Wis.LIRC ER Decision: Helton, Jay - March 19, 1992 - Procedure - Standing - no "standing" requirement under WFEA - union may file complaint on behalf of bargaining unit members; Procedure - complainats - complaint may be in any form acceptable, such as a letter, and may include additional sheets; Procedure - prior decisions - allegations made in previous complaint which has been settled not relevant in subsequent proceeding to prove discrimination occurred; Procedure - standards of proof

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JAY D HELTON, Complainant

WESBAR CORPORATION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8751206, EEOC Case No. 26G872725

An Administrative Law Judge issued a decision in the above-captioned matter on December 12, 1990. The Complainant filed a timely petition for commission review. Both parties have filed briefs.

Based on a review of the entire record, the Commission now makes the following:

FINDINGS OF FACT

1. Respondent Wesbar Corporation (hereinafter, the employer) is a company engaged in the manufacture of parts and accessories for boat trailers.

2. Complainant Jay D. Helton (hereinafter, "Helton") is the president of Local 558 of the Allied Industrial Workers of America (hereinafter, "Local 558"), which is a labor union that is the collective bargaining representative for manufacturing employes of the employer. Helton filed the complaint in this matter in his capacity as president of Local 558, as a result of a decision by the membership of that local that the complaint should be filed.

3. There is a job classification system in place at the employer in which there are specific departments and in which manufacturing jobs are "classified" by being given specific job titles and placed in one of 13 numbered "labor grades" or salary ranges (with lower numbers representing higher salary ranges).

4. In February 1987, the employer had a fender making operation which was not part of any specific department and in which the jobs had not yet been formally "classified." The persons holding those jobs, who were all males, were being paid at labor grade 10. The only classified job at the employer in labor grade 10 at that time was "Punch Press D. " There were a number of female employes in the "Punch Press D" classification, working in other areas.

5. Also as of February 1987, the employer and Local 558 were parties to a collective bargaining agreement, with a term of July 1, 1986 through June 30, 1989, which provided, among other things, that when a job covered by the agreement became available through a vacancy or where a new job was created, the employer would post notice of such opening for three days and that employes who applied for the position while it was thus posted would be given consideration on the basis of skill and ability to perform the required work. The collective bargaining agreement also provided that any new operations established during the term of the agreement would be classified within one year from the beginning of such operations.

6. On February 24, 1987, the employer posted internally a notice that there were an undisclosed number of openings in certain positions including Assemblers at labor grade 11, "Punch Press D" at labor grade 10, and "Fenders" at labor grade 10. "Fenders" referred to the fender making operation.

7. No employes bid on the "Fenders" position (there was in fact only one vacancy), and Respondent then hired an outside applicant, Michael Weber, a male, who was referred to Respondent through a Private Industry Council referral arrangement. He was hired on March 11, 1987 with the understanding that he would begin employment on March 16, 1987.

8. In the week prior to March 16, 1987, Respondent's then Manager of Manufacturing, Terry Aceto, and its Plant Superintendent, Roger Johnson, decided that it was time to finally classify the jobs in the fender making area. Johnson and Aceto accordingly carried out an evaluation of the jobs in the fender making operation, rating them according to a system developed by the Management Resources Association. They decided that the jobs in fender making which had incumbents were to be classified as "Fender A," and that the position in the fender making area in which Weber would be beginning on March 16, 1987 would be classified as "Fender B. " They decided further that the Fender A positions would be assigned to labor grade 8 and that the Fender B position would be assigned to labor grade 10. The classification was to be effective March 16, 1987.

9. Johnson and Aceto were prompted to finally classify the jobs in the fender making area when they did because, for the first time since the operation was begun in mid-1985, a new person was going to be coming into the area, and also because they believed that under the collective bargaining agreement they should classify the jobs in the fender making area within one year of the beginning of the agreement's term.

10. When the employer classified the positions in the fender making area as Fender A and Fender B, assigning them to labor grades 8 and 10 respectively, it did not post the positions as open for bidding under the contractual procedure because the positions were not vacant and were not new jobs, but rather all had incumbents.

11. The employer's decision to post the opening in the fender making area on February 24, 1987 prior to giving notice of its intent to classify the jobs in that area was not intended to reduce the likelihood that female employes in labor grade 10 would bid on jobs in that area, and was not motivated by a desire to discriminate against females.

12. The employer's failure to open all of the positions in the fender making area to bidding after those positions were classified in March 1987 was not intended to preclude female employes from bidding into that area and was not motivated by any desire to discriminate against female employes. The employer did not open the positions to bidding because they were neither newly-created positions nor vacant positions, and it was only such positions that were subject to bidding under the applicable collective bargaining agreement.

13. The employes in the fender making area whose positions were classified as Fender A at labor grade 8, who had been being paid at various levels within the labor grade 10 salary range, were all given pay increases of 55G per hour effective March 16, 1987, the effective date of the classification of their positions. This reflected the difference between the bottom of the salary range of labor grade 10 and the bottom of the salary range of labor grade 8. The result of this was that each employe ended up being paid as many cents per hour more than the base of the salary range of labor grade 8, as they had previously been paid above the base of the salary range of labor grade 10. In the parlance of the employer and the union, the employes were referred to as having been allowed to "keep their merit," i.e. , to retain the cents-per-hour differential between their wage and the base of their labor grade's salary range which they had initially acquired by virtue of periodic merit review raises.

14. Prior to 1986, a female employe, Anita Olderman, had been employed for some time at a job assignment (operating a "sala saw") which was not classified. Olderman was. being paid at labor grade 8. As a result of an agreement reached in negotiations over a successor collective bargaining agreement in 1986, the employer finally evaluated Olderman's work assignment, gave it a formal classification ("Sala Saw"), and assigned it to labor grade 7. Olderman, who had been being paid at the top of the salary range in labor grade 8, continued to be paid the same hourly wage, which was approximately in the middle of the salary range for labor grade 7, after her position was classified as "Sala Saw. "

15. Prior to February 1987, the practice of the employer, accepted as the standard practice by the union, was that when a person's position was classified into a labor grade higher than that at which the person had previously been paid, the person either stayed at their previous pay rate, or went to the base pay of the new labor grade, whichever was higher, but did not "keep their merit" pay. Thus, Olderman was treated in the fashion accepted and expected by both the union and the employer at the time her position was classified into labor grade 7 in 1986.

16. The employer's decision to pay the fender making area employes whose positions were classified at labor grade 8 in 1987, at rates above the base of that labor grade corresponding to the number of cents per hour the employes had been above the bases of their older labor grades, was not based on the sex of the employes involved. The employer made that decision because it was the first time there had been a situation in which previously unclassified positions were classified into a labor grade two labor grades above the grade at which the incumbents were being paid, so that there was no overlap between the salary ranges of the two labor grades.

17. The employer conducts periodic reviews of employes' performance and on the basis of such reviews it determines whether to grant any pay increase based on merit. There is no fixed interval within which merit reviews are to be conducted. There are no objective standards-which determine whether an employe will be granted a merit increase or the amount of any such increase. These decisions, as well as the decision on the frequency of merit reviews in any particular case, are in the judgment of the supervisor or manager conducting the review.

18. In a group composed of the employer's employes hired since January 1983, consisting of 18 females and 12 males, the females received 45 merit reviews in a total of 380 "employe-months" of employment, for an average of one merit review every 8.4 months; the males received 64 merit reviews in a total of 468 "employe-months" of employment, for an average of one merit review every 7.3 months. Females thus received merit reviews at 87% of the rate at which males did. In the same group, the females received a total of $2.34 per hour in merit raises from their 45 merit reviews, for an average merit raise per merit review of 5.2 � per hour; the males received a total of $4.02 per hour in merit raises from their 64 merit reviews, for an average merit raise per merit review of 6.34 � per hour. Females thus received merit increases at 83% of the rate at which males did. The rate at which females received merit reviews and the amount they received in merit raises would have been greater in relation to the males' rates, if it had not been for the fact that three of the 18 females in the group entered into a settlement of an earlier discrimination complaint in 1986 as part of which they agreed to waive their right to two merit review increases.

19. Sex was not a factor in the employer's practices with respect to the frequency of merit reviews or the amount of merit increases.

Based on the FINDINGS OF FACT made above, the Commission makes the following:

CONCLUSIONS OF LAW

1. Respondent Wesbar corporation is an employer within the meaning of the Wisconsin Fair Employment Act.

2. In legal contemplation, the Complainant in this matter is Local 558 of the Allied Industrial Workers. Jay D. Helton is simply the duly authorized representative of Local 558 who filed the complaint on behalf of Local 558, pursuant to Wisconsin Administrative Code chapter Ind 88. 02(3).

3. Local 558 is a "labor organization" within the meaning of that term as it is defined in the Wisconsin Fair Employment Act. It is also a "person" within the meaning of that term as it is defined in Wisconsin Administrative Code chapter Ind 88. 01(7) and sec. 990. 01(26), Stats. , it is entitled under Wisconsin Administrative Code chapter Ind 88. 02(3) to file a complaint by its duly authorized representative (in this case, its president, Jay D. Helton), and the complaint thus filed on behalf of Local 558 is one which the Department may receive and investigate under sec. 111. 39(1), Stats.

4. Respondent Wesbar Corporation did not discriminate on the basis of sex against its female employes represented by Local 558, in violation of the Wisconsin Fair Employment Act, with respect to the timing of its decisions to post an opening
in the fender making area on February 24, 1987 and to classify positions in the fender making area effective March 16, 1987; with respect to its failure to open the positions in the fender making area up for bidding as a consequence of their having been classified effective March 16, 1987; with respect to its decisions concerning the wage rate of Anita Olderman upon the classification of her position in 1986 or the wage rates of fender making area employes upon the classification of their positions in 1987; with respect to frequency of merit reviews or amount of merit raises; or in any other respect which is deemed to be alleged by the complaint in this matter.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, . the Commission makes the following:

ORDER

That the complaint in this matter be dismissed.

Dated and mailed March 19, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

"Standing" -- The employer argues that there is a defect in standing in this case. It is wrong. The concept of "standing" per se actually has no place in determining who may file complaints of discrimination with an administrative agency. "Standing" is, in federal law, a matter of subject matter jurisdiction arising from the "case or controversy" restriction contained in Article III of the U. S. Constitution. Warth v. Seldin, 422 U. S. 490, 498-99 (1975). In Wisconsin, there is no similar "case or controversy" limitation in the state's constitution, and standing is thus not a matter of subject matter jurisdiction, although a requirement of some degree of standing has been applied in court proceedings as a matter of "sound judicial policy. " State ex rel. First National Bank v. M&I Peoples Bank, 95 Wis. 2d 303, 308, n. 5, 290 N. W. 2d 321 (1980). Most standing issues in Wisconsin involve the question of whether a particular party is "aggrieved" within the meaning of sec. 227. 53(1), Stats., such that the party may initiate judicial review of an administrative decision. However, as was recognized in Cornwell Personnel Associates v. DILHR, 92 Wis. 2d 53, 63, 284 N. W. 2d 706 (Ct. App. 1979) , "The rules governing standing before an administrative agency are not necessarily the same as the rules governing standing to seek judicial review. " The actual holding in Cornwell unmistakably implies that the question of "standing" to initiate and pursue a matter before an administrative agency is entirely dependent on the statutes and rules establishing the scope of that agency's jurisdiction. If those statutes and rules create broad-or general "standing," they govern, irrespective of how rules governing standing to initiate judicial review might be applied.

The employer in this case was served with a complaint form and attached pages, all of which were collectively identified in the Division's service letter as constituting the "complaint. " The letter attached to the complaint form was signed by Jay D. Helton in his capacity as president of AIW Local 558, and it expressly indicated that the complaint was filed by him on behalf of the members of AIW Local 558. The fact that the structure of the Division's complaint form (which is designed for completion by an individual) led Helton to list himself rather than the local as "complainant," and that the Division thereafter decided to list Helton rather than the local as the "complainant" in its captions, is not significant: The employer clearly knew full well who Helton was, that he was president of Local 558, that he was not claiming that he was a female or that he had been discriminated against because he was a female, that he was in fact acting for Local 558 (as every organization must of course act by individuals), and that the complaint was one in which Local 558 was asserting that female employes of Respondent had been discriminated against by Respondent because of their sex.

The employer argues that Helton's position as president of Local 558 did not give him the right to file discrimination complaints under the Wisconsin Fair Employment Act on behalf of females, because he did not provide any evidence that he was authorized to file a complaint on behalf of any specific female employe of Respondent. This argument ignores the reality of the situation. Helton was not filing the complaint "on behalf of any specific female employe of Respondent. " He was filing the complaint on behalf of the local. Wisconsin Administrative Code chapter Ind 88. 01(7) makes it clear that associations, bodies politic or corporate, and unincorporated organizations are "persons" within the meaning of the Department's rules. Pursuant to Wisconsin Administrative Code chapter Ind 88. 02(3), a complaint may be filed by "any person," and it may therefore be filed by a union because a union is a "person. " Since an organization can only act through individuals, it is inevitable that if it files a complaint it will actually, physically, do so by a particular person, and this is permitted since Ind 88. 02(3) states that the complaint may be filed by a "person's duly authorized representative," where the complaint which is filed by the representative states that the representative is authorized to do so. Clearly, the president of a union local is a duly authorized representative of that local. The complaint in this matter disclosed Helton's official capacity as president of the local and the fact that he was bringing the complaint in his representative capacity. There can be no serious argument but that, under the Department's administrative rules, Local 558 had the right to bring a complaint of discrimination and to do so by its duly authorized representative, its president.

When one proceeds beyond the employer's pretense that this is simply a case in which Jay Helton, acting alone, has filed an unauthorized complaint on behalf of certain females, the only argument that could possibly remain on behalf of the employer is that a union cannot file a complaint alleging discrimination by an employer against persons represented by that union. However, this argument has no merit. As noted above, the Department's rules expressly provide that associations, bodies politic or corporate, and unincorporated organizations are "persons" and that "any person" may file a complaint. Going beyond the Department's administrative rules to the language of the statute and to decisions of agencies and courts charged with applying the Wisconsin Fair Employment Act, the right of unions to bring complaints of discrimination has been established beyond any question.

Nothing in the language of the Wisconsin Fair Employment Act itself precludes the possibility of an organization filing a complaint alleging discrimination against individual members of that organization or persons whose interests are shared or represented by that organization. The Act contains no limitation on who may file a complaint; it simply provides that the Department may receive and investigate complaints if they are timely filed, without reference to who has filed them. Section 111. 39(1), Stats. The Act does not provide that there must be a finding that there is probable cause to believe that the complainant was discriminated against, or that the respondent engaged in discrimination against the complainant, but only that there be a finding that discrimination has been or is being committed, and that the respondent engaged in discrimination. Section 111. 39 (4)(b)(c), Stats. The Act does not speak of the examiner awarding a remedy to the complainant, but only of the examiner awarding a remedy to "an employe. " Section 111. 39 (1) (c), Stats. While the Act does refer in sec. 111. 39(3), Stats. to "the person filing the complaint," sec. 990. 01(26), Stats. provides that in the construction of Wisconsin laws the word "person" includes all partnerships, associations, and bodies politic or corporate.

A long series of decisions holding that unions may file complaints on behalf of their members under the Wisconsin Fair Employment Act, also establishes that Respondent's argument is without merit. Bruce and Local 663 v. Parker Pen (DILHR Commission, November 14, 1972), Milwaukee Webb Pressman's Union No. 23 v. The Journal Co. (DILHR Commission, June 12, 1975), Sosnowski v. Uniroyal (LIRC, May 14, 1979), Hartford Education Association v. Hartford School District (LIRC, May 14, 1979), GTE v. LIRC and Communications Workers of America (Court of Appeal Dist. IV, October 26, 1981, unpublished opinion). (It should be noted that, in the Uniroyal case, Sosnowski was the union president who brought the complaint in that official capacity. ) In view of the recent decision of the court of appeals that the Racine Education Association had successfully proved that the Racine Unified School District violated the Wisconsin Fair Employment Act's prohibition against handicap discrimination by its adoption of a policy concerning AIDS which affected that district's teachers, Racine Unified School District v. Racine Education Assn. and LIRC, 164 Wis. 2d 567, 476 N. W. 2d 707 (Ct. App. 1991), the fact that a union may bring a complaint of employment discrimination under the Wisconsin Fair Employment Act must be considered established beyond dispute.

Scope of Issues Presented -- The employer argues that the issue of sex discrimination in Respondent's merit review and merit increase system "is clearly beyond the scope of the present complaint" and that "neither merit reviews nor merit increases is the subject of this action. " (Resp. Brief to Commission, p. 13) This argument, which the Administrative Law Judge unfortunately accepted uncritically, must surely have been made merely by mistake, as a result of the unfamiliarity of the attorney who was involved in briefing the matter to the ALJ and the Commission with what had occurred at earlier stages of the proceeding.

As noted above, the complaint form in this matter was served on Respondent accompanied by four attached pages, with a service letter from the Division describing its attachments collectively as "the complaint. " The attachments to the complaint form included a two-page typewritten letter to the Equal Rights Division from Jay D. Helton in his capacity as president of Local 558, bearing the same date as that on the complaint form, indicating "this complaint is filed by the undersigned on behalf of the members of AIW Local 558," and containing among other things the allegation that "In addition, the company is following a merit review system that is prejudicially based on sex," with accompanying supporting allegations.

Nothing in the Wisconsin Fair Employment Act requires that a complaint be on a particular form. While Wisconsin Administrative Code chapter Ind 88. 02(2) indicates that a complaint shall be written on a form which is available at any division office or job service office of the department, it also indicates that it may be filed on "any other form acceptable to the department. " The Department's acceptance and service of a written communication, as being "the complaint," clearly evidences that it is considered to be on a form acceptable to the Department. Particularly where an official complaint form is used, and additional allegations are merely added on attached pages, there is no basis for ignoring the attached pages. The complaint form contains relatively little space upon which to describe the allegations. It is common for additional material to be added on additional sheets. Since a letter alone may serve to satisfy the requirements of timely filing of a complaint, see Lasiewicz v. Watertown Metal (LIRC, August 31, 1983), a letter filed as an attachment to and expanding upon the allegations set forth on an official Division complaint form should certainly be viewed as part of the complaint, especially when thereafter served on the parties as such. An allegation of sex discrimination in merit review and pay practices was therefore clearly raised by the complaint in this matter.

In addition to the fact that this allegation was clearly raised by the complaint, it was expressly addressed at all stages of the proceeding thereafter. Discrimination in merit pay practices was identified by the investigator as an allegation present in the case, and was expressly addressed as an issue in the case in the investigation and the Initial Determination. The Notice of Hearing served on the Respondent identified the issues to be heard at hearing as including the question of whether the Respondent violated the Fair Employment Act by discriminating against the Complainant because of sex in regard to pay, and with the Notice of Hearing the Respondent was again served with a copy of the complaint, including the attached letter which set forth expressly the allegation of discrimination in merit pay practices. Thereafter, general information on merit increases was sought by Complainant in discovery. At hearing, evidence was introduced which went directly to the issue of whether there had been discrimination in merit pay practices. Respondent made no objection that this was beyond the scope of the complaint or that it was surprised by the introduction of evidence on this issue. At the close of the hearing, when Complainant's counsel discussed his plans to prepare and introduce into evidence a summary of the employment records of a number of employes that had been produced by Respondent, expressly for the purpose of demonstrating a sex-based disparity in merit pay practices, there was again no objection from Respondent. Completely contrary to the argument now being advanced by Respondent, the attorney who appeared for Respondent at the hearing conceded the admissibility of the documents (Comp. Exh. 13) which Respondent now argues should be excluded. He in fact professed willingness to work with Complainant's attorney in attempting to stipulate to a summary of the data so that the full collection of original documents would not have to be introduced.

Even following the hearing, as counsel for Complainant sought to obtain Respondent's cooperation in arriving at the mutually agreed upon compilation of the data contained in the employment records, the only reason advanced by Respondent for declining to do so was that the materials involved were voluminous and it was still reviewing them. Only when a different attorney becomes involved in briefing, did the assertion arise that discrimination in merit pay was not an issue.

The allegation that there was sex discrimination in merit pay practices was clearly raised in the complaint in this matter, Respondent was aware that it was an issue in the case from the beginning, it participated in the investigation of it as an issue, it was put on notice that a finding had been made on that issue by the investigator, it was put on notice that it was an issue that would be heard at hearing, it did not object in its Answer to the complaint (which was in any event untimely) that the issue was not properly before the ALJ, nor did it so object when the issue was in fact litigated at the hearing. Therefore the Administrative Law Judge erred in declining to address this issue.

Merits -- Local 558 alleges that the employer engaged in certain acts in February and March 1987 which impeded the opportunities for female employes to obtain employment in the fender making operations, and which otherwise preferred males over females in connection with employment opportunities in the fender making operation, because of a bias against the female employes because of their sex. Local 558 also asserts, as discussed above, that Respondent has engaged in a practice of sex discrimination in granting of merit reviews and merit raises. These allegations will be discussed sequentially.

According to Local 558, there is a pattern of sex discrimination which dates back at least to 1985. Local 558 introduced evidence that Respondent allegedly failed to post the jobs that became open when the fender making operation was created in July of 1985 and hired outside employes, all males, into most of the jobs; that it refused to allow laid off female employes to bump into positions held by less senior male "fender" employes in late 1985; and that in 1986 Terry Aceto allegedly justified the employer's desire to exclude females from the fender making area by asserting that they were not big or strong enough to handle the work. This evidence was presumably offered to support the inference that, in its challenged actions in 1987, the Respondent was continuing to engage in a similar pattern of conduct intended to exclude females from the fender making area.

However, that alleged conduct of the employer with respect to the fender making area in 1985 and 1986 had been made the subject of an earlier complaint filed with the Equal Rights Division by Local 558, which was subsequently settled. Local 558's current complaint directly suggested that the information regarding the prior case be reviewed, and the Commission has accepted that suggestion. It has taken notice of the complaint and amended complaint in the prior matter (ERD Case No. 8651897), filed on September 3, 1986 and amended October 1, 1986, and of the document whereby that complaint and amended complaint were disposed of. That complaint and amended complaint raised the issue of the allegedly discriminatory failure of Respondent to post the jobs, its allegedly discriminatory failure to allow females to bump into the jobs, and its allegedly discriminatory assertion that females were not qualified for the jobs, these constituting the same allegations about which evidence was offered in this matter. However, that complaint and amended complaint were indeed settled, and they were in fact thereafter formally dismissed with prejudice by the Equal Rights Division, on February 25, 1987.

In McKiernan v. Madison Metro (LIRC, February 12, 1987), the Commission held that where allegations of discriminatory conduct had been made the subject of a charge of discrimination which had then been settled, the same allegations could not thereafter be considered relevant in a subsequent proceeding to prove that subsequent acts by the employer were also motivated by bias. The Commission applies the rule of McKiernan here. Because the allegations that the Respondent discriminatorily refused to post fender making area jobs, refused to allow females to bump into those jobs, and justified its actions on the basis of the females not being qualified, were dismissed with prejudice by the Equal Rights Division based upon an agreement by Local 558 to withdraw those allegations, evidence in support of those allegations cannot be considered relevant in this proceeding on the question of the motivation of the employer in its challenged actions in February. and March 1987. For this reason, the Commission has made no findings of fact concerning, and does not consider, the allegations relating to disputes over fender making area employment predating the complaint in this case.

These matters aside, it is the contention of Local 558 that the employer's discriminatory animus against females is evidenced by the fact that in February, 1987 it posted for an opening in the fender making area at labor grade 10, even though it planned to classify the positions in the area at a higher labor grade, so that females already at labor grade 10 would not be induced to bid on the job; that it then hired a male from the outside for that position in the fender making area; that it then failed to open the positions to bidding after it classified them to a higher and more desirable labor grade; and that it gave the male incumbents pay increases in connection with the classification greater than it had previously given to a similarly-situated female employe. Considering all of the relevant evidence, the Commission was not persuaded that Local 558 met its burden of proving. discrimination by a preponderance of the evidence. The fender making area position which Respondent posted prior to the classification of the fender making area jobs was one that ended up being classified as "Fender B," still at labor grade 10, so that the failure of Respondent to have classified the position first seems irrelevant. The focus of Local 558 here is really on the fender making area positions that were classified into higher labor grades, and the central complaint of the local is that they were not posted, so that females could not bid for them. Disregarding entirely the question of whether it is at all likely that any female bidders would have been awarded the positions in competitive bidding, the fact remains that the positions were never open. Just as Anita Olderman's position was not opened up to bidding when it was classified into a higher labor grade, so the positions which the incumbents here had held for almost two years were similarly not declared open simply because they had finally been classified. While the treatment afforded the incumbents in terms of the amount of pay increase they received upon classification appears in some respects different from that which had been given to Olderman in the previous year, the employer has pointed to a distinction, that being that a jump of two rather than one labor grade was involved, so that there was no overlap between labor grades.

Basically, the complaint of the local here is that its female members cannot get into the jobs in the fender making area. Their real complaint, however, dates to 1985 when (it is alleged) the positions were in fact open but were not posted with the result that the women could not bid. However, that issue was disposed of in the prior proceeding. If the women continue to find it difficult to get into jobs in the fender making area, it is because there have been few openings, and because they have not bid on the openings that have occurred. The Commission cannot say, that by the conduct of the Respondent in 1987 which is complained of in this matter, the Respondent has intentionally deprived females of opportunities for employment in the fender making area because of sex.

With respect to the allegations of discrimination in merit pay practices, the case of Local 558 is entirely statistical. It rests on data concerning merit reviews and review increases given to 18 female and 12 male employes hired by Respondent since January 1983. These records, marked by the ALJ as Complainant's Exhibit 13, are purportedly summarized in a compilation filed by counsel for Local 558 with the ALJ on December 6, 1989. The Commission has considered this compilation, but has treated it as being only in the nature of argument, and not as having any independent evidentiary value. Indeed, the Commission's own comparison of the compilation to the original data demonstrates that it is erroneous in some respects, both internally (in terms of mathematical errors) and in terms of the accuracy of its reporting as to what is in the original data.

Working from Complainant's compilation, and correcting the errors referred to, the Commission arrived at the figures reflected in the findings of fact made above. The only statistical measures which the commission views as being significant to allegations that females were given fewer merit reviews and less merit pay than males, are the statistics showing the number of merit reviews granted per unit of time for females as opposed to males, and the amount of merit pay increase granted per merit review for females as opposed to males. Although this is not a disparate impact case, the Commission considers it useful to look to the "4/5ths rule," a standard which is used by the EEOC in disparate impact cases to make a threshold determination of whether there is reason to, believe that a particular practice may be having a disparate impact on a protected class. The "4/5ths rule" is not a sophisticated enough statistical test that it should be relied on to establish that there has been discrimination, but it is useful in identifying cases where the evidence is so weak that discrimination can be ruled out. Under the "4/5ths rule," a disparate impact will ordinarily not be inferred unless the rate at which a protected group is successful in a given situation is less than 4/5ths of the rate at which others are successful. 29 C. F. R. � 1607. 4 (d) (1987). By this standard, there would be no inference of disparate impact here. The corrected data shows that although the rate at which females are given merit reviews and the amount of merit increase per review are both less than they are for males, the rate at which females are given merit reviews is more than 4/5ths of the rate at which males are given such reviews, and females receive more than 4/5ths of the amount of merit pay increases as do males. The Commission considers that, in this situation, it cannot find that this type of weak statistical evidence meets the burden of proving by a preponderance of the evidence that the merit pay system is infected with sex discrimination -- particularly in view of the fact that the disparity is probably even less than the numbers reflect, since as a result of the settlement of the prior discrimination action three of the females involved agreed to waive a certain number of merit reviews, thus undoubtedly artificially depressing the statistical results for females.

For all these reasons, the Commission, although disagreeing with the Administrative Law Judge on the questions of standing and scope of issues, arrives at the same result on the merits based on its conclusion that Complainant failed to prove by a preponderance -of the evidence that the challenged practices were a result of sex discrimination.

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