Le Beau v. Libbey-Owens-Ford Co.

• Decision Date: 03 February 1984
• Docket Number: 82-1868,Nos. 82-1858,82-1932 and 82-1933,LIBBEY-OWENS-FORD,s. 82-1858
• Citation: 727 F.2d 141
• Parties: 33 Fair Empl.Prac.Cas. 1700, 33 Empl. Prac. Dec. P 34,149 Lorraine Le BEAU, et al., and Equal Employment Opportunity Commission, Appellants, v.COMPANY, and Local 19, United Glass and Ceramic Workers, Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 141

727 F.2d 141

33 Fair Empl.Prac.Cas. 1700,

33 Empl. Prac. Dec. P 34,149

Lorraine Le BEAU, et al., and Equal Employment Opportunity

Commission, Appellants, v. LIBBEY-OWENS-FORD COMPANY, and Local 19, United Glass and Ceramic Workers, Appellees.

Nos. 82-1858, 82-1868, 82-1932 and 82-1933.

United States Court of Appeals, Seventh Circuit.

Argued May 24, 1983.

Decided Feb. 3, 1984.

Barbara Lipsky, E.E.O.C., Washington, D.C., for appellants.

Charles J. Griffin, Jr., Matkov, Griffin, Parsons & Salzman & Madoff, Terrence E. Kiwala, Rooks, Pitts, Fullagar & Poust, Chicago, Ill., for appellees.

Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and WYATT, Senior District Judge. ^*

WYATT, Senior District Judge.

These are four appeals in an action for claimed sex discrimination brought by women employees under Title VII of the Civil Rights Act of 1964 (42 U.S.C. Sec. 2000e and following).

One appeal (82-1868) is by plaintiff Le Beau and other individual women plaintiffs and by plaintiff Moriarity as representative of a class of women plaintiffs. Another appeal (82-1858) is by plaintiff-intervenor Equal Employment Opportunity Commission ("EEOC"). These two appeals are from the final judgment of the District Court. A third appeal (82-1932) is by defendant Libbey-Owens-Ford Company ("LOF"). The fourth appeal (82-1933) is by defendant Local 19, United Glass and Ceramic Workers ("Local 19"). These last two appeals are, according to the notices of appeal, simply from the final judgment of the District Court. It is explained in the briefs, however, that these two appeals are really cross-appeals which seek review of an order of the District Court, filed June 27, 1975, granting a motion by EEOC for leave to intervene as a plaintiff.

The action was brought by Le Beau and other female employees of LOF at its two plants in Ottawa, Illinois. The defendants were LOF, Local 19, and United Glass and Ceramic Workers of North America AFL-CIO-CLC (the "International Union") with which Local 19 was affiliated. The claim was that defendants had violated Title VII by discriminating against plaintiffs in that women at the Ottawa, Illinois plants of LOF were, by agreements with, or acquiescence of, the Unions, restricted to employment within two departments, were placed on sex-segregated seniority lists, and were subject to a separate system of assignment, lay-off, and recall. Plaintiffs sought injunctive relief and back pay.

The complaint was dismissed as against the International Union by order filed June 30, 1972. The dismissal was affirmed by this Court on July 17, 1973, on the ground that the International Union had not been named in the charge filed with EEOC (484 F.2d 798).

By order filed June 27, 1975, EEOC was granted leave by the District Court to intervene in the action as a plaintiff.

As an equity case, there was a trial without a jury before the District Court (Parsons, District Judge) between October 6 and November 11, 1981. The District Court filed its memorandum opinion and order on April 6, 1982 (the memorandum opinion and order was dated March 31, 1982). The District Court found for the individual plaintiffs and the class on the issue of liability but found for defendants "on the question of back wages", denying any back wages. The District Court found "in favor of the defendants and against the E.E.O.C. on all issues". A judgment, separate from the order and opinion, was filed and entered on April 6, 1982. There followed these appeals, of which this Court has jurisdiction under 28 U.S.C. Sec. 1291.

On the appeal of plaintiffs and a class representative and on the appeal of EEOC, we affirm the judgment below.

On the appeals (cross-appeals) of LOF and Local 19, we affirm the order of the District Court, filed June 27, 1975, granting a motion by EEOC for leave to intervene as a plaintiff.

1.

Some of the relevant facts, as shown by the evidence and by the District Court's findings, may be related in chronological order.

Beginning in 1909, Illinois had in force a law, usually called the Illinois Female Employment Act, Sec. 5 (Ill.Rev.Stat., ch. 48, Sec. 25 and following; "the Act"). This provided that women could not be employed in work such as that of LOF at Ottawa for more than eight hours in any one day nor more than forty-eight hours in any one week. The Act had criminal penalties and was (except in wartime) enforced.

LOF, shortly after 1930, began making glass for automobiles at its two plants in Ottawa, Illinois.

Beginning in 1935, Local 19 and its International Union were the bargaining representatives of the production workers (both male and female) at Ottawa.

From the first, LOF employed women at Ottawa in its production activities (with which this action is solely concerned), as well as in clerical and other traditional "white collar" work. But LOF at all times obeyed the Illinois employment laws against overtime for females. Production of glass by its nature requires a certain amount of overtime. This is apparently because some operations require much more time than others; in order to keep production steady, some operations therefore must be continuous while others need not be; this situation is referred to as "balancing". In order to comply with the Act, women employed full-time were assigned by LOF to work in non-continuous operations, where overtime was less frequently required because operations could be stopped or speeded up as necessity dictated. Overtime was avoided in those operations also by hiring part-time women employees, listing them on an "extra board" in order of seniority, and calling them in for work if replacements (for absentees) or extra production were needed. When called in, part-time women employees had an absolute right of refusal and often exercised that right. Full-time women employees were hired in order of seniority from those on the extra board who wanted full-time work. Under this system LOF was able to employ women and, despite the nature of its production, was able at the same time to comply with the Illinois law against overtime for women. As will appear, the women themselves liked the system and not all of them wanted full-time jobs.

During World War II, while the men served military duty, glass production at LOF Ottawa ceased and production turned to aircraft defense material. The Act was suspended by the Illinois legislature in 1937, women moved to all production operations at LOF Ottawa, and the extra board system was discontinued.

After World War II and the return of the men from military duty, LOF Ottawa resumed the making of automobile glass. The non-continuous operations were concentrated in the Plastics and the Assembly Departments. The women were transferred and thereafter assigned only to these two departments, this in order to comply with the Illinois Female Employment Act which entered again into force. The pre-war extra board procedure for part-time women employees was resumed.

The restriction of women to the two described departments, the use of women for part-time work, and the extra board system as a whole were means of employing women at LOF without violating the Illinois laws against overtime for women. There was testimony (T 3186-87; "T" references are to pages of the trial transcript) that the system was costly to LOF, in part at least because LOF was required to pay fringe benefits for the many women workers who were not full-time. The labor unions approved, acquiesced in, and agreed to the extra board system as followed by LOF.

Title VII became effective on July 2, 1965 and the extra board system at LOF Ottawa, treating women differently from men because of the Illinois Act against overtime for women, became suspect.

LOF was completely aware of Title VII and of its possible effect on sex discrimination in states with conflicting requirements. These conflicts did cause confusion and uncertainty as LOF studied how to comply with Title VII. LOF in this connection took note of the exception in Title VII (Section 703(e)) for employment where sex is "a bona fide occupational qualification reasonably necessary to the normal operation of that particular business ...". LOF took further note that Title VII (Section 713(b)) contained a defense to liability for violations where it was pleaded and proved that the violation was in "good faith ... reliance on any written interpretation or opinion" of EEOC.

LOF advised its personnel managers, before the effective date of Title VII, that it would comply with Title VII but that it was "in the dark" about how it would be administered, and would have to proceed "carefully" until "guidelines are established as to the meaning of non-discrimination because of sex."

EEOC did issue guidelines on sex discrimination in November 1965; these were published in the Federal Register on December 2, 1965 (30 Fed.Reg. 14926). As so published, they referred to such conflicts as those between Title VII and the Illinois female overtime laws as "[p]robably the most difficult area considered ...". They stated that it could not be assumed that "Congress intended to strike down such legislation". They stated further that state laws for the protection of women would be considered by EEOC "as a basis for application of the bona fide occupational qualification exception". While there were some reservations and qualifications in the guidelines as published in the Federal Register, their text, as issued with a press release by EEOC on November 22, 1965, stated that laws of the various states to protect women against "exploitation and hazard" would be considered by EEOC as "bona fide occupational qualifications and thus not in conflict with Title VII".

After the effective date of Title VII and the November 1965 EEOC guidelines, LOF continued its extra board practices for women employees at Ottawa, believing that in complying with Illinois law it was not in violation of Title VII.

Where LOF had plants in a state...