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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

LACEY, District Judge.

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)."

  On or about June 6, 1967 the Company posted for bidding by males the job of General Inspector. At the time it was a Job Class 11 position -- $3.272 hourly rate; and Inspection Assistant was a job class 6 position -- $2.882 hourly rate. Neither plaintiff bid for it, Tuma because she was expressly satisfied to hold her Inspection Assistant position. Rucki may have been of the impression that it would be futile for her to bid; what is clear is that she did nothing to indicate to the Company her desire for the job. Certain women did bid (which Tuma and Rucki knew); however, none was accepted or appointed from that list, or permitted to take the test.

 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 America


Hillside, New Jersey


Dear Sister Tuma:


In reply to your appeal to the Executive Board of this Local of action taken by the Grievance Committee of this Local in your behalf please be advised that the Executive Board has voted to uphold the Grievance Committee on this matter.


In our investigation of this matter we find that the Assistant Inspector classification was formulated by the Company to supplement the General Inspector classification, and when a cut-back is deemed necessary by the company, the Assistant Inspector are the first to be cut-back in our Inspection Department.


This practice has been the procedure for the last ten (10) years in our Inspection Department. So therefore we find no basis for a grievance in your behalf. Please be advised that if you would like to carry this matter further your next course of action would be to appeal this Board's decision to our membership at our plant meetings.


If you care to do this please inform me of this in writing so I can properly include your appeal on the Agenda for that plant meeting.


Fraternally yours,


/s/ John J. Clark Recording Secretary Local 6301 USA

  Plaintiffs did not appeal the executive board's decision to the Union membership.

 I credit Mr. Vicinio's testimony that it was customary for the Union to refuse to initiate grievances which its representatives in good faith believed were without merit.

 In this regard, of some historical significance is the fact that in 1960, a male employee, Artie Adams had complained about a seasonal roll back of Inspection Assistants, contending that, as an Inspection Assistant with more plant seniority than some General Inspector trainees, he should not have been cut back from his Inspection Assistant position and that he should have been permitted to "bump" into the General Inspector classification. The Union had then refused to initiate a grievance on his behalf, for the same reason that underlay its refusal to do so for plaintiffs in September 1967, that is, it considered such a grievance meritless.

 Actually, events reflect good faith on the Union's part insofar as its female membership is concerned. Thus, in collective bargaining negotiations with the Company at the Hillside plant level, in September or October 1967, among other demands by the Union was one that the Company open the third shift on all Company jobs to female employees. *fn5" In November 1968 when, as shall be detailed below, the Company opened up the General Inspector post to women, Rucki, because of her poor attendance record, would not have been permitted to take the test (which she failed) had not the Union interceded on her behalf. In addition, Mr. Vicinio sat as an observer with Rucki and the other job applicants who were tested. Seven applicants, including four females, passed the test and entered the General Inspector training program at that time.

 The "fair representation" doctrine which plaintiffs invoke was created and shaped by the Supreme Court in a series of cases involving alleged racial discrimination by unions certified as exclusive representatives under the Railway Labor Act, Steele v. Louisville & N. R. Co., 323 U.S. 192, 89 L. Ed. 173, 65 S. Ct. 226 (1944); Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 89 L. Ed. 187, 65 S. Ct. 235 (1944), and was thereafter extended to the unions certified under the National Labor Relations Act in Ford Motor Company v. Huffman, 345 U.S. 330, 97 L. Ed. 1048, 73 S. Ct. 681 (1952); Humphrey v. Moore, 375 U.S. 335, 11 L. Ed. 2d 370, 84 S. Ct. 363 (1964); and Vaca v. Sipes, 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); and see Reid v. Auto Workers, Local 1093, 479 F.2d 517, 520 (10th Cir.) cert. denied, 414 U.S. 1076, 94 S. Ct. 592, 38 L. Ed. 2d 483 (1973); Lewis v. Magna American Corp., 472 F.2d 560 (6th Cir. 1972); Gainey v. Railway Clerks, 313 F.2d 318, 323 (3d Cir. 1963). See also, cases cited in Davidson v. International Union, etc., 332 F. Supp. 375 (D.N.J. 1971); cf. Motor Coach Employees v. Lockridge, 403 U.S. 274, 299, 301, 91 S. Ct. 1909, 29 L. Ed. 2d 473 (1971).

 As stated by the Supreme Court in Vaca v. Sipes, supra, at 177:


. . . The exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. . . .

 In applying the doctrine of the duty of fair representation, however, a union does not have to process every grievance brought to its attention or even every grievance which has merit. Thus, the Court of Appeals for this Circuit has stated [ Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3rd Cir. 1970)]:


. . . This doctrine, however, does not confer on an employee an absolute right to force his collective bargaining agent to press his complaint all the way to the very end of the grievance procedures made possible by the collective bargaining agreement. The union has an obligation in exercising its power as bargaining agent to act fairly under the collective bargaining agreement and not to assert or press grievances which it believes in good faith do not warrant such action. An employee, therefore, is subject to the union's discretionary power to settle or even to abandon a grievance, so long as it does not act arbitrarily, and this is true even if it can later be demonstrated that the employee's claim was meritorious. It is therefore essential to plaintiff's claim that there should have been proof of "arbitrary or bad-faith conduct on the part of the Union in processing his grievance." It follows from this that proof that the union may have acted negligently or exercised poor judgment is not enough to support a claim of unfair representation. [footnotes omitted].

 Thus, even to prove that plaintiffs' complaint, which the Union refused to grieve, was meritorious under the collective bargaining agreement, would not be enough to establish the breach of duty of fair representation claim.

 Under the circumstances, the Union acted quite properly in refusing even to commence the grievance procedure. There is no real distinction between a union's refusal to take to arbitration a grievance which has been processed through grievance procedure, Vaca v. Sipes, supra ; a union's settlement of a grievance in one of the steps of the grievance procedure, Humphrey v. Moore, supra ; and a union's refusal to initiate a grievance, Figueroa de Arroyo et al. v. Sindicato De Trabajadores Packinghouse, AFL-CIO et al., 425 F.2d 281 (1st Cir. 1970), cert. denied, 400 U.S. 877, 91 S. Ct. 117, 27 L. Ed. 2d 114, rehearing denied, 400 U.S. 953, 91 S. Ct. 232, 27 L. Ed. 2d 260 (1970). Thus in the latter case the court stated (425 F.2d 281 at 284, n. 2):


While Vaca dealt with a union's refusal to take a processed grievance to arbitration, we see no reason to differentiate between the step of arbitration and earlier steps in the grievance procedure. The same principle applies: when the contract gives the union exclusive control over a grievance, the union must have that control in order for the whole process to function smoothly and effectively, which logic surely applies to all stages of the grievance procedure. See Comment, 17 Buffalo L. Rev. 165, 176-177 (1967).

 In short, there is no basis for the Vaca v. Sipes claim made against the Union; the Union, it is clear, was no less active in behalf of its female membership than on behalf of its males. *fn6"

 Accordingly, I find for the Union on the breach of fair representation claim founded, as I have stated, upon the Union's refusal to process the grievance plaintiffs proposed in September 1967. *fn7" Plaintiffs have failed to prove their charge. *fn8" Johnson v. General Drivers, etc., 488 F.2d 250 (6th Cir. 1973).

  On September 14, 1967 plaintiffs filed their Charge of Discrimination under Title VII of the Civil Rights Act of 1964, with the Equal Employment Opportunity Commission (EEOC), alleging sex discrimination as follows: *fn9"


Tuma :


7. On Tuesday, September 12, 1967 I was cutback from Assistant Inspector to High Pressure Tester. I have been with American Can Company since May, 1949. In 1951 until September 12, 1967 I was employed as an Assistant Inspector at a salary of $115.26. The job of Assistant Inspector was abolished, and the category is now called General Inspector which is considered a male job at $125.00 a week or more. Twelve (12) men are now in training for the job now called General Inspector. My job as high pressure tester pays $106.08.


I want to be placed in the General Inspector classification in accordance with my seniority, the back pay and all the benefits that are entitled to me. My union has not represented me properly in this situation.


Rucki :


7. On Monday, September 11, 1967 I was cutback from Assistant Inspector to Utility. I have been with American Can Company about 18 1/2 years. In 1965 I began work as Assistant Inspector at a salary of $115.26. The job was abolished on Monday, September 11, 1967. Twelve men are in training for the job of General Inspector at a salary of $125.00 a week or more. I want to be placed on the General Inspector classification according to senior (sic), the pay and all benefits. The job I was cutback to pays $106.08 (Utility). *fn10"

 See Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147, 42 U.S.L.W. 4214 (1974).

  The Company's response is, as I have indicated, that the Inspection Assistant position was not "abolished"; that there had been a "cut back" in jobs because of a seasonal decline; that the work being done by the Inspection Assistants was absorbed by General Inspectors (with their other work); and that the job classification still exists and has been reactivated at the Hillside plant when the needs of the plant require. The Company distinguishes the Inspection Assistant position from that of General Inspector on the grounds already set forth (pp. 4-5 supra), and by stating that Inspection Assistants handle only a limited number of routine phases inspection, that the position was and is used to provide adequate coverage and flexibility for the Company's inspection program, and that the duties, responsibilities and compensation for the position of Inspection Assistant were and are markedly different from those of General Inspectors. *fn11"

 As related to their Equal Pay Act claim, plaintiffs contend that the jobs of Inspection Assistant and General Inspector are similar, within the statutory definition, in that they called for "equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions . . . ." *fn12" They argue that as Inspection Assistants they were entitled to be paid the same as General Inspectors; and that the Company's failure to do so constituted discrimination based on sex.

 The spirit behind the Equal Pay Act legislation was set out in Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir. 1970), cert. denied, 398 U.S. 905, 26 L. Ed. 2d 64, 90 S. Ct. 1696 (1970):


The Act was intended as a broad charter of women's rights in the economic field. It sought to overcome the age-old belief in women's inferiority and to eliminate the depressing effects on living standards or reduced wages for female workers and the economic and social consequences which flow from it.

 See also, Brennan v. Corning Glass Works, 480 F.2d 1254 (3d Cir. 1973), petition for cert. filed, 42 U.S.L.W. 3322 (U.S. Oct. 26, 1973) (No. 73-695). Essentially the question to be resolved here is whether the jobs involve equal work, "the performance of which requires equal skill, effort, and responsibility" and are performed under similar working conditions. 29 U.S.C. § 206(d) (1). See Hodgson v. Robert Hall Clothes, Inc., 473 F.2d 589 (3d Cir.), cert. denied, 414 U.S. 866, 38 L. Ed. 2d 85, 94 S. Ct. 50, 42 U.S.L.W. 3198(1973) (No. 72-1615) . As to the standards and regulations applicable to determining if working conditions are similar, see Hodgson v. Miller Brewing Co., 457 F.2d 221 (7th Cir. 1972). Moreover, the jobs involved need not be identical in every respect. It is enough that they be of the same or closely related character. Inconsequential differences can be disregarded as long as the jobs are "substantially equal." Shultz v. Wheaton Glass Co., supra, 421 F.2d at 265.

 Plaintiffs have failed to prove their Equal Pay Act claim. For the reasons hereinabove set forth, I cannot accept the plaintiffs' testimony that their work as Inspection Assistants was similar to that of General Inspector. See Job Descriptions; the requirements of 3,000 hours' training; *fn13" and Appendix D to the collective bargaining agreements. Of course, the mere existence of a training plan may not be enough to escape the Equal Pay requirements; ( Hodgson v. Behrens Drug Co., 475 F.2d 1041 (5th Cir.), cert. denied, 414 U.S. 822, 38 L. Ed. 2d 55, 94 S. Ct. 121, and the controlling factor under the Equal Pay Act is not job description but job content. Id., 1049-50, n. 12, citing 29 C.F.R. § 800.121 (1970). Marshalling all the facts, however, the conclusion is inescapable that the jobs of General Inspector and Inspection Assistant were and are vastly different, justifying different pay rates. *fn14"

 Turning now to the Title VII claim asserted by plaintiffs against the Company, and resuming the recitation of events, on December 18, 1967 the Company applied to the Wage and Hour Bureau, Department of Labor and Industry of New Jersey, for a night-work permit which would allow the Company to employ females on the midnight to 7:00 a.m. shift; and the permit issued on March 15, 1968. The Company thereafter opened all jobs at the Hillside plant to women.

 After June 6, 1967, the next General Inspector opening did not occur until November 1968. On November 19, 1968 the Company posted a bid sheet for the job, opened to females and males alike. Rucki signed for herself and Tuma. Rucki was at first barred from the test because of a poor attendance record; but because of the Union's intercession on her behalf, the Company allowed her to take it. She did not pass. Tuma did not take the test. Absent from work for reasons of health from October 1968 to March 1969, she either was unable or unwilling to take it. I reject the notion she attempted to project at trial, that because the Company did not send her a telegram she did not know the test was being given. She knew, I find, that Rucki had signed her name and that a test was being given, and I further find that Tuma, who impressed me as a most intelligent person, was well aware of the fact that other women were taking the test. She was ambulatory as late as November 1968 (she went to New York in that month to visit the EEOC) but made no effort to contact either the Company or the Union to ascertain whether she would be admitted to the examination.

 Four of the seven vacancies for the position of General Inspector in November 1968 were filled by women. The fact that Tuma and Rucki were not awarded the job was unrelated to their sex.

 In April 1970 General Inspector vacancies arose once more. Tuma and Rucki bid for the job, Tuma passed the examination and was placed in the position effective April 20, 1970, and Rucki failed a second time.

 In June 1970, when General Inspector vacancies arose again, Rucki again bid for the job, took the test, and this time passed it.

 Both plaintiffs have continued to date to work as General Inspectors.

 Plaintiffs rely heavily upon the EEOC Decision of March 28, 1969 in their attempt to prove that portion of their Title VII charge against the Company that they were barred from the post of General Inspector because of their sex. The Decision was admitted into evidence (see Ex. P-6); however, both sides find fault with numerous facts and conclusions embodied in it. *fn15"

  Plaintiffs' Title VII claim actually is in two parts. That they were eliminated as Inspection Assistants because of their sex is unsupported by the evidence. I explicitly find that the job was "cut back" because of a seasonal decline and all Inspection Assistants were "cut back," including a male on the first shift, and males on the third shift.

 The other phase of plaintiffs' Title VII claim is not as readily resolved. It is of course conceded by the Company that the General Inspector job had been barred to females in June 1967 when it was posted for bidding. *fn16" The plaintiffs, however, had done nothing affirmative of any convincing nature to persuade me that they themselves suffered injury by that policy. Their case would be different had they bid for the job in June 1967 as certain women did, and then been barred from taking the test. *fn17" As a matter of fact, as already stated (p. 3, supra), I find it affirmatively established that Tuma was satisfied to retain her job as an Assistant Inspector. The record is not as clear as to Rucki; but on the evidence, taken as a whole, I can only conclude that she too did nothing to indicate that she wanted to be considered for promotion to General Inspector. Thus, although the Company cannot absolve itself from a Title VII violation by falling back upon state statutes protective of women, and EEOC interpretations of them, Kober v. Westinghouse Electric Corp., 480 F.2d 240, 246 (3d Cir. 1973), I find no impact upon plaintiffs stemming from this illegal policy. *fn18"

 Nor did the Company automatically have to open up General Inspector jobs in September 1967 to the plaintiffs and place them in such posts when they had theretofore evinced no interest in the posts and there existed at that time no vacancies. *fn19"

 In Kober, supra, a female plaintiff had been denied her request for an "automatic" promotion for which she was admittedly qualified because of her sex. There was in the instant matter nothing "automatic" in becoming a General Inspector. A test had to be taken and passed and, as I have already described, Tuma was not to take one until April 1970 when she passed and was made a General Inspector trainee. Rucki took tests in November 1968 and April 1970 before she took and passed the test given in June 1970. *fn20" Even to be allowed to take the test required a good work record; and except for Union intervention in November 1968, Rucki's absenteeism would have led to her being barred from the test.

 Under all the circumstances, I hold that plaintiffs have not sustained their burden of proving that they were discriminated against because of their sex.

 This opinion might well end here. However, because of the possibility of appellate review, and for reasons of judicial economy, I shall make further findings.

 Even if it should be ultimately determined by an appellate tribunal that plaintiffs did in fact prove their cause of action alleging a Title VII violation, I expressly find that this is not an appropriate case for back pay or damages. In addition to what I find was a good faith reliance by the Company upon New Jersey's female labor laws and EEOC's less than clear interpretations, the Company had had, as early as February 1, 1967, the intelligence conveyed by its conciliation agreement with the EEOC on a prior charge of sex discrimination. This agreement took cognizance of female protective state laws, as follows:


All employees have an equal opportunity to bid for a job vacancy except for those jobs in which basic occupational qualifications and/or state law restricts them from performing.

 While it is true that the Company could have applied for a night-work exemption prior to December 1967, it is just as true that no exemption could be obtained from the prohibition of employing women in excess of 10 hours in any one day or 54 hours or six days in any one week. These latter prohibitions presented a particular hardship in the case of females in that General Inspectors were, in peak seasons, usually required to work not only during the midnight shift but also more than 10 hours a day and 54 hours or six days in a week.

 I further note that having applied for a night-work exemption in December 1967, which was received in March 1968, the Company at once opened all jobs to females, even though it was not until 1971 that New Jersey statutes were repealed.

 By the time the Complaint herein was filed, in October 1970, both plaintiffs had been accepted as General Inspector trainees, Tuma in April and Rucki in June 1970. Indeed both could have been in the program two years before -- when other females were taken in -- if they had been qualified and had passed the test given in November 1968.

 Under facts far less compelling in an employer's favor, District Judge Weber had denied back pay in Kober v. Westinghouse Electric Corp., supra. On appeal the Court of Appeals stated (480 F.2d 240 at 248):


. . . We find no abuse of discretion here, as state statutes, like federal ones, are entitled to a presumption of constitutionality until their invalidity is judicially determined. Davies Warehouse Co. v. Bowles, 321 U.S. 144, 153, 64 S. Ct. 474, 88 L. Ed. 635 (1944); Manning, supra, 466 F.2d at 816. Westinghouse did not have the benefit of any judicial or even quasi-judicial determination of the validity of the Pennsylvania statutes until the opinion of the Attorney General on November 14, 1969 and the lower court opinion in this case on March 29, 1971. Furthermore, Miss Kober was promoted to the first available vacancy in April of 1970, after the EEOC finally made a determinative ruling on the validity of conflicting state statutes on August 19, 1969 and after the Attorney General of the Commonwealth of Pennsylvania concluded on November 14, 1969 that the female protective provisions were implicitly repealed by the adoption of the amendment to the Pennsylvania Human Relations Act of July 9, 1969, 43 P.S. § 951 et seq. We certainly cannot find any abuse of discretion by the lower court. . . .

 Accordingly, I would not award damages or back pay even if I were to find plaintiffs had proved their Title VII claim. *fn21"

 An appropriate form of Judgment, in favor of the defendants and against plaintiffs, should be submitted. If consent as to form is unobtainable, settle the form thereof on five days notice. No costs. *fn22"

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