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OSTAPOWICZ v. JOHNSON BRONZE CO.

December 28, 1973

Angeline Ostapowicz, Plaintiff
v.
Johnson Bronze Company, Defendant


Knox, D.J.


The opinion of the court was delivered by: KNOX

This is a class action case brought on behalf of plaintiff and other members of a class alleging that sex discrimination exists in the plant of Johnson Bronze Company, defendant, at New Castle, Pennsylvania. It is another of the cases described by Judge Dumbauld of this court in Bradford v. Peoples Natural Gas Company (W.D. Pa. 1973), 60 F.R.D. 432, as resulting from the efforts of the "suave and subtle Southerners in Congress who put sex into the Civil Rights Act of 1964" when a giant step was taken towards "women's lib". The Section of the Act with which we are concerned is Section 703(a) (1) which reads:

 
"It shall be an unlawful employment practice for an employer --
 
(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." (42 U.S.C.A. § 2000e - 2(a) (1).

 This action was brought on April 28, 1971, based upon a previous finding of reasonable cause entered July 10, 1970, by the Equal Employment Opportunities Commission (EEOC) YCL9-079 in which a thirty-day letter authorizing suit was issued March 29, 1971, which suit was thereafter duly commenced within the thirty days on April 28, 1971. On May 14, 1971, the complaint was amended to include two other thirty-day letters dated May 11, 1971, Nos. TCL-10558 and TCL-10802, Exhibits B and C attached to the Amendment to the Complaint, respectively.

 After two days of hearings, the court concluded not to issue a preliminary injunction which had been sought, because no irreparable harm had been shown, although the court did determine tentatively that a prima facie case of sex discrimination had been made out. The evidence taken on the preliminary injunction is before us now under Rule 65(a). Despite protests by the defendant, the case was permitted to proceed as a class action and notices were duly sent to members of the class, certain of whom decided to opt out. Despite further attacks by the defendant, the court refused to deny the case the right to proceed as a class action.

 After four more days of hearings, the case is now before the court for decision on the merits with respect to the issue of liability only. The issue of damages was deferred. The complexity of the issues in this bitterly fought litigation is shown by the fact that defendant's brief contained 99 pages plus appendices and the parties have together requested 226 findings of fact. Most of these are unnecessary, being directed at minutiae of details of evidence of individual witnesses. We proceed to make what the court regards as the essential findings as follows:

 Findings of Fact

 (A) Procedural and Jurisdictional

 1. Defendant Johnson Bronze Company is a Pennsylvania business corporation with its principal offices and only production plant which it owns and operates in New Castle, Lawrence County, Pennsylvania.

 2. The plaintiff and other members of the class are individuals and residents of the Western District of Pennsylvania.

 3. A charge was filed with the EEOC by Local 69, United Automobile, Aerospace and Agricultural Implement Workers of America (the union) on April 18, 1968, at Case No. YCL9-079 (hereinafter "YCL charges"). The union represented approximately 750 of the defendant's production and maintenance employees. The charge alleged that the defendant was maintaining job classifications segregated on the basis of sex, which segregation resulted in unequal lay-off and recall rights by female employees within the bargaining unit (our emphasis). Specifically, the charges related to the jobs of heavy packer in the shipping department, division 4 of the defendant's New Castle plant. The EEOC investigated this charge, and issued a decision on July 10, 1970, finding probable cause to believe the charge (Plaintiff's Exhibits A, UU).

 4. On March 29, 1971, the EEOC mailed to all members of the union interested in the charge, a letter stating that conciliation had failed at Case No. YCL9-079, and that all members of the class were entitled to sue in federal district court within 30 days of the receipt of the letter.

 6. The amended complaint in this action also alleges two further charges: TCL1-0558 and TCL1-0802 (Appendices 2 and 3). On May 10, 1971, the EEOC issued thirty-day "right to sue" letters on these two additional charges and on May 14, 1971, the plaintiff amended her complaint to include these additional charges referred to as the 1970 charges, filed October 16, and 27, respectively.

 7. On March 10, 1972, the court determined that this action should proceed as a class action.

 8. By order of March 10, 1972, the description of the class was revised to read as follows: "All past, present and future female employees of defendant Johnson Bronze Company at its New Castle, Pennsylvania, plant including all females who may in the past have sought and been denied employment because of sex discriminatory practices, with subclasses as follows: (a) all present female employees; (b) all past female employees; (c) all future female employees; (d) all females who have sought and been denied employment because of sex discriminatory practices."

 (B) On the Merits

 9. The defendant's plant operates in divisions as follows: (See Stipulation of Facts attached as Appendix A to Pretrial Stipulation.)

 
(1) Machine Shop
 
(2) Strip Manufacturing Department
 
(3) Foundry, Cleaning Room and Core Room
 
(4) Packaging and Shipping
 
(5) Maintenance
 
(6) Tool Room
 
(7) Safety and Sanitation
 
(8) Inspection
 
(9) Timekeepers and Expediters
 
(10) Pattern Shop

 10. Mrs. Angeline R. Ostapowicz was one of the class of complainants in EEOC Case No. YCL9-079, having received a "right to sue" letter as a member of the class from the EEOC dated March 29, 1971.

 11. As determined by the McBee personnel cards (Stip. Ex. 56) supplied by the defendant and the seniority list from the years 1960 to 1972 (Stip. Ex. 57), there have never been any females employed in the following divisions: (1) Foundry Division; (2) Tool Room Division; (3) Division 2 or Plant 2; (4) Maintenance Division and (5) Pattern Shop Division.

 12. No woman ever operated as a department trucker in Division 1.

 13. Lawrence Chiarini, seniority date May 27, 1952, was made a mail clerk in 1970 when many women senior to him were laid off; no female was ever made a mail clerk after 1960.

 14. Rose Fortuna, hired October 25, 1948, and seven other women, senior to Lawrence Chiarini, would not have had their employment terminated in 1972 if they would have been called back as mail clerks (Pltf's Ex. AA, Stip. Ex. 57).

 15. In the year 1965, the defendant hired thirteen men in Division 1 and no females.

 16. In 1966, the defendant hired 52 men in Division l and one female.

 17. The only female hired in 1966 in Division 1 was Rose Curry, who was a relative of the former chief electrician of the defendant, Alex Pazsint. During the years 1963-1966, William Wise, personnel manager of the defendant, could recall hiring only one woman (Rose Curry) in Division 1.

 18. During the years 1966 to 1972, the total employment of the defendant varied from 1,100 employees to 604 employees. There were extensive decreases in the number of employees during these years as the result of decline in business.

 19. Of the total work force of employees slightly less than 50% are employed in Division 1.

 20. According to the EEO-1 Reports filed by the defendant in 1966, there were 147 female semi-skilled operatives (Pltf's Ex. WW); in 1967, there were 150 female semi-skilled operatives (Pltf's Ex. VV); in 1968, there were 119 female semi-skilled operatives (Pltf's Ex. XX); in 1969, there were 51 female semi-skilled operatives (Pltf's Ex. YY); in 1970, there were 53 female semi-skilled operatives (Pltf's Ex. ZZ); in 1971, there were 46 female semi-skilled operatives (Pltf's Ex. AAA); in 1972, there were 73 female semi-skilled operatives (Pltf's Ex. BBB).

 21. In Division 1, there are four departments: aluminum, strip bushing, thin wall bearing and brass shops and in the four departments in Division 1, there are 320 machine centers. (Stip. Facts #19)

 22. In the machine operations of the defendant in Division 1, there are two separate classifications of machine operators: first class and second class. (Stip. Facts No. 21)

 23. In the years from 1960 until the end of 1972, there have been only two female employees who have been made first class machine operators in Division 1 and only two classifications of machines. They were Norma Ferrante and Theresa Trivilino.

 24. A second class operator makes approximately ten cents a hour less than a first class operator under the wage scale.

 25. Strength is not a determinative factor in becoming a first class operator and females are physically capable of making set-ups.

 26. The manufacturing by the machines in Division 1 must meet precise specifications with very close tolerances.

 27. The defendant's witness, William Wise, personnel manager, stated that to become first class, you must learn by tear-downs, watching machine setters, asking questions and attempting to make set-ups.

 28. It is not possible to qualify for first class without experience, and you get the ability to be first class on machines only where you were second class. If you know how to set-up one type of machine in one machine center, this does not mean that you know how to set-up another machine in another machine center.

 29. An employee who bumps *fn1" another employee on a machine has to be able to operate the machine and qualify as a first class operator immediately upon making the bump.

 30. The defendant has no formal training program to help second class operators in the first division become first class operators.

 31. Male machine operators were promoted to first class with no training and much less experience than females. Women were sent to the restroom and hence could not watch setters setting up their machines. The foreman of the defendant did not allow women to wait and watch machine setters set up the machines. This prevented women from acquiring the necessary skills.

 32. In an average month, there are approximately 1,600 set-ups made by first class operators and ...


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