Bernard v. Gulf Oil Corp., 87-2033

Decision Date22 March 1988
Docket NumberNo. 87-2033,87-2033
Parties49 Fair Empl.Prac.Cas. 1855, 46 Empl. Prac. Dec. P 37,899, 25 Fed. R. Evid. Serv. 336 Wesley P. BERNARD, et al., Plaintiffs-Appellants, v. GULF OIL CORPORATION, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Stella M. Morrison, Port Arthur, Tex., Judith Reed, Jack Greenberg, Eric Schnapper, New York City, Ulysses Gene Thibodeaux, Lake Charles, La., for plaintiffs-appellants.

Janet L. Lachman, William G. Duck, Houston, Tex., for Gulf Oil Co.

Carl A. Parker, Port Arthur, Tex., for Oil, Chem., and Atomis Worker Intern. Union & U. Trans.

L.N.D. Wells, Jr., Dallas, Tex., for Intern. Union of Bricklayers.

Norton Newborn, Cleveland, Ohio, for United Transp. Union.

Terry R. Yellig, Washington, D.C., for Intern. Broth. of Elec. Wkers, AFL-CIO.

Appeal from the United States District Court for the Eastern District of Texas.

Before SNEED *, REAVLEY and JOHNSON, Circuit Judges.

REAVLEY, Circuit Judge:

This is a class action suit brought by six present or retired black employees of Gulf's Port Arthur, Texas Refinery, all of whom are or were members of the Oil, Chemical and Atomic Workers' International Union Local 4-23 ("OCAW"), against Gulf and the OCAW for declaratory, injunctive, and monetary relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C. Sec. 1981. The suit was filed on May 18, 1976, within 90 days of plaintiffs Bernard, Brown and Johnson's receipt of right-to-sue letters from the Equal Employment Opportunity Commission (EEOC). Plaintiffs amended their complaint to join as defendants other unions which represent employees at the refinery, including: the International Association of Machinists and Aerospace Workers, Port Arthur Lodge No. 823; the International Brotherhood of Electrical Workers and its Local 390; the United Transportation Union and its Local 1071; and the International Union of Bricklayers and Allied Craftsmen and its Local 13 (collectively referred to as the "Trade Unions").

In April 1976, Gulf and the EEOC entered into a conciliation agreement in which Gulf agreed to cease various allegedly discriminatory practices, to establish an affirmative action program with respect to hiring and promotion, and to offer backpay to alleged victims of discrimination based on a set formula. Gulf sent notices to the 632 employees eligible for backpay asking in return for the execution of signed statements releasing Gulf from any possible claims of employment discrimination occurring before the date of the release, including any future effects of past discrimination.

This suit was filed one month later seeking to vindicate the rights of many of the employees who were receiving settlement offers from Gulf under the conciliation agreement. The district court entered an order limiting communication by the named parties and their counsel with prospective class members. This court, sitting en banc, held that the order was an unconstitutional prior restraint on expression accorded First Amendment protection. Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir.1980) (en banc), aff'd on other grounds, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). On writ of certiorari, the Supreme Court, while not reaching the First Amendment issue, held that the district court's order was an abuse of discretion under Fed.R.Civ.P. 23(d). Gulf Oil v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981). The case was remanded to the district court for further proceedings.

On January 24, 1983, the district court tentatively and provisionally certified the class as all blacks who worked or applied for work at the refinery in union covered jobs at any time after December 26, 1966. On April 2, 1984 the court modified the class to exclude unsuccessful job applicants, employees not represented by the OCAW, and employees who signed releases in exchange for backpay under the conciliation agreement between Gulf and the EEOC. The court also limited the relevant time period to employment practices occurring between December 26, 1966, which is 180 days prior to the date on which plaintiffs Bernard, Brown and Johnson filed their charges of discrimination with the EEOC, and May 18, 1976, the date upon which the complaint was filed. The court dismissed the Trade Unions because neither the named plaintiffs nor the modified class contained members of these unions.

At trial, plaintiffs advanced a number of classwide claims as well as individual claims on behalf of the named plaintiffs. Plaintiffs contended that: Gulf's seniority system was non-bona fide; a reclassification of employees pursuant to a stipulation ("Stipulation 29") between Gulf and the OCAW had an unlawfully discriminatory impact on blacks; certain tests administered by Gulf had an unlawfully discriminatory impact on blacks; Gulf intentionally applied its Sickness and Accident (S & A) policy to blacks in a discriminatory fashion; Gulf intentionally discriminated against blacks in its selection of temporary and permanent supervisors; Gulf intentionally discriminated against the named plaintiffs; and the OCAW breached its duty of fair representation. Following a bench trial, the court held for Gulf and the OCAW on all of the classwide and individual claims, 643 F.Supp. 1494.

On appeal, plaintiffs assert that the district court incorrectly disposed of each of the classwide and individual claims, but concede that the only issues upon which the OCAW could be liable are those relating to the seniority system and Stipulation 29. In addition, plaintiffs contend that the district court improperly: decertified the class to exclude employees who had signed releases; dismissed the Trade Unions; and refused to consider certain union and company records.

We hold that the district court failed to address essential issues of the classwide claims concerning the seniority system, Stipulation 29 and the craft tests as well as certain individual claims of intentional discrimination. We therefore vacate the court's judgment and remand for further findings. We find no error in the other rulings, which we now address.

I. Partial Decertification of the Class, Dismissal of the Trade Unions, and Exclusion of Business Records

Plaintiffs challenge the district court's partial decertification order to the extent that it excluded from the class employees who signed releases in exchange for backpay under the conciliation agreement between Gulf and the EEOC and dismissed the Trade Unions. The basis for the court's decision was its view that the named plaintiffs lacked standing both to represent employees who signed the releases and to pursue claims against the Trade Unions.

In reaching its decision, the court noted that class representatives must "possess the same interest and suffer the same injury" as the class members, Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2930, 41 L.Ed.2d 706 (1974), and that a plaintiff lacks standing to litigate injurious conduct to which he was not subjected. Blum v. Yaretsky, 457 U.S. 991, 999, 102 S.Ct. 2777, 2783, 73 L.Ed.2d 534 (1982). See Vuyanich v. Republic Nat'l Bank of Dallas, 723 F.2d 1195, 1200 (5th Cir.), cert. denied, 469 U.S. 1073, 105 S.Ct. 567, 83 L.Ed.2d 507 (1984). Because none of the named plaintiffs signed the releases or were members of the Trade Unions, the court found that they lacked standing to assert class claims on behalf of these employees. Accordingly, the court limited the class to OCAW members who had not signed releases, and dismissed the Trade Unions.

Plaintiffs do not challenge the court's exclusion of non-OCAW employees, but instead challenge the dismissal of the Trade Unions on the ground that these unions discriminatorily prevented black OCAW members from transferring into jobs covered by these unions. The district court found that plaintiffs did not allege that the Trade Unions acted unlawfully against them. After reviewing the complaint and amended complaints filed by plaintiffs, 1 we find support for the district court's conclusion and hold that the Trade Unions were properly dismissed.

Plaintiffs attack the validity of the releases on the ground that they were obtained from employees during the period when the district court's order prevented counsel for the class from communicating with prospective class members. The validity of the releases, however, is not at issue. Their validity can be attacked in a separate suit by employees who signed releases during the period when the court's order was in force. 2 The question presented to the district court was whether the named plaintiffs had standing to represent employees who had signed releases. Because the named plaintiffs sought to obtain relief already obtained by employees who accepted backpay and signed releases, the court found that the plaintiffs lacked standing to represent these employees. 3 We find no error in the court's determination.

Plaintiffs complain of the trial court's refusal to consider documents, described as business records, which plaintiffs say were given to the clerk during the trial. We find the documents in the record, but they bear no file stamp, and the transcript contains no reference to them. The parties did not agree to their submission. Exhibits come into evidence either by the agreement of the parties or by offer, the laying of a predicate subject to counter by the opposing party, and a ruling admitting the evidence by the trial court. The court correctly disregarded documents that were merely handed to the clerk.

II. Gulf's Seniority System Under Sec. 703(h)

Plaintiffs contend that Gulf's pre-Title VII Act seniority system had a discriminatory impact on certain black employees after the effective date of Title VII and that the defendants failed to prove that the seniority system was bona fide under Sec....

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