question is not whether a claimant was qualified
during the Open Period, but whether he was qualified during
the liability period--which did not begin until the Open
Period ended. The union is liable, we said, "to those class
members who were experienced workers, but were delayed
entry to union ranks by the particular educational prerequi-
sites affecting them from the end of the Open Period until the
filing of suit on October 21, 1975." 843 F.2d at 1422. That is
the issue upon which the Special Master properly focused.
See, e.g., J.A. 383, 412.
Although a failure on the Open Period exam may have
rendered a claimant unqualified to enter the union during
that period, contrary to Judge Sentelle's dissent it did not by
itself render him unqualified to do so during the liability
period. The Local did not have a rule that an applicant who
failed the Open Period exam (or any other pre-liability period
exam) was ineligible to gain entry by subsequently taking and
passing the exam during the liability period. Indeed, claim-
ant Hicks was permitted to do just that, and passed the exam
in 1974. J.A. 412. Failing to pass the exam during the Open
Period is no different than having had less than 2,150 hours of
rodwork experience during that period. It may mean a
claimant was unqualified to be a journeyman at that time; it
does not mean he could not become qualified by the time of
the liability period.
Nor was a failure on the Open Period exam conclusive
evidence that a claimant would have failed had he been
permitted to take the exam during the liability period. As we
noted in Berger I, the Open Period exam was different from
and notably more difficult than the exam offered during the
liability period. During the Open Period, only 70.6% of white
examinees and 35.3% of black examinees passed the exam.
By contrast, 100% of white rodmen and 97.6% of black
rodmen who took the exam given during the liability period
passed. 843 F.2d at 1405-06 n.2.
The Special Master's determination of class membership
for these claimants is affirmed.
8. Albert Berger. Finally, claimant Albert Berger ap-
peals the Special Master's decision to deny him class mem-
bership on the ground that he failed the exam and then failed
to avail himself of an opportunity to retake the exam during
the Open Period. This denial is inconsistent with the Mas-
ter's correct decision not to exclude the preceding claimants
for the same reason. Berger's failure prior to the liability
period neither rendered him unqualified to retake the exam
during the liability period, nor indicated he would fail again if
permitted to do so. Indeed, like Hicks, Berger ultimately did
retake and pass the exam in 1974. J.A. 361. He was not
permitted to do so, however, until he completed the Training
Program--a requirement we held unlawfully discriminatory
in Berger I. 843 F.2d at 1414, 1421. Accordingly, Albert
Berger's exclusion from the class is reversed.
IV. Back Pay
The unions challenge as clearly erroneous the back pay
awards to several class members, contending that the district
court failed to deduct from these claimants' awards for cer-
tain periods of time during which, for one reason or another,
they were not entitled to recover back pay. The class
disagrees, but also challenges as clearly erroneous the district
court's decision to reduce several other awards for a period of
time during which, the class argues, the claimant was entitled
to recover.6 We consider each contested claim below.
1. James Brown. As we noted above, the district court's
Order of Reference entitles a claimant to back pay "for the
period commencing on the date when [the claimant] first
attempted to become, or was deterred or discouraged from
becoming, a member of Local 201 and/or the International,"
such period not to begin prior to October 21, 1972. The
unions contest the $242 back pay award to James Brown in
1973 because, according to Brown's own testimony, J.A. 797,
Brown first attempted to join the union in 1974. The class
counters that, although Brown's attempt to join the union in
1971 predates the applicable liability period, the 1971 attempt
gave the unions knowledge, or should have given them knowl-
edge, that Brown wanted to join the union. According to the
unions, Brown presented no evidence below that he was
discouraged from joining the union in 1972 or 1973, and the
class does not point to any such evidence in their brief. The
Special Master awarded Brown 1973 back pay without ad-
dressing this question. J.A. 375. In its discussion of class-
wide issues, the district court approved of the class' knowl-
edge theory, J.A. 528 n.10, and appeared to agree that it was
unnecessary for the Special Master specifically to identify the
__________
6 The class asserts that the unions' challenges to the back pay
awards are numerically incorrect because the challenges rely on the
Special Master's benchmark proxy, which erroneously excluded
overtime earnings. But as the unions concede, the parties stipu-
lated in 1990 that overtime should be included, and the district
court in its March 16, 1995 order concluded that the Special Master
erred and ordered the parties to recalculate the back pay figures.
J.A. 572. This presents some confusion since the specific dollar
amounts discussed in the briefs are not technically accurate. We
leave it to the district court to calculate the actual amount owed to
any claimant consistent with the correct back pay figures, including
overtime.
date on which a claimant first attempted to become a union
member, or was discouraged from doing so, since the Special
Master implicitly did so when he determined the years of
applicable back pay for each claimant. In its discussion of
Brown's award, the district court adopted the Special Mas-
ter's findings without further comment. J.A. 547.
We think the 1973 back pay award to James Brown is
clearly erroneous. Despite the district court's apparent ac-
ceptance of the class' "knowledge" theory, the district court's
Order of Reference authorizes back pay only for those claim-
ants who attempted to join the union, or were discouraged
from doing so, within the relevant period--not, as the class
would have it, those who did nothing during that period, but
whom the union knew or should have known wanted to join
because of prior attempts. Although evidence of discourage-
ment in joining would be sufficient, the class points to no such
evidence as to Brown. And we think the district court's
suggestion that the Special Master implicitly found discour-
agement from whatever date that he began the back pay
award is too much of a stretch, even for deferential review.
We note that the district court's resolution of this award is
not affected by our instruction to the court on remand to
apply the correct burden of proof as to class membership,
since the complete absence of evidence supporting Brown's
position entitled the unions to prevail even under the more
stringent standard.
2. Sherman Johnson. The unions challenge the 1972
award to Sherman Johnson for substantially the same reason
that they challenge James Brown's award. In Johnson's
case, however, we affirm the back pay award because the
Special Master specifically found that Johnson sought to join
the union in 1972. J.A. 434. It is true that Johnson testified
that he only sought entrance to the union in 1970, 1971, and
1973, but the Special Master acknowledged that testimonial
omission and pointed instead to Johnson's certification form,
which stated that Johnson sought to join in 1972. J.A. 431
n.100. The unions do not challenge the Special Master's
findings on the certification form and thus have waived any
objection to it. We therefore affirm the 1972 award to
Johnson, subject of course to any necessary re-calculation if
the district court alters the benchmark figures on remand.
3. Robert Posley. The unions challenge the back pay
award to Robert Posley for the portion of 1974 (29%) in which
he did not have 2,150 hours of Local 201 union experience.
The class' only response is that the Special Master did not err
by measuring experience in union and non-union hours. As
we held above, although we agree with the class that experi-
ence can be measured in union and non-union hours, a
showing of 2,150 hours of experience is a prerequisite to class
membership. Because of the Special Master's contrary posi-
tion on this latter point, we cannot be confident at this
juncture that his conclusion that by October 1972 Posley "had
been doing iron work for both union and non-union contrac-
tors for over four years" is consistent with the 2,150 hour
prerequisite. Indeed, the Master said nothing about the
number of hours Posley worked at all. This uncertainty is
complicated by the stringent burden of proof that the Special
Master erroneously imposed upon the unions to rebut Pos-
ley's testimony. We leave it to the district court on remand
to decide whether Posley's award for 1974 is consistent with
the principles we have outlined in this opinion.
4. Randolph Jackson and Ernest Bellamy. The district
court's Order of Reference directed that a class member's
entitlement to back pay ends on "the date when he first was
allowed to take the journeyman examination ... or was given
a bona fide opportunity to take the examination." J.A. 216-
17. The unions challenge the 1975 back pay award to Ran-
dolph Jackson to the extent the award postdates Jackson's
failure of the exam in March 1975. The class challenges the
back pay award to Ernest Bellamy for the opposite reason;
they claim that the Special Master erroneously denied Bella-
my back pay for the period after September 30, 1974, the
date on which Bellamy failed the journeyman's examination.
We think it obvious that the Special Master's findings,
which the district court adopted without comment, are incon-
sistent. In discussing Jackson's award, the Special Master
awarded Jackson back pay for all of 1975, even though
Jackson failed the exam in March of that year. But in
discussing Ernest Bellamy's award, the Special Master cut off
back pay after the date on which Bellamy failed the exam,
noting the Order of Reference and the fact that there were no
challenges to the validity of the examination itself at the
merits stage. J.A. 365 & n.61. We reconcile the inconsisten-
cy by reversing the 1975 award to Jackson and affirming the
truncated award to Bellamy.
The class' sole argument in support of the contrary result
is that the Order of Reference should be read to cut off back
pay when a claimant is given a bona fide opportunity to take
the exam. The class reads "bona fide opportunity" to mean
"bona fide exam," and argues that neither Jackson's nor
Bellamy's exam was a bona fide one. The class further
argues that the Special Master implicitly credited Jackson's
contention that Ronnie Vermillion, the union business manag-
er, was lying when he claimed that Jackson failed the exam in
March 1975 because Jackson, an experienced rodmen, did not
know the steel tubing sizes. J.A. 424-25. In addition, the
class contends that the Special Master erroneously excluded
evidence that Bellamy intended to use to demonstrate that his
exam too was not a bona fide one.
We think the unions are quite correct in contending that
these arguments are really challenges to the administration of
the journeyman's exam--challenges which were not made at
the merits stage and which we cannot, and will not, entertain
at this late stage. The Special Master recognized this point
in his discussion of Bellamy's award, and in his discussion of
another claimant not part of this appeal, J.A. 398-99, but
awarded Jackson a full award because he did not believe that
Jackson's exam was bona fide. Moreover, as the unions point
out, this court has repeatedly noted that the Title VII liability
of the unions in this case is not related to the journeyman's
exam itself or to its administration, but solely to the edu-
cational prerequisites to taking the examination. Berger I,
843 F.2d at 1440; Berger II, 852 F.2d at 621. And although
we do not cast doubt on the Special Master's factual finding
that Vermillion lied to Jackson about his failure of the exam,
the Order of Reference speaks only to the fact of taking the
exam, not to the validity of the union's determination that a
claimant passed or failed the exam. And no one contests that
Jackson or Bellamy actually took the exam. Finally, the
term "bona fide" in the order of reference clearly modifies the
term "opportunity," both of which are set off by a disjunctive
from the phrase "allowed to take the ... exam." The class is
thus wrong when it argues that the unions' interpretation
would render the term "bona fide opportunity" meaningless.
Rather, to accept the class' reading would be to excise
"allowed to take the ... exam" from the Order of Reference,
converting the remedial inquiry into the altogether distinct
liability question of the bona fides of the exam. For back pay
purposes, the inquiry into bona fides in this case is limited to
examining, where appropriate, whether a claimant passed up
a legitimate opportunity to take the exam.
We therefore affirm this aspect of Bellamy's award7 and
reverse the district court's decision to grant Jackson an
award for the period following his 1975 failure. We instruct
the district court to reduce Jackson's 1975 award by the
appropriate amount, considering of course any alterations to
the benchmarks that the court might make on remand. We
note finally that although the district court's error was harm-
less for 1976, since Jackson was not entitled to any recovery
for 1976 under the current benchmark proxy, any alteration
of the benchmarks must not result in a 1976 award to Jackson
__________
7 The unions also contend that Ernest Bellamy's back pay
award for 1972 was erroneously calculated, given that his 1972 tax
return listed his earnings at $13,217, whereas the Special Master
used Bellamy's social security earning record which listed his 1972
earnings as $9,178.75. The class agrees that the district court
clearly erred in the 1972 award. On remand, Bellamy's 1972 award
should be recalculated using the correct 1972 earnings amount.
given our holding that his entitlement to back pay ended
when he took the exam.
5. Eldridge Harmon. The unions challenge the back pay
award to Eldridge Harmon for the years 1985 and 1986
because Harmon forewent the opportunity to join Iron Work-
ers Local 84 in Houston, where Harmon resided from 1976 to
1985. Local 84 is, like Local 201, an affiliate of the Interna-
tional, and the International's governing constitution provides
that a two-year member of any Iron Workers local may
obtain a "clearance card" from his local union to apply for a
transfer of membership to any other local. Harmon complet-
ed Local 84's two-year training program, but did not obtain
membership in that union because he failed to pay the
initiation fee. The unions assert that Harmon's back pay
awards for 1985 and 1986 are clearly erroneous because
Harmon failed to avail himself of the opportunity to become a
member of Local 84, which would have enabled him to join
Local 201 without having to complete Local 201's discrimina-
tory prerequisites. The unions further argue that the Special
Master's refusal to accept this argument is inconsistent with
his treatment of Edgar James, another claimant who was
denied class membership in part because of his failure to avail
himself of membership in Local 201 through a "clearance
card" procedure. J.A. 427-30. The class counters that the
unions' argument is highly speculative since the Internation-
al's governing constitution gives Local 201 the discretion to
reject a clearance card from another local union.
We affirm this aspect of Harmon's award. The Order of
Reference only requires back pay termination when a claim-
ant takes the journeyman's exam, or has a bona fide opportu-
nity to do so; it has no provision for terminating back pay in
light of a failure to avail oneself of an alternative mechanism
for becoming a Local 201 member. And although it is true
that the Special Master discussed Edgar James' failure to
take advantage of a "clearance card" procedure to gain
entrance to Local 201, that discussion focused on James'
inability to prove membership in the class. James had never
attempted to join Local 201, and the Special Master found
that James could not have been discouraged from doing so
(the alternative means of proving class membership) since
James could have joined Local 201 through the "clearance
card" procedure. J.A. 430. Harmon, on the other hand, is
clearly a member of the class because he actually applied for
membership in Local 201 and was denied (rendering the
discouragement issue irrelevant). There is thus no inconsis-
tency between the Special Master's treatment of Harmon and
James, and no basis under the Order of Reference to reverse
the award to Harmon as clearly erroneous. This is so even
though the unions were subjected to the incorrect clear and
convincing evidence standard since, under the more lenient
preponderance of the evidence standard, Harmon still would
be entitled to his award.
6. Jessie Berger, Silburn Francis, Eldridge Harmon,
Thomas Kirkland, and Sherman Johnson. The unions
assert that these five claimants were erroneously given back
pay awards for periods during which they had injuries and
were unavailable to work.8 The class counters that the
benchmark proxy figure already takes into account time off
due to minor injuries and bad weather, making it unnecessary
to reduce an individual claimant's award for those reasons.
For the same reason, the class challenges the Special Mas-
ter's reduction of Sherman Johnson's award for the one
month in 1975 during which Johnson had asthma and could
not work. The district court upheld all of these awards
without comment.
The Special Master recognized its obligation in adopting a
back pay formula to "as nearly as possible, recreate the
__________
8 The unions also claim that, because O.C. Brown testified to
his special difficulty in working in cold weather, his back pay award
also should be reduced to account for the three-month period in
which he was unavailable for work each year. Unlike the unions'
challenges to claimants who had unusually excessive injury-time, we
think this challenge to O.C. Brown's award is more appropriately
resolved under the duty to mitigate doctrine, which we discuss
below.
conditions and relationships that would have been had there
been no unlawful discrimination." International Bhd. of
Teamsters, 431 U.S. at 372. The Special Master's proxy does,
as the class contends, factor in the "average number of days
lost due to injury, sickness, and attrition." J.A. 341. But the
Teamsters obligation arguably requires the district court to
modify the benchmark proxy for any claimant whose absen-
teeism is so extreme as to be beyond the proxy's statistical
average. The Special Master recognized as much in the case
of Van Edward Lewis, whose three-year shoulder injury
represented an "extensive period of unemployment due to
injury [that] falls outside our statistical model of reasonable
hours" developed in the benchmark proxy. J.A. 445. The
problem, however, is that neither the Special Master nor the
district court explained the extent to which the "statistical
model of reasonable hours" factors in absenteeism due to
injuries. Consequently, the district court had no objective
basis on which to determine when a claimant's injury-time
was sufficiently excessive to render it beyond the statistical
average.
It is not surprising, then, that the analysis below is an ad
hoc, internally inconsistent evaluation of the back pay calcula-
tion for claimants who suffered injuries during the back pay
period. For example, the Special Master reduced Eldridge
Harmon's back pay for the one month that he could not work
due to a back injury, J.A. 409,9 and reduced Sherman John-
son's back pay for the one month that he could not work due
to an asthma condition. J.A. 144. At the same time, the
Special Master ignored the evidence relating to Jessie Ber-
ger's 12-week prostate surgery recovery in 1974, J.A. 367,
__________
9 The unions contend, and the class concedes, that the Special
Master erroneously stated that Harmon's injury began in Novem-
ber 1974, when it in fact began on September 28, 1974. Since the
difference between a one-month and a three-month injury might be
significant in determining the amount of back pay reduction, if any,
we reverse for clear error the district court's finding that Harmon
was injured in November of 1974. Also, the unions are correct that
Harmon's interim earnings for 1974 were $10,299, and not $8,316, as
the Special Master clearly erroneously found. J.A. 1501-03; 409.
ignored evidence relating to Silburn Francis' six-week injury
in 1980 after a rod struck him in the stomach, J.A. 405, and
ignored evidence of Thomas Kirkland's six-week back injury
in 1976, awarding full back pay for the relevant period to each
claimant. Clearly, if a one-month injury warrants a reduc-
tion, so too must injuries lasting six and twelve weeks. But
we, like the district court, have no objective basis on which to
resolve the inconsistency because there has been no finding
as to the statistical injury average or how long an injury must
last to go beyond that average.10 We therefore remand to the
district court for a determination of the average injury-time
built into the benchmark figures, and a thorough inquiry into
whether each challenged award involves a claimant whose
injury-time exceeds that average.
There is one back pay challenge, however, that we can
partially resolve now. The district court awarded Thomas
Kirkland a full back pay award for 1976, even though Kirk-
land stipulated that he was unable to work for the six weeks
when he had a back injury and was therefore not asking for
back pay for that period. J.A. 660. The award is therefore
clear error; we remand for the district court to reduce
Kirkland's award to reflect the six-week injury.
7. John Thomas. The class challenges the district court's
denial of back pay to John Thomas for the years 1973 to 1975.
The sole basis on which the Special Master and the district
court denied back pay for this period was that Thomas'
pension records show steady and full-time employment during
__________
10 The Special Master also appears to have adopted conflicting
methods for reducing back pay because of excessive injury-time.
In some instances, he reduced the benchmark proxy for the rele-
vant period by the percentage of time during which the claimant
was unavailable for work, and subtracted the claimant's actual
work-time from the reduced benchmark. See, e.g., J.A. 436 (Sher-
man Johnson). However, on other occasions he simply reduced the
earnings shortfall (the final back pay award) by the percentage of
time during which the claimant was unable to work. See, e.g., J.A.
409-10 (Eldridge Harmon). On remand, we instruct the district
court to apply one method of injury-time reduction consistently, and
to explain the basis for picking that method.
that period. But the class is correct that steady employment
only deprives a claimant of back pay if the earnings from that
employment exceed the benchmark earnings for that year.
The Special Master did not conduct the necessary analysis,
and as the class demonstrates, it appears that Thomas' earn-
ings for each year between 1972 and 1975 fell short of the
benchmark amount. The unions concede the class' general
argument, but argue that the district court did not err by
denying Thomas an award for 1973 because Thomas' employ-
er for that year reported the maximum amount ($10,800) that
any single employer was required to report for FICA taxes.
The class counters that the question is whether Thomas
earned less than the $13,917 benchmark in 1973, which ac-
cording to their calculations, he did.
The denial of all back pay for 1972-75 years is clear error.
We remand Thomas' award for the district court to carry out
the analysis and award the appropriate back pay pursuant to
the method used to resolve the other claimants' awards. In
this regard, the 1973 award is no different from the 1972,
1974, and 1975 awards that the unions concede were errone-
ously denied to Thomas. We leave it to the district court to
determine whether, as the class contends, Thomas' 1973
earnings result in a short-fall entitling him to an award for
that year. This calculation may obviously be affected by any
alteration to the benchmark proxy figures on remand.
8. Charles Dean. The class also argues that the district
court's determination that Charles Dean was admitted to
Local 201 in January 1981 is clear error; the record clearly
shows he was admitted in January 1982, and the unions
concede the class' argument. If the district court does not
alter the benchmarks on remand, or lowers them, this error is
of no consequence because Dean's 1981 earnings exceed the
current benchmark. However, if the benchmarks are raised
on remand such that Dean would otherwise be entitled to an
award for 1981, we instruct the district court not to apply its
clearly erroneous finding to deprive Dean of an award.
V. Mitigation
The unions challenge many of the Special Master's back
pay awards on the ground that the claimants failed to miti-
gate their damages adequately. Under Title VII, "[i]nterim
earnings or amounts earnable with reasonable diligence by
the person or persons discriminated against shall operate to
reduce the back pay otherwise allowable." 42 U.S.C.
s 2000e-5(g). This creates a statutory duty to minimize
damages on the part of Title VII claimants, which requires
them "to use reasonable diligence in finding other suitable
employment." Ford Motor Co. v. EEOC, 458 U.S. 219, 231
(1982).11 The victim of discrimination, however, is "merely
required to make 'reasonable efforts' to mitigate his loss of
income, and only unjustified refusals to find or accept other
employment are penalized under this rule." Oil, Chem. &
Atomic Workers Int'l Union v. NLRB, 547 F.2d 575, 602
(D.C. Cir. 1976). "[T]he employee is held ... only to reason-
able exertions in this regard, not the highest standard of
diligence." NLRB v. Madison Courier, Inc., 472 F.2d 1307,
1318 (D.C. Cir. 1972) (Madison Courier I) (internal quota-
tions and citations omitted).
A claimant "forfeits his right to back pay if he refuses a job
substantially equivalent to the one he was denied." Ford
Motor, 458 U.S. at 232. But "the unemployed or underem-
ployed claimant need not go into another line of work, accept
a demotion or take a demeaning position." Id. at 231. Nor is
he "required to accept employment at a great distance from
his home." Oil, Chem. & Atomic Workers, 547 F.2d at 604.
On the other hand, a claimant may reasonably conclude that
he should lower his sights and seek other work, including
work outside the industry. NLRB v. Madison Courier, Inc.,
505 F.2d 391, 396 (D.C. Cir. 1974) (Madison Courier II).
"The claimant," after all, "cannot afford to stand aside while
the wheels of justice grind slowly toward the ultimate resolu-
__________
11 The back pay provisions of Title VII were modeled on those
of the National Labor Relations Act (NLRA), and the Supreme
Court has therefore applied principles developed in the NLRA
context to Title VII remedies. See Ford Motor, 458 U.S. at 226 n.8.
tion of the lawsuit. The claimant needs work that will feed a
family and restore self-respect." Ford Motor, 458 U.S. at
221. Indeed, a claimant "may be required ... to 'lower his
sights' by seeking less remunerative work after he has unsuc-
cessfully attempted for a reasonable period of time to locate
interim employment comparable with his improperly denied
position." Madison Courier I, 472 F.2d at 1321.
As the above discussion suggests, the elements of the
mitigation doctrine can create a dilemma for a claimant. As
we said in Madison Courier I,
If the discriminatee accepts significantly lower paying
work too soon after the discrimination in question, he
may be subject to a reduction in back pay on the ground
that he willfully incurred a loss by accepting an unsuit-
ably low paying position. On the other hand ... if he
fails to 'lower his sights' after the passage of a reason-
able period of unsuccessful employment searching, he
may be held to have forfeited his right to reimbursement
on the ground that he failed to make the requisite effort
to mitigate his losses.
Id. Because of this dilemma, we held that "courts must be
careful when applying" the mitigation doctrine, and that "it
would not be unreasonable ... to resolve doubts in this area
in favor of the innocent discriminatee." Id. "[T]he burden of
establishing facts in mitigation of the back pay liability" is
therefore upon the violator. Id. at 1318; accord Oil, Chem. &
Atomic Workers, 547 F.2d at 603.
In addressing the unions' mitigation challenges, we are
hampered by the Master's failure to address the mitigation
question with respect to a number of the challenged claim-
ants. Where the Master has been silent, we can uphold an
award only if the unions offer nothing to support a claim of
non-mitigation other than an inadequate legal theory, and
hence fail to satisfy their burden of proving non-mitigation.
A.
We begin with four claimants whom the unions contend
"did not consistently seek Local 201 referrals" between 1972
and 1975, when there was a surfeit of work available through
the Local. Def. Br. at 54. Because the Local had more than
enough work during this time for any permit man who
wanted it, the unions contend that a failure to seek referrals
from the union constituted a failure to mitigate. See id. at
54-55, 59-60.
1. O.C. Brown. Surprisingly, the first claimant the un-
ions offer as an example of one who failed to seek referrals
from the Local is O.C. Brown, who the unions concede did
seek and receive many referrals between 1972 and 1978. Id.
at 56. The problem with Brown, the unions assert, is that he
held few of those referred jobs for very long because of his
"chronic, voluntary, premature quits," and that as a result his
yearly work hours were low. Id. at 57. The Special Master,
however, credited Brown's testimony on the subject and
found that the reason for those "quits" was that "even when
referred, Brown was fired on instructions from the business
agent [for the union] solely because of his status as a permit
man...." J.A. 382. The unions cite only one specific exam-
ple of a "quit," Brown's decision to leave a job at Wahib Steel
because of a dispute with a foreman. But the Master found
that "Brown was not unemployed after quitting Wahib but
appears to have immediately obtained employment" from
another employer. J.A. 381. Accordingly, the Master con-
cluded that no deduction from Brown's back pay award was
required, and we cannot find that conclusion clearly errone-
ous.
As noted in Part IV above, however, the unions have
asserted another ground for deduction in Brown's case: that
Brown voluntarily absented himself from the workforce every
winter. There is evidence in the record to support this
assertion. See J.A. 772-75. Although there may be reasons
why such absences do not constitute a failure to mitigate (e.g.,
because little rodwork was done in the winter, a point made
by the unions' own expert, see J.A. 332), the Master did not
address Brown's seasonal absences at all, and we therefore
must remand his award for further consideration.12
__________
12 On remand, the district court should also consider the unions'
contention that Brown failed to mitigate during the period 1975-78.
2. Silburn Francis. The second claimant the unions
challenge for not seeking Local 201 referrals is, again, a
claimant who the unions concede did seek and receive refer-
rals from the union. Moreover, the unions concede that
Silburn Francis, unlike O.C. Brown, "worked high numbers of
hours through Local 201 between January 1, 1971 and June
30, 1974." Def. Br. at 57. Nonetheless, the unions contend
that Francis "achieved those hours only by working an unusu-
ally high number of different jobs," and thus was "a chroni-
cally lackadaisical worker" who could not hold a job. Id. at
56-57. Once again, the Special Master drew a different
conclusion from the same testimony and documentary record.
The Master read Francis' employment history not as indicat-
ing that he was "lackadaisical," but as "demonstrat[ing] Fran-
cis' tenacity in seeking work as an ironworker." J.A. 405.
Francis, the Master found, "made good faith and diligent
efforts to obtain employment through references from Local
201." J.A. 405. That finding is not clearly erroneous.13
3. Eldridge Harmon and James Hicks. Although El-
dridge Harmon did seek referrals from the union, he mostly
worked on non-union jobs. Similarly, James Hicks worked
for a number of non-rodwork employers. Because there was
more than enough union rodwork available during this period,
and because that work presumably paid higher wages,14 the
unions contend that claimants' failure to seek solely Local 201
work during this period constituted a failure to reasonably
mitigate. They were "not available for Local 201 referrals,"
the unions contend, when they were "working elsewhere."
Def. Br. at 60.
__________
The unions cite evidence that Brown never sought employment
from a specific company he believed would have hired him, see Def.
Br. at 64, notwithstanding that he worked few hours during that
period, see J.A. 379-80.
13 Francis' award is subject, however, to the outcome of the
remand of his class membership, as discussed in Part III.B.2 above.
14 This appears to be the unstated (and undisputed) premise of
the unions' argument.
Whether the decisions of these claimants not to seek work
solely through the Local constituted a failure to mitigate
depends on the reasons they had for taking other work. As
we noted in Oil, Chemical & Atomic Workers, it may be
reasonable for a claimant to decline an interim job from his
employer (other, of course, than the very job at issue in his
lawsuit) in favor of a lower-paying but more permanent job
from someone else. 547 F.2d at 604-05. A fortiori, it may
be reasonable to decline to leave an existing job when doing
so would only make oneself available for possible referral to a
better-paid one. We do not know whether these kinds of
considerations explain Harmon's or Hicks' decisions, however,
because the Special Master did not discuss mitigation with
respect to Harmon or Hicks at all. Accordingly we have no
choice but to remand their awards for further consideration.
B.
The unions next address the post-1975 period, which saw
employment patterns in the rodwork industry fluctuate.
"Even during this period," the unions argue, "Local 201-
referral jobs went unfilled for lack of applicants." Def. Br. at
60. The unions therefore again contend that a claimant did
not reasonably mitigate if he did not seek work through Local
201. In a set of further, sometimes contradictory arguments,
however, the unions contend that a claimant did not reason-
ably mitigate if he did not also seek union rodwork in other
cities, seek non-union rodwork, seek other construction work,
and register with government employment agencies. We
consider these individual challenges below.
1. James Brown. The unions do not dispute that James
Brown sought and received referrals from Local 201. In a
one-sentence challenge to Brown's award, however, they ar-
gue that he "did not seek work through any other Iron
Workers Local union or through any other union during 1975
and 1976." Id. at 63. That argument is insufficient to satisfy
the unions' burden. First, this kind of challenge to Brown's
1975 award directly contradicts the unions' argument--dis-
cussed in Part V.A above--that because Local 201 had more
than enough work for permit men from 1972-75, a claimant's
failure to seek work solely through Local 201 during that
period constituted a failure to mitigate.15 Nor do the unions
offer evidence that in 1976 Brown would have had a better
chance of obtaining union work in other cities than by con-
tinuing to seek referrals from Local 201. Since, as the
Master noted, Brown's strategy of seeking work through
Local 201 earned him nearly as much or more than the
benchmark wages in 1972-74, J.A. 375, and since the unions
concede "Local 201-referral jobs went unfilled for lack of
applicants" even during the post-1975 period, Def. Br. at 60,
the unions' single-sentence challenge does not meet their
burden of showing that Brown was unreasonable in continu-
ing to seek work through Local 201. Brown's awards are
affirmed.
2. Sherman Johnson. The unions contend that Johnson
should not have been awarded back pay for 1975 because he
sought no work from non-union companies, non-Local 201
unions, or non-rodwork employment during that year. Once
again, this directly contradicts their contention that 1975 was
a "full employment" year at Local 201, with plenty of work
for any permit man who wanted it, and consequently that any
__________
15 See Def. Br. at 54-55, 59-60. As noted above, the unions
contended that a claimant failed to mitigate if he took jobs with
non-union employers during this period, thus making him "not
available for Local 201 referrals when he was working elsewhere."
Id. at 60. The unions further contended that:
Local 201 was unable to fulfill employer requests that it
dispatch workers for 4,432 jobs during the period 1972-75....
Local 201 fell short of supplying workers only because it
exhausted the rodmen who were available to be referred on all
classes on its list. And, during pension years 1973 to 1976,
union members were only able to work 36%, 32%, 35% and 48%
respectively, of the hours worked by all workers referred by
Local 201. At least during this period, then, a claimant would
exercise reasonable diligence only by consistently seeking em-
ployment through Local 201, just as the union's member did.
Id. at 55.
claimant who did not seek work solely through Local 201
failed to mitigate. The award is affirmed.
3. Charles Dean. The unions argue that Charles Dean
failed to mitigate because he never applied to the leading non-
union employer, Miller & Long, during the 1975-79 period.
The unions, concede, however, that Dean did work for other
non-union firms, id. at 64, and offer no evidence that Dean
could have done better at Miller & Long. Indeed, the Master
found that Dean's actual hours during this period approached
or exceeded the benchmark figures in all relevant years.
Accordingly, the unions cannot meet their burden of showing
a failure to reasonably mitigate. The awards are affirmed.
4. Van Edward Lewis. The unions challenge Lewis'
awards for 1977 and 1979, claiming that he ceased seeking
work through Local 201 in 1976 and did not return to the
union until 1980. The unions offer no evidence, however, that
supports this claim. The portion of Lewis' testimony cited in
support says that he ceased trying to "join the training
program" in 1976, not that he ceased seeking permit man
work through Local 201. See Def. Br. at 65 (citing J.A. 736).
The Master's report does suggest that Lewis may not have
sought Local 201 work in 1979, but that is only because it
shows he worked for Miller & Long during that year--the
same non-union employer from which the unions insist
Charles Dean should have gotten his work. Accordingly, the
awards are affirmed.
5. Thomas Kirkland. Citing a less-than-clear portion of
Kirkland's testimony, the unions contend that he voluntarily
ceased looking for work during the last quarter of 1976 and
hence failed to mitigate during that period. The Master did
not address this issue at all, and we therefore remand this
portion of Kirkland's award for reconsideration.
6. John Offer. The unions challenge Offer's awards for
1975 and 1976, on the ground that he did not seek in-town
work from non-union rod companies, or out-of-town work
from union companies. The challenge to the 1975 award fails
for the same reason it failed in the cases of James Brown and
Sherman Johnson. We must remand the 1976 award, howev-
er, because the Special Master failed to discuss the mitigation
issue despite claimant's low earnings that year.
7. John Thomas. The unions challenge Thomas' awards
for 1976, 1977 and 1979 on the basis of his asserted failure to
adequately mitigate. With respect to 1976, they contend that
he principally collected unemployment compensation rather
than working. Because Thomas earned only $338 in that
year, and because the Master did not address the mitigation
issue for that year at all, we remand the 1976 award. With
respect to the remaining two years, however, the Master
noted that Thomas earned approximately 80% of the bench-
mark figure in 1977 (by working for Miller & Long) and 98%
of the benchmark figure in 1979. J.A. 480. These figures
suggest reasonable mitigation in those years, and because the
unions offer no evidence that Thomas could have done better
by seeking any other kind of employment, we affirm those
awards.
8. Ronald Tucker. The unions challenge the awards of
back pay to Tucker for 1975 and 1977, on the ground that he
did not seek work through any union other than Local 201 or
register with an employment agency. The challenge with
respect to 1975 fails for the same reason it failed in the case
of the other claimants' 1975 awards. With respect to 1977,
the Master awarded back pay to Tucker for only one calendar
quarter and noted that during that entire quarter Tucker
worked for a steel company in Baltimore. The unions have
proffered no evidence that other work would have paid more,
or that Tucker's mitigation efforts were otherwise unreason-
able. They are thus unable to satisfy their burden of showing
a failure to mitigate. The awards are affirmed.
C.
Finally, we also consider the class' challenges to the Special
Master's decision to truncate the awards of four claimants on
the ground that after certain dates those claimants "aban-
doned" Local 201. We remand two of those decisions, and
affirm the other two.
1. James Brown and Ronald Tucker. The Special Mas-
ter cut off Brown's and Tucker's back pay awards after 1976
and 1977, respectively, because they obtained non-union em-
ployment and ceased to seek union referrals. J.A. 376, 483.
We agree with the unions that this issue is properly evaluated
by applying the mitigation doctrines described above. See
Def. Reply Br. at 6, 13-14. But the Master's decision to
truncate the awards solely because the claimants chose to
keep working at alternative employment, rather than con-
stantly to seek new union referrals, misapplies those doc-
trines and requires a remand.
To infer a breach of the duty to mitigate solely from a
claimant's acceptance of other work implicates the dilemma
noted at the beginning of this Part, and creates a Catch-22
situation for the claimant. As the Third Circuit has said:
[T]he fact that a plaintiff takes a job in an unrelated field
to meet her obligation of mitigation should not be con-
strued as a voluntary withdrawal from her former profes-
sion. Otherwise, a plaintiff would be put in the intoler-
able position of choosing between foregoing a source of
earnings during the interim before trial or risking an
adverse finding on abandonment of her profession. Such
a rule would also work to the disadvantage of employers
because the scope of the mitigation obligation necessarily
would be relaxed. It is conceivable that a plaintiff,
wronged by discrimination, would decline to take a job
that would substantially mitigate damages because such
employment could be construed as an abandonment of
her former vocation.
Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir. 1987).
Here, claimants did not even choose work in an unrelated
field, as the plaintiff did in Ellis. Rather, they did just what
the unions have asserted they were obligated to do: when
unable to fill their hours with Local 201 work, they sought
and successfully obtained non-union work instead. See supra
Part V.B. To cut off their back pay now would truly be to
apply a Catch-22: claimants would have been ineligible for
back pay had they not tried to obtain non-union work, and
would now be ineligible precisely because they succeeded in
obtaining it.
It may be that a reasonable claimant would have known he
could have done even better by constantly checking with
Local 201 for referrals, although there was record evidence
that such constant checking (and the tardiness it would have
caused at the claimant's current employment) would have put
his non-union work in jeopardy. See J.A. 663, 761-62, 808-
11.16 It is also possible that having obtained non-union work,
those claimants were satisfied and had no intention of ever
returning to Local 201, although they contend they "would
have preferred to work out of Local 201 as journeymen" and
took the non-union work only because they had no choice. Pl.
Br. at 60. None of these points was discussed by the Special
Master, however, and no findings were made on either side.
Accordingly, we must remand the truncation of these awards
for further consideration and appropriate application of the
law relating to mitigation.
2. Sherman Johnson and John Offer. The Special Mas-
ter's decision to truncate the awards of Johnson and Offer
presents a different question. The Master found that John-
son's medical condition (chronic bronchial asthma) caused him
to abandon his pursuit of union referrals in 1976. J.A. 437.
Similarly, the Master found that Offer abandoned rodwork
altogether after 1976 because the work was too physically
demanding for him. J.A. 458. Although both claimants
obtained work in other fields, the Master's decision to trun-
cate their awards did not rest simply on the fact that they
took that work, but rather on his finding that the reason they
did was because they were no longer able to do the kind of
work referred by Local 201. This does not raise the Catch-
22 concern noted above, and the Master's finding was not
clearly erroneous. The truncation of these two awards is
affirmed.
__________
16 There was also testimony that returning to the Local after
taking a non-union job would have been futile, since rodmen who
worked for non-union employers were regarded as "scabs" and not
given referrals by the union hiring hall. See J.A. 903, 1095.
VI. Compensatory Damages
The unions challenge the Special Master's decision to
award compensatory damages to 18 claimants. They correct-
ly note that compensatory damages serve only to compensate
injuries that result from violations of constitutional or statuto-
ry rights, and may not be "presumed to flow from every
deprivation" of those rights. Carey v. Piphus, 435 U.S. 247,
263 (1978). "Where no injury [is] present, no 'compensatory'
damages [may] be awarded." Memphis Community Sch.
Dist. v. Stachura, 477 U.S. 299, 308 (1986).
The Supreme Court, however, has distinguished the imper-
missible award of compensatory damages--where they are
presumed merely from the violation of a right--from the
"form of presumed damages [that] may possibly be appropri-
ate ... [to] roughly approximate the harm that the plaintiffs
suffered...." Id. at 311. Similarly, in Hobson v. Wilson,
this court stated that "in appropriate circumstances the inflic-
tion of emotional distress may be inferred from the circum-
stances of the violation." 737 F.2d 1, 62 n.173 (D.C. Cir.
1984). The critical distinction made by both Memphis and
Hobson is that courts may properly infer emotional distress
from factual circumstances--and award damages to compen-
sate for that distress--but may not presume damages from a
bare violation of a statutory or constitutional right. See 477
U.S. at 311; 737 F.2d at 62 n.173.
The awards in the instant case are supported by the proper
kind of inference. There can be little doubt that claimants,
who were experienced rodmen, suffered emotional distress by
having to subject themselves to an unnecessary training
program for up to two years before being permitted to take
the union entrance exam. Those circumstances more than
adequately support the extremely modest awards granted
here, which range from $2,500 to $25,000.
The unions also complain that the Special Master granted
compensatory damages to three claimants who did not seek
them. The district court upheld those awards on the basis of
Fed. R. Civ. P. 54(c), which provides that "every final judg-
ment shall grant the relief to which the party in whose favor
it is rendered is entitled, even if the party has not demanded
such relief in the party's pleadings." J.A. 537 (Mem. Op.)
(quoting Fed. R. Civ. P. 54(c)). Although the cited rule may
provide the discretionary authority necessary to make the
awards to the three claimants, no explanation was offered as
to why the Special Master simultaneously failed to award
compensatory damages to another claimant for no reason
other than that he did "not seek compensatory damages."
J.A. 435 n.101 (Sherman Johnson); see also J.A. 451 (estate of
James McGee). Without such an explanation, we are unable
to determine whether this inconsistency reflects a rational
distinction or an abuse of discretion, and we therefore remand
the compensatory damage awards to James Brown, Paul
Brown and Silburn Francis for reconsideration and explana-
tion. With those exceptions, the compensatory damages
awards are affirmed.
VII. Punitive Damages
The class alleges that the Special Master applied an incor-
rect standard in denying them an award of punitive damages.
The Master stated that "punitive damages will be recoverable
for conduct exhibiting malice, evil motive, recklessness or
callous indifference to a federally protected right." J.A. 319
(citing Smith v. Wade, 461 U.S. 30, 52 (1983)). This is the
same standard relied upon by both the majority and the
dissent in this circuit's leading case on the issue. See Kolstad
v. American Dental Ass'n, 139 F.3d 958, 964-65 (D.C. Cir.
1998) (en banc), cert. granted, 119 S. Ct. 401 (1998); id. at 971
(Tatel, J., dissenting).17 Moreover, as we also noted in Kol-
__________
17 In this case, the class' punitive damages claim is based on 42
U.S.C. s 1981, since Title VII's punitive damages remedy was not
added to the statute until 1991, long after this lawsuit was filed. It
is nonetheless appropriate to apply the principles outlined in Kol-
stad, which was brought under Title VII, and Smith, which was
brought under 42 U.S.C. s 1983, because we have consistently
applied the same punitive damages standard under all three stat-
utes. See Kolstad, 139 F.3d at 962-65 (applying Smith and s 1981
standards in Title VII action); Barbour v. Merrill, 48 F.3d 1270,
1277 (D.C. Cir. 1995) (applying Smith standard in s 1981 action).
stad, "punitive damages 'are never awarded as of right, no
matter how egregious the defendant's conduct.' " 139 F.3d at
965 (quoting Smith, 461 U.S. at 52). Rather, they are
"awarded or rejected in a particular case at the discretion of
the fact finder." Id. (internal quotation omitted); accord id.
at 280 (Tatel, J., dissenting). We have no basis for overturn-
ing the Master's discretionary decision here.
VIII. Prejudgment Interest
Finally, both the unions and the class challenge the award
of prejudgment interest at a rate of 6%, compounded annual-
ly, for the entire period of the litigation. The unions argue
that no interest should have been awarded at all or, in the
alternative, that no interest should have been awarded for
certain periods of time. The class argues that 6% is too low a
rate, and that interest should have been awarded at a variable
rate. We reject all of these contentions and affirm the
decision of the district court.
The back pay provision of Title VII "is a manifestation of
Congress' intent to make persons whole for injuries suffered
through past discrimination," and "[p]rejudgment interest, of
course, is an element of complete compensation." Loeffler v.
Frank, 486 U.S. 549, 558 (1988) (internal citations and quota-
tions omitted). For that reason, we have held that "prejudg-
ment interest 'must be an ordinary part of any award of back
pay ... under s 1981.' " Barbour v. Merrill, 48 F.3d 1270,
1278 (1995) (quoting Williamson v. Handy Button Mach. Co.,
817 F.2d 1290, 1297 (7th Cir. 1987)). The decision as to how
to compute prejudgment interest is within the discretion of
the district court. Forman v. Korean Air Lines Co., 84 F.3d
446, 450 (D.C. Cir. 1996).
In the instant case, both sides cited a variety of circum-
stances that might support an exclusion of certain time
periods on the one hand, or a variable rate of interest on the
other. The district court, after reviewing these arguments,
chose the 6% rate for the entire period, principally on the
ground that the parties had once consented to that rate. J.A.
521-22. The unions are wrong in arguing that delays for
which they are not responsible mandate tolling of prejudg-
ment interest. See Bufco Corp. v. NLRB, 147 F.3d 964, 967
(D.C. Cir. 1998) (refusing to toll interest when NLRB may
have been responsible for delay). The class, on the other
hand, is equally wrong in contending that it was an abuse of
discretion for the district court to impose a fixed rate in large
part because of their earlier concession that such an interest
rate would make them whole. See TI Fed. Credit Union v.
DelBonis, 72 F.3d 921, 928 (1st Cir. 1995) (distinguishing
between binding effects of factual and legal stipulations). We
thus affirm the decision of the district court awarding pre-
judgment interest at the rate of 6%, compounded annually,
for the entire period of the litigation.
Silberman, Circuit Judge, concurring: We have strained
hard--perhaps too hard--to decide as much of this case as we
could. As our background section indicates, the district
court's interminable delays are inexcusable and have caused a
great hardship to the parties, particularly the class. I am
terribly concerned that our remand to this district judge is
equivalent to dropping the case into a well, and, therefore, we
should be prepared to grant extraordinary relief if there is
further unjustified delay.
It seems to me that all the district judges--the whole
district court--should assume responsibility for unwarranted
delays in the processing of cases. The court of appeals has a
rule, the September Rule, which has been vigorously en-
forced, that prevents any judge from sitting on cases in the
fall if he or she has more than three assigned majority
opinions outstanding over six months. I see no reason why
the district court could not adopt an analogous rule, more
tailored to its circumstances, that would force district judges
to process cases in a timely fashion or else be disqualified.
The court of appeals can only act episodically as cases are
brought to us; it is not our responsibility to supervise district
judges.
Sentelle, Circuit Judge, concurring and dissenting in
part: I concur in the court's opinion with the exception of
Part III.B.7, discussing the eligibility of claimants Paul
Brown, James Hicks, and James Brown. There the court
determines that failing the Open Period examination, or
failing to take it when offered, does not exclude a claimant
from class membership. The conclusions reached in the
court's opinion do not follow from our holding in Berger I.
Accordingly, I respectfully dissent.
The language quoted by the court as defining the class is
correct, so far as it goes, but it is based on an incomplete
examination of our opinion. As the majority notes, "[t]he
union is liable, we said 'to those class members who were
experienced workers, but were delayed entry to union ranks
by the particular educational prerequisites affecting them
from the end of the Open Period until the filing of suit on
October 21, 1975.' " An applicant who failed the Open Period
exam, as Paul Brown and James Hicks did, or failed to take it
despite being offered an opportunity to do so, as James
Brown did, was kept out of the union on the basis of that
failure, not on the basis of an impermissible educational
prerequisite.
In Berger I, we recognized that the rod trade has histori-
cally been apprenticeable, and noted that "it stands to reason
that on-the-job experience alone may not necessarily teach all
that a fully qualified rodman should know." Berger, 843 F.2d
1395, 1420. We pointed to the existence of the Open Period
exam as proof that the union could devise an examination that
properly tested experienced rodmen to see if they were
qualified even though they had not been through an appren-
ticeship program. "In our view, the Open Period establishes
that experience can 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 journeyman status." Id. at 1421 (emphasis in original).
Under our analysis, the Union remains free, among other
things, to (1) require significant rodman experience be-
fore an applicant may be admitted to the journeyman
exam, (2) offer (cured of discrimination against experi-
enced workers) both the Apprenticeship and Training
programs, and (3) devise a more exacting or thorough
exam for rodmen who eschew classroom training to
assure that skills (e.g., 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).
Id. If we are pointing to the Open Period exam as proof that
the union could create an acceptable exam, it does not follow
that failure of that exam should not properly be deemed to
preclude someone from membership as unqualified. There-
fore the proper course for the union to take with regard to
someone who failed the Open Period examination was to do
precisely what it did, require them to take courses in an
apprenticeship program, and then administer the second test.
In Berger I, we recognized that it may have been harder, but
accepted the increased difficulty. However, one significant
factor, overlooked by the majority opinion, that may explain
the difference in passage rates between the two exams is that
the rodmen taking the second examination had just finished
taking a course designed specifically to help them pass that
examination. Rodmen who could not pass the membership
examination and were thus deemed "insufficiently competent
applicants for journeyman status" cannot show that they were
impermissibly discriminated against by the unions, and are
not properly members of the class.
Garland, Circuit Judge, concurring and dissenting in
part: I concur in the court's opinion with the exception of
Part II. In that Part, the court remands the Special Master's
benchmark determination--that is, his calculation of the
hours claimants would have worked in the absence of discrim-
ination. The questions my colleagues raise about the Mas-
ter's calculation are not unreasonable ones. But that is not
the test on appeal. It does not matter that we might have
made a different calculation had we been sitting as the triers
of fact. See Anderson v. Bessemer City, 470 U.S. 564, 573-74
(1985). Instead, to justify remand, appellants must demon-
strate that the Master's calculation was clearly erroneous.
See id.; 9A Wright & Miller, Federal Practice and Proce-
dure s 2585, at 565 (2d ed. 1995). Because they have not
done so, I would affirm the Master's determination rather
than needlessly prolong this decades-old case.
I.
In order to determine the number of hours the claimants
would have worked had they not been subject to discrimina-
tion, the Special Master consulted Local 201 pension records
to calculate the average number of hours a representative
group of union workers actually worked during the relevant
period. The court's first objection to the Master's methodolo-
gy is that he excluded from that group "those who for several
years ... worked no hours at all." J.A. 342-43. By not
including these "zero-hour" workers in calculating the hours
of an average worker, the court contends that "the Special
Master remove[d] from the equation the risk of disabling
injury, or of finding another more desirable job, or whatever
other reason a person might not work full time." Op. at 14.
The inclusion of zero-hour workers may be a reasonable
way to account for the risk that an individual claimant would
have stopped working even if he had been admitted to the
union. But it is not the only, or even the most direct, way.
The most direct way is simply to deny back pay to those
claimants who actually did stop working, rather than build
into the benchmark the statistical probability that a hypothet-
ical claimant would have done so. Not unreasonably, the
Special Master chose the direct approach.
The Master's benchmark accounted for the risks of injury
and attrition as follows. First, he included within the repre-
sentative pool those workers whose hours had been reduced
by short-term injuries or other absences. As the court notes
in Part IV, the "Special Master's proxy does ... factor in the
'average number of days lost due to injury, sickness and
attrition.' " Op. at 34 (quoting J.A. 341). Second, the Master
excluded those who had worked zero hours "for several
years," because they were not representative of union mem-
bers who were actually working during the relevant period.
J.A. 342-43.1 Finally, to ensure that a claimant who worked
zero hours did not receive a windfall, the Master reduced the
pay of claimants where there was "an 'extensive period of
unemployment due to injury [that] falls outside [the] statisti-
cal model of reasonable hours' developed in the benchmark
proxy." Op at 34 (quoting J.A. 445).
I do not disagree that the Master appears to have per-
formed this last calculus inconsistently. For that reason, I
join Part IV.6 of the court's opinion, which remands certain
challenged back pay determinations for an "inquiry into
whether each challenged award involves a claimant whose
injury-time exceeds th[e] average." Op. at 35. But that
limited remand is sufficient to remedy the error. As long as
the Master denies claimants back pay for actual absenteeism
"so extreme as to be beyond the proxy's statistical average,"
Op. at 34, there is no reason to require him also to build the
probability of lengthy absences into the benchmark. As the
court itself notes in Part II, "[b]oth ... are means of dis-
counting back pay awards to reflect unavailability for work
__________
1 It is important to note that the Special Master did not exclude
all zero-hour workers from the proxy group--he excluded only
those who had worked zero hours "for several years." J.A. 342-43.
Similarly, defendants' own expert excluded some, but not all, zero-
hour workers from his preferred benchmark proxy--he excluded
"zero-hour rodmen who had died, retired, were incarcerated or
permanently disabled." Op. at 14 (citing J.A. 1381). Neither the
court nor defendants explain why the exclusions made by defen-
dants' expert were permissible, while those made by the Master
were clearly erroneous.
during the liability period." Op. at 15. Even if the
probability-based, zero-hour approach were preferable, it can-
not be clearly erroneous for the Master to have chosen the
direct-reduction approach instead. See Anderson, 470 U.S. at
574 ("Where there are two permissible views of the evidence,
the factfinder's choice between them cannot be clearly errone-
ous.").
II.
The court's second criticism of the Special Master's calcula-
tion is its asserted failure to recognize that the number of
work-hours available for union members during the relevant
period was a "fixed pie." If the claimants had been admitted
into the union, the court contends, that fixed pie of hours
would have been divided among a greater number of workers.
Hence, each union member would have worked fewer hours
than union members actually worked during the period.
There are two reasons to reject this critique.
First, defendants did not make this argument in their
briefs before this court. Indeed, the term "fixed pie" cannot
be found anywhere therein. See Def. Br. at 24-32; Def.
Reply Br. at 4-6. We routinely and for good reason refuse to
consider contentions not raised in a party's briefs. See Boggs
v. Rubin, 161 F.3d 37, 42 (D.C. Cir. 1998) (holding that "[w]e
will not consider at this late stage an argument that the
appellant failed to raise" in his briefs); Diamond Walnut
Growers, Inc., v. NLRB, 113 F.3d 1259, 1263 (D.C. Cir. 1997)
(en banc) ("[I]t is well-established ... that we do not consider
arguments not presented to us."). Although it is not impossi-
ble to tease the recipe for a fixed-pie argument out of a single
sentence in which defendants described the calculations per-
formed by their own expert, their briefs did not argue that a
fixed-pie problem rendered the Special Master's calculations
clearly erroneous. As we have said in another context, a
reviewing body "need not sift pleadings and documents to
identify arguments that are not stated with clarity by a
petitioner." Bartholdi v. FCC, 114 F.3d 274, 279 (D.C. Cir.
1997) (internal quotations omitted); see also United States v.
Gilliam, No. 97-3084, slip op. at 20 n.10 (D.C. Cir. Feb. 26,
1999) ("[T]he court will not construe the briefs to raise an
argument that is hinted at but never stated.").2
Second, there is substantial support in the record for the
Master's conclusion that "there really [was] no fixed pie" of
available hours. J.A. 339. As the court explains, the Local
referred work to both union members and non-union workers.
The defendants' expert assumed that had claimants become
members of the union, they would have displaced non-union
workers first. There would thus be no fixed-pie problem, the
expert said, as long as the hours referred to non-union
workers in a given year were more than the potential "claim-
ant hours"--which he defined as the product of the number of
eligible claimants and the mean hours worked by union
members that year. J.A. 1383 (report of defendant's expert).
Examination of two charts prominently displayed in defen-
dants' own brief reveals that in fact, the number of hours the
Local referred to non-union workers did exceed the number
of potential claimant hours every year through 1981. Def. Br.
at 15, 28. That is because in each of those years the union
referred in excess of 100,000 hours to non-union workers,
more than enough to accommodate 173 claimants without
displacing any union members.3 Hence, even assuming that
__________
2 To a lesser extent, the zero-hour argument discussed above
suffers from the same disability. Although one of defendants'
briefs did use the term "zero-hour" (once), it did so only in
describing the work of defendants' expert. It did not expressly
argue that the failure to include zero-hour workers rendered the
Master's benchmark clearly erroneous.
3 The chart on page 15 of defendants' brief discloses the
number of hours the union referred to non-union workers in each
year. The chart on page 28 shows the mean union-member hours
for each year as determined by defendants' expert. When the
latter figures are multiplied by the 173 putative class members, the
resulting claimant hours are less than the non-union hours for every
year through 1981.
the union could not have attracted additional work for addi-
tional members, there simply was no fixed-pie problem
through 1981.4 If there were an error in the Master's
calculation, then, it would apply only to awards for years after
1981--and only one claimant received such an award. At
most, the fixed-pie theory would necessitate a remand of the
award to Eldridge Harmon, who received $2,075 for 1985-86.
But the court is also factually incorrect in stating that
"[t]here is no evidence in the record to suggest that there was
additional work in the D.C. area for Local 201 rodmen"
beyond that actually handled by its union members and non-
union referrals. Op. at 16. Defendants' own briefs provide
the contrary evidence, demonstrating that during the entire
relevant period, Local 201 had more job requests from em-
ployers than both its union and non-union workers could
absorb. Defendants state that from 1972 to 1975, "Local 201
was unable to fill 4,432 jobs due to an insufficient number of
workers seeking jobs through the hiring hall." Def. Br. at 14
(citing J.A. 274-75). And from 1976 to 1986, "Local 201 was
unable to fill 1,649 jobs." Id. at 15; see also id. at 60 ("Even
after the 1972-75 'full employment' period, Local 201-referral
jobs went unfilled for lack of applicants."). Defendants'
evidence makes clear that this circumstance existed in every
year for which there are records, see J.A. 275, despite the fact
that the "union never deliberately let a job go unfilled." Def.
Br. at 14. Hence, the defendants' own briefs provide the
"prima facie showing that additional hours were available to
Local 201" upon which the court insists. Op. at 16.5
__________
4 This roughly accords with the concession of defendants' own
expert that in the 1970s there would have been sufficient hours
available for the claimants had they been admitted to the union.
See J.A. 339 (citing expert's testimony).
5 The court states that the fact that jobs went unfilled does not
necessarily mean that the union had enough work for the claimants,
since it might be explained merely by "[f]luctuations on a given day
that would result in a specific job referral being listed as unfilled."
Op. at 18. But this theoretical possibility, like the year-to-year
disparities to which the court also points, is hardly sufficient to
justify a conclusion that the Master's determination was clearly
Finally, the fact that the union had to turn down jobs also
undermines the court's declaration that "[c]ommon sense and
experience suggest that a union will attempt to bring as many
projects as possible under union control." Op. at 16. That
may be the case where a union and its non-union referrals are
able to handle all the work they can bring in. But where a
local is already turning down unsolicited job referrals, it has
no incentive to bring still more projects under its control.
Under these circumstances, neither common sense nor expe-
rience militates against the Master's finding that there was
no fixed pie. J.A. 339.6
III.
The burden is on the appellants to establish that the
decision below was clearly erroneous. See Bellevue Gardens,
Inc. v. Hill, 297 F.2d 185, 187 (D.C. Cir. 1961); 9A Wright &
Miller s 2585, at 565. Because they have not met that
burden, there is no reason for us to prolong the final resolu-
tion of plaintiffs' back pay awards by remanding the Special
Master's benchmark determination for further consideration.
__________
erroneous. See Anderson, 470 U.S. at 573-74. The court also
contends that defendants "made a prima facie showing that the
hours were not available" for the claimants, based on evidence of
"the declining hours referred out of the hall and [on] evidence
[defendants] introduced of the declining market share available to
the union." Op. at 16. But it is the gross hours potentially
available for the claimants, not the evidence of trends and percent-
ages, that is relevant to the validity of the fixed-pie theory.
6 For the same reasons, and contrary to the court's contention,
the Special Master did not shift the burden of proof to defendants
by characterizing the fixed-pie theory as "at best speculative." J.A.
340. Indeed, the defendants' expert himself described the theory in
words of speculation. See J.A. 1383 (stating that the benchmark
"may require [an] adjustment ... [to] reflect[ ] the fixed number of
union-referred hours") (emphasis added); id. at 1384 (stating that a
fixed-pie adjustment would be required "if there are no permitmen
and travelers working in a given year") (emphasis added).