Krumbeck v. John Oster Manufacturing Company

• Decision Date: 02 June 1970
• Docket Number: No. 67-C-77.,67-C-77.
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Lillian KRUMBECK, on behalf of herself and all other employees similarly situated, Plaintiff, v. JOHN OSTER MANUFACTURING COMPANY, a Wisconsin corporation, Defendant.

313 F. Supp. 257

Lillian KRUMBECK, on behalf of herself and all other employees similarly situated, Plaintiff, v. JOHN OSTER MANUFACTURING COMPANY, a Wisconsin corporation, Defendant.

No. 67-C-77.

United States District Court, E. D. Wisconsin.

June 2, 1970.

Podell & Ugent, Milwaukee, Wis., for plaintiff.

Quarles, Herriott, Clemons, Teschner & Noelke, by James C. Mallien, and Harold P. Southerland, Milwaukee, Wis., for defendant.

OPINION

MYRON L. GORDON, District Judge.

This class action was begun by Lillian Krumbeck, on behalf of herself and about four hundred other similarly situated employees of John Oster Manufacturing Company. Suit is brought under the Equal Pay Act of 1963, 29 U.S.C. § 206 (d) (1), which prohibits job discrimination on the basis of sex. The plaintiff and the members of her class are all females; it is charged that they were paid lower salaries than males for equal work as defined in the statute. The complaint demands back pay in excess of one-half million dollars, plus statutory damages under 29 U.S.C. § 216(b).

By agreement, the case was tried with regard to only two of the claimants. However, there was no representation that these two women represented all the other claimants. Rather, the parties considered this to be an expeditious manner in which to resolve some legal uncertainties which might facilitate the disposition of the claims of other members of the class. Accordingly, the action was tried to the court on December 8 and 9, 1969. At the close of the trial, briefs were submitted. The statute under consideration, 29 U.S.C. § 206(d) (1), states:

"(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."

The effective date of this section as it applies to the parties in this case is June 30, 1964, the date on which the collective bargaining agreement expired. See Public Law 88-38 § 4, 77 Stat. 56 (1963), cited at 29 U.S.C.A. § 206, at p. 490 (1965). The plaintiff filed her complaint on March 10, 1967. Thus, as provided in the statute of limitations, 29 U.S.C. § 255(a), we need only to examine the period going back two years to March 10, 1965 unless there is found to be a "willful violation" by the defendant, in which case we go back three years. This would take us back to the effective date of the act, June 30, 1964. The issue of willfulness will be discussed later in this opinion.

In 1957, Oster instituted a job rating system. It was put into operation through the assistance of a management consultant firm and is entitled the Merkcol Control System. The plaintiff has alleged generally that equal ratings under this system mean equal jobs under the Equal Pay Act.

A definition of job rating is contained in the foreword of a descriptive booklet prepared by the consultant (Pl. Ex. 4). It is there stated:

"Job rating is the process of analyzing jobs and ranking them on the basis of their relative skill, effort, responsibility, and job conditions, on a factual basis for the purpose of establishing a sound wage structure."

The considerations under the job rating system are like those enumerated in the act. Under the job rating system, the four items referred to in the quoted portion of the booklet are broken down into eleven factors. On any given job, each of the eleven factors is evaluated and assigned a specific degree, ranging from one to five. Each degree within a given factor is assigned a certain number of points. To obtain the total for any given job, the points assigned to each factor are added up. The total factor points range from a low of 140 to a high of 381. When the system was initiated, the higher total corresponded to a labor grade of 1 and the lower total to a labor grade of 11. However, as the system evolved, other labor grades were added. For example, now, a job with 140-161 points can be either a labor grade 11 or 21, and a job with 162-183 points can be either a labor grade 10 or 20. Without exception, the higher labor grade receives the lower pay.

The plaintiff alleges that a job which would be designated as a labor grade 10 for male employees would arbitrarily be classified as labor grade 20 for female workers. The defendant, however, claims that the actual assignment, as to labor grade 10 or 20 for example, is done by comparing the job with others currently assigned to grades 10 and also by determining if a pay incentive is necessary to hire a qualified operator. (Tr. pp. 132, 167-168).

For the court to determine whether this allegedly improper practice did in fact occur in the cases of the two claimants in question, we must examine their respective jobs on an individual basis. However, the plaintiff contends that "two jobs are equal when they have the same (or substantially the same) point analysis for each of the eleven factors. * * *" In my opinion, the plaintiff has inaccurately interpreted the law in this respect.

The Supreme Court has declared that the construction of an act by a regulatory agency, charged with enforcing that act, is to be given great weight. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944); United States v. American Trucking Ass'ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). In an interpretive bulletin of the department of labor at 29 C.F.R. § 800.121, it is stated in part:

"Application of the equal pay standard is not dependent on job classifications or titles but depends rather on actual job requirements and performance. For example, the fact that jobs performed by male and female employees may have the same total point value under an evaluation system in use by the employer does not in itself mean that the jobs concerned are equal according to the terms of the statute."

An example is set forth in 29 C.F.R. § 800.120, where there is a comparison of the jobs of a female bookkeeper and a male file clerk. The points for the two positions may be equal, but the jobs themselves might be substantially different. It was not the intention of Congress to compare jobs which are substantially dissimilar in work content. 109 Cong.Rec. 8698 (1963).

Were this court to find that equal points for each of the eleven factors which are used to rate jobs under the Merkcol Control System at Oster automatically meant "equal work" under 29 U.S.C. § 206(d) (1), both common sense and the intent of Congress would have to be ignored. The above quoted portion of 29 C.F.R. § 800.121, which calls for each job being examined on its own merits apart from any classification system, is the correct standard. Other related portions of 29 C.F.R. § 800.121 were specifically approved in Wirtz v. Basic Incorporated, 256 F.Supp. 786, 790 (D.Nev.1966).

Having found that each job must be independently examined, I will now separately evaluate the merits of the cases of the two claimants, Lorraine Hackel and Eunice Casey. In addition, although there is strong evidence that prior to June 3, 1966 the defendant maintained separate and different wage scales for males and females, in my opinion this does not constitute a per se violation of the Equal Pay Act; such conclusion is consistent with a determination to examine the facts of each case presented. The secretary of labor, through the wage and hour administrator, has said essentially the same thing at 6A BNA Lab.Rel.Rep. 95:616:

"Application of the equal pay standard is not dependent on classifications, point values, or job titles, but rather on actual job requirements and performance. Job content is the controlling factor. Neither does the existence per se of separate and different wage scales for "male jobs" and "female jobs" necessarily involve a violation of the Equal Pay Act."

I do not find a per se violation, but this does not preclude a violation being proved by additional evidence.

LORRAINE E. HACKEL

Mrs. Hackel's job at Oster for the past 18 years (with two brief interruptions) has been that of an armature balancer. She alleges that she has been paid less than men who do equal work, as defined in 29 U.S.C. § 206(d) (1). The job of armature balancer was placed in labor grade 10 in May, 1957 (Pl. Ex. 10), and at some later date was placed in labor grade 20 (Tr. p. 93).

It is not necessary to examine Mrs. Hackel's job in any greater depth since I find that she has proved no discrimination. During the time period with which we are concerned, no male has ever worked as an armature balancer (Tr. pp. 91, 96), and the claimant has not adequately compared the job of armature balancer with any other job. Thus, the statutory requirements of equal skill, effort and responsibility and similar working conditions are not met. I have already found that showing equal points under a classification system is insufficient; therefore, further proof would be necessary to permit a finding in favor of Mrs. Hackel. Such proof is not in the record. An attempt was made to compare Mrs. Hackel's job with that of honer, but the duties are not similar. In 29 C.F.R. § 800.120 it is stated:

"* * * On the other hand, it is clear that Congress did not intend to apply the equal pay standard to jobs substantially

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