Hodgson v. Miller Brewing Company

• Citation: 457 F.2d 221
• Decision Date: 02 March 1972
• Docket Number: 18929.,No. 18560,18560
• Parties: James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. MILLER BREWING COMPANY, Defendant-Appellant. Virginia MURPHY et al., Plaintiffs-Appellees, Plaintiffs-Cross-Appellants, v. MILLER BREWING COMPANY, Defendant-Appellant, Defendant-Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

457 F.2d 221 (1972)

James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. MILLER BREWING COMPANY, Defendant-Appellant.

Virginia MURPHY et al., Plaintiffs-Appellees, Plaintiffs-Cross-Appellants, v. MILLER BREWING COMPANY, Defendant-Appellant, Defendant-Cross-Appellee.

Nos. 18560, 18929.

United States Court of Appeals, Seventh Circuit.

March 2, 1972.

George F. Graf, Milwaukee, Wis., Frank J. Tuk, Cincinnati, Ohio, T. L. Tolan, Jr., Samuel J. Recht, Milwaukee, Wis., for defendant-appellant.

Irvin B. Charne, Milwaukee, Wis., for appellees, Murphy et al.

Carin Ann Clauss, U. S. Dept. of Labor, Washington, D. C. (Peter G. Nash, Sol. of Labor, Bessie Margolin, Associate Sol., Caruthers G. Berger, Herman Grant, Regional Sol., and Sylvia S. Ellison, Washington, D. C., on the brief) for appellee, James D. Hodgson, Secretary of Labor.

Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and KILEY, Circuit Judge.

HASTINGS, Senior Circuit Judge.

These consolidated cases and appeals arise under the Fair Labor Standards Act of 1938¹ (Act) and the Equal Pay Act of 1963.² No. 18929 was filed October 15, 1965 by the three female plaintiffs,³ all laboratory technicians employed by defendant Miller Brewing Company (Miller), to recover back wages, liquidated damages and attorneys' fees under 29 U.S.C.A. § 216(b). No. 18560 was commenced March 31, 1967 by the Secretary of Labor pursuant to 29 U.S.C.A. § 217 to enjoin Miller from violating the equal pay provisions of the Act by paying discriminatory wages to its female laboratory technicians and by reducing the wage rates of certain male technicians. The cases were tried together in June 1968, during the course of which the trial judge toured Miller's operations in Milwaukee, Wisconsin and observed the laboratory technicians' jobs actually being performed. The district court filed its opinion, reported as Murphy v. Miller Brewing Company, D.C., 307 F.Supp. 829 (1969), in favor of the three private plaintiffs and the Secretary of Labor. Judgment was entered enjoining Miller from violating the Act and ordering Miller to equalize the wage rates of all employees in the Analytical Laboratory with those in the Materials Quality Control Laboratory by increasing the former 70 cents per hour. Judgment was also entered in favor of the three private plaintiffs granting back pay, liquidated damages and attorneys' fees.⁴ Miller has appealed. The private plaintiffs have cross-appealed on the question of interest. We affirm.

Miller is engaged in the production and sale of beer which is sold in interstate commerce within the meaning of § 206(d). The equal pay provisions of the Act have been applicable to Miller's employees since June 11, 1964.

These cases primarily involve employees in two main laboratory facilities —the Analytical Laboratory and the Packaging Laboratory.

The Analytical Lab is located on the second floor of the "Research Building." The technicians, both men and women, perform tests to analyze and measure the chemical and physical characteristics of raw materials, beer in process, packaged beer and competitors' products. The tests are conducted according to standardized processes and procedures. No prior experience is necessary and a visual demonstration of the procedures is sufficient training. There are no differences of any significance in terms of the skill, effort, and responsibility required to perform the various tests and other duties in the Analytical Lab.

During the period from January 1961 to January 1965, female laboratory technicians were restricted to work in the Analytical Lab. They were also restricted to working only on the first shift from 8:00 a. m. to 4:00 p. m. in that laboratory. The other two shifts, which were not always operated, were run by male technicians. The men who worked on the other shifts in the Analytical Lab received 70 cents per hour more than the women. This was in addition to a shift differential of 10 to 16 cents per hour.

After the effective date of the Equal Pay Act, men and women continued concurrently and interchangeably to perform the same tests and jobs in the Analytical Lab. On occasion women trained the men to perform these tests. Despite this, women continued to receive 70 cents per hour less than the men for the same work.

During the period July 10, 1964 to January 2, 1965, men were transferred out of the Analytical Lab to the Packaging Lab. During the period of January 2, 1965 to October 31, 1966, Miller allowed only women to perform the work in the Analytical Lab. The women continued to receive 70 cents per hour less than the men who had been transferred out.

After October 31, 1966, both men and women were allowed to work in the Analytical Lab. At this time both men and women in the Analytical Lab received the same lower rate which was 70 cents an hour less than what the men in the Analytical Lab had previously received and than what technicians working in the Packaging Lab received. After October 1966, women were permitted to transfer to the Packaging Lab as vacancies arose.⁵

The Packaging Lab, which prior to October 1966 was restricted to male technicians, consists of three separate laboratory areas: (1) the Materials Quality Control Laboratory (MQC Lab); (2) the Air Laboratory; and (3) the Bottle House Laboratory.

The MQC Lab is located on the second floor of the "Packaging Building." While it is near the production area, it is enclosed and separated from it by tile and glass walls and doors. The temperature and noise levels in both the Analytical and MQC Labs are substantially the same.⁶ Both labs are equipped with sundry chemical testing equipment much of which is the same. As in the Analytical Lab, the tests in the MQC Lab are standardized and training consists merely of demonstrations. Most of the tests are performed in the MQC Lab but a few require the employee to go outside the laboratory. Time spent outside the laboratory varies from zero to one and a half hours per day.

We agree with the district court's conclusion that "the working conditions in the MQC Lab are similar to the working conditions in the Analytical Lab, and there is no substantial difference in terms of the skill, effort and responsibility required between the jobs in the Analytical Lab and the MQC Lab."⁷ Thus, we find that the jobs in the two laboratories constitute "equal work"⁸ within the meaning of § 206(d).⁹

The first issue for our resolution is whether the female laboratory technicians in the Analytical Lab, including the three women plaintiffs, were discriminated against by Miller solely on the basis of sex, in violation of § 206(d) of the Equal Pay Act.¹⁰

Keeping in mind the broad remedial purpose of the Equal Pay Act, the following language from Shultz v. Wheaton Glass Company, 3 Cir., 421 F.2d 259, at 265 (1970), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64, sets the tone for reviewing the discriminatory wage policy in this case: "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."

We find that there are two significant situations in which Miller has discriminated and continues to discriminate against women.

It is almost without question that Miller's wage differential between men and women, who, we have found, performed equal work in the Analytical Lab, from the effective date of the Equal Pay Act (June 11, 1964) to the date when all men had been transferred out of the Analytical Lab (January 2, 1965) was in violation of § 206(d). At that juncture Miller was required, in order to avoid continued violation of the Act, to raise the wages of the women laboratory technicians in the Analytical Lab by 70 cents per hour.

In order to circumvent this requirement, Miller instituted the following arrangement: (1) all men were transferred out of the Analytical Lab to the Packaging Lab and women were restricted to working in the Analytical Lab; (2) women continued to receive 70 cents per hour less than the men had formerly earned in the Analytical Lab and now earned in the Packaging Lab; (3) then, about one year later, the Analytical Lab was again opened up to both male and female technicians with all receiving the lower women's rate; and (4) at the same time, women were for the first time allowed to work at and transfer to the higher paying Packaging Lab jobs.

As a result of this scheme, Miller arrived at the same result as if it had initially, after the effective date of the Equal Pay Act, equalized pay in the Analytical Lab by lowering the male employees wages by 70 cents per hour. Since that in substance is what was accomplished, Miller violated § 206(d). The proviso of § 206(d) which Miller violated is "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.¹¹

"At the outset, we think it clear that the Company did not cure the alleged violation of the Equal Pay Act by agreeing to open the night shift to women. If in fact the work of the women was equal to that of the men, the Company became obligated to pay them the same scale as their male counterparts on the effective date of the Act * * *. It could not relieve itself of that obligation by agreeing to allow some women to work on the night shift at a higher rate of pay at some future date when a vacancy occurred. Citation omitted. Nor could it achieve compliance by opening the AM-PM shifts to men at the lower rate." Shultz v. American Can Company—Dixie Products, 8 Cir., 424 F.2d 356, at 359 (1970).

The second situation in which Miller has discriminated against the female Analytical Lab technicians is in paying them 70 cents...