# Appendix — Gulf Oil Co. v. Bernard

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 89

## Text

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

21

22

26

54

70

71

76

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 ..................

80

92
97

99

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

1

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.

2

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

3

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

4

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

5

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

6

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

7

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

10-15-76
10-14-76

10-26-76

275

315
321

323

8

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
11-24-76

11-24-76

11-24-76
11-29-76

‘2-17-76

1-3-77

337

343
344

355

361
367

368

381

9

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

10

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.

Ll

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,

V.

GULF OIL COMPANY and OIL, CHEMICAL
and ATOMIC WORKERS INTERNATIONAL
UNION, LOCAL UNION NO. 4-23,
Defendants.

COMPLAINT

I.
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.

12

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;

13

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.

14

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.

7.
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

—_

15

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

16

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-

17

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;

18

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-

19

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;

20

. 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

21

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]

22

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

23

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

24

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.

25

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]

26
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]

27

A. GENERAL PROVISIONS

l.

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

28

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.

29

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

30

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.

31

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

32

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

e

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,

33

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.

34

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.

35

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

36

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.

37

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-

38

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.

39

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

40

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

41

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.

42

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)

43
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

44
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.

45

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

46
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]

47

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.

48

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

49

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

50

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

51

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-

52

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

53

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]

54
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

i.

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.

—_—

55

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-

56

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

a

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”

57

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-

58

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-

59

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

60

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

=

n.

oo.

Pp.
qq:
rT.

NX *x*E< ce wn ovo

61

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:

62

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

63

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-

64

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-

65

“

-

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-

66

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:

67

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

68

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.

69

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) ]

70
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

71
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-

72

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.

|

73

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

74

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

75

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

76

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

77

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

78

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

79

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

80

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

I.

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.

81

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

82

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.

83

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.

84

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.

85

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-

86

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

87

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 Co

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0458%3A02. Public record. Not legal advice.