# Stender v. Lucky Stores, Inc.

> District Court, N.D. California · August 18, 1992 · 803 F. Supp. 259

URL: https://www.frixlaw.com/law-library/cases/2133110

## Case

- **Full name:** Nancy J. STENDER, Diane Skillsky, Julie Valentine-Dunn, Reba Barber-Money, Irma Hernandez, Anita Martinez and Jon Gold on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. LUCKY STORES, INC., Defendant
- **Court:** District Court, N.D. California
- **Decided:** August 18, 1992
- **Citations:** 803 F. Supp. 259; 92 Daily Journal DAR 13246; 59 Empl. Prac. Dec. (CCH) 41,788; 62 Fair Empl. Prac. Cas. (BNA) 11; 1992 U.S. Dist. LEXIS 12546; 1992 WL 201349
- **Precedential status:** Published
- **Opinion:** Opinion by Patel
- **Judges:** Patel
- **Cited by:** 36 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2133110

## How later opinions describe it (automated extraction)

- finding that employer’s failure to articulate and apply objective criteria reinforces unconscious prejudice
- finding employee’s “subjective and ambiguous decision- making processes” incapable of separation for analysis

## Opinion text

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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).
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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”).
1
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:
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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.
2
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.
3
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
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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 immedi
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ate 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.
4
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
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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).
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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
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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
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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
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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
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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).
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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,
5
the beverage aisle, merchandising, and displays. Employees
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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
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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
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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
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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 District Manager recommends two employees for each program. The selection committee makes the decision of who should participate. Foley testified that over thirty employees have participated in each program, and over 45% of them have been women. R.T. at 8-1371-72 (Foley); 22-3758 (Gentile).
126. Gentile expressed concern that if the ELMT was made available to Deli/Bakery or General Merchandise Clerks, they would use the program to transfer into the higher paying departments. He suggested that the program should only be open to Journey Clerks and to Department Heads. Ex. B-197 at D0086211; R.T. at 22-3750-54 (Gentile). Herkal expressed similar concerns. R.T. at 13-2286-87 (Herkal).
127. As of April 9, 1990 the ELMT was not operational in all the Lucky stores. However, it was expanded to all of the stores by the end of 1990. Ex. A-204; R.T. at 5-820 (Grant).
128. There have been seventy-seven graduates from the ELMT program, thirty-five of whom were women. Of the twenty-two graduates who have subsequently been promoted, ten have been women. R.T. at 22-3694 (Gentile).
129. The Retail Management Development Program (“RMDP”) was instituted in the NCD in 1987. R.T. at 5-857-59 (Grant). This program is open to employees who have been Assistant Managers for six months to a year, and are being considered for promotion to Store Manager. The program lasts for three months and a large percentage of the graduates have been promoted to Store Manager. Ex. B-189; R.T. at 5-766-68 (Grant). The District Managers also select the participants in this program. R.T. at 21-3662 (Gentile).
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130. About sixty people have graduated from the RMDP and women have participated in the program at a higher rate than their incumbency rate among Assistant Store Managers. R.T. at 8-1374 (Foley). Gentile believed that of the sixty participants in the RMDP, seventeen were women. In addition, half of the graduates of the program have been promoted, six women among them. R.T. at 22-3682-83 (Gentile).
131. Lucky does not post notices of openings in the ELMT or RMDP programs. Nor does it post the procedures employees must follow to get into the programs. R.T. at 22-3757 (Gentile). Neither the ELMT nor the RMDP is open to General Merchandise or Deli/Bakery Department Heads. R.T. at 22-3739, 22-3755 (Gentile).
132. In 1987 Lucky held two career days to teach their employees about career opportunities in the stores, and to give them a better understanding of Lucky’s total operation. Ex. B-236; R.T. at 5-770-72 (Grant); 10-1663, 11-1920 (Javier). The career days were held because the majority of Lucky employees had little knowledge of the jobs outside of their immediate operating area. R.T. at 5-846 (Grant). A pamphlet was handed out which gave a history of Lucky and vague job descriptions. Ex. A-30; R.T. at 5-829 (Grant). However, fewer than 200 of the 15,000 Lucky employees in the retail stores in the NCD attended the 1987 career days. R.T. at 5-825 (Grant). Javier testified that over 500 people attended. R.T. at 11-1921 (Javier).
F Movement between Departments
133. Lucky does not have a written or unwritten policy that prohibits transfers between departments, but they do not happen often. Most transfers are between the Grocery and Produce departments. Employees transfer into and out of the Deli/Bakery department infrequently. R.T. at 8-1306 (Foley); 1-124-25 (Gill); 4-704-07 (Grant); 6-986 (Hoffman); 10-1668-70 (Javier); 20-3343 (Michon). Employees lose their seniority when they transfer between departments. R.T. at 4-705 (Grant).
134. Store Managers have complete discretion in deciding whether to allow an employee to move between departments. In making this decision, the Store Manager should consider whether there is an opening in the department, and whether the prospective transferee has good work ethics, is a productive individual, and is neat and clean in appearance. R.T. at 18-3115 (Goodspeed); 4-704 (Grant). However, Store Managers are reluctant to allow employees to transfer out of the Deli/Bakery department because it is expensive to train new people. R.T. at 18-3120-22 (Good-speed); 31-5166 (Hardy).
135. Grant was not aware of any effort by Lucky management to tell Store Managers and District Managers that they should consider General Merchandise and Deli/Bakery employees for positions as Grocery and Produce Apprentices. R.T. at 3-459 (Grant). Goodspeed admitted that
no
steps had been taken to facilitate movement from General Merchandise and Deli/Bakery to Grocery and Produce. R.T. at 18-3118 (Goodspeed).
136. Bob Beckerman, Vice President of Deli/Bakery, told Grant that Deli/Bakery employees should be considered for entry-level management positions lest employees consider Deli/Bakery to be a dead-end job. R.T. at 3-454 (Grant). Goodspeed testified that he agreed with Beckerman. R.T. at 18-3119 (Goodspeed). However, Grant did not think that jobs in Deli/Bakery were dead-end jobs because Store Managers could promote outstanding people from any department. R.T. at 4-719 (Grant). Grant received a letter from a Merchandiser in the General Merchandise department which listed “very limited opportunities for advancement” and “locked in to a dead-end department” among the reasons for her resignation. Ex. A-158; R.T. at 5-836 (Grant). The evidence is overwhelming that transfers from the Deli/Bakery and Genera] Merchandise departments to the Grocery and Produce departments are rare, and that Lucky’s general practices stand as an impediment to such transfers. Thus, employees who are hired into the Deli/Bakery and General Merchandise departments
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are generally locked into those- departments and face substantial barriers in promotion to management positions.
Movement from Part-Time to Full-Time '
A. The UFCW Contract Provisions on Movement to Full-Time
137. Journey Clerks may be assigned either to part-time status- (16-39 hours a week) or to full-time status (at least 40 hours a week). Joint Statement 1132. The UFCW Contract guarantees ■ part-time workers sixteen hours of work a week, and full-time workers forty hours of work a week. R.T. at 20-3391-92 (Michon).
138. The UFCW Contract permits Journey Clerks to submit bids for more work hours in February and August of each year. R.T. at 1-126 (Gill). Section 4.10.1 of the UFCW Contract provides:
Part-time Journeyman Clerks may bid for full-time forty (40) hour job openings or part-time job openings with more hours excluding relief for vacations, illness, or other authorized absences within the employee’s assigned store, based upon said employee’s seniority provided that he makes his desire for such work known, in writing, concurrently to the Union and to the store manager. Written requests must be made every six (6) months. Written requests may not be submitted outside the specified period. The time periods for requests shall be the first two (2) full working weeks in February and August. Lists are effective the first shift of the month following the request period.
The Employer shall thereupon place the name of the employee on a list maintained by the Company for such purpose. The names of the employees shall be placed upon the list according to seniority. A copy of that list shall be forwarded at the end of each request period to the Union.
Provided the Journeyman Clerk possesses the necessary qualifications and has complied with the requirement above, he shall be offered any job opening except as restricted by the above, which might occur within the employee’s assigned store before, any employee is hired into said store. [Note: prior to the 1986-1989 contract, this paragraph provided that the Journeyman Clerk would be offered any opening within the geographic seniority area of his or her union, provided he or she possessed the necessary qualifications and complied with the bid procedure.]
In the event a full-time forty (40) hour job becomes available in a store in which no employee is on the bid list, the most senior employee on the bid list with the necessary qualifications within the geographical jurisdiction of the Union shall be offered the job before any employee is hired into said store.
Joint Statement ¶ 33.
139. Section 4.10.3 of the UFCW Contract provides:
Employees refusing an offer of full-time work, requesting part-time work after having been selected for full-time work, indicating their unavailability for continued full-time work or refusing a job opening with more hours shall not be entitled to exercise rights set forth above until the next bid period.
Joint Statement 1134.
140. The UFCW Contract does not require that full-time clerks have different skills than part-time clerks. R.T. at 1-78 (Gill).
141. Herkal testified that the Union would not recognize any additional rules which Lucky could make regarding movement to full-time positions. R.T. at 12-2119-20' (Herkal). However, defendant has not presented sufficient evidence to convince the court that this is true; nor does Lucky consistently follow its established rules for awarding movement to full-time status.
B. Movement Practices
142. Most part-time employees work in the Grocery department. R.T, at 6-1019 (Hoffman).
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143. Opportunities for full-time work are not posted. R.T. at 1-127 (Gill). Grant did not remember anyone suggesting that full-time job opportunities should be posted. R.T. at 3-479 (Grant). Grant believes that because there are going away parties for departing employees, other employees in the store are aware when there was an opening for full-time work. R.T. at 3-378 (Grant). However, Grant conceded that as employees are sometimes replaced before they depart, an employee who learns about an opening at a going away party might learn too late to apply for the position. R.T. at 5-861 (Grant).
144. Only Journey Clerks are eligible to bid for movement from part-time to full-time work. Bid forms are available from the Union locals and from Lucky. The bids must be submitted during the first two full weeks in February or in August. Bids are then forwarded to Lucky’s San Leandro office where they are compiled into lists in order of seniority, by department (Grocery, Produce and Non-Food), and store. R.T. at 21-3599 (Fumero); 13-2191 (Herkal). The compiled lists are then sent to the Union locals and the District Managers. R.T. at 2-205-06 (Gill).
145. Fumero generates a seniority list on a monthly basis, it lists all of Lucky's employees in the order specified by the UFCW Contract. These lists are distributed to district supervision and a copy is kept in the Payroll and Benefits office. R.T. at 21-3597 (Fumero).
146. Bids are only good for six months and there is no uniform Lucky policy for keeping old bid lists. R.T. at 1-132-33 (Gill). Despite the fact that E.E.O.C. charges had been pending against Lucky with respect to bids for movement to full-time status since 1985, Lucky did not keep all of its bid lists. R.T. at 13-2259-61 (Herkal). Prior to 1987, bid lists were only kept for the current year and the previous year. R.T. at 21-3616 (Fumero). However, since 1987 all of the bid list have been maintained. R.T. at 21-3601 (Fumero). Fumero believes that she has a complete set of the bid lists since 1984, but she has not reviewed them to see if they are complete. R.T. at 21-3617 (Fumero). She is certain that she has a complete set of the bid lists from the years 1987, 1988 and 1989. R.T. at 21-2624-25 (Fumero).
147. Fumero does not recognize requests for additional hours which were on bid forms. R.T. at 21-3619-21 (Fumero).
148. The selection of employees to move from part-time to full-time status is up to the discretion of the Store Manager. The Store Managers receive no training or instructions about how to make these decisions. However, Store Managers must follow seniority in moving employees to full-time. R.T. at 3-502, 5-755 (Grant); 31-5190-200 (Hardy).
149. The District Manager makes the final determination about which employees should move to full-time status. The District Manager considers seniority, the needs of the store, the qualifications of the employee, and the constraints of the labor budget in making this decision. R.T. at 31-5192 (Hardy); 6-1015-17 (Hoffman). Of the employees who bid for full-time work, the one in the store with the most overall seniority should be promoted to full-time. R.T. at 1-128 (Gill). The UFCW Contract does not define “qualifications” with respect to movement to full-time. However, Gill has interpreted “qualifications” to mean experience in the department. R.T. at 1-129-30 (Gill). Javier testified that seniority and qualifications must be taken into consideration in moving an employee to full-time status. R.T. at 10-1688 (Javier). However, in a December 2,1987 letter to the E.E.O.C., Javier wrote “[t]he criteria considered, in addition to a person’s seniority, when determining assignment to a full-time position is possession of necessary qualifications to perform the job, including experience, job performance, attendance, attitude, and availability to work the hours.” Ex. A-113B, SP000076; R.T. at 10-1690 (Javier). Seniority is the tie breaking factor in making promotions to full-time. R.T. at 31-5199 (Hardy).
150. ■ If there is no one on the bid list in the store that has the full-time opening, the most senior person in the geographical
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area of the Union local should be offered the position. R.T. at 2-207 (Gill).
151. When employees bid for full-time work they are not required to specify whether they desire day or night shifts. However, most employees do specify. R.T. at 1-130 (Gill).
152. There is more full-time work available in Grocery and Night Crew. R.T. at 5-755 (Grant). Part-time employees in the Deli/Bakery and General Merchandise departments may bid for full-time Grocery positions. R.T. at 2-208 (Gill).
153. Lucky needs to employ a large number of part-time clerks in order to give the stores flexibility in scheduling hours. R.T. at 31-5190 (Hardy); 13-2190 (Herkal). Therefore, more employees want to be assigned to full-time work than Lucky can accommodate. R.T. at 5-753 (Grant). Some Lucky employees who have eight or nine years of part-time experience cannot get full-time status. R.T. at 5-754-55 (Grant).
' 154. Some employees are promoted to full-time status without having submitted a bid, even if other employees have submitted bids. R.T. at 1-131 (Gill); 31-5195-97 (Hardy). This happens principally when the bidders lack the experience necessary for the job, or when all the employees on the bid list turn down the offer for full-time status, or when a new store opens, R.T. at 31-5195-7 (Hardy).
Allocation of Additional Hours/Step-Ups
A. The UFCW Contract Provisions on Allocation of Hours
155. Part-time employees may request additional hours of work. Section 4.10.2 of the UFCW Contract provides:
Part-time employees may request additional available hours within their classification on a store-by-store basis, provided they have the previously mentioned qualifications, are available for the hours, and have notified their Store Manager, in writing, of their desire for more hours, and they- shall be afforded such hours by seniority.
Joint Statement ¶ 31.
156. This section of the UFCW Contract is the only written policy that addresses the allocation of additional hours. R.T. at 1-134 (Gill).
B. Allocation of Hours Practices
157. There is no bid policy for the allocation of additional hours. An employee may request additional hours at any time, and the request will not expire as long as the person is employed at the same store. R.T. at 1-135 (Gill); 6-1009 (Hoffman). Openings for additional hours are not posted; employees learn about the availability of additional hours by word of mouth. R.T. at 31-5187 (Hardy). There is a standard form to request additional hours, although requests are not always made in writing. R.T. at 2-202 (Gill). There is no centralized list of additional hours requests, nor are Store Managers required to keep a list of the requests madé in their stores. R.T. at 1-136 (Gill). When he was a Journey Clerk, Foley would call around to other Lucky stores if he could not get any additional hours in his store. R.T. at 8-1298-99 (Foley).
158. Store Managers do not receive any training or instruction from Lucky’s upper management about procedures to follow for allocating additional hours, nor are there any documents that inform Store Managers about how to define qualifications, job performance or availability. R.T. at 10-1692 (Javier); 20-3478 (Michon). Decisions of Store Managers are not reviewed by upper management. R.T. at 6-1008 (Hoffman).
159. An employee desiring additional hours must be qualified and must have the ability to do. the job to which they would be assigned. R.T. at 21-3543 (Michon). Michon did not follow a clear policy when determining, who should receive additional hours. Sometimes he gave the additional hours to the first available person to ask for them. R.T. at 20-3480-85 (Michon). Although the UFCW Contract mandates that additional hours should be allocated based solely on seniority, R.T. at 2-202 (Gill); 5-887 (Hoffman); 20-3380 (Michon), in allocating additional hours Michon considered seniority and availability equally,
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R.T. at 21-3541 (Michon). Grant testified that additional hours are to be allocated according to seniority and availability. R.T. at 5-758 (Grant).
. 160. More additional hours are available on the night shift than on the day shift. R.T. at 5-759 (Grant). Therefore, an employee who is yrillinjg to work Night Crew is more likely to get additional hours. R.T. at 6-1008 (Hoffman). Hardy testified that night hours are easier to obtain because they are not in as much demand as are early hours. R.T. at 31-5184 (Hardy).
161. If an employee disagrees with a Store Manager’s allocation of additional hours s/he can bring a grievance. R.T. at 2-203 (Gill); 3-503 (Grant). Although, under UFCW Contract § 7.1, Lucky is required to post employee work schedules by the name of the employee on a weekly basis, R.T. at 2-204 (Gill), the Union does not receive a list of the employees who request additional hours and there is no way for one employee to know which other employees requested additional hours, R.T. at 1-138 (Gill).
Í62. However, Lucky employees often are aware of the seniority of their co-workers because the work schedules are listed in order of seniority. Senior employees sometimes complain if employees with less seniority receive more hours than they do. R.T. at 8-1318-19 (Foley).
C. Step-Up Practices
163. Step-ups occur when one employee replaces a senior employee who is sick or on vacation. There is no bidding or posting system for step-ups. When an employee steps-up to a higher paid position, they are paid the wage rate of that position. R.T. at 1-87-88 (Gill).
164. The selection of employees to step-up to higher paid positions is entirely within the discretion of the Store Manager. The Store Manager is not required to consider seniority. R.T. at 1-88 (Gill). There are no written or unwritten criteria by which the Store Manager should decide whom to select for a step-up. In Grant’s view step-ups should be awarded to the employee “who gets the job done the best and the fastest:” Individual Store Managers have their own criteria for making this decision. R.T. at 3-377 (Grant).
■ 165. Lucky does not keep records of step-ups, although they are considered to be on-the-job training. R.T. at 1-89 (Gill). Step-ups make an employee more qualified for management positions. R.T. at 3-378 (Grant).
Wage Rates
166. The legality of the wage rates applicable to Lucky employees is not at issue in this suit. R.T. at 2-191-93.
167. Lucky negotiates wage rates as part of the industry multi-employer bargaining group, of which Safeway, Albert-son’s, Raley’s, Savemart, Fry’s and P & W Supermarkets are also members. Safeway is the largest employer in the group. UFCW contracts are renegotiated every three years. R.T. at 2-183-84 (Gill); 12-2122-23 (Herkal).
168. There are two separate wage systems at Lucky, Food (Grocery and Produce) and Non-Food (General Merchandise and Deli/Bakery). In general, Food department wage rates are higher than comparable Non-Food department wage rates. R.T. at 1-85 (Gill).
169. UFCW Contract § 1.3.2 states that Non-Food Clerks cannot work with food items. Were Lucky to disobey this section of the contract it would have to pay all of its clerks at the higher Food department wage rate. R.T. at 2-190 (Gill); 12-2162 (Herkal).
170. Courtesy Clerk, the entry-level position in the Grocery department, is the lowest paying job in any department. Ex. A-13; R.T. at 1-55 (Gill). Apprentice positions in the Deli/Bakery and General Merchandise departments, the entry-level positions in those departments, are paid at a lower wage rate than the Apprentice positions in the Grocery and Produce departments. R.T. at 1-61 (Gill).
171. Apprentice Clerks in both the Food and Non-Food departments receive increases in their wage rates based on the number of hours they have worked, in increments of 520 hours. However, the wage rates at
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the different increments are lower for Apprentices in the Non-Food departments than for Apprentices in the Food departments. Ex. A-13, at D0011627-30; R.T. at 1-86-87 (Gill).
172. In 1989, when Apprentice Clerks in the Grocery and Produce departments reached the third step of their wage progression ($10.13 per hour), they were paid more than were Head Clerks in the Deli/Bakery and General Merchandise departments ($9,359 per hour). Ex. A-13; R.T. at 2-229-30 (Gill).
Grievance Procedures
173. When an employee wishes to file a grievance, s/he must contact the Store Manager and the Union. The Union files a written grievance and requests a meeting with Lucky management. The grievance then goes to the Board of Adjustment, and if it is not resolved, it goes to arbitration. R.T. at 1-111-12 (Gill).
174. The UFCW Contract includes two grievance procedures. Section 18.2 covers disciplinary grievances, and section 18.3 covers interpretation or application disputes. Section 18.3 applies to grievances regarding initial placement, allocation of hours, and movement to full-time and positions. Ex. A-263 at 24; R.T. at 2-216 (Gill).
175. There is no systematic way in which the decisions of the Board of Adjustment or the results of arbitration are communicated to Store Managers other than the one involved in the dispute. R.T. at 1-113 (Gill). As most grievances are disciplinary, Gill believes there is no benefit to informing other Store Manágers about the results. R.T. at 2-217 (Gill). However, Gill also does not inform Store Managérs about the results of race and sex discrimination grievances. R.T. at 1-147 (Gill). Hardy does not always get copies of the written grievances that are filed in his district. Moreover, he does not always see grievances which relate to promotions in his district. R.T. at 32-5320 (Hardy).
176. Gill sees thirty-five to forty grievances a month. Only two or three of those grievances are interpretation or application disputes. Gill testified that he has never seen a grievance about initial placement; that he sees ten or twelve grievances a year about the allocation of hours (not on the basis of sex or race discrimination); that he sees ten grievances a year about movement to full-time (very few on the basis of sex or race discrimination); that he sees one or two grievances about promotion a month (very' few on- the basis of sex or race discrimination); and that he has seen one grievance regarding training. R.T. at 2-218-22 (Gill).
177. Gill did not remember counseling any employee about race or sex discrimination. R.T. at 1-152 (Gill).
178. Violations of the discrimination provision under UFCW Contract § 2.4.2 are subject to the grievance and arbitration procedure. Ex. B-263 § 2.4.3; 2-195 (Gill). This discrimination provision applies to hiring, promotion, movement to full-time and the allocation of additional hours. R.T. at 2-196 (Gill). A number of grievances have been pursued by the Union on behalf of women for breach of the UFCW Contract. R.T. at 2-258-59 (Gill).
179. There is an internal complaint procedure at Lucky for discrimination claims. Employees who feel they have been discriminated against can talk to their Store Manager, the District Manager, Virginia Javier or Mark Foley. Foley then conducts an investigation of the alleged discrimination. R.T. at 8-1330 (Foley); 11-1960 (Javier). Since September 1989, there have been between eighty and 100 internal discrimination complains, most of which involved allegations of sexual harassment. In that time period, there were no internal complaints regarding the allocation of hours, movement to full-time, or initial placement. However, there were two or three internal complaints regarding promotion. R.T. at 8-1333 (Foley). As a result of these complaints Foley issued verbal warnings, written -warnings, fifteen to twenty suspensions, five or six demotions, and seven or eight terminations. R.T. at 8-1330-32 (Foley). Javier testified that she saw about three internal complaints regarding promotion decisions between 1986 and 1989. R.T. at 11-1961 (Javier).
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180. Since September 1989, Foley has seen about thirty E.E.O.C. complaints, one regarding allocation of hours, one regarding movement to full-time, three or four regarding promotion; and none regarding initial placement. R.T-. at 8-1334 (Foley). Between 1986 and 1989, Javier saw seventy E.E.O.C. complaints based on race or sex discrimination, fifteen of which related to promotion, five related to movement to full-time, and five related to the allocation of additional hours. R.T. at 11-1963 (Javier).
Comparison of Lucky’s NCD and SCD
181. There are 240 stores in Lucky’s Southern California Division. 48% of the employees in the SCD are women. R.T. at 21-3555, 21-3579 (Frazier).
182. The Management and Human Resource departments in Lucky’s northern and southern divisions are completely autonomous. R.T. at 21-3556 (Frazier); 10-1698 (Javier). Each division has its own policies with respect to promotion, training, work assignment, allocation of additional hours, and movement to full-time status. Each division has its own affirmative action policy and is solely responsible for implementing it. R.T. at 10-1700-01 (Javier).
183. When employees are hired in the SCD they designate themselves as either restricted or as available. Employees designating themselves as available are willing to move to full-time work or to accept additional hours. Employees have the opportunity to change their status every six months. This creates a two-tiered seniority list where any employee on the available list functionally has more seniority than the most senior person on the restricted list. R.T. at 21-3548, 21-3582-83 (Frazier); 13-2264-65 (Herkal).
184. Deli/Bakery employees are classified in the General Merchandise department in the SCD. The SCD classification of Clerk Helper is the equivalent of Courtesy Clerk in the NCD. R.T. at 21-3559 (Frazier); 13-2264 (Herkal). There is a training program for Clerk Helpers in the SCD which prepares them to move to Apprentice positions. R.T. at 21-3560 (Frazier); 13-2264 (Herkal).
185. The UFCW Contract in the SCD specifically provides that Apprentices in General Merchandise may transfer into a Food department while retaining their seniority and without suffering a reduction in pay. Many employees in the SCD follow the job progression from Clerk Helper, to General Merchandise Clerk, to Food Clerk. R.T. at 21-3161-62 (Frazier).
186. Journey Clerks are eligible for the ELMT program in the SCD. R.T. at 21-3564 (Frazier).
187. There, has never been an affirmative action program in the SCD. However, the consent decree in
Ballesteros v. Lucky Stores
sets goals and' timetables for the promotion of women in the SCD to entry-level management positions. Ex. A-115B; R.T. at 21-3566-69 (Frazier).
Lucky’s Affirmative Action Efforts
A. Before 1986
188. An affirmative action equal employment opportunity policy was first adopted by Lucky Corporate in 1975. Herkal was responsible for giving advice and preparing statistical reports in connection with the affirmative action plan in the NCD. Exs. Á-32, A-66; R.T, at 12-2027-30 (Herkal). As of 1983, Herkál believed Lucky was doing all that it needed to do with respect to affirmative action. R.T. at 13-2209 (Herkal).
189. In late 1983, the only data Lucky had on race was based on a visual survey of its employees. At that time NoriegaAilor was given the task of compiling gender and race data for the NCD. R.T. at 8-1408-09 (Noriega-Ailor).
190. Noriega-Ailor’s December 6, 1983 memorandum to Robert Grant, Jim Scoggins, Walter Herkal and Robert Gill reported that women were 4.2% of management in the NCD. The memorandum also reported that according to the State of California Civilian Labor Force statistics from the 1980 Census, 34.4% of women were available for management positions. Ex. A-79; R.T. at 8-1412-13 (Noriega-Ailor).
191. Noriega-Ailor’s April 16, 1984 memorandum to Jack Hoover, Jim Scoggins, Walter Herkal and Robert Gill stated
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that women were 4% of management in the NCD. The memorandum reported that out of 1133 managers in NCD, forty-five were women. Noriega-Ailor believed that the decrease by two in the number of women in management positions, might have been due to the fact that Lucky had reclassified some job titles. Noriega-Ailor discussed these statistics with Herkal, Hoover, and Scoggins. Ex. A-83; R.T. at 8-1416-20 (Noriega-Ailor).
192. A memorandum from Ray Sweeny to Richard Goodspeed, Jack Hoover, and Rosalind Speaker Thompson, dated August 24, 1984, shows that the NCD had the lowest percentage of women in management of the nine Lucky divisions. The report directed the NCD to review its affirmative action policy and to “reemphasize the importance of compliance.” Ex. A-67; R.T. at 8-1421 (Noriega-Ailor). NoriegaAilor discussed these statistics with Grant, Hoover, Herkal, and Scoggins, and suggested that Lucky formalize its job descriptions because they would help management focus on employee skills in making promotion decisions. R.T. at 8-1419-23 (Noriega-Ailor).
193. Noriega-Ailor understood that Walter Herkal was responsible for meeting Lucky’s affirmative action goals in 1984. R.T. at 8-1429 (Noriega-Ailor).
194. In 1985, the number of women in management in the NCD increased from forty-nine to fifty-eight. Ex. A-84; R.T. at 8-1430 (Noriega-Ailor). At that time, almost all of the Deli/Bakery Department Heads and 60% of the General Merchandise Department Heads were women. R.T: at 8-1435-37 (Noriega-Ailor). Noriega-Ailor felt that the perception at Lucky was that the depth of knowledge and the scope of responsibility required was lesser for the Non-Food Department Head jobs than for the Food Department Head jobs. R.T. at 8-1438 (Noriega-Ailor). In addition, she has found that when jobs are heavily concentrated with one group of people, changing the composition of people in the jobs generally improves movement in and out of those jobs. R.T. at 8-1440 (Noriega-Ailor).
195. Grant was aware that there were, more women than men in the Deli/Bakery, General Merchandise and Floral departments; more men than women in positions above Fourth Person; and that more women were Checkers and more men were Stockers. R.T. at 5-782 (Grant). He did not consider these statistics to be problematic because he had not received any complaints about discrimination in the retail stores before 1986. R.T. at 3-537, 5-785 (Grant). At that time, Grant did not believe that the existence of a statistical disparity between the number of men and women in management was an indication that Lucky was discriminating against women. R.T. at 5-786 (Grant).
196. Following the settlement of the
Bookman
case in 1985-1986,
see supra
n. 4, Lucky instituted hiring goals in the meat and Produce departments. Herkal informed Grant that Lucky must try to improve the number of women who were promoted. R.T. at 3-533, 5-789 (Grant). At that time, Lucky’s General Management Committee began discussing affirmative action. Thompson was put in charge of the development of an affirmative action plan which she was told to “make simple.” Thompson Depo. at 176-177.
197. Under the
Bookman
consent decree, Javier was required to develop an applicant tracking program for all of the class positions under the decree, and to ensure that the job posting requirements were followed. She also was required to conduct outreach recruitment for women. Ex. A-114B; R.T. at 10-1644-48 (Javier).
198. Lucky was involved in an industry-wide E.E.O.C. complaint in the early 1980s which alleged that women were segregated into the lower paying jobs in the meat department. R.T. at 13-2282 (Herkal).
199. Lucky has had a sexual harassment policy since at least 1986. Ex. B-289; R.T. at 19-3209 (Goodspeed).
B. The 1986 NCD Affirmative Action Plan
200. Other than Lucky’s affirmative action policy statement, Grant had never re
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ceived materials about affirmative action before 1986. R.T. at 3-536 (Grant).
201. Thompson designed and led a project to institute affirmative action plans in all of Lucky’s divisions in 1986. She gave the divisions general outlines of what their plans should look like and designed a progress reporting structure. Thompson Depo. at 36.
202. Goodspeed approved Lucky’s 1986 affirmative action plan for the NCD as soon as he became president of the NCD because it was a “good business practice.” Ex. A-35; R.T. at 18-3076, 18-3080 (Good-speed). At that time he agreed that there was a problem with the underrepresentation of women in management at Lucky. R.T. at 18-3088, 18-3095. (Goodspeed). Grant agreed that the number of women in management and Produce should be increased, Hoffman was aware that women were promoted less than men, and Herkal felt that Lucky had to make improvements in affirmative action. R.T. at 3-545, 3-553 (Grant); 13-2281 (Herkal); 6-1058 (Hoffman). Grant believes that Scoggins and Martin were also aware of the problem. R.T. at 3-554 (Grant). Javier felt that Lucky's senior management had been aware of the underutilization of women since 1986. R.T. at 10-1806 (Javier). In fact, both Gill and Hoffman had received complaints from the Union about discriminatory promotion decisions and failure to move women to full-time positions. Gill informed Grant of the complaints and requested that they meet to discuss the matter. R.T. at 1-153-57 (Gill); 6-926-27 (Hoffman).
203. Although Goodspeed had overall responsibility for the affirmative action plan, Tim Martin was in charge of its implementation. R.T. at 18-3083, 18-3184 (Goodspeed). Javier administered the affirmative action plan, monitored compliance, and compiled and reviewed statistical data from the plan. R.T. at 10-1703 (Javier).
204. The 1986 affirmative action plan for the NCD acknowledged that equal employment opportunity is legally required, but also recognized that it is “sound for moral,- social, and economic reasons.” Ex. A-35 at D0012509. The plan discussed the underutilization of women in management, stated that promotion and training was necessary to better the distribution of women in Lucky’s workforce, and set short, intermediate and long-term goals to accomplish this objective. Ex. A-35 at D0012569-72; R.T. at 8-1443-44 (Noriega-Ailor). The plan also included a supervisory training program and a reporting requirement for all promotions and transfers. Ex. A-35 at D0012578-79, D0012584; R.T. at 8-1447-48 (Noriega-Ailor).
205. Javier and Noriega-Ailor found Lucky’s senior management to be supportive when they presented the plan to them. R.T. at 11-1850 (Javier); 8-1449 (NoriegaAilor). Noriega-Ailor had “a very strong feeling from senior management that they were interested in having women advance within the workforce, and they were interested in [her] ideas with regards to [women’s] advancement and the probable training programs, that might be necessary to assist with that.” R.T. at 9-1587 (Noriega-Ailor). However, one reason NoriegaAilor left Lucky was that she did not feel that senior management was ready to have “women in certain positions.” R.T. at 9-1590 (Noriega-Ailor).
206. On March 14, 1986, Noriega-Ailor restructured the Affirmative Action Steering Committee into two parts: the Affirmative Action Executive Committee, comprised of Goodspeed, Herkal, Martin, Fa-hey, Cundiff, herself and Javier, and the Affirmative Action Implementation Committee, which was to develop programs that would further affirmative action. Ex. A-88; R.T. at 18-3179-81 (Goodspeed); 9-1574, 9-1618-21 (Noriega-Ailor). Despite his position as Vice President, Industrial Relations for the NCD, Herkal does not remember serving on the Affirmative Action Executive Committee. R.T. at 12-2058 (Herkal).
207. Goodspeed thought Lucky had a problem identifying people to move into management positions. The strategic plan for the NCD, dated June 12, 1986 stated that Lucky does not “have a formal system to identify and monitor existing employee
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talent.” Ex. A-133 at 25; R.T. at 18-3057 (Goodspeed).
208. On February 9, 1987, Goodspeed personally attended a meeting of the Affirmative Action Implementation Committee in an effort to improve the attendance of managers. Ex. A-94; R.T. at 19-3205-06 (Goodspeed).
209. Lucky management claims it was distracted from their affirmative action efforts by the attempted take-over of the company by Asher Edelman and the liquidation of the Gemco stores in 1986, and by American Stores’ merger with Lucky and a three week Teamster strike in 1988. These events negatively affected the position of women at Lucky because many employees were forced to step back on the promotional ladder. R.T. at 18-3152 (Goodspeed); 5-791-96 (Grant); 13-2237-45 (Herkal); Thompson Depo. at 73, 190-194. The downsizing of the Lucky workforce in 1986 diverted the time and attention of Lucky management away from implementation of the affirmative action plan. R.T. at 9-1618 (Noriega-Ailor). However, no women stepped down from Store Manager in 1988 or 1989, and no women stepped down from Assistant Store Manager in 1988. Ex. A-56; R.T. at 6-932 (Hoffman). In addition, between 1986 and 1989, the RMDP and ELMT were implemented, stores were opened and remodelled, and new and expensive policies, such as “three’s a crowd,” were implemented, despite the distraction caused by the attempted take-over and the merger. R.T. at 5-857-59 (Grant). Therefore, the court finds that Lucky’s stated reasons do not sufficiently explain Lucky’s failure to vigorously pursue or to maintain its affirmative action policy.
C. Discontinuation of the 1986 Affirmative Action Plan
210. Javier testified that she, Herkal, Noriega-Ailor and Martin discontinued Lucky’s 1986 affirmative action plan in 1989, shortly after this suit was filed, on the advice of Donahue, Gallagher, Thomas & Wood, Lucky’s house counsel. They did not announce their decision to Lucky’s senior management. R.T. at 12-2043 (Herkal); 10-1736-40, 11-1969-70 (Javier). Javier made the ultimate decision to cancel the affirmative action program. She did not discuss the idea with her supervisors. R.T. at 11-1990-91, 11-1994-96 (Javier). She continued to track the numbers of women in management, but did not report the results to the managers. R.T. at 11-1988 (Javier). Since the discontinuation of the affirmative action plan, no reference to the plan- has been made in, meetings between the Human Resources Department and Lucky management. R.T. at 10-1742 (Javier). Foley also was aware that the 1986 affirmative action plan was no longer in effect. R.T. at 8-1306, 8-1308 (Foley).
211. Grant'believed that the 1986 affirmative action plan was still in effect because he had not been told anything to the contrary. He did not know if any of the action-oriented programs were still being executed. ' However, he believed that the Affirmative Action Implementation Committee was still active. R.T. at 3-524-32, 5-797 (Grant). President Goodspeed never had any discussions about terminating the 1986 affirmative action' plan, and considered the plan still to be in effect. R.T. at 18-3126-30 (Goodspeed). Herkal testified that he believed that the 1986 affirmative action plan is still in effect because “it is a living document.” R.T. at 12-2044, 12-2051-54 (Herkal).
6
D. Lucky’s 1988 Affirmative Action Efforts
212. In 1988 Grant felt that Lucky was doing its best with respect to the promotion of women. R.T. at 4-589-90 (Grant). He does not remember seeing any affirmative
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action progress reports before 1988.' R.T. at 3-522 (Grant).
213. Grant asked Herkal to collect the names of men and women who had asked for and who had rejected advancement opportunities between January 1, 1982 and May 31, 1987. Exs. A-59 and A-60; R.T. at 6-909 (Hoffman); 10-1718-19 (Javier). Grant had previously asked for information about how many women had turned down promotions, but not about how many men had done the same. R.T. at 3-561 (Grant). A substantial number of women indicated that they were interested in advancement.Ex. A-60; R.T. at 6-910, 6-950-56 (Hoffman). Based on this information, Javier put together a report entitled, “Women in Management,” dated April 29, 1988, which was sent to Goodspeed, Herkal, and Martin. The report sought to determine Lucky’s status with regard- to women in management. Ex. A-105; Thompson Depo. at 51. The report showed that there were no women District Managers, twenty-four male and four female Merchandisers, 150 male and ten female Store Managers, and 152 male and twelve female. Assistant Store Managers. Ex. A-105 at D0097148; R.T. at 10-1776-77 (Javier).
214. Lucky has never conducted a survey to see if women were interested in moving from the Deli/Bakery and General Merchandise departments to the Grocery and Produce departments. R.T. at 10-1677 (Javier). Nor has Lucky surveyed the interest levels of women in the different departments, or in stocking versus checking. R.T. at 1-152-53 (Gill); 3-559 (Grant).
215. One reason the NCD adopted the Specter goals for promotion of women into Fourth Person and Third Person in 1988 was to limit Lucky’s liability in this case. R.T. at 18-3139, 19-3210 (Goodspeed).
216. Specter conducted two training programs with groups of Lucky. District Managers in 1988. He also had a separate set of meetings with Store Managers, Assistant Store Managers, and Merchandisers and in NCD. His intent was to meet with everyone at Lucky who had decision making authority. R.T. at 7-1155-56 (Specter). Specter said that the purpose of the meeting was “to scare the pants off of them” and to get Lucky to support affirmative action. R.T. at 7-1162 (Specter).
217. Prior to the Specter meetings Grant issued a memorandum to the District Managers which urged them to give their “full commitment and support” to the program. Ex. A-52; R.T. at 7-1157 (Specter). At the meetings the “Plan for Success” and a copy of Lucky’s sexual harassment policy were distributed. Ex. A-53; R.T. at 7-1157-58 (Specter). Among other things, Specter discussed the legal standards for sexual harassment, the liability standard under
Griggs v. Duke Power,
401 U.S. 424 , 91 S.Ct. 849 , 28 L.Ed.2d 158 (1971), for statistical disparities in a workforce, and the evaluation of qualifications in making promotion and hiring decisions. R.T. at 7-1182 (Specter). Specter also told the Lucky District Managers that the statistical underrepresentation of .women in management might open them to liability for sex discrimination. R.T. at 7-1173 (Specter). Only three of the 364 District Managers, Store Managers, Assistant Store Managers, and Merchandisers in NCD did not attend the Specter meetings. Ex. A-124; R.T. at 5-812 (Grant).
E. Notes from the Specter Meetings
218. Javier took notes at the May 20, 1988 meeting between Specter and Lucky’s District Managers. Ex. A-119; R.T. at 10-Í785-95 (Javier).
219. Hoffman took notes at the June 14 and June 22, 1988 meetings between Specter and the Store Managers, Assistant Store Manager and Merchandisers. Ex. A-62; R.T. at 6-921 (Hoffman). Specter requested that each person at the meetings volunteer a stereotype that they had heard in the workplace. In response to this question Hoffman remembered hearing that “women won’t work late shifts because their husbands won’t let them;” “the crew won’t work for a Black female;” “women are better with customers than men are;” and “women need training and an opportunity to do floor work.” R.T. at 6-923-24 (Hoffman). Hoffman did not think that the Store Managers believed the stereotypes
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they reported, but he thought that they may have heard some of them from other Lucky employees. R.T. at 7-1133-35 (Hoffman).
220. Foley took notes during Specter’s meetings with Store Managers, Assistant Store Managers and Merchandisers between June 7 and July 13, 1988. The Manager’s comments which he recorded included the following: “Women do not warit to work late shifts;” “How does your crew get used to working with a woman boss?;” “Women are not encouraged to be promoted;” “[You] get used to someone fitting the ‘picture’ and the ‘picture’ is a White male;” “Women’s income is the second income in a household;” “Customers might object to seeing a woman in management;” “Women are afraid to work at night;” “Men need to change there [sic] attitudes;” “Women seem to step down a lot after being promoted;” “Women don’t go into [management] because they are not accepted. Have to show them they are wanted in [management];” “Women have the fear they won’t be able to handle the promotion. The crew will not accept them;” “Some men do not want to work side by side with women in Produce. Need to change attitudes;” “Resentment from males when female is promoted. Promoted women to 5th Person, taking a lot of heat from men;” “Impossible, can not find any qualified women;” “Women have a hard time managing other women;” “Women work neater, strive to so a better job. Men do not want the competition from women;” “Hard to change old habits, still see the ‘success model’ as a White male;” “Women/minorities will turn out to be are [sic] best [managers]. ‘Team Players.’ Black females are aggressive, they would make great [managers];” “The workforce would not perform for a Black/female [manager];” “We have old timers who are set in there [sic] ways. Need to change attitudes;” “Has [sic] promoted women who step down soon after because the only reason they did it was to become full time journey person;” “Females [who] step down ‘glow’ because there are not many in [management] so when it happens everyone is aware of it. On the other hand when a man steps down it is not that big a deal because we have so many men waiting in the wings;” “Two classes of women 1) old school, been around for [years], they don’t see the opportunities and don’t want them, 2) new school, just starting out in Lucky and want the opportunities. Need to open the door to [management] for this group;” “Women don’t have as much drive to get ahead. Women are not the bread winners;” “Women cry more. Women should be stronger;” and “Women are considered the weak sex. Has men do the hard, physical work.” Ex. A — 121; R.T. at 7-1249-59, 7-1261-65 (Foley).
See also
Ex. A-122; R.T. at 10-1787-96; R.T. at 7-1193-214 (Specter).
221. Foley felt that the comments were representative of the beliefs of some of the Managers, that others were provoked into making the statements, and that some were repeating comments that they had heard other Lucky employees make. R.T. at 7-1260 (Foley). Javier could not distinguish which comments reflected the true beliefs of the Managers who said them. R.T. at 11-1987 (Javier). Nonetheless, the court finds that these notes reflect the views of at least some of Lucky’s Store Managers or the views expressed by Lucky employees who the participants in the meetings overheard.
222. Most of the participants in the Specter meetings felt that the program was overdue and that management must be involved in affirmative action. Exs. A-123B and A-124; R.T. at 8-1274-87 (Foley).
223. Specter conducted two “Generic Success Model Meetings” in August and September of 1988 to develop selection criteria for Third and Fourth Persons. R.T. at 7-1222-24 (Specter). Both Foley and Javier took notes at these meetings. Exs. A-126 and A-127; R.T. at 8-1295 (Foley); 10-1802 (Javier).
224. In 1989 the Union rejected Lucky’s proposal that the following section be added to section 4.3.1.' of the UFCW Contracts.
Notwithstanding anything contained in this section to the contrary, seniority shall have . no application where pro
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motions are effectuated in order to promote affirmative action goals and/or principles.
Ex. B-253; R.T. at 12-2173-74 (Herkal).
F. Discontinuation of the 1988 Affirmative Action Efforts
225. After August 1988, on the advice of Lucky’s counsel, there were no more meetings between Specter and Lucky. R.T. at 10-1799 (Javier). Specter testified that his “program was aborted.” R.T. at 7-1226 (Specter). However, Herkal was not aware that the 1988 Specter goals had been eliminated, R.T. at 12-2091-92 (Herkal), and as far as Grant knew, the Specter goals had not been changed, R.T. at 4-580 (Grant).
G. Attitudes of Senior Management
226. Before 1986, Herkal believed that the distribution of women and men at Lucky reflected “the interest level of the people and that anybody who wanted to get promoted ultimately would.” He did not see any reason to make changes at Lucky to increase the pool of women who would be eligible for promotion. R.T. at 12-2105 (Herkal). However, he admitted that prior to the
Bockman
litigation, he had believed that the absence of women in warehouse jobs reflected their lack of interest in those jobs and he was surprised to discover that women were interested in and had applied for those jobs. R.T. at 12-2107-10 (Herkal). Herkal disagrees with the idea of affirmative action and “accelerated promotion programs” because after the “obvious candidates” and the qualified candidates are promoted, unqualified candidates must be promoted. R.T. at 13-2245-46 (Herkal).
227. Gill claimed never to have heard anyone at Lucky say that women were less interested in promotion than men, or that women turned down promotions more than men. R.T. at 1-152-53 (Gill).
228. Grant said that when he was a Store Manager in the 1960s he once put a woman to work as a Receiving Clerk unloading trucks, and she almost filed a grievance against him. R.T. at 2-313 (Grant). At that time, Grant found that women were more interested in cash register work, and that men were more interested in floor work because men viewed that work as “more important.” R.T. at 3-568 (Grant). He does not have any reason to believe that women's interests are any different than men’s today. R.T. at 2-313-14 (Grant). Grant testified that women step down from management positions at a higher rate than do men. However, he has never. reviewed the available statistics on step-downs and he admitted that his opinion was based on personal belief and his experience as a Store Manager thirty years ago. R.T. at 3-567-68 (Grant).
229. In 1989 Goodspeed knew that ten of the 150 Store Managers, and that twelve of the 152 Assistant Store Managers in the NCD were women. R.T. at 18-3092 (Good-speed). However, he did not believe that women were less interested than men in management positions. R.T. at 18-3110 (Goodspeed). Goodspeed does not think that the small number of women in management at Lucky is the result of purposeful discrimination; but due to “lack of communication, lack of understanding.” R.T. at 19-3225, 19-3248 (Goodspeed).
III. EXPERT WITNESSES
Dr. Drogin
230. Dr. Richard Drogin received a Ph.D. in statistics from the University of California, Berkeley in 1970. He is currently a professor of statistics at California State University, Hayward. He teaches courses in sampling techniques, data analysis, development of statistical software, probability theory, stochastic processes, and simulation methods. He is also a partner in the statistical consulting firm of Drogin, Kakigi & Associates. Much of his consulting is in the area of employment discrimination, and he has testified as an expert witness in statistics and probability. Ex. A-10 at 1 (Drogin Report); R.T. at 15-2573-74.-
231. Dr. Drogin has previously been accepted as an expert in federal court in about twenty cases. He has been retained by the E.E.O.C., the Office of Civil Rights,
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the California Department of Fair Employment and Housing, and various legal services organizations. R.T. at 15-2575.
232. This court finds that Dr. Drogin is qualified to testify as an expert in the areas of statistics, probability and computer analysis. R.T. at 15-2576.
233. Dr. Drogin was hired by plaintiffs’ counsel to review the computerized personnel and employment records provided by defendant through discovery and to analyze the data. R.T. at 15-2576-77. He examined the initial assignment of new hires, promotional patterns at several levels of the workforce, and the distribution of hours. Ex. A-10 at 1.
234. Dr. Drogin’s analysis was based primarily on Lucky’s quarterly payroll data. The Lucky payroll tapes provided to plaintiffs in discovery are authentic business records pursuant to Fed.R.Evid. 803(6), 901. Joint Statement ¶ 51. The computerized payroll tapes contain personnel and payroll data for all non-administrative employees working in the NCD. Nonadministrative data is available for the period from 1979 to the second quarter of 1990. For 1979 and 1980, only year-end data is available. Quarterly data is available since the second quarter of 1981, except that second quarter 1987 data is missing. Administrative data is available only since the second quarter of 1987. Ex. A-10 at 7; R.T. at 15-2576-66. Dr. Drogin modified the original data on the payroll tapes to account for known errors in certain fields. Ex. A-10 at 8; R.T. at 15-2591.
235. The payroll tapes give a snapshot of each employee’s status at the date of the tape by: social security number, name, sex, position held, store, date of hire, termination date (if any), and assorted information on hours worked and income. Ex. A-10 at 7.
236. By comparing a person’s status on the payroll tapes in consecutive quarters it is possible to identify promotions and other job movements. However, if a person makes two or more job changes during a quarter, the data will only show a- change from the first job held at the end of the prior quarter to the job held at quarter end. Ex. A-10 at 7.
237. Jobs were identified on the computerized payroll tapes by department and job classification codes. In some cases there were several codes for the same job. Therefore, Dr. Drogin created twenty-six job groups. Each job group was specified in terms of a set of department and job classification codes. Most job groups consisted of one job classification in one department, although in a few cases a few job classifications were grouped together to form one job group. The job groups were based upon information provided by defendant. Ex. A-10 at 8; R.T. at 15-2583, 15-2585. Dr. Drogin excluded data that did not fit into his job groups. He found that the computer entries he excluded accounted for no more than .5% of any department. R.T. at 17-2969-70.
238. Defendant concedes that Dr. Drogin’s coding of applications was consistent with Dr. Haworth’s coding. Lucky’s Opening Post-Trial Brief at 8 n. 6 (citing R.T. at 34-5701, 34-5712-13, 17-5744-45).
239. Until the fourth quarter of 1989, there was no way to distinguish among the positions of Fourth Person, Fifth Person, Receiving Clerk, Night Clerk, and Front-End Clerk on Lucky’s computerized payroll tapes. In the fourth quarter of 1989 Lucky introduced new payroll job classification codes for certain retail store positions. Joint Statement ¶ 48; Ex. A-10 at 8; R.T. at 8-1290-92 (Foley). Because of this confusion, Dr. Drogin’s promotion analyses do not go beyond the third quarter of 1989. Ex.' A-10 at 9.
240. , Dr. Drogin also worked from computerized bid lists of employees bidding for full-time positions, going back to February 1985. However, that bid list data is incomplete. Ex. A-10 at 7. Lucky did not maintain a complete set of all full-time bid lists created or bids made during the liability period. Joint Statement ¶1 50.
241. Descriptive statistics simply report or summarize counts, percentages, or averages based upon a given data set. Dr. Drogin used inferential statistics in an attempt to measure whether certain dispari
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ties, which are calculated from descriptive statistics, are within the range of what might be expected if the data were generated according to a certain method or procedure. Ex. A-10 at 10.
242. Dr. Drogin used a binomial, or two-tailed test. R.T. at 15-2608. Using a two-tailed test, the significance probability is the likelihood that an observed disparity will occur by random fluctuation. The significance probability can be expressed in terms of a Z-value, which gives the size of the disparity in terms of standard deviations. A Z-value of (+ or —) 1.96, or approximately two standard deviations, indicates that a disparity has one chance in twenty of occurring by random fluctuation (5% probability of occurrence). A Z-value of (+ of —) 3.08, or approximately three standard deviations, indicates that a disparity has one chance in 500 of occurring by random fluctuation (.2% probability of occurrence). Ex, A-10 at 10-11; R.T. at 15-2609-10. Dr. Drogin considered a Z-value of (+ or —) 1.96 to be statistically significant. Ex. A-10 at 11; R.T. at 15-2609.
243. Dr. Drogin used the statistical method of regression analysis, controlling for the effects of a variable by disaggregating the data according to the values of a variable. He divided the data into subgroups and obtained the level of disparity between the different subgroups. He then accumulated the disparities across all of the subgroups to obtain an overall measure of disparity. Ex. A-10 at 12-13.
244. Dr. Drogin compared the movements of men and women from the payroll tapes to a model of availability to determine if there was a significant difference from the model. R.T. at 15-2608.
245. Dr. Drogin also took into account the historical pattern of movement between jobs at Lucky by constructing feeder pools for each target job. Ex. A-10 at 13.
A. Initial Placement
246. Nearly all new Lucky employees are hired as Courtesy Clerks or Apprentices in Grocery, or as Apprentices in Produce, Deli/Bakery, or General Merchandise. Ex. A-10 at 2.
247. The overall percentage of women among new hires from 1984 to-1989 was 46.6%. R.T. at 17-2963.
-248. Between the second quarter of 1984 and the end of 1989, Dr. Drogin found that women were 35% of the new hires into Grocery and Produce jobs and 84% of the new hires into Deli/Bakery and General Merchandise jobs. These figures are statistically significant when compared to expected rates,
7
with a Z-value of 61.71 (probability of less that 1 in 10100). Ex. A-10 at 14, Tab 5; R.T. at 15-2612-15.
B. Promotion
249. Dr. Drogin compared the movement of male and female employees out of Courtesy Clerk positions and into Apprentice positions in the different departments. He found that, controlling for store and year, women comprised 31% of those promoted into Apprentice jobs in Grocery and Produce, but 75% of those promoted into Apprentice jobs in Deli/Bakery and General Merchandise. This disparity is statistically significant, with a Z-value of — 15.13 (probability of less that 1 in 10 50). Ex. A-10 at 16; R.T. at 15-2620. ■
250. For the second quarter of 1984 through the third quarter of 1989, Dr. Drogin found statistically significant shortfalls, in excess of three standard deviations,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2133110. Public record. Not legal advice.