Berger v. Iron Workers Reinforced Rodmen, Local 201 Motion of NAACP Legal Defense and Educational Fund for Leave to File a Brief Amicus Curiae, and Brief Amicus Curiae, in Support of Appellees Berger, et al.

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 85-6217, 86-5027, 86-5028 
86-5275, 86-5276, 86-5277 

(consolidated)
COMPLEX

JESSIE BERGER, et a1.,

Appellees, 

v.

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

Appellants.

On Appeal from the United States District Court 
for the District of Columbia 
Civil Action No. 75-1743 
Judge John Garrett Penn

MOTION OF NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
FOR LEAVE TO FILE A BRIEF AMICUS CURIAE, AND BRIEF AMICUS 

CURIAE, IN SUPPORT OF APPELLEES BERGER, et al.

John Payton 
Thomas W. White 
Peter A. von Mehren

WILMER, CUTLER & PICKERING 
2445 M Street, N.W. 
Washington, D.C. 20037 
(202) 663-6000

Counsel for Amicus Curiae

July 10, 1987



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 85-6217, 86-5027, 86-5028 
86-5275, 86-5276, 86-5277 

(consolidated)
COMPLEX

JESSIE BERGER, et al. ,

Appellees, 

v .

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

Appellants.

On Appeal from the United States District Court 
for the District of Columbia 

Civil Action No. 75-1743 
Judge John Garrett Penn

MOTION OF NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
FOR LEAVE TO FILE A BRIEF AMICUS CURIAE,
IN SUPPORT OF APPELLEES BERGER, et al.

Pursuant to Federal Rule of Appellate Procedure 28, 

NAACP Legal Defense and Educational Fund, Inc. moves for leave to 

file the attached Brief Amicus Curiae in Support of Plaintiffs- 

Appellees in the above-entitled case.

The NAACP Legal Defense and Educational Fund, Inc. is a 

non-profit corporation formed to assist Blacks to secure their 

constitutional and civil rights by means of litigation. Since



1965 the Fund's attorneys have represented plaintif 

hundred employment discrimination actions under Tit 

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg. 

§ 1981, and the Fourteenth Amendment. The Fund has 

interest in ensuring strict enforcement of the civi 

and in securing effective relief for victims of rac 

nation.

fs in several 

le VII of the 

, 42 U.S.C. 

a strong 

1 rights laws 

ial discrimi-

This case is an appeal from a decision of the District 

Court in favor of a class of black rodmen, holding that local and 

international ironworkers unions, a contractors association with 

which the local bargained, and the Apprenticeship and Training 

Committees operated jointly by them, discriminated against those 

black workers by erecting barriers to their entry into the union. 

The Fund believes that the accompanying Brief Amicus Curiae will 

be of assistance to the Court by placing this complex case in 

perspective. First, the Brief shows that this case is but one 

more step in a successful campaign by black construction workers 

in this area to eradicate a pervasive pattern of racial discrimi­

nation in the construction trades, which has been largely imple­

mented through the union hiring hall and referral system devised 

and carried out by the unions and the contractors associations 

pursuant to collective bargaining agreements. Second, the Brief 

demonstrates that the decision of the Court below involves noth­

ing more than the straightforward application of well-settled 

principles of civil rights law to a set of facts supported by

2



substantial evidence. Thus, while the Brief of Appellees 

responds in detail to the various arguments of Appellants, 

amicus' purpose in submitting this Brief is to emphasize briefly 

that affirmance f the decision below involves no novel questions 

or extensions of the law.

WHEREFORE, the Fund respectfully requests that its 

Motion for Leave to File Brief amicus curiae be granted.

Respectfully submitted,

j  jw u v a j 0^ /
John Payton
Thomas W. White
Peter A. von Mehren

WILMER, CUTLER & PICKERING 
2445 M Street, N.W.
Washington, D.C. 20037 
(202) 663-6000

Counsel for Amicus Curiae

3



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 35-6217, 36-5027, 86-5028 
86-5275, 86-5276, 86-5277 

• (consolidated)
COMPLEX

JESSIE BERGER, et al.

Appellees,

v.

IRON WORKERS REINFORCED RODMEN, LOCAL 201, et al.

Appellants.

On Appeal from the United States District Court 
for the District of Columbia 

Civil Action No. 75-1743 
Judge John Garrett Penn

BRIEF OF NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
AS AMICUS CURIAE, IN SUPPORT OF APPELLEES BERGER, et al

John Payton 
Thomas W. White 
Peter A. von Mehren

WILMER, CUTLER & PICKERING 
2445 M Street, N.W. 
Washington, D.C. 20037 
(202) 663-6000

Counsel for Amicus Curiae



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 85-6217, 86-5027, 86-2028 
86-5275, 86-5276, 86-5277 

(consolidated)
COMPLEX

JESSIE BERGER, et al. ,

Appellees,

v .

IRON WORKERS REINFORCED RODMEN, LOCAL 201, et al.

Appellants.

CERTIFICATE REQUIRED BY RULE 8(0 OF 
THE GENERAL RULES OF THE 

UNITED STATES COURT OF APPEALS FOR THE 
DISTRICT OF COLUMBIA CIRCUIT

The undersigned, counsel of record for amicus curiae 

NAACP Legal Defense and Educational Fund, certifies that the fo 

lowing listed parties appeared below:

1. Ernest Bellamy, Jessie Berger, Randolph Jackson, 

Tommy Kirkland, Van Edward Lewis, Willie Lee McMillan, Ronald 

Tucker, and Garrett Simmons.



2. A class including: (1) all black persons who have 

applied for or sought, from representatives of Local 201 or the 

International, membership in Local 201 and, in connection there­

with, the International or who have applied for or sought, from 

representatives of Local 201, the Apprenticeship Program and/or 

the Training Program and who have been or might be excluded from 

Local 201 and, in connection therewith, the International or the 

Apprenticeship Program or the Training Program or any of the 

above by the alleged discriminatory practices of the defendants 

and who could have filed timely charges with the EEOC when their 

class representatives filed such charges or who could have filed 

timely lawsuits when their class representatives filed the 

instant lawsuit; and (2) all black persons who have, been referred 

for employment by any means, including filling out a referral 

slip, causing Local 201 to fill out a referral slip, or pres­

enting themselves at Local 201 and requesting representatives of 

Local 201 to refer them for work, and who have been or might be 

discouraged from applying for membership in Local 201 and, in 

connection therewith, the International and/or the Apprenticeship 

Program and/or the Training Program by the alleged racially 

discriminatory practices of the defendants and who could have 

filed timely charges with the EEOC when their class representa­

tives filed such charges or who could have filed lawsuits when 

their class representatives filed the instant lawsuit.

2



3. Iron Workers Reinforced Rodmen Local 201 (herein­

after, "Local 201").

4. International Association of Bridge, Structural 

and Ornamental Iron Workers (hereinafter, "International").

5. Apprenticeship Committee for Iron Workers Rein­

forced Rodmen, Local 201 (hereinafter, "Apprenticeship Commit­

tee" ) .

6. Local 201 Committee of the National Iron Workers 

and Employers Training Program (hereinafter, "Training Program").

7. Construction Contractors Council, AGC Labor Divi­

sion, Inc. (hereinafter, "CCC").

The party designated as No. 1 appeared as plaintiffs in 

the proceedings below and on behalf of the class described in 

No. 2 and are appellees here. The parties designated as Nos. 3 

through 7 appeared as defendants below and are appellants here. 

Party No. 1, on its own behalf and on behalf of the class 

described in No. 2, takes the position that the District Court's 

Trial Findings and Amended Order should be affirmed. Parties 

Nos. 3 through 7 take the position that the District Court's 

Trial Findings and Amended Order should be reversed.

The Associated General Contractors of America, Inc. has 

been granted leave to file, and have filed, an amicus curiae 

brief supporting the position taken by party No. 7.

3



These representations are made in order that the judges

of this Court, inter alia, may evaluate possible disqualification 
or recusal.

Respectfully submitted,

Thomas W. White

WILMER, CUTLER & PICKERING 
2445 M Street, N.W. 
Washington, D.C. 20037 
(202) 663-6000

Counsel for Amicus Curiae

4



TABLE OF CONTENTS

Page

ISSUES PRESENTED FOR REVIEW........................................1

INTEREST OF AMICUS CURIAE......   ••3

STATEMENT OF THE CASE.............................................. 3

OVERVIEW AND STATEMENT OF FACTS................................... 3

A. The History of Discrimination Against Black 
Workers in the Washington, D.C. Construction
Industry..................................................... * 3

B. The Suit by Black Rodmen....................................9
1. The Collective Bargaining Agreement................... 10

2. Discriminatory Barriers to Union
Membership........................................  43

3. The District Court's Findings..........................13

ARGUMENT....................   19
I. THE DISTRICT COURT DID NOT ERR WHEN IT FOUND THAT 

THE PLAINTIFFS' STATISTICAL EVIDENCE ESTABLISHED
A PRIMA FACIE CASE OF DISCRIMINATION...................... 21

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
IN CERTIFYING THE CLASSES.........................   24

III. THE DEFENDANTS' VIOLATION OF TITLE VII AND 
SECTION 1981 OCCURRED WITHIN THE APPLICABLE
STATUTE OF LIMITATIONS..................................... 28

IV. THE DISTRICT COURT CORRECTLY FOUND THE
INTERNATIONAL AND CCC LIABLE FOR THE DISCRIMINATORY 
BARRIERS TO UNION MEMBERSHIP............................... 30
A. Under Applicable Case Law, The International 

is Liable for Discriminatory Barriers to 
Union Membership........................................3-



Page

B. The Court Below Properly Imposed Liability
on CCC..........’....................................... 3 3

V. THE DISTRICT COURT'S ORDER PROVIDED THE PLAINTIFFS
WITH APPROPRIATE REMEDIES FOR PAST DISCRIMINATION........36

CONCLUSION........................................................39



TABLE OF AUTHORITIES

Cases Pg.g.g

Abercrombie v, Bi-Lo. Inc., 21 FEP Cas 1252 (D.S.C. 1979) ....  25

Anderson v. Group Hospitalization, No. 85-601 slip. op.
(D.C. Cir. June 12 , 1987 ) .....................................  23

Banks v. Chesapeake and Potomac Telephone, 802 F.2d 1416,
256 U.S. App. D.C. 22 (D.C. Cir. 1985 ) .................... 32,36

Bazemore v, Friday, 106 S. Ct. 3000 (1986) ..............  22,23,24

Byrd v. Local Union No. 24, International Brotherhood of
Electric Workers, 37 5 F. Supp. 54 5 (D. Md. 1974) ............ 34

Carbon Fuel Company v. United States Mine Workers, 444 U.S.
212 (1979) .....................................................  32

Connecticut v. Teal, 457 U.S. 440 (1982) ......................... 15

Craik v. Minnesota State University 3d., 731 F.2d 465 (8th
Cir. 1984) .....................................................  22

De La Fuente v. Stokely-Van Camp, Inc., 713 F.2a 225 (7th
Cir. 1983) .....................................................  27

East Texas Motor Freight Systems, Inc, v. Rodriquez, 431
U.S. 395 (1977) ................................................ 25

Fink v. National Savinas & Trust Co., 772 F.2d 951, 249 U.S.
App. D.C. 33 (D.C. Cir. 198 5) .................................. 26

*General Building Contractors Association, Inc, v.
Pennsylvania, 458 U.S. 375 ( 1982 ) ...................... 18,34,35

General Telephone Co. v. Falcon, 457 U.S. 147 (1982 ) .......... 25

^Goodman v. Lukens S~.eel Co., No. 85-1628 ; 85-210, slip op.
(U.S. June 24, 196.') .................................... 18,32,36

Griqas v. Duke Power Co. , 401 U.S. 424 (1971) ................. 15

*Cases or authorities chiefly relied upon are marked by asterisks



Griffin v. Carlin, 775 F.2d 1516 (11th Cir. 1985 ) .............  25

Hazelwood School District v. United States, 433 U.S. 299
(1977 ) .........................................................  21

Howard v. International Molders & Allied Workers Union, 779 
F .2d 1546 (11th Cir. 1986), cert, denied, 106 S. Ct. 2902 
(1986) .......................................................... 31

Kaplan v. IATSE, 525 F.2d 1354 ( 9th Cir. 1975 ) ................  31

Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 185 U.S.
Ad d . D.C. 322 (D.C. Cir 1976), cert. denied, 434 U.S. 1086 
(1978), aff'd in part and remanded in part, 746 F.2d 4 241 
U.S. App. D.C. 11 (D.C. Cir. 1983), cert, denied, 472 
U.S. 1021 (1985) ............................................... 29

*Local 28 of Sheet Metal Workers International Association
v, EEOC, 106 S.Ct. 3019 ( 1986) ............................  37,38

Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 156 
U.S. App. D.C. 69 (D.C. Cir. 1973), aff'd mem, 547 F.2d 
706 , 178 U.S. App. D.C. 409 (D.C. Cir. 1977 ) ................  34

McKenzie v. Sawyer, 684 F.2d 62, 221 U.S. App. D.C. 288
(D.C. Cir 1982 ) ...............................................  28

Milton v. Weinberger, 645 F.2d 1070, 207 U.S. Apo. D.C. 145
(D.C. Cir. 1981 ) ...............................    28,29

*Mvers v. Gilman Paper Corp., 544 F.2d 837 (5th Cir.)
modified on other grounds, 556 F.2d 758, cert. dismissed,
434 U.S. 801 (1977 ) .......................................... 31,33

Moten v. Bricklayers Masons and Plasterers International 
Union, 543 F.2d 224, 177 U.S. App. D.C. 77 (D.C. Cir.
1976) ............................................................ 4

*Palmer y, Schultz, 815 F.2d 84 (D.C. Cir. 1987 ) .......  22,23,24

Postow y. QBA Federal Savings & Loan Association, 627 F.2d
1370 , 201 U.S. App. D.C. 384 (D.C. Cir. 1980 ) ...............  26

^Reynolds v. Sheet Metal Workers, 498 F. Supp. 952 (D.D.C.
1980), aff'd, 702 F.2d 221, 226 U.S. App.'b.C. 242 (D.C.
Cir. 1981 ) ...................................... 7,8,16,21,22,25

Seqar v. Smith, 738 F.2d 1249, 238 U.S. App. D.C. 103 (D.C.
Cir. 1984), cert. den i ed, 471 U.S. 1115 (1985) ...........21,23

*Cases or authorities chiefly relied upon are marked by asterisks

iv



*Snehadeh v. Chesapeake and Potomac Telephone Co., 59o F .2d
711, 193 U.S. App. D.C. 326 (D.C. Cir. 1978 ) .............  28,29

Teamsters v. United States, 41 U.S. 324 (1977) ............. 18,22

Thompson v. Sawyer, 678 F.2d 257, 219 U.S. app. D.C. 393 
(D.C. Cir. 1982), aff'd sub, nom. Thompson v. Kennichell,
797 F .2d 1015, 254 U.S. App. D.C. 348 (D.C. Cir. 1986), 
cert, denied, 107 S. Ct. 1347 ( 1987) ......................... 29

United States v. United Association of Journeymen and
Apprent ices, 364 F. Supp. 808 (D. N.J. 1973 ) ................  34

Valentino v. U. S. Postal Service, 16 FEP Cas 242 (D.D.C.
1977)      25

Valentino v. U. S. Postal Services, 674 F.2d 56 (D.C. Cir.
1982)    23

Wheeler v. American Home Products Corp., 19 FEP Cas 143
(N.D. Ga. 1979) ............................... ................  31

STATUTES, RULES AND REGULATIONS

Fed. R. Civ. Pro. 23 ..............................................2

41 CFR 60-5 (1974) .................................................4

41 CFR 60-5.10 (1974) .................. ......... ................ 4

42 U.S.C. § 1981 (1982) ...................................... passim

42 U.S.C. §S 2000e, et seg_.................................... passim

OTHER AUTHORITIES

Prosser and Keeton on Torts, 501-502, 505-506 (5th ed. 1984)
..............................................................33,35

Payton, Redressing the Exclusion of and Discrimination
Against Black Workers in the Skilled Construction Trades; 
the Approach of the Washington Lawyers' Committee for 
Civil Rights Under Law, yearbook of Construction Articles,

*Cases or authorities chiefly relied upon are marked by asterisks

v



69, 88-90 (1984 ) .........................................  6,7,8,9

*Schlei & Grossman, Employment Discrimination Lav, 1368 (2d
ed. 1983 ) ................................................ 23,25,28

*Cases or authorities chiefly relied upon are marked by asterisks



IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 85-6217, 86-5027, 86-5028 
86-5275, 86-5276, 86-5277 

(consolidated)
COMPLEX

JESSIE BERGER, et al.,

Appellees,v .
IRON WORKERS REINFORCED RODMEN, LOCAL 201, et al.,

Appellants.

On Appeal from the United States District Court 
for the District of Columbia 

Civil Action No. 75-1743 
Judge John Garrett Penn

BRIEF OF NAACP 
AMICUS CURIAE,

LEGAL DEFENSE AND EDUCATIONAL FUND, INC., AS 
IN SUPPORT OF APPELLEES BERGER, et al.

ISSUES PRESENTED FOR REVIEW

After a 23 day t 

extensive factual findings 

violated 42 U.S.C. § 1981 

of the Civil Rights Act of 

( 198 2) et, seq. ("Title VII

rial, the District Court entered 

and legal conclusions that defendants 

("Section 1981") (1982) and Title VII 

1964, 42 U.S.C. SS 2000e, et seq.

") by erecting barriers to the entry of

I



blacks into the rodmen's union for the Washington D.C. area.

The ultimate issue presented in this case is whether the District 

Court's decision was clearly erroneous or contrary to law. This 

brief will address five principal issues:

(1) Whether the District Court correctly 
relied on the plaintiff's unrebutted statis­
tical evidence when finding the defendants 
liable for racial discrimination under 
Title VII and Section 1981.

(2) Whether, under the standards set forth in 
Fed. R. Civ. P. 23, the District Court 
properly certified classes of black rodmen 
who had been excluded from, and/or discour­
aged from, seeking union membership;

(3) Whether the District Court correctly 
found that this suit was brought within the 
applicable statute of limitations;

(4) Whether the District Court correctly 
found the International Association of 
Bridge, Structural and Ornamental Iron 
Workers ("International"), the Construction 
Contractor's Council ("CCC"), and Iron 
Workers Reinforced Rodmen Local 201 ("Local 
201") liable for the discriminatory practices 
of the Apprentice Committee and Training Pro­
gram; and

(5) Whether the District Court's remedial 
order was an appropriate exercise of its 
broad discretion to formulate remedies in 
discrimination cases.!/

1/ This case has not previously been before this Court.
Counsel is unaware of any related case pending in this Court or 
any other court.

2



INTEREST OF AMICUS CURIAE

The interest of Amicus Curiae NAACP Legal Defense and 

Educational Fund, Inc. is set forth in its Motion For Leave To 

File Brief Amicus Curiae, which is attached to this brief.

STATEMENT OF THE CASE

Amicus adopts the Statement of The Case contained in 

the Brief of the Appellees.

OVERVIEW AND STATEMENT OF FACTS

This case presents a clear cut example of discrimina­

tion against black workers in the construction industry. It 

involves well settled principles of law applied to straightfor­

ward factual circumstances, and is but one of a series of cases 

brought by black workers to end the pervasive pattern of racial 

discrimination in the construction industry in the Washington 

area. The decision here is in line with the result in these 

other cases.

A. The History of Discrimination Against
Black Workers in the Washington D.C.
Construction Industry_________________

The construction industry in Washington, D.C., has a 

long history of discrimination. As late as the 1960s, black

3



workers were forced to work in segregated unions and, as a 

result, were relegated to jobs in the residential construction 

industry. See, e.a., Moten v. Bricklayers Masons and Plasters 

International Union, 543 F.2d 224, 226 (D.C. Cir. 1976). Few, if 

any, blacks were employed at larger commercial construction proj­

ects. In the mid-1960's , blacks demanded that they be provided 

with equal access to these larger, better-paying projects. In 

response, on June 1, 1970, the Department of Labor issued the 

Washington P l a n . I n  adopting the Plan, the Department j.ound 

that:

[I ]t is apparent that minority workers . . . 
have been prevented from fully participating 
in the construction trades. This exclusion 
is due in great measure to the special nature 
of the employment practices in the construc­
tion industry where contractors and subcon­
tractors rely on construction craft unionsas 
their prime or sole labor source. Collective 
bargaining agreements and/or established cus­
tom between construction contractors and sub­
contractors and unions frequently provide 
for, or result in, exclusive hiring 
halls . . . .  As a result of these hiring_ 
arrangements, referral by the union is a vir­
tual necessity for obtaining employment in 
the union construction projects. Minorities 
often have not gained admittance into member­
ship of certain unions and apprenticeship 
programs, and, thus, have not been referred 
for employment. 41 C.F.R. § 60-5.10 (1974).

To remedy the persistent exclusion of black workers 

from commercial construction projects, the Washington Plan sec

2/ 41 C.F.R. 60-5 ( 1974 ) .

4



forth target goals for minority participation at federal con­

struction sites. It required contractors to employ certain num­

bers of black workers in each of the construction trades. These 

hiring goals were set forth in terms of ranges. For instance, 

for 1973-74, a year before the filing of this lawsuit, the Plan 

set the following targets for the employment of minorities at 

federal construction sites: 35-43 percent of the ironworkers; 

35-42 percent of the painters and paperhangers; 25-31 percent of 

the sheet metal workers; 34-40 percent of the lathers; 24-30 per­

cent of the boilermakers; and 28-34 percent of the electricians.

As a means of ending pervasive discrimination in the

construction trade, the Washington Plan suffered from two

deficiencies. First, it did not apply to non-federal work sites,

Second, despite the Plan's recognition of the discriminatory

effect of the union hiring hall system, it did not require the

lowering of barriers that had prevented black workers from

entering into apprenticeship programs and obtaining union member- 
3 /ship.— Instead, it placed the onus on contractors to hire 

minority workers. Thus, while the Plan acknowledged the history

3/ Appellant International states that the Washington Plan
exempted rodmen from its hiring goals because a sufficient per­
centage (39.5 percent) of blacks were employed in this trade. 
(International's Brief, at 19.) This argument fails to note that 
this case involves discrimination in the admittance of blacks to 
union membership, not discrimination in the hiring of blacks by 
contractors. Indeed, the substantially larger number of blacks 
among the non-union rodmen indicates that discrimination has 
occurred with respect to the granting of union membership.

5



of discrimination in the construction trade and enabled blacks to 

obtain employment at federal construction projects, it did not 

attack the root cause of the continued exclusion of blacks from 

better, higher-paying jobs in the industry: exclusive union hir­

ing halls.

The problem of the union hiring hall system was 

addressed by a number of class action suits, including this case, 

which were brought by black construction workers in the mid- 

1970s. These suits charged that discriminatory barriers to union 

membership, in combination with exclusive union hiring halls 

established pursuant to collective bargaining agreements, ren­

dered the unions and contractor associations jointly liable for 

violations of Section 1981 and Title VII. In all the other 

cases, the black workers obtained most, if not all, the relief 

they sought. For instance, by bringing class action lawsuits, 

black bricklayers, electricians, carpenters, and sheet metal 

workers were all able to remove arbitrary barriers to their entry

into white-dominated unions and, thereby, to obtain access for
4 /the first time to higher-paying construction jobs.-

4/ See Payton, Redressing the Exclusion of and
Discrimination Against Black Workers in the Skilled Construction 
Trades: The Approach of the Washington Lawyers' Committee for 
Civil Rights Under Law," 4 Yearbook of Construction Articles, 
1397, 1416-1418 (1985) (hereinafter cited as Discrimination 
Against Black Workers).

6



In one of those cases, which presented facts very simi­

lar to those presented here, black sheet metal workers charged 

several defendants, including the local and international unions,

a contractors' organization, and joint apprenticeship committee,
5/with discriminating against blacks in union membership.— During 

the course of that suit, the black workers sought a preliminary 

injunction to prevent the use of discriminatory criteria to 

select new apprentices. In particular, the black workers chal­

lenged three aspects of the program's selection process: (1) high 

school diploma requirement; (2) an arrest record inquiry; and 

(3) subjective personal interview. Reynolds v. Sheet Metal 

Workers, Local 102, 498 F. Supp. 952, 960-61 (D.D.C. 1980), 

aff’d , 702 F.2d 221 (D.C. Cir. 1981). They claimed these selec­

tion criteria were not job-related and served as knock-out provi­

sions that had a disproportionate impact on black applicants to 

the program. Id.

Even though the percentage of blacks in the apprentice­

ship program (26 percent) was identical to the percentage of 

blacks in the population as a whole, the District Court ruled 

that, based on statistical evidence offered by the plaintiffs 

showing that blacks constituted approximately 40-45 percent of 

the relevant labor pool for sheet metal workers, the plaintiffs 

had a good chance of winning on the merits with respect to the

5/ See id., at 1426-1429.

7



issue of whether the selection criteria for the apprenticeship 

orograra violated Title VII and Section 1981. Id.* r at 970. ihe 

District Court, therefore, granted the preliminary injunction, 

id., at 974, and this Court affirmed. Reynolds v. Sheet. Me t_al 

Workers, Local 102, 702 F. 2d 221 (D.C. Cir. 1981).

Subsequently, the parties settled the underlying class 

action suit by entering into a consent decree. In that decree, 

the union agreed that apprentice vacancies were to be advertised 

in a manner likely to reach eligible blacks and that blacks would 

constitute at least 42 percent of those accepted into the appren­

ticeship program. Discrimination against blacks during the 

apprenticeship program was addressed by a provision that required 

at least 42 percent of the program's graduates to be black. 

Finally, in response to the union's discrimination in the direct 

admission of journeymen, the sheet metal union agreed that at 

least 42 percent of the individuals admitted, who did not go 

through the apprenticeship program, should be black.

Other settlements entered into between black workers 

and unions contained provisions similar to those included in the 

sheet metal workers settlement. For instance, when b±ack workers 

challenged the selection criteria for the electricians union's 

apprenticeship program, they were able to reach a settlement that

6/ Discrimination Against Black Workers, at 142/ 1428.

8



not only removed discriminatory selection criteria like those 

involved in Reynolds, but also established goals for the partici­

pation of blacks in the union.—  ̂ A similar settlement was also

reached between a class of black workers and the carpenters'
8/union.-

The present case therefore must be seen as simply 

another example of black construction workers seeking to end a 

long history of discrimination by challenging barriers to member­

ship in a construction union. As shown below, the District Court 

found the same type of discrimination here as was found in the 

other cases and adopted analogous forms of relief to remedy that 

discr imi nat ion.

B . The Suit by Black Hodmen

Six black rodmen brought this suit under Section 1981 

and Title VII on October 21, 1975. They sued on their own behalf 

and on behalf of a class of similarly situated plaintiffs. In 

particular, the plaintiffs charged that the defendants violated 

the law by: (1) denying blacks equal employment opportunities in 

the rodmen trade; (2) preventing blacks from obtaining membership 

in the rodmen union; and (3) restricting black participation in 

the Apprenticeship Program for Hodmen's Local 201 on the basis of

7/ Id. at 1422-1424.

8/ Id. at 1424-26.

9



race. (Findings, If 7.) The plaintiffs sought injunctive relief,
9 /back pay and attorney's fees.— (Findings, Iflf 1 and 7.)

1. The Collective Bargaining Agreement

The rodmen trade involves the handling and placement of 

the steel rods used to reinforce concrete and other building 

materials. (Findings, 1! 26.) In Washington, D.C., a rodman 

obtains work by referrals from the Local 201 union hall in accor­

dance with the provisions of a collective bargaining agreement 

entered into between the union and the contractor's association 

(CCC). As the District Court found, Local 201 acts as an 

"employment agency" for contractors who need rodmen. (Findings,

If 46. )

The collective bargaining agreement established a pref­

erential system for the hiring of rodmen. This preference for 

union members was provided by giving first choice as to jobs and 

overtime to class A or B journeymen workers. To obtain Class A 

status, a worker must be a member of Local 201. Class B workers 

are "travelling members" of associated rodmens' unions located in 

other geographical areas of this country. Non-union workers were 

placed in a class D ("permit workers").—  ̂ (Findings, 48-49.)

9/ In March of 1978, an amended complaint was filed adding
two additional plaintiffs.

10/ Although the collective bargaining agreement refers to
Class C worker, as a practical matter, this classification has 
never been used. (Findings, 52.)

10



These permit workers were always the last to be hired and the 

first to be fired. Thus, under the collective bargaining agree­

ment, union membership constituted an economically valuable sta­

tus. (Findings, 1HI 57, 58, 59 and 109.)

Local 201 has been historically a "white's only" union 

For instance, in 1967, only four of the union's more than two 

hundred active members were black. (Findings, 11 63.) By 1971, 

only six percent of the union's active membership was black. 

(Findings, 11 64.) During 1970 to 1975, however, blacks always 

constituted between 44 to 60 percent of the permit workers. 

Clearly, at all relevant times prior to the filing of this law­

suit, a disproportionate number of blacks were forced to work in 

the inferior status of permit worker, and were thus denied the 

security and higher pay provided their white counterparts that 

were members of- the union.

2. Discriminatory Barriers to Union Membership

Despite the large number of blacks seeking employment 

in the rodman trade during the late 1960s and early 1970s, Local 

201 remained white by erecting a series of barriers to black mem 

bership. The nature of the discriminatory barriers to union mem 

bership differed depending on the time period involved.

Before February 1, 1971, the right to take the journey 

man examination, which was and is a prerequisite to union



membership, could be obtained in only two ways. First, an appli­

cant between the ages of 18 and 30 who had a high school diploma 

could complete the apprenticeship program. Second, a rodman 

could take the journeyman examination by amassing an unspecified 

amount of experience and obtaining the discretionary approval of 

the union's executive committee. (Findings, It 34.)

From February 1, 1971 to June 1971, there occurred what 

has been called the "open period." During this four-month 

period, although the apprenticeship program remained in place, 

any rodman with two years experience could take the journeyman 

exam. (Findings, 11 34.) Blacks, however, failed the exam at 

twice the rate of whites. (Findings, It 76.)

After June 1971, the Union imposed new barriers to tak­

ing the exam. Workers between 18 and 30 years old with a high 

school diploma could obtain union membership by successfully 

completing the apprenticeship program. (Findings, U 37.)

Workers over thirty years of age (with or without a high school 

diploma) were required to take a two-year training course no mat­

ter how long they had worked as a rodman. (Findings, II 42.) The 

requirement that older permit workers seeking union membership 

participate in the two year training program resulted in the 

absurd situation that some rodmen, who worked as foremen, 

subforeman or supervisor, were required to attend classes on how 

to do the very jobs in which they were supervising others. 

(Findings, Hit 13, 14 and 17.)

12



3. The District Court's Findings

Barriers to the Examination. The trial court found 

that at all relevant times prior to the filing of this lawsuit, 

the barriers to taking the journeyman exam excluded a dispropor­

tionate number of blacks from obtaining union membership. (Find­

ings, 11 82.) In reaching this conclusion, the trial court 

accepted the expert testimony of plaintiffs' expert witness with 

respect to the number of blacks that would have been "likely 

examinees" absent these barriers.

The Court determined that the pool of "li 

examinees" included rodmen with at least two years 

(Findings, HH 67-70.) The court then found that, p 

February 1, 1971, 55.8 percent of the eligible whit 

examined, while only 15.9 percent of the qualified 

allowed to take the membership exam. (Findings, U 

even during the "open period," when any rodman with 

experience was eligible to take the exam, blacks fa 

at a rate twice the rate of whites. Specifically, 

white examinees passed, while only 35.3 percent of 

passed the exam. (Findings, U 76.)

kely

experience.

r ior to

es were

blacks were

72. ) Further

two years

i led the exam

70.6 percent

the blacks

The trial court bifurcated its findings with respect to 

the period from June 13, 1971 to October 21, 1975. From June 13, 

1971 to October 21, 1972, approximately 33 percent of the quali­

fied whites, but only 9 percent of blacks were selected to take

13



the journeyman examination. (Findings, U 79.) From October 22,

1972 to October 21, 1975 (the date 

percent of the whites, but only 17 

applied were permitted to take the 

( Findings , 11 80 . )

this lawsuit was filed), 33 

percent of the blacks that 

journeyman examination.

The District Court found that, for each of these time 

periods, there was a very small probability that the large dis­

parity in the percentage of black and white rodmen selected to 

take the exam was due to chance. For the period prior to 

February 1, 1971, the District Court found that the probabilities 

were one in a million that non-discriminatory factors led to the 

different rates in the selection of whites and blacks to take the 

exam. (Findings, II 73.) This translates into a standard devia­

tion of 5.62, a figure well in excess of the level of statistical 

significance generally required in disparate impact cases. 

(Findings, 1111 73-74 .)

With respect to the open period (February to June 

1971), the probability that chance caused the different pass 

rates was found to be slightly less than one in forty, or 2.25 

standard deviations. (Findings, H 77.) Finally, for the period 

from June 13, 1971 to October 21, 1975, the Court found that the 

difference between the percentage of qualified blacks and whites 

selected to take the exam ranged from 2.96 to 3.4 standard devia­

tions. (Findings, UU 79-80.)

14



Thus, the trial court found that the plaintiffs had 

established their prima facie case that, at all times during the 

four-and-one-half years prior to the filing of this suit, the 

union's criteria for selecting individuals to take the journeyman 

exam, and the exam itself, violated Title VII owing to the dis­

proportionate impact on black applicants for union membership.— ' 

(Findings, U1f 81 and 82.) This pr ima facie case was not rebutted 

by the defendant. As the trial court found, "no examination 

given by Local 201 has even been shown to be a valid predictor of 

job performance." (Findings, 1! 31.)

The Apprenticeship Program. The trial court also ruled

that the selection criteria for the Apprenticeship Program were

discriminatory. In this regard, on the basis of a "new entrant"
1 0 /statistical model developed by the plaintiffs' expert,—  the

11/ Under Title VII, plaintiffs are entitled to relief when
they demonstrate that selection criteria, although facially neu­
tral, have a "disproportionate impact" on minority workers. See, 
e .q ., Connecticut v. Teal, 457 U.S. 440, 447 (1982), citing 
Griggs v. Duke Power Co.. 401 U.S. 424, 431 (1971) (Congress 
enacted Title VII so as to require "the removal of artificial, 
abitrary, and unnecessary barriers" to employment and profes­
sional advancement that have been historically encountered by 
women and blacks).

12/ Plainti 
tistical model be 
cants to the appr 
tistical approach 
conclusion with r 
for the Apprentic 
stituted 42.2 per 
Fact, 11 93 . )

ffs' expert was required t 
cause the union did not ke 
enticeship program. He al 
, the "commuter model", to 
espect to the number of bl 
eship Program. This model 
cent of the relevant labor

o construct this sta- 
ep records of appli- 
so used another sta- 
corroborate his 

acks likely to apply 
showed the black con- 
pool. (Findings of

15



District Court determined that the relevant labor pool for appli­

cants to the Apprenticeship Program was 45.1 percent black, from 

1970 to 1979. (Findings, H 93.) Blacks, however, only consti­

tuted 25.1 percent of the apprentices during this same period. 

(Findings, II 93.) The Court found, therefore, that the differ­

ence between the expected rates of black participation and the 

actual rate of selection to the Apprenticeship Program ranged 

from 6.27 to 7.28 standard deviations from the norm.

The defendants did not rebut this prima facie case.

The Court found that a high school diploma is not necessary in 

order to perform the work of a journeyman rodman. (Findings,

11 95.) It also ruled that the defendant had failed to demon­

strate that any error in the plaintiff's statistical method 

caused the "new entrant” approach not to be statistically valid. 

(Findings, II 96.) Just as in Reynolds v. Sheet Metal Workers 

Local 102, 498 F. Supp. at 970, the Court concluded that the high 

school diploma requirement was not job-related and had a dispro­

portionate impact on blacks.

The Training Program. Finally, the Court found that 

the Training Program served as "an illegal detour" to union mem­

bership. (Findings, H 103.) The Court stated, "[i]n short, the 

defendants have created two racially distinct 'tracts' leading to 

the journeyman examination: a predominately white apprenticeship 

'tract' and a predominately black trainee 'tract.'" The trainee

-  16  -



"tract" was found to be a signifcantly less effective means of 

qualifying to take the examination. The Court concluded: "the 

bifurcation of the pool of experienced workers according to age, 

and the creation of two parallel 'preexamination' [sic] programs, 

has prima facie discriminated against black rodmen, and has 

unlawfully denied them journeyman membership in the union and 

placement in the top referral group under the collective bargain­

ing agreement." (Findings, U 108.)

Liability of the International and CCC. The District 

Court ruled that the Local 201, the Apprenticeship Committee, and 

the Training Program had violated Title VII by establishing 

selection criteria that, although facially neutral, had a dispro­

portionate impact on blacks. The Court found the International 

liable on the ground that it had the right to control the Local 

under its constitution and had in fact exercised significant con­

trol over Local's actions with respect to the collective bargain­

ing agreement that established the discriminatory referral sys­

tem, as well as the administration of the Apprenticeship Program, 

the Training Programs, and the Union exam. (Findings, HH 121, 

130, 133, and 134.) With regard to the liability of CCC, the 

Court ruled that CCC was liable because it appointed representa­

tives to serve on the Apprenticeship Committee (Findings, U 141) 

and because CCC: "(1) was aware that the referral clause had a 

discriminatory impact; (2) took notice of such discrimination in 

its collective bargaining; (3) ultimately agreed to retention of

17



the clause; and (4) thus, knowingly participated in continuation

of racial discrimination." (Findings, U 144.)

Discriminatory Treatment. Besides finding that all the 

defendants had participated in practices that had a 

"discriminatory impact" on the plaintiffs, the District Court 

also ruled that all the defendants had subjected the plaintiffs 

to "disparate treatment." (Conclusions of Law, If 17.) The Court 

held that the statistical disparities -- in and of themselves -- 

established both the fact of disparate treatment and racial ani­

mus. (Conclusions of Law, 11 17.) The Court found further sup­

port for its finding of racial animus in specific instances of 

discrimination against the named plaintiffs, such as:

(1) refusal of admittance to the Apprenticeship Program and 

Training Program; (2) discrimination in job referrals, lay-offs 

and overtime; and (3) acts of retaliation for bringing the law 

suit in question. (Conclusions of Law, HH 19-21.) Thus, it 

found that the defendants had violated both Title VII and Section 
1981.— 7

13/ This finding that the defendants' actions were
motivated by racial animus satisfies the requirement under 
Section 1981, and in "disparate treatment' cases under Title VII, 
that a plaintiff prove "purposeful discrimination. See General 
Building Contractors Association v. Pennsylvania, 458 U.S. 375, 
391 (1982) (Section 1981 requires proof of "purposeful discrimi­
nation"); Goodman v. Lucas Steel Co., No. 85-1628; 85-210, slip 
op. at 7 (June 19, 1987) (although no proof for discriminatory 
intent is necessary under Title VII when "disparate impart" is 
alleged, intentional racial discrimination is an element of the 
offense in "disparate treatment" cases). See also Teamsters v. 
United States. 431 U.S. 324, 335 n.15 (1977).

-  18



Remedial Order. On the basis of these findings, the 

Court issued an order which (1) enjoined further discrimination 

by the defendants; (2) directed that the named plaintiffs who had 

been excluded from union membership be admitted forthwith;

(3) established procedures for testing and admission of class 

members to the Union; and (4) prescribed job referral procedures 

and statistical reporting requirements regarding referrals. 

(District Court's Amended Order, HH I, II and III.)

ARGUMENT

The District Court's findings that all the defendants 

jointly engaged in a pattern of behavior that discriminated 

against black rodmen seeking entry into the rodmen's union was 

based on substantial evidence in the record and a straightforward 

application of well-settled legal principles. The Appellants' 

briefs in this case basically seek to relitigate the District 

Court's factual findings. As the Appellees' Brief shows, the 

detailed findings of the Court below are not clearly erroneous, 

and, indeed, are amply supported by the evidence in the record. 

Amicus does not propose to repeat that showing here. Instead, 

the purpose of this Brief is to emphasize that, as to the princi­

pal claims of error advanced by appellant, this case falls 

squarely within the mainstream of applicable precedents under 

Title VII and Section 1981. Affirmance does not require this 

Court to address novel questions or extend existing law.

19



Moreover, as shown above, the District Court's findings 

are consistent with the conclusions reached by the Department of 

Labor and courts in this Circuit when addressing discrimination 

claims by blacks against trade unions in the Washington, D.C. 

construction industry. The District Court's remedial order is 

also consistent with the remedies provided to black workers in 

these analogous situations. Indeed, the appropriateness of the 

remedies provided is highlighted by the fact that its terms are 

similar to the provisions of the consent decrees agreed to by the 

sheet metal workers' union, the electricians' union and the car­

penters' unions. See pages 5-7, supra.

Every other construction union in the Washington, D.C. 

area has voluntarily agreed to open its doors to blacks on terms 

similar to those imposed by the District Court in this case. 

Nevertheless, the rodmens' union still refuses to admit the 

discriminatory nature of their past practices and make amends. 

Thus, twelve years after the filing of this suit, black rodmen 

are still unsure whether they will receive relief from the dis­

crimination they suffered. The time has come for black rodmen to 

be granted equal access to union membership. There is no reason 

to overturn the District Court's careful application of the rele­

vant law to the discriminatory practices engaged in by all the 
defendants.

20



I. THE DISTRICT COURT DID NOT ERR WHEN IT FOUND THAT 
THE PLAINTIFFS' STATISTICAL EVIDENCE ESTABLISHED 
A PRIMA FACIE CASE OF DISCRIMINATION._____________

All the appellants argue that the District Court erred 

in accepting the plaintiffs' statistical evidence. (Local's 

Brief, at 61-87; International's Brief, at 33-35.) In effect, 

appellants ask this Court to re-evaluate de novo the evidence 

presented to the District Court. This approach ignores recent 

precendents that require an appellate court to apply the clearly 

erroneous standard of review when determining the appropriateness 

of the admission of statistical evidence into the evidence.

It is well-established that when an action is brought 

under Title VII or Section 1981, a plaintiff may make a prima 

facie case of racial discrimination by presenting statistical 

evidence showing that facially neutral selection criteria never­

theless have a disparate impact on minority groups.—  ̂ Indeed, 

the Supreme Court has consistently upheld the appropriateness of

14/ See, e .q ., Hazelwood School District v. United States,
433 U .S . 299, 307-308 (1977) ("Where gross statis 
disparities can be shown, they alone in a proper 
pr ima facie proof of a pattern or practice of dis 
Seqar v. Smith. 738 F.2d 1249, 1278-79 (D.C. Cir. 
denied, 471 U.S. 1115 (1985) ("[wjhen a plaintiff 
focuses on the appropriate labor pool and generat 
[a disparity] at a statistically significant leve 
evidence alone will be sufficent to support an in 
crimination); Reynolds v. Sheet Metal Workers Loc 
221, 225 (D.C. Cir. 1981) (plaintiff's statistics 
mitted them to "establish a pr ima facie case that 
tice selection procedures had [a] racially dispar

t ical 
case constitute 
crimination");
1984), cert.
's methodology 
es evidence of 
1," this 
ference of dis- 
al 102, 702 F .2d
1 evidence per- 
. . . appren-

ate impact).

21



using of statistical evidence to prove discrimination in Title 

VII cases. See, e.q ., Bazemore v. Friday, 106 S. Ct. 3000, 3009 

(1986); Teamsters v. United States, 431 U.S. 324, 339 (1977). In 

order to establish a prima facie case of discrimination using 

statistical evidence, a plaintiff must show a disparity in selec­

tion rate of at least 1.96 standard deviations. Palmer v.

Schultz, 815 F .2d 84, 99 (D.C. Cir. 1987). However, if the dis­

parity falls within 1.65 and 1.96 standard deviations, the trial 

courts may consider it in conjunction with other evidence to 

determine whether unlawful discrimination occurred. Id. at 97 

n.10, citing Craik v. Minnesota State University Board., 731 F.2d 

465, 476 n .13 (8th Cir. 1984).

The District Court's decision in this case comports 

completely with these well-established principles. Plaintiffs' 

introduced valid and probative statistical evidence showing that, 

at all relevant times, the disparity between the selection of 

eligible blacks and whites exceeded a standard deviation of 2.25 

-- a figure well in excess of Palmer's 1.96 figure. Indeed, the 

plaintiffs' statistical findings are almost identical to those 

upheld by this Court in Reynolds v. Sheet Metal Workers, Local 

102, 702 F.2d at 225. The District Court, moreover, also relied 

on specific instances of discriminatory treatment to bolster its 

finding of purposeful racial discrimination by the defendants. 

There is no doubt that District Court correctly found that the 

plainiffs had established their pr ima facie case of 

discr imination.

2 2



e case,Once a plaintiff has established a prima faci 

the burden then shifts to the defendant to rebut the plaintiffs 

statistical evidence. The defendant might rebut the statistical 

evidence by demonstrating that the statistical disparity nad a 

legitimate, non-discriminatory explanation. Palmer v. Shultz, 

815 F.2d 84, 91 n.6 (D.C. Cir. 1987), citing Segar, 738 F.2d at 

j_27g Alternatively, the derendant might rebut the piain

tiff's statistical case by demonstrating analytical flaws and/or 

errors or omissions in the data. Anderson v.— Group 

Hospitalization. Inc., No. 85-6107, slip op. at 4 (D.C. Cir., 

June 12, 1987), quoting Schlei & Grossman, Employment 

Discrimination Law 1368 (2d Ed. 1983).

The District Court's determination of whether the 

defendant has adequately rebutted the plaintiff's statistical 

case is subject to the clearly erroneous standard of review. 

Palmer v. Schultz, 815 F.2d, at 100, citing Bazempre_y . Frida_y, 

106 S. Ct. at 3009 (1986). Thus, the defendant does not carry 

its burden simply by pointing out "imperfections in the data on 

which the plaintiffs' analysis depends, or the omission of possi­

ble explanatory factors from the plaintiffs' statistical study.

1 5/ The District Court's findings that school diploma
"requirement, the Training Program, and the^union exam did not 
have a legitimate non-discriminatory function are undoubtedly 
correct. Several of the named plaintiffs, who had put m  over 
10 thousand hours on the job, served as supervisors without 
having any of these supposed qualifications. (Findings, Ini 
and 17.)

23



Palmer v. Schultz, 815 F.2d, at 100. As the Supreme Court 

stated: "While the omission of variables from a regression analy­

sis may render the analysis less probative than it otherwise 

might be, . . .  as long as the court may fairly conclude that, in 

light of all the evidence, that it is more likely than not that 

impermissable discrimination exists, the plaintiff is entitled to 

prevail." Brazemore v. Friday, 106 S. Ct., at 3009. Here, 

appellants did not attempt to show any nondiscriminatory 

explanations for the disparity. Appellants' quarrels with plain­

tiffs' statistical methodology do not satisfy the clearly 

erroneous standard. The lower court's findings must be upheld.

II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION 
IN CERTIFYING THE CLASSES________________________

Appellants argue that the District Court improperly 

certified the named plaintiffs as representatives of the class of 

black rodmen that had been excluded from membership in the union 

or discouraged from seeking membership because of their race.

For the most part, Local 201 seeks to challenge the District 

Court's class certification on the ground that it is not sup­

ported by the record. (Local's Brief, at 39-58.) At bottom, 

this argument is based on the premise that the named plaintiffs 

have not suffered injuries that are typical of the class. This 

contention is without support in the case law or the record.



In East Texas Motor Freight Systems, Inc, v. Rodriquez,

431 U.S. 395, 405-405 (1977), the Supreme Court stated that, 

"suits alleging racial or ethnic discrimination are often by 

their very nature class suits, involving classwide wrongs." In 

determining the appropriateness of a class suit under Title VII 

and/or Section 1981, the courts have focused on whether the class 

suit challenges "rules or policies of general application" or 

"individual employment decisions."— 7 Where, as here, the prac­

tices under attack involve a generalized testing requirement and 

training programs, there is simply no doubt that class treatment 

is appropriate. See Schlei and Grossman, Employment 

Discrimination Law, 1232, n.34 (1983) (Rodriguez court was refer­

ring to adverse impact cases attacking general practices, such as 

tests). Thus, certification of a class in cases, like the one at 

bar, where a union's generally applied selection criteria are

16/ In many cases, courts have approved class actions when
workers challenged discriminatory policies and general practices 
as violations of Title VII and Section 1981. See, e■a ,, Griff in 
v . Carl in, 755 F.2d 1516 (11th Cir. 1985); Reynolds v. Sheet 
Metal Workers, Local 102, 702 F.2d 221 (D.C. Cir. 1981). Cf. 
Abercrombie v. Bi-Lo, Inc., 21 FEP Cas 1252, 1262-63 (D.S.C.
1979) (class action is appropriate when it challenges general 
policies, rather than individual employment decisions); Valentino 
v. United States^Postal Service, 16 FEP Cas 242, 244 (D.D.C.
1977) (if plaintiff was attacking Postal Service's employment 
practices, class action would be appropriate). See also General 
Telephone Co. v. Falcon. 457 U.S. 147, 159 n.15 (1982) ("Signifi­
cant proof that an employer operated under a general policy of 
discrimination. . . could justify a class of both applicants and 
employees if the discrimination manifested itself in hiring and 
promotion practices in the same general fashion") (emphasis 
added).

25



being challenged by injured black workers falls squarely within 

the ambit of well-established case law.

The District Court has broad discretion in determining 

whether a suit should proceed as a class action. The review of 

the appellate court is limited to determining whether the Dis­

trict Court abused that discretion. Fink v. National Savings & 

Trust Co., 772 F .2d 951, 960 (D.C. Cir. 1985). The issue is sim­

ply whether the facts in the record provide some support for the 

district court's conclusion. See Postow v. OBA Federal Savings & 

Loan Association, 627 F.2d 1370, 1380 n.24 (D.C. Cir. 1980).

Here, the record contains ample support for the District Court's 
class certification.

The appellants' principal argument that the named 

plaintiffs' claims of discrimination are not typical of the class 

utterly fails to recognize the character of the District Court's 

ruling. The Court found that the Apprenticeship Program, the 

Training Program, and the exam requirement discriminated against 

actual and potential black applicants by erecting barriers to 

their obtaining union membership. In some instances, the Court 

found that these barriers served to exclude blacks. In others, 

it concluded that these practices violate the law by discouraging 
blacks from obtaining union membership.

All the named plaintiffs were either excluded or dis­

couraged from obtaining union membership by one or more of these

26



three discriminatory barriers. First, named plaintiffs Bellamy, 

Lewis, Kirkland and Tucker all worked out of Local 201 when they 

were under 31. Since all these plaintiffs lacked high school 

diplomas, each of them was excluded for a period of time from 

obtaining union membership by the Apprenticeship Program's high 

school diploma requirement. (Findings, HU 14, 15, 16, and 17.) 

And plaintiff Tucker has never been admitted to the Training Pro­

gram and, therefore, this barrier actually excluded him from 

union membership. (Findings, U 16.) Second, plaintiffs Kirkland 

and Bellamy, who failed the discriminatory membership exam during 

the open period and had to take the Training Program to have a 

second chance at union membership, have claims typical of those 

blacks who were excluded and/or delayed from obtaining union mem­

bership by the exam requirement. (Findings, UU 14 and 17.)

Third, plaintiffs Berger, Jackson, Kirkland and Bellamy, even 

though they had extensive work experience, were discouraged from 

obtaining union membership by the delays associated with the 

Training program. (Findings, 1111 12,13, 14 and 17.) Finally, 

plaintiffs Simmons and McMilliam were, in fact, discouraged from 

entering the Union's Apprenticeship Program. (Findings, UU 18 
and 19.)

t ion

these

In light of these facts, 

that the trial court correctly 

named plaintiffs were typical

there can be no serious ques- 

found that the claims of 

of the class members.—  ̂ The

12/ See e ■q ■, De la Fuente v. Stokely-Van Camp, Inc., 713
S • 2 d 225, 232 ( /1 h Cir. 1985) (similarity between, lecal theories 
controls even in the face of different facts).

27



District Court did not abuse its discretion when certifying the 

plaintiff classes.

III. THE DEFENDANTS' VIOLATION OF TITLE VII AND 
SECTION 1981 OCCURRED WITHIN THE APPLICABLE 
STATUTE OF LIMITATIONS._______________________

Local 201 asserts that the District Court failed to 

apply the appropriate statutes of limitation under Title VII and 

Section 1981 when it permitted the named plaintiffs to bring this 

suit. (Local's Brief, at 51-54.) The Local's argument ignores 

the District Court's factual findings, as well as established 

precedent in this Circuit, which unquestionably places this case 

in" the class of true "continuing violation" cases.

A "continuing violation" is "a series of related acts, 

one or more of which falls within the limitation period, or the 

maintenance of a discriminatory system both before and during the 

statutory period." Milton v. Weinberger, 645 F.2d 1070, 1075 

(D.C. Cir. 1981), quoting Schlei & Grossman, Employment 

Discrimination Law 232 [Supp. 1979]; Valantino v. United States 

Postal Service, 674 F.2d 56, 65 (D.C. Cir. 1982). This Court has 

traditionally applied the continuing violation principle to 

cases, like the one at bar, where established policies and prac­

tices have discriminated against a certain class of workers on an 

ongoing basis. McKenzie v. Sawyer, 684 F.2d 62, 72-73 (D.C. Cir. 

1982); Shehadeh v. Chesapeake and Potomac Telephone Co., 595 F.2d 

711, 724-25 (D.C. Cir. 1978) .

28



This Court has also held that, in cases involving 

established practices and policies that have a discriminatory 

impact, "discrimination is not limited to the isolated events." 

Laffev v. Northwestern Airlines, Inc., 567 F.2d 429, 473 (D.C.

Cir. 1976), cert. denied., 434 U.S. 1086 (1978). In these cases, 

therefore, the ongoing program of discrimination, rather than any 

of its particular manifestations, is the focus of the court's 

inquiry. When determining the existence of discrimination in vio­

lation of Title VII and Section 1981. Shehadeh v. Chesapeake and 

Potomac Telephone Co., 595 F.2d at 724-25. Thus, in this Cir­

cuit, when a plaintiff relies upon a "continuing violation" the­

ory, suit may be brought on acts occurring before the limitations 

period when the underlying discriminatory policy remains in 

effect during the actionable period. See Thompson v. Sawyer, 678 

F .2d 257, 289 (D.C. Cir. 1982), aff'd sub nom,, Thompson v. 

Kennickell, 797 F.2d 1015 (D.C. Cir. 1986), cert. denied, 109 S. 

Ct. 1347 (1987). Cf. Milton v. Weinberger, 645 F.2d 1070, 1076 

(D.C. Cir. 1981) (case involved specific instances of discrimina­

tion that could not be causally connected to an unlawful program 

of discrimination).

Since plaintiffs challenge longstanding practices in 

the selection of union members, which were in effect up to the 

filing of this law suit, this case undoubtably falls into the 

class of matters where the "continuing violation" theory applies. 

Thus, it was appropriate for the District Court to consider the

29



discriminatory effects of this ongoing practice during the period 

before and after the date of the limitations period date under 

Section 1981 and Title VII. There simply has been no error here. 

The Local's invitation to this Court to depart from its well- 

established precedent should be ignored.

IV. THE DISTRICT COURT CORRECTLY FOUND THE INTERNATIONAL
AND CCC LIABLE FOR THE DISCRIMINATORY BARRIERS TO 
TO UNION MEMBERSHIP.___________________________________

The International and CCC argue that the District Court 

erred when it found them jointly liable with the Local for the 

discriminatory barriers to entry into the Union. Although their 

principal dispute is with the District Court's factual findings, 

they also argue they were inappropriately found vicariously 

liable for the acts of the Local union. (International Brief, 

at 11-13; CCC Brief at 77-93.) Under Title VII, however, the 

case law unquestionably supports the District Court's finding of 

liability with respect to both the International and CCC on 

grounds that they violated their affirmative duty to root out and 

eliminate discriminatory practices by the Local. Further, with 

respect to Section 1981, this argument is based on the erroneous 

assumption that the District Court employed the theory of 

respondeat superior when imposing liability.

30



A. Under Applicable Case Law, The International 
is Liable for the Discriminatory Barriers 
to Union Membership.__________________ ________

It is well-established that an international union is

liable for the discriminatory acts of the local union whenever

there is a sufficent connection between the international union

and the discriminatory act. Howard v. International Molders and

Allied Workers Union, 799 F.2d 1546, 1548 (11th Cir.), cert.

denied, 106 S. Ct. 2902 (1986). When the record shows that the

international has the right to control the activities of the

local, the law places an affirmative duty on the international
18/union to police the locals' activities.—

Here, there is no doubt that the International had a 

duty to police the activities of the Local to prevent the perpet­

uation of past discrimination against black rodmen. As the Dis­

trict Court found, the International's constitution gave it the 

power to exercise complete control over all aspects of the 

Local's activities. And the International actually participated

18/ Myers v. Gilman Paper Coro,, 544 F.2d 837, 850 (5th
Cir.), mod i f i ed on other grounds, 556 F.2d 758 , cert, dismissed, 
434 U.S. 801 (1977) (labor organizations have affirmative duty to 
"prevent the perpetuation of past discrimination...."); Kaplan v ■ 
IATSE, 525 F .2d 1354 (9th Cir. 1975) (under Title VII, an 
international must scrutinize closely the practices of its local 
officials to reveal discriminatory acts or consequences);
Wheeler v. American Home Products Coro., 19 FEP Cas. 143, 146 
(N.D. Ga. 1979) (". . . Title VII places an affirmative_obiiga- 
tion upon umbrella labor organizations such as international 
unions to take reasonable steps to end discrimination . . . .").

31



in the Local's discriminatory activities in a number of ways.

For instance, it was instrumental in the establishment of the 

Apprenticeship Program, the Training Program and the 

implemetation of the membership exam. (Finding of Fact, HI 130- 

134.) Thus, the International misses the point when it argues 

that it should not be held liable under the principles of vicari­

ous liability. It simply fails to understand that liability was 

imposed here because it violated its own, well-established duty 

under Title VII to root out and correct discriminatory practices 

on the part of its local af f i 1 iates / The District Court did 

not err when it ruled that the International was liable for 

violating Title VII.

Nor did it err when finding the International liable 

under Section 1981. The rights embodied in this federal statu­

tory provision redress "a fundamental injury to the individual 

rights of a person." Goodman v. Lukens Steel Co., Nos. 85-1626; 

85-2010, slip op. at 4 (U.S. June 19, 1987). As this court has 

recognized, Section 1981 "provide[s] remedies for a broad range 

of actions that could be characterized as various state torts." 

Banks v. Chesapeake and Potomac Telephone, 802 F.2d 1416, 1421 

(D.C. Cir. 1985). Thus, it was appropriate for a District Court 

to look to common-law tort principals of joint liability when

19/ Indeed, most of the cases cited by the International
involve labor relations, not Title VII. See, e .g ., Carbon Fuel 
Co. v. United States Mine Workers, 444 U.S. 212 (1979).

32



imposing liability because CCC had been closely associated with 

the discriminatory practices of the Local and the International.

The District Court's finding that the International was 

liable under Section 1981 is supported by either of two 

well-established theories of common-law tort liability: 

respondeat superior or concerted action. First, in the circum­

stances, the International and Local had the type of princi- 

pal/agent relationship that under the common law would render the 

International liable for the acts of the Local. See Prosse_r_and 

Keeton on Torts, 501-502, 505-506 (5th ed. 1984). Second, with 

respect to concerted action, the International engaged in a com­

mon plan to discriminate when it permitted the Local to continue 

its discriminatory practices with respect to black rodmen after 

it became aware of this discrimination. (Findings, U 136.)

'Thus, the International's liability is not vicarious, but is 

imposed on the International for its direct participation in the 

establishment of the discriminatory barriers to union memberships 

and the perpetuation of the referral system.

3. The Court Below Properly Imposed 
Liability on CCC.__________ _

The District Court correctly held CCC liable under 

Title VII. Title VII imposes a duty on all secondary parties 

involved with discriminatory practices to inquire into and elimi­

nate discriminatory practices. Myers v. Gilman Paper Corp, 544

33



F.2d at 850 (both labor organizations and employers have an 

affirmative duty to prevent the perpetuation of past discrimina­

tion). The courts have imposed this duty on multiemployer bar­

gaining associations such as the CCC. For instance, one court 

found the local division of the National Electrical Contractors 

Association liable for discriminatory practices engaged in by the 

Joint Apprenticeship Committe of the Union with which it entered 

into a collective bargaining agreement. United States v. United 

Association of Journeymen & Apprentices, 364 F. Supp. 808 (D.

N.J. 1973). In another case, the court employed similar reason­

ing to deny a contractors' association's motion to dismiss where, 

like this case, the association operated an apprenticeship pro­

gram jointly with the union. Byrd v. Local Union No. 24 

International Brotherhood of Electrical Workers, 375 F. Supp.

545, 560-63 (D. Md. 1974). See also Macklin v. Soector Freight 

Sys., Inc., 478 F.2d 979, 889 (D.C. Cir. 1973), aff'd mem. 547 

F .2d 706 (D.C. Cir. 1977) (passivity at bargaining table between 

union and employer can constitute a violation of Title VII).

The District Court did not err when it found CCC liable 

under Section 1981. CCC's reliance on the the Supreme Court's 

decision in General Building Contractor Association, Inc, v. 

Pennsylvania, 458 U.S. 375 (1982), is inapposite. Although the 

General Building court ruled that the trial court had inappropri­

ately applied the theory of respondeat superior when finding the 

contractors association liable, id. at 375, nothing in the

34



opinion of the court disapproves the use of common law theories 

of tort liability to determine the liability of secondary parties 

for discriminatory practices under Section 1981. Indeed, the 

concurrence in that case specifically stated that the opinion of 

the court was based on the failure of the trial court to make the 

appropriate factual findings, and went on to instruct the plain­

tiffs that the court's opinion did not prevent them from 

"attempting to prove" the traditional elements of respondeat 

superior on remand. I_d. at 403-404 (1982) (O'Connor, J. concur­

ring.) Thus, contrary to the Appellants' claims, General 

Building does not preclude the application under Section 1981 of 

a respondeat superior theory of liability to a contractors asso­

ciation such as CCC.

Further, the District Court's decision did not rely 

upon the theory of respondeat superior when imposing liability on 

CCC. Instead, the District Court's ruling makes it abundantly 

clear that the imposition of liability on CCC resulted from its 

participation in, and control over, the Apprenticeship Program 

and referral system. (Conclusions of Law, 1HT 32.) The District 

Court was, in effect, applying a theory of common-law, joint 

tortfeasor liability, which imposes direct, not vicarious, 

liability on anyone associated with a common endeavor that

injures another 2 0 / In light of the judicial recognition that

20/ Prosser and Keeton on Torts, 322, 323 (5th Ed. 1984)
("All those who in pursuance of a common plan or design commit a

[Footnote continued next page]



Section 1981 claims are analogous to tort actions for personal 

injury, see Goodman v. Luken Steel, Nos. 85-1626; 85-2010, Slip 

opinion, at 4; Banks v. Chesapeake and Potomac Telephone Co..,

802 F .2d, at 1142, the District Court's finding that CCC was 

liable because of its knowing participation in the Union's 

discriminatory practice should be upheld as valid application of 

common-law tort principals to the analogous wrongs embodied in 

Section 1981. (Findings, H 144.)

V. THE DISTRICT COURT'S ORDER PROVIDED THE PLAINTIFFS WITH 
APPROPRIATE REMEDIES FOR PAST DISCRIMINATION.__________

As a last ditch effort to avoid making amends for their 

discriminatory practices, Appelants challenge the appropriateness 

of the District Court's remedial order. In particular, they com­

plain that the Amended Order exceeds the necessary relief by 

eliminating the training program and, thereby, permitting unqual­

ified individuals to enter the rodmen's union. (Local's Brief, 

at 120- 130.) These arguments are not supported by the case law 

or the facts.

The relief provided by the amended order to the injured 

class members is consistent with recent precedent addressing

[Footnote continued from preceding page]
tortious act, actively take part in it, or furthers it by 
cooperation or request, or who lend aid or encouragement to the
wrongdoer, or ratify and adopt the wrongdoers' acts done_tor
the i r bene f i t, are equally liable.") (Emphasis added).

36



similar issues that have arisen in other Title VII and Section 

1981 cases. For instance, in Local 28 of Sheet Metal Workers 

International Association v. EEOC, 106 S. Ct. 3019 (1986), the 

Supreme Court held that affirmative relief is "appropriate where 

an employer or a labor union has engaged in persistent or egre­

gious discrimination, or where necessary to dissipate the lin­

gering effects of pervasive discrimination." Id., at 3034. Such 

affirmative relief is appropriate even though it may benefit per­

sons who were not actual victims of discrimination." Id., at 

3035. Indeed, the relief provided here is perfectly consistent 

with the "broad discretion" courts enjoy under Title VII when 

exercising their equitable powers to fashion the most complete 

relief possible. Id., at 3045, citing, 118 Cong. Rec. 7168 

( 1972 ) .

Further, even though in Sheet Metal Workers the Supreme 

Court stated that a court cannot order a union to admit unquali­

fied individuals, id., at 3035, the amended order here has no 

such effect. The District court's original order required the 

Union to admit all class members that had worked at least 2150 

hours -- the time period used by the Union to select individuals 

to take the journeyman exam during the "open period." (Find­

ings, H 34.) After a stay was granted pending appeal, the par­

ties negotiated and filed an amended order, which increased the 

hourly prerequisite for taking the journeyman exam to 3,000 

hours. Thus, the amended order, as negotiated by the parties, is

37



more stringent than the original order and the Union's own stan­

dards for when selecting rodmen to take the journeyman exam dur­

ing the "open period." There is simply no question that the 

individuals that obtain membership through the operation of the 

order are qualified. And, while the barriers to Union membership 

created by the Apprenticeship Program and the Training Program 

are eliminated, referrals are limited to those individuals with 

proper training for a particular job. (Amended Order, U 111(c).) 

Thus, the District Court carefully "tailor[ed] its order to fit 

the nature of the violation it seeks to correct." Sheet Metal 

Workers, 106 S.Ct., at 3050. This type of careful balancing of 

interests is precisely the type of analysis the Supreme Court 

requires when a trial court issues a remedial order in a Title 

VII and Section 1981 case. Once again, the District Court did 

not err.

38



CONCLUSION

For the reasons set forth above, the judgment should be

af f irmed.

Respectfully submitted,

John Payton 
Thomas W. White 
Peter von Mehren

WILMER, CUTLER & PICKERING 
2445 M Street, N.W. 
Washington, D.C. 20037 
(202) 663-6000

Counsel for Amicus Curiae

July 10, 1987

39



CERTIFICATE OF SERVICE

I hereby certify that I have this 10th day of July,

1987 caused copies of the foregoing Motion of NAACP Legal Defense 

and Educational Fund, Inc. for Leave to File a Brief Amicus 

Curiae, and Brief Amicus Curiae, in Support of Appellees Berger, 

et al., to be served by first class mail, postage prepaid, to:

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

Sally M. Tedrow, Esq.
O'Donoghue & O'Donoghue 
4748 Wisconsin Avenue, N.W. 
Washington, D.C. 20016

Gary L. Lieber, Esq.
Porter, Wright, Morris & Arthur 
1233 20th Street, N.W.
Washington, D.C. 20036

Laurence E. Gold, Esq.
Connerton, Bernstein & Katz 
Suite 800
1899 L Street, N.W.
Washington, D.C. 20036

Victor VanBourg, Esq.
VanBourg, Weinburg, Roger & Rosenfeld 
875 Battery Street 
3rd Floor
San Francisco, California 94111

Peter A. von Mehren