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January 8, 1986


The opinion of the court was delivered by: SHAPIRO


 This is an action brought by certain employees against their employer and their union for breach of the collective bargaining agreement by the employer and the "duty of fair representation" by the union. The case was tried without a jury; the court's findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52 follow.

 Findings of Fact

 Defendant Oscar Mayer Foods Corporation *fn1" ("Oscar Mayer") is a wholly owned subsidiary of General Foods Corporation. Oscar Mayer owns and operates a plant at 3333 South Front Street, Philadelphia, Pennsylvania (the "plant").

 Plaintiffs, employed in various capacities at the Oscar Mayer plant on February 26, 1982, allege that on and after February 26, 1982 Oscar Mayer violated the Collective Bargaining Agreement (the "Agreement"; Ex. P-1) in effect at the plant. *fn2" Defendant United Foods and Commercial Workers Union, Local 125, AFL-CIO ("Local 125" or the "Union") is the collective bargaining representative of certain employees at the plant. Plaintiffs brought this action against Local 125 for breach of its "duty of fair representation." *fn3"

 Employees at the Oscar Mayer plant work in various departments. Production jobs at the plant were divided by the labor contract into three categories:

Group A - jobs which are primarily of interest to males.
Group B - jobs which are primarily of interest to females.
Group C - jobs which are of interest to both males and females.

 Agreement, Article 10, Section 2. *fn4" Section 3 of Article 10 of the Agreement provides that "in applying seniority" employees will not be required to take nor be considered for jobs primarily of interest to members of the opposite sex unless they so request.

 This job classification system was approved by the Equal Employment Opportunity Commission ("EEOC") in a Conciliation Agreement entered into in 1975 and reviewed for compliance in 1977 (Ex. DM-37). ("DM" refers to an exhibit introduced by defendant Oscar Mayer.)

 The 1975 conciliation agreement provides in part:

Respondent agrees that it will counsel all female production employees currently employed at the Philadelphia plant on Company time and at their normal rates of pay, with the object of acquainting such employees with the various opportunities available in Group A jobs and to fully explain to them the nature, level of difficulty, rates of pay, and advancement opportunities available to them in such jobs.

 Conciliation Agreement, Article III, Section 3(c)(1).

 Each of the female plaintiffs in this action attended presentations at which all Group A jobs at the plant were discussed. The script used by Oscar Mayer personnel at these presentations (Ex. DM-38) concludes:

It has been our intent to identify and describe various jobs in the plant that have been traditionally done by men. We hope this presentation has been informative and that when any of these jobs are posted you will feel free to sign for them. This does not mean that the ABC system will be eliminated but that you are permitted and encouraged to bid on group "A" jobs if you so desire. Clarification of the job posting procedures can be found in the Labor Agreement on page 20 through 30. At this point, if you have any questions, the foreman or Personnel representative present will gladly try to answer them. Thank you for your attention. (Emphasis added).

 Pages twenty through thirty of the Agreement cover sections 4 through 20 of Article 9.

 In the event of a department closing, Article 9, Section 24 provides for "displacement" into other jobs in the plant on the basis of seniority. Subsection (a) provides in part: "whenever a department is closed permanently, the employees with posted jobs in the discontinued department shall have, in accordance with the following procedures, the opportunity to displace junior employees and establish seniority in a new department." "Posted" jobs are permanent positions. Under Section 24(a), employees with permanent jobs in closed departments may displace employees who have less plant seniority in permanent jobs in other departments. Section 24(a) does not explicitly refer to Article 10 of the Agreement.

 An employee who does not or cannot "displace" under Section 24(a) may also "bump" into non-posted (temporary) jobs in other departments on the basis of plant seniority under Article 9, Section 24(c). Section 24(c) refers to the procedures provided by Article 9, Section 17, also applicable where a department is not closed but undergoes a permanent reduction in work force. Employees who go on layoff status can bump back into the plant only after they have been on layoff for eight or more consecutive weeks. Agreement, Article 9, Section 17(f). Article 21 provides separation allowances and also requires Oscar Mayer to "give notice at (sic) the closing of the plant or division of the plant or a major department of the plant at least six (6) months prior to such closing."

 On July 17, 1981, Oscar Mayer posted and mailed notices that it would close plant Department 146. On August 21, 1981, Oscar Mayer posted and mailed notices that it would also close Departments 161 and 164. The five female plaintiffs were working Group B jobs in Department 164 on February 26, 1982, the day the department was permanently closed.

 Plaintiffs Cronin, Aaron, Reid, Baxter and Cofey

 In late 1981 after Oscar Mayer announced that three departments would close, Armin J. Steckler, Personnel Manager, reviewed the provisions of the Agreement applicable to department closings. On December 18, 1981, Mr. Steckler met with Frank Quattrone, then President of Local 125, *fn5" to discuss the matter. Mr. Steckler and Mr. Quattrone met in early January, 1982, with the Vice-President/Plant Manager, the Production Manager, Engineering Manager, and the Executive Board of Local 125. The union officers did not agree completely with Oscar Mayer's interpretation of the Agreement in regard to department closings but they agreed Article 10 applied to the provisions of Article 9, Section 24, i.e., employees in closed departments would not be considered for displacement to jobs primarily of interest to members of the opposite sex unless they so requested.

 On January 31, 1982, the Local 125 stewards, including plaintiff Cofey, *fn6" attended a meeting called by Mr. Quattrone. Mr. Quattrone handed out copies of an Oscar Mayer memorandum, dated December 18, 1981, *fn7" regarding Article 21 of the Agreement. Mr. Quattrone stated at the meeting that this document had not been signed nor approved by the union in any way. A general union meeting was held one hour after the stewards' meeting. Among other matters, the Oscar Mayer memorandum interpreting Article 21 was discussed. The necessity for female employees to specifically request consideration for displacement to Group A jobs was not discussed at either of the meetings on January 31, 1982.

 During the first two weeks of February, 1982, Mr. Steckler met with all employees directly affected by the imminent department closings in groups. He discussed their rights and options under Section 14, 17, and 24 of Article 9 and Article 21 of the Agreement; he relied in part on the Oscar Mayer Article 21 memorandum discussed at the union meetings on January 31, 1982. Each employee who attended these February meetings was given certain documents explaining rights and options. Mr. Steckler also answered questions but he was not asked, and did not volunteer, that female employees must expressly request Group A jobs to be considered for them. Mr. Quattrone also attended those meetings; at certain of them he was asked whether female employees had to request consideration for Group A jobs and he answered that they did. Employees were told that if Mr. Steckler or some other management representative did not speak to them personally before February 22, 1982, it was likely they would be among those laid off.

 After these group meetings but before February 25, 1982, the five female plaintiffs (and certain other employees) jointly retained counsel. Counsel prepared a form letter stating in part: "I am willing and able to take another job in the Philadelphia plant immediately following February 26, 1982 . . . ." The letter did not explicitly state that the signatory wished to be considered for a Group A job (Ex. P-7, P-8, DM-9, DM-10).

 On the morning of February 25, 1982, plant supervisors asked Department 141, 161 and 164 employees who had not yet displaced other workers to sign "work preference forms." These forms, which are described by the Agreement, are used to state the categories of jobs for which an employee wishes consideration in "bumping" or recall from layoff status. The five female plaintiffs and certain other employees refused to sign these forms.

 On the afternoon of February 25, 1982, plaintiff Ida Reid handed Mr. Steckler an executed copy of the form letter prepared by counsel (Ex. DM-10). They did not discuss the letter's contents nor did Ms. Reid explicitly state that she desired consideration for displacement to a Group A job. But the next morning, Mr. Steckler concluded, after a conversation with Sara Hart, Employment Secretary, that Ms. Reid did wish to displace into a Group A job. Later that morning, at Mr. Steckler's request, production manager Russell Wiverstad showed Ida Reid three Group A jobs in other departments. Other employees with greater seniority were also choosing among these and other jobs, but plaintiff Reid obtained the job she preferred in Department 125 and reported for work at 3:30 p.m. on February 26, 1982. Three weeks later Ms. Reid was laid off from that job but she has filed no grievance challenging her layoff or the selection of jobs offered her on February 26, 1982.

 After plaintiff Reid was shown Group A jobs in other departments supervisors again presented "work preference forms" for execution. Plaintiff Reid protested that she should not have to sign the form but did so. Plaintiffs Cronin, Aaron, Baxter and Cofey signed the forms (Ex. DM-22 DM-24, DM-36, DM-21). None of the five female plaintiffs selected job categories on the forms and none told her supervisor she wished to displace to a Group A job. When she signed the form, plaintiff Cofey knew that plaintiff Reid had already been shown Group A jobs. Plaintiff Cofey did not ask her supervisor why this was so; neither did she ask why she was not offered a Group A job.

 Plaintiff Cofey testified that on February 25, 1982, she had handed Mr. Steckler copies of letters prepared by counsel and executed by her (Ex. P-7, P-8), plaintiffs Cronin, Baxter and Aaron and one other employee (Ex. DM-9) (Tr. 4.49-4.53 et seq.). Plaintiff Cofey testified that she did not mention these letters to her supervisor (Tr. 4.92), but on March 1, 1982 she told Denise Bennett, Personnel Office Secretary, that she had handed in the letters on February 25, 1982 (Tr. 4.97). Mr. Steckler did not remember receiving any letters from plaintiff Cofey (Tr. 5.134-5.135 et seq.) but he saw the letters of plaintiffs Cronin, Aaron and Baxter, former plaintiff Stafford, and one other employee (Ex. DM-9) in early March, 1982 after they were submitted to the Employment Secretary by plaintiff Reid. These letters were stamped received by the Personnel Department on March 5, 1982. *fn8"

 No other plaintiff had direct knowledge of when plaintiff Cofey delivered the letters. Ms. Reid did not refute Mr. Steckler's testimony that she had submitted the letters Oscar Mayer's Personnel Department acknowledged were received in early March, 1982 (Ex. DM-9). Defendants did not call the Employment Secretary or the Personnel Office Secretary but there was no evidence that either was still in the employment of Oscar Mayer at time of trial. The court concludes the form letters executed by the female plaintiffs were not received by Oscar Mayer until after February 26, 1982 except for that of plaintiff Reid.

 None of the plaintiffs discussed their displacement or the propriety of their layoff with any union officer other than plaintiff Cofey (who was a shop steward) until after February 26, 1982. When Department 164 was closed on February 26, 1982, plaintiff Reid reported to Department 125 that afternoon; plaintiffs Cronin, Aaron, Baxter and Cofey went on layoff status, effective March 1, 1982. All five female plaintiffs had sufficient plant seniority to displace into Group A jobs on the second but not the first shift. *fn9" None had enough seniority to displace into any Group B or C job. Their plant seniority dates are: Josephine Cronin, September 5, 1967; Irma Aaron, October 11, 1967; Ida Reid, August 21, 1967; Evelyn Baxter, February 27, 1968; and Katie Cofey, March 25, 1968.

 On March 1, 1982, plaintiff Cofey went to the Personnel Office at the plant and spoke with Ms. Bennett. Plaintiff Cofey examined the work preference form she had signed on February 26, 1982, and asked what she needed to do to return to work in any job including those in Group A. Ms. Bennett told plaintiff Cofey that because she was on layoff status she would have to wait to displace into the plant. Plaintiff Cofey did not discuss plaintiff Reid's displacement into a Group A job.

 On March 5, 1982, the five female plaintiffs and two other employees filed Grievance No. 51 (Ex. DM-12). The "Statement of Grievance" relates:

Violation of Section 24(a)(4) Discontinuance of a Department. This violation has forced us into an untenable position. Since we were not allowed to pick up department seniority plus one day, people junior to us are subject to recall from layoff before us. The seriousness of this violation warrants that we be compensated in any and every instance where junior people are allowed to work instead of us.

 At no time during the processing of Grievance No. 51 did the five female plaintiffs inform any union officers of their letters submitted to the Personnel Office. Grievance No. 51 proceeded through all steps of the grievance procedure provided by Section 3(a)-(c) of Article 11 of the Agreement and was denied by Oscar Mayer. In the third step, Mr. Steckler responded to the grievance in a memorandum to Mr. Quattrone dated March 17, 1982 (Ex. DM-13). He wrote in part:

The grievants were not offered the displacement option mentioned in Article 9, Section 24(a)(4) of the Labor Agreement because they did not possess sufficient plant seniority to displace a posted employee in a group B-C job on the second shift. . . . In accordance with Article 10, Section 3(b) of the Labor Agreement and past practice, the grievants, except for Ida Reid, were not considered for displacement of any junior posted employees in group A-C jobs because they did not request such displacement.

 "A-C" and "B-C" jobs in this memorandum refer to Group A and Group B jobs as defined by the Agreement.

 Vice-President/Plant Manager J. C. Miles restated Oscar Mayer's position in a memorandum to Mr. Quattrone dated April 15, 1982 (Ex. DM-14). He wrote that none of the grievants had sufficient seniority to displace into a Group B or Group C job and that ...

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