Shultz v. American Can Company-Dixie Products, 19581.

Decision Date30 March 1970
Docket NumberNo. 19581.,19581.
Citation424 F.2d 356
PartiesGeorge P. SHULTZ, Secretary of Labor, United States Department of Labor, Appellant, v. AMERICAN CAN COMPANY — DIXIE PRODUCTS, a Corporation, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Bessie Margolin, Associate Sol., for appellant; Harold C. Nystrom, Acting Solicitor of Labor and attorneys Robert E. Nagle and Helen W. Judd, U. S. Department of Labor, Washington, D. C., and Beverley R. Worrell, Regional Atty., U. S. Dept. of Labor, Atlanta, Ga., were on the brief with Miss Margolin. L. H. Silberman, Solicitor of Labor, and attorneys Carin Ann Clauss and Helen W. Judd, U. S. Dept. of Labor, Washington, D. C., and Beverley R. Worrell, Regional Atty., U. S. Dept. of Labor, Atlanta, Ga., were on the reply brief with Miss Margolin.

Edgar E. Bethell, of Bethell, Stocks, Callaway & King, Fort Smith, Ark., for appellee and filed brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

We are confronted here with a narrow but important question arising out of the administration of the Equal Pay Act of 1963, 29 U.S.C.A. § 206(d) (1). Is the American Can Company discriminating against its female machine operators, who work exclusively on the AM-PM shifts, by paying operators on those shifts twenty cents an hour1 less than males operating identical machines on the night shift?

The Equal Pay Act prohibits an employer from discriminating "between employees on the basis of sex by paying wages to employees * * * at a rate less than the rate at which he pays wages to employees of the opposite sex * * * 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 * * * (iv) a differential based on any other factor other than sex. * * *".

The principal task of all operators is to tend the machines to which they are assigned. All are charged with the responsibility of producing sanitary, seam-proof, perfectly formed, printed cups and containers. All must keep their machines clean, observe them for malfunctions, clear jams and perform minor adjustments. All are required to maintain the proper supply of glue and other chemicals in the dispensers, thread the machines with paper and perform certain inspection and packing tasks. All are required to remain at their machines unless replaced by a relief operator. But the night shift operators usually perform one task that is not performed by the operators on the AM-PM shifts. They load their machines with heavy rolls of paper.2 "Roll boys" or maintenance men perform this task on the AM-PM shifts. While the machines differ in rates of paper usage and in paper storage capacity, the time spent on the paper handling and loading tasks by the night shift operators varies between seven and thirty-three minutes per eight-hour shift depending on the type of machine operated.

The machines using rolls of paper are designed to store more than one roll. The rolls stored in the machine are changed by all operators by merely pulling a lever and then threading the paper through the machine. When the machine is out of paper, rolls of paper weighing between fifty and one thousand pounds must be transported a few feet and loaded into the machines. The heavier rolls are loaded with the aid of a hydraulic lift, while the smaller rolls must be manually lifted onto spindles located close to the floor.

The wage differential between AM-PM and night shift operators is a historical one. When the plant was first opened, the first and second shifts comprised one department known as the AM-PM Shift Department, and the third shift comprised the Night Shift Department. Each department utilized the same machines but had separate seniority and separate job progression scales. Employment as an operator on the AM-PM shifts was specifically limited to women and employment on the night shift was specifically limited to men.

In October of 1965, the Company and Local 656, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, representing the employees, entered into an agreement which purported to abolish the wage differential based on sex for all positions within the plant.3 The agreement expressly opened the night shift to women and the day shift to men but retained the wage differential between AM-PM operators and night operators at the then seventeen cents per hour. In January of 1966, the Union and the Company issued an interpretation of the amended collective bargaining agreement. The interpretation stated that in the event of a reduction in force, men would be permitted to "bump" AM-PM shift employees with less seniority. It gave a similar privilege to AM-PM employees. The AM-PM employees, however, were required to demonstrate, during a forty-five day trial period, that they could do all of the work required on the night shift, including loading the machines with paper. Transferring employees were to be paid the hourly rate applicable to the job to which they transferred. Five men had transferred to the AM-PM shifts when this case was tried in 1968. A few women had requested to be assigned to the night shift but, for reasons not material herein, their requests have not been granted.

The trial court concluded, on the basis of the above facts, that (1) the Company had ceased discriminating on June 10, 1965, by opening the AM-PM shifts to men and the night shift to women; (2) the work was not equal because the night shift operators exerted effort not required of AM-PM operators by loading the machines; and (3) even if the work is equal, the twenty cents per hour differential is justified by the fact that the Company obtains its maintenance personnel by promotion from the night shift operator classification.

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, June 11, 1965. 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. Compare, United States v. Sheet Metal Workers Int'l Assoc., 416 F.2d 123 (8th Cir. 1969). Nor could it achieve compliance by opening the AM-PM shifts to men at the lower rate. The statute expressly forecloses that possibility by providing that "an employer who is paying a wage rate differential in violation of the Act shall not, in order to comply with the provisions of the Act reduce the wage rate of any employee." 29 U.S.C.A. § 206(d) (1).4

The second and primary question is whether an equal effort was required of all operators.5

In answering this question, we recognize (1) that the burden of proving that given jobs require equal effort rests with the Secretary, (2) that we are bound to accept the trial court's findings of fact unless they are clearly erroneous, but that we are not required to accept its conclusions in accordance with that standard,6 and (3) that Congress, in using the terms "equal work" and "equal effort," did not intend to require that jobs be identical to be equal but intended only that they require the same effort, skill and responsibility.

"* * * Congress in prescribing `equal\' work did not require that the jobs be identical, but only that they must 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."

Shultz v. Wheaton Glass Co., 421 F.2d 259 (3rd Cir. 1970); 29 C.F.R. §§ 800.120, 800.122, 800.127. We believe that any other interpretation would limit the broad remedial purposes of the statute which were the elimination of discrimination and the raising of the level of women's wages.7

In our view, the Secretary sustained the burden of proving that all operators' jobs are equal within the meaning of the Act: (1) The handling and loading functions of the night shift operators, while performed regularly, are minor and incidental. They do not involve the exertion of substantial additional effort. Most of the physical and mental effort exerted in the performance of the job is related to the operation of the machines. Compare, Wirtz v. Koller Craft Plastic Products, Inc., 58 L.C. 32,076 (E.D.Mo.1968); Wirtz v. Rainbo Baking Co., 54 L.C. 31,884 (E.D.Ky. 1967). Night shift operators spend only two to seven percent of their time handling and loading paper and from ninety-three to ninety-eight percent of their time operating their machines. See, Norman v. Missouri Pacific Railroad, 414 F.2d 73, n. 4 (8th Cir. 1969); Howard v. St. Louis-San Francisco Ry. Co., 191 F.2d 442 (8th Cir. 1951), aff'd sub nom., Brotherhood of R.T. v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952). (2) No wage differential exists as between night shift operators even though they are not all required to exert identical effort. All night shift operators receive the same rate of pay whether they spend a few minutes or thirty-three minutes per shift in the handling and loading function, whether the rolls of paper weigh fifty or fifteen hundred pounds, whether the rolls are loaded manually or mechanically, see 29 C.F.R. §§ 800.122(a) and 800.128, or whether they perform the job alone or with the assistance of the maintenance adjusters who work with them on the night shift.8 (3) No question of skill or responsibility is involved. The paper handling task is performed on the AM and PM...

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