Full opinion text
MEMORANDUM DECISION STECKLER, Chief Judge. The Pleadings Complaint was filed in this cause on March 30, 1966, by certain named female employees of the Colgate-Palmolive Company’s Jeffersonville, Indiana, plant on behalf of themselves and on behalf of the class consisting of all females employed at the Jefferson-ville plant. For brevity the defendant Colgate-Palmolive Company hereafter will be referred to as the “Company” or “Colgate.” Joined as defendant was International Chemical Workers Union, Local #15, hereafter called the “Union,” against which, however, plaintiffs sought no relief. The term “employees” will be used hereafter to refer to those employees of Colgate who are members of the bargaining unit at the Company’s Jeffersonville plant. The complaint as amended alleged that Colgate’s operations at the plant were within the purview of the Civil Rights Act of 1964 and, more particularly, Title VII thereof, 42 U.S.C. § 2000e et seq. The complaint charged that Colgate intentionally discriminated against female employees at its Jeffersonville plant by a system of segregation and classification by sex whereunder females were deprived of certain employment opportunities in some job classifications, 'and that layoffs occurring during 1965 were discriminatory to females because such layoffs were made from separate male and female seniority lists. The complaint further alleged that the plaintiffs had filed charges with the Equal Employment Opportunity Commission, hereafter referred to as the “EEOC,” prior to instituting suit and that plaintiffs had been advised of the EEOC’s inability to resolve these charges. Jurisdiction of this court was predicated on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f). The complaint also claimed that the defendant Union had participated in the discriminatory acts charged against Colgate. The original complaint was amended on April 22, 1966, to allege that the plaintiffs received notification from the EEOC on or about April 5, 1966, of their right to institute action in court under the Civil Rights Act of 1964 and to place in the pleadings a copy of an EEOC decision relating to sex discrimination charges filed against the Company by employee Verner Boothe. On September 20, 1966, the plaintiffs moved to amend to allege that Colgate's acts of sex discrimination were continuing and that Colgate, with the complicity of the Indiana State Employment Service, was hiring only male employees and refusing to hire women because of their sex. This motion coming on the day of trial was denied. On April 28, 1966, a motion to inter-, vene and intervening complaint was filed by fifteen additional female employees. The intervening complaint contained essentially the same allegations against Colgate and the Union as the original complaint. The Court granted the motion to intervene on April 28,1966. On May 2, 1966, defendant Colgate filed objections to plaintiffs’ motion to file the amended complaint of April 28, 1966, to the intervention of the fifteen additional plaintiffs and to the filing of the intervening complaint. Defendant Colgate’s objections were subsequently overruled on September 1, 1966. On May 17, 1966, defendant Colgate filed various motions attacking the original complaint, the amended complaint, and the intervening complaint. Colgate’s motions sought dismissal of the complaints on the grounds of failure to exhaust contractual remedies, failure to exhaust administrative remedies, failure of the EEOC to attempt resolution of the alleged discriminatory practices by the methods of persuasion and conciliation set forth in the Civil Rights Act of 1964, misjoinder of parties plaintiff, improper class action, that the cause was not a proper one for injunction, dismissal of any claims asserted which arose prior to July 2, 1965 — the effective date of the Civil Rights Act of 1964, failure to join indispensable parties, and on the ground that some of defendant Colgate’s actions complained of were barred by the limitation provision of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. These motions were disposed of by the Court on September 1,1966, as will appear later. In their original complaint, plaintiffs sought to enjoin defendant Colgate from engaging in the claimed unlawful employment practices. On June 3, 1966, plaintiffs moved for a preliminary injunction restraining defendant Colgate from, inter alia, restricting General Labor jobs to males, transferring females with seniority out of their regular department absent a crew reduction and to require Colgate to accord females the same privileges as males in exercising their seniority on open jobs in the plant. Colgate immediately filed an objection to the plaintiffs’ motion for preliminary injunction, as did the defendant Union. On June 28, 1966, the Court heard arguments of the parties on the defendant Colgate’s pending motion to dismiss on the ground that the plaintiffs had failed to exhaust the grievance and arbitration procedures available to them through the collective bargaining contract between defendant Union and Colgate. On July 19, 1966, the Court heard further argument on the defendant Colgate’s motions to dismiss for failure to exhaust contractual remedies and on plaintiffs’ motions for a preliminary injunction. The Court denied relief by way of preliminary injunction at this time and reserved ruling on defendant Colgate’s motions until the pretrial conference on September 1, 1966. The case was assigned for trial on September 20, 1966. ,.. On August 1, 1966, defendant Colgate filed a motion to stay pending arbitration under the authority of the United States Arbitration Act, 9 U.S.C. § 3. In the interim between July 19th and the pretrial conference four more Colgate female employees filed a motion to intervene as plaintiffs and an intervening complaint. This intervening complaint essentially reiterated the allegations of the original and first intervening complaints, except part of the relief demanded as to these complainants was rehire since they had been permanently laid off on April 2, 1965. Colgate objected to the application of the four above-mentioned females for intervention and also to the second intervening complaint filed in their behalf. Defendant Union took no position on the motion to intervene, but did file an answer to the second intervening complaint. Defendant Colgate on August 5, 1966, moved the Court to view each of its defensive motions previously filed as two motions, one for the purpose of dismissal in so far as they related to plaintiffs’ claims for money damages and the other, in so far as they related to the demands for injunctive relief. On September 1, Colgate filed a motion to require plaintiffs to elect whether they desired to pursue their remedy against the Company in the suit or through the grievance and arbitration machinery of the collective bargaining agreement. In connection with the motion for election Colgate sought to enjoin the plaintiffs from proceeding both in this cause and under the arbitration provisions of the collective bargaining agreement as to any particular alleged act of discrimination. On September 1, 1966, defendant Colgate filed a cross-claim against the defendant Union for indemnity and contribution in the event any liability was imposed on Colgate for the alleged discriminatory employment practices. Pretrial conference was held on September 1, 1966. At the conference the Court denied plaintiffs’ motion for a preliminary injunction. The Court also overruled for lack of merit Colgate’s motion to set aside the Court’s entries of April 28, 1966, and May 6, 1966, which permitted the intervention of the additional plaintiffs, and also permitted the filing of the first and second intervening complaints and the first amended and supplemental complaint. Disposition of Defensive Motions The Court took up Colgate’s defensive motions and disposed of them as follows: 1. The Court overruled Colgate’s motion to dismiss the complaints on the ground that each of the plaintiffs failed to exhaust her remedies under the grievance and arbitration provisions of the collective bargaining agreement between Colgate and the defendant Union. Defendant Colgate asserted, in support of this motion, that Title VII of the Civil Rights Act of 1964 was part of the fabric of our national labor laws and policy, and, as such, was subject to the principles developed under the national labor laws. In particular, Colgate claimed that the holding of Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), and other cases of similar import, which compel an employee to exhaust the remedies of grievance and arbitration provided by a collective bargaining contract between his union and his employer before filing suit to vindicate a claimed injustice, controlled in this case. The Court disagrees. The Court finds a fundamental difference between a claim for the violation of a collective bargaining agreement and .a claim for the violation of the Civil Rights Act of 1964. The latter is a'statutory embodiment of constitutional rights that all persons are entitled to enjoy, while the former has as its primary purpose the maintenance of industrial peace between labor and management. It is the belief of the Court that an employee has the right to come before the Court and assert his claim under the Civil Rights Act of 1964, without regard to any contractual remedies also available to him. However, it is also the belief of the Court that the employee should not be permitted to proceed on the samé allegedly wrongful incidents both in the Court and pursuant to his contractual remedies. 2. Colgate’s second defensive motion sought dismissal of the complaints for failure of the plaintiffs to exhaust their administrative remedies before the EEOC. In support of its motion Colgate cited § 706(e) of the Act, 42 U.S.C. § 2000a-5(e). The Court overruled Colgate’s motion in so far as it sought dismissal of the complainants’ demand for injunctive relief. It would be unrealistic to require an employee whose rights are threatened with irreparable harm to exhaust his remedies before the EEOC prior to seeking injunctive relief from the Court. On the other hand, the Court is convinced that no action for damages or reinstatement under the Act can be maintained by those employees of defendant who failed to file timely charges with the EEOC, or who, filing charges, did not receive a communication from the EEOC indicating that probable cause existed to believe that a violation of the Act had occurred. The Court- agrees with the reasoning of Hall v. Werthan Bag Corp., 251 F.Supp. 184 (M.D.Tenn.1966) on these points. Thus, the Court ruled that each plaintiff would be required to demonstrate by sufficient proof that she had filed a charge with the EEOC and received a letter of probable cause before she could become eligible to collect damages or seek reinstatement or employment preference with Colgate. This is a jurisdictional prerequisite. Hence, Colgate’s motion to dismiss for failure to exhaust administrative remedies was sustained in part and overruled in part. 3. Defendant Colgate’s third motion was concerned with dismissal for failure to induce the EEOC to conciliate the alleged complaints of the plaintiffs with Colgate. This motion is merely an adjunct to Colgate’s second motion set forth in the preceding paragraph. So long as complainants individually can demonstrate that they filed charges with the EEOC and received a letter of probable cause from it, their causes for damages and reinstatement are ripe for determination by the court. Cf. Evenson v. Northwest Airlines, Inc., 268 F.Supp. 29 (E.D.Va.1967). And even those plaintiffs who have not filed charges are entitled to be heard on the issue of injunctive relief. Hall v. Werthan Bag Corp., supra. 4. The Court overruled Colgate’s fourth motion to dismiss for improper joinder of parties plaintiff as without merit. This is a class action and the Court is able to fashion the relief appropriate to each individual plaintiff in the class, which that plaintiff is entitled to receive. 5. The Court overruled Colgate’s motion to dismiss an improper class action. 6. The Court also overruled Colgate’s motion to dismiss the plaintiff’s prayer for injunctive relief. Ultimately, however, as will be shown later, the Court found that injunctive relief is not warranted. 7. Colgate’s seventh defensive motion concerns dismissal of those parts of the complaints which seek relief from acts occurring prior to July 2, 1965. This motion was sustained by the Court. The effective date of the Civil Rights Act of 1964 was July 2, 1965, and the Act is only prospective in its application. Any acts by the defendants violative of the Act which occurred prior to July 2, 1965, cannot be made the subject of this action and were not proscribed by the Act. The record shows, for example, that certain female employees were laid off by Colgate in April 1965, from a seniority list restricted to women. This layoff was not violative of the Act since the Act was not then in effect. Further, the women employees laid off in April 1965 are not entitled to damages after the Act became effective and up to the dates of their recall unless they demonstrate that they took some affirmative action directed to Colgate after July 2, 1965, to obtain reinstatement. This they failed to prove. 8. The Court overruled Colgate’s motion to dismiss for failure to join indispensable parties, for lack of merit. 9. The Court sustained Colgate’s ninth defensive motion to dismiss complaints barred by the limitations provisions of the Civil Rights Act of 1964. Section 706(d), 42 U.S.C. § 2000e-5(d), provides that a charge of unlawful employment practice must be filed by the employee with the EEOC within ninety days after the alleged unlawful employment practice occurred. The Act further provides in § 706(e), 42 U.S.C. § 2000e-5(e), that an employee must commence his action in district court within thirty days after the EEOC notifies the complainant that it has been unable to obtain voluntary compliance from the employer in resolving the unlawful employment practice. Employees who do not file charges with the EEOC within ninety days after the occurrence of an alleged discriminatory employment practice are barred by the Act from recovering damages or reinstatement. However, those female employees of Colgate who did file timely charges with the EEOC and who received from the EEOC a letter of probable cause are entitled to relief, as herein granted. 10. Colgate’s motion to stay proceedings pending arbitration was also overruled. This motion was predicated on the United States Arbitration Act, 9 U.S.C. § 3, and was overruled for the same reasons that Colgate’s motion to dismiss for failure to exhaust contractual remedies was overruled. 11. Colgate’s motion to have the Court consider each of the preceding defensive motions as separate motions, relating to plaintiffs’ claims for money damages on the one hand, and to their claims for injunctive relief on the other, was sustained. 12. The Court next overruled Colgate’s objections to the intervention of four additional plaintiffs. In permitting their intervention and the filing of the intervening complaint, the Court expressly made their claims subject to its rulings on Colgate’s defensive motions as herein set forth. 13. The last defensive motion filed by Colgate concerned an election of remedies by the plaintiffs to preclude pursuance of a remedy in this cause and through the grievance and arbitration machinery of the collective bargaining agreement. It would be unfair and inequitable to an employer to permit an employee who claims discrimination because of sex to proceed against the employer for damages and reinstatement, and at the same time or later proceed against the employer for damages or reinstatement or employment preferences, for the same acts, under the grievance and arbitration provisions of a collective bargaining agreement. Hence, the motion for election of remedies was sustained. By order dated September 9, 1966, the Court ruled that each named plaintiff in the action and each unnamed member of the class represented therein would be required to elect whether she would proceed with her claims, based upon alleged sex discrimination by Colgate or the Union, or whether she would proceed with her claims through the grievance and arbitration procedures of the collective bargaining agreement. The Court ordered further that each named plaintiff and each member of the class shall be deemed to have elected to prosecute her claims of alleged sex discrimination in this action unless she promptly filed with this Court and served upon counsel for Colgate and the Union, a disclaimer of any interest or participation in this action, in which case she could prosecute her claims through the grievance and arbitration machinery of the collective bargaining agreement. The Court also ordered that each named plaintiff and each member of the class represented herein who did not file and serve such disclaimer, and the defendant Union and all other persons to whom actual notice of this order and injunction came, were barred and enjoined from filing or prosecuting any claims, based on asserted sexual discrimination in violation of Title VII by Colgate, under the grievance and arbitation procedures of the labor agreement between Colgate and the defendant Local. This order and injunction are limited in their application to claims as may have arisen before and during the pendency of this case in this court and are not applicable to any such claims as may arise after the entry of judgment in this Court, It may be noted that no disclaimers were filed with the Court by female employees of Colgate. At the conclusion of the pretrial conference on September 1, 1966, defendant Colgate filed its answer to the complaint, the amended and supplemental complaint, the first intervening complaint and the second intervening complaint. And on September 16, 1966, Colgate filed a supplemental answer to the second intervening complaint. On September 7, 1966, defendant Union moved the Court to dismiss the complaint and cross-claim as to it. Ruling was reserved on this motion pending completion of the trial on the merits and is treated hereafter in this memorandum. In early September 1966, defendant Union filed its answer to the cross-claim and shortly thereafter, on September 21, 1966, while trial was in progress, moved the Court for leave to file an amended supplemental answer to Colgate’s cross-claim and for leave to file a cross-claim against Colgate. The motion was granted and Colgate’s answer was filed in due course. The trial of this action was conducted over seven nonsuecessive weeks commencing September 20, 1966, and ending December 1966. The Court having duly considered the evidence, the post-trial briefs and arguments of counsel, now makes the following findings of fact and conclusions of law based thereon: FINDINGS OF FACT Historical Background The Colgate-Palmolive Company is engaged and has been engaged for many years in the manufacture and sale of soaps and detergents, dentifrices, shaving creams, shampoos and other toilet preparations, and soaps and detergents for industrial purposes. The Company has domestic manufacturing plants at Jersey City, New Jersey, Kansas City, Kansas, Berkeley, California, and Jeffersonville, Indiana. All four domestic plants of the Company produce the same brands and kinds of products with minor exceptions. The managers of the four plants report to the Director of Manufacturing, Mr. Albert R. Tucker. The plant hourly employees- at the Jeffersonville plant are members of and are represented for collective bargaining by Local Number 15, International Chemical Workers’ Union. This Union does not represent any of the Company’s employees at any other domestic location. Although the employment levels at Colgate differ from time to time, this action concerns approximately 160 female employees and some 900 male employees. The work force at the Jeffersonville plant is divided into seventeen seniority groups, including the Maintenance Department, which in turn is divided into eight sub-groups constituted largely of skilled craftsmen, such as mechanics, electricians, carpenter-millwrights and the like. The Toilet Articles Division, which is the principal focus of this action, is divided into two departments called the Toilet Articles Making Department and the Toilet Articles Finishing Department. They are both under the supervision of Mr. Niles Schoening. The Toilet Articles Making Department is located in Building #40. The Toilet Articles Finishing Department, sometimes called “T. A. Finishing Department” or “T. A. Finishing,” about 400 feet long by 250 feet wide, is also located in Building #40 and includes some twenty production lines which have the function largely of filling tubes, bottles and other containers with products brought there from other departments, especially the Toilet Articles Making Department. There are included in the Toilet Articles Finishing Department the collateral functions of supplying lines with containers and ingredients and removing finished products to the Shipping Department. At the beginning of the war years, 1942-1945, there were very few female employees employed in the Jeffersonville plant. In 1942 the Company commenced manufacturing Toilet Articles in Jeffersonville and at that time placed women on light task jobs in the Toilet Articles Finishing Department. At the same time, because of the war and the demand for men in the military services, the Company began to employ women on other production jobs formerly filled by men. Many jobs were changed in content in such a way as to delete from them heavier physical work elements leaving only the lighter portion of the heavier jobs for the women to perform. These jobs were “tailor made” for performance during the war by females, so that they might perform the work at a steady pace and without undue strain. The proof (by a forewoman of that time) establishes that during those war years a weight limit for lifting or carrying by females was fixed at a maximum of twenty-five pounds and that when a job required the lifting or carrying of weights in excess of that amount, the job was so rearranged that the excessive weights could be handled by male employees. This was demonstrated by the introduction of the war-time notebook showing a number of job descriptions and the duties and functions deleted therefrom to make them susceptible to performance by the female employees of that time. Other jobs which involved lifting of twenty-five pounds or less which were formerly filled by men only were filled during the war years by women who received the same rate of pay as men on the job. As the men began to come back from the war and to their jobs, there was some concern to preserve certain light task jobs for female employees, and as a result of this endeavor on the part of the Union and the Company the female employees were given the exclusive right to perform the Finishing Labor jobs in the Toilet Articles Finishing Department, and in the same way certain jobs were preserved for the female employees in the Shipping Department, in R & I (Soap Warehouse) and in the Sanitation Department, and the Cafeteria. The General Labor jobs throughout the plant and the Finishing Labor jobs, except as noted above, were preserved exclusively for males, many of whom were returning servicemen. Separate seniority lists were made and kept, one for males and one for females. The labor contracts between the Company and the Union from the war years through the 1963 contract required these separate seniority lists. Although the 1963 contract expired on October 1, 1965, the Union and the Company were in negotiations for a new contract and the old one was continued in effect from day to day by mutual agreement so that it was being maintained in effect in November of 1965. The Seniority System The successive agreements between Colgate and the Union dealing with seniority, and the testimony concerning the practices and understandings of the parties in operating the seniority system, reflect a mutual response by the Company and the Union to the practical necessities of the operation of the Jeffersonville plant. Unlike many plants, the Jeffersonville plant does not produce the same products in the same proportions from week to week. A great variety of products is manufactured at the plant and there is a considerable variation from week to week in the particular products being manufactured and, therefore, in the particular jobs being performed in the plant. There are 542 job classifications in the plant, only about 300 of which function each week. It follows that, unlike the situation in most industrial plants, individual employees in most departments at Colgate do not have permanent jobs. Jobs are assigned and reassigned each week on the basis of the products which are expected to be produced during that week. Indeed, there are sometimes changes from day to day. The seniority system in effect at the Jeffersonville plant developed- as a method of providing job security and promotional opportunity based on seniority, while at the same time providing the flexibility necessary to meet the changing job requirements at the plant. While it is different than most seniority arrangements, its unique features are a function of the particular plant environment in which it was developed. As in many industrial plants, the jobs in the Jeffersonville plant are divided into a number of departments and the particular job to which an employee is assigned within a department depends upon his departmental seniority, i. e., the length of his service in that department. Unlike most plants, however, this assignment is not a permanent one but is made anew each week. This process is known as “crewing up.” The means by which employees obtain recognition of their seniority is the “preference sheet.” In some departments these were called “choice sheets” prior to the current agreement. The difference is irrelevant. Each employee is expected to file, or to have on file, a sheet showing the jobs and the shifts he .prefers in order of his preference. During each week each department in which this system is used learns which jobs will be scheduled for the following week and jobs are then assigned, within the department, by assigning employees in accordance with their preference sheets, giving the prior choice to the senior employee. The system is not used in the Maintenance Department and the Power Plant where the manpower requirements do not fluctuate from week to week and specialized skills are involved. The procedure is simply to put the preference sheets in a book in order of departmental seniority, with the employee having the highest seniority first, the employee with the second highest seniority second, etc. The person making the assignments uses the schedule showing the jobs which must be filled and then proceeds through the seniority book, assigning the employees in order of their seniority to the available jobs, giving each employee in turn the then vacant job which is highest on his preference sheet. The most senior employee thus gets whatever job he wants of the jobs to be worked in a particular week. If only one employee is to work that job, the second employee cannot have that job even if he lists it first on his preference sheet, but will obtain his next choice. The process continues until either all of the jobs are filled or the list of employees having departmental seniority is exhausted. If, when a particular employee is reached in this process,,all of the jobs for which he has indicated a preference have been filled, the employee is assigned to the highest rated job then vacant on the day shift. If all jobs on the day shift are filled, he is assigned to the highest rated job on later shifts. The same procedure is used when there is no preference sheet on file for a particular employee or if he files a blank preference sheet. In other words, each employee is assumed, unless he indicates to the contrary, to prefer jobs in order of their rates and to prefer work on the first shift to work on other shifts. An immaterial variation exists in the T. A. Finishing Department as to Finishing Labor jobs, which are assigned “from left to right” rather than in order of pay scales. Since there are only two rates of pay for Finishing Labor jobs, this difference is of minimal importance. An employee will be assigned, on the basis of this assumed preference, to jobs which he has not indicated on his preference sheet if all of the jobs which he has indicated have been filled by more senior employees. If the number of employees having departmental seniority is the same as the number of jobs to be filled within a department in any week, this is the end of the process. Further adjustments must be made, however, if there are more employees with departmental seniority than there are jobs in that department in a particular week. This problem is met in different ways, depending on the balance of employees and jobs in other departments. If, in another department, the converse has occurred, i. e., there are more jobs than employees with departmental seniority, employees may be transferred to that department from any one of seventeen departments depending upon the departmental seniority these may have in the department increasing its needs. If there are no such specific jobs but there is labor work to be done in the plant, the excess employees are assigned as “surplus labor.” Preference sheets are concerned with surplus labor in that they contain a place to allow the employee who may be designated as “Surplus Labor” a choice of shift. Preference sheets can be filed by an employee with respect to jobs in departments in which they hold departmental seniority, and by Surplus Labor for choice of shift. If they are “forced out” of that department because of the unavailability of work, their assignment is made by the Company in its discretion and may be governed by preference sheets as to choice of shift. The contract provides, in Section 6(c), that employees classified as “Surplus Labor” will have no choice of job. If there are compensating vacancies, or Surplus Labor jobs available, this ends the problem. If there is no such work available, then there is a surplus of labor in the plant as a whole and some employees must be laid off. When this situation occurs, the contract provides that layoffs will occur in the inverse order of plant seniority — not departmental seniority. Hence, when there is an excessive number of employees available in relation to the work available, the employees with the least seniority in the entire plant are laid off. If those employees happen to be the employees with the lowest departmental seniority in the department in which operations are being reduced, then the situation resolves itself: those left over after that department “crews up” in the order of departmental seniority are laid off. If there are, however, employees in other departments who have lesser plant seniority, it is those junior employees who are laid off — even though in their departments there is no excess of labor over jobs. Their layoff, in turn, creates vacancies which are then filled with the surplus employees from the department in which forces are being reduced. In the terminology of the collective bargaining agreement, those employees are “forced in” to the other departments. In the converse case, where there are more jobs in a department than employees having seniority in that department, the jobs are “open” and employees in other departments may bid for transfer to the vacant job on the basis of their departmental seniority in the department to which transfer is sought. In the absence of such bids, the vacancies are filled by employees who are not needed in other departments, if there is such a surplus of employees. If there are no bids for the vacant jobs, and no surplus in other departments, then the jobs must be filled directly by new employees. All of the above relates to the so-called “Monday-assigned” jobs — the “crewing up” for the week based on the anticipated work requirements during that week. There are also changes in jobs during the week as a result of unanticipated developments. Production requirements can change unexpectedly during the week, going either up or down. These changes are frequent. And there is, inevitably, some unexpected absenteeism. Preference sheets have no role in the assignment and reassignment of employees to jobs occasioned by changes in production requirements or by absenteeism during the week. If a during-the-week change results in vacancies, i. e., a job is either “open’' because the assigned employee is absent or “nonscheduled” because it was not originally scheduled to be worked, employees within the department in which this occurs can exercise their departmental seniority to obtain the job in question. The contract limits this right, however, and an employee can exercise his departmental seniority in such circumstances only to improve his job rate and only after other employees who may have been affected by the change causing the vacancy have been utilized. If the change results in an excess of employees, as where a scheduled job is closed down during the week, the affected employees may exercise their departmental seniority with respect to other jobs on the shift in the department. Extra employees may be transferred to other departments where work is available. Extra employees may be transferred to other departments where work is available if they are youngest in seniority in the department from which they are being transferred. The labor agreement provides that employees can be sent home “if an emergency breakdown, rail embargo or any other unforeseeable situations occur * * *,” but then it is on the basis of departmental seniority and not on the basis of the employees affected. The only provision to pay for the balance of the week is in the event of layoff. The only employees that can be laid off are those with the least plant seniority of all the employees. The employees affected in a department during the week as a result of changes would not normally be the youngest employees in the plant. The system has other refinements, such as a series of rules as to how departmental seniority is calculated when an employee transfers or is forced into another department and a series of rules as to rafes to be paid when assignments are changed, but the above description summarizes the relevant parts of the system. The system, as so described, is subject, however, to two major qualifications. Those two qualifications, and their interrelationship, create the issue in this case. ■ The first major qualification is that the system, as described, operated under the 1963 agreement, and prior agreements between Colgate and the Union, in two separate compartments. As mentioned previously, certain jobs within the plant were exclusively female jobs and male employees were not eligible for assignment to them. Other jobs were exclusively male jobs and female employees were not eligible for assignment to them. There were no “common” jobs and the two compartments operated independently of each other in so far as the application of seniority was concerned. Within the female compartment, the system operated as described above but only female employees were considered and only the jobs set aside for female employees were filled. Within the male compartment, also, the system operated as described above, but the comparison of seniority was solely between male employees and the jobs to be filled were only the “male” jobs. The use of preference sheets, the procedures used with respect to “force ins” and “force outs” when there was either an overage or a shortage of labor in a particular department, the rule for layoffs in the plant — all of these are operated separately for men, who were considered only for the male jobs, and for women, who were considered only for female jobs. One result of this separate application of the seniority system to males and females was that it was possible, and indeed often occurred, that female employees would be laid off on the basis of their plant seniority as compared to other female employees, while male employees with less plant seniority were retained. (This is in fact what happened in the layoffs in 1965 which gave rise to this lawsuit.) The opposite result could also occur, and did, although not since Title VII of the Civil Rights Act of 1964 became effective. If there was a reduction in the work available for male jobs, males could be laid off on the basis of their plant seniority as compared to other males, while females with less plant seniority were retained. The distinction between male and female jobs was set forth in the 1963 agreement. Appendix L to that agreement defined a category of jobs known as “Finishing Labor.” A Finishing Labor job was defined as any job in which a woman can physically perform all the duties, with specific examples to give the definition content. Appendix L further restricted Finishing Labor jobs to ten departments. Finishing Labor jobs were classified, for pay purposes, under a different system than the system used for classifying other jobs, which were known as “General Labor” jobs. Finishing Labor jobs were classified in grades 1 through 4. General Labor jobs were classified in lettered classes from C up through U. The highest rate for a Finishing Labor job under the 1963 agreement was identical with the lowest rate for a General Labor job. Despite the statement in the 1963 agreement that a Finishing Labor job was one in which a woman can physically perform all the duties, the division between male and female jobs was not identical, under that agreement, with the division between Finishing Labor and General Labor jobs. As stated previously, female employees were restricted to Finishing Labor jobs in five departments: Toilet Article Finishing, Shipping, R & I (soap warehouse), Sanitation, and the Cafeteria. Finishing Labor jobs in those five departments constituted the female compartment. All the remaining jobs constituted the male compartment. The male compartment thus consisted of all of the General Labor jobs plus the Finishing Labor jobs in six departments. Both Finishing and General Labor jobs in those departments were assigned in accordance with male departmental seniority. Layoffs from the plant were made separately from male jobs and female jobs on the basis of male and female seniority unrelated to the distinction between General Labor and Finishing Labor jobs. In the “new” agreement, effective April 25, 1966, the contractual distinction between male and female jobs was abandoned. The distinction between Finishing Labor and General Labor jobs was, however, retained. The definition of Finishing Labor was changed so as to describe such jobs as “light task” jobs, rather than as jobs a woman could perform, but the specific content remained the same. The contractual requirement that male and female employees be considered separately for male and female jobs was eliminated. Instead, Colgate considered female employees as eligible only for Finishing Labor jobs, with the exception of ten General Labor jobs open at that time. As a result of the contractual change, all jobs in the plant became open to males. In considering the assignment of male employees, the seniority system as described above is applied with respect to all of the jobs within the bargaining unit, both General Labor jobs and Finishing Labor jobs, whether those jobs were previously classified as male or female jobs. Female employees, on the other hand, were not considered for all jobs but, with the exception of ten General Labor jobs, only for Finishing Labor jobs. The basis for this distinction is claimed by Colgate to be a determination that all General Labor jobs, except for these ten, involved the lifting or carrying of weights in excess of thirty-five pounds. Originally, two General Labor jobs, in the T. A. Finishing Department, were made available to female employees by Colgate, even under the “new” agreement. As a result of grievances processed by the Union because of the refusal of Colgate to assign General Labor jobs to female employees in the T. A. Finishing Department, two additional jobs in that department were made available to female employees. The remaining General Labor jobs made available to. female employees — three in the Toilet Soap Department and three in the Spray Soap Packaging Department — were made available as the result of Company assignments when there was an excess of female labor in the T. A. Finishing Department. No weight limitation is contained in the collective bargaining agreement. The Union which negotiated that agreement has protested the limitation and seeks, by its cross-complaint against Colgate, to have such limitation set aside as violative of Title VII of the Civil Rights Act. Determination of the propriety of the 35-pound weight limitation under the collective bargaining agreement, wholly apart from the provisions of Title VII, must necessarily be made by the Court in light of its order of September 9, 1966, requiring female employees to elect whether to process their claims under the collective bargaining agreement or in this suit. Under the agreement, claims may be processed as grievances which arise from disagreements “over the interpretation, performance, or application” of the terms of the agreement. Under Title VII this Court has jurisdiction to adjudicate claims of violation of that Title. By its order the Court has also required that claims as to the proper “interpretation, performance or application” of the collective bargaining agreement be adjudicated in this suit, in so far as they relate to the denial to plaintiffs of jobs to which, were they males, they would be assigned. As stated, the agreement contains no provision specifying a weight limit on jobs to which female employees may be assigned. Nor does the “new” agreement limit female employees to Finishing Labor jobs. The justification for such a limitation, both under Title VII and the agreement, therefore must be found in the provisions relating to the ability of employees to perform jobs to which they seek assignment under the seniority provisions of the agreement. It is the “ability” provision which constitutes the second major qualification to the seniority system described above. The qualification is a disputed one. The agreement provides that assignments shall be made, both within a department on the basis of departmental seniority and in cases of layoff and reemployment in accordance with plant-wide seniority, “consistent with the ability to perform the work required.” Certain witnesses testified that, despite this contractual limitation, assignments were made strictly in accordance with seniority, and without consideration of individual variations in the ability to perform the required work, except in cases of known and obvious physical limitations, such as the absence of a limb. Other witnesses, to the contrary, testified that every assignment was made on the basis of an evaluation that the employee being assigned was able to perform the work required. The testimony with respect to this issue largely related to the assignment of jobs under the “old” agreement, when the jobs were either exclusively male or female. The Court finds that, under the prior agreement, the physical ability of individual employees to perform a job was not generally taken into account in the assignment of jobs. Assignments were made on the basis of seniority, without regard to individual qualifications, except in assignments to skilled trade or craft jobs and where an individual had apparent physical defects making him incapable of performing the work. Concededly this sometimes resulted in the assignment of employees to jobs which they could not perform efficiently or as efficiently as other employees. But it was the practice in effect under the “old” agreement and, as such, Colgate felt obliged to continue it under the “new” agreement. It is this fact which created Colgate’s problem with the passage of the Civil Rights Act of 1964 and the consequent revision of the collective bargaining agreement to eliminate the categories of exclusively male and exclusively female jobs. Prior to that time it could, consistently with the maintenance of reasonable efficiency, assign men to jobs requiring heavy lifting without regard to individual ability because most, if not all, men in its work force could perform such jobs efficiently. And it could, equally, assign female employees to female jobs without regard to their individual physical capacity since those jobs did not require the lifting or carrying of heavy weights. With the elimination of the separate categories of male and female jobs, Colgate felt it necessary to take measures to insure continued efficiency. In order to meet the necessities of production Colgate introduced a limitation upon.the jobs available to female employees as a class, based upon their abilities as a class. Jobs which most female employees could be expected to perform efficiently and without undue risk were made available for assignment to women without regard to their individual abilities. Jobs which most female employees could not be expected to perform efficiently and without undue risk were barred to all female employees, without regard to their individual abilities. This decision was not made for invidious motives but solely to meet the situation created by the elimination of the separate categories of male and female jobs. Layoffs and Filing of Charges with EEOC On November 12, 1965, and a week later on November 19, 1965, a total of twenty-eight females were laid off by Colgate, and men younger in plant seniority were kept at work on jobs manned exclusively by men in accordance with the labor contract. This action ultimately precipitated this lawsuit which was filed on March 30, 1966. Six others, laid off on April 2, 1965, were kept on layoff in November 1965 and until May 16, 1966, when they were recalled with that as their new seniority date as fixed by the labor agreement. Three others laid off April 2, 1965, were not recalled at all because they had lost their rights of recall by the terms of the labor agreement. A number of the females laid off (fifteen including the plaintiff, Georgianna Sellers, who testified about it), signed a grievance upon being given the antecedent notice of layoff. This grievance was handed by the females to their Union bargaining committeewoman, Mrs. Sarah Walker. The grievance protested the layoff as being a discrimination against them in violation of title VII of the Civil Rights Act of 1964. This grievance was never filed with the Company because, as it was proven, the President of the Union told the Bargaining Committeewoman that the grievance did not fall within the purview of the grievance and arbitration mechanism of the contract then in effect. On or about November 15, 1965, fourteen of the women who had been laid off, upon the advice of the Union and its counsel and with their assistance and encouragement, filed charges of discrimination against Colgate with the Equal Employment Opportunity Commission. One more of them (Thelma Bowe) subsequently filed such a charge with the EEOC on or after December 6, 1965. Subsequently the women were told that the grievance which had been submitted to the Union would not be processed by the Union. Later the Union did file grievances with the Company under the new contract. For facility the plaintiffs who filed such charges are referred to as the “Charging Plaintiffs” and the plaintiffs who did not file such charges are referred to as the “Non-Charging Plaintiffs.” Of the fifteen Charging Plaintiffs, only twelve are named as plaintiffs in this action. There are twenty Non-Charging Plaintiffs in the complaints (eight laid off April 2, 1965, and twelve laid off November 12, or 19, 1965). In addition, there were two women laid off who filed neither a charge nor a suit, and three who filed a charge but no suit. The following chart will disclose at a glance the status of each of the named plaintiffs as found and now confirmed as proper by the Court: Charging Plaintiffs — 12 Bowe(a) (b)Moore Bartle (Sturgeon) Young Casey Boothe Jackson Huff Blakely (Davis) Sellers Stum Whittinghill Non-Charging Plaintiffs — 16 Kirchgessner Briscoe Cochran Whitman Bell Franklin <b> Spriggs Pangburn Stumler <b> Collier Wells LaPaille (c) Jakubowski Bussey Hambough <c> Muncy Non-Charging Intervening Plaintiffs — 4 Eva Hall <b> Shirley Hall <a> Helton (D Shroyer <a> (a) EEOC charge filed on or about 12/6/65. Acknowledged by EEOC. (b) Laid off 4/2/65. Rehired 5/16/66, with that as new seniority date. (c) Laid off 4/2/65. Filed EEOC charge too late — 5/18/66. (a) Laid off 4/2/65. Recall rights lost. Not rehired. The Court finds the following chronology to be accurate and to present at a glance the sequence of significant events in this controversy: July 2, 1964 Passage of Title VII of the Civil Rights Act of 1964. April 2, 1965 Layoff of eight female employees — five named intervening plaintiffs and one original complainant, Hambaugh. April 16, 1965 Female employee laid off with plant seniority of May 9, 1947, while male employees retained with plant seniority of April 27, 1964. April 23, 30, 1965 Female employees laid off with plant seniority of May 7, 1947; male employees with plant seniority of January 21, 1963, recalled. July 2, 1965 Effective date with respect to Colgate of Title VII of the Civil Rights Act of 1964. July 5, 1965 Colgate recalled male employees with seniority as junior as February 4, 1963, failing to recall females still laid off with seniority as senior as May 7,1947. August 2, 1965 - Colgate recalled male employees with seniority as junior as April 27, 1964, failing to recall females still laid off with seniority as senior as May 7,1947. August 31, 1965 - Presentation by Colgate to Union in negotiations, of proposal to “discuss effect of Title VII on contract provisions and work out necessary modifications in those sections which are affected by the new law.” September 1, 1965 - Presentation by Colgate of desexing proposals in full, written, complete and formal text. October 1, 1965 Original expiration date of the labor agreement preceding the current one. November 9, 1965 Grievance complaining of layoff given to Union bargaining committeewoman. November 12,19,1965 Layoff of 28 female employees of whom 12 filed charges with the EEOC and of whom 16 did not file charges with the EEOC. November 26, 1965 Filing of charges by 11 named plaintiffs and three other female employees. (On or about December 6, 1965, plaintiff Bowe filed charge.) February 24, 1966 Strike by employees of Colgate’s Jefferson-ville plant. March 30, 1966 Filing of original complaint by five charging plaintiffs and by eight non-charging plaintiffs. (Summons served April 7, 1966.) April 1, 1966 Date of notice from EEOC to 11 of the named plaintiffs who filed charges, that it had been impossible for the EEOC to undertake or conclude conciliation and the advice that they might, within 30 days of the receipt of that notice, institute a civil action in the appropriate federal district court. April 19, 1966 First attempt at conciliation by EEOC. April 24, 1966 Informal agreement upon terms to end strike. April 25, 1966 - Signing of new contract and return of strikers to work, including all but three of the female plaintiffs laid off in November 1965. May 16, 1966 - Recall of the three remaining plaintiffs laid off in November 1965 and six plaintiffs on layoff since April 2, 1965, with seniority starting on the recall date for the latter six. Before adverting to other sections of these findings, the Court should dispose of one peripheral matter suggested in the arguments and trial. It was shown that Colgate over the years and during 1965 and 1966 relied heavily upon the personnel records and facilities of the Indiana Employment Security Division and especially those of its office in New Albany, Indiana. On several occasions in arguments and in evidence there were implications that plaintiffs would show something in the nature of a conspiracy or connivance between Colgate and that office, or between the Union and that office, or among all three of them so as to discriminate against women and in favor of men in Colgate’s hiring practices. It appears that the New Albany office by its nature and functions, had and has access to a large labor pool and that it attempts to secure employment for individuals from it. The evidence discloses that Colgate, some three months in advance of actual need, had and has to forecast a labor budget of the numbers and types of jobs likely to be in operation and the number and types of employees probably needed to fill those jobs. In consequence, during 1965 and 1966 Colgate’s custom was to advise the New Albany office of the Indiana Employment Security Division of the character of jobs to be performed. After the effective date of Title VII of the Civil Rights Act of 1964, and especially during the surge of employment at the plant following the strike, Colgate indicated to that office that it needed to fill a specified number of light task jobs and a stipulated number of heavy task jobs without any reference to the sex of applicants to be referred. • The heavy task jobs were described as ones requiring strenuous physical effort and heavy lifting. In consequence, the New Albany office referred males appropriate to the heavy task jobs available. In point of fact, there were thirty-four females recalled and hired by Colgate immediately after the strike was over and a short time later six more females were employed so that actually there were forty females recalled or hired by Colgate shortly after the strike. These represented some thirty percent of the female work force at Colgate. Then in late September 1966, Colgate hired seven more females. These seven came to Colgate on reference from the New Albany office of the Indiana Employment Security Division. Some point was sought to be made by the plaintiffs of the fact that some 200 men were employed by Colgate in view of the necessity for increased production after the strike ended. However, it is noted that these 200 men represented a smaller proportion of the male working force at the plant than the percentage of female employees hired and recalled in relation to the total female work force. The evidence in this case discloses without any possibility of doubt that there was never any conspiracy or connivance or any type of invidious nexus between the New Albany office of the Indiana Employment Security Division and Colgate or between that office and the Union or between Colgate and the Union or among all three of them. All three are found guiltless in this regard. There are allegations in the plaintiffs’ various complaints tending to imply some type of joint action between the Company and the Union aimed at discrimination on behalf of the male employees against the female employees. The evidence did not support such suggestion. On the contrary the evidence convinces the Court that no such evil or illegal cooperation existed and it is found that there was none. Negotiations, Contracts and Strike It has been the custom at the Jeffersonville plant for many years for representatives of Colgate and representatives of the Union to begin negotiations for a new contract a month or two before the expiration of the contract then current. The teams of negotiators usually meet at the plant for eight hours a day, five days a week, until a contract is achieved and this process takes several months for each contract. The contract preceding the present one showed its effective dates as October 1, 1963 to October 1, 1965, but, as mentioned previously, it was continued in effect pending negotiation of a new contract. Some of its provisions are of interest in this action. Section 6 of the contract entitled “Seniority” provides in part: p. 8(a) Departmental seniority shall prevail consistent with the ability to perform the work required. In case of crew reductions, except for emergencies specified in paragraph (k), employees will be placed on jobs within their department in accordance with their departmental seniority, consistent with ability to perform the work required. ****** p. 10(d) The seniority practices in effect in Toilet Article Making, Toilet Article Finishing, Power Plant, and Maintenance Departments during 1959 will be continued, and nothing in paragraphs under (a) will be construed to abrogate such practices. ****** p. 10(f) Plant layoffs and re-employment shall be made in accordance with plantwide seniority, consistent with the ability to perform the work required, in the two seniority classifications listed below: 1. Male labor in all departments. 2. Finishing labor in the Toilet Article Finishing and Shipping Departments. (Also included are female labor in Sanitation, and female clerks.) The old contract provided numerous interrelated and contingent and corollary provisions which, together with plant practices which are recognized in the contract, result in the unique system of seniority and job assignments discussed above, and while they must be borne in mind in the decision of this case, a detailed recital of them would present insuperable obstacles here of time and space. Appendix “L” to that contract contained certain provisions of relevance: I. p. 70 Jobs now classified as Finishing Labor Jobs will remain Finishing Labor and General Labor jobs will remain General Labor. II. l p. 70 Finishing Labor is defined as any job in which a woman can physically perform all the duties, such as: feeding, sorting, weighing, inspecting, packing, light machine tending, stencil cutting, or cleaning, on which a satisfactory pace may be maintained’ without undue strain. T. A. light machine tending will be defined as such tending duties as starting and stopping filling equipment and removing minor jams and cleaning up after minor jams. An example of this T. A. light machine tending would be the tube feeders on Dental Cream lines and the carton tenders in Toilet Articles. II.3 p. 71 Women will be employed only on Finishing Labor jobs in the following Departments with the exception of clerical jobs: a) Toilet Article Finishing b) Shipping Department c) R. & I. (Soap Warehouse) d) Sanitation (Janitress) The sentence just quoted above has always been interpreted to mean that “Only women will be employed on Finishing Labor jobs in the listed departments.” With Title VII of the Civil Rights Act of 1964 becoming effective July 2, 1965, Colgate was prepared to submit proposals to the Union in the scheduled negotiations for a new contract to supplant the previous one extending until October 1, 1965. The first negotiation between Colgate and the Union occurred on August 31, 1965, and at that meeting Colgate did submit to the Union proposals to eliminate, in the new contract, all distinctions and differences based upon sex. The neologism “de-sex” was used as a brief and handy verb in referring to the proposed changes from the old contract to the new contract. The Company’s proposals were presented in general terms and not in suggestions of detailed and exact amendments and there was no acceptance by the Union. On the very next day, September 1, 1965, another session of negotiations took place and on that day the Company presented to the Union a complete set of pro