Potlatch Forests, Inc. v. Hays, LR-69-C-233.

• Decision Date: 12 October 1970
• Docket Number: No. LR-69-C-233.,LR-69-C-233.
• Parties: POTLATCH FORESTS, INC., Plaintiff, v. Arthur H. HAYS, Commissioner of Labor, State of Arkansas, Defendant. Arkansas State A.F.L.-C.I.O., International Woodworkers of America, A.F.L.-C.I.O., and Locals 5-332 and 5-484 of International Woodworkers of America, A.F.L.-C.I.O., Intervenors, Equal Employment Opportunity Commission, an Agency of the United States, Amicus Curiae.
• Court: U.S. District Court — Eastern District of Arkansas

318 F. Supp. 1368

POTLATCH FORESTS, INC., Plaintiff, v. Arthur H. HAYS, Commissioner of Labor, State of Arkansas, Defendant Arkansas State A.F.L.-C.I.O., International Woodworkers of America, A.F.L.-C.I.O., and Locals 5-332 and 5-484 of International Woodworkers of America, A.F.L.-C.I.O., Intervenors Equal Employment Opportunity Commission, an Agency of the United States, Amicus Curiae.

No. LR-69-C-233.

United States District Court, E. D. Arkansas, W. D.

October 12, 1970.

Bill S. Clark, Little Rock, Ark., for plaintiff.

Joe Purcell, Atty. Gen., and Mike Wilson, Asst. Atty. Gen., of Arkansas, Little Rock, Ark., for defendant.

John P. Sizemore, Little Rock, Ark., for intervenors.

Stanley P. Hebert, Gen. Counsel EEOC, Russell Specter, Deputy Gen. Counsel, and David R. Cashdan, Atty., Washington, D.C., filed brief amicus curiae.

Memorandum Opinion

HENLEY, Chief Judge.

This is a suit in equity brought by Potlatch Forests, Inc., an Arkansas employer of both men and women covered by the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.A., section 201 et seq., and by Title VII of the Civil Rights Act of 1964, 42 U.S.C.A., section 2000e et seq., against Arthur H. Hays, Commissioner of Labor for the State of Arkansas, wherein plaintiff seeks declaratory and injunctive relief with respect to Arkansas Act 191 of 1915, Ark.Stats., Ann., section 81-601.

The Arkansas statute with exceptions and exemptions not here pertinent provides in substance that female employees in industry must be paid time and one-half for all hours worked by them in excess of eight hours per day and in excess of forty-eight hours per week. Plaintiff asserts that the Arkansas requirement that daily overtime be paid to female employees has been superseded by the anti-discrimination provisions appearing in the 1964 Civil Rights Act, 42 U.S.C.A., section 2000e-2(e), that the Court should so declare, and that the Arkansas Labor Commissioner should be enjoined from enforcing the Arkansas statute. Since plaintiff relies solely on the Supremacy Clause of the Constitution of the United States, Const., Art. VI, Clause 2, it is not necessary that a statutory court of three judges be convened. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194; Wright On United States Courts, 2d Ed., section 50, p. 190.

The action was commenced on December 12, 1969. Thereafter certain labor organizations, hereinafter referred to collectively as the Union, sought and obtained leave to intervene on the side of the defendant. The Court also granted leave to the Equal Employment Opportunity Commission, established by 42 U.S. C.A., section 2000e-4, and the United States Department of Labor to file amicus curiae briefs. Such a brief has been filed by EEOC, but the Department of Labor filed no brief. There is no reason to believe, however, that the views of the Labor Department differ from those of EEOC.

The cause is now before the Court on a motion to dismiss filed by the Labor Commissioner, a motion for summary judgment filed by Potlatch, a similar motion filed by the original intervenors, and a pleading styled an "Answer" filed by the local union that was permitted to intervene in August of the current year.

Potlatch is largely engaged in Arkansas and probably elsewhere in the raising of timber, and the manufacture of lumber and wood products. As the Court understands, it has at least two plants in Arkansas, one at Warren in Bradley County, and another at or near Prescott in Nevada County. It employs both men and women some of whom perform the same tasks. Potlatch is clearly an industry affecting interstate commerce, and the employees with whom the Court is concerned are engaged either in interstate commerce or in the production of goods for such commerce. Those employees are employed in daily shifts of more than eight hours duration and for workweeks in excess of forty hours per week.

Under the provisions of the Fair Labor Standards Act Potlatch is required to pay all of its employees engaged in interstate commerce or in the production of goods for interstate commerce the statutory minimum wage called for by 29 U.S.C.A., section 206, and it is required by 29 U.S.C.A., section 207, to pay overtime compensation to all of such employees who are employed for more than forty hours in any one week. Unlike the Arkansas statute before the Court, the federal statute does not require that daily overtime be paid to any employee.

Potlatch is not only subject to the general provisions of the Fair Labor Standards Act; it is specifically subject to the 1963 amendment to 29 U.S.C.A., section 206, which amendment is generally known as the Equal Pay Act, Act of June 10, 1963, P.L. 88-38, 77 Stat. 56, which Act is now codified as 29 U.S.C. A., section 206(d). That Act in substance prohibits discrimination in rates of pay based solely on employee sex. The Act provides specifically that inequalities in rates of pay cannot be eliminated by lowering the higher rate; there must be an increase in the lower.

Since the employees of Potlatch were and are covered by the Fair Labor Standards Act, and since that Act requires overtime compensation for all hours in excess of forty worked during a given workweek, regardless of how many hours a day are worked, it is clear that the impact of the Arkansas statute on Potlatch, and on other Arkansas employers similarly situated, is limited to daily overtime hours worked during the first forty hours of each workweek; after a woman has worked forty hours during a given workweek, the Fair Labor Standards Act simply takes over and the Arkansas statute becomes functus officio.

Apparently, Potlatch has always paid its female employees in accordance with both the Arkansas statute and the Fair Labor Standards Act. It seems, however, that prior to 1969 it did not pay daily overtime to its male employees. In that year, according to the brief filed by EEOC, the Labor Department took the position that under the Equal Pay Act, supra, Potlatch was required to pay daily overtime to its male employees as well as to its female employees, and it seems that Potlatch acceded to that position.

In August 1970 the Union filed a charge of discrimination against Potlatch with the Commission alleging in substance that Potlatch was not in fact paying its male employees the daily overtime being paid to women and was thereby violating the anti-discrimination provisions of the Civil Rights Act of 1964. That charge is still pending before the Commission, and no one seems to be able to predict when a decision will be rendered. As far as the Court is advised, the Secretary of Labor has never filed any suit against Potlatch alleging any violations of the Equal Pay Act or of any other provisions of the Fair Labor Standards Act.

The complaint in this case alleges among other things:

"6. Under and pursuant to Title VII of the Civil Rights Act of 1964 (42 USC Section 2000e-2(e)), Plaintiff is prohibited from discriminating against an employee on the basis of one's sex unless sex is a bona fide occupational qualification reasonably necessary to the normal operation of Plaintiff's business. Plaintiff is therefore required to pay male employees performing similar duties the amount of premium pay paid to such female employees pursuant to the Arkansas Act set forth in Exhibit A. Based on the number of employees affected, their shifts and hours of work, compliance by Plaintiff in this regard exceeds the sum of $10,000 exclusive of interest and costs.

"7. The provision of Act 191 of 1915 as amended requiring Plaintiff to pay female employees one and one half (1½) times the regular rate of pay for all hours worked over eight (8) in any one working day, does not create a bona fide occupational qualification within the meaning of Section 703 of Title VII of the Civil Rights Act of 1964 (42 USC Section 2000e-2(e)). Such provision is therefore discriminatory on account of sex and is contrary to and inconsistent with the provisions of Title VII of the Civil Rights Act of 1964, above referred to. By reason of the supremacy clause of the United States Constitution the federal government has therefore preempted the Arkansas Act and has also preempted Defendant's authority to enforce the Act.

"8. The enforcement of the Arkansas Act will frustrate, hinder and prevent national uniform operation of federal legislation intended by Congress to provide a uniform solution to a national problem.

"9. Plaintiff has no adequate remedy at law, and unless this Court enters a Judgment declaring the Arkansas Act void and invalid and restrains and enjoins Defendant, as hereinafter prayed, Plaintiff will either be compelled to bear the heavy burden and cost of complying with this preempted and void law or suffer penalties as hereinbefore alleged."

The defendant, the Union, and EEOC deny that there is any conflict between the Arkansas statute and the federal labor legislation that has been mentioned and insist that the Arkansas statute is still viable. However, defendant and intervenors make some preliminary contentions that need to be noticed before the Court considers the basic controversy between the parties.

I.

It is contended that the complaint does not tender a justiciable case or controversy between plaintiff, on the one hand, and the Labor Commissioner, on the other hand, that is within the jurisdiction of this Court. The argument is that Potlatch is in fact obeying the Arkansas statute, whether voluntarily or involuntarily, and that as long as it continues to do so, there will be no controversy between the original parties to the suit. The Court does not accept that contention.

The defendant Commissioner is the Arkansas official who is charged with the duty of enforcing Act 191 of 1915; through his counsel, the Attorney General of the State of Arkansas, he has advised the Court that he considers Act 191 still alive, and that he will enforce it. Violation of the statute is a...