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

    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.

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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,

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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.]

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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

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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

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"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.

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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

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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)).

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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.

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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

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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.

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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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.

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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