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February 28, 1974

Lois Tuma et al., Plaintiffs
American Can Company et al., Defendants

Lacey, D.J.

The opinion of the court was delivered by: LACEY

Plaintiffs are females who charge defendant American Can Company (Company) with sex discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), and the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (Equal Pay Act). Plaintiffs also charge Local Union 6301 (Union) with violating Title VII and further allege a breach by the Union of its duty of fair representation. *fn1" Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); Bazarte v. United Transportation Union, 429 F.2d 868 (3d Cir. 1970); Hubicki v. ACF Industries, Inc., 484 F.2d 519 (3rd Cir. 1973). They also allege that the Company wrongfully acquiesced in the violation of that duty. Plaintiffs seek declaratory relief, damages, attorney's fees, and costs. This Court has jurisdiction over the various claims under 42 U.S.C. § 2000e-5(f), 29 U.S.C. § 216(b), and 28 U.S.C. §§ 1331, 1337; and see also as to the "fair representation" claim, Brady v. Trans World Airlines, Inc., 401 F.2d 87, 94 (3d Cir. 1968), cert. denied, International Ass'n of Machinists v. Brady, 393 U.S. 1048, 21 L. Ed. 2d 691, 89 S. Ct. 680 (1969).

 A bench trial of this matter was held on February 7, 8, 13, 14 and 15, 1974. My findings of fact and conclusions of law are hereinafter set forth. Fed. R. Civ. P. 52(a).

 Plaintiffs herein are Lois Tuma (Tuma) and Irene Rucki (Rucki) who, since May 9, 1949 and April 1, 1949, respectively, have been employed at the Company's Hillside, New Jersey plant, and since 1962 have been in the bargaining unit at that plant represented by the Union, as members thereof.

 The Company is a New Jersey corporation engaged in an industry affecting commerce which, at its Hillside plant, manufactures metal containers primarily for beer and carbonated beverages; at all relevant times it has employed more than 25 employees for each working day in each of 20 or more calendar weeks in the calendar year; and it is an employer within the meaning of § 701(b) of Title VII [ 42 USC § 2000e (b)], and within the meaning of § 2 (2), of the National Labor Relations Act.

 The Union is a duly chartered local of the United Steelworkers of America, AFL-CIO, which, since 1962, has been the certified collective bargaining representative of the Company's employees in the bargaining unit which includes the plaintiffs. *fn2" It is a labor organization within the meaning of § 701(d) and (e) of Title VII and within the meaning of § 2(2) of the National Labor Relations Act. At all relevant times the Union has dealt with the Company as the exclusive bargaining agent for the bargaining unit it represents.

 Plaintiffs, as has been stated, commenced work at the Company's Hillside plant in 1949. Rucki was a water tester until early 1966 when she became an Inspection Assistant. Tuma, along with Christine Spadaccino, was a compound weigher. In or about 1955, because compound weighing was a type of inspection function, these two women came to be called "Inspection Assistant (formerly Compound Weigher)." *fn3"

 Through Company-Union negotiations beginning in 1965, in early 1966 the Company ceased to list jobs as female and male jobs, and opened various "common" jobs, including that of Inspection Assistant, to men and women; and it was at this time that Rucki became an Inspection Assistant. See Ex. P-7, referring to the fact that jobs including "Inspection Assistant" were being classified as "common" jobs "under the intent of Section 11.8 of the Basic Agreement." *fn4" Tuma continued in the special category of "Inspection Assistant (formerly Compound Weigher)."

 In September 1967 the Company "cut back" on (the Company's usage) or "eliminated" (the plaintiffs' characterization) the Inspection Assistants; and the plaintiffs were forced into the next lower paying Job Class. The work being done by plaintiffs was absorbed by General Inspectors who added such work to their other duties.

 Plaintiffs contend that by this action the Company discriminated against them on the basis of sex. The Company just as persistently contends that the September 1967 action resulted from a seasonal business decline and that both male and female Inspection Assistants were similarly affected by the "cut back." I find that the evidence is supportive of the Company's position and that such seasonal "cut backs" occurred from time to time without regard to sex. Indeed, in September 1967 all Inspection Assistants were "cut back," including a Mr. Bernstein (holding the job temporarily) and such males as served in the third shift, a shift on which females did not work because of New Jersey work restriction statutes hereinafter described.

 The plaintiffs protested the Company's action to their Union. Plaintiffs charge that the Union then acted in bad faith and in breach of its duty of fair representation because it did not put into the collective bargaining agreement's grievance procedures their complaint that they had been improperly cut back from their Inspection Assistant jobs and their further claim that they were entitled to be placed into General Inspector positions then and there, in September 1967. I find that plaintiffs have not proved the breach of fair representation claim.

 Joseph Vicinio, a Union grievance committeeman, to whom plaintiffs' complaint was presented, investigated it and decided it was without merit. I accept and credit his testimony that his determination was founded upon the conclusion that, under the collective bargaining agreement, as well as recognized and established past practices, the Company's decision to "cut back" a particular job was under the circumstances a management prerogative. As to the demand regarding immediate placement as General Inspectors (and not even General Inspector trainees), Mr. Vicinio and the Union were obviously entitled to conclude that employees could become such only when, as, and if the Company opened the position by posting the job for bids. Even then, other hurdles had to be surmounted. From among employees signing a bid sheet the Company was entitled to select the most senior employees having the ability and work record warranting promotion. Moreover, entrance into the 3,000-hour General Inspector trainee program required passing a test. Next, there were no openings as General Inspector in September 1967. Finally, as I shall subsequently delineate, the skill, effort and responsibility required of Inspection Assistants fell far short of that required of General Inspectors.

 In finding that the Union refusal to utilize the grievance machinery in connection with plaintiffs' complaint was not because they are women, and that in investigating and processing the plaintiffs' complaint, the Union acted without hostility, discrimination or arbitrariness, and exercised its discretion in complete good faith.

 I further find that after Mr. Vicinio informed the plaintiffs their complaint would not be grieved, he advised them that if they were not satisfied with the decision, they could take an appeal through the internal union procedure, to the grievance committee as a whole, by addressing a writing to the chairman of that committee and thereafter, if still dissatisfied, to the executive board of the Union, and then to the Union membership. Plaintiffs did pursue the first two courses; and the written responses of the Union grievance committee and executive board, respectively, were as follows:

October 13, 1967
TO: Lois Tuma and Irene Rucki
In reply to your letter dated September 29, 1967, and received by me on October 4, 1967. In our investigation we find that there is no grievance. An assistant inspector is there to supplement the General Inspector, and this is a past procedure for the last ten years. If you feel you would like to appeal this further write the Executive Board and state your case.
/s/ James P. Ryan Grievance Chairman


November 7, 1967
Sister Lois Tuma
Local 6301
United Steelworkers of ...

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