Hodgson v. Daisy Manufacturing Company

• Decision Date: 30 September 1970
• Docket Number: Civ. No. 563.
• Citation: 317 F. Supp. 538
• Parties: James D. HODGSON, Secretary of Labor, U. S. Department of Labor, Plaintiff, v. DAISY MANUFACTURING COMPANY, a Corp., Defendant.
• Court: U.S. District Court — Western District of Arkansas

317 F. Supp. 538

James D. HODGSON, Secretary of Labor, U. S. Department of Labor, Plaintiff, v. DAISY MANUFACTURING COMPANY, a Corp., Defendant.

Civ. No. 563.

United States District Court, W. D. Arkansas, Fayetteville Division.

September 30, 1970.

William Fauver, Donald Elisburg, Sylvia Ellison, Attys. with U. S. Dept. of Labor, L. H. Silberman, Sol., U. S. Dept. of Labor, Washington, D. C., for plaintiff.

James Gilker, Garner & Parker, Fort Smith, Ark., for defendant.

OPINION

JOHN E. MILLER, Senior District Judge.

This is an action commenced on September 7, 1965, by the Secretary under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq., to enjoin defendant from violating the Act's equal pay provisions by maintaining a wage differential between men and women in five departments of its plant in Rogers, Arkansas. The Secretary also seeks recovery of back wages from June 11, 1964, for the affected employees in the event the court finds in his favor.

Plaintiff contends that defendant's job classification system, which separately classifies "heavy" and "light" (male and female) jobs, is arbitrary and lacks any rational purpose or basis other than the perpetuation of sex-discriminatory pay rates to its women workers. He contends that the work required of men and women punch press operators, paint line tenders, sub-assemblers, final assemblers, inspectors, and packers, is plainly equal within the meaning of the Act, which requires equal pay for equal work without regard to sex.

Defendant admits that it is an employer engaged in commerce and in the production of goods for commerce within the meaning of the Act, and that its employees have been subject to the Act's equal pay provisions since June 1964. Defendant also admits that the respective job pairs require equal skill and that the women workers have always been excluded as a class from the higher paying male job classifications.¹ Defendant denies, however, that the wage differentials are discriminatory under the Act's equal pay provisions principally for the reason that the "heavy" or male jobs require greater physical effort.

The case was tried to the court, without a jury, on eight non-consecutive days in December 1969, and during the course of the trial the court and representatives of the parties visited the plant site. The following shall constitute the findings of fact and conclusions of law of the court, as contemplated by Rule 52(a), Fed.R.Civ.P.

The court has jurisdiction by virtue of 29 U.S.C. § 217.

The equal pay provisions were added to the Fair Labor Standards Act in 1963 by Pub.L. 88-38 (77 Stat. 56). Section 6(d) (1) of the Act, 29 U.S.C. § 206(d) (1), provides that:

"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 which would be in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee."

Section 6(d) (3) provides that for purposes of administration and enforcement, any amounts owing to any employee which have been withheld in violation of § 6(d) (1) shall be deemed to be unpaid minimum wages or overtime compensation under the Act. Under § 4, employers who, like defendant, were not covered by a collective bargaining agreement in effect at least 30 days prior to the date of enactment of the legislation, were given a grace period of one year (until June 11, 1964) to commence compliance.

The defendant Daisy is a Nevada corporation doing business at Rogers, Arkansas, where it is engaged in the manufacture of air rifles, noise guns, parts therefor and related products. Daisy's full line of products requires the production of numerous common parts of varying sizes and dimensions, such as shot tubes, barrels, air tubes, shot tube channels, jackets, plungers, triggers, muzzles and stocks; the assembling of these parts into the completed product; and the inspection and packing of the completed guns for sale and shipment in interstate commerce.

Production generally follows an assembly process which involves the movement of materials and processing of operations through the following departments: Press; Paint; Sub-Assembly; Final Assembly; and Packing. Plaintiff asserts equal pay violations regarding female punch press operators, paint line tenders, sub-assemblers, final assemblers, inspectors, and packers. Prior to this action, Daisy designated its operations as either "male" or "female." Since this suit, defendant has redesignated "male" as "heavy" and "female" as "light," but has at all times excluded women as a class from the higher paying "male" or "heavy" designations. At all times, Daisy's male employees have been paid 10 cents an hour more than their female counterparts. Other than press operators, all of the men in question have been paid an identical rate (now $2.10 an hour) and all of the women in question have been paid an identical rate (now $2.00 an hour). Male press operators, at $2.15 an hour, are paid 5 cents an hour more than the other men, and female press operators, at $2.05 an hour, are paid 5 cents an hour more than the other women. The men and women workers in question are paid strictly on an hourly basis, but 90 percent of them are governed by production quotas which the employees are expected to meet. Of the job pairs in question, only inspectors were not employed under a production quota system. Quotas are established by timing the operation and then adjusting the hourly rate, if necessary, based upon the relative efficiency of the operator, then allowing a factor for fatigue, coffee breaks, cleanup, personal time, and "stock chasing" (material handling) if it applies to the operation. On "light" operations, the factor for fatigue, coffee breaks, cleanup and personal time is 15 to 20 percent. On "heavy" operations, it is usually 5 to 10 percent above the women's allowance, primarily as a result of material handling occasionally performed by male employees. Accordingly, the defendant generally sets substantially lower production quotas for operations designated as "heavy."

The system of production used by Daisy is based upon an engineering method which involves the analysis of the production of each part into a series of separate operations. Each separate operation performed on each part has its own production number and quota. For example, the production of the barrel for the model 1894 air rifle involves eight separate steps within the press department alone. It is not uncommon for an employee to work on many operations over a period of 60-90 days, but men work exclusively on operations designated "heavy" and women work exclusively on operations designated "light." Daisy has never, however, tested its women employees for "heavy" operations; it does not have or use pre-employment tests for physical strength or stamina, or ability to lift weights; and it has never prescribed height or weight standards for any of the operations. Daisy offered no evidence as to how its "heavy" and "light" operations were originally chosen.

In order to establish a prima facie case regarding the female jobs in any of the departments in question, plaintiff must prove that the performance of such jobs requires equal skill, effort, and responsibility, and are performed under similar working conditions as the male jobs with which they are compared. It has been held that "equal" as used in the Act means "substantially equal" and not "substantially identical" or "identical." Shultz v. American Can Co. (8 Cir. 1970), 424 F.2d 356; Shultz v. Wheaton Glass Co. (3 Cir. 1970), 421 F.2d 259, cert. den. 398 U.S. 905, 90 S. Ct. 1696, 26 L.Ed.2d 64; see also Shultz v. Brookhaven General Hospital (N.D. Tex.1969), 305 F.Supp. 424; Wirtz v. Rainbo Baking Co. of Lexington (E.D. Ky.1967), 303 F.Supp. 1049; Wirtz v. Basic, Inc. (D.Nev.1966), 256 F.Supp. 786; 29 C.F.R. § 800.100 et seq. As the Circuit Court of Appeals stated in American Can (quoting from Shultz v. Wheaton Glass Co., supra) at 424 F.2d 360:

"* * * Congress in prescribing `equal' work did not require that the jobs be identical, but only that they be substantially equal. Any other interpretation would destroy the remedial purposes of the Act.

"The Act was intended as a broad charter of women's rights in the economic field. It sought to overcome the age-old belief in women's inferiority and to eliminate the depressing effects on living standards of reduced wages for female workers and the economic and social consequences which flow from it."

It follows that, if there are differences in male and female job requirements in the job pairs under review, the court must determine whether such differences are substantial enough to constitute a realistic basis for the existing wage disparity, or whether such differences are unsubstantial and incidental to the performance of the primary function of the job compared. In this connection, the court must consider actual job requirements and performance, and not job classifications or titles. 29 C.F.R. § 800.121.

Defendant concedes that the work of male and female punch press operators requires equal skill and is performed under similar working conditions, but contends that the work of the males requires...