Local 254 of the Oil Workers International Union1 and John Syres and Louis J. Warrick, individually and as representing a class similarly situated, filed this action in May 1954 against Oil Workers International Union, Local 23,2 certain of its officers, as individuals and as representing members of a class, and the Gulf Oil Corporation. The complaint alleged that the collective bargaining agreement of April 17, 1954, with Gulf as employer, divided the jobs between the races and discriminated against Negroes. The complaint further charged that all of the defendants had conspired to deprive plaintiffs and other Negroes represented by them of their rights guaranteed under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. and under the Constitution of the United States. The district court at first dismissed the action for lack of jurisdiction, and this Court affirmed, the present writer dissenting. Syres v. Oil Workers International Union, Local No. 23, 5 Cir., 1955, 223 F.2d 739. The Supreme Court, in a brief per curiam, 350 U.S. 892, 76 S. Ct. 152, 100 L. Ed. 785, granted certiorari, reversed the judgment of this Court, and remanded the case to the district court for further proceedings, citing: Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173; Tunstall v. Brotherhood, 323 U.S. 210, 65 S. Ct. 235, 89 L. Ed. 187; Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S. Ct. 1022, 96 L. Ed. 1283.

The collective bargaining agreement of April 17, 1954, claimed to be discriminatory was of eighteen months' duration. On March 14, 1956, a new labor contract covering the same employees was executed. This case was not reached for trial until October 1, 1956, about six months after the execution of the 1956 contract. The plaintiffs did not attack that contract as discriminatory or otherwise illegal, and, indeed, made no reference to it, but went to trial upon their original complaint. The defendant Gulf Oil Corporation moved to dismiss the action because it had become moot, and the district court sustained that motion "to the extent that all causes of action and claims for relief contained in Plaintiffs' said complaint save and except those relating to Plaintiffs' claim for monetary damages be and the same are hereby dismissed." The appellants do not complain of that ruling.

As a suit for damages, the case was tried before a jury. At the conclusion of the evidence, Local 254 withdrew as a party plaintiff. The district court submitted the case to the jury on behalf of the two individual plaintiffs and the class which they represent. The jury returned its verdict in favor of the defendants, on which judgment was entered. From that judgment the plaintiffs Syres and Warrick appeal, specifying as errors certain rulings upon the evidence and in the court's instructions to the jury, among others that the court erred "in its manner of instructing the jury in the question of damages."

Each of the defendants had moved for a directed verdict on the ground that there was no competent evidence of damage suffered by any plaintiff or by any member of the class, and that the evidence was insufficient to warrant the submission of any damages on behalf of any person. On such motions, the district court reserved its decision under Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C. During the absence of the jury, however, the district court clearly indicated to counsel its opinion that the defendants were entitled to a directed verdict because no damages had been proved.3

In addition to relief by way of injunction, now moot, the complaint had contained a general prayer for damages: "Plaintiffs further pray that this Court award them judgment for damages in the amount of one hundred fifty thousand dollars ($150,000.00)."

The theory upon which the plaintiffs undertook to establish their claim for damages is thus described in one of their requested but refused instructions:

"The amount, of money, if any, to which the plaintiffs, Syres, Warrick, and those whom the named plaintiffs represent are entitled to is the difference between the average wage in the Operating Mechanical Division and that of the Labor Division, said average being the total of all salary items in either division, divided by the number of salary items in either division, times forty (40) (hour work week), times the number of weeks the contract of April 17, 1954, was in force, multiplied by the number of men that would have received such vacancies but for the contract of April 17, 1954."

Testifying in support of that theory, Syres calculated the recoverable damages to be $1,000,580.80.4 On cross-examination Syres expressed his hope that, in some manner not provided in the judgment sought, any recovery might be distributed through the local union.5

The district court charged the jury that in the event of a verdict for the plaintiffs the damages should be determined on the basis of the actual pecuniary loss suffered by the individual plaintiffs or by those whom they represent.6 To that charge, the plaintiffs objected on the ground "that the proof was to be according to each individual man rather than as computed on an average basis."

Syres admitted that he did not bid for any job in the Operating-Mechanical Division, and that he had no knowledge of Warrick having done so. Warrick did not testify. There was a total absence of proof that any particular individual had suffered any damage by reason of the alleged discriminatory provisions of the 1954 contract.

Wages are, of course, separately and individually earned. Promotions and failures to promote are peculiar to the individual employee. There was no claim nor evidence that any of such individually-owned rights had been transferred either to the local union or to the plaintiffs. No law has been cited, and we have been unable to find any which would permit the plaintiffs to maintain this action for damages vicariously or to recover on some theory of averages. When, if the proper parties were before it, the court could award equal and exact justice, why should it be required to render some rough or approximate judgment, rusticum judicium?

It is not enough to say that the right not to be discriminated against on account of race is joint or common and that a class action is maintainable under Rule 23(a), Federal Rules of Civil Procedure. Granted arguendo, it nonetheless remains true that in such an action the class can obtain only that relief to which it is entitled. For example, here, the enforcement of the alleged discriminatory contract might have been enjoined if it had not expired and been replaced by one to which there was no objection. All that would be settled in such a class action is that Negroes as a class may not be excluded from jobs or promotion lists, may not be discriminated against because of their race or color. The necessary qualifications to hold any job or to merit any promotion are personal. A familiar analogy is supplied in school segregation cases, where, color aside, each individual must have the necessary qualifications to enter any particular school or college, and that is a matter which cannot be decided in the absence of the individual as a party.

"* * * The representatives of the University seem to be apprehensive that a judgment in favor of all Negroes in North Carolina who may apply for admission to the University may deprive the Board of Trustees of their power to pass upon the qualifications of the applicants. Such is not the case. The action in this instance is within the provisions of Rule 23(a) of the Federal Rules of Civil Procedure because the attitude of the University affects the rights of all Negro citizens of the State who are qualified for admission to the undergraduate schools. But we decide only that the Negroes as a class may not be excluded because of their race or color; and the Board retains the power to decide whether the applicants possess the necessary qualifications. This applies to the plaintiffs in the pending case as well as to all Negroes who subsequently apply for admission." Frasier v. Board of Trustees, D.C.M.D.N.C.1955, 134 F. Supp. 589, 593, affirmed 350 U.S. 979, 76 S. Ct. 467, 160 L. Ed. 848.

Damages may sometimes be recovered in a class action, but where the damages, if recovered, would be in different amounts to separate individuals, the persons entitled thereto must be made parties or intervenors before the damages can be awarded.7

The appellants properly emphasize in brief "that the plaintiffs are only desirous that they be considered in their promotional qualification with the racial tag removed. Nothing more." It would seem to follow that any recovery of damages for discriminatory denial of advancement should be not for Negroes as a class, but on behalf of the individual employee.

None of the excluded evidence would have supplied the insufficiency in the proof of damages. On that issue the defendants would have been entitled, in the event of an adverse verdict, to judgment non obstante veredicto. Other claimed errors are, therefore, immaterial. The judgment is

Affirmed.