Bernard v. Gulf Oil Corporation Appendix to Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit
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September 18, 1986

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Brief Collection, LDF Court Filings. Bernard v. Gulf Oil Corporation Appendix to Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit, 1986. 76b20ec2-c69a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6159ce67-d5f1-476f-8ee7-2574492cf59f/bernard-v-gulf-oil-corporation-appendix-to-petition-for-writ-of-certiorari-to-the-united-states-court-of-appeals-for-the-fifth-circuit. Accessed July 11, 2025.
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No. 89- In The Supreme Court of tt)e Mmteti ^>tate£ October Term , 1989 Wesley P. Bernard, et al, Petitioners, v. Gulf Oil Corporation, et al, Respondents. APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Ulysses Gene Thibodeaux Newman & Thibodeaux 1925 Enterprise Boulevard Lake Charles, LA 70601 (318) 439-1060 Stella Marie Morrison 1015 East Gulfway Dr. Port Arthur, TX 77640 (409) 985-9358 Julius LeVonne Chambers Judith Reed Eric Schnapper* NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street, 16th Floor New York, NY 10013 (212) 219-1900 Counsel for Petitioners * Attorney of Record PRESS CP BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 TABLE OF CONTENTS Page Decision of the United States Court of Appeals, Fifth Circuit Dec. 18, 1989 ............................................... la Decision of the United States Court of Appeals, Fifth Circuit March 22, 1988 45a Decision of the United States District Court for the Eastern District of Texas, Beaumont Division Sept. 1, 1988 135a Decision of the United States District Court for the Eastern District of Texas, Beaumont Division, Sept. 18, 1986 209a l a Wesley P. BERNARD, Elton Hayes, Rod ney Tizeno, Hence Brown, Doris Whit ley and Willie Johnson, Plaintiffs-Ap- pellants, v. GULF OIL CORP, et al, Defendants-Appellees, No. 88-6141. United States Court of Appeals, Fifth Circuit Dec. 18, 1989. Before BROWN, REAVLEY, and HIGGINBOTHAM, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: The case history is long, from 1967, when the first complaint was lodged with the EEOC, to this appeal, the third before this court. In 1976, six present and retired black employees at the Gulf Oil Corporation’s Port Arthur, Texas refinery filed this suit. The complaint alleged a variety of racially discriminatory practices in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In 1977, the district court dismissed the Title VII claims on procedural grounds, and granted summary judgment on the § 1981 claims (Bernard 2) This court reversed. 619 F.2d 459 (5th Cir. 1980) (en banc), aff’d 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981) {Bernard II) The case was tried in 1984. In 1986, the district court issued its opinion finding in favor of the defendants on all claims. 643 F.Supp. 1494 (E.D.Tex. 1986) {Bernard III). This court affirmed in part and vacated in part, remanding the case for further findings. 841 F»2d 547 (5th Cir.1988) {Bernard IV). On remand the district court again found for the defendants on all issues {Bernard V). On January 24, 1983, the district court provisionally certified a class of all blacks who had worked or applied for work at the refinery in union covered jobs at any time 2a after December 26, 1966. Pursuant to the order of the district court, written notification of the class action and certification was mailed in September 1983 to the members of the class. In April 1984, the district court modified that certification order to exclude a substantial number of the original class members, and this court upheld that modification. Bernard IV, 841 F.2d at 550. On remand plaintiffs requested that the former class members be notified of that change. The defendants opposed the motion, and the district judge denied it. The class appeals from the district court’s ruling in favor of the defendants and from the denial of the motion to notify former class members. The class contends that the Gulf seniority system is not bona fide, that Stipulation 29 was intentionally discriminatory, and that the tests used by Gulf to determine who was eligible for promotion were discriminatory because they had an adverse impact on blacks and were not sufficiently job related. In addition, 3a three individual plaintiffs, Mr. Brown, Mr. Hayes and Mr. Tizeno, appeal from the district court’s ruling that Gulf did not discriminate in not promoting them. We affirm because we are persuaded that the district court was not clearly erroneous in its determination that Stipulation 29 was not purposefully discriminatory and was justified by valid business reasons, the craft tests were sufficiently job related, and there was no discrimination in the failure to promote Mr. Brown, Mr. Hayes and Mr. Tizeno. I. Factual Background Gulfs Port Arthur refinery has had three basic work areas throughout its history: operations and maintenance ("Crafts"), which require skilled employees, and until 1954 were staffed exclusively by whites; and labor, which is composed of unskilled employees who assist the craft groups, and until 1956 was exclusively comprised of blacks. 4a In 1950 the labor department had many subdepartments, each assigned to work with a specific craft department. The twenty integrated craft departments effectively had two separate lines of progression, one for their white employees and the other for the black employees assigned to their departments. Although black laborers effectively worked in many of the same departments as white craft employees, they could not bid into the more desirable white lines of progression. Between 1954 and 1956, the craft and labor departments were assigned to one of two divisions. The craft departments were assigned to the Operating and Mechanical ("O & M") Division, and the labor department, with its various subdepartments, was assigned to the Labor Division. As of 1956, both black and white employees progressed up their separate promotional lines based on plant seniority and ability to perform. Newly hired blacks would be assigned to the Labor Division, 5a while newly hired whites would be assigned to one of the craft departments in the O & M Division. The 1956 Contract between Gulf and the OCAW made the "Labor" classifications in the Labor Division the entry level position for all employees, both black and white. After progressing to the top position in one of the Labor lines of progression, an employee could transfer to an entry level position in one of the O & M lines of progression after bidding into the mechanical helper pool, which was a classification apparently created to provide apprentice-type instruction for employees entering an O & M line of progression. Bids for entry into the O & M lines of progression were selected on the basis of plant seniority. An employee who successfully bid into an O & M line of progression was assigned dual seniority, O & M Division seniority and plant seniority. White employees generally had more O & M seniority because of the earlier practice of hiring whites directly into the craft 6a positions. In 1963, divisional seniority was eliminated, and plant seniority became the basis for all promotions, demotions and lay offs. The effect of this change was that blacks with more plant seniority but less O & M seniority than whites in the same job classification could compete for promotions to the next highest classification based upon their longer plant seniority, thereby bypassing white employees with greater O & M seniority. In 1967, Gulf management became convinced that its plant was inefficient. As part of a general restructuring, Gulf and OCAW made a special agreement, Stipulation 29, which reclassified workers in the maintenance departments.2 As part of the restructuring the Labor Division was eliminated and its employees were assigned to the various crafts with which they had been working. The lines of progression were streamlined and 1 jSee next page for text of this footnote.] 7a Note 1 BEFORE REORGANIZATION & STIPULATION 29 0 & M DIVISION Instrument Depart. Instrument Man No.1 Mechanical Trainee Instrument Man No.2 (Craft Helper) Instrument Man No.3 (Craft Helper) Mechanical Helper Pool LABOR DIVISION Labor Subdepart. Utili ty Man No.1 (Intermediate Job Classifications) L a b o re r AFTER REORGANIZATION & STIPULATION 29 MAINTENANCE DIVISION Instrument Instrument Man Mechanical Trainee Utility Man Laborer 8a the categories of "mechanical helper" and "craft helper" were eliminated. Those who were mechanical helpers were reclassified as "utility men" (a demotion), while Stipulation 29 reclassified the craft helpers as "craft trainees" (a promotion) if they passed a simple test. 203 of 204 who took the test passed and were promoted to mechanical trainee. 95.6% of those promoted were white. A large portion of the utility men and mechanical helpers were black. Both before and after Stipulation 29 all others not transferred as a result of Stipulation 29 were required to pass a battery of written tests in order to become craft trainees. These tests had an adverse impact on blacks in that blacks had a significantly lower pass rate than whites. The "Old Tests" were administered prior to 1971, and the 9a "New Tests" after 1971.2 Both sets of tests had an adverse impact on blacks.5 No validation study was ever done on the old tests, but Gulf has attempted to show that the new tests are job related through a study to determine the correlation between test scores and job performance. II. The Seniority System and Stipulation 29 The class first argues that the seniority system is not bona fide because it locks in the effects of pre-Act 2The Old Tests consisted of six separate tests; (A) Test of Reading Comprehension; (B) Test of Arithmetic Fundamentals; (C) Wonderlic Personnel Test; (D) Mechanical Aptitudes Test; (E) Mechanical Insight Test; (F) A Lee- Clark Arithmetic Test. The New Tests consisted of four parts: (A) Dennett [sic] Mechanical Comprehension Test; (B) Test of Chemical Comprehension; (C) Arithmetic Test; (D) Test Learning Ability. After 1971, these tests were also used for the hiring of new employees. Thus, any employee hired after 1971 was not required to take any additional tests to enter a craft. 382.5% of whites who took the old tests between January 1969 and March 1971 ultimately passed. Only 42.8% of blacks who took the same tests during that period passed. Between 1971 and 1980, 97.7% of the whites who took the new tests passed, while only 66% of the blacks passed. 10a discrimination. This issue was resolved by this court in Bernard, IV, 841 F.2d 547 (5th Cir.1988), following Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.396 (1977). Teamsters held that where an employer had engaged in intentional discrimination in hiring or assignments, the employer could lawfully utilize a seniority system that perpetuated the effect of that earlier discrimination, but only if the seniority system itself was bona fide. 431 U.S. at 347-54, 97 S.Ct. at 1860-64. Under Teamsters a seniority system in not bona fide if it had "its genesis in racial discrimination" or was "negotiated and maintained" with an "illegal purpose." 431 U.S. at 356, 97 S.Ct. at 1865. The class attempts to distinguish Teamsters, arguing that, while pre-Act discrimination in hiring and assignment will not make a post-Act seniority system which is otherwise bona fide illegal, a pre-Act seniority system which discriminated will make an otherwise bona fide post-Act seniority system illegal. This l la contention was rejected in our earlier opinion, where we expressly held: [W]e question whether a seniority system which is neutral as of the effective date of Title VII, which is based on plant seniority, and which has a single bargaining unit could ever be held unlawful solely because of pre- Act discrimination. That the 1963 changes did not rectify the effects of past discrimination, and in fact operated in some ways to lock those effects in, does not imply, in the absence of purposeful discrimination in connection with the post-Act system, that this system was not bona fide under 703(h). See Teamsters, 481 US. at 353, 97 S.Ct. at 1863 (seniority system does not become illegal "simply because it allows the full exercise of the pre-Act seniority rights of employees of a company that discriminates before Title VII was enacted”). 841 F.2d at 556. We remanded to the district court to determine whether Stipulation 29 evidenced purposeful discrimination, "the establishment of which is essential to plaintiffs’ claim that the seniority system was not bona fide under 703(h)." 841 F.2d at 560 12a The class really makes two arguments with respect to Stipulation 29: first, that through its operation it served to make the seniority system non-bona fide; and second, that in and of itself it was a discriminatory act by the employer in violation of Title VII because of its disparate impact on blacks. The district court found that Stipulation 29 was not purposefully discriminatory and was justified by valid business reasons. The class contests these findings. The standard of review for such a decision is whether, looking at the record as a whole, the district court was clearly erroneous in its determination that there was no purposeful discrimination and that the action resulting in disparate impact was justified by legitimate business reasons. Fed.R.Civ.P.52(a). See Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 LJ.S. 100, 123, 89 S.Ct. 1562, 1567, 23 L.Ed.2d 129 (1969); 13a Moorhead v. Mitsubishi Aircraft International, 828 F.2d 278, 282 (5th Cir. 1987). We find that the district court was not clearly erroneous. Before Stipulation 29, black utility men could become mechanical helpers and craft helpers, joining whites with less seniority who had started in higher positions than blacks because of the earlier discrimination. When positions opened for craft trainees, those blacks could bypass the whites with more craft seniority if the blacks had longer plant seniority. Stipulation 29 worked to lock blacks into the lower positions by promoting the craft helpers, who at that time were mostly white and often had less plant seniority than blacks, into the trainee positions. Blacks were precluded from opportunities they would have had earlier if it weren’t for Stipulation 29. In Bernard IV, this court found that senior blacks were denied the opportunity to by-pass junior whites, and the class had, therefore, established a prima facie case of 14a adverse impact. 841 F.2d at 560, citing Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). Section 703(a), 42 U.S.C. § 2000e-2(a), proscribes discriminatory employment practices, including discrimination "with respect to . . . compensation, terms, conditions, or privileges of employment" on the basis of race, but section 703(h) insulates bona fide seniority systems from these dictates, providing that [notwithstanding any other provision . . ., it shall not be an unlawful employment practice for an employer to apply different standards of compensation or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, . . . provided that such differences are not the result of an intention to discriminate because of race . . 42 U.S.C. § 2000e-2(h). Whether a seniority system, neutral on its face, is bona fide depends upon "whether there has been purposeful discrimination in connection with the 15a establishment or continuation of [the] seniority system." Bernard IV , 841 F.2d at 555, citing James v. Stockham Valves & Fitting Co., 559 F.2d 310, 351 (5th Cir. 1977), cert, denied, 434 U.S. 1034,98 S.Ct. 767, 54 L.Ed.2d 781 (1978). The Supreme Court in Teamsters set out four factors relevant to making this determination, which this court adopted in James: (1) whether the seniority system operates to discourage all employees equally from transferring between seniority units; (2) whether the seniority units are in the same or separate bargaining units and, if separate, whether that structure is rational and industry-wide; (3) whether the seniority system had its genesis in racial discrimination; and (4) whether the seniority system was negotiated and maintained free from any illegal purpose. Id. at 352. This court found the first three of the factors in favor of defendants, but remanded to the district court to 16a consider whether Stipulation 29 showed that the system had been maintained with a discriminatory purpose. Bernard IV’ 841 F.2d at 560. The district court found that Stipulation 29 was adopted in an effort to improve efficiency at the refinery, was undertaken for an economic purpose, was undertaken for legitimate business reasons and did not reflect purposeful racial discrimination. The class points to evidence that Stipulation 29 was racially motivated, but there was also evidence of legitimate reasons for the reorganization of employees. In addition, Gulf had various programs to increase mobility for blacks in its plant. It had an affirmative action program and several training programs to try to insure that blacks would be able to rise within the company. The record supports the district court’s determination, and it is not clearly erroneous that Stipulation 29 was not adopted for purposefully discriminatory reasons. 17a Under a disparate impact theory as set out in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and clarified in Watson v. Fort Worth Bank & Trust, _ U.S. 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988) and Ward’s Cove Packing Co., Inc. v. Atonio, _ U.S. ___ , 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), the district court also was not clearly erroneous in finding that although Stipulation 29 may have had an adverse impact on blacks it was justified by legitimate business purposes. Under Ward’s Cove, if a plaintiff makes out a prima facie case by showing that a specific practice has a disparate impact on a protected class, then the burden shifts to the employer to produce evidence, but not to prove, that the "challenged practice serves, in a significant way, the legitimate employment goals of the employer." 109 S.Ct. at 2126. The Supreme Court noted that while "a mere insubstantial justification in this regard will not 18a suffice, . . . there is no requirement that the challenged practice be ’essential’ . . . for it to pass muster." Id. Moreover, although the employer carries the burden of producing evidence of a business justification for his employment practice, the burden of persuasion remains with the disparate-impact plaintiff to prove that the challenged practice does not significantly serve legitimate employment goals. Id.; Watson, supra _U.S. at __, 108 S.Ct. at 2790. The district court relied in part on the testimony of Dr. Milden J. Fox, an expert in Industrial Relations, who studied four refineries as part of his dissertation, which was entered into evidence. Dr. Fox testified at trial that Stipulation 29 was part of an ongoing effort to improve efficiency at the Refinery. He testified that before Stipulation 29 the method of work assignments contributed to excess maintenance costs, and that management sought to increase efficiency through measures permitting more 19a flexible use of employees, including Stipulation 29. Stipulation 29 was designed to take employees out of specific craft job classifications, and move them into the trainee positions, making them "universal mechanics," i.e., people who could perform any job associated with a particular craft. Dr. Fox testified that various measures, including Stipulation 29, conformed with industry practices at the time. The testimony of Mr. Charles Draper, who spent 30 years in the Refinery’s personnel department, was consistent with Dr. Fox’s testimony. The district court found that the craft helpers reclassified under Stipulation 29 had at least ten years’ experience in their craft, and as craft helpers they performed a significant amount of the work of the No. 1 (journeyman) craftsmen, so it would take minimal additional training to qualify them as journeyman craftsmen. The district court found that mechanical helpers and laborers did not have comparable experience, so they would require much more training to 20a do the work of journeyman craftsmen efficiently and safely. This is supported by the record, which shows that the mechanical helpers and laborers were shuttled from craft to craft to do whichever labor was necessary to help those in the crafts, but did not receive training at any one specific craft. Plaintiffs contend that the district court misunderstood the import of Stipulation 29, that it was not a measure designed to change lines of progression, but simply the promotion of 203 mostly white craft helpers. Plaintiffs go too far in simplifying Stipulation 29: it cannot be observed in isolation, but must be considered in the context of Gulfs reorganization. The district court found that Gulf wanted to simplify the lines of progression through reorganizing, and wanted to increase the number of craft trainees, leading to an increase in the number of persons who were trained to handle all aspects of a craft. In order to do that Gulf had several options. One option 21a was Stipulation 29, which moved workers into trainee positions from the next lowest position. Another option (suggested by the class) would have been to demote all the craft helpers to utility men, then draw craft trainees from the pool of utility men that included senior blacks who had been utility men and junior whites who had been craft helpers. The district court found that Gulf had a legitimate reason for choosing the Stipulation 29 option- -it wanted to reclassify as trainees those workers with the most craft experience so they would need less training. The district court specifically found that the craft helpers all had at least 10 years of craft experience. The utility men who would have been in the pool under the second option would not have had such experience in craft work, even if they would have had greater plant seniority. The class has not shown that the proposed alternative would be equally as effective as Stipulation 29 in meeting Gulfs objectives. See Ward’s Cove Packing Co., Inc. v. Atonio, 22a _ U.s. 109 S.Ct. 2115, 2126, 104 L,Ed.2d 733 (1989). Thus, the district court was not clearly erroneous in finding that Gulf had legitimate business reasons for Stipulation 29, and that it was not discriminatory. III. The Craft Tests The class claims that the tests used to determine which employees were eligible for promotion to journeyman craftsmen were discriminatory. It claims that the tests had an adverse impact on blacks because the pass rate for blacks was significantly lower than the pass rate for whites, and that Gulf has failed to show that the tests were sufficiently job related. In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Supreme Court held that Title VII forbids the use of employment tests that are discriminatory in effect unless the employer meets "the burden of showing that any given requirement [has] . . . a manifest relationship to the employment in question." Id. 23a at 432, 91 S.Ct. at 854. Once the plaintiffs have made out a prima facie case of disparate impact, the employer must then show that its tests are "job related." Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). If the employer shows that the tests are job related, "it remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest in ’efficient and trustworthy workmanship.’" Albermarle, 422 U.S. at 425, 95 S.Ct. at 2375, quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 93 S.Ct. 1817, 1823-24, 36 L.Ed.2d 668 (1973). Although an employer has the burden of showing job relatedness, this does not mean that the ultimate burden of proof can be shifted to the defendant. "On the contrary, the ultimate burden of proving that discrimination against a protected group has been caused by a specific employment practice remains 24a with the plaintiff at all times." Watson v. Fort Worth Bank & Trust, _____U.S. ____, 108 S. Ct. 2777, 2790, 101 L.Ed.2d 827 (1988). Both the pre-1971 "Old Tests" and the post-1971 "New Tests" had an adverse impact on blacks. On remand the district court was to determine whether "professionally accepted methods" showed that the tests were "significantly correlated" to job performance in each of the relevant crafts. Bernard IV, 841 F.2d at 566-67. The district court was to explain specifically what it relied on in determining significant correlation. Id. The issue before us is whether Gulfs validation methods were properly accepted by the district court. Gulf had a validation study done which compared New Test scores with performance in five crafts. Three of the studies were inconclusive regarding correlation between test scores and performance, while two studies yielded correlation coefficients (measurements of the frequency 25a with which higher test scores correlated with better job performance) for the pipefitter and boilermaker crafts.^ The study then computed adjustments for various factors, resulting in seven different adjusted correlation coefficients for each craft. The class contends that the district court should have specifically stated which correlation coefficient it found a statistically significant indication of job relatedness, and why a particular adjustment was chosen. Plaintiffs urge that a correlation coefficient in the .30-.40 range be established as the minimum for proof of a job 4Test scores were compared to job performance for a number of job classifications. The study developed by Richardson, Bellows and Henry ("RBH") attempted to establish the validity of the new tests for five of the OCAW crafts: boilermaking, pipefittings, welding carpenter, and instrument. However, RBH was unable to validate the tests for the latter three crafts. The job performance ratings for the welders were too similar to establish a significant correlation between test and job performance. In the case of carpenters and instrument mechanics, the ratings given by the two raters used to evaluate job performance (each employee was evaluated by two supervisors and their ratings were compared to derive a single job performance rating) differed to such a degree that RBH concluded that neither rating was a reliable measure of the employees’ job performance. Therefore, the 1985 study introduced into evidence contained data about only two of the craft departments, boilermaking and pipefitting. 26a related test. We decline to establish a bright line cut-off point for the establishment of job-relatedness in testing. In Watson v. Fort Worth Bank & Trust, the Supreme Court stated: [Ejmployers are not required, even when defending standardized or objective tests, to introduce formal ’validation studies’ showing that particular criteria predict actual on-the- job performance. _ U .S . ____, ___ , 108 S.Ct. 2777, 2790, 101 L.Ed.2d 827 (1988). Justice Blackmun, while dissenting in part from the plurality opinion, agreed on this point, recognizing that "job-relatedness cannot always be established with mathematical certainty" and that a variety of methods are available for establishing the link between selection processes and job performance, including the results of studies, the presentation of expert testimony, or prior successful experience. Id .,__ U.S. a t ____ , 108 S.Ct. at 2796. Therefore, plaintiffs urging a minimum correlation 27a coefficient goes beyond what is required by Supreme Court precedent. This court held in its earlier opinion that: To establish the job relatedness of the tests, the degree of correlation between test scores and job performance ratings must be examined. The district court upheld the validity of the tests without making any findings concerning the sufficiency of correlation. Because a finding of significant correlation between test results and job performance is a prerequisite to a holding that the tests are job related, we assume that the court sub silento [sic] made this finding. 841 F„2d at 566. This court found no way to determine the basis for the district court’s holding, however, so remanded for further findings. Id. at 567. Although appellants claim the district court did not make the requisite findings upon remand, the district court did find the following: 1. The study showed that performance on the New Tests correlated .32 with job performance as a Boilermaker, and .22 with performance as 28a Pipefitter, and that these correlations are both statistically significant. 2. Although the unadjusted correlations are statistically significant, the adjusted figures, which are even higher than unadjusted, are better estimates of validity, and even they underestimate the true validity of the New Tests. 3. The testimony of Gulfs expert witnesses was convincing, and they adequately explained, based upon research and their past experience, why the tests were job related, why the correlation coefficients resulting from the study needed to be adjusted for various factors, and why these adjusted figures were more accurate. The district court was not clearly erroneous in its findings, which are supported by the expert testimony in the record. "The question of job relatedness must be viewed in the context of the plant’s operation and the history of the testing program." Albemarle, 422 U.S. at 430, 95 S.Ct. at 2377-78. In Albermarle, the test were not found to be job related because "no attempt was made to analyze jobs in terms of the particular skills they might require." Id. 29a Here the jobs were all analyzed in terms of particular skills, and the test studies were conducted accordingly. In its prior opinion, this court invited the district court to consider whether the similarity between pairs of jobs could be used to generalize the validity of the new tests from boilermakers and pipefitters to craft jobs involving similar abilities. Bernard TV' 841 F.2d at 567 n. 54. This sort of analysis can be used to extrapolate the validity of the tests from the crafts for which a study was done, to the crafts where no study was done, or where the sample size was too small to get accurate results. The rationale for this approach was accepted in Aguilera v. Cook County Police & Corrections Merit Bd., 582 F. Supp. 1053, 1057 (N.D. 111.1984) (comparing required skills for correctional officer with required skills for police officer), aff’d 760 F.2d 844, 847-48 (7th Cir. 1985), cited with approval in Davis v. City of Dallas, 777 F.2d 206, 212-13, 30a n. 6 (5th Cir.1985), cert, denied, 476 U.S. 1116, 106 S.Q. 1972, 90 L.Ed.2d 656 (1986). Having found that Gulf had shown the new tests were significantly correlated with performance as a boilermaker and pipefitter, the district court considered and compared the most important abilities in those two crafts with the important abilities in all the other crafts. If the most important abilities required the other crafts are closely related to the most important abilities of the boilermaker or pipefitter, it may be concluded that the new tests, which predict significant aspects of job performance for the boilermaker or pipefitter, also predict important abilities related to the performance of all other craft jobs as well. The district court found that the most important abilities for boilermakers or pipefitters were closely related to the important abilities for all of the other crafts, and extrapolated from that to find that the tests were job related for all of the crafts. 3la The district court accepted similar methods in Cormier v. P.P.G. Industries, Inc., where "cluster analysis" (looking for similar job traits, as was done here) was approved as a way to find correlations between test scores and performance. 519 F. Supp. 211, 259 (W.D.La.l9Sl), aff’d 702 F.2d 567 (5th Cir. 1983). The district court’s use of this method was reasonable, and its determination that there was sufficient similarity in the skills required for the various crafts to find the tests were job related for all crafts is not clearly erroneous. The district court accepted the same sort of "path analysis," in determining that the "Old Tests" measured skills similar to those measured by the "New Tests." Therefore, its finding that the "Old Tests" were sufficiently job related to justify their use, despite disparate impact on blacks, was not clearly erroneous. Finally, the class seeks to refute Gulf s showing that the test were job related by showing an alternate method 32a was available that would have had less adverse impact yet met the same business purposes as the Old and New Tests. See Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Plaintiffs suggest the simple test used in conjunction with Stipulation 29. The district court rejected this alternative, making no findings as to its adverse impact, and finding it unlikely to suit Gulfs business purposes as well as the tests actually used. The simple test was used once, as part of a reorganization. The only people taking the test already had ten years craft experience. Its purpose was to screen out total incompetence, not determine who would do best at a job. In order to require an alternative with less disparate impact, the disparate-impact plaintiff must prove that the proposed alternative is "equally effective" as the employer’s procedure. Ward’s Cove Packing Co., Inc. v. Atonio, _ U.S. 109 S.Ct. 2115, 2127, 104 L.Ed.2d 733 (1989). The Supreme Court has made it clear that by 33a "equally effective" it meant an alternative practice that would serve the employer’s business purpose fully as well in terms of utility, cost, "or other burdens" of the proposed alternative device. Id . The burden of proving that Gulfs business reasons were not sufficient, and that an alternative method of choosing craft trainees would be equally as effective as the tests used by Gulf, remained with the class at all times. Id., 109 S.Ct. at 2126. Therefore, the district court’s finding that the simple tests was not a viable alternative for the other Tests is not clearly erroneous. The Supreme Court has cautioned that the "judiciary should proceed with care before mandating that an employer must adopt a plaintiffs alternate selection or hiring practice in response to a Title VII suit." Id. at 2127. In the face of statistically significant correlations, professional test construction, commonality of abilities associated with the various jobs at issue, the "path 34a analysis" correlations of the Old and New Tests, and the supporting expert opinion based upon massive validation studies of similar tests in the industry, this court will refrain from making business decisions for an employer when it is not clearly erroneous that its promotion practice is validly job related. "[I]t must be borne in mind that ’[cjourts are generally less competent than employers to restructure business practices, and unless mandated to do so by Congress they should not attempt it." Watson, _ U.S. at ____ , 108 S.Ct at 2791, quoting Fumco Construction Corp. v. Waters, 438 U.S. 438 U.S. 567, 578,98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978). IV. The Individual Claims Three individual plaintiffs claim that Gulf discriminated against them in making promotions. Mr. Hayes, Mr. Brown and Mr. Tizeno all claim that they were qualified to become supervisors, but were not promoted, while whites were. 35a A, Hayes and Brown The district court made specific findings of fact that Mr. Hayes and Mr. Brown, while complaining that they had not been promoted to permanent supervisory jobs, had testified that they had not made known to anyone in authority their interest in becoming supervisors. The district court further found that employees generally knew when they were eligible and that they were invited to inform supervisors of their interest in promotion. The district court also found several reasons why some employees would not want to be supervisors, and why it could not be assumed that all employees should automatically have been considered. Under Texas Dep’t o f Community Affairs v. Burdine, in a failure-to-promote case the plaintiff must prove that he "applied for an available position for which [he] was qualified, but was rejected under circumstance which give rise to an inference of unlawful discrimination." 450 U.S. 36a 248, 253, 101. S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981), (emphasis added). Under McDonnell-Douglas Corp. v. Green, such a plaintiff establishes a prima facie case by showing by a preponderance of the evidence that (a) he belongs to a group protected by Title VII; (b) he was qualified for the job; (c) he was not promoted; and (d) the employer promoted one not in the plaintiffs protected class. 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The district court found that Hayes and Brown had not established a prima facie case because their failure to express interest made it impossible to tell which promotion they did not get and thus whether a white or a black was selected in preference to them. Blacks as well as whites were made supervisors during the relevant period in numbers proportional to those in the eligible pool. 37a Even assuming arguendo that Hayes & Brown had established a prima facie case, the district court found that Gulf had a sufficient business reason to rebut the inference of discrimination. If plaintiff makes out a prima facie case, the employer must produce "evidence that the plaintiff was rejected, or someone else was preferred, for legitimate, non- discriminatory reasons . . . [Burdine 450 U.S.] at 253-254 [501 S.Ct at 1094]. If the employer meets this burden, "the presumption of discrimination ’drops from the case’ and the District Court is in a position to decide whether the particular employment decision at issue was made on the basis of race." McDonnell-Douglas, 411 U.S. at 802, 93 S.Ct. at 1824, quoting Cooper v. Federal Bank, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). In meeting its burden of production, Gulf did not have to prove what its reasons were; it simply had to produce evidence that "raise[d] a genuine issue of fact as to whether it discriminated" against Hayes and Brown. Burdine, 450 U.S. at 254-255, 38a 101 S.Ct. at 1094-95. Once Gulf produced evidence that raised a genuine issue of fact as to its reasons for denying Hayes and Brown promotions, it was up to Hayes and Brown to show by a preponderance of the evidence, that discrimination is the likeliest explanation for the fact that they were not promoted to supervisory positions. The district court held that the reason Hayes and Brown were not promoted was their failure to inform the company that they wished to be promoted. Plaintiffs argue that this is a clearly erroneous finding because it is supported by insufficient evidence. Plaintiffs maintain that Gulf should have shown that only those who requested promotion were promoted. Plaintiffs mistake the allocation of burdens here. Once Gulf produced evident to show what its business reasons were for not promoting Mr. Hayes or Mr. Brown, it was up to the plaintiffs to produce evidence to show that the reason given was a sham. Burdine, 450 U.S. at 253, 255 n. 10, 101 S.Ct. at 39a 1095 n. 10. Plaintiffs argue that Gulfs reason for not promoting Mr. Hayes or Mr. Brown was only asserted through arguments of counsel. The issue was not merely raised in the arguments of counsel, however, for there is ample evidence in the record to support the district court’s finding: 1. Mr. Hayes and Mr. Brown each testified that they had told no one in authority of their interest in becoming supervisors; 2. Mr. Draper testified that employees were invited to inform supervisors of their interest in promotion; 3. There was no evidence that all employees wanted to become supervisors; and 4. Mr. Brown’s testimony indicated he knew how to express interest, but he chose to remain silent. The district court’s finding that Mr. Hayes and Mr. Brown were not promoted for non-discriminatory reasons is not clearly erroneous. 40a B. Tizeno Mr. Tizeno did apply twice for a supervisory position (once for a position as "planner" and once for a position as "supervisor"). On remand the district court found that Mr. Tizeno had established a prima facie case, "although a weak one." The district court found that the record as a whole did not support an inference that racial discrimination was likelier than not the reason that Tizeno was not promoted. Specifically, the district court found that: (1) Although Mr. Chesser, a white who was promoted to planner, had less seniority than Mr. Tizeno, Mr. Chesser also had less seniority than most other pipefitters, including 108 who were white, 80 of whom had greater seniority than Mr. Tizeno as well. (2) There was no evidence that Mr. Tizeno was otherwise more qualified than Mr. Chesser. (3) Several person, including 4 blacks were appointed to supervisory positions in 1979, making it hard to tell which position Mr. Tizeno did not get. At that time Mr. Tizeno was one of the most junior pipefitters. 41a The district court was not clearly erroneous in its determination that the reason Mr. Tizeno was not promoted was not discriminatory. V. Notification of Exclusion from the Redefined Class Rule 23 of the Federal Rules of Civil Procedure requires a district court to give notice to absent class members of developments in the suit in only two situations: The first is when the court certifies a class under Rule 23(b)(3) because of common questions of law or fact that predominate over other aspects of the suit and render a class action the appropriate vehicle to resolve claims, (citation omitted). The second is when a class action is to be dismissed or compromised. Fed. R.Civ.P. 23(e). Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 812 cert, denied, 459 U.S. 1038, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982). 42a Since this case involves the district court’s modification of the class definition to exclude certain class members, it does not fall within either of the foregoing categories. Therefore, notification to those excluded members was not mandated, but instead was left within the discretion of the district court. Id. at 812. Although discretionary notification is encouraged in those instances where a plaintiff has shown that the excluded members: (1) received notice of their initial inclusion in the class; (2) relied on the class suit to protect their interests; and (3) would be prejudiced as a practical matter by their exclusion, Id. at 813, no such showing has been made by the class herein. Therefore, we find that the district court did not abuse its discretion in failing to give the excluded class members notice of the redefinition of the class. VI. Conclusion After reviewing the massive amounts of evidence in the record we find that the district court was not clearly 43a erroneous in ruling that Stipulation 29 was not purposefully discriminatory, and that even if it had an adverse impact it was justified by legitimate business purposes. Nor was the district court erroneous in finding that the test Gulf used to determine which employees were eligible for promotion were job related, based upon the validation studies and expert testimony. The record supports the district court’s determination that Mr. Brown and Mr. Hayes did not show a prima facie case of discrimination in Gulfs failure to promote them, and that even if they made out a prima facie case, Gulf had shown legitimate reasons for not promoting them. Likewise, the district court was not clearly erroneous in holding that Mr. Tizeno had not proved that Gulfs failure to promote him was discriminatory. Accordingly, we AFFIRM. 44a Wesley P. BERNARD, et al., Plaintiffs-Appellants, v. GULF OIL CORPORATION, et al., Defendants-Appellees No. 87-2033 United States Court of Appeals, Fifth Circuit March 22, 1988 Rehearing Denied April 18, 1988. Before SNEED*, REAVLEY and JOHNSON, Circuit Judges. REAVLEY, Circuit Judge: This is a class action suit brought by six present or retired black employees of Gulfs Port Arthur, Texas Refinery, all of whom are or were members of the Oil, *Circuit Judge of the Ninth Circuit, sitting by designation. 45a Chemical and Atomic Workers’ International Union Local 4-23 ("OCAW”), against Gulf and the OCAW for declaratory, injunctive, and monetary relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981. The suit was filed on May 18, 1976, within 90 days of plaintiffs Bernard, Brown and Johnson’s receipt of right-to-sue letters from the Equal Employment Opportunity Commission (EEOC). Plaintiffs amended their complaint to join as defendants other unions which represent employees at the refinery, including: the International Association of Machinists and Aerospace Workers, Port Arthur Lodge No. 823; the International Brotherhood of Electrical Workers and its Local 390; the United Transportation Union and its Local 1071; and the International Union of Bricklayers and Allied Craftsmen and its Local 13 (collectively referred to as the "Trade Unions"). 46a In April 1976, Gulf and the EEOC entered into a conciliation agreement in which Gulf agreed to cease various allegedly discriminatory practices, to establish an affirmative action program with respect to hiring and promotion, and to offer backpay to alleged victims of discrimination based on a set formula. Gulf sent notices to the 632 employees eligible for backpay asking in return for the execution of signed statements releasing Gulf from any possible claims of employment discrimination occurring before the date of the release, including any future effects of past discrimination. This suit was filed one month later seeking to vindicate the rights of many of the employees who were receiving settlement offers from Gulf under the concil iation agreement. The district court entered an order limiting communication by the named parties and their counsel with prospective class members. This court, sitting en banc, held that the order was an unconstitu- 47a tional prior restraint on expression accorded First Amendment protection. Bernard v, Gulf Oil Co., 619 F.2d 459 (5th Cir. 1980) (en banc), aff’d on other grounds, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). On writ of certiorari, the Supreme Court, while not reaching the First Amendment issue, held that the district court’s order was an abuse of discretion under Fed. R. Civ. P. 23(d). Gulf Oil v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). The case was remanded to the district court for further proceedings. On January 24, 1983, the district court tentatively and provisionally certified the class as all blacks who worked or applied for work at the refinery in union covered jobs at any time after December 26, 1966. On April 2, 1984 the court modified the class to exclude unsuccessful job applicants, employees not represented by the OCAW, and employees who signed releases in exchange for backpay under the conciliation agreement 48a between Gulf and the EEOC. The court also limited the relevant time period to employment practices occurring between December 26, 1966, which is 180 days prior to the date on which plaintiffs Bernard, Brown and Johnson filed their charges of discrimination with the EEOC, and May 18, 1976, the date upon which the complaint was filed. The court dismissed the Trade Unions because neither the named plaintiffs nor the modified class contained members of these unions. At trial, plaintiffs advanced a number of classwide claims as well as individual claims on behalf of the named plaintiffs. Plaintiffs contended that: Gulfs seniority system was non-bona fide; a reclassification of employees pursuant to a stipulation ("Stipulation 29") between Gulf and the OCAW had an unlawfully discriminatory impact on blacks; certain tests administered by Gulf had an unlawfully discriminatory impact on blacks; Gulf inten tionally applied its Sickness and Accident (S & A) policy 49a to blacks in a discriminatory fashion; Gulf intentionally discriminated against blacks in its selection of temporary and permanent supervisors; Gulf intentionally discriminated against the named plaintiffs; and the OCAW breached its duty of fair representation. Following a bench trial, the court held for Gulf and the OCAW on all of the classwide and individual claims, 643 F. Supp. 1494. On appeal, plaintiffs assert that the district court incorrectly disposed of each of the classwide and individual claims, but concede that the only issues upon which the OCAW could be liable are those relating to the seniority system and Stipulation 29. In addition, plaintiffs contend that the district court improperly: decertified the class to exclude employees who had signed releases; dismissed the Trade Unions; and refused to consider certain union and company records. We hold that the district court failed to address essential issues of the classwide claims concerning the 50a seniority system, Stipulation 29 and the craft tests as well as certain individual claims of intentional discrimination. We therefore vacate the court’s judgment and remand for further findings. We find no error in the other rulings, which we now address. I. Partial Decertification o f the Class, Dismissal o f the Trade Unions, and Exclusion o f Business Records Plaintiffs challenge the district court’s partial decertification order to the extent that it excluded from the class employees who signed releases in exchange for backpay under the conciliation agreement between Gulf and the EEOC and dismissed the Trade Unions. The basis for the court’s decision was its view that the named plaintiffs lacked standing both to represent employees who signed the releases and to pursue claims against the Trade Unions. In reaching its decision, the court noted that class representatives must "possess the same interest and suffer 51a the same injury" as the class members, Schlesinger v. Reservists Committee to Stop the War, 418 U.S 208, 216, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974), and that a plaintiff lacks standing to litigate injurious conduct to which he was not subjected. Blum v. Yaretsky, 457 U.S. 991, 999, 102 S.Ct. 2777, 2783, 73 L.Ed.2d 534 (1982). See Vuyanich v. Republic N atl Bank o f Dallas, 723 F,2d 1195, 1200 (5th Cir.), cert, denied, 469 U.S. 1073, 105 S.Ct. 567, 83 L.Ed.2d 507 (1984). Because none of the named plaintiffs signed the releases or were members of the Trade Unions, the court found that they lacked standing to assert class claims on behalf of these employees. Accordingly, the court limited the class to OCAW members who had not signed releases, and dismissed the Trade Unions, Plaintiffs do not challenge the court’s exclusion of non-OCAW employees, but instead challenge the dismissal of the Trade Unions on the ground that these unions 52a discriminatorily prevented black OCAW members from transferring into jobs covered by these unions. The district court found that plaintiffs did not allege that the Trade Unions acted unlawfully against them. After reviewing the complaint and amended complaints filed by plaintiffs/ we find support for the district court’s conclusion and hold that the Trade Unions were proper ly dismissed. Plaintiffs attack the validity of the releases on the ground that they were obtained from employees during the period when the district court’s order prevented counsel for the class from communicating with prospective class members. The validity of the releases, however, is not at issue. Their validity can be attacked in a separate 1 Plaintiffs third amended complaint only alleges that the OCAW and the Trade Unions "agreed to, acquiesced in, or otherwise condoned the unlawful employment practices [of Gulf, as described in the complaint]." It does not allege that the Trade Unions independently discriminated against OCAW members. 53a suit by employees who signed releases during the period when the court’s order was in force.2 The question presented to the district court was whether the named plaintiffs had standing to represent employees who had signed releases. Because the named plaintiffs sought to obtain relief already obtained by employees who accepted backpay and signed releases, the court found that the plaintiffs lacked standing to represent these employees.2 We find no error in the court’s determination. Plaintiffs complain of the trial court’s refusal to consider documents, described as business records, which plaintiffs say were given to the clerk during the trial. We 2 Only 33 of the 632 releases were signed during this period. 3The releases applied only to Gulf, not the OCAW. Plaintiffs contend that even if they had no standing, with respect to Gulf, to represent OCAW employees who had singed the releases, they did have standing to represent these employees with respect to the OCAW. We agree with the court’s finding that this argument is without merit because the OCAW’s liability is dependent upon a finding of liability against G ulf. See supra note 1. 54a find the documents in the record, but they bear no file stamp, and the transcript contains no reference to them. The parties did not agree to their submission. Exhibits come into evidence either by the agreement of the parties or by offer, the laying of a predicate subject to counter by the opposing party, and a ruling admitting the evidence by the trial court. The court correctly disregarded documents that were merely handed to the clerk. II. Gulf’s Seniority System Under § 703(h) Plaintiffs contend that Gulfs pre-Title VII Act seniority system had a discriminatory impact on certain black employees after the effective date of Title VTI and that the defendants failed to prove that the seniority system was bona fide under § 703(h). An examination of Gulfs seniority system is necessary to resolve this claim and plaintiffs’ next claim concerning Stipulation 29. 55a A. Background The Port Arthur refinery was established in 1903 and its labor force was not organized until 1943. Three basic work related areas have existed at the refinery throughout its history: operations, maintenance and labor. The operations group manufactures and processes oil based products and the maintenance group provides repair and construction services. Both groups require skilled employees and until 1954 only whites were hired into them. The district court broadly used the term "craft" to denote the operations and maintenance groups, their employees, lines of progression and the departments and divisions associated with operations and maintenance. We adopt this usage generally, but use the more specific labels where appropriate. The labor group is composed of unskilled employees who assist the craft groups and until 1956 was exclusively comprised of blacks. 56a In 1943 the refinery was organized by the Oil Workers International Union ("OWIU"), the predecessor to the OCAW. At this time, many departments existed and each was functionally related to operations or maintenance. A loosely constructed labor department also existed whose employees were assigned to these various craft departments. Each of these departments had a line of progression for its white employees which indicated the promotional scheme from the entry level position to the top position. It does not appear that clearly defined lines of progression had been established for black laborers. The articles of agreement between the OWIU and Gulf incorporated the existing lines of progression. A seniority system was established based upon plant seniority, defined by the length of service at the refinery, and promotions and demotions alone the lines of progression were determined by seniority and ability to perform. A six month residency in one’s particular job 57a classification was a prerequisite to advancement to the next highest job classification in a particular line of progression. Two union locals were established, Local 23 which represented white employees and Local 254 which represented black employees. Members of both locals comprised the union negotiating team. In 1950 the refinery had thirty-four* departments: thirty-three craft departments5 and one labor department. The labor department was composed of many subdepart ments, and employees in these subdepartments were assigned to work in twenty of the thirty-three craft departments. Lines of progression had been established in the labor subdepartments, and these lines generally varied according to the structure of the craft departments ^Excluding the main office department. 5At least four of these departments were non-OCAW crafts; bricklaying, electric shop, machine shop and transportation. 58a to which they were assigned.6 This meant that the twenty integrated craft departments functionally had two separate lines of progression, one for their white employees and the other for the black employees assigned to their depa rtments from the labor subdepartments. These integrated departments also had distinct seniority rosters reflecting 6The 1954 lines of progression show how this system operated. At that time, the labor department was broken into ten subdepartments, including: Acid Plant, Alchlor, Car Shop & Hoist, Garage and Waste Oil, Lubricating, Package and Grease, Pressure Stills, Main Office, Yard Division, and All Others. For most of these subdepartments there was a corresponding craft department; for example, there existed a separate acid department. The acid department had a line of progression for its white employees; the entry level position was called "Sulphur Recovery Plant Helper," and the top position was called "Contact Operator." The labor subdepart ment, entitled "Add Plant Department," had its own line of progression, with the entry level position called "Laborer," and the top position called "Utility Man No. 1." While technically part of the labor department, this subdepartment actually worked with the (craft) add department. At least three of the labor subdepartments, Garage & Waste Oil, Main Office, and Yard Division, did not work directly with any of the craft departments. These subdepartments also had lines of progression. The employees in the "All Other" labor subdepartment worked with a number of craft departments and would move between them as required. For example, these employees would work with the pipefitting department for a few months, and then be assigned to work with the boilermaking department when labor-type work arose in that department. This subdepartment also had an established line of progression. 59a this division, one denoted "White" for its employees and the other denoted "Colored" for the assigned labor sub department employees. Although black laborers worked in many of the same departments as white craft employees, they could not bid into the more desirable white lines of progression. A gentlemen’s agreement, to which Gulf was not a party,5 existed between Local 23 and Local 254 which prevented members of either local from bidding on the jobs of the other. This agreement remained in force until 1954, at which time it was temporarily suspended due to pressure from black employees. Ten black employees were permitted to enter white lines of 7The white lines of progression, were more desirable because they paid more, had greater responsibility, and required more skill than the black lines of progression. o Although this agreement was not incorporated into contracts between the OCAW and Gulf, credible evidence that Gulf supported and encouraged its enforcement was introduced. 60a progression in 1954, but no further transfers were allowed until 1956. Between 1954 and 1956, the craft and labor departments were assigned to one of two divisions. The craft departments were assigned to the Operating and Mechanical O & M Division, and the labor department, with its various subdepartments, was assigned to the Labor Division. The composition of these departments and subdepartments and their lines of progression remained basically unchanged. Approximately twenty of the craft departments, now in the O & M Division, had labor subdepartments assigned to them, and the two separate lines of progression found in these integrated departments before the adoption of the divisional system remained. The labor department employees were technically in the Labor Division even though they physically worked in craft departments in the O & M Division. The labels on the seniority rosters in these integrated departments were 61a changed from "White" to "Operating and Mechanical Division" and from "Colored" to "Labor Division." As of 1956, both black and white employees progressed up their promotional lines based on plant seniority and ability to perform. Newly hired blacks would be assigned to one of the labor subdepartments in the Labor Division, while newly hired whites would be assigned to one of the craft departments in the O & M Division. The gentlemen’s agreement between the two locals prevented blacks who progressed to the top positions in their promotional lines from bidding into one of the O & M Divisions lines of progression.9 The 1956 contract between Gulf and the OCAW made the "Laborer" classification in the Labor Division 9We use the phase "O & M Division lines of progression" to mean the various lines of progression in the craft departments, which by 1956 had been assigned to the O & M Division. Similarly, we use the phase "Labor Division lines of progression" to mean the various lines of progression in the labor subdepartments which had been assigned to the Labor Division. 62a the entry level position for all employees, both black and white/0 A high school diploma or its equivalent and adequate performance on a number of tests were required before one could gain employment. After progressing to the top position in one of the Labor lines of progression, an employee could transfer to an entry level position in one of the O & M lines of progression after bidding into the mechanical helper pool, which was a classification apparently created to provide apprentice-type instruction for employees entering an O & M line of progression/-^ 10The "Laborer" classification before 1956 was the entry level position for all of the lines of progression in the labor subdepartments. Therefore, an employee hired as a laborer could work with any one of the approximately twenty integrated craft departments depending on the particular labor subdepartment to which he was assigned. The 1956 contract made the laborer classification the entry level position for all newly hired employees, but did not otherwise change its nature. 11 For example, a black or white employee hired in 1956 into the "All Other" Labor subdepartment would start as a Laborer. The employees in this subdepartment worked with various craft departments, such as pipefitting and boilermaking, as laborer related work arose in these departments. The "All Other" labor subdepartment had a particular line of progression and advancement to the next highest job classification in that line was based on plant seniority and ability to perform. The top labor position in this line 63a Bids were selected on the basis of plant seniority. The high school diploma test performance requirements were applicable to transferees who had not previously fulfilled these requirements because hired before 1956. An employee who successfully bid into an O & M line of progression was assigned dual seniority; O & M Division seniority and plant seniority. Regardless of how much plant seniority a transferee accumulated in the Labor Division, he started with one day’s O & M Division seniority for purposes of promotions and demotions in his of progression was the "Utility Man Special," and once achieved, the employee could bid into the mechanical helper pool. The employee’s movement from the Utility Man Special position to the mechanical helper pool resulted in the change of his divisional classification from the Labor Division to the O & M Division. From the mechanical helper pool, the employee could bid into one of the craft department lines of progression, such as the pipefitting department. The entry level job in this line of progression was the "Pipefitter Helper." The employee would then promote through this line of progression. 64a particular O & M line of progression/2 Plant seniority was important if workforce reductions occurred because a transferee could use this seniority to return to the Labor Division, where plant seniority determined promotions and demotions within that Division. The effect of this system on black employees hired before 1956 is, in part, the basis for plaintiffs’ claim concerning the seniority system. A black employee, hired into the Labor Division in 1950 and who transferred to an O & M line of progression in 1960, would have less O & M Division seniority than a white employee hired in 1955 into the same O & M line of progression. For the purpose of obtaining a promotion to the next highest job 12Using the example developed in footnote 11, on the day that the employee became a Pipefitter Helper, he had only one days’ seniority for purposes of promoting to the next highest job classifica tion in the pipefitting department’s line of progression. The Labor Division seniority that he had accumulated as he progressed from a Laborer to a Utility Man Special could not be used in the pipefit ting department. This seniority was not totally forfeited: if workforce reductions were required, the employee could be sent back to the "All Other" labor subdepartment where his accumulated seniority would dictate his position within that subdepartment. 65a classification in the O & M line of progression, the black transferee would have only one day’s divisional seniority, compared to the white employee’s five years’ divisional seniority. If workforce reductions were required in 1961, then the black employee could be required to return to the Labor Division, where his eleven years of plant seniority would control his status in that Division. In 1963, the one-day divisional seniority rule and the high school diploma-^ and test performance requirements were eliminated. Plant seniority became the basis for all promotions, demotions and lay offs. The effect of this change was that blacks with more plant seniority, but less O & M Division seniority, than whites in the same job classification could compete for promotions to the next highest classification based upon 13A high school diploma was no longer required before one could transfer from the Labor to the O & M Division; however, until 1971 a diploma was required for new employment. 66a their longer plant seniority, thereby bypassing white employees with greater O & M Division seniority.^ Also in 1963, the two OCAW locals that had separately represented black and white employees merged into Local 4-23, and the facilities at the refinery, such as bathrooms, locker rooms, cafeterias and drinking fountains, were integrated. B. Analysis Plaintiffs contend that Gulfs pre-Title VII Act ("pre-Act") seniority system had a discriminatory impact on senior^5 black employees after the effective date of u For example, a black hired in 1950 and who transferred to an O & M line of progression in 1960 would, as of 1963, have 13 years of plant seniority and 3 years of O & M Division seniority. A white hired in 1955 into the same O & M line of progression would, as of 1963, have 8 years of both plant and divisional seniority. If the black and white employee were in the same job classification and a vacancy opened in the next highest job classification, then, as between these employees, the black, with his 13 years of plant seniority, would be the senior bidder. 15We use the term "senior" to denote black employees hired before 1956. Plaintiffs’ claim concerning Gulfs seniority system, and their next claim concerning Stipulation 29, relate only to employees hired before 1956. 67a Title V Il/6 and that the defendants failed to prove that the seniority system was bona fide under § 703(h). Before examining plaintiffs’ contentions, we review the relevant law. Section 703(a), 42 U.S.C. § 2000e-2(a), proscribes discriminatory employment practices, including discrimination "with respect to . . . compensation, terms, conditions, or privileges of employment" on the basis of race. Section 703(h) insulates bona fide seniority systems from the dictates of § 703(a), by providing that, [n]ot withstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, . . provided that such differences are not the result of an intention to discriminate because of race, color 16July 2, 1965. 68a Until the Teamsters decision in 1977, International Brotherhood o f Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), courts generally rejected the contention that if an employer ceased all discriminatory practices on the effective date of the Act and had a seniority system that was facially neutral, then the system was necessarily protected under § 703(h). See Local 189, United Papermakers and Paperworkers, AFL- CIO, CLC v. United States, 416 F.2d 980 (5th Cir. 1969), cert, denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 100 (1970); Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Va. 1968). The Quarles court held that a seniority system that perpetuated, or locked in, the effects of past discrimination was not bona fide, and concluded that "Congress did not intend to freeze an entire generation of Negro employees into discriminatory patterns that existed before the act." Quarles, 279 F. Supp. at 516. 69a The Supreme Court rejected this reasoning in Teamsters. In that case, the Court found systematic and purposeful discrimination in hiring, assignment, transfer and promotion policies before and after the effective date of the Act and, consistent with its 1976 decision in Franks v. Bowman Transportation Co., Inc., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976)/7 awarded retroactive senior ity to post-Act discriminatees. With respect to pre-Act discriminatees, however, the Court held that relief was unavailable, and, rejecting the Quarles rationale, found that "an otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination." Teamsters, 431 17In F ranks, the seniority system itself was not challenged. The Court in that case found discriminatory hiring practices after the effective date of Title VII, and the issue presented was whether § 703(h) barred the award of retroactive seniority to remedy the effects of this post-Act discrimination. The Court held that § 703(h) was not intended to bar otherwise appropriate relief once an illegal discriminatory practice occurring after the effective date of the Act has been proved. 70a U.S. at 353-54, 97 S.Ct. at 1864. In finding that the seniority system was bona fide, the Court noted that it "did not have its genesis in racial discrimination, and . . . it was negotiated and has been maintained free from any illegal purpose." Id. at 356, 97 S.Ct. at 1865.^ After Teamsters, courts presented with the question of whether a seniority system, neutral on its face, is bona fide must determine "whether there has been purposeful discrimination in connection with the establishment or continuation of [the] seniority system." James v. Stockham Valves & Fitting Co., 559 F.2d 310, 351 (5th Cir. 1977), cert, denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). This court in James set forth four factors, used by 18The Court decided U nited A ir L ines, Inc. v. E van s, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), on the same day as Team sters. The Court in E van s held that a seniority system does not independently violate Title VII simply because it perpetuates the effects of prior discriminatory acts even if those acts occurred after the effective date of Title VII. Id. at 560, 97 S.Ct. at 1890. 71a the Supreme Court in Teamsters, relevant to making this determination. The four factors are: (1) whether the seniority system operates to discourage all employees equally from transferring between seniority units; (2) whether the seniority units are in the same or separate bargaining units . . (3) whether the seniority system had its genesis in racial discrimination; and (4) whether the system was negotiated and has been maintained free of any illegal purpose. James, 559 F.2d at 352. The district court, after applying these four factors to the seniority system as it existed between 1956 and 1963, concluded that the system was bona fide. Plaintiffs do not take issue with the court’s resolution of the first two James factors. Gulfs seniority system on the effective date of Title VII was facially neutral In 1963, plant seniority became the basis for all promotions, demotions and layoffs, and the one-day divisional seniority rule was abolished. The two OCAW Locals, which were always in the same bargaining unit, merged in 1963. Therefore, on 72a the effective date of Title VII, there was only one seniority unit and one bargaining unit. Although the district court should have applied the first two James factors to the seniority system as it existed after the effective date of Title VII, instead of to the 1956-1963 system, the court was clearly correct in resolving these factors in favor of Gulf and the OCAW, The gravamen of plaintiffs’ challenge to Gulfs seniority system is their contention that the system had its • genesis in racial discrimination and that it has been maintained, as evidenced by Stipulation 29, with an illegal (discriminatory) purpose. We first examine plaintiffs’ claim that the seniority system had its genesis in racial discrimination. Plaintiffs argue that before 1956 black and white employees performed basically the same type of work within the integrated departments and that the separation of blacks into the Labor Division, and whites into the O 73a & M Division, was expressly racial Plaintiffs also argue that the 1956 one-day divisional seniority rule and diploma and test performance requirements were designed to inhibit blacks from transferring into the O & M lines of progression by subjecting blacks to seniority forfeiture upon transfer and by imposing requirements not applied to incumbent whites in the O & M Division. Plaintiffs conclude that these considerations show an intent to discriminate, thereby making Gulfs seniority system non- bona fide. The one-day divisional seniority rule of the 1956 contract effectively operated to penalize blacks who attempted to move into the O & M Division. Although the rule was not as egregious as the "seniority suicide" provisions found in Terrell v. United States Pile & Foundry Co., 644 F.2d 1112, 1118 (5th Cir. 1981), vacated, 456 U.S. 955, 102 S.Ct. 2028, 72 L.Ed.2d 479 (1982); United States v. Georgia Power Co., 634 F.2d 929, 931 (5th Cir. 1981), 74a vacated, 456 U.S. 952, 102 S.Ct. 2026, 72 L.Ed.2d 477 (1982); Swint v. Pullman-Standard, 624 F.2d 525, 527 (5th Cir. 1980), rev’d, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), which required total seniority forfeiture upon transfer, the mere fact that blacks faced with layoff could regain their Labor Division seniority by returning to the Labor Division is insufficient to refute pre-Act discriminatory intent. In addition, the district court’s characterization of Gulfs diploma and test performance requirements as nondiscriminatory on the ground that they applied to all employees is unconvincing. First, as the district court itself recognized later in its opinion, a test applied to all employees may nevertheless be discriminatory. Second, because these requirements applied only to newly hired employees and employees seeking to transfer into the O & M Division, the court’s finding that they applied equally to all employees is in correct. Employees in the O & M Division in 1956 (all of 75a whom were white) were not required to have a diploma or take any tests. Although we infer discriminatory intent from Gulfs pre-Act seniority system, we question whether a seniority system which is neutral as of the effective date of Title VII, which is based on plant seniority, and which has a single bargaining unit could ever be held unlawful solely because of pre-Act discrimination. That the 1963 changes did not rectify the effects of past discrimination, and in fact operated in some ways to lock those effects in, does not imply, in the absence of purposeful discrimination in connection with the post-Act system, that this system was not bona fide under § 703(h). See Teamsters, 431 U.S. at 353, 97 S.Ct. at 1863 (seniority system does not become illegal "simply because it allows the full exercise of the pre-Act seniority rights of employees of a company that discriminates before Title VII was enacted"). The record does not, however, warrant our determination of post-Act 76a bona fides, and we must remand for a district court finding. The problem is Stipulation 29, discussed below, which was implemented in 1967 after Title VII was in effect. The district court must make findings relative to the discriminatory effect of Stipulation 29 and, considering Stipulation 29, the bona fides of the seniority system after 1965. III. Stipulation 29 Plaintiffs contend that the implementation of Stipulation 29, which was an agreement negotiated by Gulf and OCAW reclassifying certain employees, not only constituted purposeful post-Act discrimination in violation of the fourth James factor, but also had an unlawfully discriminatory impact on black employees under the rationale set forth in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed,2d 158 (1971). Before examining this claim, a review of Stipulation 29 and the 1967 administrative reorganization is in order. 77a A. Background In 1967 the refinery was administratively reorganized, and Gulf and the OCAW implemented Stipulation 29. The combined effect of these two events was to substantially reduce and simplify the lines of progression. In describing these events, we focus on the eleven OCAW maintenance departments^9 because it is the employees in these departments, or who were about to enter these departments, that were affected by Stipulation 29. The structure of the refinery as it existed prior to 1967 has already been described. Before turning to the 1967 changes, one additional fact is necessary. In 1947 a four-year on-the-job mechanical training program had been established to train skilled employees for the number 19These OCAW maintenance departments were: Bath House, Boilermaking, Carpenter, Garage, Instrument, Insulating, Motor Transportation, Paint, Pipefitting, Tin and Lead, and Welding. 78a one position in thirteen of the craft departments, eleven of which were the OCAW crafts.-20 To gain entrance into one of the programs, employees in the number two positions in their craft lines of progression were required to bid for trainee job vacancies and pass certain reading comprehension and arithmetic tests A successful bidder became a "Mechanical Trainee" and upon the completion of the program became a "No. 1 Mechanic" or "Craftsman" in the craft for which he was trained. The 1967 reorganization split of the O & M Division, which had been comprised of various operations and maintenance departments, into two divisions; an Operating Division to which the operating departments were assigned, and a Maintenance Division to which the maintenance departments were assigned. The eleven 20Before the 1967 reorganization, these departments were in the O & M Division. 21 These tests form the basis for plaintiffs’ next claim, discussed infra under the heading "Craft Tests." 79a OCAW craft departments were assigned to the Maintenance Division. The Labor Division was eliminat ed, and its subdepartments, which had their own lines of progressions and which had throughout the refinery’s history been assigned to work with the various operations and maintenance departments, were combined with these departments.22 The mechanical helper pool and certain job classifications in the labor lines of progression were abolished. Incumbent employees in the mechanical helper pool were reclassified as "Utility Men" and incumbent employees in the eliminated job classifications were reclassified as either "Utility Men" or "Laborers." The effect of this reorganization on the lines of progression cannot be understood without first examining 22See supra note 6 for a discussion of the labor departmental structure. 80a Stipulation 29.23 This Stipulation, which was incorporated into the 1967 articles of agreement between Gulf and OCAW and which became effective on January 1, 1967 with the reorganization, eliminated all job classifications below the mechanical training programs (the "Craft Helper" positions) in most of the eleven OCAW departments and moved the employees in these 23Stipulation 29 provided that: All employees in the mechanical sections below the Mechanic classifications, excluding employees in the Bath house Attendant, Truck Driver, Lift Truck Operator, Truck Driver Special, and Truck Driver Electrical classifications, will be given the opportunity to enter a special training program to become mechanics in their respective sections. These employees will be required to pass a simple test, as deter mined by the Company, in order to qualify for training. After passing the required test, employees will be placed in a train ing program for two years, to be trained as the Company de sires. Certain job classifications (e.g. Bathhouse Attendant, Truck Driver) were not reclassified into the special two year training program because, defendants assert, employees in these classifications did not receive the type of experience which would qualify them for top positions. Plaintiffs point out that these excluded classifications were primarily composed of black employees. Under a 1971 conciliation agreement between Gulf and the EEOC, employees that were excluded from special treatment under Stipulation 29 were offered placement in special two-year training programs and backpay. See infra note 28. 81a classifications into the mechanical training programs. For these employees, the training programs were reduced from four to two years and the reading and arithmetic tests were suspended in lieu of a simple two-page test which only one employee failed'2'*. The new lines of progression can best be illustrated by example.25 Before the reorganization and Stipulation 29, a new employee would be assigned to the Labor Division as a "Laborer" in one of the labor subdepartment lines of progression. On the basis of plant seniority, the employee would eventually promote to the top clas sification in his line of progression, which was, in most labor lines of progression, called "Utility Man No. 1." He would then bid into the mechanical helper pool, which 24The training programs for reclassified employees were special. The four-year duration and testing requirements remained for all other employees seeking to bid into the regular mechanical training programs. 25See Appendix following opinion. 82a was technically in the O & M Division, and then enter one of the craft departments, such as the instrument department. (Alternatively, he could bid directly from his Utility Man position into one of the craft departments without first entering the mechanical helper pool.) Promotion from the Labor Division to the O & M Division, and promotions within the O & M Division, were based on plant seniority and ability to perform. The entry level position in the instrument line of progression was "Instrument Man No. 3," and the next highest job classification was "Instrument Man No. 2." From the number two position the employee would bid into the four-year mechanical training program. The senior bidder was required to pass the reading and arithmetic tests before he could enter the program and become a "Mechanical Trainee." Upon completion of this program, the employee would become an "Instrument Man No. 1," which was the top position in the instrument department. 83a The 1967 reorganization, while eliminating the Labor Division, did not eliminate labor jobs. After 1967, a newly hired employee would be assigned to the Maintenance Division as a "Laborer" and would promote directly into the position of "Utility Man." As a Laborer or Utility Man, he would work with any one or more of the maintenance departments in the Maintenance Division. The fact that Stipulation 29 eliminated the Instrument Man No. 2 and No. 3 positions, by moving these employees into the special two-year mechanical training program, and the reorganization eliminated the mechanical helper pool, by moving these employees into the Utility Man classification, meant that the employee, upon reaching the Utility Man position, would bid directly into the instrument mechanical training program.26 The 26An OCAW employee in the Utility Man position could bid into any of the eleven OCAW training programs, depending upon which programs had vacancies, and was not confined to entering the instrument program and becoming an Instrument Man. No. 1. For example, an employee could bid into the boilermaking trainee 84a training program that the employee would bid into was not the special two-year program applicable to reclassified employees, but was the normal four-year program established in 1947. Upon completion of this program, the employee would become an "Instrument Man," the top position in the instrument department. B. Analysis Plaintiffs contend that the Craft Helpers reclassified as Mechanical Trainees by Stipulation 29 were predominantly white employees with less seniority than blacks in certain lower job classifications. Before Stipulation 29 these more senior blacks,27 plaintiffs argue, were in a position to promote into Craft Helper positions program if a vacancy arose and become a "Layerout," which is the top position in the boilermaking department. The same is true of the other OCAW maintenance departments. 27By "more senior blacks" we mean blacks who, as of 1967, had more plant seniority but were in lower job classifications than whites in Craft Helper positions. This situation arose in large degree due to the 1956-1963 one-day O & M Division seniority rule. Therefore, the black employees with which we are presently concerned were all hired before 1956. 85a and then, once a vacancy opened in a mechanical training program, bypass whites with less seniority who were already Craft Helpers. Plaintiffs’ statistics show that only nine out of the two hundred and three, or 4.4%, of the Craft Helpers reclassified by Stipulation 29 into the special two-year training programs were black. They contend that this proportion is far lower than the propor tion of blacks among senior utility men, the proportion of blacks among senior employees throughout the refinery, or the proportion of blacks among the entire plant workforce. Plaintiffs also claim that Stipulation 29 flooded the top jobs with less senior white and locked the senior black employees in lower job classifications out of these jobs for the next ten years. Plaintiffs conclude that Stipulation 29 constituted purposeful discrimination by abrogating black employees’ seniority rights and had an unlawful discriminatoiy impact upon blacks under the 86a rationale of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The district court, while not addressing plaintiffs’ claim that Stipulation 29 constituted purposeful discrimination, held that Stipulation 29 did not constitute a Griggs violation. It appears that the court based its decision on either a finding that the plaintiffs did not establish adverse impact, or on a 1971 conciliation agreement between Gulf and EEOC which elevated black employees, who had been demoted to the Labor Division while the 1956-1963 one-day divisional seniority rule was in force and thus were absent from Craft Helper positions when Stipulation 29 was implemented, to top positions in the maintenance departments at competitive rates of pay. We decline to base our determination upon the 1971 conciliation agreement because we find that its terms were 87a not coextensive with plaintiffs’ present claim,28 and instead turn to an examination of plaintiffs’ proof of adverse impact. To establish a prima facie case of adverse impact, plaintiffs must, by a preponderance of the evidence, demonstrate that Stipulation 29 had an adverse impiact on blacks at a substantially disproportionately higher rate than whites. No intent to discriminate need be shown. Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. Once established, the burden shifts to the defendants to demonstrate, by a preponderance of the evidence, that 28The 1971 conciliation agreement remedied a number of areas of alleged noncompliance with Executive Order 11246. Among its major provisions, it required the validation of certain tests and the elevation of certain employees (the "Affected Class") hired before 1956 to higher job classifications with backpay. Among the effected class were employees expressly precluded from the terms of Stipulation 29, see supra note 23, as well as employees who, between 1956 and 1963 when the one-day seniority rule was in effect, were bumped from the O & M Division to the Labor Division and were therefore not in Craft Helper positions when Stipulation 29 was implemented. Employees not covered by the conciliation agreement, but within plaintiffs’ class, are blacks hired before 1956 who remained in the Labor Division between 1956 and 1963 and who, as of 1966, had more plant seniority than whites in Craft Helper positions. 88a legitimate business reasons justify the adoption of Stipulation 29. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); Griggs, 401 U.S. at 431-32, 91 S.Ct. at 853-54; Page v. U.S, Industries, Inc., 726 F.2d 1038, 1053 (5th Cir. 1984). If defendants make the requisite showing, then the burden shifts to'plaintiffs to prove that other less discriminatory means were available to achieve defendants’ legitimate business purpose. See Albemarle, 422 U.S. at 425, 95 S.Ct. at 2375. Plaintiffs make two claims of adverse impact in connection with Stipulation 29. First, they claim that the proportion of blacks reclassified (into the special two-year training programs) as Mechanical Trainees from Craft Helper positions under Stipulation 29 was less than the proportion of senior black employees in certain lower job classifications. In response to this claim, the district court 89a held that the employees who were reclassified under Stipulation 29 would have reached the mechanical trainee programs first under the old system, and thus there was no adverse impact. Second, plaintiffs claim that as a result of Stipulation 29, blacks were locked out of top positions (the regular four-year training programs and number one jobs) for the next ten years. Although the district court did not address this contention, the evidence conclusively resolves the issue.29 Turning to plaintiffs’ first claim, we hold that Stipulation 29 had an adverse impact on blacks at a substantially higher rate than on whites. The record indicates that only 4.4% of employees reclassified as Mechanical Trainees by Stipulation 29 were black and 29The parties were asked at oral argument to supplement their briefs with specific information concerning the adverse impact of Stipulation 29. The information subsequently provided was already in the record; the parties merely consolidated the relevant facts into an easily usable form. The underlying facts upon which we base our holding concerning the lock-out effect of Stipulation 29 are not in dispute. 90a that, due to Gulfs pre-Act seniority system, 100% of the employees in the Utility Man classification in the Labor Division (in 1966) were blacks50 with, almost universally, more seniority than whites reclassified as Mechanical Trainees. Before Stipulation 29, these senior blacks enjoyed the possibility of promotion into Craft Helper positions and, from there, they could have bid into one of the four-year mechanical training programs. Because of their greater plant seniority, they would have been senior to many of the whites in the Craft Helper positions and therefore would have had the opportunity to bypass them. The defendants argue that many factors could have prevented the senior blacks from exercising their superior plant seniority to bypass junior whites under the pre- Stipulation 29 structure. Such factors include the 30The seniority roster for December 1, 1966 indicates that there were 18 blacks in the highest job classification in the Labor Division and no whites. These black employees were hired between 1925 and 1941. Many white Craft Helpers reclassified as Mechanical Trainees were hired after 1941. 91a employee’s absence, sickness and accident, safety, and disciplinary records, as well as the employee’s failure to fulfill the six-month residency requirement in the job classification below the classification for which the employee was bidding and the employee’s failure to pass a physical examination. This speculation has no effect; plaintiffs could not now prove that senior blacks would have inevitably bypassed junior whites. Plaintiffs need only prove, as they did, that senior blacks were denied the opportunity to bypass junior whites to establish a prima facie case of adverse impact. See Connecticut v. Teal, 457 U.S. 440, 451, 102 S.Ct 2525, 2532-33, 73 L.Ed.2d 130 (1982) ("[t]he suggestion that disparate impact should be measured only at the bottom line ignores the fact that Title VII guarantees [the plaintiff] the opportunity to compete equally with white workers on the basis of job- related criteria" (emphasis in original)). 92a Turning to plaintiffs’ second claim, we find that as a result of Stipulation 29 blacks were not locked out of top positions for ten years. Between 1957 and 1984, the Port Arthur Refinery experienced a 51% reduction in force, from 5,481 employees in 1957 to 2,872 employees in 1984. During this period, black representation in the workforce increased from 16% to 21%. The number of available mechanical training positions and number one craft jobs increased from 490 in 1966 to 764 in 1967, and remained relatively constant thereafter. Therefore, Stipulation 29 actually increased the number of top jobs. It also had the effect of eliminating many intermediate job classifications, thereby making upward mobility to the top craft jobs easier. Before 1967, the mechanical training programs contained virtually no blacks,^ however, the percentage of blacks entering the regular training 7 <1 In 1966, there were 28 whites and 1 black in mechanical training programs. 93a programs between 1967 and 1977 was 21.6%.32 In 1977, blacks represented 19% of the workforce/5 While we reject the plaintiffs’ claim that as a result of Stipulation 29 blacks were locked out of the regular four-year training programs and number one craft jobs for ten years, the first claim of adverse impact was established by plaintiffs. In 1967 many blacks lost the opportunity to use their superior seniority to bypass junior whites and as a consequence arrived at top positions at a later time than they would have absent Stipulation 29. Because the district court held that plaintiffs did not establish adverse impact, it did not consider Gulfs evidence that legitimate business reasons justified the adoption of Stipulation 29. See Albemarle, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375. As 32During this period, 330 non-black and 91 black employees entered these programs. 33Although Gulfs hiring practices are not at issue, evidence that the community surrounding the Port Arthur refinery is approximately 19% black was introduced. 94a noted earlier, the district court also did not address plaintiffs’ claim that Stipulation 29 evidenced purposeful discrimination, the establishment of which is essential to plaintiffs’ claim that the seniority system was not bona fide under § 703(h). The district court must now resolve these issues. IV. Craft Tests Since 1947 when Gulf established the mechanical training programs in the maintenance departments, senior bidders have been required to perform adequately on a battery of tests.-̂ The same tests have been administered for each of the mechanical (or "craft") training programs. From 1947 to 1971 the "old tests'1-^ were used to screen 34See supra note 21 and related text. 35The old tests consisted of six separate tests: (A) Test of Reading Comprehension; (B) Test of Arithmetic Fundamentals; (C) Wonderlic Personnel Test; (D) Mechanical Aptitudes Test; (E) Mechanical Insight Test; (F) Lee-Clark Arithmetic Test. 95a bidders, and since 1971 the "new tests'1̂ have been administered. Gulf considered test results along with other qualifications to determine whether senior bidders would be awarded trainee positions; no cut-off scores were used. In the district court, plaintiffs contended that both sets of tests had an adverse impact on blacks. Gulf responded that the tests were job related. The court upheld the tests’ validity, finding that while both sets of tests had an adverse impact, Gulf was not required to validate the old tests and Gulf established, through a criteria validation study, that the new tests were job related. On appeal, plaintiffs argue that the new tests 36The new tests consisted of four separate tests; (A) Bennett Mechanical Comprehension Test; (B) Test of Chemical Comprehension; (C) Arithmetic Test; (D) Test of Learning Ability. These tests were also used for the hiring of new employees. Therefore, employees hired after 1971 were not required to take any additional tests to enter one of the craft training programs. 96a were not properly validated and that Gulf is required to establish that the old tests were job related. Section 703(h)57 authorizes the use of professionally developed scored tests. The Supreme Court has construed this section "to require that employment tests be job related." Griggs, 401 U.S. at 435-36, 91 S.Ct. at 856. The plaintiffs bears the initial burden of establishing a prima facie case of substantial adverse impact by showing that significantly fewer members of plaintiffs class pass the test compared to their counterparts. Once established, the burden shifts to the defendant to show that the test is "job related." The plaintiff can rebut the defendant’s evidence by showing that, although the test is job related, alternative selection 3742 U.S.C. § 2000e-2(h)(1976). This section specifies that: (h) Notwithstanding any other provision of this subchapter, it shall not be . . . unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin. 97a devices exist which have a comparable business utility, but a lesser adverse impact. See Albemarle, 422 U.S. at 425, 95 S.Ct. at 2375. The district court found that use of the old and new tests had an adverse impact upon blacks.-35 As stated by the court, plaintiffs’ evidence showed that: 82.5% of whites who took the Old Tests between January 1969 and March 1971 ultimately passed. Only 42.8% of blacks who took the same tests during that period ultimately passed. Between 1971 and 1980, 97.7% of the whites who took the New Tests passed them, while only 66% of the blacks who took those tests passed. Gulf does not contest this finding, but argues that it has met its burden of showing that the tests are job related. Before turning to Gulfs proof, we must first address the burden imposed upon a defendant to show 38The court applied the "four-fifths rule" under 20 C.F.R. 1607.4(D) (1987). The rule specifies that: "A selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse im pact, . . 98a the job relatedness of a discriminatory test. The district court relief on Contreras v. City o f Los Angeles, 656 F.2d 1267 (9th Cir. 1981), cert, denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 140 (1982), for the proposition that an employer must by professionally accepted methods, prove that the test is "predictive of or significantly correlated with important elements of work behavior that comprise or are relevant to the job or jobs for which candidates are being evaluated." Id. at 1280 (the "significantly corre lated" standard). This burden departs somewhat from the stricter standard set forth by this Circuit in Watkins v. Scott Paper Co., 530 F.2d 1159 (5th Cir.), cert, denied, 429 U.S. 861, 97 S.Ct. 163, 50 L.Ed.2d 139 (1976), which requires an employer to prove that its selection device was necessary to the business goals of safety and efficiency. Id. at 1168-69 (the "business necessity" standard). 99a Recent Supreme Court cases suggest that the burden to be borne by employers when establishing a defense to discriminatory selection devices is embodied in the "significantly correlated," rather than the "business necessity," standard. An excellent discussion of these stan dards is contained in Contreras, in which the Ninth Circuit concluded that the business necessity language was incon sistent with Supreme Court case law and the congressional intent underlying Title VII. 656 F,2d at 1280. The Con treras court drew its "significantly correlated" language from Albemarle, in which the Supreme Court "clarified" the "appropriate standard of proof for job relatedness," 422 U.S. at 436, 95 S.Ct. at 2380, by articulating a standard that is "the same as that of the Griggs case—that discriminatory tests are impermissible unless shown, by professionally accepted methods, to be ’predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs 100a for which candidates are being evaluated/" Id. at 431, 95 S.Ct. at 2378 (quoting 29 C.F.R, § 1607.4(c); Contreras, 656 F.2d at 1279.59 The court in Contreras addressed a division within the Ninth Circuit between courts which adopted the "significantly correlated" standard in Albemarle and a court which adopted the stricter "business necessity" standard set forth in a footnote in Dothard v. Rawlinson, 433 U.S.321, 332 n. 14, 97 S.Ct. 2720, 2728, n. 14, 53 L.Ed.2d 786 (1977). In Dothard, the Supreme Court held that "the employer must meet ’the burden of showing that any given requirement [has] . . . a manifest relationship to the employment in question/" Id. at 329, 97 S.Ct. at 2727 39In Griggs, the Supreme Court held that: The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job per formance, the practice is prohibited. 401 U.S. at 431, 91 S.Ct. at 853. 101a (quoting Griggs, 401 U.S. at 432, 91 S.Ct. at 854). While the holding is consistent with prior Supreme Court cases, a footnote specified that "a discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge." 433 U.S. at 332 n. 14, 97 S.Ct. at 2728 n. 14. The Supreme Court has since indicated that the "significantly correlated" standard, rather than the "business necessity" standard, is controlling. See Contreras, 656 F.2d at 1279-80. In New York City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979), plaintiffs challenged a transit authority’s (TA) refusal to hire methadone users. The Court stated: Respondents recognize, and the findings of the District Court establish, that TA’s legitimate employment goals of safety and efficiency require that exclusion of all users of illegal narcotics, barbiturates, and amphetamines, and of a majority of all methadone users. The District Court also held that those goals require the exclusion of all methadone users from the 25% of its positions that are ‘safety sensitive.’ Finally, the District Court 102a noted that those goals are significantly served by- -even if they do not require-TA’s rule as it applied to all methadone users including those who are seeking employment in non-safety-sensitive positions. The record thus demonstrates that TA’s rule bears a ’manifest relationship to the employment in question.’ Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280. Id. at 587 n. 31, 99 S.Ct. at 1366 n. 31 (emphasis added) (citation omitted); see Contreras, 656 F.2d at 1279-80. Fifth Circuit cases decided after Beazer and Contreras have imposed a less strict standard than business necessity upon defendants seeking to show that their selection devices are job related. In Rivera v. City o f Wichita Falls, 665 F.2d 531 (5th Cir. 1982), we affirmed a district court’s determination that a police test was job related without requiring a further showing that the test was necessary to the safety and efficiency of the police unit. Id. at 536-38. Likewise, in Cormier v. P.P.G. Indus tries, Inc., 702 F.2d 567 (5th Cir. 1983), we affirmed a 103a district court’s decision that the defendant successfully rebutted plaintiffs prima facie case of adverse impact by showing that its tests had "a manifest and legitimate and business relationship to the jobs for which the tests were used." Id. at 568. We conclude that the business necessity standard adopted in Watkins40 has been modified by subsequent 40W atk ins, 530 F.2d 1159, and the two primary cases upon which it relied for the business necessity standard, U nited S ta tes v. Jacksonville T erm inal C o ., 451 F,2d 418 (5th Cir. 1971), c e r t denied, 406 U.S. 906, 92 S.Ct. 1607, 31 L.Ed.2d 815 (1972); U nited S ta tes v. B eth lehem S tee l C orp., 446 F,2d 652 (2d Cir. 1971), were decided before T eam sters, 431 U.S. 324, 97 S.Ct. 1843. As we discussed earlier in connection with Gulfs seniority system, T eam sters held that "an otherwise neutral, legitimate seniority system does not become unlawful under Title VII simply because it may perpetuate pre-Act discrimination." 431 U.S. at 353-54, 97 S.Ct. at 1864. Jacksonville and B eth lehem both involved challenges to seniority systems which perpetuated prior discrimination and in each case, the court cited Q uarles, 279 F. Supp. 505 (E.D. Va. 1968) and L o c a l 189, U nited P aperm akers, 416 F.2d 980 (5th Cir. 1969), for the proposition (rejected in T eam sters) that a neutral seniority system that merely perpetuates past discrimination is not bona fide under § 703(h). In W atkins, the business necessity standard was derived from Bethlehem Steel: [T]he "business necessity" doctrine must mean more than that transfer and seniority policies serve legitimate management functions. Otherwise, all but the most blatantly dis criminatory plans would be excused even if they perpetuated the effects of past discrimination. Clearly such a result is not 104a Supreme Court decisions, as recognized by Fifth Circuit panels, and hold that discriminatory tests are impermissible unless shown, by professionally accepted methods, to be predictive of or significantly correlated with important elements of work behavior that comprise or are relevant to the job or jobs for which candidates are being evaluated. correct under Title VII. Necessity connotes an irresistible demand. To be preserved, the seniority and transfer system must not only directly foster safety and efficiency of a plant, but also be essential to those goals. If the legitimate ends of safety and efficiency can be served by a reasonably available alternative system with less discriminatory effects, then the present policies may not be continued. Bethlehem Steel, 446 F.2d at 662 (citations omitted) (quoted by Watkins, 530 F.2d at 1168). This standard was extended in Watkins to selection criteria, such as hiring and testing. We note that the basis upon which B ethlehem S teel and Jacksonville rests was undermined by T eam sters, but make no com ment concerning the likely disposition of those cases if decided today or the applicability of the business necessity standard to the circumstances presented therein. Our holding today concerns only defendant’s burden in showing that a discriminatory test is job related. 105a A. The Job Relatedness of the New Tests In 1969, Gulf hired Richardson, Bellows and Henry ("RBH"), an outside consulting firm of industrial psychologists, to develop the new tests. This firm con ducted three criteria validation studies in 1971, 1974 and 1983 to establish the job relatedness of these tests. Criterion related validation is established when there is a significant positive correlation between comparative success on the test (the "predictor") and comparative success on some measure of job performance. The degree of correlation between test scores and job performance is expressed by a correlation coefficient. The value of the correlation coefficient can range from + 1.0 (employees with the highest test scores always perform better on the job) to -1.0 (employees with the highest test scores always perform worse on the job). A coefficient of zero indicates that there is no correlation between test and job performance. 106a Gulf primarily relied upon the 1983 study to establish the validity of its new tests. Although the same tests were administered to senior bidders seeking positions in all of the OCAW craft training programs, the study only yielded correlation coefficients with respect to the pipefitting and boilermaking departments.^ Because the 41 The 1983 study involved numerous Gulf facilities, including the Port Arthur, Alliance, Cincinnati, Philadelphia, and Sante Fe refineries and the Orange,Cedar Bayou, St. James, Jayhawk and Marietta chemical plants. Job analysis and performance rating data were collected from all of these locations. Because job classifications between the refineries and chemical plants were similar (i.e. a pipefitter at the Port Arthur refinery performed the same type of work as a pipefitter at the Cincinnati refinery), the criteria used to evaluate job performance at each location was the same. Virtually all of the employees in the study had taken the new tests. Test scores were compared to job performance for a number of job classifications many of which were not among the craft positions with which we are presently concerned (i.e. Laboratory Technicians, Operators, non-OCAW crafts). The study attempted to establish the validity of the new tests for five of the OCAW crafts: boilermaking, pipefitting, welding, carpenter and instrument. However, RBH was unable to validate the tests for the latter three crafts. The job performance ratings for the welders were too similar to establish a significant correlation between test and job performance. In the case of carpenters and instrument mechanics, the ratings given by the two raters used to evaluate job performance (each employee was evaluated by two supervisors and their ratings were compared to derive a single job performance rating) differed to such a degree that RBH concluded that neither rating was a reliable measure of the employees’ job performance. Therefore, the 1985 study introduced into evidence contained data about only two of the craft departments, boilermaking and pipefitting. 107a tests in the Gulf battery were not used separately, the total battery scaled score comprised the predictor/2 Plaintiffs’ primary objection to the 1983 study centers upon the criteria, called the "performance elements,"45 used by supervisors to evaluate the job per formance of incumbent employees in the pipefitting and boilermaking departments/4 In developing the criteria, RBH first directed supervisors to rate the relative 42In other words, it was an employee’s performance on the entire test battery, not the employee’s performance on any one of the four new tests, that was compared to the employee’s rating on job performance. 43The performance elements were: (1) learning new procedures quickly; (2) knowing when to get help; (3) handling several tasks at once; (4) understanding written instructions; (5) understanding oral instructions; (6) working without supervision; (7) paying attention to detail; (8) passing on instructions to others; (9) training other employees; (10) taking a systematic approach to work; (11) planning own work; (12) following standard operating procedures; (13) identifying problem situations quickly; (14) making accurate entries in logs or records; (15) completing assignments on time; (16) reading prints and diagrams; (17) setting priorities; (18) devising creative solu tions; (19) remembering large amounts of detail; (20) making on- the-spot decisions; (21) communicating orally; and (22) working with others. 44Employees in the top positions and training programs in these departments were evaluated. 108a importance of 117 duties and 37 abilities.45 The duty elements were intended to provide RBH with a better understanding of the tasks performed in each job classification, while the ability elements were the focus of the criterion development. The specific criteria selected by RBH for inclusion in the rating form were based upon the importance attached to the various ability elements by the supervisors,46 Plaintiffs contend that the validation study was improperly conducted because the criteria used to evaluate job performance were related to general 45A questionnaire, entitled "Job Requirements Questionnaire for Maintenance, Construction, Operating, and Technical Classifications" ("JRQ"), which contained the duty and ability elements, was submitted to supervisors at all of the locations studied. The supervisors were directed to rate each duty and ability element on a four-point scale, which indicated the importance of each. The criteria ultimately chosen to evaluate job performance were derived from the super visors’ responses to the JRQ. Each criteria element selected for inclusion in the rating form was a significant job requirement (taken from the "ability element" list) as indicated by a consistently substantial JRQ rating and ratable element on which meaningful performance evaluations could be based. 46See supra note 45. The same rating form was used to evaluate all of the jobs studied at all of the locations. 109a cognitive abilities and not specific job duties/7 In other words, plaintiffs argue that the criteria used did not con sist of "important elements of work behavior that comprise or are relevant to the job.,H*° See Albemarle, 422 U.S. at 431, 95 S.Ct at 2378. Therefore, plaintiffs conclude, the correlation coefficients derived from the 1983 study cannot ^Supervisors listed the ten most important duties of boilermakers as: (1) using common hand-held non-power tools; (2) following safety procedures; (3) working at heights over four feet; (4) using common hand-held power tools; (5) working as a member of a team; (6) carrying out simple oral instructions; (7) working outside; (8) using handling and lifting devices; (9) repairing frames and platforms; and (10) maintaining a clean work area. Supervisors listed the ten most important duties of pipefitters as: (1) assembling piping; (2) using common hand-held non-power tools; (3) maintaining clean work area; (4) working outside; (5) following established safety procedures; (6) working at heights over four feet; (7) using common held-held power tools; (8) carrying out simple oral instructions; (9) performing simple arithmetic calculations; and (10) climbing ladders. ^Plaintiffs specifically argue that the performance elements (see supra note 43) used to evaluate job performance of incumbent employees in the boilermaking and pipefitting training programs and top jobs had virtually nothing in common with the actual duties which supervisors rated as important in these jobs {see supra note 47). For example, plaintiffs note that the performance elements contained only two duty elements which the supervisors rated in the top ten category of importance in the boilermaking department: following oral instructions and working as a team. Additionally, certain performance elements, such as recording data and preparing records, were ranked by the supervisors as relatively unimportant. 110a be used to establish a significant relationship between test and job performance. The district court found that the criteria employed by RBH accurately reflected the important elements that comprise the jobs studied. The court noted that "about one-half of [Gulfs] criteria are actual duty elements of the same character of Plaintiffs." In reaching its conclusion, the court emphasized that the positions for which adequate test performance was a prerequisite required certain cognitive abilities, and that performance on tests which were designed to correlate solely with the duty elements would be a poor predictor of job performance. We find no error in the district court’s determination. Upon successful completion of a training program, an employee promotes to the top position for which he has been trained. Gulfs proof supports the conclusion that the possession of certain cognitive abilities 111a is important to success as a trainee and craftsman.4 9 49Gulf introduced job descriptions and a compilation of the required abilities for top craftsmen. Among the basic requirements are the following: 1. must be able to read and write; 2. must be able to comprehend verbal and written instructions and be able to perform work assignments within his craft with or without assistance and with minimum supervision; 3. must be knowledgeable of applicable safety procedures, work practices, and guidelines covering the work; 4. must be familiar with and competent in the use of tools and equipment peculiar to his/her craft; 5. must be capable in taking the lead in performing work assignments and must be able to train and demonstrate proper craft techniques and skills to apprentices assigned for on-the-job training; and 6. must be accountable and responsible that the quantity and quality of his/her workmanship is inherently correct and within the recognized-accepted norm. Job performance must be executed in a manner that does not present a fire or safety hazard to personnel or equipment. All craftsmen must possess the abilities and skills needed to fulfill the basic requirements. In addition, each particular craft has specific requirements. For example, pipefitters are required to: 1. be knowledgeable of applicable procedures, work practices, codes and guidelines governing the fabrication and installation of pipe; 2. be able to read and work from blueprints; must be able to measure, sketch, and make drawings, including calculations for routine and complex piping designs; must be able to develop bills of material for piping fabrication jobs and be knowledgeable with the stores’ catalog system; and 3. be competent in fabricating of pipe systems, install and remove pipeline blanks, hook up test pumps, and hydrostatically test pipe systems, set up and operate hydro blasting equipment, chemical cleaning equipment, sandblasting equipment, pipethreading machines, pipe bending machines, and burning equipment. 112a Plaintiffs offered no evidence to show that the exclusive use of duty elements as criteria would have yielded lower correlation coefficients. To the contrary, Gulfs expert testified that higher correlation coefficients would result had RBH selected duty elements as the measure against which job performance was judged. Under these circumstances, we find that the criteria used to evaluate job performance consisted of important elements relevant to the jobs studied. This holding does not necessarily lead to the conclusion that the tests are job related; it only establishes that a proper rating system was used to evaluate job performance. To establish the job relatedness of the tests, the degree of correlation between test scores and job performance ratings must be examined. The district court upheld the validity of the tests without making any findings concerning the sufficiency of correlation. Because a finding of significant correlation between test results and 113a job performance is a prerequisite to a holding that the tests are job related, we assume that the court sub silentio made this finding. Plaintiffs challenge the validity of the tests as they relate to all of the OCAW maintenance departments. The 1983 study yielded correlation coefficients for only the pipefitting and boilermaking departments.5^ The unadjusted coefficients5̂ were, for pipefitters .22, and for boilermakers .32. When adjusted for criteria unreliability the coefficients were .23 and .51 respectively, and when adjusted for battery score restriction, the coefficients were ,27 and .38 respectively. While Gulfs experts testified that the unadjusted figures underestimated the coefficients’ true values, the record contains little evidence concerning the reliability of the adjusted figures. 50S&? supra note 41. 51These coefficients have not been adjusted for restriction in range, less than perfectly reliable measures of test and job performance, and small sample size. 114a Gulfs expert, Dr. Hunter, testified that the results of an American Petroleum Institute (API) study, which synthesized forty-two local validation studies performed by companies in the petroleum industry on tests similar to those used by Gulf, indicated that Gulfs tests are job related. Using the methodology of the API study, Dr. Hunter recomputed the results of the 1983 RBH study and derived a correlation coefficient, for maintenance, operations and laboratory technician employees, of 31.52 From this evidence, it is not possible to determine the basis for the district court’s holding that the tests are job related. We are troubled by the fact that Gulf submitted correlation coefficients for only two maintenance departments and did not attempt to show that the tests were valid with respect to the other OCAW 52This recomputation compared test results to job performance in all of the job classifications for which the RBH study was conducted, not just the maintenance departments. See supra note 41. 115a maintenance departments/5 We therefore remand this cause to the district court for further findings. The court is directed to hold evidentiary hearings as it deems necessary, and to take into consideration the relationship between test scores and job performance in all of the departments which comprise the basis for plaintiffs’ complaint/'* In determining whether the tests are signif- 53Actually, the RBH study attempted, but was unable, to validate the tests with respect to the welding, carpenter and instrument departments. See supra note 41. However, no attempt was made to validate the tests with respect to the other OCAW maintenance departments. 54We recognize that this will require Gulf to submit further evidence on the relationship between test scores and job performance in the OCAW maintenance departments, with the exception of the pipefitting and boilermaking departments. In its 1983 study, RBH obtained correlation coefficients which indicated the similarity between certain departments; for example, the correlation based on ability elements between boilermakers and instrument mechanics was .78 (the "similarity coefficient"). See defendants’ exhibit 126, page 28. The correlation coefficient for instrument mechanics was then computed by multiplying the unadjusted coefficient for boilermakers, .32, with the similarity coefficient, .78, which resulted in a figure of .24. See defendants’ exhibit 129. If the district court finds this method to be reliable, then it may permit Gulf to establish the necessary correlation coefficients in ths manner. The court may also require Gulf to present other forms of evidence to establish the relationship between test scores and job performance as it deems necessary. 116a icantly correlated with job performance, the court should specifically set forth the reasons that justify its determina tion, including any correlation coefficients upon which it relies and an explanation for its reliance. B. The Old Tests The district court held that, as a matter of law, Gulf was not required to validate the old tests. The court’s analysis of this issue was as follows: So far as the Old Tests are concerned, Gulf was not required to validate them, for the reason that the Old Tests were eliminated four years before Albemarle Paper Co. v. Moody, 422 U.S. 405 [95 S.Ct. 2362, 45 L.Ed.2d 280] (1975), imposed vali dation requirements; and seven years before The Equal Employment Opportunity Guidelines in Employee Selection Procedures instigated validated studies. We find that while it may not be possible at the present time to conduct a criteria validation study on the old tests, Gulf still bears the burden of establishing that these tests were job related. The old tests were used until 1971, and as early as 1966 Gulf had notice that the 117a administration of non-job related tests was prohibited.55 The Supreme Court in Griggs invalidated tests which had been in use since 1965. 401 U.S. at 428, 91 S.Ct. at 852. On remand, the district court is directed to determine whether the old tests were job related. Given the impracticality of requiring that a validation study be conducted, Gulf may establish the job relatedness of the old tests through other methods.56 See e.g., Davis v. City o f Dallas, 111 F.2d 205, 221-23 (5th Cir. 1985), cert, denied, 476 U.S. 1116, 106 S.Ct. 1972, 90 L.Ed.2d 656 (1986); B. Schlei & P. Grossman, Employment Discrimination Law 14-56 (2d ed. 1983). 55The EEOC Guidelines on Employment Testing Procedures, issued in August 1966, prohibited the use of non-job related tests. The Supreme Court in Griggs relied upon these guidelines. 401 U.S. at 433-34, 91 S.Ct. at 854-55. 56At trial, Gulf attempted to establish the job relatedness of the old tests through a method called "path analysis." This method relied upon the results of the criteria validation study on the new tests to establish correlation coefficients for the old tests. We reserve consideration of the reliability of this method and leave this determination to the district court. 118a V. Disparate Treatment Plaintiffs raise two claims of classwide disparate treatment concerning Gulfs application of its Sickness and Accident (”S & A") policy and Gulfs selection of supervisors. To establish these claims, plaintiffs must prove that Gulf intentionally discriminated against blacks on a regular basis. Teamsters, 431 U.S. at 366 & n. 16, 97 S.Ct. at 1855 & n. 16. Proof of "more than the mere occurrence . of isolated or ‘accidental’ or sporadic discriminatory acts" is required. Id. Statistics establishing a great disparity between Gulfs treatment of blacks and whites may alone justify an inference of discriminatory motive. Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 817 (5th Cir.), cert, denied, 459 U.S. 1038, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982). If statistical evidence is insufficient to establish discriminatory intent, the plaintiffs may introduce historical, individual, or circumstantial evidence. Id. See Walls v. Mississippi State Dep’t o f Pub. 119a Welfare, 730 R2d 306, 321-22 (5th Cir. 1984); Page v US. Indus., Inc., 726 F.2d 1038, 1046 (5th Cir. 1984); Pouncy v. Prudential Ins. Co. o f Am., 668 F.2d 795, 802 (5th Cir. 1982). Gulf may rebut plaintiffs’ prima facie case by introducing proof that plaintiffs’ statistics are "inaccurate or insignificant," Payne, 673 F.2d at 817, or by providing a "non-discriminatory explanation for the apparently discriminatory result," id. (quoting Teamsters, 431 U.S. at 360 n. 46, 97 S.Ct. at 1867 n. 46). Before turning to a discussion of plaintiffs’ specific allegations, we note that the ultimate determination of the existence of intentional discrimination is a question of fact, reviewed on appeal under the clearly erroneous standard. Anderson v. City o f Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); Page, 726 F.2d at 1044-45. 120a A. Discriminatory Application of Sickness and Accident Policy An employee’s bid for certain desirable positions, such as supervisory and mechanical trainee positions, trig gers an examination of his S & A record to determine whether absences are excessive. A record indicating more than 80 hours of S & A in the preceding year is carefully scrutinized and may result in disqualification. Plaintiffs introduced statistical evidence which purported to show that between 1975 and 1980, 33.1% of all black bidders and 22.0% of all white bidders were rejected because of their unsatisfactory S & A records, and anecdotal tes timony from three witnesses which attempted to establish individual acts of discrimination. At trial, plaintiffs argued that Gulfs policy had an adverse impact on blacks and that Gulf subjected black employees to disparate treatment. The district court held that, "Gulfs S & A policy was applied equally to blacks 121a and white. Hence, even if Gulfs S & A policy resulted in adverse impact on blacks, its use is justified as good business practice under Title VII." (citation omitted). On appeal, plaintiffs do not advance their adverse impact claim but instead contend only that Gulf intentionally discriminated against blacks In the application of its S & A policy. Gulfs evidence establishes that the average number of S & A hours for bypassed whites was 188.5 while the corresponding figure for bypassed blacks was 220 hours. These numbers tend to show that Gulf did not discriminatorily apply its S & A policy to the disadvantage of blacks. We find the anecdotal testimony of plaintiffs’ witnesses insufficient to establish classwide disparate treatment. We therefore agree with the district court and hold that plaintiffs have failed to prove that Gulf engaged in intentional discrimination. 122a B. Discriminatory Selection of Supervisors Gulf promoted upper level hourly employees to supervisory positions. Supervisors are not covered by the labor agreement, and before 1982 the selection process was not formalized. Employees with departmental experience and knowledge, good attendance and safety records, and strong interpersonal, oral and written communications skills were selected for supervisory positions. Between 1965 and 1982, there were 231 promotions to supervisor, with 22, or 9.5%, going to blacks.57 Plaintiffs contend that blacks were selected as supervisors at rates inconsistent with black representation in the refinery’s hourly workforce. Plaintiffs attempted to establish a prima facie case of disparate treatment by 57The district court stated that "[plaintiffs further contend that between 1965 and 1982, there were a total of 209 promotions to supervisor, with 22 or 10.5% going to blacks." This is a mis statement of the statistics as set forth in plaintiffs’ exhibit number 16, which reflects the figures we have used. 123a introducing statistical evidence and anecdotal testimony from four witnesses. Gulf rebutted plaintiffs’ statistical evidence by arguing that the relevant eligibility pool for supervisory positions was composed of employees in the top positions and introduced evidence showing that between 1967 and 1982 blacks composed only IZ.21%58 of this pool Gulf also introduced statistics showing that blacks were promoted to supervisor after they had averaged approximately 19 years at the plant and approx imately 3 years in the top job, while whites were promoted after they had averaged approximately 26 years at the plant and 8 1/2 years in the top job. The district court, after reviewing this evidence, found that Gulfs policy of promoting experienced employees was justified and held that, "[ajlthough Gulfs standards of selection 58The district court stated that between 1967 and 1982 "blacks constituted 1135% of the top job employees; 13.7% of the supervisory positions went to blacks." However, defendants’ exhibit number 117 indicates that blacks constituted 13.27% of the top-job employees and 11.35% of the supervisory positions went to blacks. 124a were unwritten and subjective, the Court finds no evidence that the standards were discriminatorily applied. The evidence presented does not demonstrate that Gulf intended to discriminate, or, from a statistical standpoint, that it did discriminate in promoting craftsmen to supervisory jobs." On appeal, plaintiffs contend that the district court improperly evaluated Gulfs total record instead of examining specific time periods when few blacks were promoted to supervisory positions. Plaintiffs note that out of 36 employees promoted to supervisor between 1965 and 1970 there was only one black. We find this argument meritless because relatively few blacks held top jobs during this time period and separate analysis would improperly incorporate the effects of pre-Act discrimination. We agree with the district court that plaintiffs’ statistical and anecdotal testimony did not establish that Gulf intended to discriminate. 125a VI. Individual Claims The named plaintiffs asserted individual as well as classwide claims. To the extent that we have upheld the district court’s ruling on the classwide claims, plaintiffs’ individual claims based upon these allegations are fore closed. Cooper v. Fed. Reserve Bank o f Richmond, 467 U.S. 867, 880-81, 104 S.Ct. 2794, 2801-02, 81 L.Ed.2d 718 (1984). Resolution of plaintiffs’ individual claims concerning adverse treatment under the seniority system, Stipulation 29, and the craft tests is reserved until the district court considers whether these claims (on a classwide basis) have merit on remand. In considering plaintiffs’ individual claims of intentional racial discrimination, the district court correctly looked to the four-prong test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 36 L.Ed.2d 668 (1973). The court stated that: 126a [t]he Plaintiff must prove that (1) he belongs to a group protected by Title VII, (2) he was qualified for the job, (3) he was not promoted, and (4) the employer promoted one not in Plaintiff’s protected class. If Plaintiff makes out a prima facie case, the employer must produce "evidence that the plaintiff was rejected, or someone else was preferred, for legitimate, non-discriminatory reasons." Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248, 254 [101 S.Ct. 1089, 1094, 67 L.Ed.2d 207] (1981). If the employer meets this burden, "the presumption of discrimination ’drops from the case,’ and the District Court is in a position to decide . . . whether the particular employment decision at issue was made on the basis of race." Cooper v. Federal Bank, [467 U.S. 867] 104 S.Ct. 2794 [81 L.Ed.2d 718] (1984). The court held that none of plaintiffs’ individual claims established a prima facie case of intentional discrimination. Plaintiffs Hayes and Brown alleged that they were unlawfully denied supervisory positions. The district court rejected these claims, holding that these plaintiffs failed to establish a prima facie case because they never "applied" for such positions. The court failed to consider the fact that supervisory vacancies were not announced prior to 127a 1982 and that no application process existed. It is not legally sufficient or legitimate for an employer to reject an employee who does not have notice or an opportunity to apply for a promotion. See Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1134 (11th Cir. 1984). On remand, the district court is directed to reconsider Hayes’ and Brown’s evidence of intentional discrimination and Gulfs rebuttal evidence. Plaintiff Tizeno also contended that he was discriminatorily denied a promotion to supervisor. Tizeno did not testify at trial because of illness; however, his deposition was admitted. His deposition reveals that a supervisory position was awarded to a white employee, Mr. Chesser, who had half the departmental experience of Tizeno. The district court held that, "[although he testifies that Mr. Chesser, a white employee, received a promotion he requested, Mr. Tizeno offers no evidence that he was better qualified for that position." 128a We find this ruling incorrect as a matter of law because a Title VII plaintiff is required to prove only that he was qualified for the position at issue, not that he was more qualified than the successful applicant. Although the evidence is slight, arguably Tizeno met this burden. On remand, the district court is directed to make further findings. After carefully reviewing the record and the district court’s disposition of the remaining individual claims of intentional discrimination, we find no error and affirm this part of the court’s judgment. Conclusion We hold that the district court properly decertified the class to exclude employees who had signed releases, dismissed the Trade Unions, and excluded certain trial exhibits. We uphold the court’s decision with respect to its disposition of the classwide claims concerning Gulfs application of its Sickness and Accident policy and Gulfs 129a selection of supervisors. We vacate the court’s judgment because of the disposition of the issues of Gulfs seniority system, Stipulation 29 and the job relatedness of the new and old tests and direct the court on remand to make further findings. Specifically, the court is directed to determine: (1) whether Stipulation 29 evidenced purposeful discrimination and, if so, whether this post- Title VII act of discrimination, when combined with Gulfs pre-Title VII discrimination, is sufficient to demonstrate that the seniority system is not bona fide; (2) whether legitimate business reasons, sufficient to defeat plaintiffs’ showing of adverse impact under Griggs, justified Gulfs adoption of Stipulation 29; (3) whether the degree of relationship between test scores on the new tests and job performance is sufficiently significant to establish that the new tests ajob related. If the court determines that the seniority system is not bona fide or that Stipulation 29 constituted a Griggs violation, then the court is directed to 130a consider whether the OCAW is liable due to its function as the union representative of the plaintiffs. On remand the court should hold evidentiary hearings as it deems necessary, make specific findings of fact, and specifically set forth the reasons that justify its determinations. We also vacate the court’s judgment with respect to the individual claims of unlawful denial of promotion to super visory positions by plaintiffs Hayes, Brown and Tizeno and direct the court to make further findings on remand. We affirm the court’s judgment on the remaining individual claims. AFFIRMED in part, VACATED in part and REMANDED. APPENDIX The chart below shows how the instrument department was affected by the reorganization and Stipulation 29. The ten other OCAW maintenance departments (with the exception of the bath and motor 131a transportation departments, see supra note 23) were similarly affected. 132a BEFORE REORGANIZATION & STIPULATION 29 AFTER REORGANIZATION & STIPULATION 29 O & M DIVISION1 LABOR DIVISION MAINTENANCE DIVISION1 Instrument Depart. Labor Subdepart. Instrunent Instrument Man No.1 Instrument Man Mechanical Trainee Mechanical Trainee Instrument Man No.2 (Craft Helper)^ Utility Man Instrunent Man No.3 (Craft Helper) Laborer Mechanical Helper Pool5 Utility Man No.1 (Intermediate Job Classifications)* Laborer 1 The O&M Division had many departments, only the instrument department is shown here. 2 The Instrument Man No. 2 and No. 3 classifications were collectively referred to as Craft Helper positions. All maintenance departments had Craft Helper positions, but the number of job classifications which composed these positions differed between departments. Stipulation 29 eliminated all of these Craft Helper positions and moved incumbent employees into special two-year training programs. 3 Employees in the mechanical helper pool were not confined to entering the instrument department but could also bid into entry level jobs in other departments in the O & M Division. 133a 4 There were a number of subdepartments in the Labor Division, and many had job classifications between Laborer and utility Man No. 1. These classifications were eliminated by the reorganization, and the incumbent employees were reclassified as either "Utility Men" or "Laborers." 5 The Maintenance Division, after the reorganization, was composed of fourteen departments. An OCAW employee in the Utility Man position could bid into any one of the training programs associated with the eleven OCAW departments, depending upon which program had vacancies. 134a IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION WESLEY P. BERNARD, ET AL., : : CIVIL vs. : ACTION : No. GULF OIL CORPORATION, : B-76-183-CA ET AL., : ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW MANDATED BY THE FIFTH CIRCUIT COURT OF APPEALS FINDINGS OF FACT PROCEDURAL HISTORY This class action was commenced on May 18, 1976, against Gulf and the Oil, Chemical and Atomic Workers’ International Union, Local Union No. 4-23, Plant Group ("OCAW") by six black employees of Gulfs Port Arthur, Texas, refinery ("the Refinery"). The suit alleged that Gulf and the OCAW had engaged in racial discrimination prohibited by Title VII of the Civil Rights Act of 1964, 42 135a U.S.C. Sec. 2000-3 [sic] et seq. and the Civil Rights Act of 1866, 42 U.S.C Sec. 1981. Since the action was filed, Gulf Oil Corporation has merged with Chevron U.S.A. Inc., a wholly-owned subsidiary of Chevron Corporation. However, at all times relevant to the instant lawsuit, Gulf was a Pennsylvania corporation, doing business in Texas and operating an oil refinery in Port Arthur, Texas. Gulf was engaged in interstate commerce and employed more than 15 persons. The suit was based on an administrative charge of discrimination filed on June 24, 1967, by Wesley Bernard and others against Gulf and the OCAW. The Equal Employment Opportunity Commission ("EEOC") issued right to sue letters on June 11, 1976. The Court has jurisdiction of Gulf and the OCAW for allegedly discriminatory acts occurring on or after December 26, 1966. 136a Trial was held in April, 1984. On September 18, 1986, this court issued a memorandum opinion finding for Gulf and the OCAW on all issues raised by the Complaint, and the Plaintiffs appealed. In an opinion dated March 22, 1988, a panel of the United States Court of Appeals for the Fifth Circuit affirmed this court’s decision in part. It affirmed this court’s evidentiary rulings, decisions as to class certification, and dismissal of non- OCAW unions. It further affirmed this court’s findings that Gulf had not discriminated against the class in applying its sickness and accident policy or in appointing supervisors from the hourly ranks. It also affirmed this court’s finding that Gulf had not committed discrimination against Wesley Bernard individually in not appointing him to a supervisory job, and affirmed this court’s findings regarding individual claims of plaintiffs Johnson and Whitley. Finally, it affirmed this court’s finding that the 137a methods used in Gulfs studies, undertaken to validate certain tests (the "New Tests"), were proper. The Court of Appeals vacated certain other aspects of this court’s opinion, and remanded for further findings. Specifically, it directed this court to consider whether Stipulation 29, a provision in the 1967 Collective Bargaining Agreement between Gulf and the OCAW, evidenced intentional discrimination. If it did, the Appeals Court directed this court to consider whether this fact rendered the seniority system negotiated by Gulf and the OCAW other than bona fide, and also to consider Gulf and the OCAW’s defense that Stipulation 29 was implemented for legitimate business reasons. The Court of Appeals also directed this court to provide further findings on whether and why the validation studies undertaken by Gulf demonstrated that Gulfs New Tests were job related. With respect to a different group of tests ("the Old Tests") that could not be validated through 138a a formal study, the Appeals Court directed this court to make findings on whether Gulf had shown those tests to be job related by other acceptable methods. Finally, the Court of Appeals directed this court to make further findings on whether Gulf had individually discriminated against Messrs. Hayes, Brown and Tizeno in not promoting them to supervisory jobs. I. THE SENIORITY SYSTEM AND STIPULATION 29 1. The Port Arthur Refinery has existed since around 1903, and lines of promotion have existed there at least since 1934. T 13, 649, 681. Since 1943, T 687-688, the OCAW (Plant Group) and its predecessor unions have traditionally represented employees in operations jobs, labor jobs, and a number of crafts not represented by other unions. The OCAW’s representation includes negotiation of the seniority system and lines of promotion 139a therein. In 1947, Gulf and the OCAW negotiated the first Mechanical Training Programs for certain OCAW crafts. T 654. These made available to the OCAW craftsmen a program similar to the apprenticeships in crafts represented by other unions. T 31, 985. In 1967, by means of Stipulation 29 to the 1967 Collective Bargaining Agreement between Gulf and the OCAW, similar programs were established for most of the remaining OCAW crafts. T 33, Class Certification Hearing JDX-B- 2. 2. Stipulation 29 essentially eliminated all jobs in the maintenance craft lines of promotion except the No. 1 Craftsman, the Mechanic Trainee, and the Truck Driver classification in the Equipment Operator line, T 658, DX 40. Incumbents of the eliminated jobs were given a simple test, T 31, and those who passed were placed in a two-year Mechanical Training Program to become No. 140a 1 craftsmen. The people who were placed in the two- year program had all been in their craft line for at least ten years, T 28, 984. For historical reasons, most of them (though not all) were white. 3. Dr. Milden J. Fox is an expert in Industrial Relations who testified at the trial Dr. Fox conducted his doctoral dissertation in 1969, before this lawsuit was filed. As part of his dissertation, Dr, Fox studied four Golden Triangle refineries. Dr. Fox’s dissertation was introduced in evidence as DX 85, and Dr. Fox testified at the trial that Stipulation 29 was part of an ongoing effort to improve efficiency at the Refinery. He testified that labor shortages occurred during the war. T 693-694. The manpower problems stemming from these labor shortages led to inefficient use of personnel. T 690, 693-694, DX 85, p. 56-67. 141a 4. Dr. Fox testified that before the Suez crisis in 1956, the demand for refined petroleum was such that inefficiencies could be tolerated. T 693. However, supertankers built to meet the Suez crisis reduced the demand for U.S. refined petroleum' products, and American refineries began to experience losses. T 695, DX 85. The Port Arthur Refinery was charged with an operating loss in 1958 of $18 million, DX 85, p. 114. Labor, particularly maintenance labor, was a significant component of the excess costs, and the method of making work assignments contributed significantly to the problem. DX 85, p. 114-115. Gulfs management responded with cost-cutting measures, including work force reductions through attrition and layoff. DX 85, T 697. Refiner}' management also sought to increase the efficiency of the work force through measures permitting more flexible use of employees. T 694-696, 670A, 698; DX 85. Among 142a these measures were an "incidental and related" clause, T 699, 979-980, and Stipulation 29. T 674A; DX 85, p. 120. 5. Before Stipulation 29 was implemented, the maintenance crafts were characterized by complex lines of promotion, at the top of which was a No. 1 craft job. DX 38. Before efficiency measures were introduced, only those in a particular classification could perform work peculiar to that classification. This rule, together with complex promotion lines, contributed significantly to the inefficiencies. DX 85, p. 115. 6. One of the first measures designed to alleviate the problem was adopted in 1959, when Gulf and the OCAW negotiated an "incidental and related" clause. T 699, DX 85, p. 116. This clause permitted a craftsman to do a small job of short duration, one that was usually the work of another craft, if it was incidental and related to his 143a primary job, and he could perform safely. T 699; DX 85, p. 116-117. The "incidental and related clause" significantly increased efficiency. T 670A-671A; DX 86. 7. In 1962, Stipulation 33 was negotiated between Gulf and the OCAW. It permitted the company to assign journeyman craftsmen to help journeyman craftsman in other crafts, providing they were capable of doing the job and did not work overtime. DX 85, p. 119; T 672A-674A. This measure further increased efficiency, DX 87, and was a '"breakthrough" in the work assignment area. DX 85, p. 119. 8. Stipulation 29 was negotiated in 1967 as a furtherance of the two earlier measures. T 674A. By increasing the number of "universal mechanics", i.e., people who can perform any job associated with a particular craft, 144a Stipulation 29 further increased productivity. T 675A, 676A, 677-678A. 9. Dr. Fox testified that all these measures, including Stipulation 29, conformed with industry practices at the time. T 682A. Each was undertaken for an economic purpose. T 671 A, 673A, 682A. Dr. Fox’s dissertation, written in 1969, attests to the success of the measures. DX 85, p. 126. 10. Dr. Fox’s testimony is fully consistent with the account of the economic impetus for Stipulation 29 given by Mr. Charles Draper, who spent over 30 years in the Refinery’s personnel department. Class Certification Hearing Transcript, 139-140. It is also consistent with testimony of Mr. Ivan Hollier, who was a union officer for some 29 years. T 966. Mr. Hollier testified that the union acquiesced in these measures to avoid "contracting 145a out" and layoffs. T 980. With respect to Stipulation 29, the union welcomed it because it provided opportunities for employees to progress. T 983-984. Mr. Hollier expressly denied ever hearing anything suggesting that there was any motivation to impede black people in the adoption of Stipulation 29. T 983. 11. The court concludes that the one-time reclassification of a group of employees in 1967 was undertaken for legitimate, economic reasons. 12. The Craft Helpers reclassified under Stipulation 29 had at least ten years’ experience in their craft. T 28, T 662. As Craft Helpers, they performed a significant amount of the work of the No. 1 (journeyman) craftsmen. T 984. Because of the amount of on-the-job training they had received, it would take minimal additional training to qualify them as journeyman craftsmen. T 984. Laborers 146a and Mechanical Helpers did not have comparable experience. T 657, T 706, T 712. Hence, they would require much more training to do the work of journeyman craftsmen efficiently and safely. It would have been inconsistent with the legitimate economic purposes of Stipulation 29 to have reclassified Mechanical Helpers and Laborers rather than the Craft Helpers. T 679A. The decision to reclassify Craft Helpers, but not Laborers or Mechanical Helpers, reflects the legitimate business reasons for Stipulation 29. It does not reflect purposeful racial discrimination. 13. The record contains nothing from which the court could draw the inference that Stipulation 29 was purposefully discriminatory. Some 13 black employees, and one white, who were working at the Port Arthur Refinery in 1967 testified for the plaintiffs. One or two of these witnesses testified as to the adverse effects they 147a thought the timing of Stipulation 29 had on blacks. None testified to any fact raising a plausible inference that racial discrimination motivated Stipulation 29. 14. Other evidence of Gulfs treatment of its black employees after the effective date of Title VII is inconsistent with the notion that Stipulation 29 was purposefully adopted to discriminate against blacks. Gulf has an excellent record on hiring black employees. Class Certification Hearing, 83-90; JDX-M through JDX-V. The proportion of blacks in the work force has increased, even though the total work force there has decreased. T 760, DX 83. Gulf has had an affirmative action program since 1965. T 752-753, even setting up schools designed to help people who had trouble advancing because of limited education or abilities, T 754-759. Two of these were established during the very time that Stipulation 29 was under consideration. T 754-755, DX 75, 76. In 1976, Gulf 148a sat up a night school program, for people in the lower job classifications, which it paid them to attend. T 756, DX 77. Gulf also conducted several formal studies of minority utilization at the Refinery, T 757-758, DX 80, 81, and held training sessions to promote racial sensitivity among supervisors. T 759. 15. The record contains other evidence of Gulfs successful efforts at affirmative action. Black employees were accepted to the Mechanical Training Program with lower scores than their non-black counterparts. DX 112, 113 and 114, T 38, 885. The success rates of black bidders to the Mechanical Training Programs and other desirable jobs were comparable. DX 111, 115,116, T 888- 892. The proportion of blacks in the Mechanical Training Programs compares favorably with the proportion of blacks in the hourly work force at the Port Arthur Refinery. DX 110, T 877-878. Gulf also promoted black 149a hourly employees to supervisory positions with less plant seniority and less time in the relevant eligibility pool than it required for making similar promotions to white employees. DX 118, T 895-898. Gulfs affirmative action programs have effectively equalized the earnings of black and white employees hired after 1964, DX 119, DX 120, T 899-905. 16. The Court concludes that, at the time Stipulation 29 was negotiated and implemented, the Plaintiffs were not as qualified for reclassification as were the Craft Helpers. The court is persuaded that the decision to reclassify the most qualified group, the Craft Helpers, does not evidence purposeful racial discrimination. 17. Stipulation 29 was a part of the seniority system at Gulf. 150a 18. The seniority system at Gulf was at all times bona fide. 19. The Court of Appeals found that Stipulation 29 adversely affected blacks. If Gulf and the OCAW were required to do so, they have demonstrated by a preponderance of the evidence that Stipulation 29 was justified by legitimate business reasons; see Findings of Fact Nos. 8-18, 21. 20. Plaintiffs have offered no alternative method by which Gulf and the OCAW could have accomplished their legitimate business purpose with less adverse impact. II. THE NEW TESTS 21. Gulf has used the New Tests for selecting Mechanic Trainees since March, 1971. The battery consists of the 151a Test of Learning Ability, Test of Chemical Comprehension, Test of Mechanical Comprehension, and Tests off [sic] Arithmetic Reasoning. T 136; DX 124,125, 126. 22. According to PX 26, over a 9-1/2 year period, 20 blacks were denied promotions to Mechanical Training Programs based on their scores on the New Tests. During the same time period, two whites were denied admission to Mechanical Training Programs based on the New Tests. Id. The New Tests thus had adverse impact on black applicants to the Mechanical Training Programs, although the absolute amount of this impact (two blacks per year) is small 23. Plaintiffs’ evidence groups all Mechanical Training Programs together. For any specific craft, Plaintiffs’ 152a evidence does not reveal the existence or non-existence of adverse impact. 24. Gulf has conducted three validity studies to assess the validity of the New Tests. T 1047, DX 124-126. The largest of these was completed in 1983 ("the 1983 Study"). DX 126. 25. The 1983 Study was designed to validate use of the New Tests for many purposes that are no longer implicated in this lawsuit. It was not designed to focus primarily on either the OCAW maintenance departments, nor on the Mechanical Training Programs. DX 126, p. 1- 6. It would be impossible to obtain meaningful validity data in many of these departments because of their small size, See JDX-81, which contaminates results. T 1335- 1336. It is difficult to obtain stable validity data with samples as small as 67. T 1335, T 1340. Validity for 153a departments having a small number of members may thus be established in some other manner, providing it is reasonable and probably leads to the correct conclusion. 26. Nevertheless, the 1983 Study reported that performance on the New Tests correlated .32 with job performance as a Boilermaker, and .22 with job performance as a Pipefitter. DX 126, p. 38, 40; T 1066. These correlations are both statistically significant. DX 126, p. 37, 39. 27. The correlations are higher if adjusted for either battery score restriction, DX 126, p. 40, or for criterion unreliability, DX 126, p. 38. The adjusted figures reflect better estimates of validity than the unadjusted figures, as Dr. Sharf explained at the trial. T 1131. All are underestimates of the true validity of the New Tests. T 1039, T 1347, DX 126, p. 36. Gulf has shown by a 154a preponderance of. the evidence that the New Tests are significantly correlated with performance as a boilermaker or pipefitter. 28. The correlations reported in the 1983 Study are based on the performance both of trainees and journeyman craftsmen. The New Tests predict training performance to an even greater degree than post-training job performance. Had the 1983 Study included only trainees, the correlations would have been higher. T 1345, DX 137. T 1345, DX 137. A fortiori, Gulf has shown by a preponderance of the evidence that the New Tests are significantly correlated with performance as a boilermaker trainee or a pipefitter trainee. 29. The Court of Appeals found that it was proper to emphasize the abilities required to perform craft jobs, and not just the specific duties involved in those jobs. 841 155a F.2d at 566. As a part of the 1983 Study, 37 abilities were rated by Gulf supervisors in terms of their importance to performance in each of the jobs studied. DX 126. Appendix A to Gulfs Brief on Remand. 30. Twelve different abilities appeared in the ten most important abilities required of boilermakers and pipefitters at Port Arthur. These twelve are the ability to: (a) plan and organize own work; (b) know when to get help; (c) understand written or oral instructions quickly; (d) pay attention and keep track of detail; (e) read and understand prints, layouts, diagrams, graphs, etc.; (f) work with and get along with others; (g) communicate orally; (h) recognize trends indicated by instruments; (i) train or coach others; (j) work with minimal or no supervision; (k) identify problem situations quickly; (l) follow standard operating procedures. The first eight of these abilities were among the ten most important for both Port Arthur boilermakers and Port 156a Arthur pipefitters. The next two were among the ten most important abilities of Port Arthur pipefitters (they were ranked No. 14 and 12 respectively for boilermakers) and the last two were among the ten most important abilities of Port Arthur boilermakers (they were ranked No. 12 and 14 respectively for pipefitters). The abilities associated with the jobs of boilermaker and pipefitter at Gulf are virtually identical, showing a similarity correlation coefficient of .96. DX, 126, p. 28. If the abilities required to do these jobs were completely identical, and the supervisory ratings were perfectly accurate, the similarity correlation coefficient would be 1.00. T 1041. 31. It was not feasible to complete a validation study on Port Arthur carpenters because performance ratings were too variable. DX 126, p. 33. This does not mean that the tests would be invalid, or that the validation of the New Tests failed for carpenters. It merely indicates 157a the presence of a contaminating factor that prevented collection of reliable data for a validity study. See T 1039. The ten most important abilities of Port Arthur carpenters include eight of the ten most important abilities of Port Arthur boilermakers; the other two are rated 11th and 13th in importance for boilermakers. Similarly, the ten least important abilities of Port Arthur boilermakers include nine of the abilities rated least important for Port Arthur carpenters. The correlation coefficient expressing the similarity of the abilities required of Gulf carpenters and boilermakers is .98. DX 126, p. 28. The abilities required to be a boilermaker and those required to be a carpenter at Gulf and at Port Arthur are thus virtually identical. Therefore, a test of cognitive abilities that predicts performance as a boilermaker will also predict performance as a carpenter. The New Tests, cognitive ability tests which predict important aspects of the 158a performance of boilermakers, also predict important aspects of the performance of carpenters. 32. There were only 85 welders and welder trainees at Port Arthur in 1982. JDX-81. The job of welder at Port Arthur requires similar abilities to the jobs of boilermaker and pipefitter. Nine of the top ten abilities of Port Arthur welders are also in the top ten abilities of Port Arthur boilermakers and pipefitters (see Finding of Fact No. 30). The remaining ability is ranked 13th in importance for boilermakers and 17th for pipefitters. Seven of the least important abilities of Welders are among the least important abilities of boilermakers and pipefitters. There is no ability that is highly important for one craft (i.e., in the top ten) but insignificant for either of the others (i.e., in the bottom ten). The abilities required to be a welder show a correlation of .88 with those required to be a pipefitter and .92 with those required to be a boilermaker. 159a DX 126, p. 28. The New Tests validly predict important aspects of performance as a boilermaker and a pipefitter. Performance as a welder depends on the same abilities; therefore the New Tests predict important aspects of performance as a welder. 33. There were only 70 instrument mechanics and trainees in 1982. JDX 81. The job of instrument mechanic at Gulf involves extremely similar abilities to the jobs of boilermaker, pipefitter and welder. The abilities required in the jobs of instrument mechanic at Gulf correlate .99 with those required in the jobs of pipefitter, boilermaker and welder combined (.78 with boilermaker, .73 with pipefitter, and .92 with welder), suggesting that all these jobs are very similar. All ten of the most important abilities of Port Arthur instrument mechanics also appear in the top ten abilities of Port Arthur boilermakers and pipefitters. Eight of the least important abilities of Port 160a Arthur instrument mechanics are among the least important abilities of Port Arthur boilermakers and pipefitters. Performance as an instrument mechanic therefore depends on the same abilities as does performance as a pipefitter or boilermaker. Because the New Tests predict important aspects of job performance for boilermakers and pipefitters, they also predict important aspects of performance for instrument mechanics. 34. The 1983 Study did not include data on every one of the maintenance departments at Port Arthur, because many were too small to yield meaningful results. Craftsmen in the Tin and Lead department were not studied directly; there were only 15 of them in 1982. However, the record contains evidence that the No. 1 position in the Tin and Lead department at the Port Arthur Refinery is exceedingly similar to that of 161a Boilermaker. DX 61 contains descriptions of the requirements for all first-class craftsmen at Port Arthur, as well as the specific requirements for boilermakers and the No. 1 tinner/leadbumer. In addition to the requirements of all first-class craftsmen, which are identical, the jobs of boilermaker and tinner/leadbumer both require sketching and fabrication of metal objects and components, familiarity with burning and welding procedures, and competence with various kinds of machines - many of which are the same for both jobs. It is inconceivable that performance in these two jobs depends on significantly different abilities. The New Tests, which predict important aspects of the performance of boilermakers, predicts the performance of other jobs that depend on the same abilities. Therefore, the New Tests predict important aspects of the job of tinner/leadbumer. 162a 35. Certain qualifications are required of all craftsmen at Port Arthur, DX 61. Many of these qualifications relate closely to the most important abilities of Pipefitters and Boilermakers, for which crafts the New Tests are valid. For example, all craftsmen must be able to read and write ((c) and (e), Finding of Fact No. 30), comprehend verbal and written instructions and perform work assignments with or without assistance and with minimum supervision ((a), (c), and (j), Finding of Fact No. 30), be knowledgeable of applicable safety procedures, work practices and guidelines covering the work, and be familiar with and competent in the use of tools and equipment peculiar to his craft ((1), Finding of Fact No. 30), take the lead, demonstrate skills and train apprentices ((f), (g), and (i), Finding of Fact No. 30), and be accountable for the quality and quantity of his work ((a), (j) and (1), Finding of Fact No. 30). Because the New 163a Tests predict important aspects of boilermaker and pipefitter performance, it is likelier than not that they predict important aspects of jobs having similar important aspects. 36. Dr. Jack Hunter testified concerning studies he had done for the American Petroleum Institute ("The API studies"), T 1332-1349, and summary accounts of these studies were introduced into evidence. DX 134, DX 135. These studies included each of the tests used in the New Test battery, T 1332, and the major job categories typically found in the petroleum industry. DX 134, p. 7-15; DX 135; p. 8-16. The API studies consisted of a statistical re analysis of pooled data from validation studies conducted by the oil company members of the API, T 1335, T 1337, which permitted estimates of test validity to be based on much larger sample sizes than were available to individual companies. T 1335-1336. 164a 37. Based on his expertise in testing and statistics, as well as the results of the API studies, Dr. Hunter was of the opinion that the validity of the New Tests was virtually uniform across the major jobs in the petroleum industry, T 1388, and that there were no real differences in the validity of the tests from one company or location to another. T 1340-41. His opinion was uncontradicted. 38. For maintenance jobs such as those in the Port Arthur Refinery’s eleven OCAW maintenance departments with Mechanical Training Programs, the API studies reflected that the New Tests correlated .37 with job performance, and .65 with training performance. Dr. Hunter re-evaluated the data from Gulfs 1983 Study using the methodology of the API studies, and determined that the New Tests correlated .40 with performance on maintenance jobs at Gulf. T 1354-55. His testimony was 165a not contradicted, and such grouping is permitted by the Uniform Guidelines on Employee Selection Procedures. 29 CFR § 1607.14B. 39. Based on the direct evidence of significant correlations between the New Tests and job performance in the boiler making and pipefitting departments, the court concludes that a preponderance of the evidence supports the finding that the New Tests are valid for selecting boilermakers and pipefitters. 40. Based on the evidence of similarity between the jobs of Carpenter, Welder, Instrument Mechanic, and Tinner/Leadbumer to the jobs of Boilermaker and Pipefitter, the court concludes that a preponderance of th e evidence supports the finding that the New Tests are valid for selecting carpenters, welders, instrument mechanics, and tinner/leadburners. 166a 41. Based on Dr. Hunter’s testimony regarding the API Generalization studies, and the other evidence of similarity among the No. 1 craft jobs at Gulf, the court concludes that a preponderance of the evidence supports the conclusion that the New Tests validly predict performance in the top jobs in each of the OCAW maintenance departments. 42. Dr. Hunter testified that the New Tests correlated .65 with performance in training programs in jobs throughout the petroleum industry. While it is impossible to determine the precise correlation between the New Tests and each of the Mechanical Training Programs at Gulf, the court concludes that a preponderance of the evidence supports the conclusion that, even where a bare preponderance of the evidence supports the validity of the New Tests for selecting craftsmen, a greater preponder- 167a ance of the evidence supports the validity of the New Tests for selecting Craft Trainees. 43. The simple test was only offered to persons who had ten years’ or more on-the-job experience. There is no reason to believe that it would serve Gulfs legitimate business purposes if offered to persons without such experience. THE OLD TESTS 44. The Old Tests had adverse impact, although it was minimal. PX 25 showed that 8 out of 40 white testees were turned down for Mechanical Training Programs because of the Old Tests, but that 17 of 24 black testees during the same 2 1/4 year period were turned down. Had blacks performed as well as whites on the tests, about 6 rather than 17 would have been rejected. The adverse impact affected about 5 blacks per year. 168a 45. It is not practicable for Gulf to conduct formal validation studies on the Old Tests, which have not been used since 1971. 46. At trial, Gulf introduced the results of a "path analysis", in which the validity of the New Tests was multiplied by the correlation between the new and the Old Tests. T 1070-1074; T 1356-1357, T 1381-1382; DX 128. This technique gives an estimate of the Old Tests’ validity which is an absolute minimum, as both Gulfs experts testified. T 1072, 1382. The path analysis indicated that the Old Tests had an absolute minimum validity of .22 for selecting boilermakers and .16 for selecting pipefitters. Both experts considered the Old Tests valid, and Dr. Hunter assessed their validity at the same level as the New Tests. T 1073, T 1357. Based on the unchallenged testimony of the experts, the court concludes that the 169a actual correlation between the Old Tests and job performance was substantially greater than the minimum figures of .22 and .16. The court concludes that the correlations are high enough to demonstrate that the Old Tests were predictive of significant elements of the jobs of pipefitter and boilermaker. 47. Based on the degree of similarity between the jobs of pipefitter and boilermaker and the jobs of welder, instrument mechanic, carpenter, and tinner/leadburner (see Findings of Fact Nos. 31 through 34), the court concludes that the Old Tests were predictive of significant elements of these jobs as well as the jobs of pipefitter and boilermaker. 48. Based on Dr. Hunter’s testimony regarding the API Generalization studies, and the other evidence of similarity among the abilities required to perform well in each of 170a the No. 1 craft jobs at Gulf, the court concludes that a preponderance of the evidence supports the conclusion that the New Tests validly predict performance in the top jobs in each of the OCAW maintenance departments. 49. It is likely that the correlation between performance on the Old Tests and performance as a trainee is substantially higher than the correlation between Old Test performance and post-training job performance (see Finding of Fact No. 28). The court concludes that the Old Tests were predictive of significant elements of performance as a Mechanical Trainee in each of the OCAW craft departments. 50. Both experts testified that, in their opinion, the Old Tests validly predicted performance in the jobs for which they were used. Dr. Sharf based his opinion on the pattern of validity evidence he observed in the path 171a analysis, T 1073. Dr. Hunter concluded that the Old Tests had a validity "not substantially different from" the New Tests. T 1357. Their testimony was not contradicted, either by Plaintiffs’ statistician or their testing expert. 51. The path analysis, the 1983 Study, and the testimony of Gulfs experts is the only evidence in the record on the validity of the Old Tests, and all the evidence is to the effect that the Old Tests predicted significant aspects of performance as a Mechanical Trainee. Gulf has therefore shown by a preponderance of the evidence that the Old Tests were valid predictors of significant aspects of performance in the jobs for which they were used. IV. INDIVIDUAL CLAIMS 52. During the period covered by this lawsuit, promotions were sometimes made from hourly to 172a supervisory positions. The process was informal. Jobs were not posted and there was no formal application process. 53. Mr. Hayes and Mr. Brown complained that Gulf had not promoted them to permanent supervisory jobs. 54. Mr. Hayes and Mr. Brown each testified that they had not made known to anyone in authority their interest in becoming supervisors; T 235, T 511-512. 55. Mr. Draper testified that employees generally knew when they were eligible, and that they were invited to inform their supervisors of their interest. T 68. This testimony was not controverted; in fact, a number of black employees testified that they had told their supervisors that they were interested in such promotions. T 130, PX 93, para. 2, T 355, T 413, T 441, T 432. Some 22 blacks 173a were appointed to supervisory jobs during the period covered by this action. It is likely that they told someone in authority of their interest in the job. There was no evidence that white employees were appointed to supervisory jobs without ever telling anyone in authority of their interest. 56. The process by which supervisors were selected from the hourly ranks during the time in question was informal, but it was not secret. 57. Neither Mr. Hayes nor Mr. Brown testified that he did not know how to express interest, or who they should express it to. Mr. Brown’s testimony suggests he knew how, but affirmatively chose to remain silent. T 511-512. The court infers that both men knew how to make their interest known to Gulf. 174a 58. There was no testimony or other evidence that all employees wanted to become supervisors. There are reasons why many employees would not wish to do so; it involves leaving the union, working during strikes, and the like. There is no reason to believe that Mr. Hayes’ and Mr. Brown’s supervisors knew of their interest in a supervisory position, despite their failure to mention it. 59. Because of Mr. Brown’s and Mr. Hayes’ failure to express interest in a supervisory job, it is impossible to identify which promotion they did not get, and thus to tell whether a white or a black was selected in preference to them. 60. Although white employees were made supervisors during the time period covered by this lawsuit, black employees were also made supervisors, in numbers 175a proportional to their representation in the qualified eligibility pool DX 117; T. 893. 61. The record contains evidence that Gulf practiced affirmative action in the selection of supervisors. Blacks were promoted to supervisor with less seniority, and less time in the No. 1 position, than whites. DX 118, T 895- 896. 62. Additionally, it is obvious that thousands of white employees were not appointed to supervisory positions during the time period in question. From the record, their circumstances are indistinguishable from those of Hayes and Brown, except that at least some of them probably expressed interest in such a promotion to their supervisors. 63. Mr. Brown knew of a black supervisor in his department. T. 511-512. Mr. Hayes knew of about 17 176a blacks who had been promoted to supervisor, and admitted that the number could be somewhat greater. T 253-254. 64. It would not have been a futile gesture for Mr. Hayes and Mr. Brown to have expressed their interest in a supervisory position. 65. Based on the foregoing facts (Findings of Fact No. 55-62), the court concludes that Mr. Brown and Mr. Hayes have not borne the burden of persuasion to show that they were passed over for supervisory promotions under circumstances giving rise to an inference of discrimination. 66. Even if Mr. Brown and Mr. Hayes were considered to have raised an inference of discrimination, the record contains evidence of Gulfs nondiscriminatory reason for 177a not appointing them. Gulf did not know that they wished to be appointed. 67. The record as a whole supports the conclusion that nondiscriminatory factors rather than discriminatory ones account for Mr. Brown’s and Mr. Hayes’ failure to be appointed supervisors. See Findings of Fact No. 55-63. 68. Mr. Rodney Tizeno expressed an interest in the job of planner, in 1976 or 1977. PX 93, para. 3. He testified by affidavit that in 1981, a Mr. Charles Chesser received a temporary promotion to the planner job. 69. At the time of his promotion, Mr. Chesser had less plant seniority that Mr. Tizeno. Class Certification Hearing, JDX-80. He also had less plant seniority than 126 other No. 1 Pipefitters, 108 of whom were white. 178a Eighty of these 108 white No. 1 Pipefitters also had greater plant seniority than Mr. Tizeno. 70. There is no evidence that Mr. Tizeno was otherwise more qualified than Mr. Chesser. 71. The fact that Mr. Chesser was promoted in preference to over 100 more senior eligible individuals, the majority of whom were white, does not raise an inference that his promotion constituted racial discrimination against Mr. Tizeno, who was not among the most senior of the eligible persons. 72. The record as a whole does not support an inference that racial discrimination was likelier than not the reason for Mr. Chesser’s temporary promotion to the planner job. 179a 73. Mr. Tizeno also testified that he expressed an interest in a supervisory position, sometime in 1979. PX 93, para. 7. At that time, Mr. Tizeno was one of the most junior No. 1 Pipefitters, JDX-76. There were 138 No. 1 Pipefitters, 112 of whom had greater plant seniority than Mr. Tizeno. Of this 112, 104 were either white or Hispanic. 74, That same year, 4 blacks were appointed to supervisory positions. In light of the fact that Gulf did not discriminate in making supervisory selections and in fact practiced affirmative action in making promotions to supervisor (see Findings of Fact No. 61-62), the facts do not convince the court that Mr. Tizeno’s nonselection to a supervisory position was more likely than not motivated by racial discrimination. 180a 75. Any Conclusion of Law that is properly a Finding of Fact is incorporated herein as a Finding of Fact. CONCLUSIONS OF LAW I. The Court has jurisdiction of this action under Section 706 of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000-e et seq. and under the Civil Rights Act of 1964, 42 U.S.C § 1981. II. The court has jurisdiction of defendants Gulf and the OCAW International and its Local 4-23 based on the June, 1967 charges filed with the EEOC. III. The court has jurisdiction of the specific issues remanded to it by the United States Court of Appeals for the Fifth Circuit opinion dated March 22, 1988. 181a rv, Using the four factors enunciated in James v. Stockham Valves and Fittings Co., 559 F.2d 310, 351 (5th Cir. 1977) cert, denied 434 U.S. 1034, 98 S.Ct. 767 (1978), this court found the seniority system negotiated by Gulf and the OCAW to be bona fide. The Court of Appeals concluded that the seniority system at Gulf could not be found other than bona fide based solely on discrimination occurring before the effective date of Title VII. However, the Appeals Court remanded for consideration of whether Stipulation 29 to the 1967 Collective Bargaining Agreement evidenced purposeful discrimination. Establishment of purposeful discrimination is essential to plaintiffs’ claim that the seniority system was not bona fide under Section 703(h). Bernard v. Gulf Oil Corp., 841 F.2d 547, 561 (5th Cir. 1988), CA Opinion 35. 182a V. The Appeals Court’s language and the traditional analysis associated with claims of intentional discrimination indicate that Plaintiffs bear the burden of persuasion to show that Stipulation 29 was motivated by purposeful discrimination. The standards for proving intentional discrimination are those enunciated in McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973) and elaborated in Texas Department o f Community Affairs v. Burdine, 450 U.S. 248 (1981) and U.S. Postal Service Bd. o f Governors v. Aikens, 460 U.S. at 716. The Plaintiff bears the burden of persuasion through the lawsuit. Id.; Texas Department of Community Affairs v. Burdine, 450 U.S. at 256. When the case has been fully tried, as has the case at bar, the court may decide, in light of the evidence in the record, whether plaintiffs have proved intentional discrimination. Aikens, supra at 715. 183a VI. The court holds that Plaintiffs have failed to prove that Stipulation 29 evidenced purposeful discrimination (see Findings of Fact No. 8 through 21). Therefore, the seniority system is bona fidef and actions that are part of that system are protected from challenge under an adverse impact theory by 42 U.S.C. § 2000-2(h) ("Section 703(h)"). American Tobacco Co. v. Patterson, 456 U.S. 63 (1982). VII. Stipulation 29 was part of the seniority system at Gulf; were it not, it could not be used to attack the bona fides of that system. Therefore, Gulf and the OCAW are entitled to judgment on the claim that Stipulation 29 was unlawful because it adversely affected blacks. American Tobacco Co. v. Patterson, supra. 184a IX. The Court of Appeals found that Stipulation 29 had adverse impact on blacks. Therefore, if the seniority system were not bona fide, Gulf and the OCAW would be required to come forward with evidence that Stipulation 29 was justified by legitimate business reasons. Watson v. Fort Worth Bank and Trust Co., 56 U.S.L.W. 4922 (June 30,1988). The Court of Appeals characterized the adverse (or disparate) impact theory as requiring Gulf and the OCAW to prove, by a preponderance of the evidence, that legitimate business reasons justify the adoption of Stipulation 29, CA Opinion 31, 841 F.2d at 560. However, Watson, decided after the Appeals Court’s opinion in the case at bar, indicates that Gulf and the OCAW bear a rather lighter evidentiary burden. Writing for a plurality of four out of eight justices, Justice O’Connor said of disparate impact theory, 185a Although we have said that the employer has the burden of showing that any given requirement must have a manifest relationship to the employment in question . . . such a formulation should not be interpreted as implying that the burden of proof can be shifted to the defendant . . . . Thus, when a plaintiff has made out a prima facie case of disparate impact, and when the defendant has met its burden of producing evidence that employment practices are based on legitimate business reasons, the plaintiff must "show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest in efficient and trustworthy workmanship." 56 U.S.L.W. at 4927 (emphasis added). Although the plurality opinion is not controlling, it is entitled to great weight, and may under some circumstances carry dispositive force. Planned Parenthood League o f Mass., et al v. Bellotti, 641 F.2d 1006, 1010 n. 6, 1011 (1st Or. 1981). Thus, if the seniority system were not bona fide, Gulf and the OCAW could successfully defend against the plaintiffs’ claim of adverse impact by producing evidence of their legitimate business reasons for negotiating 186a Stipulation 29. If they do so, Plaintiffs can prevail only by showing that some other avenue was available to Gulf and the OCAW that served their legitimate business reasons equally well with less undesirable effect. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). X. If Gulf and the OCAW were required to come forward with evidence that Stipulation 29 was justified by legitimate business reasons, they have done so. See Findings of Fact Nos. 11-13, 16. XL Even if Gulf and the OCAW were required to prove that Stipulation 29 was justified by legitimate business reasons, they have done so by a preponderance of the evidence. See Findings of Fact Nos. 3-13, 16. XII. Plaintiffs have failed to show that any alternative method was available to accomplish the same legitimate 187a business objectives. Therefore, Gulf and the OCAW are entitled to judgment on the claim that Stipulation 29 had unlawful adverse impact on blacks. XIIL This court previously found, and the Court of Appeals accepted, that the New Tests adversely impacted blacks, although the absolute impact was small. Therefore, Gulf must produce evidence to show that the New Tests are job related. In its earlier opinion, this court held that Gulf had shown, by a preponderance of the evidence, that the New Tests were valid. XIV. The Court of Appeals endorsed the method used by Gulf in the 1983 Validation Study conducted by RBH. 841 F,2d at 566. However, the Appeals Court remanded for further evidence as to why the results of that study supported the validity of the New Tests. It directed this court to "take into consideration the relationship between 188a tests scores and job performance in all of the departments which comprise the basis for plaintiffs’ complaint," and "specifically set forth the reasons that justify its determination, including any correlation coefficients upon which it relies and an explanation for its reliance." 841 F.2d at 567. XV. The Court of Appeals held that Gulf could prevail by showing, through professionally acceptable methods, that the New Tests were "predictive of or significantly correlated with important elements of work behavior that comprise or are relevant to the job or jobs for which candidates are being evaluated." CA Opinion 43, 841 F.2d at 562. Thus, Gulf can establish validity by evidence of a significant correlation, or by other evidence that the tests are predictive of important elements of work behavior. 189a XVI. The Court of Appeals appeared to assume that Gulf bore the burden of persuasion as to the validity of the tests. However, Justice O’Connor’s plurality opinion in the case of Watson v. Fort Worth Bank and Trust Co., supra, requires only that Gulf come forward with evidence of job relatedness. See Conclusion of Law No. IX. XVII. Justice Blackmun, who concurred in the majority portion of Justice O’Connor’s opinion, dissented to the plurality portion. Writing for himself and two other justices, he maintained that once adverse impact is shown, the defendant bears the burden of proof to show that the adverse impact is justified by legitimate business reasons. 56 U.S.L.W. at 4928. Justice Blackmun acknowledged, however, that job-relatedness cannot always be established with mathematical certainty, 56 U.S.L.W. at 4930, and that a variety of methods are available for establishing the link 190a between selection processes and job performance, including the results of studies, the presentation of expert testimony, and prior successful experience. Justice Blackmun indicated that a trial Court is required to look to different forms of evidence to assess an employer’s claim of business necessity, and that "common sense surely plays a part in this assessment." Id . The court holds that no single correlation coefficient, such as .30, is essential to a showing of job-relatedness. XVIII. All authorities agree that Gulf may satisfy its burden with professionally acceptable evidence that the New Tests are either significantly correlated with, or that they are predictive of, significant elements of the jobs selected for. All authorities further agree that there is no rigid rule governing the form of that evidence, and that the district court need not shed its common sense in the process of evaluating the evidence. Under the O’Connor 19la plurality, under the Blackmun view, the evidence must amount to a preponderance. The court holds that the O’Connor plurality is entitled to great weight, Planned Parenthood League o f Mass., et a l v. Bellotti, supra, and that Gulf bears only the burden of producing evidence that the New Tests are job-related. XIX. The court holds that Gulf has met its burden of producing evidence that the New Tests are job-related. Although correlations were not reported for each of the OCAW maintenance departments in which the tests were used, the jobs in these departments were shown to be similar to the two classifications for which significant correlations were reported. This analysis is not without precedent, see Aquilera v. Cook Co. Police and Corrections Merit Board, 582 F.Supp. 1053, 1057 (N.D. 111. 1984). In Aquilera, the court held that a high school diploma requirement was valid for the job of correctional officer 192a because it was "comparable to" the job of police officer, and the high school diploma requirement had been upheld for police officers. The Fifth Circuit cited this decision with approval in David v. City o f Dallas, 111 F.2d 205, 213 n. 6 (5th Cir. 1985), cert, denied, A16 U.S. 1116 (1986). XX. The absolute impact of the New Tests was small See Finding of Fact No. 21. The lesser the adverse impact of a test, the lesser will be the required showing of job relatedness. 29 C.F.R. § 1607.14(B)(6) (1987). If Gulf were required to show by a preponderance of the evidence that the New Tests were job-related for each of the OCAW departments involved in this litigation, it has done so. XXI. This court found, and the Court of Appeals accepted, that the Old Tests had adverse impact on blacks, although it was minimal in absolute terms. 193a Therefore, Gulf must produce evidence that the Old Tests were job-related. (See Conclusion of Law No. XVIL) XXII. Gulf introduced a "path analysis" to show that the Old Tests predicted job performance. The logic of the path analysis is simple: the Old Tests are correlated with the New Tests, which means that the same people do well and the same people do poorly on them. To the extent that they "select" applicants, they will "select" essentially the same people. If the New Tests are job-related, then the Old Tests are job-related as well. Path analysis is a more careful and precise way of carrying out an analysis that has been approved by the Fifth Circuit in Davis v. City o f Dallas, 111 F.2d 205 (5th Cir. 1985), cert, denied, 476 U.S. 1116 (1986). Davis involved the question of whether 45 hours of college credit was a valid requirement for the job of police officer. It does not appear that a high school diploma requirement for police 194a officers has ever been formally validated; however, it has been widely approved by the courts. In Davis, an expert testified that a two-year college degree now is "not unlike a high school diploma was twenty years ago." Id. at 221. Therefore, the Court concluded, the requirement that police recruits have two years of college was unlawful. Gulf has shown more than that the Old Tests are not "unlike" the New Tests; it has shown that the two tests are extremely similar. Thus, if the New Tests are valid, the Old Tests are also valid. Based on the path analysis and the opinions of Gulfs experts, the court concludes that Gulf has met its burden to produce evidence that the Old Tests were job-related. XXIII. Because Gulfs evidence on the job-relatedness of the Old Tests was uncontroverted, it amounts to a preponderance. Furthermore, where adverse impact is slight, a lesser showing of job-relatedness is needed. 29 195a C.F.R. § 1607.14(B)(6) (1987). Gulf has shown by a preponderance of the evidence that the Old Tests were job-related. XXIV. In its earlier opinion, this court found that Messrs. Hayes, Brown and Tizeno had failed to make a prima facie case of intentional discrimination by virtue of the fact that they were not promoted to supervisor. This opinion was based on the fact that Messrs. Hayes and Brown had failed to apply for supervisory promotions, and Mr. Tizeno had failed to show himself more qualified than the individual who was appointed. The Court of Appeals held that these were insufficient reasons to find that the plaintiff had failed to make a prima facie case, and directed this court to reconsider the claims of Messrs. Hayes, Brown and Tizeno. 196a XXV. In order to establish a prima facie case of intentional racial discrimination, a plaintiff must adduce facts sufficient to raise an inference that discrimination was a likely motive for the defendant’s actions. One method for doing this, according to the Court of Appeals, is to show, by a preponderance of the evidence, that the plaintiff (a) belongs to a group protected by Title VII; (b) that he was qualified for the job; (c) that he was not promoted; and (d) the employer promoted one not in the Plaintiffs protected class. XXVL The McDonnell-Douglas formula is not a rigid one, but will necessarily vary with the facts of each individual case. 411 U.S. at 802, n. 13. Its utility is that it "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on consideration of impermissible factors." 197a Fumco Construction Co. v. Waters, 438 U.S. 567, 577 (1978). The utility of the formula is that it "eliminates the most common nondiscriminatory reasons for the plaintiffs nonselection." Texas Department o f Community Affairs v. Burdine, 450 U.S. at 253-254. However, in a context where the defendant does not know that the Plaintiff is interested in a particular job, no inference of discrimination can be drawn from the defendant’s failure to select the plaintiff. What is more, it is impossible for the defendant to offer its legitimate business reasons for the plaintiffs nonselection. Without any action on the plaintiffs part that informs the defendant of his interest, it is impossible to identify the point in time when the defendant selected someone else in preference to the plaintiff. The court concludes that the McDonnell-Douglas formula is inapposite to the claims of Messrs. Hayes and Brown. 198a XXVII. An alternative formulation is found in Texas Department o f Community Affairs v. Burdine, 450 U.S. 248, 253(1981). In order to establish a prima facie case of intentional racial discrimination, a plaintiff must adduce facts sufficient to raise an inference of discrimination. In a failure-to-promote case, the Supreme Court has stated that the plaintiff must prove that "she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination." Id. The court holds that this formulation is more suited to analyzing the claims of Messrs. Hayes and Brown than is the formula in McDonnell-Douglas v Green, supra. XXVIII. If plaintiff makes out a prima facie case the employer must produce "evidence that the plaintiff was 199a rejected, or someone else was preferred, for legitimate, non-discriminatory reasons . . . Id. at 253-254. If the employer meets this burden, "the presumption of discrimination "drops from the case’ and the District Court is in a position to decide whether the particular employment decision at issue was made on the basis of race." CA Opinion 59, 841 F.2d at 570. In meeting its burden of production, Gulf does not have to prove what its reasons were; it simply must produce evidence that "raises a genuine issue of fact as to whether it discriminated" against Hayes and Brown. Texas Department o f Community Affairs v. Burdine, 450 U.S. at 254-255. If Gulf does so, then the court must decide whether Hayes and Brown have shown, by a preponderance of the evidence, that discrimination is the likeliest explanation for the fact that they were not promoted to supervisory positions. 200a XXIX. Based on the Burdine formulation (see Conclusion of Law No. XXVII), Hayes and Brown have failed to make a prima facie case. The fact that they were not promoted, when there was a known method if expressing an interest in promotion and some people were not interested, and when blacks were being promoted in numbers proportional to their representation in the relevant eligibility pools, do not amount to "circumstances giving rise to an inference of unlawful discrimination". XXX. Based on use of the McDonnell-Douglas formula, Hayes and Brown could be said to have made a prima facie case, although a marginal one. Each is black, each failed to become a supervisor, and some whites did become supervisors. The evidence that Hayes and Brown were qualified consists solely of their self-evaluation. It is doubtful whether such evidence is sufficient to carry their 201a burden of persuasion. However, there is no evidence in the record to the effect that they were unqualified. XXXI. Assuming, arguendo, that Messrs. Hayes and Brown made a prima facie case of discrimination, Gulf produced evidence of its legitimate, nondiscriminatory reason for not selecting them. Gulf showed that neither Mr. Hayes or Mr. Brown made known to anyone in authority that they were interested in becoming supervisors. There has been no showing that such a request would be futile, which is a "difficult task", In t’l Bhd. o f Teamsters v. United States, 431 U.S. 324, 364 (1977). The presence of blacks, even in small numbers, has defeated an employee’s effort to show that application of supervisory promotions that went to blacks from 1967 through 1982, Messrs. Hayes and Brown cannot show that it would have been a futile gesture for them to express an interest in such a promotion. The record does not contain evidence from 202a which the court could infer that everyone at the Port Arthur Refinery wanted to be a supervisor, thereby creating the inference that Gulf knew of Mr. Hayes’ and Mr. Brown’s interest despite their failure to mention it, nor is there evidence that whites were promoted without making their interest known to anyone. Thus, Gulf met its burden to produce evidence of a legitimate, non- discriminatory reason for the nonpromotion of Hayes and Brown to supervisory positions; it did not know of their interest. Texas Department o f Community Affairs v. Burdina, 450 U.S. 248, 254 (1981). XXXII. The record as a whole does not support a conclusion that discrimination likelier than not was a reason for the nonselection of Hayes and Brown for supervisory positions. U.S. Postal Service Bd. o f Governors v. Aikens, 460 U.S. 711, 716 (1983). See Findings of Fact No. 52 through 62. 203a XXXIII. Mr. Tizeno claimed that he had not been promoted to the position of Planner nor to a permanent supervisory job. In its prior opinion this court found that he had not made a prima facie case of discrimination because he had not shown himself more qualified than the person who was promoted. The Court of Appeals held that a plaintiff need not make a showing in order to establish a prima facie case. XXXIV. Mr. Tizeno established that he is a black, that he asked to be considered for the position of planner and of supervisor, and that he was not promoted to either position. He testified that Mr. Charles Chesser, a white, was given a temporary promotion to the planner job, and there is no dispute that some whites were made supervisors. Thus, Mr. Tizeno can be said to have established a prima facie case, although a very weak one. 204a XXXV. Gulf introduced evidence that, at the time he requested the planner’s job Mr. Tizeno had only been a No. 1 Pipefitter for two years and that he was one of the most junior of the No. 1 Pipefitters. Mr. Chesser’s promotion occurred some four years after Mr. Tizeno expressed interest in the job. Mr. Chesser was promoted, not only in preference to Mr. Tizeno, but in preference to 80 non-blacks who were senior to both men. This evidence is sufficient to meet Gulfs burden of producing "evidence sufficient to raise a fact question as to whether it discriminated" against Mr. Tizeno. Texas Department of Community Affairs v. Burdine, 450 U.S. at 254-255. XXXVI. The record as a whole does not support the conclusion that discrimination more likely than not motivated Gulfs selection of Mr. Chesser in preference to Mr. Tizeno for the temporary promotion to the job of 205a planner. U.S. Postal Service Bd. o f Governors v. Aikens, 460 U.S. 711, 716 (1983). See Findings of Fact No. 67 through 69. XXXVII. Mr, Tizeno also alleged that he had requested a promotion to the position of permanent supervisor, but that he had not been selected. Mr. Tizeno showed that he is black and that he was not promoted. His qualifications for the job rest on his own self evaluation; although it is entitled to little weight, there is no evidence that he was unqualified. It is not clear that a white was promoted to the job he sought, because both backs and whites were promoted to supervisor. However, the Court of Appeals remarked that "(a)lthough the evidence is a slight, arguably Tizeno met his burden" to make a prim a facie case., CA Opinion 60; 841 F.2d at 570. 206a XXXVIIL Gulf produced evidence that, at the time he expressed interest in a promotion, Mr. Tizeno was among the least senior No. 1 Pipefitters. Assuming arguendo that Mr. Tizeno made a prima facie case, Gulf produced evidence sufficient to raise a fact question as to whether it discriminated against him. Texas Department o f Community Affairs v. Burdine, 450 U.S. at 254-255. XXXIX. The record as a whole does not support the conclusion that discrimination more likely than not motivated Gulfs nonselection of Mr. Tizeno for a permanent promotion to the job of planner. U.S. Postal Service Bd. o f Governors v. Aikens, 460 U.S. 711, 716 (1983). See Findings of Fact No. 71 through 72. 207a xxxx. Any Finding of Fact that is properly a Conclusion of Law is incorporated herein as a Conclusion of Law. SIGNED AND ENTERED this 1st day of September, 1988. /s/ Joe J; Fisher UNITED STATES DISTRICT JUDGE 208a Wesley P. BERNARD, et al. GULF OIL CORPORATION, et al. Civ. A. No. B-76-183-CA. United States District Court, E.D. Texas, Beaumont Division. Sept. 18, 1986. MEMORANDUM OPINION JOE J. FISHER, District Judge. Plaintiffs are six present and retired black employees at Gulf Oil Corporation’s Port Arthur, Texas, refinery. Plaintiffs, who are also present or former members of the Oil, Chemical and Atomic Worker’s Union, Local 4-23 ("OCAW"), allege that Gulf and the OCAW have engaged in a broad range of employment discrimination against black employees. Plaintiffs seek 209a declaratory, injunctive, and monetary relief, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C, § 2000e et seq. and Section 16 of the Enforcement Act of 1870, 42 U.S.C § 1981/ A trial was held in April 1984 on the class-wide liability of Gulf and the OCAW. The class-wide claims are predicated upon two fundamental theories: that Gulf and the OCAW committed pre- and post-Title VII violations (1) by formulating and maintaining a non-bona fide seniority system and (2) by administering non-job- The action was initially filed in May 1976. This court dismissed Plaintiffs’ Title VII claims on procedural grounds and granted Defendants summary judgment on Plaintiffs’ § 1981 claims. The Court of Appeals for the Fifth Circuit reversed the judgment and remanded the case for trial. B ernard v. G u lf O il C o ., 619 F.2d 459 (en banc) (5th Cir. 1980), a f fd , 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). This Court, by Order dated April 2, 1984, certified the class of affected employees to include only black persons who were employed at Gulfs Port Arthur refinery on or after December 26, 1966, who were members of the OCAW and who had not executed releases for back pay pursuant to a 1976 Conciliation Agreement between Gulf and the Equal Employment Opportunity Commission (EEOC). 210a related promotion tests and attendance policies that adversely affected blacks. The individual claims of the named Plaintiffs were also before the Court. They consisted primarily of allegations that Gulf intentionally discriminated against Plaintiffs by not promoting them to supervisory positions and by disqualifying them from other positions. Both the seniority system and the testing requirements changed during the years in issue. Because the facts are complex, they are addressed in chronological order; first, as to the seniority system and second, as to the test-based promotion program. The individual claims are addressed last. 211a I. CLASS CLAIMS A. The Seniority System (1) Pre-1963 Discrimination Prior to 1963, there existed two OCAW locals at Gulf: Local 245, which represented only black employees, and Local 23, which represented only white employees. At the insistence of the international union, these locals merged in 1963, 2 years before the effective date of Title VII. Prior to 1967, Gulfs workforce was divided into two major divisions: the Craft Division and the Labor Division. The Craft Division had 14 skilled occupational sections. Each section had its own "line of progression" (LOP). For example, at the lowest end of the boilermaker section is the helper; at the highest end, the number one boilermaker. The higher positions were functionally related to the lower ones and presupposed 212a competency and efficiency in the lower jobs. The Labor Division was composed of men who did work requiring less skill. By 1954, most craft sections had laborers assigned to them. The Labor Division also had separate lines of progressions. Prior to 1956, all the labor jobs were occupied by blacks, and no laborer was permitted to enter into the Craft Division. The Craft Division was staffed entirely by whites. In both divisions, new employees started at the lowest level positions. That occupational segregation was partially the result of a gentlemen’s agreement between the black and white locals to not bid on each others’ jobs. The OCAW negotiating committees at that time were made up of both black and white members. The agreement was not imposed by Gulf nor was it incorporated into any of the formal labor agreements. The local memberships apparently viewed the agreement as a means by which to protect their respective positions. 213a In 1956, the lowest level Labor Division job became the entry-level position for employees of every race.-2 2 Between the years 1956 and 1963, a high school diploma or its equivalent was also required before one could transfer between labor and craft. Plaintiffs argue that the diploma requirement was not job-related and was based solely upon Defendants’ unsubstantiated belief that this level of education was essential for employees who might advance into more complex positions. Plaintiffs also argue that incumbent craft-line whites were not required to obtain the diploma and that almost half of the incumbents did not have one. Plaintiffs’ comparison between entering labor employees and incumbent craft-line personnel is inapposite. Laborers seeking entry into the crafts are not similarly situated to incumbent craft-line employees. The diploma requirement was applied equally to those who were similarly situated, namely, blacks and whites seeking to enter the crafts. The diploma requirement was a new feature of Gulfs seniority system but it was not an essential feature. That requirement was eliminated in 1963. Plaintiffs introduced no statistical evidence to suggest that the diploma requirement made a significant difference in the number of blacks who would have been admitted into a craft position but for that requirement. Also, employees seeking to transfer between 1956 and 1963 were required to pass a battery of tests. The battery included: (1) the Bennett Mechanical Comprehension Test; (2) the Doppelt Numerical Personnel Tests for Industries; and (3) The Atis Quick Scoring Mental Ability Test. The same tests were also administered to new hires beginning in 1956 (when the laborer position became the entry-level position for all employees). The testing requirements applied equally to blacks and whites; except that a post-1956 hiree- transferee did not have to take the test again, since one had already taken it to get hired. Plaintiffs argue that as a result of the post- 1956 exemption, the only employees required to take the tests to transfer were blacks (since all whites who worked in labor took the test to get hired). There is no merit to Plaintiffs’ assertion. Both blacks and whites had to take the tests. The fact that they took it at different 214a At the same time, seniority provisions were established for transfer between the Labor and Craft Divisions. These provisions covered both black and white laborers who sought promotion to the craft jobs. A labor transferee would start at the lowest job in a Craft Division section. (Technically, such a transferee would first bid into the Mechanical Helper Pool before entering a craft). A laborer could not transfer into an upper level craft position. Vacancies in those jobs were first offered to people in a lower level job in the same section. Such vacancies were posted for plant-wide bidding (i.e., outside that section) only when other Craft Division workers had more craft seniority than those bidding from the same section. Between 1956 and 1963, the period during which the system was in use, a laborer who successfully bid into times is irrelevant. 215a a craft-line entry position was assigned dual seniority: divisional seniority and plant seniority. Regardless of how much plant seniority a transferee may have accumulated previously, he started in the craft (for purposes of craft- line promotions and demotions) with only one days’ divisional seniority. One’s plant seniority came into play if workforce reductions were required. That is, a transferee could use his plant seniority to return to labor and thereby avoid lay off. When a transferee was required to return to labor, his Labor Division seniority would then determine promotions and demotions in that division. After 1963, the divisional seniority system was eliminated and plant seniority became the basis for all promotions, demotions, and lay offs. Plaintiffs allege that the 1956-1963 one-day divisional seniority rule was discriminatory. The discriminatory results were specifically felt when workforce reductions occurred between 1959 and 1961, at which time 216a newly arrived craft-line blacks (and whites) were demoted while pre-1956 craft-line whites with less plant seniority were not. Plaintiffs argue that the one-day divisional seniority rule, in conjunction with the pre-1956 assignment of blacks to Labor and whites to Craft, causally operated to stunt blacks’ advancement into the entry-and upper-level craft positions. Plaintiffs conclude that Gulfs seniority system was therefore non-bona fide under Title VII and that both pre- and post-Act discriminatees ought to be awarded constructive seniority and back pay. Is The Seniority System Bona Fidel If Gulf and the OCAW can prove that their seniority system is bona fide, then they are immune to charges of pre-Title VII employment discrimination. International Brotherhood o f Teamsters v. United States, 431 U.S. 324, 353-55, 97 S.Ct. 1843, 1863-65, 52 L.Ed.2d 396 (1977). The Court has held that to be bona fide, a pre- 217a Title VII seniority system must not have been designed with the intent to discriminate. Id. The Court also held that a bona fide departmental seniority system does not violate Title VII merely because it may perpetuate into the post-Act period the effects of pre-Act discrimination. Id. at 352-53, 97 S.Ct. at 1863-64. Moreover, a necessary precondition for maintenance of a post-Act claim is the timely filing of a charge with the EEOC. See United States v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). Thus, if Plaintiffs cannot prove that Gulf operated a non-bona fide seniority system, they must prove that Defendants engaged in acts of discrimination (whether perpetuated effects or entirely independent) occurring on or after December 26, 1966, which is 180 days prior to the date on which Plaintiffs filed their charges of employment discrimination with the EEOC. Applying Teamsters, the Fifth Circuit has phrased the bona fide inquiry this way: Has there been purposeful 218a discrimination in connection with the establishment or continuation of a seniority system which will render that system mala fide? James v. Stockham Valves & Fittings Co., 559 F.2d 310, 351 (5th Or. 1977), cert, denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). In arriving at an answer to that question, four factors are evaluated in the context of the totality of circumstances: (1) whether the seniority system operates to discourage all employees equally from transferring between seniority units, (2) whether the seniority units are in the same or separate bargaining units and, if separate, whether that structure is rational and industry-wide, (3) whether the seniority system had its genesis in racial discrimination, and (4) whether the seniority system was negotiated and maintained free from any illegal purpose. Id. at 352. 219a As will be seen, under James Gulfs seniority system is bona fide and thus does not violate Title VII. (i) Equal Transference Between Seniority Units Plaintiffs argue that the one-day seniority rule was designed to negatively affect blacks and render worthless any plant seniority that they may have accumulated. The Court disagrees. The one-day rule was facially and operationally neutral: it applied equally to whites and blacks. The purpose and effect of the rule was to maintain the most qualified persons in their respective technical Craft Division positions, as well as to protect the integrity of the vertical promotion system and the legitimate expectations of those already in the craft-lines. Because a transferee did not forfeit his plant or labor seniority upon transferring into the Craft Division, the rule could not possibly discourage a black laborer 220a from transferring. A transferee could still use plant seniority to avoid layoff and labor seniority in the event he was demoted. There is no evidence that a transferee was subjected to a wage cut upon entering the Craft Division. See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 223-24 (5th Cir. 1974) (fact that transferee endured a wage cut highly detrimental to bona fides of seniority system). The elimination of the one-day rule pre-dated the enactment of Title VII. By the effective date of that statute, Gulf and the OCAW had opened up the craft lines for bids based on plant-wide seniority. Plant-wide seniority was also used to determine all promotions and demotions within the craft lines. That is precisely what Plaintiffs contend is the fairest system. 221a (ii) Same or Separate Bargaining Unit There is no "same or separate bargaining unit" controversy in this case. Therefore, James factor number two is not in issue. (iii) Genesis o f Seniority Unit Plaintiffs contend that Gulfs seniority system had its genesis in racial discrimination. Widespread societal discrimination existed in the South in 1943, the year in which Gulfs seniority system was negotiated. The fact that blacks were initially relegated to the laborer jobs while whites entered the craft positions is proof, assert Plaintiffs, that Gulf specifically adapted its seniority system to the prevailing social prejudices of that time. Plaintiffs argue that to the extent that the seniority system was patterned upon the existing threads of social bigotry, that system preserved and perpetuated that discrimination. Plaintiffs’ allegations that Gulfs seniority system had its genesis in racial segregation is not the legal 222a equivalent of saying that the seniority system had its genesis in racial discrimination. See Carroll v. United Steelworkers o f America, 498 F. Supp. 976, 986 (D. Md.), aff’d, 639 F.2d 778 (4th Cir. 1980). The passive co existence of union and societal segregation is not enough to render a seniority system mala fide. Rather, Plaintiffs must show that the seniority system, as an insular and structurally independent entity, was designed to effectuate an intent to discriminate on the basis of race or to lock in place blacks previously discriminated against. Teamsters, 431 U.S. at 353-55, 97 S.Ct. at 1863-65. The Carroll court looked for objective indicia of intent. For example, the court noted that the purpose of the system was to erect objective standards--most notably, seniority--by which decisions relating to employee promotion, demotion, layoff, and recall were made. Carroll, 498 F. Supp. at 986. This kind of seniority system 223a was widely adopted nationwide by major companies, without regard to the racial composition of the particular workforce. Id. The bargaining policies of the union were not racially premised. Id. The malapportionment of blacks and whites at Gulf resulted from two sources other than the seniority system. First, there was the unions’ gentlemen’s agreement to not compete. Without question, the self-imposition of such occupational restraints constituted a joint acquiescence In the invidious predilections of a segregationist society. However, that accommodation, reached by the union locals, was independent of any action taken by Gulf or the OCAW International. The discriminatory aspects of that agreement were not incorporated into any of the formal labor agreements between the Company and the Union. That agreement had no bearing whatsoever on the conceptual integrity of the system. That is, the system was not structured to discriminate; nor were the 224a discriminatory consequences connected in any way with the system per se. Those consequences were in part superimposed by the workers themselves upon an otherwise neutral seniority system. The second factor contributing to the segregationist distribution of blacks and whites was purely social. Blacks constituted the great bulk of the laborer force in the South during that period. The relegation of blacks to labor was a passive adaptation of racially discriminatory social practices to the seniority system and not vice versa. Like the gentlemen’s agreement, that practice had no bearing upon the theoretical or structural components of the seniority system. The presence of divisive social prejudice does not, alone, constitute a proper predicate upon which to impose restorative legal remedies which will operate at the expense of innocent people. See Wygant v. Jackson Board of Education, __ U .S .____ , 106 S.Ct., 1842, 1848, 90 L.Ed.2d 260 (1986) ("[A]s the basis 225a for imposing discriminatory legal remedies that work against innocent people, societal discrimination is insufficient and over expansive") (emphasis in original). Society’s past racial misconceptions and the gentlemen’s agreement jointly operated to consign blacks to inferior positions at Gulf. However, neither of these wrongs are connected in anyway with the seniority system. Gulfs seniority system met other criteria of legitimacy. In both Labor and Craft, promotions, demotions, and layoffs were objectively determined by seniority. The seniority system was typical of that used in the industry at plants predominately black and those predominately white. There is no evidence that the OCAW International’s bargaining policies were racially biased, or that the OCAW negotiated along racial lines. The Court cannot infer that Gulfs seniority system was motivated by discriminatory prejudices or maintained as a construct by which to perpetuate racial imbalances. 226a Hence, under James factor number three, Gulfs seniority system did not have its genesis in racial discrimination. (iv) Illegality o f the Seniority System There is no evidence that Gulf or the OCAW engaged in any illegal activity with respect to the formulation or maintenance of the seniority system. Employing the James test, the Court finds that Gulfs seniority system was bona fide. The plant-wide seniority system was instituted prior to the enactment of Title VII; along with job posting and job bidding. See James, 559 F.2d at 352-53. The major negative impact from the use of divisional seniority occurred during the 1959-1961 workforce reductions, well before the effective date of Title VII. Whites were also victims of the demotions and loss of rank. Gulf and the OCAW had substantially eradicated the imperfections associated with the pre-Title VII system in other ways. For example, Gulf established night school 227a programs in 1965 and 1966 to assist those in the lower job classifications to advance. Gulf paid the employee’s tuition and expenses, as well as $2.50 per hour to attend. A number of other affirmative action programs were also established. For these reasons, the Court finds that there were no lingering discriminatory effects subsequent to the December 26, 1966 cut-off date. (2) Post-Title VII Discrimination: Stipulation 29 In 1967, Gulf and the OCAW negotiated Stipulation 29. Stipulation 29 simplified the complex craft promotion lines. Under Stipulation 29, mechanical trainee became the entry-level position for all crafts. Labor Division employees could bid directly into the craft-trainee position without first bidding into the Mechanical Helper Pool Craft Division incumbents whose jobs were being eliminated because of the simplification program were administered a simple reading and writing test (out of 204 228a persons taking the test, one failed). Upon passing the test, the displaced employees were reclassified as mechanical trainees. Stipulation 29 applied equally to blacks and whites. Plaintiffs argue that Stipulation 29 constituted a separate violation of Title VII and § 1981. Although blacks and whites were facially treated equally under the stipulation, Plaintiffs state that the overwhelming majority of employees who benefitted were white. Plaintiffs point again to blacks who earlier had returned to labor due to the workforce reductions as the prime example of those who did not benefit under the stipulation. Most of the blacks excluded from benefitting under the stipulation had more plant seniority, say Plaintiffs, than the craft-line whites who took the simple test and were reclassified as mechanical trainees. Plaintiffs argue that by favoring whites not demoted to labor under the 1956-1963 divisional seniority scheme, Stipulation 29 effectively 229a diluted their seniority rights by making it more difficult for them to bypass whites who, with less plant seniority, but more Craft Division seniority, now occupied higher Craft Division positions. Plaintiffs admit that the Stipulation 29 test did not have an adverse impact on them. Indeed, of the 204 senior employees who took the Stipulation 29 test, only one failed. Most importantly, those same employees would have reached the mechanical trainee program first under the old bona fide system. Moreover, under a 1971 conciliation agreement, between Gulf and the Government, blacks who had been demoted to the Labor Division during the workforce reductions, and were thus absent from the Craft Division when Stipulation 29 was implemented, were offered promotions to the number one positions in their prior crafts at competitive rates of pay. For these reasons, 230a Stipulation 29 does not constitute a separate Title VII or § 1981 violation. B. The Craft Training Tests A successful bidder had to pass examinations before transferring into a craft-line position. The same tests were administered for each craft line. The "Old Tests" were used to screen bidders between 1947 and 1971; and the "New Tests" were used to screen bidders after 1911? Plaintiffs third amended complaint only alleges that the OCAW and the Trade Unions "agreed to, acquiesced 3 The Old Tests consisted of six separate tests: (A) Test of Reading Comprehension; (B) Test of Arithmetic Fundamentals; (C) Wonderlic Personnel Test; (D) Mechanical Aptitudes Test; (E) Mechanical Insight Test; (F) A Lee-Clark Arithmetic Test. (These tests were apparently administered in addition to the 1956-1963 battery of tests). See footnote 2, supra. The New Tests consisted of four parts: (A) Bennett Mechanical Comprehension Test; (B) Test of Chemical Comprehension; (C) Arithmetic Test; (D) Test Learning Ability. After 1971, these tests were also used for the hiring of new employees. Thus, any employee hired after 1971 was not required to take any additional tests to enter a craft. 231a in, or otherwise condoned the unlawful employment practices [of Gulf, as described in the complaint]." It does not allege that the Trade Unions independently discriminated against OCAW members. No cut-off scores were used in scoring the new tests. However, those achieving high scores were selected, pari passu, over those achieving extremely low scores. Plaintiffs5 statistics show that 82.5% of whites who took the Old Tests between January 1969 and March 1971 ultimately passed. Only 42.8% of blacks who took the same tests during that period ultimately passed. Between 1971 and 1980, 97.7% of the whites who took the New Tests passed them, while only 66% of the blacks who took those tests passed. Under the "80% rule," Plaintiffs5 statistics demonstrate adverse impact under both sets of tests because the proportion of blacks passing the tests is less than 80% of the proportion of whites passing the tests. 232a See 29 C.F.R. 1607.4(D) (1981). Therefore, Defendant must show that the employment tests are job-related. Are The Tests Job-Related? In Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971), the Supreme Court held that Title VII forbids the use of tests or other employment selection criteria that have the effect of excluding blacks at substantially higher rates than whites, absent a showing that the test or employment selection criteria are job related. If, as in this case, a test is shown to have a discriminatory impact, the employer must, by professionally accepted methods, prove that the test is "predictive of or significantly correlated with important elements of work behavior that comprise or are relevant to the job or jobs for which candidates are being evaluated." Contreras v. City o f Los Angeles, 656 F.2d 1267, 1280 (9th Cir. 1981), cert, denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 140 (1982). 233a A criteria validation study, which has been described by the Fifth Circuit as the "most accurate way to validate an employment test," United States v. Georgia Power Co., 474 F.2d 906, 912 (5th Or. 1973), was conducted by Gulf on the New Tests in 1983/ Plaintiffs only real objection to that study is predicated upon the "performance elements" used by Gulf.5 These elements, 4 "Criterion-related" validity is established by showing that a test measures abilities which are component parts of jobs, mastery of which correlates with some measure of subsequent successful job performance. So far as the Old Tests are concerned, Gulf was not required to validate them, for the reason that the Old Test were eliminated four years before A lberm arle P aper Co. v. M oody , 422 U .S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), imposed validation requirements; and seven years before The Equal Employment Opportunity Guidelines in Employee Selection Procedures instigated validated studies. 5 The performance elements are: (1) learning new procedures quickly; (2 knowing when to get help; (3) handling several tasks at once; (4) understanding written instructions; (5) understanding oral instructions; (6) working without supervision; (7) paying attention to detail; (8) passing on instructions to others; (9) training other employees; (10) taking a systematic approach to work; (11) planning own work; (12) following standard operating procedures; (13) identifying problem situations quickly; (14) making accurate entries in logs or records; (15) completing assignments on time; (16) reading prints and diagrams; (17) setting priorities; (18) devising creative solutions; (19) remembering large amounts of detail; (20) making on- the-spot decisions; (21) communicating orally; (22) working with 234a say Plaintiffs, were for the most part general (or cognitive) ability elements completely unrelated to the actual duties employees had to perform. Plaintiffs argue that the validity study should have been predicated upon a list of actual duty elements.6 The Court finds that the criteria employed by Gulf to validate its New Tests reliably correlate with important elements that comprise or are relevant to the craft jobs. Plaintiffs’ proposal that Gulfs tests be validated exclusively in accordance with performance dimensions that bear a one-to-one, rectilinear correlation with the actual duties of others. 6 For example, the actual duty elements for a boilermaker, according to Plaintiffs, are: (1) using common hand-held tools; (2) following safety procedures; (3) working at heights over 4 feet; (5) working as a member of a team; (6) carrying out simple oral instructions; (7) working outside; (8) using handling and lifting devices; (9) repairing frames and platforms; (10) maintaining clean work area. The actual duty elements for the other craft positions are virtually the same as these and do not require separate mention. 235a the entry-level positions would require the use of tests that possess little if any predictive value.7 If these tests were being used to screen for the entry-level positions only, Plaintiffs’ actual duty elements might be acceptable criteria. The entry-level positions at Gulf, however, are only the first steps in a highly formalized promotion scheme. Because promotions are based entirely upon seniority, advancement in a progression line is virtually assured. To be able to perform well in the advanced craft positions, the worker must be able to learn, or generalize, from his experience in the lower craft positions, and systematically apply those principles to the responsibilities of the higher jobs. That 7 There is some overlap in the criterion measures used by both parties (e.g., both suggest tests which measure one’s ability to follow safety procedures; and understand oral instructions). To that extent, no controversy exists, some of Defendants’ criteria, though not identical to Plaintiffs’, are actual duty elements of the same species (e.g., the ability to make accurate entries in logs; and communicating orally). All in all, about one-half of Defendants’ criteria are actual duty elements of the same character as Plaintiffs’. The other half constitute the cognitive ability elements and are the ones spawning the real controversy. 236a learning process requires certain cognitive abilities which are not situationally specific. Such innate abilities are not readily discoverable through the use of tests that measure only the abilities to perform the actual duties of the lowest craft job. Since Gulf does not test for competency prior to promoting to a higher craft position, it is imperative that the company be reasonably certain at the time an employee enters the Craft Division that that employee is able, for reasons of safety and efficiency, to learn new skills and acquire new knowledge. See Watkins v. Scott Paper Co., 530 F.2d 1159, 1168 (5th Cir.), cert, denied, 429 U.S. 861, 97 S.Ct. 163, 50 L.Ed.2d 139 (1976). Also, most of Plaintiffs’ actual duty elements involved abilities Plaintiffs should have already learned in the Labor Division. For example, each aspiring craftsman had already acquired the basic "hands-on" skills in the use of tools and materials. Testing only for such basic actual 237a duty skills could not predict which workers had potential for promotion up through the ranks. Quite simply, Gulfs overriding interest lay in ascertaining which of the equally experienced laborers had the greatest potential to train for new assignments. That approach, the use of employment tests to measure trainability irrespective of the test’s possible relationship to actual performance on the job, was approved by the Supreme Court in Washington v. Davis, 426 IIS, 229, 250, 96 S.Ct. 2040, 2052, 48 LEd.2d 597 (1976). The Court does not find the fact that Gulf used the same employment tests for all the craft-line destructive of the tests’ validity. The tests were given to insure that an employee had the rudimentary skills necessary to be put into a training program. See Ensley Branch o f N.A,A, (IP. v. Seibels, 616 F.2d 812, 822 (5th Cir. 1980), (tests used to screen out candidates not possessing minimum skills as opposed to ranking applicants according to scores are 238a justified). Although the mechanics of each job vary, the conceptual and intellectual competence required to perform each job is not significantly different. The carpenter, the pipefitter, the mechanic, and the other craftsmen all need the ability to conceptualize three- dimensional objects on the basis of two-dimensional drawings. Each must create physical objects in accordance with written or graphic specifications. All craftsmen must understand the geometrical relationships between the things they work with and be able to think in terms of area, volume, and length. Trainability based upon these and similar facets of each craft job being the transcendent criterion of eligibility, no unfairness results from the inter craft use of these tests. The Court, therefore, holds that the New Tests are job-related and immune to attack under Title VII. 239a C. Discriminatory Application o f S & A Policy Plaintiffs contend that Gulf discriminatorily applied its sickness and accident ("S & A") policy to blacks. The critical period is 1975 to 1980. The policy at Gulf was that 80 or more S & A hours per year triggered an inspection of a senior bidder’s record. If, in the opinion of the company, his record was unsatisfactory, he would be bypassed for the job. Plaintiffs argue that during the years 1975-1980, 33.1% of all black bidders and 22.0% of all white bidders were rejected because of their unsatisfactory S & A records. Gulfs S & A policy was applied equally to blacks and whites. Hence, even if Gulfs S & A policy resulted in adverse impact on blacks, its use is justified as good business practice under Title VII. See Gilchrist v. Bolger, 733 F.2d 1551, 1553 (11th Cir. 1984). 240a D. Discriminatory Selection of Supervisors Gulf promoted employees to supervisory positions on both a temporary and permanent basis. Plaintiffs argue that between 1967 and 1982, blacks were selected as supervisors at rates inconsistent with their representation in the relevant eligibility pool; which, according to Plaintiffs, is the total number of hourly employees. Plaintiffs further contend that between 1965 and 1982, there were a total of 209 promotions to supervisor, with 22 or 10.5% going to blacks. Gulf generally promoted upper level employees in the Craft Division to supervisor. Therefore, Gulf argued, the relevant eligibility pool was not the set of hourly employees, but rather those in the top jobs. During the period in issue, blacks constituted 11.35% of the top-job employees; 13.7% of the supervisory promotions went to blacks. In order to afford supervisory opportunities to blacks, Gulf argues, it promoted blacks with less seniority 24la faster than it did whites. Blacks were promoted to supervisor after they had averaged approximately 19 years at the plant and approximately 3 years in the No. 1 job. Whites had to wait longer-approximately 26 years at the plant and approximately 8-1/2 years in the No. 1 job. The Court finds that Gulfs policy of promoting top-level employees to supervisor is justified. Not surprisingly or unreasonably, Gulf wanted to promote to supervisor only those employees who had substantial experience in the crafts they were to oversee. That is a universal business practice based upon the fact that such experienced supervisors are best qualified to promote efficiency and safety. See Watkins, 530 R2d at 1168. Moreover, although Gulfs standards of selection were unwritten and subjective, the Court finds no evidence that the standards were discriminatorily applied. See Pouncy v. Prudential Ins. Co. o f America, 668 F.2d 795, 800-801 (5th Cir. 1982) (absent proof of discriminatory 242a intent, the use of subjective decision-making procedures is not per se discriminatory). The evidence presented does not demonstrate that Gulf intended to discriminate, or, from a statistical standpoint, that it did discriminate in promoting craftsmen to supervisory jobs. E. Union Liability A union breaches it duty of fair representation "only when [the] Union’s conduct toward a member of a collective bargaining unit is arbitrary, discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967). The OCAW had responsibility for negotiating the plant seniority system and Stipulation 29. The Court has found that the seniority system was bona fide and that Stipulation 29 did not retard blacks’ advancement into the craftlines. On those facts, the Court concludes that the Union did not breach 243a its duty of fair representation to the Plaintiffs, as to either the seniority system or Stipulation 29.8 Nor was there any credible evidence introduced that the Union did not properly pursue black members’ grievances, as Plaintiffs allege. Indeed, Mr. Stelly, a former union representative and witness for Plaintiffs, testified that while he was Chairman of the Workman’s Committee, everyone who asked for help received it. The Court therefore finds no fault with the Union. II. INDIVIDUAL CLAIMS The Court having found for Gulf and the OCAW on the classwide claims, Plaintiffs’ individual claims based upon the same allegations are precluded. Cooper v. 8 In Sinyard v. F oo te & D a vies , 577 F.2d 943, 945-46 (5th Cir. 1978), the court held that Title VII does not impose an affirmative policing duty upon the international union for a discriminatory contract negotiated by one of its locals without the international’s assistance or sanction. In our case, the gentlemen’s agreement between the locals to not compete did not involve Gulf or the OCAW International. Indeed, the agreement was not so much an accord between the locals acting in their official capacities but rather a job-protecting accommodation reached among the rank and file themselves. 244a Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 2802, 81 L.Ed.2d 718 (1984). However, the named Plaintiffs may pursue their individual claims of intentional racial discrimination. Id. In a Title VII cause of action for employment discrimination, the Plaintiff has the initial burden of establishing a prima facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). In McDonnell-Douglas, the Court propounded a four-pronged test which, though schematized for application in discriminatory hiring cases, has been extended by this circuit, for example, to discriminatory termination cases. Burdine v. Texas Department o f Community Affairs, 608 F.2d 563 (5th Cir. 1979), vacated and remanded, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Since discriminatory failure 245a to promote is analogous to discriminatory termination, the Burdine test applies here. The Plaintiff must prove that (1) he belongs to a group protected by Title VII, (2) he was qualified for the job, (3) he was not promoted, and (4) the employer promoted one not in Plaintiffs protected class. If Plaintiff makes out a prima facie case, the employer must produce "evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, non-discriminatory reason." Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Q. 1089, 1094, 67 L.Ed.2d 207 (1981). If the employer meets this burden, "the presumption of discrimination ’drops from the case,’ and the District Court is in a position to decide . . . whether the particular employment decision at issue was made on the basis of race." Cooper v. Federal Reserve Bank, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). As will be seen, none of the Plaintiffs’ individual claims rise to the level of a 246a prima facie case of employment discrimination under McDonnell Douglas. Elton Hayes: Mr. Hayes alleges that Gulf discriminatorily failed to promote him to a supervisory position. Although there is evidence that Mr. Hayes was qualified for the position, he did not apply for it. This, despite the fact that Mr. Hayes admitted that he knew of about 17 blacks who had been promoted to supervisor. Hence, Mr. Hayes could not reasonably argue that it would have been a futile gesture for him to make a request to become a supervisor. E.g., International Brotherhood o f Teamsters v. U.S., 431 U.S. at 367, 97 S.Ct. at 1870. Because Mr. Hayes failed to make a request for a promotion, he has failed to make out a prima facie case of employment discrimination. Therefore, no inference of intentional discrimination has been raised. Wesley Bernard: Mr. Bernard alleges that promotions due him were delayed because of test failures, 247a that he was disqualified from jobs for which he was fit, and that he was discriminatorily denied a promotion to a supervisory position. Since the craft tests do not constitute a Griggs violation, Mr. Bernard’s test claims are foreclosed by the classwide judgment; his other claims also are without merit. With respect to his disqualification claim, Mr. Bernard has not proven that he was qualified for those positions. He offered no evidence that a white employee got the position he desired, or about how many blacks requested such a position and had their requests denied or granted. Intentional discrimination cannot be inferred from these facts. Mr. Bernard requested supervisory promotions twice. The first time was in the early 1960’s (by his recollection) and is outside the time frame of this litigation. The second time was in the 1970’s (as he recalls) and Mr. Bernard was denied the job in favor of a 248a Mr. Butaud, a white employee. However, Mr. Butaud was in the top craft position at the time; Mr. Bernard was not. In fact, Mr. Bernard conceded at trial that at the time he made the request he was not qualified for the promotion. Therefore, Gulf had good reason to promote Mr. Butaud over Mr. Bernard. Gulfs selection of Mr. Butaud evidences no discriminatory intent against Mr. Bernard. Mr. Bernard has failed to establish a prima facie case of employment discrimination. Hence Brown: Mr. Brown testified that he wanted to be a supervisor but that he had not told anyone of his desire because he thought that would have been useless. However, Mr. Brown admitted that he knew of one black supervisor in his department. Moreover, statistics showed that many blacks were promoted to supervisory positions. Mr. Brown should have filed for a promotion. Other blacks at Gulf did request and receive supervisory promotions. Because Mr. Brown did not request a 249a promotion, he was passed over. No inference of intentional discrimination can be drawn when Plaintiff did not even make a request for promotion. Therefore, Mr. Brown has not set forth a prima facie case of employment discrimination. Rodney Tizeno: Mr. Tizeno’s claims are that the seniority system at Gulf discriminatorily thwarted his upward mobility, that he was one of the blacks excluded from benefitting under Stipulation 29, and that he was discriminatorily denied promotions to supervisory positions, The classwide judgment forecloses Mr. Tizeno’s claims founded upon the mala fides of the seniority system. Although it is true that Mr. Tizeno was one of the blacks who was absent when Stipulation 29 went into effect, he was offered the opportunity, pursuant to the 1971 agreement between Gulf and the government, to enter a two-year training program that would have positioned Mr. Tizeno at or near where Stipulation 29 would have 250a positioned him. Mr. Tizeno refused the offer. Mr. Tizeno offers only ad hominem statements as to why he was qualified for a supervisory job and why he was denied that job. Although he testifies that Mr. Chesser, a white employee, received a promotion he requested, Mr. Tizeno offers no evidence that he was better qualified for that position. Again, the Court cannot conclude from such snap shot testimony that Mr. Tizeno was not promoted because of an intent to discriminate against him by Gulf. Mr. Tizeno has failed to make out a prima facie case of employment discrimination. Willie Johnson: Mr. Johnson’s allegations center upon the negative effects the seniority system and testing requirements had upon him. Those claims are barred by the classwide judgment. Mr. Johnson also complains of an allegedly discriminatory incident in which he was subjected to a 251a racial slur that was condoned by Gulf and that lead to his self-disqualification from a craft-line position. Even if true, this allegation is barred because the act complained of was not committed within the time period covered by this lawsuit. See Evans, 431 U.S. at 558, 97 S.Ct. at 1889. This decision culminates a long and complex employment discrimination case. The Court has pondered the evidence and the law and has concluded that the seniority system and the employment tests were non- discriminatory. The Court has also found that none of the business procedures and policies followed by Gulf and the OCAW were motivated by bad intent or fell too harshly upon blacks. For these reasons, the Court holds that the named Plaintiffs have failed to demonstrate that either Gulf or the OCAW violated any duty owed to them, individually or as a class, under Title VII of the Civil Rights Act of 1964 or Section 16 of the Enforcement 252a Act of 1870. Accordingly, Plaintiffs, individually and as a class, take nothing by their action. FINAL JUDGMENT This is a class action employment discrimination suit in which Plaintiffs seek declaratory, injunctive, and monetary relief pursuant to Title VII of the civil Rights Act of 1964, 42 U.S.C § 2000e et. seq. and Section 16 of the Enforcement Act of 1870, 42 U.S.C. § 1981. The named Plaintiffs are present or retired black employees at Gulf Oil Corporation’s ("Gulf') Port Arthur, Texas, Refinery. The Plaintiff class consists of black persons who were employed at Gulfs Port Arthur Refinery on or after December 26, 1966, who were members of the Oil, Chemical and Atomic Workers’ International Union, Local Union 4-23 ("OCAW"), and who had not executed releases in connection with a Conciliation Agreement between Gulf and the Equal Employment Opportunity Commission ("EEOC"). The Defendants are Gulf Oil 253a Corporation, predecessor in interest to Chevron U.S.A., a Pennsylvania corporation; the Oil, Chemical and Atomic Workers5 International Union; and the Oil, Chemical and Atomic Workers’ International Union, Local Union 4-23. The Court having jurisdiction of the parties and subject matter, the action came on for trial before the Court without a jury. The issues were limited to the individual and class-wide liability of Gulf and the OCAW. Evidence was presented on Plaintiffs’ allegations that, inter alia, 1. G ulfs seniority system unlawfully discriminated against black employees and was not bona fide; 2. Stipulation 29 to the 1967 Collective Bargaining Agreement between Gulf and the OCAW unlawfully discriminated against black employees; 3. the tests used for promotion to the Mechanical Training Program had an unlawful, 254a discriminatory effect on black employees and were not job-related; 4. the use of sickness and attendance ("S & A") records in making certain promotions resulted in unlawful adverse impact on black employees, and were used to commit intentional discrimination against black employees; 5. blacks were unlawfully and discriminatorily disqualified from certain jobs because of race; 6. promotions to supervisor were made on a racially discriminatory basis; 7. the OCAW breached its duty of fair representation; 8. the named Plaintiffs Wesley P. Bernard, Elton Hayes, Hence Brown, Rodney Tizeno, and Willie Johnson, Sr. were individual victims of intentional racial discrimination by Gulf and the OCAW. 255a The issues having been presented and arguments of counsel having been heard, the Court finds that Plaintiffs have failed to prove these or any related allegations of employment discrimination. It is, therefore, ORDERED, ADJUDGED and DECREED that Plaintiffs, individually and as a class, take nothing by their lawsuit; and, further, that this action is DISMISSED with prejudice, and all parties are to bear their own costs and attorneys’ fees. 256a 5 < y