COHEN, District Judge:
The plaintiff, W. Willard Wirtz, Secretary of the United States Department of Labor, commenced this action under Section 17 of the Fair Labor Standards Act of 1938, as amended,
Plaintiff alleges that the defendant violates the Act by discriminating between men and women in the position of "selector-packer" of its glass bottle products on the basis of sex. He complains that in this job men and women perform equal work under similar working conditions, but receive unequal pay.
While the defendant admits that the employees involved are covered by the Fair Labor Standards Act, it denies any violation thereof. It contends that the trial testimony amply demonstrates substantial differences in performance between the male and female selector-packers; accordingly, not only has the plaintiff failed to carry his required burden of establishing sex as the basis for the hourly wage differential of 21½ cents ($2.355 for males and $2.14 for females), but that he has also failed in his burden of foreclosing "any other factor other than sex" as a basis for the wage differential.
The factual dispute between the parties involves the question of how much, if any, of the work performed by male selector-packers differs substantially from that performed by the females. There is disagreement as well on the legal meaning to be attributed judicially to the phrase "equal work" as used in the Act, and whether the defendant's wage rate differential is based upon a factor or factors other than sex, as provided by the exceptive language of
Plaintiff's approach to these issues is that, as to the burden of proof under the Act, he is not required to prove that sex is the sole basis for the wage differential, for the word "sole" is used nowhere in the Act. Furthermore, if the plaintiff is to be confined to proof of sex as the sole factor, an employer could handily subvert the equal pay provisions by any ingenious increment of job duties. He recognizes that while the Act provides exceptions, these are directed to systems, patterns or distinctive classifications, such as seniority, merit, quantity or quality of product,
Defendant, in advancing justification both factually and legally for the wage rate differential between men and women, claims that the proofs at trial clearly establish essential and substantial differences in job performance; and that these differences are not based upon sex, nor devised to secure an economic advantage. Rather, they are necessary and proper, since the complete job cycle and content of its unique business demand a realistic distinction in job performance requirements and, thus, justify the difference in wage treatment.
In light of the diametrically opposed factual and legal contentions of the parties, a history of the defendant's operations and an analysis of the trial proofs seem essential both for judicial choice of fact, as well as for interpretation and application of the law.
The trial consumed 16 non-consecutive days, prior to which I visited the defendant's plant in order to gain some familiarity with the technical aspects of the job performed by the selector-packers. A similar visit was made at the conclusion of the trial, in order to correlate the testimony to the visual operation.
Defendant is one of the largest manufacturers of glass containers in this Country. Its principal plant occupies an area approximating several metropolitan city blocks. It carries an hourly rate employee payroll, as distinguished from administrative and salaried, annually approximating eleven and a half million dollars. It engages some 2,200 hourly employees who are represented in collective bargaining by the Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, Local 219. For the purposes of this case, however, we need not attempt exposition of all the facets of the defendant's operation nor of the duties of all its employees. It will suffice to state that the two principal components of the defendant's plant are the "hot end," furnaces where the glassware is manufactured, and the "cold end" where it is inspected, selected and packaged. Our concern is solely with a category of employees denominated by the defendant as "selector-packers" located in the "cold end."
It is at the emission point, where the bottles, jars and other containers leave
In addition to the selector-packers, the defendant employs, in its packing department, some 37 base rate employees known as "snap-up" boys, who receive $2.16 per hour, 2 cents more than the females. Their function is that of the all-around "handy man." They act as relief selector-packers during the lunch period and other "breaks," so that the lehr is continuously manned to sustain its output and to prevent spillage and breakage. They also lift heavy or bulky cartons for women and perform whatever miscellaneous physical labor may be required of them on a given job at a particular time. Their higher rate is not challenged.
In addition to selecting and packing, along with females at the lehr, other duties of the male selector-packers are as follows: (1) to lift anything weighing approximately in excess of 35 pounds; (2) to lift any bulky or unhandy cartons, regardless of weight; (3) to stack full cartons on wooden pallets, a process known in the trade as "palletizing," in the area of the related lehr; (4) to tie securely stacks of cartons on the pallets; (5) to move and place fully loaded pallets for further disposition; (6) to carry, move, place and stack empty pallets for later use; (7) to operate hand trucks in the areas of the lehrs; (8) to carry, move, position, install, set-up and adjust portable roller conveyors and packing "bucks" (waist high stands or racks positioned next to the moving conveyor, which hold empty cartons for filling); (9) to collect, carry and dump trays and tubs of cullet (rejected glassware); (10) to sweep and clean all work areas in and around the aisles near the lehrs, and to prepare for job changes; (11) to cut glass stoppers with a diamond saw at the lehrs; (12) to fit and attach metal clips to glass containers at the lehrs; (13) to unjam overhead carton conveyors and automatic cullet belts; (14) to occasionally reinspect, repack and restack delivered glassware on customers' premises; (15) to locate certain glassware in defendant's warehouse, which at times may involve climbing over stacks of palletized ware; and (16) to work, if necessary, in excess of 10 hours in any one work day and in excess of 54 hours in any one work week.
The females perform little or none of the foregoing duties. As of October 1, 1967, they were 230 in number.
Such then, in general outline, is the factual picture of the operations of the department in question, as well as some of the more specific duties of the selector-packers, as established by the testimony. In the development of its case, plaintiff presented 33 witnesses, among whom were 25 females and, out of a complement of 276, only 5 male selector-packers. Of the latter group, one is the husband of a female selector-packer; another is a union shop steward, admittedly seeking wage upgrading for the females; and two other males who were briefly employed by defendant, but who at the time of trial were no longer so employed.
It should be observed, particularly in a non-jury case, that the crucial issue of credibility requires careful scrutiny, analysis and assessment of the testimony of each and every witness. In doing so, it seems obvious that those witnesses presented by the plaintiff, of necessity, understandably provided a limited view, circumscribed by their time and work areas, while those of the defendant presented a broader view of the overall scope of the operation of the entire department. Furthermore, it may be mentioned that the tempering influence of self-interest, as it might understandably affect each witness, has been taken into consideration.
Further examination of the evidence reveals that prior to 1956, the Bottle Inspection Department was staffed solely by male employees, consisting of selector-packers and "snap-up" boys who performed the total job. The advent in 1956 of the distaff side of this department was precipitated by a precarious local labor market, upon which the defendant was and is totally dependent. The shortage of available men in the Millville labor area
Turning now to the wage differential itself, we find that at the time of the creation of the job of female selector-packer in 1956, both the defendant and the union agreed upon a 10 percent differential rate between the men and the women. In so doing, the parties took into consideration the limitations of effort, knowledge, skill and responsibility of the new job, as well as comparable
Defendant continued to employ women in the Bottling Department but, because of their limited utility, not to its entire satisfaction. It became evident that by reason of its dependence upon males for the performance of the total job cycle, and not merely for some supposed economic advantage, the existing employment of females did not provide the requisite flexibility, so crucially essential to its singular operation. Just as soon as the labor market permitted, hiring reverted solely to males, although women were abundantly available and it would have been economically more feasible to employ them, especially since their wage rate was 10 percent lower than that of the men. The uncontradicted testimony presented by the defendant was that not one female was hired between August 12, 1962 and May 12, 1966, a period of almost four years, during which time 1,279 males were hired. This fact significantly and realistically substantiates the theory posited by defendant that the element of flexibility in the intelligent use of its labor force has always been the key to the efficient functioning of its unique industrial plant. And it is strongly corroborative of the rationale advanced, that defendant is almost completely dependent upon use of the more versatile males in its selecting and packing department, not as a preference alone but, rather, as a matter of sheer economic necessity and sound industrial management. Further illustration of such dependence upon the ever shifting local labor pool is the fact that defendant was compelled to resort to the employment of females once again in May, 1966, when the male labor market had been exhausted. So, also, is the labor problem pointed up in an industrial enterprise of this magnitude by defendant's Summer employment of untrained college students, who were and still are phased into its operations as a temporary aid in meeting its ever present need for job flexibility. While it is true that to some extent, all employers are dependent upon the supply of labor, be it male or female, be it for reasons of geography or season, nevertheless, that is not to say that all employees, irrespective of sex, can fulfill all the requirements of certain industrial jobs of a particular employer.
Outstanding, among all the witnesses, was Thomas B. Hinckley, Jr., the defendant's General Factories Manager. He provided not only factual testimony but, based upon his exceptional background,
Thus, distinction must be drawn between a "job shop," such as the defendant's, and standard plants where automatic equipment makes possible the exclusive employment of women as selector-packers. Because of the defendant's peculiar operations, it is impossible for it to manufacture its particular kinds of products by employing modern industry methods. This is further demonstrated by the fact that the defendant owns the General Mold and Machinery Company, a manufacturer of automatic
The most persuasive evidence of the need for flexibility, as well as of the divergence between the job functions of the male and female selector-packers, is demonstrated when a lehr is "down,"
Attention has already been directed to some 16 or 17 different and specific duties performed by males and not by females. Other factors to be considered, and distinctions to be made, are the six-month training or probationary period for men and that of three months for women; the greater flexibility in the use of the defendant's pool of employees made possible by the availability of men for work in excess of ten hours in any one work day and 54 hours in any one work week,
Defendant denies that distinction in sex lies at the heart of its wage disparity. It insists that the practical factors upon which its wage disparity is based are primarily the performance of the essential overall duties of the male selector-packers, involving as they do additional effort, skill, judgment and responsibility, made necessary by the peculiar character of its specialized type of operations. This being so, it argues, such real, practical and reasonable bases constitute factors other than sex as provided by the express exceptive language of the Act, and consequently there is no evasion in any sense of the salutary economic equality in sexes established by Congress.
The basic issue, of course, requires a determination of whether there is a difference in fact between male and female performance in the job of selector-packer and, if so, whether such difference is essential and substantial enough to constitute a realistic economic basis for disparity in wage rates. However, if such difference is merely incidental, insignificant and unsubstantial to the performance of the principal task of the department in question, then it must be concluded that it is more artificial than real, leaving sex as the only realistic and distinctive basis for the wage disparity, contrary to the Act.
As heretofore stated, the declared purpose of the Act was to eliminate discrimination in wage payments to employees on the basis of sex where equal work was being performed by both men and women under the same or similar working conditions. However, if the differential is based upon any other factor other than sex, then that differential is beyond the reach of the Act. Legal precedents for guidance in the interpretation of this Act are few.
Again, it was Congressman Goodell, joined by Congressmen Frelinghuysen and Griffin, who stated that in the event of alleged violations, it was the intention of the Bill to place two burdens of proof upon the Secretary of Labor: one, that of establishing a discrimination based on sex and, two, that of proving that such discrimination was not in fact based upon some other factor, other than sex.
The Act itself makes no express provision for the imposition of the burden of proof on either party. However, after its passage, the Wage and Hour Administrator, recognizing the divergence of views expressed in both Houses, adopted as an administrative interpretation the view of the Senate that the burden was upon the employer. 29 CFR § 800.141. The Administrator's interpretation of the legislation, charged as he is with its actual enforcement, is entitled to great weight. Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966). The view imposing the burden upon the employer is the better one. Traditionally, one who alleges must prove. When the Secretary charges a violation, the burden of proof is his. Similarly, when an employer asserts an exception as an affirmative defense, the burden of proof is his. By way of analogy, the Supreme Court, in cases of claimed exemption from coverage by the Act, has placed the burden of proof upon the claimant or employer. Idaho, ibid, pp. 206, 208, 86 S.Ct. 737; Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959); Walling v. General Industries Co., 330 U.S. 545, 67 S.Ct. 883, 91 L.Ed. 1088 (1947). Its rationale seems far more compelling for acceptance in cases of undisputed coverage under the Act, but where, as here, exception is asserted.
It is precisely within the sphere of the statutory general exception of "any other factor other than sex," that the defendant has met its burden and demonstrated in a most convincing manner that substantial differences exist, in fact, in the full job cycles between the sexes, thereby justifying the disparity in their wages.
It seems reasonably clear, both from the legislative history and the express
A consideration somewhat in depth of the divergence in job content of defendant's male and female selector-packers tends to demonstrate that sex is a mere incidence to the real difference in their respective performances. True, in the assembly line phase of selecting and packing both men and women perform identical functions. If nothing more remained to be done, and in fact was not done, then it would seem clear that within the confines of this work function, they would be performing equal work for which equal pay should be mandated. But, the evidence demonstrates that such is not the case. For the job of the male neither begins nor ends with that particular performance, as it does with the female. It is the extended scope of the male's job requirements coupled with other distinguishing factors, heretofore set forth, and their cumulative effect upon which focus must be directed. So viewed, the proof amply demonstrates that men and women do not perform equal work under similar conditions within the intendment of the Act. To the contrary, men are required to exert additional effort, to possess additional skill and to have additional responsibility, which frequently are performed and discharged under the ever changing demands of working conditions, dissimilar to those prevailing for women.
In conclusion, the plaintiff-Secretary of Labor has failed to carry the burden imposed upon him by the Act, of proving that defendant's wage differential is based upon sex discrimination. In contrast, the defendant has discharged its burden of proving that it is within an exception to the general standard of wage equality imposed by the Act, for the acceptable proof convincingly demonstrates that the defendant's disparity in wages is based upon factors other than sex, and, consequently, as a matter of law, it is not in violation of the Act.
The foregoing opinion shall be in lieu of findings of fact and conclusions of law in compliance with Rule 52, F.R.Civ.P., 28 U.S.C.
Counsel shall submit an appropriate order for judgment in favor of the defendant.
"No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex, by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee."
"For purposes of administration and enforcement, any amounts owing to any employee which have been withheld in violation of this subsection shall be deemed to be unpaid minimum wages or unpaid overtime compensation under this chapter."