Brennan v. Corning Glass Works

• Decision Date: 28 June 1973
• Docket Number: No. 72-1590.,72-1590.
• Citation: 480 F.2d 1254
• Parties: Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Appellant, v. CORNING GLASS WORKS, a corporation, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

480 F.2d 1254 (1973)

Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Appellant, v. CORNING GLASS WORKS, a corporation, Appellee.

No. 72-1590.

United States Court of Appeals, Third Circuit.

Argued May 21, 1973.

Decided June 28, 1973.

Richard F. Schubert, Sol. of Labor, Carin Ann Clauss, Associate Sol., Donald S. Shire, Helen W. Judd, Isabelle R. Cappello, Sylvia S. Ellison, Attys., U. S. Dept. of Labor, Washington, D. C., Louis Weiner, Philadelphia, Pa., Regional Sol., for appellant.

Scott F. Zimmerman, Walter P. DeForest, Reed Smith Shaw & McClay, Pittsburgh, Pa., Robert F. Cox, Cox, Wilcox, Owlett & Lewis, Wellsboro, Pa., for appellee.

Before KALODNER, ALDISERT and ADAMS, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

This action was commenced by the Secretary of Labor to enjoin claimed violations of the equal pay provisions of the Fair Labor Standards Act¹ and to restrain the withholding of wages allegedly due certain female employees. The broad issue presented for the Court's judgment is whether Corning Glass Works engaged in wage discrimination violative of the Equal Pay Act² by paying more to night inspectors than to day inspectors at its Wellsboro, Pennsylvania plant.

The basic factual pattern involved in this case implicates the Equal Pay Act because, for reasons that will be fully explained, infra, before October 16, 1966, night inspection work was performed exclusively by males and day inspection work largely by females. Thus, the Secretary asserts, in essence, that Corning paid male night inspectors more than female day inspectors for "equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . ."³ The district court disagreed, and the case is now here on appeal.

I.

The pay practices at the heart of this controversy developed over a period spanning more than forty-five years. Before 1925, Corning operated its Wellsboro Plant only during the day, finding it either unnecessary or undesirable to employ a night shift. All inspection work at that time was performed by women. The introduction of automated production equipment between 1925 and 1930, however, made it necessary or desirable for the first time to use night shifts.

Until 1947, Pennsylvania law absolutely prohibited the employment of women between the hours of midnight and 6:00 A.M.,⁴ and thus, in order to fill inspector positions on the new steady night shift, Corning had to hire men. These night inspectors, selected from male employees within the plant, were paid for their night inspection work the individual rates they had previously been receiving. Such wages were higher than the rates paid to women engaged as inspectors on the day shift. A situation thus developed in which male inspectors worked at night, female inspectors during the day, and the male employees were paid at higher rates.⁵

This wage differential was reinforced when, in 1944, the American Flint Glass Workers' Union organized the production and maintenance employees of Corning's Wellsboro Plant and negotiated a collective bargaining agreement providing, for the first time, a plantwide night shift differential. Despite this new shift differential, serving as a premium for night work, the pre-existing wage difference between night shift inspectors and day shift inspectors continued in effect.⁶

In 1947, Pennsylvania law was amended to permit women to work at night conditioned upon the approval of the State Department of Labor.⁷ Under the applicable regulations, however, Corning could have employed women at night only if it would provide them transportation or if Wellsboro had public transportation. It was not economically feasible for Corning to furnish transportation to its female employees, and public transportation was unavailable. The 1947 state regulations were later amended in July, 1965 to permit night work for those women who had regular, private transportation.⁸

Since October 16, 1966, by mutual agreement between the union and Corning, women have been permitted to exercise their seniority, on the same basis as men, to claim steady night shift jobs when vacancies occur.⁹ A considerable number of female employees have availed themselves of this opportunity to take the higher-paying night shift inspection jobs.¹⁰ In addition, several new female employees, as well as a new male employee, have been hired to work as night inspectors.¹¹

Thus, after October 16, 1966, female and male employees worked as inspectors on both the day and night shifts.

Male and female inspectors working the same shift have been and are paid at the same base hourly rate. Moreover, under the Corning Glass Works Plan of job evaluation installed on January 20, 1969, all employees hired after that date are paid the base wage rate for their job regardless of their sex or whether they work on the day or night shifts. The Corning Plan also provides for a "red circle" rate paid to persons employed before January 20, 1969, when working as night inspectors. Thus, all inspectors, male or female, who were employed before the date of the Corning Plan and who work on the steady night shift receive a higher base wage rate ("red circle") than their counterparts, male or female, of comparable seniority, working on the day shifts.

II.

After finding the relevant facts, which were largely undisputed, and in any event mostly stipulated by the parties,¹² the district court held that the Secretary of Labor had not established that Corning violated the Equal Pay Act because he had "failed to sustain its burden of proof that the male inspectors on the night shift and the female inspectors on the day shift performed their work `under similar working conditions,' within the meaning of that phrase under the Equal Pay Act. The district court reasoned that "time of day worked is a working condition," and that "night work has a significant sociological, psychological and physiological impact on most workers."

Urging reversal of the district court's judgment, the Secretary contends primarily that: (1) in view of the legislative history of the Equal Pay Act and controlling judicial precedents, shift differences are not properly classified as "working conditions" under the statute's equal work standards; and (2) the work performed by men and women is "substantially" equal.

Needless to say, Corning disagrees with the Secretary's arguments as to "working conditions" in every respect. Moreover, the company seeks affirmance of the judgment of the district court on a number of additional, alternative grounds: (a) if shift differentials are not "working conditions," within the meaning of the Act, they represent a "factor other than sex" upon which wage differentials may legally be based; (b) even assuming a prior violation of the equal pay provisions, Corning achieved compliance with the Act by opening all inspection jobs to both sexes in October, 1966; and (c) its allegedly unlawful conduct occurred prior to the period of the statute of limitations and cannot make illegal action within the period of the statute that is otherwise legal.

III.

Initially, the Court must determine whether the day and night inspection jobs constitute "equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." Upon this issue the Secretary carries the burden of proof,¹³ and in determining whether the district court erred in concluding that such burden was not met, we must keep in mind that the Equal Pay Act does not contemplate that the Secretary of Labor and the courts will engage in job evaluation for the purpose of deciding what is a proper wage differential for unequal work.¹⁴

Once the Secretary has met his burden of showing equal skill, effort, responsibility, and similar working conditions, the employer, in order to prevail on the merits, must demonstrate that the wage differential 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. . . ."¹⁵

The basic issue over which the parties have waged their legal battle is whether time of day worked may properly be classified as a "working condition" within the meaning of the Act. Here, the district court held that steady night work is not performed under "working conditions" similar to day work. However the Second Circuit recently concluded in Hodgson v. Corning Glass Works,¹⁶ a case remarkably similar to the present one, that, in view of the legislative history of the Act, time of day worked may be used by an employer to justify claimed wage discrimination only as "a differential based on any other factor other than sex," but does not constitute a "working condition" so as to make the Act altogether inapplicable.

Writing for the court in Hodgson, Chief Judge Friendly, in concluding that a night shift is not a "working condition" relied in no small part¹⁷ upon the following statement from the Committee Report:

"Three specific exceptions and one broad general exception are also listed. It is the intent of this committee that any discrimination based upon any of these exceptions shall be exempted from the operation of this statute. As it is impossible to list each and every exception, the broad general exclusion has been also included. Thus, among other things, shift differentials, based on time of day worked, hours of work, lifting or moving heavy objects, differences based on experience, training, or ability would also be excluded. . . ."¹⁸

In quoting this statement, the Second Circuit opinion interlineated the words "differentials based on any other factor other than sex" in brackets after the words the "broad general exclusion" in the next to last sentence in the quoted paragraph, thus revealing its belief...