Appendix — Gulf Oil Co. v. Bernard

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NO. 80-441

IN THE

Supreme Court of the Mnited States

OCTOBER TERM, 1980

GULF OIL COMPANY, ET AL.,

Petitioners,

WESLEY P. BERNARD, ET AL.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

JOINT APPENDIX

VM. G. DucK*

SUSAN R. SEWELL

P.O. Box 3725

Houston, Texas 77001

(713) 754-2953

Counsel for Petitioner

Gulf Oil Company

Cart A. PARKER*

449 Stadium Road

Port Arthur, Texas 77640

Counsel for Petitioner

International and Locel Unions

Jack GREENBERG

Patrick O. PattEerRson*

10 Columbus Circle, Suite 2030

New York, New York 10019

(212) 586-8397

Barry L. GOLDSTEIN

806 15th Street, N.W., Suite 940

Washington, D.C. 20005

Urysses GENE THIBODEAUX

425 Alamo Street

Lake Charles. Louisiana 70601

Counsel for Respondents

* Counsel of Record

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

Petition for Certiorari Filed September 17, 1980

Certiorari Granted December 8, 1980

INDEX

Chronological List of Relevant Docket Entries ...........

Bl -Decien TO. 6.65. keeincitins cl. cae eee

Complaint, Filed May 18, 1976 ..... 2... ccc ccc cece cee.

Motion By Gulf To Limit Communications With Any Po-

tential or Actual Class Member, Filed May 27, 1976 ...

Memorandum in Support of Gulf’s Motion To Limit

Communications With Any Potential or Actual Class

BE 5a. xk vas oduonsGeeceedee ele

Exhibit A—Agreement Between the U. S. Equal Em-

ployment Opportunity Commission, Gulf Oil Com-

pany—U.S. and Office For Equal Opportunity, U.S.

Department of the Interior, dated April 14, 1976 ...

Exhibit A—List of employees (Omitted)

Exhibi. B—List of Employees (Omitted)

Exhibit B—Letter from William G. Duck to be read to

Actual or Potential Class Members, dated May 25,

BPUU: 6's 4 cneucins au teee Un en eee

First Order Limiting Communications With Any Potential

or Actual Class Member, Filed May 28, 1976 .........

Motion of Gulf Oil Corporation To Modify Order Limiting

Communications, Filed June 8, 1976 .................

Memorandum in Support of Gulf Oil Corporation’s

meet 8) Sy GO... vcveccncnneeeeeeeatn

Exhibit A—Agreement Between the U. S. Equal Em-

ployment Opportunity Commission, Gulf Oil Com-

pany—U.S. and Office For Equal Opportunity, U.S.

Department of the Interior, dated April 14, 1976 ..

Exhibit A—List of Employees (Omitted)

Exhibit B—List of Employees (Omitted)

Exhibit B—Letter from William G. Duck to be read to

Actual or Potential Class Members, dated May 25,

BPOE ons von éeus teed bck esieuk oe cee

Exhibit C—Affidavit of Herbert C. McClees, dated

pees $, WORS .. .6s cic yuwupaencoteietee

Exhibit D—Affidavit of Gerald C. Williams—June 4,

i ery feet ree

Plaintiffs’ Memorandum of Law In Opposition To Defend-

ant Gulf Oil Company’s Motion To Limit Communica-

tions With Any Potential or Actual Class Member, Filed

RE. By BOO ei veccncananccctecsbcaeeneeapbeapeses

Exhibit A—Copy of First Order Limiting Communica-

tions (Omitted)

Exhibit B—Opinions and Orders in Jimmy L. Rogers

and John A. Turner v. United States Steel Corpora-

tion, et al. v. Honorable Hubert I. Teitelbaum,

United States Court of Appeals for the 3rd Circuit,

No. 76-1340 (Omitted)

Exhibit C—Letter from Equal Employment Opportun-

ity Commission to Wesley Bernard, dated February

25, 1975 (Omitted)

First Supplemental Memorandum In Support of Gulf Oil

Corporaiion’s Motion To Modify Order, Filed June 16,

PE ack bapoeekiuhesé0 tes. sbesae dhe neeerdeeente shes

Exhibit A—§ 1.41 of Manual for Complex Litigation ..

Exhibit B and Appendix I—Proposed Order to Limit

EE PEN OED Pe Ee ee ee

Plaintiffs’ Memorandum of Law in Opposition To Defend-

ant Gulf Oil Company’s Motion To Modify Order, Filed

DE EG, WOOO des ccceseeevecivvadgns csunesevssesakeas

Exhibit A—Affidavit of Barry L. Goldstein, dated June

OEE Ais ccccansndeteab sheets <eneedynd Semen

Exhibit B—Affidavit of Ulysses Gene Thibodeaux,

BG, BED cack nicddsadncncicnvevanset

Exhibit C—Affidavit of Stella M. Morrison, dated

BE BE SOGD 6 vin cin cdced ninwddcckasctesowsenes

Motion By Defendant, Gulf Oil Corporation To Dismiss

Comet, Pilek Fame 87, 8986... cccnscesdacsccen:

Order Granting Motion of Gulf Oil Corporation To Modify

First Order Limiting Communications, Filed June 22,

ESA Ria acy & 6.66 anemone Oe ee ee le ee

Appendix I—Notice from Clerk of Court to Employees

Receiving Conciliation Benefits ..................

105

111

115

118

121

124

128

Plaintiffs’ Motion For Permission To Communicate With

Members of the Proposed Class, Filed July 6, 1976 .....

Exhibit A—Proposed Notice To Potential Class Mem-

DON ba kena ced d Ronn esa dude Ko Nae Rea cas oie hamels

Exhibit B—Order Limiting Communications, Filed

June 22, 1976 (Omitted)

Memorandum of Law In Support of Pla'atiffs’ Motion

For Permission To Communicate With Members of

a ee ID ss ook caerd b bakiee sek adednk scx

Memorandum On Behalf of Gulf Oil Corporation In Opposi-

tion To Plaintiffs’ Motion For Permission To Communi-

cate With Members of the Proposed Class, Filed July

Siig) PEE tes (and WAS Ss Rae a ee ARR ReOn Ra eheR keds

Plaintiffs’ Amended Complaint, Filed July 19, 1976 ......

Exhibit A—Notice of Right to Sue Within Ninety Days

to Wesley P. Bernard, dated June 11, 1976 ........

Exhibit B—Notice of Right to Sue Within Ninety Days

to Hence Brown, Jr., dated June 11, 1976 .........

Order Denying Plaintiffs’ Motion For Permission To Com-

municate With the Proposed Class, Filed August 10, 1976

Report to the Court by Gulf Oil Corporation of Indiv ‘duals

Who Have Accepted Benefits Under the Conciliation

Agreement, Filed September 2, 1976 ..................

Exhibit A—List of Employees Who Accepted Concilia-

NE NN Sas ue rch wou wb seek sck cer kesneees's

Exhibit B—List of Employees Who Failed to Accept

RD SUE: on dcw cbt apesciccdeebincenas

Order Granting Summary Judgment For the Defendants,

FUE FT Rig FOFE. ok va bed eenusbanVincccicensads

Opinion of Court of Appeals, Filed June 15, 1979 ........

Order Granting Rehearing En Banc, Filed September 27,

PRED 5655. 5eo sop s k'es 5a ORb SME VEEN EEE WENO Gees

Opinion of Court of Appeals En Banc, Filed June 19, 1980

Judgment of Court of Appeals Rehearing En Banc, Filed

DO Si SUE A Pek aac kx Rs Camedia beketeteuareskanekie

Order of Supreme Court of the United States allowing Cer-

tiorari, Filed December 8, 1980 ............cccccceces

134

139

146

155

156

157

158

160

168

170

175

229

231

277

279

CHRONOLOGICAL LIST OF

RELEVANT DOCKET ENTRIES

May 18, 1976—Plaintiffs’ original petition filed in U.S.

District Court for Eastern District of Texas, Beaumont

Division.

May 27, 1976—Defendant Gulf’s motion to limit com-

munications with any potential or actual class member

filed.

May 28, 1976—Order signed by Judge Steger limiting

communications with any potential or actual class mem-

bers.

June 8, 1976—Defendant Gulf’s motion to modify

order limiting communications filed.

June 11, 1976—Hearing held on motion to modify

order limiting communications.

June 17, 1976—Motion by defendant Gulf Oil Cor-

poration to dismiss complaint filed.

June 22, 1976—Order entered by Judge Fisher modify-

ing Judge Steger’s order limiting communications with

any potential or actual class members.

June 30, 1976—Notice mailed to Gulf’s Port Arthur,

Texas, refinery employees as per order of June 22, 1976.

July 1, 1976—Plaintiff’s motion to amend complaint

filed.

July 6, 1976—Plaintiffs’ motion for permission to com-

municate with members of the proposed class filed.

July 19, 1976—Order entered permitting plaintiffs to

file amended complaint.

July 28, 1976—Motion by defendant Gulf Oil Cor-

poration to dismiss amended complaint filed.

July 30, 1976—Defendant Oil Chemical and Atomic

Workers’ International Union, Local Union No. 4-23,

response to plaintiffs’ amended complaint filed.

August 10, 1976—Order entered denying plaintiffs’

motion for permission to communicate with the proposed

class.

August 25, 1976—Oil, Chemical and Atomic Workers

International Union and Local No. 4-23 of the OCAW

joins defendant Gulf Oil Company in its motion to

dismiss.

September 2, 1976—Report to the court by Gulf Oil

Corporation of individuals who have accepted benefits

under the conciliation agreement.

September 24, 1976—Hearing held on defendant’s

motion to dismiss.

November 29, 1976—Order entered that motion to

dismiss filed by defendant shall be treated as motion for

summary judgment and that parties should submit all

pertinent materials to said motion by January 3, 1977.

January 11, 1977—Order that summary judgment be

granted for the defendants as to both the class action

and any individual claims of discrimination by the plain-

tiffs.

February 9, 1977—Plaintiffs’ notice of appeal filed.

June 15, 1979—Opinion of the Court of Appeals for

the Fifth Circuit.

September 27, 1979—Order entered granting rehear-

ing en banc in the Court of Appeals for the Fifth Circuit.

June 19, 1980—Opinion of the Court of Appeals

en banc.

July 17, 1980—Judgment of Court of Appeals re-

hearing en banc.

December 8, 1980—Order entered by Supreme Court

of the United States allowing certiorari.

DATE NR.

5-18-76 1

5-25-76 11

5-27-76 12

5-27-76 16

5-28-76 20

5-28-76 22

6-7-76

DOCKET ENTRIES

PROCEEDINGS

COMPLAINT

Issued Summons and delivered to

U. S. Marshal, Beaumont, Texas.

Marshal’s Return on Summons to Gulf

Oil Company, served to R. B. Short,

Ref. Manager, on 5-24-76 at 3:50

p.m. $9.00

MOTION by Gulf to Limit Communi-

cations with any Potential or Actual

Class Member submitted by Atty.,

Joseph H. Sperry for Defendant,

Gulf Oil Company,

MEMORANDUM in Support of Gulf’s

Motion to Limit Communications

with any Potential or Actual Class

Member.

ORDER signed by Judge Steger on Mo-

tion by Gulf to Limit Communica-

tions with any potential or actual

class member. This ORDER shall be

effective until Judge Fisher returns

and can hear the matter upon formal

motion. Attys. of Record apprised.

V.74,P.10

Marshal’s Return on Summons, served

to Mr. Parker on 5-26-76 at 12:10

p.m. $9.00

Hearing on Motion by Gulf Oil to Limit

Communications with any potential

or actual class member for Friday,

June 11, at 10:00 am. by Judge

Fisher. Attys. of Record notified by

telephone Monday, June 7, 1976, and

follow-up letter.

DATE NR.

6-8-76 23

6-8-76 24

6-8-76 38

6-10-76 40

6-10-76 81

6-16-76 85

6-17-76 97

6-17-76 99

6-22-76 117

PROCEEDINGS

NOTICE OF MOTION TO MODIFY

ORDER by Defendant.

MEMORANDUM IN SUPPORT OF

GULF OIL CORPORATION’S MO-

TION TO MODIFY ORDER.

MOTION TO MODIFY ORDER.

Attys. of Record apprised.

MEMORANDUM OF LAW IN OP-

POSITION TO DEFENDANT GULF

OIL COMPANY’S MOTION TO

LIMIT COMMUNICATIONS WITH

ANY POTENTIAL OR ACTUAL

CLASS MEMBER, by Plaintiff.

Defendant, Oil, Chemical and Atomic

Workers International Union, Local

Union No. 4-23 Response to Plain-

tif?’s ORIGINAL COMPLAINT.

FIRST SUPPLEMENTAL MEMO.-

RANDUM IN SUPPORT OF GI LF’s

MOTION TO MODIFY ORDER.

MOTION by Defendant Gulf Oil Cor-

poration to Dismiss Complaint. At-

torneys of Record apprised.

MEMORANDUM OF LAW IN OP-

POSITION TO DEFENDANT GULF

OIL COMPANY’S MOTION TO

MODIFY ORDER, by Plaintiff.

ORDER that motion of Gulf Oil Cor-

poration to modify Judge Steger’s Or-

der is granted and that Judge Steger’s

Order of May 28, 1976 be modified.

s/Judge Fisher. Attorneys of record

apprised. V.74,P.

DATE NR.

7-1-76 123

7-1-76 125

6-30-76 128a-

128e

7-6-76 129

7-6-76 135

7-15-76 142

7-19-76 150

7-19-76 151

7-28-76 162

8-6-76 164

PROCEEDINGS

MOTION to Amend Complaint.

MEMORANDUM OF LAW IN SUP-

PORT of Plaintiffs’ Motion to Amend.

Notice (Appendix I) mailed to Port:

Arthur, Texas Gulf Refinery employ-

ees as per Order of June 22, 1976.

MOTION FOR PERMISSION TO

COMMUNICATE WITH MEM-

BERS OF THE PROPOSED CLASS

by Plaintiffs. Attys. of Record ap-

prised.

MEMORANDUM OF LAW IN SUP-

PORT OF PLAINTIFF’S MOTION

FOR PERMISSION TO COMMUNI-

CATE WITH MEMBERS OF THE

PROPOSED CLASS.

MEMORANDUM ON BEHALF OF

GULF OIL CORPORATION IN

OPPOSITION TO PLAINTIFFS’

MOTION FOR PERMISSION TO

COMMUNICATE WITH MEMBERS

OF THE PROPOSED CLASS.

ORDER granting Plaintiff's MOTION

TO AMEND COMPLAINT. s/Judge

Fisher. Attys. of Record Apprised.

V.75,P.44

AMENDED COMPLAINT by Plaintiff.

MOTION BY DEFENDANT GULF

OIL CORPORATION TO DISMISS

AMENDED COMPLAINT. Attys. of

Record apprised.

MEMORANDUM in Support of De-

fendant, Gulf Oil Corporation’s, Mo-

tion to Dismiss Amended Complaint.

DATE NR.

8-6-76 204

8-6-76 208

8-6-76 210

8-6-76 212

8-6-76 216

8-6-76 222

8-6-76 228

8-6-76 231

8-6-76 234

8-6-76 238

8-30-76 241

PROCEEDINGS

AFFIDAVIT OF NACHA I. MARTI-

NEZ with reference to Willie John-

son, Sr.

AFFIDAVIT OF NACHA I. MARTI-

NEZ with reference to Elton Hayes,

Sr.

AFFIDAVIT OF NACHA I. MARTI-

NEZ with reference to Rodney Ti-

zeno.

AFFIDAVIT OF NACHA I. MARTI-

NEZ with reference to Wesley P.

Bernard.

AFFIDAVIT OF NACHA I. MARTI-

NEZ with reference to Willie Whitley.

AFFIDAVIT OF HERBERT C. Mc-

CLEES with reference to Willie Whit-

ley.

AFFIDAVIT OF HERBERT C. Mc-

CLEES with reference to Willie John-

son, Sr.

AFFIDAVIT OF HERBERT C. Mc-

CLEES with reference to Hence

Brown.

AFFIDAVIT OF NACHA I. MARTI-

NEZ with reference to Hence Brown.

AFFIDAVIT OF HERBERT C. Mc-

CLEES with reference to Wesley

Bernard.

DEFENDANT, OiL, CHEMICAL AND

ATOMIC WORKERS’ INTERNA-

TIONAL UNION, LOCAL UNION

NO. 4-23 RESPONSE TO PLAIN-

TIFFS’ AMENDED COMPLAINT.

DATE NR.

8-10-76 245

8-20-76 246

8-25-76 256

9-2-76 258

9-2-76 273

9-14-76 274

9-24-76

PROCEEDINGS

ORDER on Plaintiffs’ Motion for Per-

mission to Communicate with the

Proposed Class is DENIED. s/Judge

Fisher. Attorneys of Record apprised.

V.75,P.142

MEMORANDUM OF LAW IN OPPO-

SITION TO DEFENDANT GULF

OIL COMPANY’S MOTION TO

DISMISS AMENDED COMPLAINT.

OIL, CHEMICAL AND ATOMIC

WORKERS INTERNATIONAL UN-

ION, AND LOCAL 4-23 of the

OCAW joins, Defendant, Gulf Oil

Company, in itt MOTION TO DIS-

MISS. Attys. of Record apprised.

REPORT TO THE COURT BY GULF

OIL CORPORATION OF INDIVID-

UALS WHO HAVE ACCEPTED

BENEFITS UNDER THE CONCI-

LIATION AGREEMENT,

MOTION FOR ORAL ARGUMENT

ON GULF’S MOTION TO DISMISS.

Attys. of Record apprised.

ORDER that oral arguments on Gulf’s

Motion to Dismiss will be set on

September 24, 1976 at 10:00 a.m.

Signed by Judge Fisher. Attys. of

Record apprised. V.76,P.77

Hearing held on Defendant’s Motion to

Dismiss. Motion taken under Advise-

ment. Counsel given to 10-15-76 to

file Memoranda or Briefs: Deft. given

to 10-22-76 to file proposed Findings

of Fact and Conclusions of Law and

DATE NR.

9-23-76

10-7-76

10-18-76

10-15-76

10-14-76

10-26-76

275

315

321

323

PROCEEDINGS

Pitf given to 10-29-76 to file objec-

tions to such proposed Findings of

Fact and Conclusions of Law.

Plaintiffs’ Supplemental Memorandum

of Law in Opposition to Defendants’

Motion to Dismiss the Amended Com-

plaint.

Plaintiffs’ Motion for an Order Permit-

ting the Appearance of Additional

Counsel, Patrick O. Patterson, Esq.

LETTER BRIEF with regards to De-

fendants’ Motion to Dismiss the

Amended Complaint, by Plaintiffs.

(Apparently, Original copy was mail-

ed to Judge Fisher).

Supplemental Memorandum in Support

of Defendants’ Motion to Dismiss.

Affidavit of C. B. Draper.

ORDER entered by Judge Fisher grant-

ing motion for Patrick O. Patterson,

10 Columbus Circle, Suite 2030, New

York, New York 10019 leave to ap-

pear as additional counsel for Plain-

tiff. Certified copy to all counsel of

record. V.76,P.274

Plaintiffs’ SECOND SUPPLEMENTAL

MEMORANDUM OF LAW IN OP-

POSITION TO DEFENDANTS’ MO-

TION TO DISMISS THE AMEND-

ED COMPLAINT with proposed

FINDINGS OF FACT AND CON-

CLUSIONS OF LAW.

DATE NR.

10-29-76

11-24-76

11-29-76

‘2-17-76

1-3-77

337

343

344

355

361

367

368

381

PROCEEDINGS

Defendants’ SECOND SUPPLEMENT-

AL MEMORANDUM OF LAW in

Support of its Motion to Dismiss the

Amended Complaint.

NOTICE of Motion, by Plaintiffs.

MOTION to Join Additional Defend-

ants and for Leave to Amend Com-

plaint filed by Plaintiffs.

JJF 11-30-76.

MEMORANDUM OF LAW in Support

of Plaintiffs’ Motion to Join Addition-

al Defendants and to Amend Com-

plaint.

AFFIDAVIT of Wesley P. Bernard.

ORDER that Motion to Dismiss be

treated as motion for summary judg-

ment under Rule 56, F.R.Civ. P. and

that the parties submit all pertinent

materials to said motion by 1-3-77,

JJF Attorneys notified. V.77,P.

MEMORANDUM in Support of Gulf’s

Limited Opposition to Plaintiffs’ Mo-

tion to Join Additional Defendants

and for Leave to Amend Complaint.

JJF 12-17-76.

Plaintiffs’ MEMORANDUM in Re-

sponse to Order Treating Defend-

ants’ Motion to Dismiss as a Motion

for Summary Judgment. JJF 1-3-77.

DATE NR.

1-11-77 387

2-9-77 392

2-9-77 393

2-18-77 395

PROCEEDINGS

ORDER that summary judgment be

granted for the defendants as to both

the class action and any individual

claims of discrimination by the plain-

tiffs. JJF s/1l-11-77. Attorneys noti-

fied. V.78,P.

NOTICE OF APPEAL to U. S. Court

of Appeals, Fifth Circuit, by Plaintiffs

from Order of Dismissal entered on

January 11, 1977. Certified copy of

Notice of Appeal mailed to Fifth

Circuit Court of Appeals, New Or-

leans, LA, Jerry Bloxom, U. S. Court

Reporter, Beaumont, Texas, Judge

Fisher, and all attorneys of record.

AFFIDAVIT of Cecil L. Cain, with

Calcasieu Insurance Agency, Inc. of

Lake Charles, LA, who has applied

for a surety bond with the WEST-

ERN SURETY COMPANY.

BOND for Costs through Western Sure-

ty Company of Sioux Falls, SD for

$250.00.

in The

UNITED STATES DISTRICT COURT

For The Eastern District Of Texas

Beaumont Division

CIVIL ACTION NO. B-76-183-CA

WESLEY P. BERNARD, ELTON HAYES, SR.,

RODNEY TIZENO, HENCE BROWN, JR..,

WILLIE WHITLEY, WILLIE JOHNSON,

individually and on behalf of all others

similarly situated,

Plaintiffs,

GULF OIL COMPANY and OIL, CHEMICAL

and ATOMIC WORKERS INTERNATIONAL

UNION, LOCAL UNION NO. 4-23,

Defendants.

COMPLAINT

NATURE OF CLAIM

1. This is a proceeding for declaratory and prelimin-

ary injunctive relief and for damages to redress the de-

privation of rights secured to plaintiffs and members of

the class they represent by 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.

Ii.

JURISDICTION

2. Jurisdiction of this Court is invoked pursuant to 28

U.S.C. $$ 1334(4), 42 U.S.C. § 2000e-5(f), 2201 and

2202, this being a su.: in equity authorized and instituted

pursuant to the Civil Rights Acts of 1866, 42 U.S.C.

§ 1981, and 1964, 42 U.S.C. $§ 2000e et seg. The juris-

diction of this Court is invoked to secure the protection

of and to redress deprivation of rights secured by (a) 42

U.S.C. $$ 2000e et seg., providing for injunctive and

other relief against discrimination in employment on the

basis of race and (b) 42 U.S.C. § 1981 providing for the

equal rights of all persons in every state and territory

within the jurisdiction of the United States.

Il.

CLASS ACTION

3. Plaintiffs bring this action on their own behalf, and

pursuant to Rule 23(b)(2) of the Federal Rules of Civil

Procedure as a class action on behalf of those similarly

situated. The members of the class and/or subclasses

represented by plaintiffs are: (a) all black employees

employed by defendant Gulf Oil Company in Port Ar-

thur, Texas; (b) all black employees formerly employed

by Gulf Oil Company in Port Arthur, Texas; and (c) all

black applicants for employment at Gulf Oil Company

who have been rejected for employment at said company.

The requirements of the Federal Rules are met in that:

a. The members of the class are so numerous that

joinder of all members would be impracticable.

There are, for example, more than 300 blacks em-

ployed by Gulf Oi! Company in Port Arthur, Texas;

b. There are questions of law and fact common to

the class. It is alleged herein that defendants have

discriminated against virtually every black employed

by Gulf Oil Company in respect to the terms and

conditions of their employment;

c. The claims of the plaintiffs are typical of the

claims of the class and/or subclasses;

d. The plaintiffs will fairly and adequately protect

the interests of the classes and subclasses. The in-

terests of the plaintiffs are identical or similar to

those of the class members;

e. The defendants have acted and refused to act on

grounds generally applicable to the class and sub-

classes, thereby making appropriate final injunctive

and declaratory relief with respect to all members of

the classes;

f. The questions of law and fact common to the

members of the class and subclasses predominate

over questions affecting only individual members; a

class action is superior to other available methods

for the fair and efficient adjudication of the con-

troversy.

IV.

PLAINTIFFS

4. Plaintiff Wesley P. Bernard is a black citizen of

the United States and Port Arthur, Texas. Plaintiff Ber-

nard has been employed by Gulf Oil Company since

June 16, 1954. He was hired as a laborer and is presently

a truck driver.

5. Plaintiff Elton Hayes, Sr., is a black citizen of the

United States and Port Arthur, Texas. Plaintiff Hayes

has been employed at Gulf Oil Company since October

2, 1946. He was hired as a laborer and is presently a

boilermaker, having worked at various “helper” positions

during his employment at Gulf Oil Company.

6. Plaintiff Hence Brown, Jr., is a black citizen of the

United States and Port Arthur, Texas. Plaintiff Brown

was hired as a laborer in 1954 and presently works as

a truck driver.

7. Plaintiff Willie Whitley is a black citizen of the

United States and Port Arthur, Texas. He was hired in

1946 as a laborer and retired in October, 1975, as a

utility man, a classification slightly above a _ laborer

classification.

8. Plaintiff Rodney Tizeno is a black citizen of the

United States and Port Arthur, Texas. Plaintiff Tizeno

was hired originally as a laborer and is presently a crafts-

man at Gulf Oil Company.

9. Plaintiff Willie Johnson is a black citizen of the

United States and Port Arthur, Texas. Plaintiff Johnson

was hired as a laborer at Gulf Oil Company.

DEFENDANTS

10. Defendant Gulf Oil Company in Port Arthur,

Texas (hereinafter simply Gulf Oil) is a corporation

incorporated and/or doing business in the State of Texas.

It operates and maintains a manufacturing plant in Port

Arthur, Texas which produces a variety of oil and petro-

leum products and by-products. Gulf Oil is a corporation

—_

engaged in interstate commerce, employing more than

fifteen persons, and is an employer within the meaning

of 42 U.S.C. §$§ 2000e-(b).

11. Defendant Oil, Chemical and Atomic Workers

International Union, Local Union No. 4-23 is recognized

as the exclusive bargaining representative of operating

and maintenance employees for the purpose of collective

bargaining with respect to rates of pay, wages, hours of

employment, and other conditions and terms of employ-

ment. Local Union No. 4-23 is a labor organization

within the meaning of 42 U.S.C. § 2000e-(d),(e).

VI.

STATEMENT OF FACTS

12. Black employees of Gulf Oil are, and have in the

past, been victims of systematic racial discrimination by

defendants Gulf Oil and Oil, Chemical and Atomic

Workers International Union, Local Union No. 4-23.

Prior and subsequent to July 2, 1965, Gulf Oil engaged

in policies, practices, customs and usages made unlawful

by Title VII of the Civil Rights Act of 1964 (42 U.S.C.

§§ 2000e et seq.) and 42 U.S.C. § 1981 which discrimin-

ate or have the effect of discriminating against plaintiffs

and the classes they represent because of their race and

color.

13. The methods of discrimination include, but are not

limited to, intentionally engaging in the following prac-

tices:

a. Hiring and Assignment: Gulf Oil unlawfully has

assigned and continues to assign a disproportionately

large number of black employees to the Company’s

lowest paying, least preferred, and more physically

demanding jobs;

b. White employees are given preference in initial

employment and job assignments by Gulf Oil. The

company utilizes a battery of tests which discrimin-

ates or has the effect of discriminating against blacks

in initial employment with the Company. In addition,

Gulf Oil maintains a high school diploma require-

ment and, on information and belief, other pre-em-

ployment criteria which discriminate or have the

effect of discriminating against black applicants.

Because of discrimination in hiring and job assign-

ment, a disproportionately large number of whites

have been preferentially hired by Gulf Oil for higher

paying jobs than blacks with substantially the same

or better qualifications. Black employees are now,

and have in the past, been paid less money for harder

work under less desirable working conditions than

their white counterparts;

c. The use of a pre-employment test battery is legally

deficient in one or more of the following ways: (1)

it is not professionally developed; (2) it has little or

no relationship to successful job performance; (3)

it has little or no relationship to the job sought or

applied for, (4) it exhibits a racial and cultural bias

against blacks;

d. Defendant company employs a disproportionately

small number of blacks in permanent craft positions.

Blacks have been historically excluded from higher

paying craft positions by Gulf Oil;

e. Gulf Oil has failed and/or refused to promote

black employees and “helpers” to journeymen posi-

tions, irrespective of their ability to perform the job

or position sought;

f. As a result of the Company’s racial promotion

and upgrading practices, “black” lines of progression,

job classifications and departments have been arti-

ficially established and developed with the result that

blacks have been and are now confined to the lower-

paying and less-preferred jobs than are their white

counterparts;

g. Black employees have been denied training, access

and exposure to craft positions and other instructions

which are necessary to an upgrade or promotion.

Blacks who perform the same or comparable work

as whites are given unequal pay and compensation;

h. On information and belief, Gulf Oil also dis-

. criminatorily denies blacks their full employment

rights in that it denied blacks who work in largely

minority occupied jobs or departments, seniority

rights, opportunities, and privileges. Generally, Gulf

Oil has refused and/or failed to recognize the full

seniority rights of its black employees, adversely

affecting their discharges, training, upgrade, transfer,

and promotion rights.

g. On information and belief, Gulf Oil has dis-

criminatorily excluded blacks and has refused and/or

failed to recruit and train blacks for supervisory,

technical, professional, and clerical positions;

h. Gulf Oil discriminatorily assesses discipline and

discharge against black employees for reasons which

would not be grounds for discipline or discharge of

whites in similar positions;

14. Defendant Oil, Chemical and Atomic Workers In-

ternational Union, Local Union No. 4-23 has agreed to,

acquiesced in or otherwise condoned the unlawful em-

ployment practices referred to in paragraph VI(13)

(a-h), supra.

VII.

EXHAUSTION OF REMEDIES

15. Neither the State of Texas nor the City of Port

Arthur has a law prohibiting the unlawful practices herein

alleged.

16. All jurisdictional prerequisites to this action have

been satisfied. This action is timely commenced under

both 42 U.S.C. §§ 2000e et seg., and 42 U.S.C. § 1981.

VII.

PRAYER FOR RELIEF

THEREFORE, plaintiffs and the classes represented

pray as follows:

A. That this Court formally determine, pursuant to

Rule 23(c) of the Federal Rules of Civil Procedure, that

this action is maintainable on behalf of the class and/or

subclasses described in paragraph III(3), supra.

B. That this Court issue affirmative relief as follows:

a. that Gulf Oil be required to institute an active

recruitment policy;

1. That Gulf Oil be required to canvass the qualifica-

tions of all its black employees with the goal to pro-

mote all such qualified employees and to eliminate

all present effects of past racial discrimination with

the following provisions:

a. that plaintiffs and the classes be afforded full util-

ization of company seniority in bidding for or

seeking better paying and more desirable jobs;

b. restructuring lines of progression, revision of ap-

plicable residency requirements, advanced level

entry, and job skipping at Gulf Oil Company;

c. training and other assistance as necessary to en-

able the plaintiffs and the class to overcome the

effects of past discrimination;

d. an award of back pay to each plaintiff and class

member for any financial losses suffered by plain-

tiffs and the classes and which are attributable to

acts of racial discrimination complained of herein;

e. rate protection sufficient to assure that black em-

ployees will not be economically discouraged, pre-

vented or penalized in their efforts to attain their

rightful place in Gulf Oil’s employment structure;

f. prospective red circling to alleviate the residual

effects of any racial discrimination not corrected

or completely removed by this action;

g. Gulf Oil be required to suspend the use of any and

all tests or other criteria for promotion or for

initial employment until said tests or criteria are

validated in accordance with the Equal Employ-

ment Opportunity Commission Guidelines on

Testing;

. that the defendant Union, Local 4-23, be required

to file all grievances of its black members of

Gulf Oil;

. enter a declaratory judgment that the acts and

practices complained of are in violation of the

laws of the United States;

j. that plaintiffs and the classes they represent be

awarded their complete costs of this action, in-

cluding a reasonable attorneys’ fees’ pursuant to

42 U.S.C. § 2000e-5(k).

.Grant Plaintiffs and the classes they represent

such other and further relief as may be necessary

and proper.

Respectfully submitted,

STELLA M. MORRISON

Stella M. Morrison

World Trade Building - Suite 516

440 Austin Avenue

Port Arthur, Texas 77640

CHARLES E. COTTON

348 Baronne Street - Suite 500

New Orleans, Louisiana 70112

JACK GREENBERG

BARRY L. GOLDSTEIN

ULYSSES GENE THIBODEAUX

10 Columbus Circle - Suite 2030

New York, New York 10019

Attorneys for Plaintiffs

MOTION BY GULF TO LIMIT

COMMUNICATIONS WITH ANY

POTENTIAL OR ACTUAL CLASS MEMBER

[Caption Omitted in Printing]

Filed May 27, 1976

Comes now Gulf Oil Corporation (Gulf), a Defendant

in the above-captioned suit, and moves this Court for

an order limiting communications by parties to this suit

and their counsel with any actual or potential class

members.

In support of this Motion, Gulf has attached a memo-

randum brief.

JOSEPH H. SPERRY

WM. G. DUCK

P. O. Box 3725

Houston, Texas 77001

Telephone: (713) 226-1617

By J. H. SPERRY

Attorneys for Defendant

GULF OIL CORPORATION

[Certificate of Service Omitted in Printing]

MEMORANDUM IN SUPPORT OF GULF’S

MOTION TO LIMIT COMMUNICATIONS

WITH ANY POTENTIAL OR ACTUAL

CLASS MEMBER

{Caption Omitted in Printing]

Filed May 28, 1976

This is a class action suit brought by six individual

employees of Gulf’s Port Arthur Refinery alleging they

have been victims of discrimination in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,

et seq., and of the Civil Rights Act of 1866, 42 U.S.C.

§ 1981. The suit was filed on May 18, 1976, and Gulf

was served with a summons on May 24, 1976.

The issues which have been raised in this lawsuit have

been the subject of settlement negotiations between Gulf,

the U.S. Equal Employment Opportunity Commission

and the Office for Equal Opportunity, U.S. Department

of the Interior. The negotiations between Gulf and these

federal agencies to conciliate the issues which now have

been raised in this action have taken place over a period

of several years and have resulted in the signing by Gulf

of a Conciliation Agreement. This agreement, which was

entered into by Gulf and the Federal Agencies on April

14, 1976, provided for an award of over $900,000 to 614

present and former black employees and 29 female em-

ployees at Gulf’s Port Arthur Refinery. A copy of this

Conciliation Agreement is attached hereto as Exhibit A.

As soon as the Conciliation Agreement was finalized,

Gulf pursuant to the terms of the Conciliation Agree-

ment mailed a letter and release, the form of which was

approved by the Federal Agencies, notifying all employees

covered by the Conciliation Agreement that they were

entitled to an award of back pay and that upon execution

of the receipt and general release the employees would

receive the back pay award. Between the time the Con-

ciliation Agreement was executed by Gulf, and the date

the summons was served upon Gulf in this action, ap-

proximately 452 employees out of a total of 643 em-

ployees entitled to a back pay award had executed the

receipt and general release and had received their back

pay checks.

So as to comply with the letter and spirit of Rule 23

(e), F.R.C.P. and the Canons of Ethics of the Bar Asso-

ciation, Gulf immediately upon service of the summons

suspended all further mailings to actual or potential class

members and informed all actual or potential class mem-

bers who called Gulf that no further communications

concerning the Conciliation Agreement or the issues

raised in the lawsuit could be discussed with them until

the Court so orders. Attached hereto as Exhibit B is a

copy of the statement which was read to all potential and

actual class members who called Gulf inquiring about

these matters.

However, on Saturday, May 22, 1976, four days after

the Complaint was filed in this action, an attorney for

the Plaintiffs, Mr. Ulysses Gene Thibodeaux, appeared

before approximately 75 actual or potential class members

at a meeting in Port Arthur and discussed with them the

issues involved in the case and recommended to those

employees that they do not sign the receipt and general

release which had been mailed to them pursuant to the

Conciliation Agreement. In fact, it is reported to Gulf

that Mr. Thibodeaux advised this group that they should

mail back to Gulf the checks they had received since he

could recover at least double the amount which was paid

to them under the Conciliation Agreement by prosecuting

the present lawsuit.

Gulf believes that this action by the Plaintiffs’ attorney

is indeed a serious breach of the ethical and legal stand-

ards which are imposed upon attorneys under the Canons

of Ethics and the law. In order to prevent further com-

munications of this type by all parties and their counsel

to this suit, Gulf has moved the Court for an order to

limit communications with any potential or actual class

member to this lawsuit. The order which Gulf proposes

be entered pursuant to its Motion is copies verbatim from

“Sample Pretrial Order No. 15—Prevention of Potential

Abuse of Class Actions” contained in the Manual for

Complex and Multidistrict Litigation, p. 197. This order

is also identical to many local rules of the United States

District Courts which have adopted “Suggested Local

Rule No. 7—Prevention of Potential Abuse of Class Ac-

tions” contained in the Manual for Complex and Multi-

district Litigation on p. 196.’ It should be noted that the

Manual for Complex and Multidistrict Litigation suggests

that such an order be promptly entered in actual and

potential class action cases unless there is a parallel local

rule.

1. See Local Rules of the U.S. District Court for the Southern

District of Texas, Rule 6; and the General Rules of the U.S. District

Court for the Eastern District of Louisiana, Rule 2.12e.

By entering the suggested order, this Court will pre-

serve the status quo of the case until Judge Fisher returns

and can assume control and administration of the case.

In the absence of such an order, Gulf feels that the

unusual circumstances involved in this case, combined

with the statements which Plaintiffs’ counsel has already

made to actual and potential class members, could seri-

ously prejudice Gulf in its defense of this case and the

conciliation efforts which have been conducted by the

Equal Employment Opportunity Commission and the

Office for Equal Opportunity, U.S. Department of the

Interior.

CONCLUSION

In accordance with the above stated authorities, Gulf

urges the Court to grant its Motion to Limit Communica-

tions with any Potential or Actual Class Member.

[Signatures Omitted in Printing]

Exhibit A

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Houston District Office

2320 La Branch, Room 1101

HOUSTON, TEXAS 77004

AREA CODE 713

226-5611

CONCILIATION AGREEMENT

In the Matter of:

U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

and

Gulf Oil Company—U.S. Charge No. AU68-9-154E

Port Arthur, Texas

Respondent

and

Office for Equal Opportunity

U.S. Department of the Interior

Compliance Agency

* * *

A charge having been filed under Title VII of the Civil

Rights Act of 1964, as amended, by a Commissioner of

the U. S. Equal Employment Opportunity Commission

against the Respondent, the charge having been investi-

gated and reasonable cause having been found, the parties

do resolve and conciliate this matter as follows:

{Table of Contents Omitted in Printing]

A. GENERAL PROVISIONS

It is understood that this Agreement does not con-

stitute an admission by the Respondent of any

violation of Title VII of the Civil Rights Act of

1964, as amended.

The U.S. Equal Employment Opportunity Com-

mission hereby waives and releases its cause of

action against the Respondent under the instant

charge and covenants not to sue the Respondent

independently or on behalf of any individual includ-

ing, but not necessarily limited to, persons listed

on Attachments “A” and “B” hereto with respect

to any matter alleged thereunder, subject to per-

formance by the Respondent of the promises and

representations contained herein.

The Respondent understands that the Commission,

on its Own motion, may review compliance with

this Agreement. As a part of such review, the Com-

mission may require written reports concerning

compliance, may inspect the premises, examine wit-

nesses, and examine and copy documents pertinent

to such review. The Commission agrees that the

Respondent reserves all rights and protection af-

forded by the Freedom of Information Act, as

amended.

The Respondent reaffirms that all of its hiring, pro-

motion practices, classification, assignments, layoffs

and all other terms and conditions of employment

shall be maintained and conducted in a manner

which does not discriminate on the basis of race,

color, religion, sex or national origin in violation

of Title VII of the Civil Rights Act of 1964, as

amended.

The Respondent agrees that it will not knowingly

practice nor permit its supervisory or other per-

sonnel to practice discrimination or retaliation of

any kind against any person because of his or her

opposition to any practice declared unlawful under

Title VII of the Civil Rights Act of 1964, as

amended, or because of the filing of a charge, or

giving of testimony or assistance, or participation in

any manner in any investigation, proceeding, or

hearing under Title VII of the Civil Rights Act of

1964, as amended.

Recognizing the exception with respect to sex or

regards toilets, showers and the like, the Respond-

ent reaffirms that all facilities on the premises or

furnished its employees, including recreational op-

portunities and all other conveniences and services,

are available for the use and enjoyment of any em-

ployee without regard to race, color, religion, sex

or national origin; that there is no discrimination

against any employee on said grounds with respect

to the use of facilities; and that the notices required

to be posted by Title VII of the Civil Rights Act of

1964, as amended, are posted.

B. SETTLEMENT AGREEMENT—BACK PAY

Appertaining to back pay, the Affected Class is

hereby defined as all Negroes employed by the Re-

spondent on July 2, 1965, whose seniority date an-

tecedes January 1, 1957, and all hourly rated

females employed by the Respondent in its Package

and Grease Department on July 2, 1965.

2. The Commission agrees that a thorough search has

been made to identify all individuals potentially

entitled to backpay under this Agreement, that the

Respondent’s personnel records since the effective

date of Title VII of the Civil Rights Act of 1964

have been exhaustively analyzed and that, through

examination of documents submitted by the Re-

spondent, no persons potentially entitled other than

those listed on Attachments “A” and “B” hereto

could be found.

For the sake of convenience, the Affected Classes,

as shown on Attachments “A” and “B”, shall be

designated and hereinafter referred to as Group

“A” and Group “B” respectively.

The Respondent agrees that all individuals identi-

fied as belonging to Group “A” or Group “B” shall

immediately be awarded upon notification of ac-

ceptance as described below, such back pay as is

hereinafter provided:

a. The Respondent represents that it hes set aside

a sum for purposes of fulfilling all back pay obli-

gations which are or might have been incurred

as a result of employment practices complained

of in the instant charge or which were treated

in the Commission’s Letters of Determination or

Reconsideration of Determination thereon, in-

cluding matters found by the Commission to be

like and related.

b. The United States Equal Employment Oppor-

tunity Commission concurs that the sum set aside

is sufficient to meet the purposes of providing

equitable relief to designated members of Group

“A” or Group “B” and stipulates that $35,000.00

of said amount may be reserved and held in a

special account by the Respondent for a period

of five years. The Commission agrees that, inso-

far as matters encompassed by this Agreement

are raised to issue in the future, the Respondent

shall utilize its special account to dispose of con-

tingent liabilities, and that any undispensed

funds remaining, after passage of the account's

established five year life, shall be returned to the

Respondent’s general control for unrestricted use.

c. In formulating the specific relief due each indi-

vidual hereunder credits will be awarded as

follows:

(1) To members of Group “A”, $5.62 for each

month of continuous service with the Re-

spondent prior to January 1, 1957, and

$2.81 for each month of continuous service

thereafter until date of termination or until

January 1, 1971, whichever occurs earlier.

(2) To members of Group “B”, $5.62 for each

month of continuous service with the Re-

spondent until date of termination or until

January 1, 1975, whichever occurs eaglier.

d. Back pay awards previously tendered to members

of Group “A” under the Respondent’s Agreement

dated May 7, 1971, with the Office for Equal Op-

portunity, United States Department of the Interior

shall be deducted from amounts hereunder due

those same individuals.

e. Back pay awards will be subject to standard

deductions for F.I.C.A. and Federal Income Tax

Withholding.

f. Upon accepting a back pay award, each Group

“A” or Group “B” member will be required to

execute a general release to the Respondent for

any and all claims against the Respondent as a

result of events arising from its employment

practices occurring on or before the date of re-

lease, or which might arise as the result of the

future effects of past or present employment

practices.

g. Prior to tendering back pay awards, the Respond-

ent agrees to notify in writing each member be-

longing to Group “A” or Group “B” that he or

she has been so identified, and of the general

formula used to calculate awards and of the con-

ditions of waiver or release required in accepting

back pay. Each member shall be furnished a

form on which to notify the Respondent, within

thirty days, whether such member desires to ac-

cept or decline back pay consideration. A failure

on the part of any member to respond within

thirty days shall be interpreted as acceptance of

back pay. It is agreed that the form of notifiva-

tion to be utilized shall be reviewed and signed

by a Commission representative prior to being

implemented or disseminated.

h. In the event that a member of Group “A” or

Group “B” is deceased, notice shall be given and

payment made to his or her estate. Upon accept-

ing a back pay award, the deceased member's

heir or heirs shall be required to execute a gen-

eral release as is provided in subsection (f)

hereinabove.

i. In the event that a member of Group “A” or

Group “B” refuses his or her award, or cannot

be located or, if deceased, his heir or heirs can-

not be located through the exercise of reasonable

effort, his or her back pay award shall be

placed in the Respondent’s special account as

provided in subsection (b) above, to be returned

to the Respendent’s general control, if unclaimed

upon expiration of the account's life.

C. SETTLEMENT AGREEMENT—GOALS AND

TIMETABLES

a. For Affirmative Action purposes, the Affected

Class is hereby defined as all hourly rated fe-

males presently employed in the Respondent’s

Package and Grease Department whose seniority

date antecedes April 5, 1974 and all members of

back pay Group “A” who are presently employed

in the classification of Operator Helper No. 1,

Boiler Washer “X”, Brander “X”, Operator

Helper No. 2, Utility Helper or Laborer.

b. For the sake of convenience, the Affected Class

for Affirmative Action purposes shall be desig-

nated and hereinafter referred to as Group “C”.

The Respondent, firm in its commitment to act in

good faith and compliance with Title VII of the

Civil Rights Act of 1964, as amended, has con-

ducted a thorough analysis of its work force and has,

as of January 1, 1976, identified those classifica-

tions wherein Negroes, Spanish Surnamed Ameri-

cans and/or females are statistically underrepre-

sented. Said classifications, designated and herein-

after referred to as “Target Classifications,” are as

follows:

Analytical Tester

Area Storehouseman

Boiler Fireman

Boilermaker

Bricklayer

Carpenter

Clerical

Compounder No. 1

Craft Apprentice and Trainee

Dockman

Electrician

Garage Mechanic

Gas Dispatcher

Greasemaker No. 1

Greasemaker No. 2

Instrument Man

Insulator

Lineman

Machinist

Operator No. 1

Operator No. 2

Assistant Operator

Painter

Pipefitter

Power Plant Engineer No. 1

Power Plant Engineer No. 2

Nxmxe Ecc nvr oepospBoirwo.. ee, 2 Aaogp

—

oo.

Pp.

qq:

IT.

Power Plant Operator

Pumper No. 1

Pumper No. 2

Railroad Craft Group

Receiving Room Man

Treater No. 1

Treater No. 2

Tinner

Treater Helper No. 1

Troubleman

Water Pumper No. 2

Water Tender

Water Treater No. 1

Water Treating Plant Operator

Welder

EEO-1 Technician Category

EEO-1 Professional Category

EEO-1 Official and Manager Category

3. With respect to the Respondent implementing its

Affirmative Action Program as provided herein, the

Commission stipulates that:

a. Ratios shall not be fixed but shall serve solely as

general measures of the Respondent’s satisfactory

progress hereunder.

b. Although it is assumed and expected that minority

and female placement within the above listed

“Target Classifications” will be evenly distrib-

uted, the Respondent will not be faulted if it fails

to meet its goals and timetables in one or more

classifications as long as its overall progress is

satisfactory.

c. The Respondent shall not be restricted to selection

of Group “C” Affected Class members in meet-

ing its goals and timetables, but may, at.its dis-

cretion, select other qualified Negro, Spanish Sur-

named American or female employees, or recruit

from outside its workforce, thereby equally satis-

fying Affirmative Action commitments.

d. Failure by the Respondent to meet its goals and

timetables hereunder shall not serve as justifica-

tion to increase or renegotiate backpay as pro-

vided in Section B.

4. Considering the above, the Respondent agrees to

establish a goal to fill one of every five vacancies in

“Target Classifications” other than its EEO-1 Offi-

cial and Manager Category, wherein the ratio shall

be one of every seven, with a Negro, a Spanish Sur-

named American or a female until such time as

their respective representation jointly within said

classifications equals or exceeds their joint repre-

sentation throughout the Respondent’s workforce.

5. On occasions when a vacancy is to be filled with a

Group “C” member, the Respondent will fill it by

selecting the bidder having greatest seniority, sub-

ject to relative skills, abilities, and qualifications,

and provided that the Respondent’s initial entry

requirements are met.

6. Group “C” members upgrading hereunder shall be

classified as provisional and shall be on trial for a

period not to exceed 120 days. They will receive

the same training and orientation given other em-

ployees, and, if qualifying according to normal

company competency standards, the provisional

title shall be dropped. The Respondent may make

its determination prior to expiration of the full 120

day period. An employee determined by the Re-

spondent not to be qualified for the job for which

he or she has been on trial shall be returned to his

or her former classification without loss of seniority.

Determination that any employee has qualified here-

under shall not bind the Respondent to accept the

employee for any other classification, but such em-

ployee shall be judged at each level in the same

manner as other employees. An upgraded Group

“C” member may disqualify himself or herself dur-

ing the 120 day trial period and, in that event, shall

be returned to his or her former classification with

uninterrupted seniority.

Each upgraded Group “C” member shall have his

or her seniority date determined by applicable col-

lective bargaining agreement provisions, with the

exception that in the event of a reduction in force

or layoff, any Group “C” member who has up-

graded to a Clerical classification or to a Classifi-

cation represented by the United Transportation

Union; the Bricklayers, Masons and Plasters Inter-

national Union Local No. 13; the International

Association of Machinists and Aerospace Workers,

Port Arthur Lodge No. 823; or the International

Brother of Electrical Workers, AFL-CIO, Local

Union No. 390 shall have bumpback rights into the

Operator Helper No. 2 pool or into the classifica-

tion of Utility Helper or Laborer, according to his

or her former seniority at the time upgraded. The

10.

Respondent shall retain the right to select into

which of the above three classifications the affected

Group “C” member shall be placed. Each Group

“C” member so displaced shall continue to hold

rights to recall into his or her craft position from

which displaced, as though he or she had not

bumped back.

The Respondent agrees that the rate of pay for each

upgraded Group “C” member shall be the higher

of his or her permanent rate at the time upgraded

or the appropriate new rate. This provision shall

not apply in the event that a Group “C” member

bids into a classification in which the top rate for

the new line of progression is less than his or her

former rate.

Each member of Group “C” who participates in this

special program shall receive one bona fide oppor-

tunity to upgrade. Such opportunity shall be satis-

fied, and the employee’s rights hereunder shall ter-

minate, when the employee either (a) takes a job

and qualifies therefor, (b) takes a job and fails to

qualify or requests to return to his or her former

job classification or (c) declines an offer to up-

grade. Group “C” members who resign from em-

ployment with the Respondent shall have no further

rights hereunder.

An upgraded employee’s failure to qualify during

the established trial period, or a declination of a

job offer made to an employee by the Respondent,

shall not satisfy that particular exercise of the Re-

spondent’s obligation under established ratios to-

ward goals and timetables, and such opportunity

shall be extended to another individual.

11. Notwithstanding any of the foregoing, the Respond-

ent shall not be required to place or retain any

person in a job who does not have the skill, ability

and qualifications to perform said job.

12. The United States Equal Employment Opportunity

Commission and the Respondent remain in dis-

agreement as to the Respondent’s continued use of

test battery results for employment and promotion

purposes. However, in order to provide a means

to resolve those matters held in dispute, the Com-

mission agrees that the Respondent reserves the

right to utilize test scores along with other job

related criteria in assessing individual qualifications.

In consideration therefore, the Respondent repre-

sents that it shall not rely upon test scores as

justification for its failure to meet goals and time-

tables in any job classification.

D. AFFIRMATIVE ACTION

The Respondent agrees to refine and strengthen on a

continuing basis positive and objective nondiscriminatory

employment standards, procedures and practices and re-

presents that in its business operations it exerts continuing

effort to uniformly apply such standards, practices, and

procedures in a manner which will assure equal employ-

ment opportunities in all aspects of its total work force

and operations without regard to race, color, religion, sex

or national origin.

FE. COMMISSION ASSERTION AND REPORTING

REQUIREMENTS

1. The Equal Employment Opportunity Commission

agrees that upon fulfillment of its obligations here-

under the Respondent will be in full compliance

with all provisions of Title VII of the Civil Rights

Act of 1964, as amended, at its Port Arthur, Texas

Refinery.

2. Six months after the date of approval of this Agree-

ment and every six months thereafter for its estab-

lished life of five years, the Respondent shall send

to the Commission a written report concerning all

actions encompassed by the provisions hereinabove

set forth, Such reports shall accurately, fully and

clearly describe the nature of the remedial and affir-

mative action undertaken and shall be submitted to

the District Director, Equal Employment Oppor-

tunity Commission, 2320 LaBranch, Room 1101,

Houston, Texas 77004 with a copy submitted to the

Regional Manager, Office for Equal Opportunity,

Department of the Interior, Denver Federal Center,

Building 67, Room 880, Denver, Colorado 80225.

F. SIGNATURES

I have read the foregoing Conciliation Agreement and

I accept and agree to the provisions contained herein:

4/14/76 MERLIN BREAUX

Gulf Oil Company—U:S.

Port Arthur, Texas

Respondent

I recommend approval of this Conciliation Agreement:

4/14/76 JAMES R. ANDERSON

James R. Anderson

Equal Opportunity Specialist (E)

I concur in the above recommendation for approval of

this Conciliation Agreement:

4/14/76 CARL D. HANLEY

Supervisory Equal Opportunity

Specialist (E)

Approved on behalf of the Commission:

4/14/76 HERBERT C. McCLEES

Herbert C. McClees

District Director

G. CERTIFICATE OF REVIEW AND APPROVAL

1. This is to certify on behalf of the Office of Equal

Opportunity, United States Department of the In-

terior, review and approval of the foregoing con-

ciliation agreement by and between the U. S. Equal

Employment Opportunity Commission and Gulf

Oil Company—U.S., Port Arthur, Texas.

2. It is agreed that the Respondent has complied with

all of the provisions of the letter agreement between

Edward E. Shelton, Director of Office for Equal

Opportunity, United States Department of the In-

terior and L. R. Johnston, Vice President, Em-

ployee Relations, Gulf Oil Company—U.S. dated

May 7, 1971 and all points have been resolved to

the complete satisfaction of the Office for Equal

Opportunity, United States Department of the In-

terior with the single exception of a portion of para-

graph 2e. “Free Bidding—Non-Related Jobs” in

said agreement.

With regard to such paragraph, vacancies in the

following jobs will be posted for bid to present em-

ployees in Group “B”:

Checker Wax Packaging House—

Pump House 78

(Lubricating)

Checker Drum Filling and Loading

(Package and Grease)

Fire Assistant Maintenance Division

Truck Driver Maintenance Division

Bathhouse Attendant Maintenance Division

Should a bidding employee in Group “B” be senior

to the employee who would receive the job through

normal promotional procedures, such employee

should be awarded the job. In addition, should her

present rate be greater than the posted job in ques-

tion, she should retain her present rate and also

should have the option of returning to her former

position within a thirty-day period. Other members

of the “affected class” shall not have such bidding

rights.

The Office for Equal Opportunity, Department of

the Interior agrees that upon fulfillment of its

obligations hereunder the Respondent will be in

full compliance with all provisions of Executive

Order 11246, as amended, at its Port Arthur, Texas

Refinery.

5. The Respondent recognizes that it has a continuing

obligation for Affirmative Action under Executive

Order 11246, as amended, and the implementing

regulations of the Department of Labor.

4/14/76 GERALD C. WILLIAMS

Gerald C. Williams

Western Regional Manager

Reviewed:

4/14/76 JAMES R. ANDERSON

James R. Anderson

Equal Opportunity Specialist (E)

Approved on behalf of the United States Equal Employ-

ment Opportunity Commission:

4/14/76 LORENZO D. COLE

Lorenzo D. Cole

Deputy Director

EXHIBIT A—List of Employees (Omitted)

EXHIBIT B—List of Employees (Omitted)

EXHIBIT B

May 25, 1976

I am required to make the following statement by

Gulf’s Law Department. Since 6 individuals have filed

a class action suit against Gulf Oil Corporation and the

Union alleging discrimination exists at this plant and since

you are a potential plaintiff in that suit, Gulf must sus-

pend—pending the court’s order—all further mailing of

checks and all further contacts with you concerning the

payment of money under the EEOC agreement. We re-

gret this situation deeply; but due to the suit, we cannot

proceed further until the court so orders.

Wm. G. DUCK

Wm. G. Duck

WGD/am

ORDER

[Caption Omitted in printing]

Filed May 28, 1976

Having considered the Motion by the Defendant, Gulf

Oil Corporation, to limit communications with any po-

tential or actual class member;

IT IS ORDERED that, in this action, all parties hereto

and their counsel are forbidden directly or indirectly,

orally or in writing, to communicate concerning such ac-

tion with any potential or actual class member not a

formal party to the action. The communications for-

bidden by this order include, but are not limited to, (a)

solicitation directly or indirectly of legal representation

of potential and actual class members who are not formal

parties to the class action; (b) solicitation of fees and

expenses and agreements to pay fees and expenses from

potential and actual class members who are not formal

parties tc the class action; (c) solicitation by formal

parties to the class action of requests by class members

to opt out in class actions under subparagraph (b) (3)

of Rule 23, F.R.Civ.P.; and (d) communications from

counsel or a party which may tend to misrepresent the

status, purposes and effects of the class action, and of any

impressions tending, without cause, to reflect adversely on

any party, any counsel, the Court, or any administration

of justice. The obligations and prohibitions of this order

are not exclusive. All other ethical, legal and equitable

obligations are unaffected by this order.

This order shall be effective until Judge Fisher returns

and can hear the matter upon formal motion.

Counsel for defendant, Gulf Oil Corporation, shall

present a motion on this matter to Judge Fisher as soon

as possible upon Judge Fisher’s return.

Date: May 28, 1976

/s/ WILLIAM M. STEGER

United States District Judge

MOTION TO MODIFY ORDER

[Caption Omitted in Printing]

Filed June 8, 1976

Comes now Gulf Oil Corporation (Gulf), a Defendant

in the above-styled case, and it moves this Court for an

order modifying Judge Steger’s Order dated May 28,

1976, and filed of record in this case on the same date,

to allow Gulf to comply with the terms of the Concilia-

tion Agreement dated April 14, 1976, and signed by Gulf,

the Equal Employment Opportunity Commission and the

Office for Equal Opportunity, U.S. Department of the

Interior, by resuming under the Court’s supervision the

payment of back pay awards to employees covered by the

Conciliation Agreement and obtaining from those em-

ployees receipis and releases all as provided for by the

terms of the Conciliation Agreement. In support of this

Motion, Gulf has attached a Memorandum of Points and

Authorities.

[Signatures Omitted in Printing]

[Certificate of Service Omitted]

MEMORANDUM IN SUPPORT OF GULF OIL

CORPORATION’S MOTION TO MODIFY ORDER

[Caption Omitted in Printing]

Filed June 8, 1976

This is a class action suit brought by six individual

employees of Gulf’s Port Arthur Refinery alleging that

they have been victims of discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e, et seq. and of the Civil Rights Act of 1866,

42 US.C. § 1981. The suit was filed on May 18, 1976,

and Gulf was served with a summons on May 24, 1976.

Four days after the suit was filed and prior to the time

Gulf was served with the summons in this case, attorneys

for the Plaintiffs appeared at a meeting of approximately

75 actual or potential class members in Port Arthur and

discussed with them the issues involved in the case and

recommended to those employees that they support the

present suit. In addition, it was reported to Gulf that

Mr. Ulysses Gene Thibodeaux, an attorney for the Plain-

tiffs, recommended to those employees that they do not

sign the receipt and release which had been mailed to

the employees as a result of a Conciliation Agreement

entered into by Gulf, the U.S. Equal Employment Op-

portunity Commission (EEOC) and the Office for Equal

Opportunity, U.S. Department of the Interior (OEO).

In fact, it is reported that Mr. Thibodeaux stated that even

if the employee had signed the receipt and release, he

should now return the check which had been mailed to

the employee by Gulf.

As a result of this activity by the Plaintiffs’ attorney,

Gulf on May 28, 1976, filed a Motion to Limit Com-

munications with any Potential or Actual Class Member

and brought the Motion on for hearing before The Hon-

orable William M. Steger. Judge Steger agreed to hear

the matter in the absence of The Honorable Joe J. Fisher

so that the status quo of the case could be preserved until

Judge Fisher returned. After hearing argument of counsel

for both the Plaintiffs and Defendant Gulf, Judge Steger

entered an order which was made applicable to all parties

and forbid all parties and their attorneys from communi-

cating with actual or potential class members who were

not formal parties to the action. In addition, Judge Steger

ordered that the Defendant Gulf present a motion on this

matter to Judge Fisher as soon as possible upon Judge

Fisher’s return. In order to comply with Judge Steger’s

order, Gulf has filed this Motion to Modify so that the

matter may be heard by Judge Fisher.

The purpose of the Motion to Modify is to allow Gulf,

the EEOC, and the OEO to proceed under the terms of

a Conciliation Agreement dated April 14, 1976 (attached

hereto as Exhibit A). The Conciliation Agreement which

has been negotiated between Gulf and the Federal agencies

over a period of eight years was an effort by Gulf to

settle the very issues which now have been raised in this

eleventh hour lawsuit. The Conciliation Agreement pro-

vided for an award of over $900,000 to 616 Negro em-

ployees and approximately 29 female employees at Gulf’s

Port Arthur Refinery.

As soon as the Conciliation Agreement was finalized,

Gulf pursuant to the terms of the Agreement mailed a

letter and release, the form of which was approved by

the Federal agencies, notifying all employees covered by

the Agreement that they were entitled to an award of

back pay and that upon execution of the receipt and

release the employees would receive the back pay award.

Between the time the Conciliation Agreement was exe-

cuted by Gulf and the date the summons was served upon

Gulf in this action, approximately 452 employees out of

a total of 643 employees entitled to a back pay award

under the Agreement had executed the receipt and re-

lease and had received their back pay checks.

So as to comply with the letter and spirit of Rule 23(a),

F.R.C.P. and the Canons of Ethics of the Bar Association,

Gulf immediately upon service of the summons suspended

all further mailings to actual or potential class members

and informed all actual or potential class members who

called Gulf that no further communications concerning

the Conciliation Agreement or the issues raised in the

lawsuit could be discussed with them until the Court

so orders. Attached hereto as Exhibit B is a copy of a

statement which was read to all potential and actual

class members who called Gulf inquiring about these

matters. In accordance with Judge Steger’s Order, Gulf

has continued to suspend the payment of back pay awards

and the acceptance of receipts and releases from em-

ployees who are actual or potential class members.

So that Gulf may fulfill the terms of the Conciliation

Agreement, it has moved this Court for an_order to

modify Judge Steger’s previous Order so tht it may

proceed to make the back pay awards pursuant to the

terms of the Conciliation Agreement. It is felt that the

rights of all parties will be fully protected if the Court

exercises its judicial control over the procedures whereby

potential or actual.class members not formal parties to

this suit are contacted with regard to the terms of the

Conciliation Agreement. In that regard, Gulf proposes

that the Court order that the Clerk mail a letter to all

employees of Gulf at its Port Arthur Refinery who are

covered by the Conciliation Agreement and who have not

signed receipts and releases for back awards informing

them that they have 45 days from the date of receipt of

the letter to accept the offer of settlement as contained

in the Conciliation Agreement and if such offer is not

accepted within that time period, the offer will expire

until further notice of the Court. Since the affected em-

ployees already have received notices informing them of

the terms of the Conciliation Agreement and enclosing

the receipt and release the Court’s order setting a time

limit for acceptance of the offer would now be appropriate.

During the 45 day time period in which the actual or

potential class members are deciding whether or not to

accept the offer under the Conciliation Agreement the

parties to this lawsuit and their counsel should be for-

bidden to contact those individuals so that they might

make their own independent decision concerning the

acceptance of the back pay award.

The two Federal agencies who have been involved with

this matter for over eight years and who have protected

the rights of the individual employees support Gulf’s

position that the terms of the Conciliation Agreement

should be carried out by allowing Gulf to proceed with

the payment of back pay awards. Mr. Herbert C. Mc-

Clees, who is the District Director of the EEOC in Hous-

ton and whose office was involved with the negotiation

of the Conciliation Agreement, states in his affidavit that

he believes the issues and relief sought by the Plaintiffs

in this case are almost identical to the issues which were

resolved under the terms of the Conciliation Agreement.

In addition, he states that he feels that the Conciliation

Agreement is a “fair, equitable, thorough and compre-

hensive solution to the charges that Gulf has discrimin-

ated at its Port Arthur Refinery in violation of Title VII

of the Civil Rights Act of 1964” (see page 4 of Affidavit

of Herbert C. McClees attached hereto as Exhibit C).

Mr. Gerald C. Williams, Western Regional Manager of

the OEO in Lakewood, Colorado, whose office was

responsible for negotiating the Conciliation Agreement

on behalf of the Department of the Interior, supports

Mr. McClees’ belief that Gulf should be allowed to con-

tinue to fulfill the terms of the Conciliation Agreement.

(Sce Affidavit of Mr. Williams attached hereto as Ex-

hibit D.)

Gulf’s request to modify Judge Steger’s Order to allow

the payment of back pay awards under the Conciliation

Agreement is consistent with the provisions of Rule 23(e)

which states: “A class action shall not be dismissed or

compromised without the approval of the Court, and notice

of the proposed dismissal or compromise shall be given

to all members of the class in such manner as the Court

directs.” The Courts have been consistent in their ruling

that a defendant in a class action suit may negotiate

settlements with potential or actual class members who

are not formal parties to the action. Weight Watchers of

Philadelphia, Inc. v. Weight Watchers International, Inc.,

455 F.2d 770 (2nd Cir. 1972). However, the courts

have been anxious to protect the rights of unsophisticated

potential class members by exercising judicial control

over the manner in which settlement proposals are com-

municated to those class members. In American Finance

System, Inc., v. Harlow, 65 F.R.D. 572 (D. Md. 1974)

the court did allow precertification communications be-

tween the named parties and the prospective class mem-

bers only within the strict limits delineated by a memor-

andum and order from the court. In that case, the court

allowed the defendants to send a notice of proposed set-

tlement to all potential class members and allowed the

potential class members 35 days from the date of receipt

of the order to accept or reject the proposed offer. How-

ever, all turther communications other than those per-

mitted by the notice between the named parties, their

representatives or counsel and the potential class members

were forbidden by the court. Harlow, supra. at 577. The

plaintiffs in the Harlow case stated that such a limitation

on communications was in violation of the First Amend-

ment to the United States Constitution and would violate

Rule 23(e) since a settlement by potential class members

would have the effect of destroying the numerosity re-

quirement under Rule 23(a). However, the court dis-

missed these arguments by saying:

“Counterbalancing these considerations is_ the

danger that the class action vehicle will be eviscer-

ated by violators of the civil rights acts who are

able to convince legally unsophisticated class mem-

bers that their claims are unlikely to succeed. Even

in Weight Watchers, a class not involving a civil

rights act, the lower court required that counsel for

each franchisee be present during the discussion and

that counsel for the class representative be given five

days notice of such negotiations, 55 F.R.D. 50

(1971). Given this judicial concern in the guidelines

of the Manual For Complex and Multidistrict Liti-

gation, the court will only permit AFS to send a

neutrally worded notice of settlement containing no

more than the terms of the proposed compromise,

the position of both parties and a copy of. this

memorandum and order. If the potential class mem-

ber affirmatively rejects the offer or fails to answer

within 30 days, the court will assume that he wishes

the action to proceed to judgment.” Harlow, supra.

at 576.

The instant case provides the maximum protection for

unsophisticated class members since the two Federal

agencies have been involved in detailed negotiations for

a period of eight years in their attempts to settle the

charges that Gulf has discriminated in violation of Title

VII at its Port Arthur Refinery. Since the potential class

members’ rights have been protected by the Federal

agencies, it is felt that the Court should allow Gulf to

proceed with the payment of back pay awards to the

potential class members.

Conclusion

In view of the above stated authorities, Gulf’s Motion

to Modify should be granted.

[Signatures Omitted in Printing]

CONCILIATION AGREEMENT

Exhibit A

[Caption Omitted in Printing]

* * *

A charge having been filed under Title VII of the Civil

Rights Act of 1964, as amended, by a Commissioner of

the U. S. Equal Employment Opportunity Commission

against the Respondent, the charge having been investi-

gated and reasonable cause having been found, the parties

do resolve and conciliate this matter as follows:

[Table of Contents Omitted in Printing]

A. GENERAL PROVISIONS

It is understood that this Agreement does not con-

stitute an admission by the Respondent of any vio-

lation of Title VII of the Civil Rights Act of 1964,

as amended.

The U. S. Equal Employment Opportunity Com-

mission hereby waives and releases its cause of

action against the Respondent under the instant

charge and covenants not to sue the Respondent

independently or on behalf of any individual in-

cluding, but not necessarily limited to, persons

listed on Attachments “A” and “B” hereto with

respect to any matter alleged thereunder, subject

io performance by the Respondent of the promises

and representations contained herein.

—_—

The Respondent understands that the Commission,

on its own motion, may review compliance with

this Agreement. As a part of such review, the

Commission may require written reports concern-

ing compliance, may inspect the premises, examine

witnesses, and examine and copy documents perti-

nent to such review. The Commission agrees that

the Respondent reserves all rights and protection

afforded by the Freedom of Information Act, as

amended.

The Respondent reaffirms that all of its hiring,

promotion practices, classification, assignments,

layoffs and all other terms and conditions of em-

ployment shall be maintained and conducted in a

manner which does not discriminate on the basis

of race, color, religion, sex or national origin in

violation of Title VII of the Civil Rights Act of

1964, as amended.

The Respondent agrees that it will not knowingly

practice nor permit its supervisory or other per-

sonnel to practice discrimination or retaliation of

any kind against any person because of his or her

Opposition to any practice declared unlawful under

Title VII of the Civil Rights Act of 1964, as

amended, or because of the filing of a charge, or

giving of testimony or assistance, or participation

in any manner in any investigation, proceeding,

or hearing under Title VII of the Civil Rights Act

. Of 1964, as amended.

Recognizing the exception with respect to sex as

regards toilets, showers and the like, the Respond-

ent reaffirms that all facilities on the premises or

furnished its employees, including recreational op-

portunities and all other conveniences and services,

are available for the use and enjoyment of any

employee without regard to race, color, religion,

sex Or national origin; that there is no discrimina-

tion against any employee on said grounds with

respect to the use of facilities; and that the notices

required to be posted by Title VII of the Civil

Rights Act of 1964, as amended, are posted.

B. SETTLEMENT AGREMENT—BACK PAY

Appertaining to back pay, the Affected Class is

hereby defined as all Negroes employed by the

Respondent on July 2, 1965, whose seniority date

antecedes January 1, 1957, and all hourly rated

females employed by the Respondent in its Package

and Grease Department on July 2, 1965.

The Commission agrees that a thorough search has

been made to identify all individuals potentially

entitled to backpay under this Agreement, that the

Respondent’s personnel records since the effective

date of Title VII of the Civil Rights Act of 1964

have been exhaustively analyzed and that, through

examination of documents submitted by the Re-

spondent, no persons potentially entitled other than

those listed on Attachments “A” and “B” hereto

could be found.

For the sake of convenience, the Affected Classes,

as shown on Attachments “A” and “B”, shall be

designated and hereinafter referred to as Group

“A” and Group “B” respectively.

The Respondent agrees that all individuals iden-

tified as belonging to Group “A” or Group “B”

shall immediately be awarded upon notification of

acceptance as described below, such back pay as

is hereinafter provided:

a. The Respondent represents that it has set aside

a sum for purposes of fulfilling all back pay

obligations which are or might have been in-

curred as a result of employment practices com-

plained of in the instant charge or which were

treated in the Commission’s Letters of Deter-

mination or Reconsideration of Determination

thereon, including matters found by the Com-

mission to be like and related.

b. The United States Equal Employment Oppor-

tunity Commission concurs that the sum set

aside is sufficient to meet the purposes of pro-

viding equitable relief to designated members of

Group “A” or Group “B” and stipulates that

$35,000.00 of said amount may be reserved and

held in a special account by the Respondent

for a period of five years. The Commission

agrees that, insofar as matters encompassed by

this Agreement are raised to issue in the future,

the Respondent shall utilize its special account

to dispose of contingent liabilities, and that any

undispensed funds remaining, after passage of

the account’s established five year life, shall be

returned to the Respondent’s general control for

unrestricted use.

c.In formulating the specific relief due each in-

dividual hereunder credits will be awarded as

follows:

(1) To members of Group “A”, $5.62 for each

month of continuous service with the Re-

spondent prior to January 1, 1957, and

$2.81 for each month of continuous service

thereafter until date of termination or until

January 1, 1971, whichever occurs earlier.

(2) To members of Group “B”, $5.62 for each

month of continuous service with the Re-

spondent until date of termination or until

January 1, 1975, whichever occurs earlier.

d. Back pay awards previously tendered to members

of Group “A” under the Respondent’s Agree-

ment dated May 7, 1971, with the Office for

Equal Opportunity, United States Department of

the Interior shall be deducted from amounts

hereunder due those same individuals.

e. Back pay awards will be subject to standard

deductions for F.I.C.A. and Federal Income Tax

Withholding.

f. Upon accepting a back pay award, each Group

“A” or Group “B” member will be required to

execute a general release to the Respondent for

any and all claims against the Respondent as a

result of events arising from its employment

practices occurring on or before the date of re-

lease, or which might arise as the result of the

future effects of past or present employment

practices.

g. Prior to tendering back pay awards, the Re-

spondent agrees to notify in writing each member

belonging to Group “A” or Group “B” that he

or she has been so identified, and of the general

formula used to calculate awards and of the

conditions of waiver or release required in ac-

cepting back pay. Each member shall be fur-

nished a form on which to notify the Respondent,

within thirty days, whether such member desires

to accept or decline back pay consideration. A

failure on the part of any member to respond

within thirty days shall be interpreted as ac-

ceptance of back pay. It is agreed that the form

of notification to be utilized shall be reviewed

and signed by a Commission representative prior

to being implemented or disseminated.

h.In the event that a member of Group “A” or

Group “B” is deceased, notice shall be given and

payment made to his or her estate. Upon ac-

cepting a back pay award, the deceased mem-

ber’s heir or heirs shall be required to execute

a general release as is provided in subsection (f)

hereinabove.

i. In the event that a member of Group “A” or

Group “B” refuses his or her award, or cannot

be located or, if deceased, his heir or heirs can-

not be located through the exercise of reasonable

effort, his or her back pay award shall be placed

in the Respondent’s special account, as provided

in subsection (b) above, to be returned to the

Respondent’s general control, if unclaimed upon

expiration of the account’s life.

C. SETTLEMENT AGREEMENT—GOALS AND

TIMETABLES

1. a. For Affirmative Action purposes, the Affected

Class is hereby defined as all hourly rated fe-

males presently employed in the Respondent’s

Package and Grease Department whose seniority

date antecedes April 5, 1974 and all members of

back pay Group “A” who are presently employed

in the classification of Operator Helper No. 1;

Boiler Washer “X”, Brander “X”, Operator

Helper No. 2, Utility Helper or Laborer.

b. For the sake of convenience, the Affected Class

for Affirmative Action purposes shall be desig-

nated and hereinafter referred to as Group “C”.

The Respondent, firm in its commitment to act in

good faith and compliance with Title VII of the

Civil Rights Act of 1964, as amended, has con-

ducted a thorough analysis of its work force and

has, as of January 1, 1976, identified those classi-

fications wherein Negroes, Spanish Surnamed

Americans and/or females are statistically under-

represented. Said classifications, designated and

hereinafter referred to as “Target Classifications,”

are as follows:

Analytical Tester

Area Storehouseman

Boiler Fireman

Boilermaker

Bricklayer

Carpenter

Clerical

Compounder No. 1

Craft Appentice and Trainee

Dockman

Electrician

Garage Mechanic

Gas Dispatcher

Greasemaker No. 1

Ree PO PaO TS

oo.

Pp.

qq:

rT.

NX *x*E< ce wn ovo

Greasemaker No. 2

Instrument Man

Insulator

Lineman

Machinist

Operator No. 1

Operator No. 2

Assistant Operator

Painter

Pipefitter

Power Plant Engineer No. 1

Power Plant Engineer No. 2

Power Plant Operator

Pumper No. 1

Pumper No. 2

Railroad Craft Group

Receiving Room Man

Treater No. 1

Treater No. 2

Tinner

Treater Helper No. 1

Troubleman

Water Pumper No. 2

Water Tender

Water Treater No. 1

Water Treating Plant Operator

Welder

EEO-1 Technician Category

EEO-1! Professional Category

EEO-1 Official and Manager Category

. With respect to the Respondent implementing its

Affirmative Action Program as provided herein, the

Commission stipulates that:

a. Ratios shall not be fixed but shall serve solely

as general measures of the Respondent's satis-

factory progress hereunder, |

b. Although it is assumed and expected that minor-

ity and female placement within the above listed

“Target Classifications” will be evenly distributed

the Respondent will not be faulted if it fails to

meet its goals and timetables in one or more

classifications as long as its overall progress is

satisfactory.

c. The Respondent shall not restricted to selection

of Group “C” Affected Class members in meet-

ing its goals and timetables, but may, at its dis-

cretion, select other qualified Negro, Spanish

Surnamed American or female employees, or re-

cruit from outside its workforce, thereby equally

satisfying Affirmative Action commitments.

d. Failure by the Respondent to meet its goals and

timetables hereunder shall not serve as justifica-

tion to increase or renegotiate backpay as pro-

vided in Section B.

Considering the above, the Respondent agrees to

establish a goal to fill one of every five vacancies in

“Target Classifications” other than its EEO-1 Offi-

cial and Manager Category, wherein the ratio shall

be one of every seven, with a Negro, a Spanish Sur-

named American or a female until such time as

their respective representation jointly within said

classifications equals or exceeds their joint repre-

sentation throughout the Respondent’s workforce.

On occasions when a vacancy is to be filled with a

Group “C” member, the Respondent will fill it by

selecting the bidder having greatest seniority, sub-

ject to relative skills, abilities, and qualifications,

and provided that the Respondent’s initial entry

requirements are met.

. Group “C” members upgrading hereunder shall be

classified as provisional and shall be on trial for a

period not to exceed 120 days. They will receive

the same training and orientation given other em-

ployees, and, if qualifying according to normal

company competency standards, the provisional title

shall be dropped. The Respondent may make its

determination prior to expiration of the full 120

day period. An employee determined by the Re-

spondent not to be qualified for the job for which

he or she has been on trial shall be returned to his or

her former classification without loss of seniority.

Determination that any employee has qualified here-

under shall not bind the Respondent to accept the

employee for any other classification, but such em-

ployee shall be judged at each level in the same

manner as other employees. An upgraded Group

“C” member may disqualify himself or herself dur-

ing the 120 day trial period and, in that event, shall

be returned to his or her former classification with

uninterrupted seniority.

. Each upgraded Group “C” member shall have his

or her seniority date determined by applicable

collective bargaining agreement provisions, with the

exception that in the event of a reduction in force

or layoff, any Group “C” member who has up-

graded to a Clerical classification or to a classifica-

tion represented by the United Transportation

Union; the Bricklayer, Mason and Plasters Inter-

national Union Local No. 13; the International

Association of Machinists and Aerospace Workers,

Port Arthur Lodge No. 823; or the International

Brother of Electrical Workers, AFL-CIO, Local

Union No. 390 shall have bumpback rights into the

Operator Helper No. 2 pool or into the classifica-

tion of Utility Helper or Laborer, according to his

or her former seniority at the time upgraded. The

Respondent shall retain the right to select into

which of the above three classifications the affected

Group “C” member shall be placed. Each Group

“C” member so displaced shall continue to hold

rights to recall into his or her craft position from

which displaced, as though he or she had not bump-

ed back.

. The Respondent agrees that the rate of pay for each

upgraded Group “C” member shall be the higher

of his or her permanent rate at the time upgraded

or the appropriate new rate. This provision shall not

apply in the event that a Group “C” member bids

into a classification in which the top rate for the

new line of progression is less than his or her

former rate.

. Each member of Group “C” who participates in this

special program shall receive one bona fide oppor-

tunity to upgrade. Such opportunity shall be satis-

fied, and the employee’s rights hereunder shall ter-

minate, when the employee either (a) takes a job

and qualifies therefor, (b) takes a job and fails to

qualify or requests to return to his or her former

job classification or (c) declines an offer to up-

grade. Group “C” members who resign from em-

“

ployment with the Respondent'shall have no further

rights hereunder.

10. An upgraded employee’s failure to qualify during

the established trial period, or a declination of a job

offer made to an employee by the Respondent, shall

not satisfy that particular exercise of the Respond-

ent’s obligation under established ratios toward

goals and timetables, and such opportunity shall be

extended to another individual.

11. Notwithstanding any of the foregoing, the Respond-

ent shall not be required to place or retain any

person in a job who does not have the skill, ability

and qualifications to perform said job.

12. The United States Equal Employment Opportunity

Commission and the Respondent remain in dis-

agreement as to the Respondent’s continued use of

test battery results for employment and promotion

purposes. However, in order to provide a means to

resolve those matters held in dispute, the Commis-

sion agrees that the Respondent reserves the right

to utilize test scores along with other job related

criteria in assessing individual qualifications. In

consideration therefore, the Respondent represents

that it shall not rely upon test scores as justifica-

tion for its failure to meet goals and timetables in

any job classification.

D. AFFIRMATIVE ACTION

The Respondent agrees to refine and strengthen on a

continuing basis positive and objective nondiscriminatory

employment standards, procedures and practices and re-

presents that in its business operations it exerts continu-

ing effort to uniformly apply such standards, practices,

and procedures in a manner which will assure equal em-

ployment opportunities in all aspects of its total work

force and operations without regard to race, color, re-

ligion, sex or national origin.

E. COMMISSION ASSERTION AND REPORTING

REQUIREMENTS

1. The Equal Employment Opportunity Commission

agrees that upon fulfillment of its obligations here-

under the Respondent will be in full compliance

with all provisions of Title VII of the Civil Rights

Act of 1964, as amended, at its Port Arthur, Texas

Refinery.

2. Six months after the date of approval of this Agree-

ment and every six months thereafter for its estab-

lished life of five years, the Respondent shall send to

the Commission a written report concerning all

actions encompassed by the provisions hereinabove

set forth.

Such reports shall accurately, fully and clearly

describe the nature of the remedial and affirmative

action undeitaken and shall be submitted to the

District Director, Equal Employment Opportunity

Commission, 2320 LaBranch, Room 1101, Hous-

ton, Texas 77004 with a copy submitted to the

Regional Manager, Office for Equal Opportunity,

Department of the Interior, Denver Federal Center,

Building 67, Room 880, Denver, Colorado 80225.

F. SIGNATURES

I have read the foregoing Conciliation Agreement and

I accept and agree to the provisions contained herein:

4/14/76 MERLIN BREAUX

Gulf Oil Company—vU. S.

Port Arthur, Texas

Respondent

1 recommend approval of this Conciliation Agreement:

4/14/76 JAMES R. ANDERSON

James R. Anderson

Equal Opportunity Specialist (E)

I concur in the above recommendation for approval of

this Conciliation Agreement:

4/14/76 CARL D. HANLEY

Supervisory Equal Opportunity

Specialist (E)

Approved on behalf of the Commission:

4/14/76 HERBERT C. McCLEES

Herbert C. McClees

District Director

G. CERTIFICATE OF REVIEW AND APPROVAL

1. This is to certify on behalf of the Office of Equal

Opportunity, United States Department of the In-

terior, review and approval of the foregoing con-

ciliation agreement by and between the U.S. Equal

Employment Opportunity Commission and Gulf Oil

Company—v. S., Port Arthur, Texas.

2. It is agreed that the Respondent has complied with

all of the provisions of the letter agreement between

Edward E. Shelton, Director of Office for Equal

Opportunity, United States Department of the In-

terior and L. R. Johnston, Vice President, Em-

ployee Relations, Gulf Oil Company—vU. S. dated

May 7, 1971 and all points have been resolved to

the complete satisfaction of the Office for Equal

Opportunity, United States Department of the In-

terior with the single exception of a portion of para-

graph 2 e. “Free Bidding—Non-Related Jobs” in °

said agreement.

With regard to such paragraph, vacancies in the

following jobs will be posted for bid to present

employees in Group “B”:

Checker Wax Packing House—

Pump House 78

(Lubricating )

Checker Drum Filling and Loading

(Package and Grease)

Fire Assistant Maintainance Division

Truck Driver Maintainance Division

Bathhouse Attendant Maintainance Division

Should a bidding employee in Group “B” be senior

to the employee who would receive the job through

normal promotional procedures, such employee

should be awarded the job. In addition, should her

present rate be greater than the posted job in ques-

tion, she should retain her present rate and also

should have the option of returning to her former

position within a thirty-day period. Other members

of the “affected class” shall not have such bidding

rights.

4. The Office for Equal Opportunity, Department of

the Interior agrees that upon fulfillment of its obli-

gations hereunder the Respondent will be in full

compliance with all provisions of Executive Order

11246, as amended, at its Port Arthur, Texas Re-

finery.

5. The Respondent recognizes that it has a continuing

obligation for Affirmative Action under Executive

Order 11246, as amended, and the implementing

regulations of the Department of Labor.

4/14/76 G. C. WILLIAMS

Gerald C. Williams

Western Regional Manager

Reviewed:

4/14/76 JAMES R. ANDERSON

James R. Anderson

Equal Opportunity Specialist (E)

Approved on behalf of the United States Equal Em-

ployment Opportunity Commission:

4/14/76 LORENZO D. COLE

Lorenzo D. Cole

Deputy Director

[Exhibit A—List of Employees (Omitted) ]

[Exhibit B—List of Employees (Omitted) ]

Exhibit B

May 25, 1976

I am required to make the following statement by

Gulf’s Law Department. Since 6 individuals have filed a

class action suit against Gulf Oil Corporation and the

Union alleging discrimination exists at this plant and

since you are a potential plaintiff in that suit, Gulf must

suspend—pending the court’s order—all further mailing

of checks and all further contacts with you concerning

the payment of money under the EEOC agreement. We

regret this situation deeply; but due to the suit, we can-

not proceed further until the court so orders.

Wm. G. DUCK

Wm. G. Duck

WGD/am

Exhibit C

AFFIDAVIT OF HERBERT C. McCLEES

[Caption Omitted in Printing]

STATE OF TEXAS

COUNTY OF HARRIS

Herbert C. McClees, being duly sworn, deposes and

says:

1. I am an employee of the United States Equal Em-

ployment Opportunity Commission (hereinafter referred

to as “the EEOC”) and am located in Houston, Texas

where the Commission maintains its Houston District

Office. I have worked for the Commission for eight years

and presently hold the position of District Director.

2. In my position as District Director, I am charged

with directing all activities of the Commission for the

twenty-six county area surrounding Houston, Texas, in-

cluding the counties of Jefferson and Orange. Within this

geographic area I have the authority, as vested in me by the

EEOC, to investigate charges which have been filed

against individuals under Title VII of the Civil Rights

Act of 1964, as amended. In addition, I have the au-

thority to enter into a Conciliation Agreement settling

the charges against the individual when the facts and

circumstances of a particular case so dictates. In most

‘cases, after a charge has been filed with the EEOC an

employee under my direction and supervision investigates

the charge to determine whether or not reasonable cause

exists to believe that the act has been violated. If the in-

vestigator finds reasonable cause to believe the act has

been violated, the EEOC attempts to settle all differences

by entering into a Conciliation Agreement which in some

cases will provide for an award of back pay to the affected

employees and an affirmative action program to ensure

continued compliance with Title VII.

3. I have read and am familiar with the Complaint

which has been filed in the United States District Court

for the Eastern District of Texas, Beaumont Division,

styled: Wesley P. Bernard, et al v. Gulf Oil Company,

et al, Civil Action No. B-76-183-CA (hereinafter referred

to as “the suit”). The Complaint was brought by six

employees of Gulf Oil Corporation (hereinafter referred

to as “Gulf”) at its Port Arthur Refinery against Gulf

and the Oil, Chemical and Atomic Workers International

Union, Local Union No. 4-23. In their complaint these

individuals have alleged that Gulf and the Union have

discriminated against them in violation of Title VII of

the Civil Rights Act of 1964 and the Civil Rights Act

of 1866. Of the six employees who filed this action, three

have filed charges with the EEOC, while three have failed

to file charges with the EEOC. Of the three employees

who have filed charges, two have requested right to sue

letters be issued, which requests are presently being pro-

cessed, The issues raised in the Complaint are almost

identical to those issues which were investigated by the

EEOC and which were the subject of a Conciliation

Agreement signed April 14, 1976 by Gulf, the EEOC and

the Office for Equal Opportunity, U. S. Department of

Interior (OEO). The Conciliation Agreement specifi-

cally provides that the Agreement does not constitute an

admission by Gulf of any violation of Title VII of the

Civil Rights Act of 1964, as amended.

4. The charges which have been raised in the suit have

been the subject of an EEOC investigation which has

been conducted over the past eight years. During this

time interval, the EEOC, among other things, inter-

viewed employees of Gulf at its Port Arthur Refinery;

examined all relevant documents and business records of

Gulf; conducted on-site investigations at Gulf’s Port

Arthur Refinery; and held numerous meetings with Gulf’s

executives. It is my opinion that this investigation was

extremely thorough and comprehensive since it covered

all Negro employees employed by Gulf on July 2, 1965,

whose seniority date antecedes January 1, 1957 (the de-

fined affected class of Negro employees in the Concilia-

tion Agreement). In order to identify this “affected class”

the EEOC conducted a thorough search in order to

identify all individuals potentially entitled to back pay

under the Conciliation Agreement. The personnel rec-

ords of all affected employees retained by Gulf since the

effective date of Title V'. of the Civil Rights Act of

1964 were exhaustively analyzed by the EEOC and no

persons potentially entitled to a back pay award could be

found other than those listed on Attachments “A” and

“B” attached to the Conciliation Agreement. In addition

to the award of back pay, the Conciliation Agreement

provided for an affirmative action program where specific

goals and timetables were set mandating that Gulf recruit

hire, and promote minorities. In order to ensure that

Gulf complies with the terms of the Conciliation Agree-

ment, including awarding back pay to the affected class

and complying with the affirmative action goals and time-

tables, Gulf must report to the EEOC every six months

for a period of five years its progress in conforming to the

provisions of the Conciliation Agreement. I have read

the prayer for relief in the Plaintiffs’ Complaint and it is

my opinion that the relief which the EEOC has obtained

by way of the Conciliation Agreement provides the same

kind of relief which the Plaintiffs seek in their suit.

6. Under the Conciliation Agreement, Gulf was re-

quired to notify in writing each member of the affected

class that he or she was entitled to an award of back

pay and of the conditions of waiver or release required

in accepting such an award. The Agreement provided

that each member of the affected class shall be furnished a

form on which to notify Gulf, within 30 days, whether

such member desires to accept or decline the back pay

consideration. A failure on the part of any member to

respond within the 30 days would be interpreted as an ac-

ceptance of back pay under terms of the Agreement. The

EEOC approved the form of letter and release which was

sent to each member of the affected class. The Concilia-

tion Agreement provides that upon fulfillment of the ob-

ligation thereunder, Gulf would be in full compliance

with all provisions of Title VII of the Civil Rights Act

of 1964, as amended, at its Port Arthur Refinery.

7. Gulf commenced mailings under terms of the Agree-

ment approximately three weeks prior to the filing of the

suit. Up until the time that Gulf was served with a sum-

mons in the suit, it had complied faithfully and fully with

all terms of the Conciliation Agreement and approxi-

mately 431 Negro employees out of a total of 616 Negro

_ employees entitled to a back pay award had signed

releases and received their back pay award. However,

Gulf notified the EEOC on the date it was served with

a summons in the suit that they could no longer continue

to fulfill certain provisions of the Conciliation Agreement

until the Court allowed further contact with potential

or actual class members to the suit.

8. So that the employees may receive their back pay

awards it is my opinion that Gulf should now be allowed

to proceed with completing the back pay awards and

receiving releases under the terms of the Conciliation

Agreement since that Agreement is a fair, equitable,

thorough and comprehensive solution to the charges that

Gulf has discriminated at its Port Arthur Refinery in

violation of Title VII of the Civil Rights Act of 1964.

HERBERT C. McCLEES

Herbert C. McClees

District Director

Houston District Office

United States Equal Employment

Opportunity Commission

Subscribed and sworn to before me

this 3rd day of June, 1976.

BETTY L. DEFFERARI

Notary Public in and for

Harris County, Texas

My Commission Expires June 1, 1977

Exhibit D

AFFIDAVIT OF GERALD C, WILLIAMS

[Caption Omitted in Printing]

STATE OF COLORADO )

)ss

COUNTY OF JEFFERSON )

I, Gerald C. Williams, being duly sworn, depose and say

1. I am an employee of the Office for Equal Opportunity,

U. S. Department of the Interior, hereinafter referred to

as the OEO, and am located in Lakewood, Colorado,

where the OEO maintains its Regional offices. I have

worked for the OEO for five years in the position of

Western Regional Manager.

2. In my position as Western Regional Manager, I am

charged with directing all activties of the OEO for all

assigned industries with facilities located in states west

of the Mississippi River but including all of the State

of Louisiana. Within this geographic area I have the

authority, as vested in me by the OEO, to initiate investi-

gations to determine whether or not government con-

tractors or subcontractors are in compliance with Execu-

tive Order 11246, as amended, and the implementing

regulations of the Department of Labor, 41 CFR 60.

In this regard, when there are issues which violate both

the Executive Order and Title VII of the Civil Rights

Act of 1964, an attempt is made to coordinate with the

United States Equal Employment Opportunity Commis-

sion, hereinafter referred to as the EEOC, investigations

relating to acts of discrimination prohibited by law. I

have the authority to enter into concilation agreements

or to approve conciliation agreements which have been

entered into with government contractors or subcontract-

ors in cases where reasonable cause exists to believe that

their activities are outside of the provisions of Executive

Order 11246. In most cases, where the OEO believes that

a government contractor or subcontractor is acting out-

side of the provisions of Executive Order 11246 an em-

ployee under my direction and supervision investigates

the charge to determine whether or not reasonable cause

exists to believe that the Executive Order has been vio-

lated. If the investigator finds reasonable cause to believe

that the Executive Order has been violated, the OEO

attempts to settle all differences by entering into an

agreement which in some cases will provide for an award

of backpay to the affected employees and an Affirmative

Action Program to compel the government contractor or

subcontractor to comply with the provisions of the Execu-

tive Order.

3. Ihave read and am familiar with the complaint which

has been filed in the United States District Court for the

Eastern District of Texas, Beaumont Division, styled:

Wesley P. Bernard, Et Al v. Gulf Oil Company, Et Al,

Civil Action No. B-76-183-CA, hereinafter referred to

as the suit. The complaint was brought by six employees

of Gulf Oil Corporation, hereinafter referred to as Gulf,

at its Port Arthur Refinery against Gulf Oil Company

and the Oil, Chemical and Atomic Workers International

Union, Local Union No. 4-23. In their complaint these

individuals have alleged that Gulf and the Union have

discriminated against them in violation of Title VH of

the Civil Rights Act of 1964 and the Civil Rights Act

of 1866. The issues were the subject of a conciliation

agreement signed April 14, 1976, by representatives of

Gulf, the EEOC and the OEO. The charges which have

been raised in the suit have been the subject of an OKO

investigation which has been conducted over the past

several years. Issues which have been raised in the suit

have been investigated by the OEO which, among other

things, interviewed employees of Gulf at its Port Arthur

Refinery, examined all relevant documents and business

records of Gulf, conducted on-site investigations at Gulf’s

Port Arthur Refinery, and held numerous meetings with

Gulf’s executives. It is my opinion that this investigation

was thorough and comprehensive. It covered all Negro

employees employed by Gulf on July 2, 1965, whose

seniority date antecedes January 1, 1957, the defined

affected class of Negro employees in the conciliation

agreement.

4. After the major terms of the conciliation agreement

had been settled between Gulf and the EEOC, those

groups met with representatives of the OEO to discuss

further actions required by Gulf in order to be in com-

pliance with Executive Order 11246. As a result of this

meeting, a Certificate of Review and Approval was at-

tached to the conciliation agreement as Page 11 and 12

thereto which certified that upon completing certain af-

firmative action requirements with regard to employment,

Gulf would be in full compliance with all of the provisions

of Executive Order 11246, as amended, at its Port

Arthur Refinery.

5. It is my opinion that the conciliation agreement as

entered into between Gulf, the EEOC and the OEO is a

fair and reasonable settlement of all charges that Gulf

has discriminated against its affected class employees at

its Port Arthur Refinery. In addition, I have no objection

to allowing Gulf to pursue fulfillment of the terms of the

aforesaid conciliation agreement, including the payment

of backpay awards and obtaining the releases of those

affected class members who wish to participate in this

settlement.

G. C. WILLIAMS

Subscribed and Sworn to before me

this 4th Day of June 1976,

EIDAN A. BROWN

Notary Public in and for

Jefferson County

My Commission expires Aug. 14, 1976

MEMORANDUM OF LAW IN OPPOSITION TO

DEFENDANT GULF OIL COMPANY’S MOTION

TO LIMIT COMMUNICATIONS WITH ANY

POTENTIAL OR ACTUAL CLASS MEMBER

[Caption Omitted in Printing]

Filed June 10, 1976

Preliminary Statement

This action is instituted pursuant to Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq. and

42 US.C. § 1981. The Complaint, filed on May 18, 1976,

alleges a class action on behalf of: (a) all black em-

ployees employed by defendant Gulf Oil Company’s Re-

finery of Port Arthur, Texas; (b) all black employees

formerly employed by the defendant in Port Arthur,

Texas; and (c) all black applicants for employment at

Gulf Oil Company who have been rejected for employ-

ment at said Company.

Il.

Statement of Facts

The issues stated below arise from an order issued by

the Honorable William M. Steger on May 28, 1976,

limiting communications with any potential or actual class

member. This order, attached to this memorandum as

Exhibit A, was issued pursuant to a Motion By Gulf To

Limit Communications With Any Potential Or Actual

Class Member filed on May 27, 1976, and is effective

until the Honorable Joe J. Fisher can hear the matter

upon formal motion.

As a result of the prohibitions contained in the May

28, 1976 order, plaintiffs’ attorneys have been forbidden

to communicate, directly or indirectly, with any members

of the plaintiffs’ class except for the six named plaintiffs

to the lawsuit.

One of the attorneys for the plaintiffs is Charles E.

Cotton of the New Orleans, Louisiana law firm of Cotton,

Jones & Dennis. Another is Stella M. Morrison, a Port

Arthur, Texas attorney of the law firm of Morrison,

Floyd & Morrison. Associated with them in this instant

action are several attorneys en ployed by the N.A.A.C.P.

Legal Defense and Educational Fund, Inc., a non-profit

corporation engaged in furnishing legal assistance in cases

involving claims of racial discrimination. The Legal De-

fense Fund, which is entirely separate and apart from

the National Association for the Advancement of Colored

People (N.A.A.C.P.), has been approved by a New York

court to function as a legal aid organization. Since 1940,

the Legal Defense Fund has furnished legal assistance in

civil rights matters in state and federal courts throughout

the nation, usually in conjunction with local counsel such

as Mr. Cotton and Ms. Morrison in this matter. See

N.A.A.C.P. v. Button, 371 U.S. 415, 421, n. 5 (1963).

1. Mr. Barry L. Goldstein, LDF staf attorney, has developed

considerable expertise in cases involving employment discrimination.

He has been involved in several key precedent setting cases, among

which have been Rodgers v. United States Steel Corporation, 508

F.2d 152, (3rd Cir.), cert. denied, 420 U.S. 969 (1975); Albemarle

Paper Co. v. Moody, 422 US. 405 (1975): Franks v. Bowman

Transportation Co., 47 L.Ed.2d 444 (1976); Pettway v. American

Cast Iron Pipe Co., 494 F.2d 211 (Sth Cir. 1974); Gamble v.

Birmingham Southern Railroad Co., 514 F.2d 678 (Sth Cir. 1975);

Ford v. United States Steel Corporation, 520 F.2d 1043 (Sth Cir.

1975). Mr. Ulysses G. Thibodeaux, Earl Warren Fellow with the

Legal Defense Fund, has been trained in civil rights litigation by

the Legal Defense Fund. His area of concentration has been in fair

In undertaking to represent the named plaintiffs, plain-

tiffs’ attorneys did not accept or expect any compensation

from them, nor do they expect to receive any compensa-

tion from any additional named plaintiffs who may here-

after be added, or from any member of the plaintiff class.

Mr. Cotton and Ms. Morrison expect to be compensated

only by such attorneys’ fees as may eventually be awarded

by the court. The fees collected for work done by the

employees of the Legal Defense Fund will be paid over

to that non-profit corporation and will not be paid to the

individual staff lawyers. Plaintiffs’ entitlement to an award

of counsel fees by the court would not be affected by the

number of individuals named as parties plaintiff since the

fees are not paid by the clients but, rather, they are taxed

as costs to the defendant. See 42 U.S.C. § 2000e-5(k).

Ill.

Statement of Issues Presented

1. Whether the district court is possessed of the av-

thority to grant an order restricting communications with

any potential or actual class member.

2. Whether an order of a district court restricting

communications with any potential or actual class mem-

ber is unconstitutional in violation of the First Amend-

ment protections of freedom of speech, freedom of associ-

ation, and privacy of association and the Due Process

Clause of the Fifth Amendment.

3. Whether an order of a district court restricting

communications with class members is unconstitutional

employment litigation. Mr. Charles E. Cotton has developed con-

siderable expertise in general civil rights litigation, but more par-

ticularly in fair employment litigation. Ms. Stella Morrison, prior

to entering private practice, was associated with the Equal Employ-

ment Opportunity Commission.

on its face and as applied in that the order overbroadly

infringes on constitutionally protected activities.

IV.

ARGUMENT

A district court can adopt rules governing the adminis-

tration of laws before it. Those rules, however, must be

consistent with the letter and spirit of the federal rules

of Civil Procedure and with the Acts of Congress.

Rodgers v. United States Steel Corporation, 508 F.2d

152 (3rd Cir.), cert. denied, 420 U.S. 969 (1975); 28

U.S.C. § 2071. In Rodgers, the Court was confronted

with a district court order limiting communications with

potential members of a class by the plaintiffs or their

attorneys pursuant to a local rule of the district court.’

In granting the plaintiffs a writ of mandamus, the Third

Circuit specifically held that the district court was not

empowered by Congress under Rule 3 of the Federal

Rules of Civil Procedure® or 28 U.S.C. § 2071* to limit

2. Local Rule 34(d) of the District Court for the Western Dis-

trict of Pennsylvania stated:

No communication concerning such action (class action) shall

be made in any way by any of the parties thereto, or by their

counsel, with any potential or actual class member, who is not

a formal party to the action, until such time as an order may

be entered by the Court approving the communication.

3. Rule 83, Fed. R. Civ. reads in pertinent part:

Each district court by action of a majority of the judges there-

of may from time to time make and amend rules governing

its practice not inconsistent with these rules. . . . In all cases

not provided for by rule, the district courts may regulate their

practice in any manner not inconsistent with these rules.

4. 28 U.S.C. § 2071 reads:

The Supreme Court and all courts established by Act of Con-

gress may from time to time prescribe rules for the conduct

of their business, such rules shall be consistent with acts of

congress and rules of practice and procedure prescribed by the

Supreme Court.

communications between plaintiffs, or their attorneys, and

third parties when such communication sought to en-

courage common participation in a class action lawsuit.

A district court could not issue an order pursuant to a

rule such as Local Rule 34(d) prior to class action

certification.

The local rule in Rodgers, supra, was promulgated

pursuant to Rule No. 7 suggested by the Manual For

Complex Litigation, the very same suggested rule being

relief on by the defendant in this instant action. Rodgers

suggested that the panel which drafted the Manual “went

too far in its apparent assumption that [a district court

had] unreviewable discretion . . . to impose a prior re-

straint on communication or association,” and that “the

panel had no power to enlarge the statutory rule making

authority of the district courts”. 508 F.2d at 165.

Rodgers recognized that important constitutional rights

of freedom of speech and association were involved in

a rule limiting communications with class members, but

declined to decide the constitutional issues. However,

in another aspect of this litigation, the District Court for

the Western District of Pennsylvania issued protective

orders prohibiting disclosure of information contained in

a deposition and placing a memorandum under impound-

ment. The plaintiffs’ petition for a writ of mandamus was

granted based on a finding that the judge’s orders were

unconstitutional. Because the orders constituted a prior

restraint on petitioners’ counsel’s freedom of speech in

violation of the First Amendment, the district court was

not acting within the “proper sphere of its lawful power”.

Rodgers v. United States Steel Corporation and Honorable

Hubert I. Ieitelbaum, No. 76-1340 (3rd Cir., June 3,

1976). A copy of that decision is attached as Exhibit B.

Standing alone, the opinions in Rodgers v. United

States Steel Corporation are sufficiently compelling au-

thorities to permit denied of defendant’s motion. The

significant constitutional questions involved which result

from an order limiting communications with class mem-

bers, however, merit further discussion. The Supreme

Court has specifically addressed the question and ruled

that an order limiting communications would infringe

upon constitutionally protected collective activity by civil

rights advocates. See NAACP vy. Button, 371 U.S. 415

(1963). An order prohibiting communications and as-

sociations with members of a group seeking legal redress

for civil rights violations is constitutionally impermissible:

In the context of NAACP objectives, litigation is

not a technique of resolving private differences, it

is a means for achieving the lawful objectives of

equality of treatment by all government, federal,

state and local, for the members of the Negro com-

munity in this country. It is thus a form of political

expression. ...

The NAACP is not a conventional political party;

but the litigation it assists, while serving to vindi-

cate the legal rights of members of the American

Negro community, at the same time and perhaps

more importantly, makes possible the distinctive

contribution of a minority group to the ideas and

beliefs of our society. For such a group, association

for litigation may be the most effective form of

political association. 371 U.S. at 429, 431 (em-

phasis added).

Following NAACP v. Button several cases concerning

injunctive restraints on “solicitation” which were far more

narrow than the order sought by the defendant in this

case held such restraints unconstitutional. See, Brother-

hood of Railroad Trainmen v. Virginia ex rel State Bar,

377 U.S. 1 (1964); United Mine Workers v. Illinois State

Bar Association, 389 U.S. 217 (1967); United Trans-

portation Union v. State Bar of Michigan, 401 U.S. 576

(1971). “The common thread running through our de-

cision in NAACP vy. Button, Trainmen, and United Mine

Workers is that collective activity undertaken to obtain

meaningful access to the courts is a federal right within

the protection of the First Amendment.” United Trans-

portation Union, supra, 401 U.S. at 585.

The defendant’s memorandum states on page 3 that

communications between plaintiffs’ counsels and actual

and potential class members “could seriously prejudice

Gulf in its defense of this case and the conciliation ef-

forts which have been conducted by the Equal Employ-

ment Opportunity Commission and the Office for Equal

Opportunity, U.S. Department of the Interior.” This

reason is insufficient to justify the imposition of limits

on communications. Past judicial attempts to curb even

mass-media dissemination of “out-of-court publications

pertaining to a pending case,” Bridges v. California, 314

U.S. 252, 268 (1941), have been held unconstitutional.

To justify criminal punishment (let alone prior restraint)

there must be an imminent peril to the administration of

justice. Craig v. Harney, 331 U.S. 367 (1947). In the

present situation, there is no pending litigation, but only

a non-judicial conciliation agreement of ‘attempts to curb

out of court statements concerning pending litigation are

unconstitutional, then surely an order limiting communi-

cations with class members with respect to a settlement

agreement is likewise unconstitutional. Moreover, the

conciliation agreement to which the defendant refers

grows out of Commission Charge No. AU68-9-154E. This

present lawsuit is concerned with charges filed by em-

ployees of the defendant before the EEOC in June, 1967.

These charges were not the basis of the present “settle-

ment” entered into between Gulf Oil Company, the

EEOC and the U. S. Department of the Interior. Gulf’s

assertion on page 1 of its memorandum that “[t]he issues

which have been raised in this lawsuit have been the

subject of settlement negotiations between Gulf, the U. S.

Equal Employment Opportunity Commission and the Office

for Equal Opportunity, U. S. Department of Interior”

is erroneous. The plain truth is that Gulf Oil Co. did not

wish to entertain conciliation discussions to resolve the

complaints of employees which forms the springboard for

this present action. A copy of a letter to that effect from

the EEOC to Mr. Wesley P. Bernard, one of the named

plaintiffs, is attached as Exhibit C.

Most importantly private individuals have a right to a

full remedy from the affects of racial discrimination in

employment. Franks v. Bowman Transportation Co., 47

L.E.D. 2d 444 (1976); Albermarle Paper Company v.

Moody, 422 U.S. 405 (1975). Individuals have a right

to pursue their remedy even after there has been a “pat-

tern and practice” suit litigated on their behalf by the

federal government. Williamson v. Bethlehem Steel Corp.,

468 F.2d 1201, 1201 cert. denied, 411 U.S. 931 (1973);

Rodriques v. East Texas Motor Freight, 505 F.2d 40, 65

(Sth Cir. 1974) cert. granted on other issues. NO. 75-

718 (May 25, 1976) A fortiori, a private suit which is

designed to seek a complete remedy to employment dis-

crimination is appropriate after a conciliation agreement

which has not been approved by a federal court and for

which there has been no finding that it fully or even sub-

stantially remedies the practices of discrimination at Gulf.

The order sought by Gulf Oil comes to court with a

“heavy presumption against its constitutional validity,”

thus placing “a heavy burden [on Gulf] of showing a

justification for the imposition of such a restraint.” Or-

ganization for a Better Austin v. Keefe, 402 U.S. 415,

419 (1971).

Apparently, the defendant is concerned that communi-

cations may prejudice its defense of this case and its con-

ciliation efforts. The order it seeks is replete with admini-

tions against solicitation, Suffice it to say that a govern-

ment “may not, under the guise of prohibiting profes-

sional misconduct, ignore constitutional rights.” NAACP

v. Button, supra, 371 U.S. at 439. Imposition of a prior

restraint of speech and association under the guise of

preventing solicitation is beyond the power of the Court

under the First Amendment. Additionally, the concern

for solicitation is mitigated by the American Bar Associa-

tion’s belief that the ordinary rules against solicitation are

to be relaxed when litigation is “wholesome and benefi-

cial”. ABA COMM. ON PROFESSIONAL ETHICS,

OPINIONS, NO. 148, at 311 (1935) The policy under-

lying Title VII litigation has been favorably viewed. See,

Griggs v. Duke Power Co., 401 U.S. 424 (1971); AL

bemarle Paper Co. v. Moody, supra. In fact, to encourage

Title VII litigation, Congress saw fit to include a provi-

sion for attorneys’ fees. See 42 U.S.C. § 2000e-5(b);

Johnson v. Georgia Highway Express, 488 F.2d 714 (Sth

Cir. 1974). An order limiting communications then,

would serve to subvert the judicially-recognized public

policy favoring vigorous prosecuting of employment dis-

crimination actions.

The order sought by defendant Gulf Oil Company and

granted by the Honorable William Steger on May 28,

1976 is, by its own wording not limited to communica-

tions directed at solicitation. It bans all communications,

however innocuous or lawful those communications might

be. Consequently, it suffers the fatal defect of overbreadth.

NAACP v. Button, supra, cautioned that “[B]ecause First

Amendment freedoms need breathing space to survive,

government may regulate in the area only with narrow

specificity. 371 U.S. at 433. The order which Gulf Oil

now seeks to extend simply does not meet Button’s test

of “narrow: specificity”.

If the defendant’s motion for an order limiting com-

munications with any actual or potential class member is

granted, a discriminatory regulation of free speech and

free association would result. It would unfairly disadvant-

age those black employees who wish to be informed about

various labor practices or about ways in which to seek

additional relief not agreed to in the recently consummated

conciliation agreement. Every black employee has the

right to seek legal assistance, to refuse to sign a waiver

of his rights, and to ask the court in a proper proceeding

to grant more relief from a pattern of systemic discrimina-

tion, every black worker has the right to choose to hear

comments about the problem of racial discrimination in

employment by attorneys knowledgeable in that parti-

cular field. Every black worker at Gulf Oil Co. has the

right to communicate with attorneys who purport to

represent them in a class action involving their very liveli-

hood, e.g., their jobs, their salaries, their promotions,

their back pay, etc. All of these rights are violated by an

order restricting communications.

The above infringements are all the more evident when

viewed in light of the freedom of communication enjoyed

by the defendants. Defense Counsel are free to consult with

their client(s) with respect to any matter relevant to this

lawsuit. Their clients are able to freely communicate with

black employees in the course of regular work activity

and thus are able to explain their interpretation of the

conciliation agreement at will. The order sought by de-

fendant is so one-sided as to constitute a denial of due

process of law. Such a violation occurs by a federally

imposed discrimination which, if imposed by a state,

would violate the Equal Protection Clause. Bolling v.

Sharpe, 347 U.S. 497 (1954). This one-sidedness is

clearly disadvantageous to black workers who have a right

to know about employment practices and conciliation

agreements from sources other than the defendant who is

alleged to have commited violations of the equal employ-

ment laws.

Imposition of an order limiting communications would

have a detrimentally inhibitory effect on an actual or

potential class members’ right to counsel. Meaningful co-

operation and exchanges would be stifled because of a

class members’ reluctance to approach counsel on matters

pertaining to the pending litigation. Suppression of all or

any communications between counsel and client, or be-

tween counsel and potential client is tantamount to a

denial of freedom of association. Little imagination is

needed to discern that such a drastic action would be

contrary to the principle that “[iJnviolability of privacy

in group associations, may in many circumstances be in-

dispensable to preservation of freedom of association, par-

ticularly where a group espouses dissident beliefs”.

NAACP v. Alabama ex rel John Patterson, 357 U.S. 449,

462 (1958). Indeed, the right to associate with one’s own

counsel has been called “unqualified.” Chandler v. Fretag,

348 U.S. 3, 9 (1954). Certainly, this is especially true in

a complex fair employment action where “laymen cannot

be expected to know how to protect their rights when

dealing with practiced and carefully counselled adver-

saries, . . .” Brotherhood of R. Trainmen v. Virginia,

supra, 377 US. at 7.

Finally a limit on communications would impose un-

conscionable barriers on the ability of plaintiffs’ counsel

to practice law and present a case worthy of the trust

placed in them by the plaintiffs. Plaintiffs’ counsel would

be deprived of the opportunity to interview large groups

of employees for helpful factual data and would addition-

ally be deprived of the opportunities to conduct general

inquiries. In sum, an order limiting communication would

severely impede the ability of counsel to effectively pre-

sent the claims of class members, to discover and assess

the strengths and weaknesses of the case, and to define

the scope of the issues with greater specificity. By so doing,

the progress of the case will be substantially curtailed,

a result entirely inconsistent with the directive of Section

706(£)(5) of Title VII:

It shall be the duty of the judge designated . . . to

assign the case for hearing at the earliest practicable

date and to cause the case to be in every way ex-

pedited.

CONCLUSION

For the reasons stated, the Defendant’s Motion To

Limit Communications With Any Actual Or Potetial

Class Member should be denied.

[Signatures Omitted in Printing]

[Certificate of Service omitted in printing]

FIRST SUPPLEMENTAL MEMORANDUM IN

SUPPORT OF GULF’S MOTION TO

MODIFY ORDER

[Caption Omitted in Printing]

Filed June 16, 1976

This First Supplemental Memorandum is submitted

pursuant to an order by the Court on June 11, 1976,

that the parties to this action will have until Tuesday,

June 15, 1976, to submit final memoranda concerning

Gulf’s Motion to Modify Judge Steger’s order dated

May 28, 1976.

During the hearing before the Court on June 11,

1976, counsel for the Plaintiffs informed the Court that

he opposed a continuation of Judge Steger’s Order entered

May 28, 1976, and he opposed Gulf’s Motion to Modify

Judge Steger’s Order which would allow Gulf to comply

with the terms of the Conciliation Agreement entered

into between Gulf, the Equal Employment Opportunity

Commission (EEOC) and the Office for Equal Oppor-

tunity, U.S. Department of the Interior (OEO). In sup-

port of his position, counsel for Plaintiffs relied upon

the case of Rogers v. U.S. Steel Corporation, 508 F.2d

152 (3rd Cir.), cert. denied, 420 U.S. 969 (1975). It is

Gulf’s position that the decision in the Rogers case is

totally inapplicable to the facts and circumstances in

this case for many reasons.

The most important reason why the Rogers decision

is inapplicable to this case is that the Local Rule 34(d)

considered by the court in that case is entirely different

from the order which Gulf seeks to have entered in this

case. As the court stated in the Rogers case, Local Rule

34(d) of the District Court for the Western District of

Pennsylvania did not incorporate the exceptions which

were suggested by the Manual for Complex Litigation.

In addition, Local Rule 34(d) was adopted from an

earlier edition of the Manual which did not include the

protected exemptions which are now included in the re-

vised Manual. See Manual for Complex Litigation, sec-

tion 1.41, p. 106 CCH Edition 1973, a copy of which

is attached hereto as Exhibit A. Thus, the Rogers court -

did not consider the current suggested order concerning

limitation of communications with potential class members

as contained in the Manual for Complex Litigation. The

current order suggested by the Manual avoids the con-

stitutional issues raised by the plaintiffs in this case since

it specifically exempts constitutionally protected communi-

cation when the substance of such communication is filed

with the court.

A second reason why the Rogers decision is inappli-

cable to the present case is that we are concerned here

with an order of the Court and not a Local Rule as was

the court in the Rogers case. The court stated in Rogers:

“The limited issue before us, however, is whether

the District Court can. prior to making a class ac-

tion termination, insist on compliance with Local

Rule 34(d) as a condition to the further considera-

tion of a Rule 23(d)(1) motion. We hold that it

may not.” Rogers supra at 164. (Emphasis added.)

The present case does not present an issue such as the

above since not only is there no Local Rule involved here,

but such a Local Rule is not made a condition to the further

consideration of a Rule 23(d)(1) motion.

More importantly, the Order entered by Judge Steger

in the present case was made necessary due to the actions

of Plaintiffs’ counsel. Thus, in this case activities of

counsel for the Plaintiffs have indicated that the order

suggested by the Manual for Complex Litigation should

be entered limiting communications with potential class

members.

During the conference with the Court on June 11,

1976, Gulf suggested that the Court modify Judge Steger’s

Order to include the exemptions stated in Pretrial Order

No. 15 in the Manual for Complex Litigation. Judge

Steger’s Order did not include the exemptions since he

wanted to maintain the status quo of the case until this

Court returned and assumed control of the case. In

essence, Judge Steger wanted to limit all communications

with potential class members during the Court’s absence.

It was recognized in the concurring opinion to Rogers

that the current rule in the Manual is properly drawn:

“The suggested rule found in the appendix to the Manual

for Complex Litigation, Part 1, Section 1.41, .. . is

more narrowly drawn and, as the majority points out,

specifically exempts communications protected by a con-

stitutional right.” Rogers supra at 166.

In order that the exemptions as provided for in the

Manual for Complex Litigation can be incorporated into

Judge Steger’s Order, Gulf has attached hereto as Ex-

hibit B a suggested order which would modify Judge

Steger’s Order to include the exemptions. In addition to

including the exemptions, Exhibit B modifies Judge

Steger’s Order to allow Gulf to comply, under the Court’s

supervision, with the requirements of the Conciliation

Agreement as outlined in Gulf’s pending Motion to

Modify.

Finally, Gulf would like to point out to the Court

the strong mandate of the Fifth Circuit Court of Appeals

as stated in United States v. Allegheny-Ludlum Industries,

Inc., 517 F.2d 826 (Sth Cir. 1975) that private settle-

ments of charges that the employer has violated Title

VII should be encouraged. Judge Thornberry in speaking

for the court stated:

“As early as 1968, Judge Bell wrote for this Court:

‘It is thus clear that there is great emphasis in Title

VII on private settlement and the elimination of un-

fair practices without litigation.’ Latis v. Crown

Zellerbach Corp., (Sth Cir. 1968), 398 F.2d 496, 498

(emphasis added). Subsequently, in Dent v. St. Louis-

San Francisco Ry. Co., (5th Cir. 1969), 406 F.2d

399, 402, Judge Coleman advanced the same thesis:

Thus it is quite apparent that the basic philosophy

of these statutory provisions is that voluntary

compliance is preferable to court action and that

efforts should be made to resolve these employ-

ment rights by conciliation both before and after

court action. (emphasis added. )

In Culpepper v. Reynolds Metals Co., (5th Cir.

1970), 421 F.2d 888, 891, we declared that ‘the

central theme of Title VII is ‘private settlement’ as

an effective end to employment discrimination,’ cit-

ing Oatis. Next, in Hutchings v. United States In-

dustries, Inc., (Sth Cir. 1970), 428 F.2d 303, 309,

Judge Ainsworth stated:

[I]t is clear that Congress placed great emphasis

upon private settlement and the elimination of

unfair practices without litigation (citing Oatis)

on the ground that voluntary compliance is prefer-

able to cuurt action. (citing Dent). Indeed, it is

apparent that the primary role of the EEOC is to

seek elimination of unlawful employment prac-

tices by informal means leading to voluntary com-

pliance. (emphasis added. )

Our recent excursions into this area have not

detoured from the foregoing principles, but have

emphasized instead their practical value.” United

States v. Allegheny-Ludlum Industries, Inc. supra

at 846 and 847.

Conclusion

In view of the above stated authorities, Gulf’s Motion

to Modify should be granted.

[Signatures Omitted in Printing]

[Certificate of Service Omitted in Printing]

EXHIBIT A

Appendix of Materials

* * *

§ 1.41 Sample Pretrial Order No. 15—Prevention ‘of

Potential Abuses of Class Actions

(To be promptly entered in actual and potential class

action orders unless there is a parallel local rule)

In this action, all parties hereto and their counsel are

forbidden directly or indirectly, orally or in writing, to

communicate concerning such action with any potential

or actual class member not a formal party to the action

without the consent and approval of the proposed com-

munication and proposed addressees by order of this

Court. Any such proposed communication shall be pre-

sented to this Court in writing with a designation of or

description of all addressees and with a motion and pro-

posed order for prior approval by this Court of the pro-

posed communication. The communications forbidden by

this order include, but are not limited to, (a) solicitation

directly or indirectly of legal representation of potential

and actual class members who are not formal parties to

the class action; (b) solicitation of fees and expenses and

agreements to pay fees and expenses from potential and

actual class members who are not formal parties to the

class action; (c) solicitation by formal parties to the class

action of requests by class members to opt out in class

actions under subpargraph (b)(3) of Rule 23, F.R.

Civ.P.; and (d) communications from counsel or a party

which may tend to misrepresent the status, purposes and

effects of the class action, and of any actual or potential

Court orders therein which may create impressions tend-

ing, without cause, to reflect adversely on any party, any

counsel, this Court, or the administration of justice. The

obligations and prohibitions of this order are not exclu-

sive. All other ethical, legal and equitable obligations are

unaffected by this order.

This order does not forbid (1) communications be-

tween an attorney and his client or a prospective client,

who has on the initiative of the client or prospective

client consulted with, employed or proposed to employ

the attorney, or (2) communications occurring in the

regular course of business or in the performance of the

duties of a public office or agency (such as the Attorney

General) which do not have the effect of soliciting repre-

sentation by counsel, or misrepresenting the status, pur-

poses or effect of the action and orders therein.

If any party or counsel for a party asserts a constitu-

tional right to communicate with any member of the class

without prior restraint and does so communicate pursuant

to that asserted right he shall within five days after such

communication file with the Court a copy of such com-

munication, if in writing, or an accurate and substantially

complete summary of the communication if oral.

A hearing at which applications may be presented for

relaxation of this order and proposed communications

with actual or potential members of the class is hereby

set for at m.

Dated this ________ day of , 19

JUDGE

EXHIBIT B

ORDER

[Caption Omitted in Printing]

The within and foregoing motion of Gulf Oil Cor-

poration to modify Judge Steger’s Order dated May 28,

1976, having been considered;

IT IS ORDERED:

(1) That Gulf’s motion to modify Judge Steger’s

Order dated May 28, 1976 is granted;

(2) That Judge Steger’s Order dated May 28, 1976

be modified so as to read as follows:

In this action, all parties hereto and their counsel

are forbidden directly or indirectly, orally or in

writing, to communicate concerning such action

with any potential or actual class member not a

formal party to the action without the consent and

approval of the proposed communication and pro-

posed addressees by order of this Court. Any such

proposed communication shall be presented to this

Court in writing with a designation of or description of

all addressees and with a motion and proposed or-

der for prior approval by this Court of the pro-

posed communication. The communications for-

bidden by this order include, but are not limited to,

(a) solicitation directly or indirectly of legal repre-

sentation of potential and actual class members who

are not formal parties to the class action; (b) solici-

tation of fees and expenses and agreements to pay

100

fees and expenses from potential and actual class

members who are not formal parties to the class

action; (c) solicitation by formal parties to the

class action of requests by class members to opt

out in class actions under subparagraph (b)(3) of

Rule 23, F.R.Civ.P.; and (d) communications from

counsel or a party which may tend to misrepresent

the status, purposes and effects of the class action,

and of any actual or potential Court orders therein

which may create impressions tending, without

cause, to reflect adversely on any party, any coun-

sel, this Court, or the administration of justice. The

obligations and pruhibitions of this order are not

exclusive. All other ethical, legal and equitable

obligations are unaffected by this order.

This order does not forbid (1) communications

between an attorney and his client or a prospective

client, who has on the initiative of the client or

prospective client consulted with, employed or pro-

posed to employ the attorney, or (2) communica-

tions occurring in the regular course of business or

in the performance of the duties of a public office

or agency (such as the Attorney General) which do

not have the effect of soliciting representation by

counsel, or misrepresenting the status, purposes or

effect of the action and orders therein.

If any party or counsel for a party asserts a con-

stitutional right to communicate with any member

of the class without prior restraint and does so

communicate pursuant to that asserted right, he

shall within five days after such communication

file with the Court a copy of such communication,

101

if in writing, or an accurate and substantially com-

plete summary of the communication if oral.

(3) That Gulf be allowed to proceed with the

payment of back pay awards and the obtaining of

receipts and releases from those employees covered

by the Conciliation Agreement dated April 14,

1976, between Gulf, the U.S. Equal Employment

Opportunity Commission and the Office for Equal

Opportunity, U.S. Department of the Interior;

(4) That the Clerk of Court mail a notice to all

employees of Gulf at its Port Arthur Refinery who

are covered by the Conciliation Agreement and who

have not signed receipts and releases for back pay

awards informing them that they have 45 days from

the date of the Clerk’s notice to accept the offer as

provided for by the Conciliation Agreement or such

offer will expire until further order of the Court;

(5) That the contents of the notice be the same

as that set out in Appendix I;

(6) That Gulf bear the expense of mailing the

notice and a copy of the Court’s Order to the in-

dividuals covered by item (4) above;

(7) That all employees who have delivered re-

ceipts and releases to Gulf on or before 55 days

from the date of the Clerk’s notice shall be deemed

to have accepted the offer as contained in the

Conciliation Agreement;

(8) That any further communication, either di-

rect or indirect, oral or in writing (other than those

permitted pursuant to paragraph (2) above) from

102

the named parties, their representatives or counsel

to the potential or actual class members not formal

parties to this action is forbidden;

(9) That Gulf inform the Court 65 days from

the date of the Clerk’s notice to be sent by the Clerk

of Court of the names of potential or actual class

members who have accepted the offer of back pay

and signed receipts and releases pursuant to the

Conciliation Agreement and the names of those who

have refused or failed to respond.

United States District Judge

June ___., 1976.

103

Appendix I

Pursuant to the Court’s order, I have been asked to

notify you that there is pending in the United States

District Court for the Eastern District of Texas a law-

suit styled Bernard, et al v. Gulf Oil Company and Oil,

Chemical and Atomic Workers International Union, Local

Union No. 4-23, being Civil Action No. B-76-183-CA.

This is a suit by six individual employees at Gulf’s Port

Arthur Refinery who have brought this suit on their

behalf and on behalf of all other individuals who are

similarly situated, and alleging that Gulf and the Union

have discriminated against them and the class they repre-

sent in violation of Title VII of the Civil Rights Act of

1964 and the Civil Rights Act of 1866. This notice is

being sent to you because you have been identified as —

an actual or potential class member who at some later

date may be entitled to become a member of the class

which the named Plaintiffs seek to represent.

You have received a notice from Gulf dated May 1,

1976, that you are entitled to an award of back pay

under a Conciliation Agreement which has been negoti-

ated on your behalf by the United States Equal Employ-

ment Opportunity Commission and the Office for Equal

Opportunity, U.S. Department of Interior. The Court

has asked me to inform you that at this time you have

a choice of whether to accept the offer from Gulf dated

May 1, 1976, and receive the back pay award as stated

in that letter or you may decline to accept that offer at

this time and at some later date be considered for in-

clusion in the class of individuals which the Plaintiffs

seek to represent in the above mentioned lawsuit. If you

104

decide to accept Gulf’s offer, you should execute the

receipt and release enclosed in Gulf’s letter to you dated

May 1, 1976, and return it to Gulf within 45 days from

the date of this letter. If this is done, you will receive

your back pay award shortly thereafter.

If you do not execute the receipt and release and de-

liver it to Gulf within 45 days from the date of this

letter, it will be presumed that you do not wish to accept

the offer contained in Gulf’s letter of May 1, 1976. Any

award you might receive as a result of the above men-

tioned lawsuit will depend upon whether you are included

in any class so certified by the Court and whether the

class is declared entitled to an award of back pay by the

Court.

Clerk, U.S. District Court,

Eastern District of Texas

105

MEMORANDUM OF LAW IN OPPOSITION

TO DEFENDANT GULF OIL COM-

PANY’S MOTION TO MODIFY ORDER

[Caption Omitted in Printing]

PRELIMINARY STATEMENT

This action is instituted pursuant to Title VII of the

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

42 U.S.C. § 1981. The Complaint, filed on May 18, 1976,

alleges a class action on behalf of: (a) all black em-

ployees employed by defendant Gulf Oil Company’s Re-

finery of Port Arthur, Texas, (b) all black employees

formerly employed by the defendant in Port Arthur,

Texas; and (c) all black applicants for employment at

Gulf Oil Company who have been rejected for employ-

ment at said Company.

STATEMENT OF FACTS

On May 28, 1976, the Honorable William M. Steger

entered an order limiting communications with any poten-

tial or actual class member. The order was to be effective

until the Honorable Joe J. Fisher could hear the matter

upon formal motion. On June 8, 1976, Gulf Oil filed a

Motion To Modify Judge Steger’s Order dated May 28,

1976. The motion seeks to bar all further communications

with actual or potential class members as well as to allow

Gulf, the EEOC, and the Department of Interior to pro-

ceed under the terms of a Conciliation Agreement dated

April 14, 1976. This Agreement grows out of a Commis-

sion Charge of the EEOC and is not the result of efforts

106

to conciliate charges brought before the EEOC against

Gulf Oil by individual class complainants. Further, the

Conciliation Agreement is not an attempted settlement of

a civil action brought in a federal court.

A hearing on the Motion To Limit Communications

was held before the Honorble Joe J. Fisher on June 11,

1976. Judge Fisher deferred ruling on the motion pending

the submission of memoranda on the Motion to Modify.

ARGUMENT

Gulf Oil’s Motion To Modify Order is predicated on

the order entered by the Honorable William M. Steger

on May 28, 1976. The legal propriety of that order was

addressed in plaintiffs’ Memorandum of Law In Opposi-

tion To Defendant Gulf Oil Company’s Motion to Limit

Communications with Any Actual or Potential Class

Member, submitted to this Court on June 10, 1976. The

arguments advanced in that memo. are hereby incorpor-

ated by reference into this present memo. To summarize,

plaintiffs aver that (1) the order is not within the power

of a district court to grant. See Rodgers v. United States

Steel Corporation, 508 F.2d 152 (3rd Cir.), cert. denied,

420 U.S. 969 (1975); Rodgers v. United States Steel

Corporation and Honorable Hubert I. Teitelbaum, No.

76-1340 (3rd Cir., June 1976); (2) the order infringes

upon constitutionally protected First Amendment freedom

of speech, freedom of association, and privacy of associa-

tion. See NAACP v. Button, 371 U.S. 415 (1963);

Brotherhood of Railroad Trainmen v. Virginia ex rel

State Bar, 377 U.S. 1 (1964); United Mine Workers v.

Illinois State Bar Association, 389 U.S. 217 (1967);

United Transportation Union vy. State Bar of Michigan,

107

401 U.S. 576 (1971); (3) the order violates the Due

Process Clause of the Fifth Amendment in that it unfairly

discriminates in favor of the defendants. See Bolling v.

Sharpe, 347 U.S. 497 (1954); and, (4) the order is un-

constitutional on its face because of the fatal defect of

overbreadth. See NAACP v. Button, supra. A finding,

therefore, of constitutional infirmity with respect to the

Motion To Limit Communications destroys the merits of

defendant’s Motion To Modify the order since the latter is

based upon the validity of the former.

Gulf Oil Company relies on two cases, Weight Watch-

ers of Philadelphia, Inc., v. Weight Watchers Interna-

tional, Inc., 455 F.2d 770 (2nd Cir. 1972), and Ameri-

can Finance System, Inc., v. Harlow, 65 F.R.D. 572

(D. Md. 1974) to support its Motion To Modify. These

cases, however, concerned themselves with defendants’ at-

tempts to negotiate settlements of purported class action

suits with individual members of the asserted class after

a lawsuit had been filed. In the instant case, Gulf is at-

tempting not onlv to restrain communications with actual

or potential class members, but also is seeking to continue

offering backpay settlements to affected class members in

a Conciliation Agreement which was not the subject of

a court action." The plaintiffs are simply attempting to

1. The plaintiffs are not trying to stop the Company from tender-

ing offers under the Conciliation Agreement. These tenders are made

pursuant to a private agreement, not judicially approved, between

two agencies of the Government and the Company. Neither the

Union defendant nor the plaintiffs’ class were parties to this agree-

ment. The legality of the waivers remains to be determined. United

States v. Allegheny Ludlum Industries, 517 F.2d 826 (Sth Cir.

1975) cert. denied U.S.L.W. (1976). However, the plaintiffs and

the class they represent have an unfettered right to consult with

attorneys experienced in civil rights and fair employment litigation

concerning their alternatives. See Exhibit A-C.

108

communicate to other asserted class members the issues

involved in the present lawsuit and also the problems

and alternatives to the Conciliation Agreement entered

into between Gulf Oil, the EEOC and the Department of

the Interior. (See Affidavits attached hereto as Exhibits

A-C). To disallow this right to the plaintiffs would be

to ignore the teachings of Rodgers v. U. S. Steel, supra,

and NAACP vy. Button, supra.

Regardless of how the defendants proceed, the right

to challenge the validity and fairness of the proposed non-

judicial “settlement” is not pre-empted by the defend-

ants’ actions or the purported class members’ responses.

See, e.g. Williamson v. Bethlehem Steel Corp., 468 F.2d

1201 (2nd Cir. 1972), cert. denied, 411 U.S. 931

(1973); Rodriguez v. East Texas Motor Freight, 505

F.2d 40, 65 (Sth Cir. 1974), cert. granted on other is-

sues, 44 U.S.L.W. 3661 (May 25, 1976); United States

v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826

(Sth Cir. 1975), cert. denied, 44 U.S.L.W. 3593 (Apr.

20, 1976).

In its memorandum to the Court, Gulf Oil Co. relies

heavily on the affidavits of EEOC and Interior Officials

in support of the Conciliation Agreement. Initially, it

must be emphasized that the adequacy ci the conciliation

agreement is not at issue at this time. Moreover, without

any presentation of evidence it is, of course, impossible

for this Court to evaluate the adequacy of the Concilia-

tion Agreement. But, the agreement on its face does not

appear to satisfy the dictates of Title VII. For instance,

the Conciliation Agreement does not provide for well-

established types of relief such as advance-level entry and

job by-pass; there is a one-shot opportunity to bid and

109

transfer into a different job classification; there are no

provisions for a firm recruitment program; there is no

firm commitment on goals and timetables; the affirmative

action program is merely a statement of policy rather

than a realistic, programmatic approach to the under-

utilization of minorities in the defendant’s work-force.

The goals provided, one black, mexican-american, or

woman for each four whites selected for jobs from which

blacks are underutilized (the goal is one to six for super-

visory positions) is inadequate to remedy the practices

of discrimination in an area where over 50% of the pop-

ulation is black; there is no relief from unlawful employ-

ment testing programs. These are only some of the ex-

amples of how the Agreement does not begin to ap-

proach the relief requested by the plaintiffs. In fact, the

settlement agreement simply does not satisfy the pur-

pose underlying fair employment litigation which is to

“make whole” those persons injured by discriminatory

employment practices. Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975).

Additionally, the notices that were sent out to backpay

eligibles under the Conciliation Agreement did not ex-

plain the types and extent of relief in the agreement, and

did not explain the method by which backpay was com-

puted. Further, the affected employees were not told that

acceptance of the agreement would be assumed if after

the passage of thirty days, the employees had not respond-

ed to Gulf’s notice. All of the above reasons make com-

munications between the class attorneys with potential

and/or actual class members essential. It cannot be as-

sumed that because the government agencies, EEOC and

Department of Interior, have approved the settlement of

a Commissioner’s Charge that the practices of discrimi-

110

nation have been remedied; as the Fifth Circuit stated

in Rodriquez:

While the Government may be willing to compro-

mise in order to gain prompt, and perhaps nation-

wide, relief, private plainuffs, more concerned with

full compensation for class members, may be willing

to hold out for full restitution. 505 F.2d at 66.

Gulf’s concern that there be a limit on communications

so that “. . . individuals . . . might make their own inde-

pendent decision concerning the acceptance of the back-

pay award”, (p.4 of defendant’s memorandum to the

Court) is not in accord with the principle that “ .. . the

Constitution protects expression and association without

regard to the . . . truth, popularity, or social utility of

the ideas and beliefs which are offered.” NAACP v.

Button, supra, at 444-445, Plaintiffs submit that the de-

fendant, Gulf Oil, has not more business telling them how

to deal with their associates that the plaintiffs have in

instructing Gulf how to deal with its associates and

advisors. Moreover, the class members have a right to be

informed by counsel as to their rights under the civil

rights laws.

CONCLUSION

For the reasons stated, the Defendant’s Motion To

Modify The Order should be denied.

[Signatures Omitted in Printing]

[Certificate of Service Omitted in Printing]

111

EXHIBIT “A”

AFFIDAVIT

[Caption Oniitted in Printing]

STATE OF NEW YORK

COUNTY OF NEW YORK

BARRY L. GOLDSTEIN, being duly sworn, deposes

and says:

1. I am one of the attorneys for the plaintiffs herein.

I am employed as a staff attorney with the NAACP Legal

Defense and Educational Fund, Inc., in New York City.

I have worked there as an attorney since August, 1971.

During the years of my employment I have been contin-

uously and almost exclusively involved in the litigation

in federal courts in various states of employment dis-

crimination cases.

2. The Legal Defense and Educational Fund, Inc., is

a non-profit corporation engaged in furnishing legal as-

sistance in cases involving claims of racial discrimination.

I am an attorney admitted to the practice of law before

the Appellate Division of the State of New York, the

United States District Court for the Southern and Eastern

Districts of New York, the United States Court of Ap-

peals for the Second, Fourth, Fifth and Sixth Circuits

and Supreme Court of the United States.

3. The Legal Defense Fund has been approved by the

Appellate Division of the State of New York to function

as a legal aid organization. It is entirely separate and

apart from the National Association for the Advancement

of Colored People (N.A.A.C.P.).

112

4. Since 1940, the Legal Defense Fund has furnished

legal assistance in civil rights matters in state and federal

courts throughout the nation, usually in conjunction with

local counsel. See N.A.A.C.P. v. Button, 371 U.S. 415,

421, n.5 (1963). The United States Supreme Court has

cited the organization as one “which has a corporate rep-

utation for expertness in presenting and arguing the diffi-

cult questions of law that frequently arise in civil rights

litigation.” NAACP v. Button, id. at 422. As pointed out

by Chief Judge Brown attorneys employed at the Legal

Defense Fund have represented individuals in hundreds

of civil rights cases in the Fifth Circuit and in the dis-

trict courts of that circuit, Miller v. Amusement Enter-

prises, Inc., 426 F.2d 534, 539, n.14 (5th Cir. 1970).

5. Specifically attorneys at the Legal Defense Fund

have represented the plaintiffs in many landmark cases

brought pursuant to Title VII which have been decided

in the Supreme Court,’ the Fifth Circuit,? and in other

Circuits.’

1. See eg., Griggs v. Duke Power Company, 401 U.S. 424

(1971); Phillips v. Martin-Marietta Corp., 4

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