Hodgson v. Square D Company, 71-1231

• Decision Date: 09 May 1972
• Docket Number: 71-1232.,No. 71-1231,71-1231
• Citation: 459 F.2d 805
• Parties: James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee and Cross-Appellant, v. SQUARE D COMPANY, a corporation, Defendant-Appellant and Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

459 F.2d 805 (1972)

James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee and Cross-Appellant, v. SQUARE D COMPANY, a corporation, Defendant-Appellant and Cross-Appellee.

Nos. 71-1231, 71-1232.

United States Court of Appeals, Sixth Circuit.

May 9, 1972.

Herbert P. Wiedemann, Milwaukee, Wis., for Square D Co.; John W. Brahm, Milwaukee, Wis., on brief.

Bessie Margolin, Dept. of Labor, Washington, D. C., and Marvin Tincher, Dept. of Labor, Nashville, Tenn., for James D. Hodgson; Peter G. Nash, Sol. of Labor, Bessie Margolin, Associate Sol., Carin Ann Clauss, Bobbye D. Spears, Leroy M. Jahn, Attys., United States Dept. of Labor, Washington, D. C., Marvin Tincher, Regional Atty., Nashville, Tenn., on brief.

Before EDWARDS, PECK and KENT, Circuit Judges.

KENT, Circuit Judge.

This is an appeal by Square D Company (Company), and a cross-appeal by the Secretary of Labor (Secretary), from a judgment of the District Court finding that the Company had violated the provisions of 29 U.S.C. §§ 206(d)(1) and (3):

"(d)(1) 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."

"(3) For purposes of administration and enforcement, any amounts owing to any employee which have been withheld in violation of this subection shall be deemed to be unpaid minimum wages or unpaid overtime compensation under this chapter."

and 29 U.S.C. §§ 215(a) (1) and (2):

"§ 215. Prohibited acts; prima facie evidence

(a) After the expiration of one hundred and twenty days from June 25, 1938, it shall be unlawful for any person —

(1) to transport, offer for transportation, ship, deliver, or sell in commerce, or to ship, deliver, or sell with knowledge that shipment or delivery or sale thereof in commerce is intended, any goods in the production of which any employee was employed in violation of section 206 or section 207 of this title, or in violation of any regulation or order of the Administrator issued under section 214 of this title; except that no provision of this chapter shall impose any liability upon any common carrier for the transportation in commerce in the regular course of its business of any goods not produced by such common carrier, and no provision of this chapter shall excuse any common carrier from its obligation to accept any goods for transportation; and except that any such transportation, offer, shipment, delivery, or sale of such goods by a purchaser who acquired them in good faith in reliance on written assurance from the producer that the goods were produced in compliance with the requirements of this chapter, and who acquired such goods for value without notice of any such violation, shall not be deemed unlawful;

(2) to violate any of the provisions of section 206 or section 207 of this title, or any of the provisions of any regulation or order of the Administrator issued under section 214 of this title."

The District Court concluded that the Company had unlawfully discriminated against women employees by paying lower wages for equal work and entered an award for back pay for the period from May 3, 1965 to March 1, 1966. The trial court held that recovery for back wages prior to May 3, 1965 was barred by the provisions of Section 6 of the Portal-to-Portal Act, 29 U.S.C. § 255:

"§ 255. Statute of limitations

Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act —

(a) if the cause of action accrues on or after May 14, 1947 — may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued;"

and that recovery of back wages after March 1, 1966, was barred by the Company's good faith reliance upon a letter received from the Regional Director, Wage and Hour and Public Contracts Division of the United States Department of Labor, which the Company treated as an approval of its plan (put into effect March 1, 1966) to abolish sex discrimination in employment about which the Secretary had made complaint, pursuant to Section 10 of the Portal-to-Portal Act, 29 U.S.C. § 259:

"§ 259. Reliance in future on administrative rulings, etc.

(a) In any action or proceeding based on any act or omission on or after May 14, 1947, no employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensation under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act, if he pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the agency of the United States specified in subsection (b) of this section, or any administrative practice or enforcement policy of such agency with respect to the class of employers to which he belonged. Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that after such act or omission, such administrative regulation, order, ruling, approval, interpretation, practice, or enforcement policy is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect."

There is no question raised but that the Company is engaged in the production of products sold in interstate commerce within the meaning of Section 206(d) of the Act.

Before May 3, 1965, the Company had different wage grades for different classifications of employment. Some of the classifications of employment were designated "male" and some were designated "female." There were categories of employment related to machine operations and assembly operations for each sex. The Company contended that the categories were fundamentally distinct and required different degrees of physical effort justifying classification as "male" or "female." The trial court concluded that the distinctions which the Company asserted existed with regard to the job classifications and to the revised job classifications were largely contrived and illusory both before and after March 1, 1966. Thereafter he concluded that any pay differentials based on such classifications were unjustified and violated the provisions of the Act. He limited recovery of back wages, however, because of the letter, to which reference has been made, addressed to the Company by the Regional Director.

At the outset the Company claims in its appeal that the Secretary of Labor did not meet the burden of proof of establishing that the jobs in question were equal within the meaning of the statute and that the District Court's findings of fact on which was based the determination of such equality were insufficient. Adequate findings of fact by the trial judge are essential to the resolution of a dispute of this nature. Hodgson v. Brookhaven General Hospital, 436 F.2d 719 (5th Cir. 1970).

Upon examination of the record and the opinion of the District Judge it appears to this Court that the trial judge did in fact make findings responsive to the criteria set forth in the statute prohibiting wage discrimination based on sex, except for the similarity of working conditions, a factor which on this record does not appear to have been in dispute. The statute, 29 U.S.C. § 206(d) (1) prohibits wage discrimination based on sex: "* * * on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, * * *." From the District Court opinion it appears that the District Judge examined the facts in the light of the statutory standards and made findings which are sufficient to enable this Court to ascertain that the proper tests were applied to the evidence.

We cannot set aside the findings of fact of the District Judge unless they are clearly erroneous. Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A.; Strickler v. Pfister Associated Growers, Inc., 319 F.2d 788, 790 (6th Cir. 1963). Even a cursory review of this record, which has been carefully reviewed, establishes that the District Judge's findings were not clearly erroneous but in fact they appear to be eminently correct. That same careful review of the record clearly establishes that the Secretary met the burden of proof required in an action based on this statute.

Much of the evidence was directed to the question of the equality of skill, effort and responsibility required to perform the work in the job classifications as revised effective March 1, 1966. The Secretary called as witnesses employees of the Company who testified as to their duties, the manner in which they spent their working time, the weight of the material and products handled, etc. The Company called as witnesses employees, company engineers and officials who testified as to differences in the job classification requirements. Clearly these were issues of fact to be...