                        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).

     
