Wirtz v. Basic Incorporated, Civ. No. 1782.

• Decision Date: 22 July 1966
• Docket Number: Civ. No. 1782.
• Parties: W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. BASIC INCORPORATED, a corporation, Defendant.
• Court: U.S. District Court — District of Nevada

256 F. Supp. 786

W. Willard WIRTZ, Secretary of Labor, United States Department of Labor, Plaintiff, v. BASIC INCORPORATED, a corporation, Defendant.

Civ. No. 1782.

United States District Court D. Nevada.

July 22, 1966.

Altero D'Agostini, Regional Atty., and Mildred Y. K. Lau, Atty., United States Dept. of Labor, San Francisco, Cal., for plaintiff.

Woodburn, Forman, Wedge, Blakey, Folsom & Hug, Reno, Nev., for defendant.

OPINION

THOMPSON, District Judge.

The Manager of the Western Division of defendant, Basic Incorporated, when warned by the Chief Chemist of the imminence of passage in Congress of the Equal Pay Act of 1963, remarked, "The Congress would never pass such a foolish law as that."

This "foolish" law¹ is now before the Court for interpretation, uninfluenced by the rightness or wrongness of the policy considerations which led to its enactment. The case for the plaintiff was presented by a feminine attorney of the Department of Labor, resisted by a masculine attorney of the Nevada Bar, and considered by a Judge who, for the purposes of this case at least, must be sexless, a possibility not apparent when the oath of office was taken and one which may bespeak the appointment of older judges.

When the law was approved on June 14, 1963, to become effective June 14, 1964, the defendant corporation maintained a laboratory at its plant at Gabbs, Nevada, where it mined, milled and refined ores and produced refractory materials for use primarily in the steel industry. There is no issue and no doubt that defendant was engaged in the production of goods for commerce and that the laboratory analysts are covered employees within the provisions of the Fair Labor Standards Act.

The laboratory at Basic is staffed with two chemists, three analysts, two to four sample preparation employees, and a secretary, and from time to time, trainees and others may be employed. The chemists are salaried, supervisory employees not covered by the Act. Some of Basic's employees are employed under the aegis of a collective bargaining agreement, but no such agreement is applicable to the laboratory analysts.

The employees involved in the instant dispute are laboratory analysts Jo Ann Barredo, Ann Jones and Byron O'Dell Barredo² was hired by Thompson, the then Chief Chemist, on September 1, 1959, and was trained under his supervision to perform the analytical tests required to determine the metallurgy of the various ores and compounds required to be analyzed. She had had no previous experience. Jones was hired by Thompson in 1953 and was trained by him. She had had no previous experience. O'Dell was hired by Thompson in March, 1962. He was trained by Thompson, with the assistance of Barredo and Jones, in the particular analytical procedures used at Basic. In his early life, he had been employed as a miner and mill superintendent and from 1949 until 1962, was employed by Standard Slag Co. at Gabbs, Nevada, as a laboratory analyst, using similar analytical procedures to those used at Basic to determine the metallurgy of similar ores and products.

The wages paid these respective employees during the relevant period are as follows:

Barredo was employed at the rate of $2.74 per hour from June 11, 1964 to July 1, 1964; at the rate of $2.89 per hour from July 1, 1964 to August 17, 1964; at the rate of $3.16 per hour from August 17, 1964 to July 1, 1965; and at the rate of $3.31 per hour since July 1, 1965.

Jones was employed at the rate of $525 per month (or the equivalent hourly rate of $3.028 per hour) from June 11, 1964 to January 1, 1965; at the rate of $545 per month (or the equivalent hourly rate of $3.144 per hour) from January 1, 1965 to January 1, 1966; and at the rate of $560 per month (or the equivalent hourly rate of $3.2375) since January 1, 1966.

O'Dell has been employed by defendant as an analyst in its laboratory at Gabbs, Nevada from March 26, 1962 to the present. He was employed at the rate of $3.16 per hour from June 11, 1964 to July 1, 1964; at the rate of $3.31 per hour from July 1, 1964 to July 1, 1965; and at the rate of $3.46 per hour since July 1, 1965. Whenever O'Dell worked the swing shift, he received additional compensation at the rate of 5 cents per hour as a shift differential for work performed on the swing shift.

The primary work of all three laboratory analysts is the running of relatively simple, standarized chemical tests on various materials performed strictly in accordance with the company's testing manual and directives.

Barredo and Jones work only a day shift (8 a.m. to 12 m.; 1 p.m. to 5 p.m.) Every two weeks, O'Dell works a swing shift (12 m. to 9 p.m., with an hour off for dinner). The swing shift was instituted August 31, 1964, and is alternated between O'Dell and Christensen, a chemist, for two week periods. Christensen is a salaried supervisory employee who receives no extra compensation for his swing shift service. O'Dell is paid five cents per hour additional for swing shift work, this being the same wage differential provided by collective agreements for swing shift work of other plant employees. The orderly flow of work through the plant results in some differences in the kinds of materials analyzed by O'Dell when on swing shift, as compared with day shift, but the tests are the same as all the laboratory analysts are qualified to and do perform from time to time. Generally, the routine analytical work in the laboratory is divided among the analysts and each is expected to maintain proficiency in every testing procedure not reserved for the chemists. In late 1965 and early 1966, however, the Chief Chemist, Lawson, on instructions from the Plant Manager, assigned to O'Dell the analysis of a fifty-car shipment of magnesite to Australia, and the analysis of iron ore samples. The other analysts, Barredo and Jones, were equally qualified to perform these procedures and the assignment to O'Dell of the foreign shipment was for the expressed purpose of having one person responsible.

The male technicians in the "back room" preparing ore samples work under the supervision of a foreman and the Chief Chemist in the daytime. Their work continues until 10 or 10:30 at night. From 5 p.m. until 9 p.m., they are supervised by the swing shift analyst, O'Dell, or Chemist Christensen, as the case may be, in the sense that such person is then in charge of the laboratory although a minimum of supervision is required.

Gabbs, Nevada is a mining community, population 796, in a fairly remote, mountainous area, and it is reasonable, in respect of the safety of women (and ignoring their equality) that late evening and night work should be assigned exclusively to men in a mill and plant where the very great preponderance of workers is men.

After the passage of the Equal Pay Act of 1963, the then Chief Chemist, Thompson, discussed with his superiors the necessity of either equalizing the pay of the laboratory analysts or setting up legal job classifications of jobs requiring different skill, effort or responsibility or which were to be performed under different working conditions, but no final action was taken. Thompson resigned before September 1, 1964, and the present Chief Chemist, Lawson, succeeded him. Some time during his tenure, Lawson produced a "Job Description-Laboratory" (Ex. DD in evidence) which is copied in the footnote.³ There is no evidence that this classification of work was ever put into effect or that wage scales were established for each classification. For example, Barredo and Jones are still paid at different rates, although both are presumably "analysts", and without explanation for the difference.

The defendant's Answer to the Complaint, after denying any discrimination among employees on the basis of sex, affirmatively alleges: "Any lesser pay received by Jo Ann Barredo and Ann Jones results from the fact that their work requires less skill, effort and/or responsibility than the work of higher paid employees who work under similar conditions." This was nothing more than a special denial of affirmative allegations of the Complaint. In its pre-trial brief, defendant argues that (1) O'Dell possesses greater experience and exercises greater skill than his female co-employees, and he has been delegated greater responsibility; (2) the jobs performed by O'Dell require greater skill than the routine quality control analyses performed by Barredo and Jones; (3) O'Dell has been delegated greater responsibility than the others and it is the scope of responsibility delegated by management, not the actual work performed, which is important.

The burden of proof in this case is upon the Secretary to show that the jobs under consideration require equal work, equal skill, equal effort and equal responsibility and are performed...