Full opinion text
MEMORANDUM AND ORDER ALLEN SHARP, Chief Judge. The plaintiffs in this case alleged that the defendants, Jewel Food Company (Jewel) and Retail Meat Cutters Union Local 320 (the Union) had discriminated against them on the basis of their sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII). The plaintiffs had also alleged claims against the Union for breach of its duty of fair representation under Section 301 of the Labor Management Relations Act, 29 U. S.C. § 185. The district court granted summary judgment in favor of defendants on all claims against both defendants. On appeal, the Seventh Circuit Court of Appeals reversed the lower court’s ruling on all Title VII claims, affirmed the entry of summary judgment in favor of the Union on plaintiffs’ Section 301 claims and remanded the case for further proceedings. Babrocky v. Jewel Food Co. & Retail Meat Cutters Union, Local 320, 773 F.2d 857 (7th Cir.1985). The plaintiffs’ Title VII claims were tried by the court without a jury in Hammond, Indiana, on July 28, 29 and 30, 1986. The parties have filed briefs on the evidence and law in this case. This memorandum and order contains the findings of fact and conclusions of law thereon pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. I. Jewel is a grocery store chain that has stores in the Northwest area of Indiana and Illinois as well as other States. Each store had a meat department that was referred to as the Meat Market. The employees in the Meat Market were members of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. There were four Local unions affiliated with the Amalgamated Meat Cutters Union that represented employees in the retail meat industry in Northern Indiana and Northern Illinois. Local 350 represented employees in Retail Meat Markets in Lake and Porter Counties in Indiana and in Calumet City and Lansing, Illinois. In January 1979, Local 350 merged with Local 320 which represented employees in Retail Meat Markets in Chicago and Cook County, Illinois. Local 320 was the surviving union when the two Locals merged. At the time of the merger between Locals 320 and 350, the Union indicated to its membership that it would try to narrow the gaps between the Collective Bargaining Agreements affecting the two Locals which contract differences included dates of expiration, dates for receiving cost of living increases, wrapper ratios and pricing off premises. In 1981, Local 320 which then represented the South area of Chicago and Lake and Porter Counties in Indiana merged with Local 546 which represented the Greater Chicagoland area and northern suburbs and Local 612 which represented the Joliet area of Illinois. The purpose of the merger was to secure greater strength at the bargaining table and reduce administrative costs for the Union. Local 546 was the surviving Local union. The Collective Bargaining Agreements between the Union and the various chain stores involved were printed in booklet form and distributed to the Union membership. These booklets contained the generic provisions for all chain stores although there were minor differences in the contracts between the individual chain stores that were not incorporated into the booklet. The business agents and other Union officials knew the difference in the contracts and explained those differences when the booklets were handed out to the Union membership. Ratification of the Collective Bargaining Agreements was by vote of the union membership, not just the Union officers or officials. Under the Collective Bargaining Agreement between Local 350 and various Retail Meat Markets, including the Jewel stores in Northern Indiana, in effect from November 5, 1972 through November 3, 1973, there were four job classifications for employees in the Meat Market — meat wrapper and three categories of meat cutters which included Head Meat Cutter, Journeyman Meat Cutter and Apprentice Meat Cutter. To be an Apprentice Meat Cutter, an individual did not have to possess any special skills, the only requirement being that the individual had to be 16 years of age. After successfully completing a 3 year apprentice program, an Apprentice would become a Journeyman and receive Journeyman wages. The contract provided that Apprentices could be employed at a ratio not exceeding 3 Apprentices for each 7 Journeymen employed by the Employer. The Head Meat Cutter was a Journeyman who was responsible for the efficient management of the Meat Market. The duties of a meat wrapper was limited under the terms of the Collective Bargaining Agreement to “[wjrapping and sealing, scaling, pricing, labeling, displaying and stocking, boarding, boating and traying products provided they do not scrape or trim products, slicing luncheon meats, and slicing cheese if handled in the Meat Department.” The contract further provided that there would be no part-time wrapper classification and did not contain any ratio provision of wrappers to meat cutters. Seniority was determined for employees covered by the Collective Bargaining Agreement by length of continuous service with the employer and the contract specifically provided that the “in-service” date of Apprentice, Journeymen and Head Meat Cutters would not change when an individual progressed from Apprentice to Journeyman or was demoted from Head Meat Cutter to Journeyman. Layoff and recall after a layoff were determined by the seniority date of the employees within a classification. In the meat cutter classification, Apprentices had the lowest seniority. The contract also contained the various wage rates for the classifications. Finally, Section. 9.1 of the Collective Bargaining Agreement provided that Local 350, if requested, would furnish men insofar as available to fill open positions. The Collective Bargaining Agreement between Local 350 and the Retail Meat Markets within its jurisdiction as well as the specific Collective Bargaining Agreement between Local 350 and Jewel for the period covering October 30, 1977 through October 25, 1980, contained basically the same provisions as the earlier Collective Bargaining Agreement described above. The contract again provided that there was no part-time wrapper classification and that Local 350 would, if requested, refer men or people for available work. The contract contained no wrapper to meat cutter ratio. The Collective Bargaining Agreement between Local 350 and Jewel also included a Service Delicatessan Supplement which covered 2 other classifications: full-time deli employees and part-time deli employees. That Supplement also provided that personnel hired in the Meat Markets shall not be assigned to do work in the deli department and that regular Meat Market employees engaged in deli work were to get wages as provided in the Master Collective Bargaining Agreement. Further, the Supplement provided that present Meat Market personnel would not be reclassified or laid off due to hiring deli employees. The Collective Bargaining Agreement between Local 320 and the Retail Meat Markets within its jurisdiction covering the period from September 29, 1974 through September 24, 1977 contained the same basic provisions as the Collective Bargaining Agreements described above with one important additional provision. The Local 320 contract contained a ratio provision for wrappers to meat cutters and specifically provided that “[wjrappers may be employed at a ratio of one wrapper for every four meat cutters (journeymen and apprentices) ...” After Locals 320 and 350 merged, Local 320 negotiated a Collective Bargaining Agreement governing the Retail Meat Markets in Lake and Porter Counties in Indiana as well as Calumet City and Lansing, Illinois covering the period from October 28, 1979 through April 24, 1982. This Collective Bargaining Agreement contained the same four job classifications as noted in the earlier contracts and also added a Part-time Wrapper classification although it limited that classification to no more than 1 part-time wrapper per store and imposed other limitations on the classification. This Collective Bargaining Agreement did not contain any wrapper to meat cutter ratio unlike the earlier contracts involving Local 320. The contract raised the minimum age for Apprentices to 18 years of age and also contained a new provision at Section 9.8 on hiring practices which provided as follows: Section 9.8 Hiring Practice When the Employer needs additional employees he shall give the Union equal opportunity with all other sources to provide suitable applicants. Therefore, when openings occur the Employer shall first notify the Union that a vacancy exists. The Union shall refer applicants to the Employer from their records of available and qualified members who are seeking employment. The Employer shall give such applicants equal consideration but shall not be required to hire those persons referred by this process. Local 320 apparently renegotiated its Collective Bargaining Agreement with the Retail Meat Markets within its jurisdiction in 1980 prior to the expiration of the contract described immediately above. The Union membership was notified of the changes by a Contract Proposal Settlement dated August 28, 1980. The members of Local 320 were also informed that their representatives had been successful in negotiating the same contract for the former members of Local 350 who were employed by Jewel, A & P Tea Company and Eagle as the contract in effect for Local 320 when ratified. The letter then explained that this meant that they would get the same costs of living increase on September 21, 1980 instead of October 8, 1980 and that the expiration dates on the contracts and working conditions would be the same for all Local 320 chain store members. The evidence in this case contains the booklet form of the Collective Bargaining Agreement between Local 320 and the Retail Meat Markets within its jurisdiction for the period covering September 21, 1980 through July 24, 1982 and its Delicatessan Supplement, as well as the specific Collective Bargaining Agreement between Local 320 and Jewel covering the same time frame. Both of these contracts contain the same basic provisions as the earlier Collective Bargaining Agreements discussed above and the provisions contained in these two contracts themselves are basically the same with one important difference. Both contracts contain the following paragraph: (D) Wrappers Full-time wrappers may be employed and their duties shall be confined to slicing luncheon meats and sausage; clean-up work in the market; stocking cases; and wrapping, scaling, and pricing. Wrappers may be employed at a ratio of one wrapper for every four meat cutters (journeymen and apprentices) under a formulation of using the total complement of meat cutters in the local union to determine the number of wrappers an Employer may employ. Wrappers shall not use knives, saws, grinders, cube machines or other mechanical equipment used in the preparation or processing of fresh meats or poultry other than as specified above. A quarterly report covering the number of wrappers employed in relationship to the number of meat cutters (apprentices and journeymen) shall be furnished the Union. However, the Jewel contract contains an additional paragraph immediately following the above-quoted paragraph which provides as follows: The above language regarding Wrapper/Meat Cutter ratios does not apply to employees within the former jurisdiction of Local 350 (namely Lake County, Indiana, Calument City and Lansing, Illinois). These areas, as in the past, may employ wrappers without regard to Wrapper/Meat Cutter ratios. The Collective Bargaining Agreement between Local 320 and Jewel was signed April 30, 1981. In a letter dated December 21, 1980, Jewel confirmed its understanding with Local 320 that the wrapper to meat cutter ratio contained in the Master Contract did not apply to employees in Lake County, Indiana and Calumet City and Lansing, Illinois, the former jurisdiction of Local 350 and that wrappers “may, as in the past, be employed without regard to wrapper/meat cutter ratios.” The Collective Bargaining Agreement and Delicatessan Supplement between Local 546, after its merger with Locals 320 and 612, and the Retail Meat Markets in its jurisdiction covering the period from July 25, 1982 through July 20, 1985 again contained the same basic provisions as the Collective Bargaining Agreements discussed above including a wrapper to meat cutter ratio of 1 wrapper to 3 meat cutters. However, it too contained an exclusion for employees within the former local 350 jurisdiction as follows: It is further understood, and the parties hereby stipulate and agree, that the aforesaid language regarding ratios does not apply to employees within the former jurisdiction of Local 350 namely Lake County, Indiana, Calumet City and Lansing, Illinois. These areas, as in the past, may employ wrappers without regard to Wrapper/Meat Cutter ratios. This Collective Bargaining Agreement also contained more extensive provisions regarding part-time wrappers including provisions that all part-time wrappers must be laid off before any full-time wrappers and before any Journeymen are laid off. In the negotiations between Local 546 and the Retail Meat Markets within its jurisdiction with respect to the Collective Bargaining Agreement covering the period from 1985 through July 30, 1988, the employers bargained separately. A letter to all Local 546 members dated December 6, 1985 together with a document attached thereto entitled Jewel/Dominick’s Meat Department Settlement Offer Facts notified the union membership of the proposed changes in the new Collective Bargaining Agreement with Jewel and Dominick’s. An additional provision was to be added to the contract regarding job transfers which was described as follows: Job Transfer: Wrappers desirous of transfer to Apprentice Meat Cutter status shall make their desire known to the Company, in writing, and such employee shall be given equal consideration for such vacancy along with the Apprentice applicants. There shall be no reduction in pay to any wrapper as a result of entering this Apprenticeship program, e.g.. Wrapper’s rate of pay shall apply until such time as the Apprentice Meat Cutter rate exceeds the Wrapper rate, at which time the Apprentice Meat Cutter rate shall apply. The Wrapper commencing the Apprenticeship Program shall have a ninety (90) day trial period. Said trial period shall not jeopardize the employee’s former classification or seniority except such wrapper transferred to apprentice classification will have seniority for the purposes of layoff and recall from the date of such transfer. Eagle, another chain of grocery stores, first proposed this additional provision in its negotiations with Local 546 when it started its negotiations in March 1985 and the Union had no problem with the proposal since it was the union position anyway. The seniority provisions contained in all of these Collective Bargaining Agreements were the same and the seniority system was bona fide. Seniority was determined by the time an employee was employed under a particular job classification. Under the Collective Bargaining Agreements, there were three basic job classifications in the Meat Market — head meat cutter, journeyman/apprentice, and wrappers — and those three job classifications were reasonably related to the different job duties of each. Thus, if an employee changed job classifications, i.e. from meat cutter to wrapper, or transferred into a Meat Market classification from some other position, that employee’s seniority date for purposes of layoff and recall would be the date that the employee commenced work in the new classification. The hiring decisions at Jewel were made by the Personnel Manager or Department for Jewel. If a position was open at a Jewel Store, the Personnel Manager would contact job services for referrals and would also get applicants by word of mouth, personal recommendation from an employee of Jewel or walk-ins. One individual who obtained a job with Jewel went through an equal opportunity employment office. Jewel did not post notice of the availability of a position in the Meat Market nor is there any evidence that Jewel notified any of its employees of available positions. An applicant would designate on his or her application form what positions he or she was interested in. After a personal interview, the Personnel Department would select the best suited candidate for a particular position based on the individual’s qualifications for the job and interest in the position. The Union played no role in the hiring decisions of Jewel. Although the Collective Bargaining Agreements discussed above contained provisions relating to Union referral of qualified men or persons upon request, Jewel never requested any referral of employees from the Union nor did the Union ever refer, recommend or suggest any individual to Jewel for positions as Wrapper, Apprentice or Journeyman. Prior to December 1980, no females, including the plaintiffs, had applied to be or expressed an interest in being an apprentice or journeyman meat cutter at the Jewel stores in the Northwest area of Indiana or adjoining Illinois area nor had any male applied for or expressed an interest in being a wrapper in the Jewel stores in the Northwest area of Indiana or adjoining Illinois area. Jewel has a policy of promoting from •within its own employees to fill available higher positions and relies on and encourages its Market Managers to suggest and recommend capable people for promotion. The majority of promotions at Jewel are from within its own employees although it does seek outside applicants for positions. Further, if a Jewel employee expresses an interest in other positions, including higher positions, Jewel has tried to place them in the requested position. For example, in 1978 a female wrapper in Chicago told Mr. Richard Durkin, District Manager for Jewel, that she wanted to become an apprentice meat cutter and Jewel complied with the request. Ms. June Goldbery became an Apprentice and was close to completing her apprenticeship when she left the company because she got married and moved to California with her husband. The Personnel Department put an announcement in a store bulletin called the “Flash” about Ms. Goldbery becoming an Apprentice Meat Cutter and the bulletin was distributed to all Jewel stores. Ms. Babrocky testified that she had read the article. Another example of Jewel complying with an employee’s request for a different position involved Doris Holmes. Ms. Holmes requested a position as Pier Captain. Jewel told her she would lose her seniority because she would be changing classifications but she said that was o.k. since she could make more money as Pier Captain and she was promoted. Ms. Holmes never asked to be an Apprentice Meat Cutter. Mr. Durkin's employment history with Jewel also reflects Jewel’s policy of placing employees in positions they request and promoting from within Jewel. The Union had no role in promotions or changes of classifications or assignment at Jewel. Jewel would transfer its employes from one store to another store depending upon need and availability of positions. The Union had no role in the transfer of Jewel employees. If an employee was transferred to a different store but remained in the same classification, such as wrapper or journeyman, their seniority date did not change. However, if the transfer also involved a change in classification, the employee would lose his or her seniority. Pri- or to 1980, there was a layoff situation in the Chicago Heights area that affected journeymen meat cutters. Those journeymen were transferred to Jewel stores in Indiana where there were positions available. There were no journeymen on layoff when this transfer occurred although there was a layoff that affected journeymen subsequent to that transfer. The duties of the various employees in the Meat Market at Jewel varied according to the job category or classification they were in. The Market Manager, which was the same as Head Meat Cutter under the Collective Bargaining Agreements, was in charge of the total operation of the Meat Market. The Market Manager was the first line supervisor for the Meat Market, did the scheduling of employees in the Market and reported to the Store Manager. The Assistant Market Manager shared duties with the Market Manager and normally ran the backrooms in the Meat Market where the fresh meat was cut and processed. There was no classification in the Collective Bargaining Agreements that coincided with the Assistant Market Manager position at Jewel. Neither the Market Manager nor the Assistant Market Manager had authority to hire or fire employees in the Meat Market nor did they have anything to do with setting company policy for Jewel. Journeyman Meat Cutters and Apprentice Meat Cutters could perform any duty within the Meat Market and although they usually worked in the backroom at the Meat Market where the meat was cut and processed, they could also work out from doing wrapper work. At times, customers would place special orders at the front counter and if it required cutting or grinding, only a meat cutter could handle the special order. Two journeymen, Gene Forbes and Carle Forbes, worked out front doing wrapper work a substantial part of the time but they could and did cut and grind meat for special customer orders as well as cut and process meat in the backroom. An apprentice meat cutter had to successfully complete a 3 year apprenticeship program learning the meat cutting business and would then become a journeyman meat cutter. The first thing an apprentice learned was the different cuts of meat which one could learn by looking at the trays of meat after they were prepared by the butcher and wrapping them or by working alongside a journeyman. Sometimes a wrapper would teach apprentices by showing them how to perform wrapper duties which apprentices could then perform because they were permitted to do so under the Collective Bargaining Agreement. For purposes of layoff and recall, all meat cutters were considered one classification because they had the same basic job duties. The duties of a meat wrapper were limited by the Collective Bargaining Agreements and basically included weighing, scaling, pricing and wrapping meat; putting meat on trays and displaying it; filling the counter and stocking cases; coding meat to ensure freshness; waiting on customers at the counter; and general cleanup work in the Meat Market. A meat wrapper could also be a pre-pack deli clerk or manager that took care of handling and stocking pre-pack deli items including such items as frozen turkey and canned hams. A meat wrapper was not to do meat cutter work in the backrooms, could not use machines except the wrapping machine and slicing machine for luncheon meats and bacon, and was not to use the grinder or cut meat. A meat wrapper could not fill customer special orders if they required cutting or grinding whereas a journeyman or apprentice could since they could do anything in the Meat Market. Thus, a wrapper had less flexibility in the Meat Market then a meat cutter. From time to time wrappers would violate the Collective Bargaining Agreements by using machines in the backroom or performing other duties outside of their classification. The Union does not approve of wrappers doing work outside their classification and if it receives a complaint or observes such an activity, the union investigates the incident and takes up the matter with the company and the employee. Jewel does not approve of wrappers doing work outside of their classification either. The wages paid employees in the various job classifications was in accordance with the wage structure contained in the Collective Bargaining Agreements and the wage structure was rationally related to the •skills .and responsibilities associated with the various classifications. Generally, meat wrappers were paid less than journeymen and apprentices because their duties and responsibilities did not include the skill and strain of processing meat associated with meat cutter positions. Further, the wage structure contained in the Collective Bargaining Agreements applicable to Jewel were also applicable in other area grocery store chains. Jewel had a Patio Shop that was part of its Meat Market in 1967. The Patio Shop sold bulk lunch meats, salads and pre-pack deli items. The Patio Shop was the forerunner to the Sausage Shoppe at Jewel which was also a part of the Meat Market. The Sausage Shoppe sold the same basic items as the former Patio Shop. Other than apprentices and journeymen, those individuals employed in the Sausage Shoppe were apparently classified as deli clerks or employees, a classification apparently not included in the Collective Bargaining Agreement covering the Meat Market at that time. If a deli clerk or deli employee became Manager of a Sausage Shoppe, that individual would receive $7.00 per week extra for that position which required the individual to order, display and maintain the products sold in the Sausage Shoppe and schedule the employees to work. If a journeyman was a Sausage Shoppe Manager, he would receive journeyman’s wages which were higher than the wages paid a deli employee who was a Sausage Shoppe Manager even including the extra $7.00 per week. Because the Sausage Shoppe was a part of the Meat Market, a journeyman or meat wrapper that went from a position on a Sausage Shoppe back to performing market functions did not lose their seniority because they stated in the same classification. However, if a deli clerk in a Sausage Shoppe was transferred to the Meat Market as a wrapper, that employee’s seniority would change because the transfer would require a change in job classifications. Sausage Shoppes at Jewel were phased out and by January 1, 1978, there was only one left at Jewel’s Store in Merrillville. It too was phased out shortly thereafter. Jewel’s Sausage Shoppes were replaced by Chef’s Kitchens which apparently were an extended version of the earlier Sausage Shoppes. Chef’s Kitchens, however, were not part of the Meat Market. A clerk in a Chef’s Kitchen has the same basic duties as a meat wrapper in the Meat Market at Jewel. There are no apprentices or journeymen employed in the Chef’s Kitchens because they are not part of the Meat Market. Before December 1980, all meat wrappers at Jewel Stores in the Northwest Indiana area were female and all apprentices, journeymen, Assistant Market Managers and Market Managers were male. Nor were there any female meat cutters in October 1982 in Indiana. All wrappers were female and all meat cutters were male at those Jewel stores because that is the position they applied for and Jewel placed its employees in the positions they requested. Neither the Union nor Jewel had any policy, contract, reason or impediment against females becoming meat cutters. To become an apprentice, a female only had to request the position but no female employee or applicant ever requested to become an apprentice meat cutter at a Jewel store in the Northwest area of Indiana. The Union never received any grievance or complaint from a female Jewel employee that she wanted or was denied an opportunity to transfer to, be promoted to or was unfairly rejected from an apprentice meat cutter position nor did the Union ever receive, prior to December 1980, any complaint or grievance about segregated job categories at Jewel in Northwest Indiana. In 1980, there were 32 apprentice and journeymen meat cutters employed by Jewel in Northwest Indiana. All of the meat cutters were male and all of the meat wrappers were female. The seniority list for journeymen and apprentices for 1980 reveals that there were 6 individuals in the meat cutter classification of apprentices and journeymen that had seniority dates that indicate that they were hired during the time that plaintiffs were employed by Jewel. Those 6 individuals included William Congious (10-7-68), William Marsh (3-2-70). Gregory Feranec (6-27-78), Ashanti Sabree (5-7-79), John Correa (5-21-79) and Robert Sutter (6-18-79). The Union received the seniority lists from Jewel. Mr. Richard Durkin, the marketing district manager for Jewel covering the Indiana area in 1980, was responsible for staffing the Meat Market and planning the budget for the Meat Market. In performing his duties, he would monitor the sales in the Meat Market on a weekly basis and would adjust staff according to sales to keep within budget in an effort to operate a cost efficient Meat Market. In the 5th period of the operating calendar for Jewel which was about June 1980, Mr. Durkin first determined the need for a layoff at Jewel stores in Indiana. He discussed this matter with his superiors at Jewel and the operating staff prepared the figures to support a layoff in Indiana. At that time, there was an 18% to 25% unemployment rate in the area due to a heavy layoff in the steel industry and several hundred employees being unemployed because of a strike at Nipsco. Further, Dominick’s, another grocery store chain, opened a new store in the area on Torrence Avenue. Both of these items resulted in a decline in meat business for Jewel stores in the Northwest area of Indiana. Total meat sales had decreased from a positive 7.07 in the first period to a —7.39 in period 8 for Jewel and when the meat sales for the new Jewel Store, # 1276 in Crown Point, were removed from the figures, the meat sales dropped to —18.05 in period 8 as compared to the figures for the previous year. Based on these decreased sales figures reflecting a down turn in the meat business for Jewel, Jewel determined that it needed to reduce its payroll expense in order to reduce the budget in relation to the decreased meat sales. Jewel management being Frank Tulley, the Vice President of Meat Operations for Jewel, decided a layoff was necessary and recommended that 3 meat wrappers and two apprentice meat cutters be laid off. Jewel had a meeting with the Union and presented the Union with the figures to justify the layoff. The Union was satisfied that the layoff was economically justified and although it objected to any layoff, the Union thought that the decision to layoff 3 meat wrappers and 2 apprentice meat cutters was the fairest alternative and agreed to it. The Union did not negotiate with Jewel on the layoff or suggest that any other combination of employees should be laid off to meet the necessary budget reduction. When the Union representatives went to the individual stores to inform those individuals to be affected by the layoff of Jewel’s decision to lay off 3 wrappers and 2 apprentices and the reasons therefor, the Union found that no apprentice meat cutters had received any notice of layoff but rather that Jewel had decided to lay off 6 wrappers instead. The Union never consented to the layoff of 6 wrappers instead of 3 wrappers and 2 apprentices but since Jewel could lay off any number of employees in any classification it chose so.long as it was economically justified and done by seniority within classifications, there was no breach of a Collective Bargaining Agreement. Jewel’s reason for the change in its decision was flexibility. Since apprentices could perform any duty in the Meat Market and meat wrapper duties were limited under the Collective Bargaining Agreement, Jewel determined that it would be nearly impossible to manage its stores if it lost flexibility by laying off 2 apprentices. No ratio of meat wrappers to meat cutters played any part in the decision of which employees were to be laid off and neither Jewel nor the Union ever conveyed to anyone that any ratio played any part in the layoff decision. Prior to the layoff in December 1980 there were about 3 meat cutters and 2 wrappers per store so Jewel ended up with about 1 wrapper per store after the layoff. There were no part-time wrappers on Jewel’s payroll at its stores in Northwest Indiana in 1980 and none were hired until the recall period had expired for those full-time wrappers that were laid off in December 1980. There were no apprentice or journeyman meat cutters laid off in December 1980. Subsequently, Jewel laid off apprentices and journeymen when no wrappers were laid off. The 6 wrappers laid off in December 1980 included the five plaintiffs in this case and Bernie Saborsky. There were no positions available at Jewel to transfer these individuals to in December 1980 since Jewel had experienced layoffs in other areas at that time and was preparing to lay off employees in the Chicago Heights area. The plaintiffs in this case were all employed by Jewel stores in the Northwest area of Indiana and were members of Local 350 and its successor by merger, Local 320 when they were laid off in December 1980. All of the plaintiffs were eventually terminated from Jewel when their recall rights under the Collective Bargaining Agreements expired. Patricia Babrocky Ms. Babrocky began working for Jewel on July 10, 1967 at its Columbia Avenue store in Hammond, Indiana as a deli clerk in the Patio Shop. That was the position she requested on her application at Jewel which was the only application she ever filled out at Jewel. Ms. Babrocky worked there for about 2 years and was then transferred to the River Oaks store where she was a deli clerk working on pre-pack and also worked in the Sausage Shoppe. Within a couple of weeks after starting at River Oaks, she wrapped meat from 5 o’clock p.m. to 6:00 o’clock p.m. after the Meat Market closed and later did wrapping work on a steady basis. In April 1974, she became the Sausage Shoppe Manager at River Oaks because the other manager was leaving and recommended her for the position. As manager, she wrapped meat as well as performed other duties required of the position. The manager she replaced was a journeyman who was paid journeyman wages and received time and a half after 6:00 o’clock p.m. She was paid deli clerk wages plus $7.00 per week for being manager and only received straight time after 6:00 o’clock p.m. Although both individuals performed the same duties and held the same position, Ms. Babrocky was paid less wages. There were other journeymen that also worked in the Sausage Shoppe that were paid journeymen wages. Ms. Babrocky never complained to the Union or filed a grievance on the different wages paid to Sausage Shoppe managers. Ms. Babrocky stayed at the River Oaks store as Manager of the Sausage Shoppe until the store closed on December 31, 1977. Upon request by Jewel, she took a week off and then went to Jewel’s store in Merrillvile for 2 to 3 weeks to take Agnes Ross’ place as a wrapper temporarily since that was the only position available at that time. She was then transferred to the Dyer store as a wrapper and remained there until late summer of 1980 when she was transferred to the Columbia Avenue store where she remained for about 2 months until she was transferred to another store where she worked until she was laid off in December 1980 for economic reasons. After leaving the River Oaks store, Ms. Babrocky did not work in a Sausage Shoppe or Chefs Kitchen. Ms. Babrocky never complained to the Union or Jewel about her transfers. When the River Oaks store closed in December 1977, Jewel had several meetings with employees at the store and told them that the store closing was a special circumstance, that they would not lose anything by the store closing and that Jewel would try to place them. The Union was not present at these meetings. Ms. Babrocky also got assurances from Joe Caria, a District Manager for Jewel, so when she went to the Dyer store as a wrapper, she assumed she would not lose her seniority. After a few months at Dyer, a seniority list was posted and her name appeared third from the top where she had been all along although she did lose the $7.00 per week she had received for being Sausage Shoppe Manager when she was transferred. Ms. Babrocky wanted to continue to be a Sausage Shoppe Manager when River Oaks closed but that was not possible since there was only one other Sausage Shoppe left at that time and it was being phased out. When Ms. Babrocky was transferred from her position as Sausage Shoppe Manager to wrapper, she changed classifications going from the classification of deli clerk to meat wrapper. Because of the change in classification, she lost her seniority as a deli clerk and started over in seniority as a wrapper on January 1, 1978. Ms. Babrocky received notice of her layoff on December 8, 1980 and her last day at Jewel was December 20, 1980. Ms. Babrocky testified that she thought she had been discriminated against because all females were laid off and the work they had previously done was subsequently done by men. She also testified that the facts which she believed supported her claim were that all meat cutters were male and meat wrappers were female, she was paid less as a Sausage Shoppe Manager than a journeyman who did the same work, and men went home at 5:00 o’clock p.m. and women had to work until 6:00 o’clock p.m. On December 9, 1980, Ms. Babrocky talked with Mr. Clarence O’Conner, the business agent for the Union when he came to the store where she worked, complaining about the layoff because all females were laid off and men that she had been working with were now doing her job. She filed a written grievance related thereto on her last day at Jewel, December 20,1980. This was the first grievance Ms. Babrocky had filed and she had never complained to the Union before about any problems related to her employment at Jewel. On January 9,1981, Ms. Babrocky filed her charges of discrimination against Jewel and the Union with the Equal Employment Opportunity Commission (EEOC) and then again spoke with Mr. O’Connor. At that time, Mr. O’Connor indicated that nothing had been done wrong under the Collective Bargaining Agreement with respect to the layoff so the Union could do nothing further on her grievance and that she would get her answer at the EEOC on the charges she had filed against the Union. After Ms. Babrocky was laid off by Jewel in December 1980, she applied at all the grocery store chains in the area for a position as a deli clerk or wrapper. She did not apply at any of those stores for a position as an apprentice meat cutter. She also applied at other types of businesses and got a job as a receptionist at Dolton Animal Hospital on February 16, 1983. On October 12, 1982, Mr. Sam Hill, the area personnel manager for Jewel covering the Northwest area of Indiana, tried to contact Ms. Babrocky to offer her an opportunity to interview for an available position at Jewel for apprentice meat cutter. He was unable to contact her so he sent her a mailgram on October 22, 1982 with respect thereto and requested she contact him by October 29, 1982 if she was interested. Ms. Babrocky contacted Mr. Hill and on October 30, 1982 was interviewed and offered the position of apprentice meat cutter. At the interview, Ms. Babrocky expressed concern about her seniority and the rate of pay she would receive if she accepted the offer. On November 1, 1982, Ms. Babrocky informed Mr. Hill that she did not wish to accept the offer. There was no mention of his lawsuit during these discussions between Mr. Hill and Ms. Babrocky. Prior to her layoff in December 1980, Ms. Babrocky never told anyone at Jewel that she wanted to be an apprentice meat cutter and in fact, even after her layoff, she asked Mr. Hill for a job in the deli department or Chef’s Kitchen and at the EEOC she requested reinstatement to her old job as wrapper. She never sought any other positions at Jewel than the ones she had and Jewel never rejected any request for transfer that she made. No one at Jewel ever said anything that led her to believe that she was being discriminated against on the basis of her sex nor did any incidents occur that would lead to that belief. Juanita Coffman Juanita Coffman, also known as “Skeets” worked as a wrapper at Buy-Low grocery store before she went to work for Jewel as a wrapper on March 25, 1974. Ms. Coffman started at Jewel’s Tri-City Plaza Store and worked there until she was transferred to a new Jewel store on Mount Street in 1976 where she worked until she was laid off December 20, 1980. She was recalled by Jewel on June 30, 1981, effective July 6, 1981 and worked as a wrapper until she was laid off again on November 30, 1981. Ms. Coffman was hired by Jewel as a wrapper and always remained in that classification during her entire employment by Jewel. She had a wrapper seniority date of March 25, 1984. While Ms. Coffman was employed by Jewel, she never told anyone at Jewel that she wanted to be an apprentice meat cutter nor did she ever request a promotion. One time she requested to be transferred to Jewel’s store in Merrillville so she would be closer to home but there were no available openings so the request was denied. She does not maintain that Jewel’s denial of this transfer was based on her sex. While Ms. Coffman was employed by Jewel, she never heard that Jewel did not want to recruit women in general or for an apprentice position in particular nor had she heard that the Collective Bargaining Agreements treated men and women differently. Further, she knew that she did not receive the same pay as meat cutters who were in a different classification nor did she ever see a wrapper do meat cutter work. When Ms. Coffman was laid off, she was told it was due to a slow down in business. She was never told she was being laid off because she was a woman. Ms. Coffman thought that apprentice meat cutters should have been laid off because some of the wrappers had more seniority than the apprentices that were not laid off but that was the only reason she thought the seniority system treated men and women differently. She also thought she was discriminated against because Jewel did not transfer her when it had transferred journeymen from Illinois Jewel stores to Indiana Jewel stores earlier when they were faced with being laid off. Ms. Coffman filed a grievance with the Union and charges of discrimination against Jewel and the Union related to the layoff with the EEOC. She requested and received her Notice of Right to Sue from the EEOC on April 22, 1981. On May 20, 1982, Jewel sent Ms. Coffman a letter informing her that as of May 30, 1982, she would have completed six months on layoff and that pursuant to the terms of the Collective Bargaining Agreement she was to send Jewel notice of her desire to remain on the recall list and do so each month thereafter until November 30, 1983. The letter further informed her that if she did not send Jewel such notice of her desire to remain on the recall list, Jewel would assume that she was not interested in being recalled and would therefore be terminated from Jewel. By letter dated November 24, 1982, Jewel informed Ms. Coffman that her seniority and recall rights had expired under the then effective Collective Bargaining Agreement. In October 1982, Mr. Sam Hill, the Personnel Manager for Jewel, tried to contact Ms. Coffman by phone but her phone was disconnected so Mr. Hill sent her a mail-gram informing her of an opening for an apprentice position and requesting that she contact him with respect thereto. Ms. Coffman contacted Mr. Hill on October 16, 1982 and Mr. Hill offered her an apprentice meat cutter position. Ms. Coffman told Mr. Hill that she had to think about whether she wanted to be an apprentice and asked to think about it until October 18, 1982. Mr. Hill had not received a response from Ms. Coffman by October 29, 1982 so he sent her a registered letter that indicated that he would assume she did not want to be considered for the position if he didn’t hear from her by November 3, 1982. Mr. Hill received no response from Ms. Coffman to his October 29th letter. This lawsuit was not discussed at any time during these activities or conversations. Ms. Coffman had never asked Jewel pri- or to her 1980 layoff to be an apprentice meat cutter. At trial, Ms. Coffman testified that she would have taken an apprentice position before 1980 or in 1980 to avoid being laid off but that she didn’t really want to lose her seniority and would rather be a wrapper. After Ms. Coffman was laid off by Jewel, she worked at various grocery stores including Thrifty Mart, Buy-Low and Key Market for short periods of time totalling about 4V2 months and then got a job at El Mar’s Restaurant on August 17,1982. She worked there for sometime and then got a job as a bill collector for Business Revenue Systems in Crown Point in August 1984. She did not look for a job at other grocery store chains. Eva Davis Ms. Davis was first employed by Jewel in October 1970 or 1971 as a part-time receiving clerk in groceries, a position that was not part of the Meat Market, at Jewel’s Store in Tri-City. In March 1974, at her request she became a full-time wrapper at the same store and remained in the wrapper classification for the rest of the time she worked for Jewel although she worked at several different Jewel stores. Ms. Davis was laid off for 2 months in 1975 but otherwise worked continuously until she was laid off on December 20, 1980, having received notice thereof two weeks before. While Ms. Davis was employed by Jewel, she never told anyone at Jewel or the Union that she wanted to be an apprentice meat cutter nor did she ever ask for a promotion, another position, transfer or other job assignment. Although she was transferred several times, she was not unhappy about the transfers and never complained to or filed a grievance with the Union related thereto. While working at Jewel, no one in Jewel management ever said anything to her that caused her to believe she was being discriminated against because of her sex although some journeymen in the backroom said women couldn’t work in the backroom because they would be in the way and that Jewel didn’t hire women meat cutters. Ms. Davis knew, however, that there was 1 female meat cutter at a Jewel store in Chicago and further, she never reported these conversations to anyone in Jewel management. While Ms. Davis was a wrapper she sometimes worked in the Sausage Shoppe when the regular Sausage Shoppe employees were on lunch break although she wasn’t supposed to under the Collective Bargaining Agreement and also observed others doing work outside of their classifications. She never reported these incidents to Jewel or to the Union. Ms. Davis testified that she believed that she was discriminated against because Jewel never gave her an opportunity to be an apprentice meat cutter nor offered her such a position. She also claims she was discriminated against because journeymen did wrapper work at different pay and pointed to Gene Forbes. Ms. Davis testified that she never saw him cut meat but also admitted that she did not work with him all of the time. Finally, Ms. Davis maintains she was discriminated against because only women were laid off in December 1980 when there were apprentices with less seniority that were still working. In her mind, it would have been acceptable if some women and some men had been laid off and suggested that the wrapper and apprentice classifications should have been merged and then laid off by seniority. Ms. Davis was told she was being laid off because of a downturn in business and no one ever said it was because of her sex. She filed a grievance with the Union and a charge of discrimination against Jewel and the Union with the EEOC in January 1981 as a result of the layoff. This was the only EEOC charge she had ever filed and was the first grievance she had filed while employed by Jewel. She requested reinstatement to her old job as wrapper at the EEOC. On February 2, 1982, Jewel sent Ms. Davis a letter indicating that it had not received any letter from her since September 21, 1981 with respect to her continued interest in remaining on the recall list as required by the Collective Bargaining Agreement. The letter further informed her that she was therefore being separated from Jewel effective February 22, 1982 and was no longer subject to recall by Jewel. On October 12, 1982, Mr. Sam Hill contacted Ms. Davis and informed her that there was an opening for an apprentice meat cutter at Jewel. Ms. Davis interviewed for and was offered the position on October 18, 1982. At the interview, Ms. Davis was concerned because she was 50 years old and afraid she could not handle the job. She asked for a couple of days to think it over. On October 27, 1982 Ms. Davis called Mr. Hill and told him she thought she could do 90% of the job but declined the offer because she did not want to give up her wrapper seniority or take a reduction in wages to the starting apprentice rate. This lawsuit was not mentioned in any of these conversations. Ms. Davis had never asked Jewel prior to her December 1980 layoff to be an apprentice meat cutter. At trial, Ms. Davis testified that if she had been offered an apprentice position in 1980, she would have taken the position just to avoid being laid off. After she was laid off, Ms. Davis looked for wrapper positions at various chain stores in the area but never applied for a meat cutter position. Wilma Keene Ms. Keene was hired by Jewel for part-time work in the Chef’s Kitchen in November 1972. In 1974, Jewel advised her of an opening for a full-time wrapper position which she took and started April 29, 1974. She had filled out an application with Jewel for that position. Ms. Keene was laid off in January 1980 having received prior notice thereof that the layoff was due to a decline in business. Apprentice meat cutters were also laid off in January 1980. In May 1980, Ms. Keene got a letter from Jewel to return to work as a wrapper and she did so. She worked from May until December 8, 1980 when she was laid off again due to a decline in business. Ms. Keene filed a grievance with the Union in December 1980 when she found out the wrapper seniority list was wrong relating to her layoff in January 1980 claiming she,was laid off out of seniority. Ms. Keene maintained that she was third from the bottom of the wrapper seniority list and since only two wrappers were laid off at that time, she shouldn’t have been. She pointed to Patricia Babrocky who had transferred from the Sausage Shoppe to a wrapper position in 1978 so her seniority date should have changed. Although Ms. Keene’s grievance was filed well beyond the 45 day period provided in the Collective Bargaining Agreement, the Union processed her grievance and resolved it with Jewel on January 27, 1981. She did not file any discrimination charges related to the January 1980 layoff nor did- she ever tell anyone that she thought she was being laid off because of her sex. Ms. Keene also filed a grievance with the Union as well as discrimination charges with the EEOC relating to her December 1980 layoff. She never talked to Union officials about this grievance. According to Ms. Keene, the December layoff was according to seniority. Ms. Keene requested reinstatement to her old position as wrapper at the EEOC. While Ms. Keene was working at Jewel, she never told anyone at Jewel that she wanted to be an apprentice meat cutter, never sought another position with Jewel nor ever asked for a transfer, promotion, different job assignment or training. She was never told by anyone in Jewel management that she or any other female could not be a meat cutter or that she wouldn’t be considered for a different position if she so requested. Although some men in the backrooms at Jewel had said they didn’t think women could handle jobs back there, Ms. Keene admitted that no one in Jewel management had ever said that. Ms. Keene also testified that the Union never told her she was being laid off because she was female. While Ms. Keene worked for Jewel, she observed people doing work outside of their classification which she identified as wrappers doing deli work, fish department employees doing wrapping work and journeymen doing wrapping work when wrappers were laid off. She never filed a grievance related thereto however. Ms. Keene testified that she believed she had only been discriminated against by the layoff because she was laid off and shouldn’t have been. She maintains that there were too many meat cutters but not too many wrappers and Jewel laid off wrappers. Ms. Keene was also upset because there was no opportunity for women to grow at Jewel. She also maintained that the Union discriminated against her because it did not take up her second grievance. After Ms. Keene was laid off by Jewel, she got a job as a wrapper with Dominick’s, another chain grocery store, and started in July 1981. Although she started at the bottom of the wrapper seniority list at Dominick’s, she received the top rate of pay for wrappers because of her prior experience. Employees at Dominick’s who are part of the same Union as the Union at Jewel, have the same job classifications and are under the same layoff and recall procedures as Jewel employees in the Meat Market. Ms. Keene never asked Dominick’s if there were any other positions available nor did she ever look for apprentice or journeyman positions when she was laid off by Jewel, only positions as wrapper. By letter dated June 8, 1981, Jewel informed Ms. Keene that pursuant to the terms of the Collective Bargaining Agreement, she had to send Jewel a letter stating her desire to remain on the recall list at Jewel within 6 months after her layoff and every month thereafter until her recall period expired on October 8, 1982. On October 12, 1982, Mr. Sam Hill contacted Ms. Keene and informed her of an opening for an apprentice position at Jewel and offered to interview her for the position. She told Mr. Hill that she was a wrapper at Dominick’s and wasn’t sure she wanted to be an apprentice meat cutter. Ms. Keene interviewed for and was offered a position as Apprentice with Jewel on October 14, 1982. At that interview, Ms. Keene expressed concern that if she wasn’t able to make it as an apprentice, she would be released. On October 16, 1982, she informed Jewel that she didn’t want the apprentice position because she would lose her seniority as a wrapper and didn’t want to take a reduction in pay to beginning apprentice rates. She confirmed by letter her decision to decline the offer for the reasons she stated earlier. There was no mention of this lawsuit in any of the conversations between Mr. Hill and Ms. Keene nor in her letter to Mr. Hill. Ms. Keene had never asked Jewel prior to her December 1980 layoff to be an apprentice meat cutter. At trial, Ms. Keene testified that if Jewel had posted a notice of an opening for an apprentice position or offered her such a position, she would have taken the position. Agnes Ross Ms. Ross applied at Jewel for a position as a part-time produce clerk and was hired for that position in September 1968. She worked in that position until January 1971 and Jewel then asked her if she would transfer to the Chef’s Kitchen because it was having problems with some part-time people in that area. Ms. Ross worked as a clerk in the Chef's Kitchen for one year and then became an assistant manager in the Chef’s kitchen at Jewel’s request and was training to become a manager. Jewel offered her a position as manager of Chef’s Kitchen but she declined the offer. No one told Ms. Ross that she could not be a manager. She was the Assistant Manager under Edna Pace until January 1974 when Jewel asked her if she would transfer to the Meat Market because Jewel needed a full-time deli person. She filled out a new application at Jewel’s request because of the switch to full-time work. The application indicated she wanted a position as full-time clerk, checker or deli stock. When she took the job in the Meat Market, she was reclassified as a wrapper with a new seniority date as wrapper of January 20, 1974. From the time she became a wrapper until she was laid off, Ms. Ross worked as wrapper and Deli Manager in the Meat Market at Jewel although she worked at several different stores. Jewel offered her the different positions and each one was a promotion. Ms. Ross was laid off from Jewel on December 20, 1980. By letter dated May 22, 1981, Ms. Ross was recalled by Jewel effective June 1, 1981 and worked at Jewel until November 30, 1981 when she was laid off again. Ms. Ross and Ms. Coffman were called to a meeting in early December 1980 with the Store Manager and Market Manager and were told that they were going to be laid off because of a downturn in business. Ms. Ross was not surprised because everyone knew it was going to happen due to a downturn in the economy and the fact that the stores were not doing well. At the meeting she was told that there were to be 3 wrappers and 2 apprentice meat cutters laid off. A couple of days later, she learned that there were to be all wrappers laid off instead. Neither Mr. Stolz, the Store Manager, nor Mr. Wagner, the Market Manager, ever said she was being laid off because she was a woman. Ms. Ross called Mr. O’Connor, the business agent for the Union for an explanation about the layoff. This was the first complaint or grievance that Ms. Ross had lodged with the Union. Mr. O’Connor told her that the layoff was due to a downturn in business. When Ms. Ross asked him why the five plaintiffs were being laid off when there were less senior people working the Meat Market, Mr. O’Connor told her that Jewel said that this would be the way the layoff would be handled and that Jewel could lay off any one they chose so long as they laid off by seniority within the various classifications. After the conversation with Mr. O’Connor, Ms. Ross, her husband, Mr. O’Connor and Kermit Ray, another Union official, had a meeting regarding the layoff. At that meeting, Ms. Ross was told by the Union that although she might have a moral claim regarding the layoff, she did not have a claim under the Collective Bargaining Agreement. There were no remarks by the Union at the meeting that Ms. Ross was being laid off because of her sex. Further, Ms. Ross did not accuse the Union of not processing her grievance because of her sex at that meeting. At the meeting, the Union did tell Ms. Ross that if she obtained more information, she should come back to the Union and the Union would see if anything else could be done. Ms. Ross went back to the Union with two more grievances and many letters and information about people with less seniority doing her job, particularly complaining about meat cutter doing wrapper work on a long term basis which she claimed was the equivalent of them doing work outside of their classification. The Union provided her no further help. However, Ms. Ross testified that she had no facts to justify a belief that the Union processed her grievances in the manner it did because of her sex. In addition to the grievances she filed with the Union, Ms. Ross filed charges of discrimination against the Union and Jewel with the EEOC in January 1981 relating to her December 1980 layoff. The basis of her claim against the Union was the ratio provision in the Collective Bargaining Agreement. In February, Ms. Ross told the EEOC that she wanted to be reinstated to her wrapper position at Jewel and requested her right to sue notice from the EEOC on March 30, 1981. While Ms. Ross was employed by Jewel, she never told anyone at Jewel that she wanted to be an apprentice meat cutter, never requested another position with Jewel nor ever asked for a transfer, promotion, different assignment or training. Ms. Ross testified that she did not know of any woman that told Jewel or the Union that they wanted to be an apprentice meat cutter or that applied f