Hodgson v. Corning Glass Works, 252

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: FRIENDLY, , KAUFMAN, Circuit , and HOLDEN
• Citation: 474 F.2d 226
• Parties: James D. HODGSON, Secretary of Labor, UNITED STATES Department of Labor, Appellee, v. CORNING GLASS WORKS, a corporation, Appellant.
• Docket Number: Dockets 72-1229,72-1230.,349,No. 252,252
• Decision Date: 02 February 1973

474 F.2d 226 (1973)

James D. HODGSON, Secretary of Labor, UNITED STATES Department of Labor, Appellee,
v.
CORNING GLASS WORKS, a corporation, Appellant.

Nos. 252, 349, Dockets 72-1229, 72-1230.

United States Court of Appeals, Second Circuit.

Argued January 4, 1973.

Decided February 2, 1973.

474 F.2d 227

COPYRIGHT MATERIAL OMITTED

474 F.2d 228

Carin Ann Clauss, Associate Sol. (Richard F. Schubert, Sol. of Labor, Francis V. LaRuffa, Regional Sol., Donald S. Shire, Helen W. Judd, Isabelle R. Cappello, and Sylvia S. Ellison, Washington, D. C., of counsel), for appellee

Scott F. Zimmerman, Pittsburgh, Pa. (Reed, Smith, Shaw & McClay, John G. Wyman, and Walter P. DeForest, Pittsburgh, Pa., of counsel), for appellant.

Before FRIENDLY, Chief Judge, KAUFMAN, Circuit Judge, and HOLDEN,^* District Judge.

FRIENDLY, Chief Judge:

This appeal marks this Court's first encounter with the Equal Pay Act of 1963, 29 U.S.C. § 206(d), one of the many beneficent remedial statutes enacted during the last decade which create new tasks for the federal courts. The burden is increased, perhaps needlessly, because, as is the case with other provisions of the Fair Labor Standards Act of which it forms a part, the Equal Pay Act has no provision for administrative fact-finding.

The controlling statute, 29 U.S.C. § 206(d) (1), of seeming simplicity, reads as follows:

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.

I.

Since the parties broadly accept the factual findings of the district court, a brief summary will suffice.

The controversy concerns the wages paid by Corning Glass Works ("Corning") to Class B, Class C, and General

474 F.2d 229

TV inspectors,¹ in its A Factory, B & C Factory, and Pressware Plant at Corning, New York. Prior to 1925, Corning operated its plants only during the day, and found it unnecessary or undesirable to have a night shift. Between 1925 and 1930, however, the introduction of automatic production equipment made it necessary to institute a night inspection shift. Although, as the district judge found, Shultz v. Corning Glass Works, 319 F.Supp. 1161, 1170 (W.D.N.Y.1970), previously "women had filled most, if not all, of the inspection jobs on the day and afternoon shifts," New York law² then prohibited the employment of women between 10:00 P.M. and 6:00 A.M., and thus Corning had to recruit male employees for a steady night shift. They demanded and received wages comparable to what they were earning on other, often more demanding jobs in the plant, which were approximately twice those paid to the female inspectors. The base rate for the inspectors on the night shift was 53 cents per hour, as against 24 to 28 cents per hour for the female inspectors on the day shifts

Thus a situation was created where the night inspection shift was all male, the day shift virtually all female, and the males received wages significantly higher than the females. This state of affairs persisted until the effective date of the Equal Pay Act — and beyond it — except for one brief period when, because of labor shortages during World War II, New York allowed women to work at night; women employed by Corning on the night shift during that period received the same wages as the men when they performed the same work. In 1944 the Corning, New York plants were organized by the American Flint Glass Workers Union and a collective bargaining agreement was negotiated which provided for the company's first plant-wide night shift differential.³ But this change in Corning's wage structure did not eliminate the higher base wage paid to male night inspectors since, in the case of the inspectors, the shift differential was superimposed upon the existing difference in wage scales. Similarly, although in 1953 New York changed its law to permit females over the age of 21 to work after midnight in factories operating multiple shifts where the Industrial Commissioner found transportation and safety conditions to be satisfactory and granted approval,⁴ the record does not reveal any application by Corning for such approval prior to 1966.

The Equal Pay Act became effective with respect to Corning's Corning, New York plants on June 11, 1964.⁵ Since Corning had previously maintained separate "male" and "female" rate schedules plant-wide, with the latter materially lower, the Act clearly called for action on its part. Corning therefore merged

474 F.2d 230

the separate schedules into one. However, so far as concerned the inspectors, this was a matter of theory only, since the day shift inspectors were assigned to lower wage groups, see 319 F.Supp. at 1165-1166. Thus, as the district court found, 319 F.Supp. at 1166, "the merger continued the historical difference in base hourly rates of the men and women inspectors working the three shifts."

Corning's first significant step toward eliminating the differential wage rates for male and female inspectors took place on June 1, 1966, when it opened the inspection jobs on the night shift to women, presumably with the approval of the State Industrial Commissioner. At this time Corning consolidated its theretofore separate male and female seniority lists, and women became eligible to bid for the higher paid night inspection jobs when vacancies occurred. It is undisputed that a considerable number of women took advantage of this opportunity; turnover in the night inspection jobs was substantial and over half the vacancies were taken by women. Still, the process required some time since women could not exercise their seniority to "bump" a less senior male night inspector.⁶

The last significant event was Corning's negotiation of a new collective bargaining agreement with the Flint Glass Workers Union, effective January 20, 1969. This abolished the separate base wage rates of day and night shift inspectors and increased the rate for all inspectors, so that the resulting base wage was the same for all three shifts and exceeded the wage rates on the steady night shift previously in effect. If the agreement had stopped at that point, there could be no substantial claim of further violation of the Equal Pay Act. However, the agreement provided for a higher "red circle" basic rate to every person employed before January 20, 1969, when working as an inspector on the night shift. At the time of the last hearing in the district court, over two years after the new agreement went into effect, all the night inspectors were being paid at the "red circle" rate; unless Corning changes its system, this is likely to continue for some time since at the date of the hearing over 500 laid-off inspectors had to be offered reemployment before any new inspectors could be hired.

The district court held that Corning had been in continuing violation of the Equal Pay Act; directed it to pay the night rate to all inspectors from November 1, 1964, see note 5 supra, to January 20, 1969, and the "red circle" rate thereafter to all inspectors until true equalization was effected; awarded interest at the rate of 6% per annum on the amounts withheld; and issued an injunction against future violations of the Act of any kind with respect to all categories of employees at all plants except the branch plant at Wellsboro, Pennsylvania.⁷ Corning claims that it was never in violation of the Equal Pay Act; that if it was, any violation ended on June 1, 1966, when women became eligible to work on the night shift, or, at latest, on January 20, 1969, when the differences in basic wage rates were abolished; and that the broad injunction was unjustified. Although the issues are not free from doubt, we reject all contentions save the last.

II.

The parties are in agreement on the general approach we should follow. The initial question is whether the

474 F.2d 231

inspection jobs on the day and night shifts constituted "equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." The Secretary has the burden on this, Shultz v. American Can Co., 424 F.2d 356, 360 (8 Cir.1970); Hodgson v. Brookhaven Gen'l Hosp., 436 F.2d 719, 722 (5 Cir. 1970), and, if he has not sustained it, the complaint must be dismissed even if the wage differentials were unreasonably large in comparison with the actual differences in skill, effort, responsibility, or working conditions, and were based on discriminatory motivation; Congress did not intend to put either the Secretary or the courts in the business of evaluating jobs and determining what constituted a proper differential for unequal work. See 109 Cong.Reg. 9197-98, 9209 (1963); Hodgson v. Miller Brewing Co., 457 F.2d 221, 227 (7 Cir. 1972). The Secretary also has the burden of establishing a prima facie case that the wage differentials represent "discrimination . . . on the basis of sex." Shultz v. Wheaton Glass Co., 421 F.2d 259, 266 (3 Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970). Once the Secretary has sustained these burdens, the employer can escape liability only by bringing itself within one of the four exceptions,...