Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW PATEL, District Judge. Plaintiffs have brought this class action against Lucky Stores, Inc. on behalf of Black and female employees working in retail stores within Lucky’s Northern California Food Division. Plaintiffs allege discrimination on the basis of race and sex in initial job placement, allocation of work hours, movement of part-time employees to full-time positions, and promotions. Claims are brought pursuant to Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and the California Fair Employment and Housing Act, Government Code §§ 12900-12996. The court hereby enters its findings of fact and conclusions of law as to plaintiffs’ claims. To the extent that any findings of fact are included under conclusions of law they shall be deemed findings of fact, and to the extent that' any conclusions of law are included under findings of fact they shall be deemed conclusions of law. This order incorporates all of the previous orders of this court which are cited herein. FINDINGS OF FACT I. LUCKY STORES INC. Corporate Structure of Lucky ,1. Lucky Stores, Inc. (“Lucky”) is a retail food chain headquartered in Dublin California. Joint Statement ¶ 1 (filed May 3, 1992). During the liability period, Lucky operated through a number of divisions. The number of these divisions ranged from a low of two to a high of nine. Joint Statement ¶ 2. 2. During the liability period, see infra ¶¶ 419-421, Lucky conducted its operations in California through two divisions, the Northern California Division (“NCD”) and the Southern California Division (“SCD”). Lucky sold or liquidated its other divisions between 1984 and 1989. Joint Statement tí 3. 3. During the liability, period Lucky had, and continues to have, a General Management Committee comprised of senior management from Lucky Corporate and the divisions. This Committee dealt with a broad range of issues, including employment issues. Joint Statement 114. Lucky’s Northern California Division 4. Lucky’s NCD is headquartered in San Leandro, California. Joint Statement 115. 5. Officers and managers within the San Leandro headquarters of the NCD include: a Training and Development Manager who reports to the Vice President, Human Resources; an EEO Manager who reports to the Vice President, Human Resources; a Vice President, Human Resources who reports to the Senior Vice President of Administration; a Manager of Labor Relations who reports to the Vice President, Industrial Relations Manager; a Vice President, Industrial Relations Manager who reports to the Senior Vice President of Administration; a Senior Vice President of Administration who reports to the Division President; and a Division President who reports to the President of Lucky Stores. Each of these positions has existed for different periods of time during the liability period and each position, when in existence, experienced one or more changes in its precise job title and reporting relationships. Joint Statement IT 5. 6. During the liability period, relevant NCD supervisory positions were held by: a. President: Richard Goodspeed (1985 to present); Jack Hoover (until 1985). b. Senior Vice President, Director of Operations: Louis Gloyne (1986-1989); James Scoggins (until 1985). c. Senior Vice President of Administration: John Plotts (1989 to present); Tim Martin (until 1989). d. Vice President, Operations: Robert Grant (1980 to present); Terry Privott (1989 to present). e. Vice President, Industrial Relations: Walter Herkal (1979 to present). f. Vice President, Human Resources: Virginia Javier (1990 to present). g. Training and Development Manager: Bruce Gentile (1988 to present); David Atwood (1985-1988); Jane’t Noriega-Ailor (until 1985). h. Manager of Labor Relations: Robert Gill (1986 to present). i. Manager of Human Resources: Virginia Javier (1989-1990); Jane’t Noriega-Ailor (1985-1988). j. EEO Manager: Mark Foley (1989 to present) and Virginia Javier (1986-1989). Joint Statement H 6. Districts in the Northern California Division 7. During the liability period, Lucky assigned each of the retail food stores in the NCD to a district. The number of districts ranged from a low of seven to a high of nine. There are currently eight districts in the NCD. Joint Statement ¶ 7. 8. During the liability period the number of retail food stores in the NCD ranged from a low of approximately 150 to a current high of approximately 185. Joint Statement 117. 9. District level personnel currently include: a Grocery Merchandiser who reports to the District Manager; a Produce Manager who reports to the District Manager; a Deli/Bakery Trainer who reports to the District Manager; a General Merchandise Merchandiser who reports to the District Manager; and a District Manager who reports to the Vice President of Operations. Joint Statement II8. United Food and Commercial Workers Union Contracts 10. With the exception of Store Managers and certain Assistant Store Managers, plaintiff employees are represented for purposes of collective bargaining under the terms of the National Labor Relations Act as part of a multi-employer bargaining unit. The bargaining representative for these employees is the United Food and Commercial Workers Union . (“UFCW”). Joint Statement II24. . 11. Within the NCD there are twelve separate UFCW Locals which have collective bargaining agreements with Lucky (“UFCW Contract”). Joint Statement H 25. For the purposes of this action, the UFCW Contracts for the period 1980 through 1992 between Lucky and Retail Clerks Local 775 are representative of the collective bargaining agreements for the same time period between Lucky and the other UFCW Retail Clerk locals representing employees in Lucky’s retail food stores. However, for the agreements for the period 1989 though 1992 involving Locals 588 and 1288 with regard to the issues of job posting and movement of Deli/Bakery and General Merchandise Clerks into Journey Fqod Clerk vacancies, the UFCW Contract-between Lucky and UFCW Retail Clerks Local 588 is representative of the UFCW Contract between Lucky and Local 1288. Stipulation Regarding Collective Bargaining Agreements (filed May 29, 1991). 12. Prior to 1986, all Assistant Store Managers were in the UFCW collective bargaining unit. From February 1986 through February 1989, the UFCW collective bargaining unit included Assistant Store Managers who worked in. stores of 30,000 square feet or less. However, since February 1989 the collective bargaining unit has excluded all Assistant Store Managers except for those who have elected to remain within the UFCW. Thus, the current UFCW Contract covers all store employees, except Store Managers and most Assistant Store Managers. Joint Statement 1126. 13. Under the terms of the UFCW Contract, seniority is measured by continuous service at Lucky. Under certain circumstances, the seniority of an employee may be broken or temporarily suspended. Joint Statement ¶ 27. 14. The UFCW Contract includes a nondiscrimination clause: The Employer shall not discriminate against any person in regard to hire, tenure of employment or job status because of race, creed, religion, color or national origin, nor shall age, physical handicap unrelated to the job duties, veteran status or sex under any circumstances be a basis for rejection or termination of an otherwise’qualified employee or applicant for employment. UFCW Contract § 2.4.4. Joint Statement 1128. 15. Wages for all of the positions in the retail stores, with the exception of Store Manager and Assistant Store Manager, are set forth in the UFCW Contract. Joint Statement ¶ 29. 16. The UFCW Contract provides that all employees, except Courtesy Clerks, who work between the hours of 7:00 p:m. and 7:00 a.m. shall receive a “night premium” wage rate for those hours of work. The contract provides that Courtesy Clerks shall receive a night premium for work performed after 9:00 p.m.. Joint Statement H 29. Retail Food Stores 17. There are approximately 18,000 employees in the NCD, 15,000 of whom work in the retail stores. Reporter’s Transcript (“R.T.”) at 4-623 (Grant). 124 of the 188 stores in the NCD are open twenty-four hours a day. R.T. at 4-665 (Grant). 18. Each retail store contains the following departments: Grocery, Produce, and General Merchandise (also referred to as Non-Food). Joint Statement ¶ 11. Approximately 125 of the stores in the NCD have Deli/Bakery departments. R.T. at 4-649 (Grant). The Grocery department, the largest department in each of the stores, is responsible for 65% of Lucky’s sales. The Meat department is responsible for 12% of the sales, Produce is responsible for 6-10%, General Merchandise is responsible for 8%, and Deli/Bakery is responsible for 3.5%. R.T. at 4-652 (Grant). Work in the Grocery department is available twenty-four hours a day, Night Crew work is from about 11:00 p.m. to 9:00 a.m., Produce department work is from 4:00 a.m. to 11:00 p.m., Deli/Bakery work is from 3:00 a.m. to 10:00 p.m., and General Merchandise work is from 5:00 a.m. to 4:00 p.m. R.T. at 6-997-98 (Hoffman). See figure 1. 19. Depending on the size of the store, each store in the NCD has Department Head or Head Clerk level personnel which include: a General Merchandise Department Head who reports to the Store Manager; a Deli/Bakery Department Head who reports to the Store Manager; a Produce Manager who reports to the Store Manager; a Head Clerk/Front-End Clerk who reports to the Store Manager; a Head Clerk/Fifth Person who reports to the Store Manager; a Head Clerk/Fourth Person who reports to the Store Manager; a Head Clerk/Third Person who reports to the Store Manager; and a Head Clerk/ Night Crew Manager who reports to the Store Manager. Each store also has an Assistant Store Manager who reports to the Store Manager and a Store Manager who reports to the District Manager. Joint Statement ¶ 12. 20. The Store Manager, Assistant Store Manager, Third Person, Fourth Person, Fifth Person, Front-End Clerk, and Night Crew Manager positions are all in the Grocery Department. Joint Statement If 13. 21. '. In addition to the Grocery Department Head positions, other Department Head level positions in the Grocery department may include Receiving Clerks (later replaced by Direct Store Delivery or DSD Clerks.) Joint Statement II14. 22. Other personnel in the Grocery Department include Courtesy Clerks, Utility Clerks, Apprentice Clerks, and Journey Clerks. Joint Statement 1115. The duties of Courtesy Clerks are specifically described in the UFCW Contract and include bagging of merchandise, cleaning up and price checks. Courtesy Clerks are not permitted to work at the checkstand. They are primarily part-time employees. Joint Statement II16. Utility Clerks essentially perform janitorial duties. Joint Statement IF 17. 23. In each of the departments relevant to this case, there are Apprentice Clerks, Journey Clerks, and a Department Head. However, Courtesy Clerks only work in the Grocery department. Joint Statement 1120. ■ 24. Journey Clerks and Apprentice Clerks in the Grocery Department may be assigned to a variety of tasks including: working at the cash register (also know as checking) and stocking (also called floor work). Joint Statement 1118. Stockers take the merchandise that is delivered to the store and put it on the store shelves. R.T. at 1-74 (Gill). Journey Clerks and Apprentice Clerks in the Grocery Department can be assigned work hours during any time that the store is in operation. Joint Statement 1119. 25. Journey Clerks and Apprentice Clerks in the Produce Department may be assigned to a variety of tasks, including stocking and arranging displays. Joint Statement 1121. 26. Journey Clerks and Apprentice Clerks in the General Merchandise Department may be assigned to a variety of tasks, including stocking. Joint Statement 1122. 27. Journey Clerks and Apprentice Clerks in the Deli/Bakery Department primarily prepare and sell products. Joint Statement 1123. Gemco Stores 28. During the liability period Lucky operated a number of Gemco stores, including Gemco stores within the geographic scope of the NCD. Each Gemco store included a retail food department and a retail variety goods department. Those individuals employed in the retail food department of Lucky’s Gemco stores were considered NCD employees and were members of the same UFCW Locals as were other employees in the NCD. Joint Statement H 9. 29. Until approximately the last year of their operation, Gemco’s retail food departments were assigned to districts in the NCD according to the same geographic boundaries used to assign the stand-alone retail food stores in the division. Joint Statement II9. 30. In November 1986 Lucky closed all of its Gemco stores, including the Gemco retail food departments. The employees in the retail food departments were given the right to apply for positions in the NCD based on their seniority according to the terms of the UFCW Contracts. While many former Gemco employees were absorbed into NCD stores, some employees were laid off, as were some Lucky retail food store employees.' Joint Statement IF 10. II. LUCKY’S EMPLOYMENT PRACTICES ' Plaintiffs’ Witnesses 31. Mark Foley has been the Equal Employment Opportunity (“EEO”) Manager for Lucky since 1989. In that capacity he responds to internal complaints and administrative complaints from the Department of Fair Employment and Housing (“D.F.E.H.”) and the Equal Employment Opportunity Commission (“E.E.O.C.”). Foley also administers Lucky’s affirmative action programs and works with the Bock-man consent decree. R.T. at 8-1308. Foley worked as Lucky’s EEO Recruiter from 1988 to 1989 and worked in the Human Resources Department prior to that. He helped Russell Specter with the EEO training that Specter provided to the District and Store Managers. R.T. at 7-1241-43. Foley was first hired by Lucky as a Courtesy Clerk in 1977. R.T. at 8-1297. 32. Robert S. Gill, has been the Manager of Labor Relations of Lucky’s NCD since February 1986. Gill represents Lucky in grievances, arbitrations, and negotiations of UFCW Contracts. Before 1986 he was the Personnel Manager for the NCD. Gill was designated under Fed. R.Civ.P. 30(B)(6) as the person at Lucky most knowledgeable about the duties' and minimum qualifications for job classifications, about the criteria and procedures for obtaining work in different departments and shifts, and about the criteria and procedures for getting promotions. His immediate superior is Walter Herkal, the Vice President, Industrial Relations Manager. R.T. at 1-51-53. 33. Richard Goodspeed has been the President of Lucky’s Northern California Food Division since 1986. Until 1989, he reported to Leon Roush, the Corporate Senior Vice President of Operations. He currently reports to Larry Del Santo, the Corporate President of Lucky. He was first hired by Lucky as a part-time Apprentice Clerk in the SCD in 1953. From 1960 to 1966 he worked ■ as a Store Manager in Lucky’s SCD. R.T. at 18-3028-32. Good-speed tries to visit a few stores once or twice a week. He talks to store management, employees and customers. R.T. at 18-3097-98. 34. Robert John Grant, is currently the Vice President, Operations Manager of the Bay Area Lucky stores. .He began his career at Lucky in 1952 working as a Courtesy Clerk. R.T. at 2-281-86. Grant is responsible for all of the stores in the Northern Food Division in California and Nevada. He reports to the Director of Operations. R.T. at 2-284. One of his duties is to visit stores to see if store practices are in accordance with management policies. , He visits stores two days a week and visits about fifty stores throughout the districts in a month. Ex. A-37; R.T. at 2-287. He meets with and talks to the five District Managers under his supervision regularly. R.T. at 4-639-40. In addition, he has had breakfast meetings on a regular basis with different Lucky employees for the past four or five years. R.T. at 4-633-34. 35. Walter Herkal has been the Vice President, Industrial Relations for the NCD since 1979. He was first hired by Lucky in 1977 as the Industrial Relations Manager for the Northern Region of Lucky Stores. Until 1990, Herkal was the primary person responsible for personnel, including affirmative action and EEO matters. R.T. at 12-2020-22. 36. Alvin M. Hoffman was the District Manager for District- 5, the Valley Stores, from 1985 through 1990. R.T. at 6-934. He was first hired by Lucky as a Courtesy Clerk in 1952. He worked as a Store Manager from 1968 to 1979. Since 1990 he has rotated between Districts 4 and 8. R.T. at 5-875-77. He spends thirty to forty hours a week visiting the stores in his Districts. R.T. at 6-967. 37. Virginia Javier has been the Vice President of Human Resources in Lucky’s NCD since 1990. She has primary responsibility for administering EEO and affirmative action policies in the NCD. R.T. at 10-1651. Javier was first hired by Lucky in 1986 as an EEO Manager to work on administrative implementation of the Bock-man consent decree. In 1989 she became Manager of Human Resources. R.T. at 10-1640-41. Javier initially reported to Jane’t Noriega-Ailor. She then reported to Walter Herkal. R.T. at 10-1648-49. 38. Jane’t Noriega-Ailor left Lucky in 1988. R.T. at 8-1405. Lucky hired her in 1983 to be the Human Resources and Training Manager. Her assignment was to create and implement a full service Human Resources Department. Noriega-Ailor reported to Walter Herkal, the Vice President, Industrial Relations Manager. R.T. at 8-1406. In 1984 she worked as a Labor Relations Specialist at Lucky. In 1985 she was given the title of Human Resources Manager. Her duties were personnel and payroll administration, training development, equal employment opportunity, communications and non-union payroll. R.T. at 9-1596. 39. Russell Specter was hired by Lucky in 1988 “to design and present a series of training programs regarding non-discriminatory promotion of females into management and sexual harassment.” Ex. A-117; R.T. at 7-1151-54. He had previously represented Lucky as an attorney in the Bock-man litigation, and had represented Lucky before the E.E.O.C.. R.T. at .7-1148-50. 40. Rosalind Speaker Thompson has been the Director of Human Resources at Lucky since March 1989. From 1985 to 1989, Thompson held the position of Corporate Personnel Manager at Lucky. Her responsibilities were to design a Global Management-Development Program to prepare individuals to move into middle and senior level management positions at Lucky. From 1982 to 1984 Thompson was director of Human Resources at the Atherton Division of Lucky. Thompson Depo. at 17-19, 27. Defendant’s Witnesses 41. D. Bruce Frazier.has been the Employment Manager at Lucky since 1989. He is responsible for the hiring of administrative employees, the resolution of discrimination cases, and other employment related matters. From 1987 to 1989 he was a training supervisor in the Human Resources Department, and from 1984 to 1987, he was a Store Manager in the SCD. R.T. at 21-3545-47. 42. Willi Fumero has held the position of Payroll and Benefits Manager since 1980. Her responsibilities are maintaining personnel records, verifying and compiling employee work schedules, creating the seniority list for allocation of additional hour's, and compiling the bid list for movement to full-time. R.T. at 21-3596-97. 43. Bruce Gentile has been the Manager of Training and Development at Lucky since 1988. Gentile’s responsibilities are to recommend, evaluate and develop training programs. Gentile was first hired by Lucky in 1972 as a Courtesy Clerk. R.T. at 21-3637. He has held the positions of Fourth Person, Third Person, Assistant Store Manager, and Labor Scheduling Coordinator in the NCD. R.T. at 21-3630. 44. Milton Hardy has been a District Manager at Lucky since 1985. Hardy is responsible for the profitable operation of all the stores in District 1. His duties include staffing, merchandising of stores and representing the district at labor grievances. He tours each store in his district two or three times a month. Hardy was promoted to Store Manager in 1973 and held that position until 1977. From 1977 to 1981 Hardy was a Produce Merchandiser and from 1981 to 1985 he was a Grocery Supervisor. From 1965 to 1973, Hardy held the positions of Journey Clerk, Fourth Person, Third Person and Assistant Store Manager. He joined Lucky in 1965 as an Apprentice Clerk. R.T. at 31-5142-48. 45. Peter Garrett'Michon has been the Produce' Merchandiser in Lucky’s NCD since 1991. Between 1990 and 1991 he attended the Food Management Program at the University of Southern California. From 1986 until he went to USC, Michon was a Store Manager in the NCD. His District Manager is Milton Hardy. He has also held the positions of Fourth Person, Third Person and Assistant Store Manager. R.T. at 20-3311-13. Initial Placement A. Hiring 46. Lucky places advertisements for Deli/Bakery Apprentices. Those advertisements are not specifically directed at women. R.T. at 4-696 (Grant); 6-985 (Hoffman)., Lucky advertises for help in all departments upon the opening of a new store. R.T. at 6-985 (Hoffman). After opening, Lucky does not usually place advertisements for openings in departments other than Deli/Bakery or Pharmácy. R.T. at 5-851 (Grant). Lucky has advertised for help in the Grocery, Meat, Produce, and General Merchandise departments only occasionally. R.T. at 6-985 (Hoffman). With the exception of Deli/Bakery, the primary method by which people are recruited at Lucky is through walk-ins, not in response to advertisements. R.T. at 10-1693 (Javier). 47. One to three days a week, Lucky stores accept applications for new hires. R.T. at 8-1296 (Foley); 4-697 (Grant); 10-1695 (Javier). Applicants can only get a job application form from the person in charge of the store. R.T. at 5-852 (Grant); 10-1694 (Javier). Most, if not all, hiring is done through the application process. R.T. at 4-698 (Grant). 90% of the people who apply for positions in the Deli/Bakery department are women. R.T. at 6-991, 7-1097-99 (Hoffman). Grant testified that he “was told” that more women than men respond to advertisements for Deli/Bakery positions. R.T. at 4-718 (Grant). 48. There is one standard job application form. Generally, the completed applications are retained at the store of application for about a year. Each store has its own policy for keeping completed applications. R.T. at 4-701-02 (Grant). After hiring decisions are made, the completed job applications are sent to the Human Resources Department and kept as part of the employee’s personnel file. R.T. at 21-3602 (Fumero); 5-854 (Grant). 49. A Store Manager or an Assistant Store Manager verbally gives applicants for jobs information about the positions that are available. R.T. at 1-144 (Gill). An applicant responding to an advertisement might or might not be informed about other openings in the store. R.T. at 5-855 (Grant). 50. Neither Store Managers nor Assistant Store Managers are given instructions about how to interpret job applications. R.T. at 5-853 (Grant); 21-3496 (Michon). Nor are they given instructions about what to look for in making hiring decisions. R.T. at 1-144 (Gill); 2-345 (Grant). However, the appearance of Lucky employees is important because they are handling food and they must seem sanitary. R.T. at 4-629 (Grant). Except for' being over sixteen years of age, there are no minimum qualifications or experience for being hired into Courtesy Clerk or Apprentice Clerk positions. Ex. A-19 at 13; R.T. at 1-64-65 (Gill). 5Í. Store Managers have absolute discretion in making decisions about hiring. R.T. at 4-693-94 (Grant). Goodspeed believes that Store Managers are in the best position to make hiring, promotion and termination decisions based on the needs of their individual store. R.T. at 18-3158-60 (Goodspeed). B. Placement 52. New employees are hired for specific positions in specific departments. ' R.T. at 4-693-94 (Grant); 31-5155 (Hardy); 6-983 (Hoffman); 20-3333 (Michon). A new hire to Lucky is usually assigned to a position as a Courtesy Clerk, as a Utility Clerk, or an Apprentice Clerk in any one of the four departments. Courtesy Clerk is the most common entry-level position. Joint Statement ¶ 30. Because there is a high attrition rate in Deli/Bakery, new hires are often assigned to Apprentice positions in that department. R.T. at 4-693-94 (Grant). 53. In deciding the department into which to place a new employee, Store Managers are not constrained by the UFCW Contract or by Lucky policy. R.T. at 1-70-71 (Gill); 31-5153 (Hardy). In fact, Store Managers have complete discretion in making these decisions and make them based on the needs of the store. R.T. at 2-346 (Grant); 6-984 (Hoffman). If there is an opening in the requested department, Store Managers can take the preferences of new hires into account. R.T. at 4-699 (Grant). The decisions of Store Managers regarding placement of new hires are not reviewed by upper-level management. R.T. at 6-984 (Hoffman); 20-3341 (Michon). Store Managers must have final approval from the District Manager or the Grocery Merchandiser before making placements. R.T. at 31-5153 (Hardy). 54. Lucky’s standard procedure manual says that “married women who desire to work only a few hours a day often make valuable part-time cashiers.” Ex. A-19 at 15. Gill understood this to mean that married women are a good source of part-time employees, and not that married women should only be considered for particular jobs. R.T. at 1-145, 2-215 (Gill). 55. During his tenure as District Manager, Hoffman never received a complaint from a woman about the fact that she was initially placed in the Deli/Bakery or General Merchandise departments. R.T. at 6-991 (Hoffman). 56. The District Manager receives a list of new hires. R.T. at 2-344 (Grant). The Union is not given information about the placement of new hires. R.T. at 2-262 (Gill). UFCW Contract § 2.5.3 requires that Lucky direct new hires to report to the Union within seven days of hire in order that the Union can inform the new hire of the provisions of the UFCW Contract. R.T. at 2-199 (Gill). New hires must join the Retail Clerks Union within thirty days of hire. R.T. at 1-66 (Gill). Promotion A. Lucky’s Job Ladders 57. An employee can be promoted from the position of Courtesy Clerk to Apprentice Clerk in either the Grocery, Produce, General Merchandise, or Deli/Bakery departments. Joint Statement ¶ 35. 58. Upon completion of a.certain number of work hours set forth in the UFCW Contract, an Apprentice Clerk automatically becomes a Journey Clerk. During the Apprentice Clerk period there are several automatic wage increases after specified numbers of hours worked. Joint Statement ¶ 36. 59. The promotional level above Journey Clerk is Department Head. Joint Statement II37. 60. The pool of employees considered for promotion to Deli/Bakery Department Head and General Merchandise Department Head is primarily comprised of Deli/Bakery Journey Clerks and General Merchandise Journey Clerks, respectively. Joint Statement ¶137. 61. The pool of employees considered for promotion to Produce Manager is primarily comprised of Produce Journey Clerks. Joint Statement 1137. 62. The pool of employees considered for promotion to entry-level department head jobs in the Grocery Department is primarily comprised of Grocery Journey Clerks. The primary entry-level management job classification in the Grocery Department is Fourth Person or, in some stores, Fifth Person. Depending on the size of the store, other Grocery Department Head level job classifications include, Front-End Clerk, Night Crew Manager, and Receiving Clerk. The District Manager, with input from the Store Managers and the appropriate Merchandiser, makes Department Head promotion decisions for Front-End Clerk, Night Crew Manager, and Receiving Clerk. In the case of Produce Manager, Fourth Person, Deli/Bakery Department Head and General Merchandise Department Head promotions, the District Manager’s recommendations must be approved by the Vice President of Operations. Joint Statement ¶ 37. 63. The next level of promotion in the Grocery Department is from entry-level Department Head jobs to Third Person. Most of the employees considered for promotion to Third Person come from Fourth Person. Lucky considers movement from Fourth Person to Third Person to be a promotion although both positions receive the same hourly wage rate. Third Person promotions are made by the same decision makers as are Fourth Person promotions. Joint Statement 1138. , 64. The next level of promotion in the Grocery Department is from Third Person to Assistant Store Manager. Most of the employees considered for promotion to Assistant Store Manager come from Third Person. Until 1989, the District Managers and the Vice President of Operations made recommendations for promotion to the Assistant Store Manager position to the Senior Vice President of Operations. The Senior Vice President of Operations was responsible for approval. Joint Statement II 39. 65. The final level of promotion in the Grocery Department is to Store Manager. Most of the employees considered for promotion to Store Manager come from Assistant Store Manager. Until 1989, the District Managers and the Vice President of Operations made recommendations for promotion to Store Manager to the Senior Vice President of Operations. The Senior Vice President of Operations was responsible for approval. Joint Statement ¶ 40. 66. No written, oral or hands-on tests are required for assignment or promotion to any retail store position. Joint Statement H 41. B. The UFCW Contract Provisions on Promotion 67. Section 4.3.1 of the UFCW Contract provides: Promotion: Determination of which employee is to be promoted will be based upon seniority provided, the employee with the highest seniority has the qualifications necessary for the job. Qualifications shall include such factors as experience, job performance, aptitude, attendance, etc. Where merit and ability are approximately equal, seniority shall control. Joint Statement ¶ 42. This is the only provision in the UFCW Contract regarding promotion criteria. R.T. at 1-96 (Gill); 2-352 (Grant). 68. Section 4.3.2 of the current UFCW Contracts for Locals 588 and 1288 creates a job posting program. That program was implemented in 1989. Section 4.3.2 provides: All permanent job vacancies above the Journeyman Food Clerk classification shall be posted at each store of the Employer within the seniority area specified herein for a period of five (5) days. The job posting shall specify the job classification and location of the store where the permanent job vacancy exists. Any employee interested in [the] permanent job vacancy must complete a job bid form and return it to the Store Manager on or before the expiration of the posting period. In the event the Employer decides to promote an existing employee to fill the permanent job vacancy, then in that event the selection of the employee to be promoted shall be in accordance with the provision set forth herein. Any successful bidder who thereafter declines the promotion or is unable to perform the duties of the job shall be ineligible for any subsequent promotional bid for a period of six (6) months. Joint Statement II43. 69. Section 4.3.2 of the current UFCW contracts for Locals 588 and 1288 also creates a process by which Non-Food and General Merchandise Clerks may submit a written request for promotion to jobs below Journey Food Clerk. That section provides: All permanent job vacancies below the Journeyman Food Clerk classification shall be handled on a store-by-store basis. Non-Food and General Merchandise Clerks in each store who have worked in the Non-Food and General Merchandise Clerk classification for a period of two (2) full years and are desirous of promotion and are otherwise qualified for a promotional opportunity in accordance with this provision must file a semi-annual written request for promotion with their Store Manager during the first two (2) working weeks in January and July. In the event the Employer decides to promote an eligible Non-Food or General Merchandise Clerk within the store to fill the permanent job vacancy, then the selection of the employee to be promoted shall be in accordance with this provision. Joint Statement ¶ 44. C. Promotion Practices 70. Lucky’s general policy is to fill open positions by promoting current employees rather that by hiring people from outside of the stores. R.T. at 1-146 (Gill). Defendant asserts that job posting is not necessary at Lucky because Store Managers know which employees are interested in promotion, R.T. at 6-1063 (Hoffman), and because employees who excel have the ability to communicate their desire for advancement to management, R.T. at 18-3164 (Goodspeed). President Goodspeed believes that job posting would not be helpful. R.T. at 18-3056 (Goodspeed). Grant assumed that Lucky could not institute job posting because it is not provided in the UFCW Contract. R.T. at 4-668 (Grant). However, Grant had not been told this directly by anyone. R.T. at 5-860 (Grant). Defendant has not presented sufficient evidence to convince the court that job posting is proscribed by the UFCW Contract. 71. Lucky does not require that prospective promotees to all positions be interviewed. However, in the past few years, prospective Store Managers have been interviewed. R.T. at 3-438 (Grant). 72. Under UFCW Contract § 4.3.1, if one employee is more qualified than anoth-' er, the Store Manager does not have to consider seniority in making, a promotion decision. R.T. at 1-108 (Gill); 2-353-54 (Grant). Defendant asserts that qualifications are more important than seniority in making promotion decisions. 2100 (Herkal). Defendant also asserts that it is rare for two employees to have equal qualifications, so that seniority is seldom considered. R.T. at 32-5270 (Hardy). Moreover, because the seniority list is not posted an employee cannot check to see if the promoted employee has more-seniority than they do. R.T. at 1-114 (Gill). R.T. at 12- 73. Lucky has no official or uniform definition of merit, qualifications or ability. R.T. at 1-109-10 (Gill); 2-254, 2-355 (Grant). In addition, Store Managers are not systematically trained about how to define merit, qualifications or ability. Although interpreting the UFCW Contract is part of his job, no one had ever asked Gill how to interpret the term “qualifications” in that document. R.T. at 1-110 (Gill). There is no uniform definition of the term “job experience” in UFCW Contract §4.3.1. R.T. at 13-2274 (Herkal). An employee’s attitude, appearance, career-mindedness and intelligence can also be considered in promotion decisions. R.T. at 13-2276-78 (Herkal). ■74. The practices and policies of Store Managers are based on their personal judgment and experience. Unless they have worked at another store, they generally have no knowledge of the policies of other Store Managers. R.T. at 2-300 (Grant); 21-3540 (Michon). President Goodspeed believes that written promotion criteria are not necessary because “[t]his is not a big sophisticated business. This is a store that has 50 to 100 employees. They are all in the same building. They are not off working in a vacuum. They talk to each other. They socialize together, go on breaks together, go to lunch together, see each other, see what the other person is doing.” R.T. at 18-3172 (Goodspeed). In addition, defendant believes that Store Managers are best qualified to make hiring, promotion and termination decisions based on the needs of the individual stores, R.T. at 18-3158-60 (Goodspeed), even though these decisions may be subjective and may vary from store to store. 75. Store Managers do not look at what employees wrote on their initial applications when deciding whom they should promote to what position. R.T. at 20-3493-94 (Michon). In fact, job applications are neither available nor reviewed at the time of promotion. 76. There are no documents that reflect who was considered for a promotional opportunity, that reflect an employee’s interest in working a different shift, that reflect the' qualifications of employees for promotions, that reflect whether a Store Manager considered more than one person for a promotion, or that inform employees how they should express interest in promotion. R.T. at 10-1680-83 (Javier). 77. In 1988, Russell Specter told Lucky’s District Managers that without job descriptions they would have no basis on which to justify their promotion standards. R.T. at 7-1173 (Specter). Noriega-Ailor suggested that Lucky create formal job descriptions because they would help management focus on whether a prospective promotee has the skills necessary to perform the job. R.T. at 8-1422 (NoriegaAilor). However, other than what is written in the UFCW Contract, there are no job descriptions for Courtesy, Apprentice or Journey Clerk positions in any department. R.T. at 2-293, 4-656-58 (Grant); 10-1661 (Javier). There are no written promotion criteria for any position below Assistant Store Manager. R.T. at 10-1661 (Javier). The Union did not object when Lucky adopted job descriptions for Night Crew Manager and Third Person in 1989. R.T. at 31-5201-07 (Hardy); 13-2268 (Herkal). Lucky has failed to develop job descriptions that would provide guidance and objective standards for evaluation and promotion decisions, although the UFCW Contract does not bar the provision of job descriptions. 78. Lucky’s affirmative action policy says that “all promotional standards shall be realistically related to job requirements and shall be periodically re-examined to determine that they are genuinely job-related.” Ex. A-67; R.T. at 8-1428 (NoriegaAilor). 79. In late 1983, Noriega-Ailor organized a performance appraisal system for Lucky. All of the Store Managers were trained in the system which required that performance appraisal forms be completed and sent to the personnel office. However, in late 1984 Noriega-Ailor found that the appraisals forms were not being completed; eighty-one out of 126 stores had not filled out any forms. R.T. at 9-1581-83 (Noriega-Ailor). Compliance with the system picked up by 1988. R.T. at 9-1605 (Noriega-Ailor). Lucky conducted one appraisal training program for Store Managers in 1987 and another for Store Managers and District Managers in 1989. R.T. at 10-1732, 10-1734 (Javier). 80. Store Managers are not required to review performance appraisal forms before making promotion decisions. R.T. at 9-1624 (Noriega-Ailor). Grant never asks for employees’ performance evaluations in deciding whether to promote them. Moreover, despite the rule that employees with over a certain number of disciplinary notices cannot be promoted, it does not appear that anyone checks disciplinary notices. R.T. at 3-448-49 (Grant). . 81. If a Store Manager makes an improper promotion decision, the aggrieved employee can bring a grievance. R.T. at 12-2121-22 (Herkal). a. Apprentice Clerks 82. There is no bid form or application process for promotion to Apprentice Clerk positions. Courtesy Clerks have no formal way of knowing who is being considered for promotion. Store Managers need not document the reasons for their promotion decisions and those decisions are not subject to review except through the grievance process. R.T. at 1-104-05 (Gill). Thus, promotion decisions are extremely subjective, vary from store to store, and allow stereotypes and other improper considerations to enter into the decision making process. 83. Courtesy Clerks are equally qualified for Apprentice Clerk positions in each of the four departments. R.T. at 2-359 (Grant). Store Managers consider whether an employee is available when deciding who to promote to Apprentice. They do not consider the experience or education of the potential promotee. R.T. at 1-104-05 (Gill). Michon only promotes Courtesy Clerks to Apprentice positions in Grocery because he “knew their capabilities ... [he] knew what they could do.” R.T. at 20-3334 (Michon). Herkal has found that Courtesy Clerks have more relevant experience for promotion to the position of Grocery Apprentice than do Deli/Bakery or General Merchandise Clerks. Deli/Bakery or General Merchandise Clerks usually do not have exposure to the Grocery department. R.T. at 12-2168 (Herkal). Herkal also believes that a less senior Courtesy Clerk can be promoted to a Grocery Apprentice position over a more senior Deli/Bakery or General Merchandise Clerk because there are separate seniority systems for Food and Non-Food employees. R.T. at 12-2167 (Herkal). 84. Store Managers have complete discretion in deciding which department each Apprentice Clerk should be placed in. Store Managers also decide who is to be assigned to night and day work. R.T. at 1-72-75 (Gill); 2-343, 2-357-58 (Grant). They do not have to consider what employees indicated as their department of preference on their initial application. However, Store Managers must consult the Department Head and the District Manager before promoting into a department. R.T. at 2-342, 2-359 (Grant). b. Journey Clerks 85. An employee must have 2,080 hours of experience to be hired directly into a Journey Clerk position. Only hours spent at the Apprentice level count toward those necessary for promotion to Journey Clerk. Lucky has a system to ensure that this policy is followed. R.T. at 1-76-77 (Gill). 86. Store Managers have complete discretion in deciding which tasks each Apprentice or Journey Clerk should perform (checking, stocking, or receiving merchandise), and which shifts they should work. No records are kept of these decisions and there is no review of these decisions. R.T. at 1-79-80 (Gill); 2-340-41 (Grant); 5-888 (Hoffman). c. Fifth Person/Front-End Manager 87. The position of Fifth Person only exists in high volume stores, defined as those that take in over a half million dollars a week. , R.T. at 2-350, 4-668 (Grant). There are about thirty or forty such stores in the NCD. R.T. at 4-670 (Grant). The duties of a Fifth Person are essentially the same as those of a Fourth Person. R.T. at 4-669 (Grant). 88. The Front-End Manager position was created in 1987. Front-End Managers monitor and supervise the Courtesy Clerks. Ex. A-47; R.T. at 2-332-33 (Grant). Most Front-End Clerks are women. R.T. at 2-336 (Grant). Grant could not remember whether any Front-End Clerks had ever been promoted into management. R.T. at 3-373 (Grant). 89. Michon considered experience, interest, cooperation, availability and job performance in deciding who should .be promoted to Front-End Manager. R.T. at 20-3423 (Michon). d. Department Head/Fourth Person/Receiving Clerk 90. ’ Fourth Person is the principal entry-level management position. R.T. at 1-90 (Gill); 3-382 (Grant). Fourth Person is responsible for light bookkeeping, stocking, customer relations, security matters, building displays, and is often left in charge of the store. R.T. at 20-3431-6 (Michon). Grant testified that the Fourth Person closes up the store once or twice a week, replaces the Third Person if s/he is on vacation or has stepped up, does some bookkeeping, moves heavy dairy cases, and uses a forklift to build the displays. The Fourth Person must answer customer complaints and ensure the security of the store. R.T. at 8-1320-23 (Foley). The Fourth Person is required to work late shifts and weekend shifts. R.T. at 4-668-72 (Grant); 6-1031 (Hoffman). However, the Fourth Person also does a.lot of office work. R.T. at 5-843 (Grant). 91. Store Managers make the initial recommendation to the Grocery Merchandiser that an employee should be promoted to Fourth Person. R.T. at 3-437 (Grant); 6-1039 (Hoffman). The District Manager has the final say over the promotion. R.T. at 6-1040 (Hoffman). In deciding whom to recommend for promotion to Fourth Person, Store Managers consider whether the employee is interested in the job, is cooperative, and is available to accept the position. R.T. at 20-3352-7 (Michon). The seniority of the prospective Fourth Person is less important than the person’s qualifications, availability and interests. R.T. at 21-3529 (Michon). In recommending employees to be promoted to Third Person and Fourth Person, Hoffman considers whether they have experience in the Grocery department, whether they are a good role model, whether they get a job done, their dependability (punctuality), performance, honesty, ability, intelligence, career-mindedness, and availability. R.T. at 6-1045-52, 7-1138 (Hoffman). Hardy considers level of interest, availability, experience, seniority, disciplinary write-ups, and job performance. R.T. at 31-5242-5 (Hardy). There is no written list of criteria for promotion to Fourth Person. Prior discipline problems do not automatically bar someone from promotion to Fourth Person, unless the disciplinary write-up was recent. R.T. at 7-1110-13 (Hoffman). 92. Grant testified that in order to be promoted to Fourth Person, a Journey Clerk must have experience on the Night Crew. R.T. at 20-3352-7 (Michon); 5-799 (Grant). Michon felt that it was necessary for a Night Crew Manager to have night stocking experience, because “they should know the job in order to. supervise it.” R.T. at 20-3408 (Michon). Hoffman believed that Night Crew experience made an employee more promotable to Fourth Person, although it was not required; nevertheless, he did require that the employee have stocking experience. R.T. at 5-888, 6-1046, 6-1072 (Hoffman). Foley thought that in order to be promoted to Fourth Person, an employee must know how to work the milk box, the beverage aisle, merchandising, and displays. Employees who work in the late evenings have the opportunity to learn these tasks. Some of the duties of Fourth Person, such as stocking merchandise, working the beverage aisle and working the milk box require heavy physical work. R.T. at 8-1320-23 (Foley). ' Grant believed that experience in the Grocery department is important for promotion to management, because 65% of Lucky’s business comes from the Grocery department. R.T. at 4-653 (Grant). 93. Lucky does not have a written or unwritten policy which prevents Department Heads in the Deli/Bakery or General Merchandise departments from being considered for Fourth Person. However, employees from these departments are rarely promoted to Fourth Person. Generally, Store Managers do not consider employees in the Deli/Bakery or General Merchandise departments for promotion to Fourth Person. R.T. at 21-3530 (Michon). Grant believed that Deli/Bakery and General Merchandise employees would require training before they would be qualified for promotion because they would not have had experience in the Grocery department. R.T. at 3-453, 4-716, 4-721. (Grant). Deli/Bakery and General Merchandise Department Heads would most need training in bookkeeping in order to be qualified for promotion to Fourth Person. R.T. at 5-831 (Grant). Store Managers would be more likely to promote the General Merchandise Department Heads who have Grocery experience that those who do not have Grocery experience to Fourth Person. R.T. at 5-832 (Grant). 94. It is very unlikely that a part-time employee would be promoted to an entry-level management position, R.T. at 3-500 (Grant), although part-time and full-time Journey Clerks are equally eligible for promotion to Fourth Person, R.T. at 1-107 (Gill). 95. Seniority should be the deciding factor in a promotion to Fourth Person only when the potential promotees have the same abilities. Hoffman has never seen a situation where the potential promotees have the same abilities. R.T. at 7-1113 (Hoffman). Herkal testified that seniority is not a significant factor in promotions to positions above Department Head. R.T. at 12-2100 (Herkal). 96. Since 1988 Grant has signed off on recommendations for promotion to Fourth Person. In deciding who to recommend for promotion to Fourth Person or Third Person, the District Manager discusses the qualifications of the candidates with the Store Manager. The District Manager is also familiar with the qualifications of the employees in his or her district. R.T. at 4-641-42 (Grant). Grant acknowledged that Store Managers have their own criteria for making these recommendations, but said that “you have to rely on the Store Manager’s past experience. The Store Manager was a Third Person or Fourth Person. The Store Manager would know what is needed for Fourth Person.” R.T. at 3-384, 3-420-21 (Grant). Some of the factors Store Managers might consider in making this promotion recommendation are the employee’s appearance, attitude, dress, aggressiveness, and family responsibility. R.T. at 3-488 (Grant). However, there is no assurance that these factors are considered in all or most promotion decisions. The District Managers do not have a consistent set of criteria which they check with the Store Managers before approving promotions. 97. Receiving Clerks handle the merchandise that comes into the store and cheek off inventory. There is no job description or selection criteria for Receiving Clerk. R.T. at 2-305-06 (Grant). Receiving Clerks were replaced by DSD Clerks in every store by April 1989. DSD clerks check the inventory on a computer and do not do as much physical work as did Receiving Clerks. R.T. at 8-1327 (Foley); 2-308 (Grant). The former Receiving Clerks got first choice of the new DSD Clerk jobs. R.T. at 2-315 (Grant). There are no minimum training or experience requirements for DSD clerk, however, there are established selection standards for DSD Clerks. Ex. A-44; R.T. at 2-309-10 (Grant). e. Third Person/Head Clerk 98. The only job description for Third Person/Head Clerk is in UFCW Contract § 9.1.2.3.3, which says Third Person opens and closes the store and is responsible for the operation of the store in the absence of the Store Manager and Assistant Store Manager. R.T. at 1-91 (Gill). 99. There are no written or unwritten standards for promotions to Third Person. R.T. at 2-356 (Grant). The criteria Store Managers consider in deciding promotions to Third Person are the same as the criteria for promotions to Fourth Person. However, holding the position of Fourth Person is a prerequisite to being a Third Person. R.T. at 20-3462-64 (Michon). 100. Most promotions to Third Person are based on qualifications, not seniority. There is no uniform definition of merit, qualifications or ability, and Store Managers need not document their findings as to qualifications. R.T. at 1-109 (Gill). f. Assistant Store Manager 101. In addition to doing labor scheduling and running the store when the Store Manager is off duty, the Assistant Store Manager performs all of the duties of a Journey Clerk, a Fourth Person and a Third Person. R.T. at 6-1037 (Hoffman). 102. ' Hoffman testified that there is a written job description for Assistant Store Manager. R.T. at 5-883 (Hoffman). However, Gill testified that there is no job description for Assistant Store Manager. The UFCW Contract does not require that Assistant Store Managers have any minimum of experience, training or education. R.T. at 1-94-95 (Gill). 103. Assistant Store Managers do much of the payroll, help write the work schedules, and oversee the operation of the entire store. R.T. at 4-676 (Grant). 104. Before 1989, Grant signed off on recommendations for promotion to Assistant Store Manager and the Director of Operations made the final approval of the promotion. Grant currently signs off on recommendations for promotion to Assistant Store Manager in his.districts, and the President of Lucky has the final approval. R.T. at 3-423 (Grant). 105. There are no set criteria for promotion to Assistant Store Manager. R.T. at 3-424 (Grant). Grant considers the volume and type of store from which the prospective Assistant Store Manager came, and the Store Managers for whom s/he worked. R.T. at 4-679 (Grant). Grant assumes that the District Managers talk to the employees they recommended for promotion. R.T. at 3-440 (Grant). g. Store Manager 106. .The Store Manager is responsible for labor scheduling, for the labor budget, and for the general supervision of the entire store. R.T. at 6-1038 (Hoffman). 107. On average, it takes six to ten years to progress from Fourth Person to Store Manager. R.T. at 6-1038 (Hoffman). From the time an employee is first hired, it takes approximately twelve to fourteen years to become a Store Manager; an employee usually remains in the position of Assistant Store Manager for five or six years before being promoted. R.T. at 31-5228-29 (Hardy). 108. There is a written job description for Store Manager. Ex. A-38; R.T. at 2-302 (Grant). The job description includes a summary of duties and a list of primary responsibilities in directing store operations, merchandising, personnel, capital expenditures, and store visits. The special requirements for the position are that the Store Manager must be a high school graduate with a thorough working knowledge of the retail 'food or drug business, have five to ten years of experience in the retail food or drug business (two years of which must be at the Assistant Store Manager level), have the ability to organize a retail store operation, the ability to train, organize and discipline employees, and the ability to operate a store under a union contract. Ex. A-38. 109. The UFCW Contract contains a job description for Store Manager. The job description says that “a managing clerk is an employee who has charge of and general supervision over not more than one store.” UFCW Contract § 9.1.1; R.T. at 1-95 (Gill). 110. There are no written criteria for deciding who should be promoted to Store Manager. R.T. at 1-96 (Gill); 18-3049 (Goodspeed); 5-880 (Hoffman). 111. Although Grant testified that the Store Manager position is open to Deli/Bakery Department Heads as long as they are good workers, R.T. at 5-830 (Grant), Gill' acknowledged that he did not know of any Deli/Bakery Department Heads who had become Store Managers. R.T. at 2-249 (Gill). Gill did not think that Deli/Bakery Department Heads would be qualified for the Store Manager job because they would not be familiar with the Grocery and Produce departments. R.T. at 2-268 (Gill). 112. President Goodspeed has the final say in Store Manager promotions. He makes his decisions based on the information provided on the promotion recommendation forms and from conversations, but he does not look at the employee's personnel file. R.T. at 18-3046-48 (Goodspeed). D. The Valley Posting Program 113. Before 1989 there was no job posting, bid process or application system for promotions at Lucky. R.T. at 1-115-16 (Gill). In 1989, Local 588, Sacramento and Local 1288, Fresno set up a job posting program (“Valley Posting Program”), which was rejected by the other retail clerk locals. Ex. A-16 at 13; R.T. at 2-226 (Gill); 12-2134 (Herkal). This is the only job posting program at Lucky. R.T. at 1-122 (Gill). Herkal testified that Lucky cannot implement job posting throughout all of its stores without Union approval, R.T. at 12-2144 (Herkal), however, defendant has not presented sufficient evidence to convince the court that job posting is proscribed by the UFCW Contracts. Goodspeed believes that a job posting program is not necessary because employees find out about openings by word-of-mouth. R.T. at 18-3124 (Good-speed). 114. Under the Valley Posting Program, openings are posted in all of the stores within the seniority area and bids for the opening are forwarded to the District Manager. The District Manager considers all the bids, interviews candidates for promotion and makes a selection. R.T. at 2-212 (Gill). However, according to Hoffman, the District Manager for the Valley Stores, employees who had not submitted bids would also be considered for promotions. R.T. at 8-1387 (Foley); 6-929 (Hoffman). 115. Foley was responsible for tracking promotion bids. R.T. at 8-1375 (Foley). In 1990, he found that 26% of the employees bidding for Fourth Person were women, while 34% of those eligible to bid were women. R.T. at 8-1384 (Foley). 116. The job posting program allows Journey Clerks in the Non-Food departments who have worked at Lucky for two years to bid for promotion semi-annually. This is the only way that Journey Clerks in the Non-Food departments can move out of those departments. R.T. at 1-122 (Gill); 12-2165 (Herkal). Hoffman was not aware of this provision of the program. R.T. at 6-929 (Hoffman). 117. The Valley Posting Program only applies to promotions to the positions of Produce Department Head, Third Person, Fourth Person/Receiving Clerk, Night Crew Manager.and Head Clerk Night. The program does not apply to openings for Deli/Bakery or General Merchandise Head, Assistant Store Manager or Store Manager. R.T. at 1-120-21 (Gill); 6-928 (Hoffman). • 118. District Managers have had no problems working with the Valley Posting System, except that it causes a “little administrative hassle.” R.T. at 12-2150 (Herkal). E. Training 119. President Goodspeed testified that additional training makes an employee more promotable. R.T. at 18-3166 (Good-speed). ■ 120. The Store Managers and the Department Heads are primarily responsible for training employees. R.T. at 5-760-61 (Grant). However, it is too expensive to offer additional training to all employees. R.T. at 18-3167 (Goodspeed).- Store Managers rely on their personal experience to decide who should get training, especially for entry-level management positions. R.T. at 22-3745-46 (Gentile); 1-93 (Gill); 3-487 (Grant); 7-1108-09 (Hoffman). In making these decisions, they might consider appearance, attitude, dress, aggressiveness, and the employee’s family responsibility. R.T. at 3-488 (Grant). Store Managers are not required to survey their employees to see who is interested in training and promotion. R.T. at 3-490 (Grant). Nor does Lucky systematically monitor which employees receive on-the-job training. R.T. at 22-3746 (Gentile). Historically, Lucky has relied on on-the-job training. R.T. at 21-3647 (Gentile). There is no formal training program for non-management employees to make them more promotable. R.T. at 3-486 (Grant). 121. Store Managers are more likely to promote an experienced employee than to train an inexperienced employee to fill a position. R.T. at 3-495 (Grant). 122. . Section 9.1.4.3 of the UFCW Contract mandates that Grocery Apprentices must get thirteen weeks of checking experience and thirteen weeks of stocking experience during their first year at Lucky. There is no mechanism to ensure that every Grocery Apprentice receives this training. R.T. at 1-66-68 (Gill). However, neither Gill nor Grant knew of any complaints or grievances brought by an employee because they had not received this training. R.T. at 2-212 (Gill); 5-769 (Grant). Neither had Grant received complaints from women that they received less training than did men. R.T. at 5-761 (Grant). 123. Deli/Bakery employees receive several types of formal training: baking school, a baking manual, a deli manual, cake decorating school, a cake decorating manual, and a sixteen hour class on product knowledge and suggestive selling. R.T. at 22-3710-13 (Gentile). 124. The Entry-Level Management Training program (“ELMT”) was instituted in the NCD in 1988. Ex. B-204; R.T. at 5-857-59 (Grant). ELMT-1 is for Fourth Persons, and ELMT-2.is for Third Persons. R.T. at 8-1371 (Foley); 22-3689 (Gentile). The programs last four weeks and provide hands-on training in all of the departments. Foley monitors which employees are selected to participate in the ELMT. Some of the graduates of the ELMT have been promoted to Assistant Manager. R.T. at 11-1817-18 (Javier); 5-762-65 (Grant). 125. Only those employees who are recommended by the District Managers may apply to the program. R.T. at 22-3759 (Gentile). Each Dis