Brennan v. Board of Education, Jersey City, New Jersey

• Decision Date: 19 April 1974
• Docket Number: Civ. A. No. 1795-71.
• Citation: 374 F. Supp. 817
• Parties: Peter J. BRENNAN, Secretary of Labor, successor to James D. Hodgson, Secretary of Labor, United States Department of Labor, Plaintiff, v. BOARD OF EDUCATION, JERSEY CITY, NEW JERSEY, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

374 F. Supp. 817

Peter J. BRENNAN, Secretary of Labor, successor to James D. Hodgson, Secretary of Labor, United States Department of Labor, Plaintiff, v. BOARD OF EDUCATION, JERSEY CITY, NEW JERSEY, et al., Defendants.

Civ. A. No. 1795-71.

United States District Court, D. New Jersey.

April 19, 1974.

COPYRIGHT MATERIAL OMITTED

Francis V. La Ruffa, New York City, Regional Solicitor U. S. Dept. of Labor, by Jay S. Berke, Jay A. Litwin, for plaintiff.

William A. Massa, of counsel, Jersey City Board of Education, Jersey City, N.J., by George R. Blaney, Jersey City, N.J., for defendants.

OPINION

LACEY, District Judge:

This is one of some 22 suits, all assigned to this court, which have been instituted by the Secretary of Labor against various Boards of Education of this State under the Equal Pay Act provisions of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. § 201 et seq.). Plaintiff alleges in his several complaints that the said Boards have, for varying periods, violated §§ 6(d)(1) and 15(a)(2) of the Equal Pay Act 29 U.S.C. §§ 206(d)(1) and 215(a)(2), by paying their female custodial employees salaries and at rates less than they pay their male custodial workers for equal work on jobs the performance of which require equal skill, effort and responsibility, and which were and are performed under similar working conditions.

At a Pre-Trial Conference attended by plaintiff's counsel and counsel for the several Boards of Education, this court suggested that the first of these cases to be tried be one embodying fact and law questions common to most if not all of the remaining cases. Counsel agreed and, accordingly, the instant matter was designated as the pilot case; however, from this it is not to be taken that the other Boards of Education have agreed to be bound by the determination herein.

On March 11, 1974, a further Pre-Trial Conference was conducted, this time attended by counsel for the parties herein. The court at that time expressed the notion that its experience in handling the entire complex of these cases had led it to believe that factually there was little difference between the parties; that much historical and narrative data could be stipulated; and that, of the total testimony which would be adduced by the approximately 50 witnesses anticipated, only a small portion thereof, if any, would give rise to serious dispute. It was then and now the court's view that the parties were at odds essentially only as to the interpretation of the evidence which would be offered, and the inferences to be drawn therefrom under pertinent legal principles.

Accordingly the court suggested that this non-jury case be tried by deposition de bene esse, the depositions to be taken out of the court's presence on a daily copy basis in the federal court house, with counsel free to apply to the court at any time for instant rulings as the need therefor arose. The court stated it would read daily the testimony transcribed, and would hear testimony of any witness at the request of either counsel. As the Pre-Trial Order of March 18, 1974 sets forth, counsel agreed to this innovative approach. See also, Minutes of Pre-Trial Conference, March 18, 1974, reflecting agreement upon the foregoing procedure.¹

Trial as thus defined then commenced on March 18, 1974. Plaintiff called 36 witnesses on March 18, 19 and 20, and rested. On March 21 the court heard and denied defendant's motion for dismissal under Fed.R.Civ.P. 41(b) and, thereafter, defendant presented its case on March 21 and 22, and rested.² Post-trial briefs and/or Proposed Findings of Fact and Conclusions of Law were exchanged on April 8, 1974, with each side's reply filed and served on April 11, 1974. On April 15, 1974 the court heard final argument.

Based upon its careful consideration of the foregoing, the court hereinafter sets forth its Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

1. This action was instituted by the Secretary of Labor under 29 U.S.C. § 217 of the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.) (the Act) to enjoin the defendant Board of Education (the Board) from violating the Equal Pay provisions of the Act 29 U. S.C. §§ 206(d)(1) and 215(a)(2) and to restrain the withholding of back wages resulting from such illegal pay differentials as the court might find to be due employees, together with interest thereon. Plaintiff charges that the Board has been and is violating the Act by paying higher salaries to male custodial workers than it pays to female custodial maids.

2. The Board's initial defense of immunity under the Eleventh Amendment as "a political subdivision of the state" was stricken from its answer by this court's order of June 28, 1972 pursuant to opinions filed in this matter on June 14 and June 20 of 1972. At that time defendant's motion for summary judgment, consolidated with motions of several other New Jersey Boards of Education, faced with similar Equal Pay litigation, was also denied. See 344 F. Supp. 79 (D.N.J.1972), app. dismissed, 468 F.2d 1325 (3d Cir. 1972).

3. The complaint, filed December 1, 1971, originally named the Board's President and Secretary as codefendants, but the plaintiff, upon the Board's admission that it is an employer within the meaning of § 3(d) of the Act 29 U.S.C. § 203(d) with respect to all affected employees, agreed to dismiss the action against the individual defendants. The parties further agreed, however, that no legal conclusion regarding the liability of any official of a Board of Education for back wages resulting from violations of the Act, in any other action, is to be drawn from this dismissal. The Pre-Trial Order of March 11, 1974, at ¶ VI(d), provides for said dismissal.

4. The Board admits that it is an educational enterprise covered by § 3(r) and 3(s)(4) 29 U.S.C. § 203(r) and (s)(4) of the Act in that it operates public day elementary and secondary schools as defined in § 203(v) and (w) under common control and unified operation which perform the related activities of providing elementary and secondary education to students of the City of Jersey City. These activities are by § 3(r) "deemed to be activities performed for a common business purpose." The Board admits that it, under § 3(s), "has employees engaged in commerce or in the production of goods for commerce, including employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce . . . ." Pre-Trial Order, ¶ VI(c)

5. The Board operates 35 public schools, including 4 high schools, 31 elementary schools, and an administration building. (Ex. 2) All buildings are within the City of Jersey City. Many are close to one another; the Administration Building is on the same grounds with Lincoln High School. Other schools also have nearby but separate annex buildings. Individual schools may be a few miles apart, or as close as within one block from one another.

6. Purchasing of materials, and maintenance services, are handled through the defendant's central administration. The Board employs a central force of mechanics and workmen, including carpenters, plumbers, painters, electricians, plasterers, and laborers. They are responsible for repair work at all the Board's buildings. A separate official, working out of the Board's Administration Building, coordinates this maintenance staff and each school's custodial staff. He visits the different buildings, deals with complaints, and sees that necessary work is performed.

7. Cleaning at each school is performed by the custodial staff, consisting of a head custodian, one or more engineers, male custodial workers, and female custodial maids. Generally these employees are assigned to and work at one school, but may be transferred as the Board deems necessary. To determine the number of custodial employees required for a school, the Board assumes that each male custodial worker and each custodial maid cleans the same amount of space in all its buildings, about 12,000 square feet. Many people have performed work at more than one school during their tenure, and the period here involved. The Board views each custodial worker and custodial maid as working within one integrated school system, which constitutes a distinct facility or place of business. The janitorial staff performs similar work from school to school. The workers are hired and initially assigned to schools by the Board's Superintendent of Buildings and Management. Major complaints regarding their work, or requests for transfers, are referred by individual school principals to the Building Superintendent. All custodial workers and custodial maids are paid pursuant to the Board pay schedules and there is no differentiation in pay based upon the building in which these employees perform their services. Additionally, the members of the custodial staff usually work an 8-hour day with paid time off for lunch or dinner (Ex. 2). At some schools the staff works on two or more shifts with the night shift ending at 10 p. m. or midnight. Male custodial workers and female custodial maids are employed on both the day and night shifts. The Board makes no distinction in pay between custodial employees on the day and night shift. (Ex. 1)

8. For the pertinent period, the Board pay schedules, related to the prevailing collective bargaining agreement, reflect the payment of a higher base salary to custodial workers, an all-male class, than to custodial maids, an all-female category.³ Thus, in 1968 the starting salary for maids was $4,104 per year as against $4,309 for custodial workers, a difference of $205. That differential has risen since 1968, and the current pay schedule for 1974 reflects starting pay for custodial workers $410 per year higher than that for building service workers, the new name of the female category formerly designated custodial maids. The schedules for all years further show that...