The opinion of the court was delivered by: MUIR
The Secretary of Labor seeks by this action to enjoin Food Fair from violating the Equal Pay Provisions of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. Jurisdiction is conferred on this Court by 29 U.S.C. § 217.
Section 29 U.S.C. § 206 provides in part, as follows:
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.
Deleting from this section language which has no vitality with respect to this action, the statute would read as follows: "No employer . . . shall discriminate . . . 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." The statutory exceptions relating to (i) seniority systems, (ii) merit systems, or (iii) systems measuring earnings by quantity or quality are not applicable to this case. The fourth exception, "a differential based on any other factor other than sex", is a Congressional pleonasm. In my view, it is impossible for an employer to discriminate between employees on the basis of sex "except where such payment is made pursuant to . . . (iv) a differential based on any other factor other than sex." Were it not for Shultz v. Wheaton Glass Company, 421 F.2d 259 (3d Cir. 1970) certiorari denied, 398 U.S. 905, 26 L. Ed. 2d 64, 90 S. Ct. 1696, I would hold the fourth exception to be a meaningless tautology.
The Secretary of Labor claims that Food Fair has discriminated against female cashiers by paying them at rates less than the pay rates for male cashiers. For the last few years, the male cashiers have been designated as clerk-checkers and the female cashiers have been designated as checkers.
The Secretary of Labor also seeks the payment of the wage differential resulting from the violation of the statute. Testimony in this case dealt only with Defendant's stores in West Hazleton and Scranton, Pennsylvania. The stores are unionized.
The obvious purpose of the Equal Pay Act is to correct discriminatory wage practices having a burdensome effect on the economy and living standards of workers. Shultz v. Wheaton Glass Company, supra.
The Secretary of Labor has proven here that females received lesser wages than males for performing equal work, under similar conditions, on jobs requiring equal skill, effort, and responsibility.
Under the 1963-1965 collective bargaining agreement applicable to this case, there were separate wage schedules for male and female clerks. The agreement established higher wage rates for male clerks than for female clerks. Subsequent collective bargaining agreements removed the specific sex label and purported to establish new categories of checker and clerk-checker. Only male employees have been employed as clerk-checkers since 1965 and only female employees have been engaged as checkers since that date.
Notwithstanding these new titles, the duties of the male and female employees remained the same.
All non-management male employees were designated clerk-checkers, although there was a well-established operational breakdown of clerk checkers into grocery clerks, produce clerks, and cashiers.
Defendant has attempted to justify the differential favoring cashier clerk-checkers (males) on the basis of their asserted performance of the miscellaneous tasks in addition to cashiering operations. The defendant in particular maintains that the clerk-checkers were engaged in performing the following duties, in addition to checking, registering, and bagging customers' purchases: (a) loading L trucks in the receiving area, taking them to customer counters and unloading them, stamping prices on goods and placing them on counters; (b) hanging signs on store windows; (c) changing fluorescent lights in the ceiling; (d) loading ice on produce counters; (e) shoveling snow from sidewalks; (f) retrieving store carts from the store parking lots; (g) relieving grocery clerks during vacations, personal holidays, illnesses and other temporary vacancies; (h) removing produce from the produce shelves at night; (i) mopping floors and cleaning rest room facilities; (j) loading purchases into customers' cars; and (k) assisting in manager's office.
The amount of time spent off the register in the performance of additional activities was approximately the same for both female checkers collectively and male clerk-checkers collectively. The amount of effort required to be expended in cashiering was at least equal to the effort expended in the performance of subsidiary activities by male and female employees. Considering all the subsidiary activities actually performed on occasion by front-end clerk-checkers, neither the time expended for performance, nor the nature of the additional tasks actually performed introduce any substantially greater skill, effort, or responsibility into the front-end clerk-checker jobs than to the checker jobs.
Substantially equal jobs can, of course, involve some differences particularly in subsidiary or detailed tasks, as they do here. Where the primary duties are essentially the same, differences in detailed subsidiary tasks do not render them unequal, absent a showing that performance of the subsidiary tasks requires significantly greater over-all skill, effort or responsibility than is required for the performance of the common primary functions. Wheaton, supra.
The discriminatory differentials paid the men were not justified. See Hodgson v. Robert Hall Clothes, Inc., 3 EPD 8264 326 F. Supp. 1264 (D. Del.; decided April 16, 1971).
The law in this circuit is that once plaintiff has established his prima facie case that there was a wage differential between males and females for identical or equal work, the burden shifts to defendant to prove that some nonsexual factor warrants the differential. The plaintiff has met his burden but the defendant has not done so. Wheaton, supra.
The plaintiff is entitled to the injunctive relief sought and is also entitled to interest on underpayments, computed from the median point of accrual of underpayments as to individual employees. Shultz v. Wheaton Glass Co., 319 F. Supp. 229 (D.N.J., 1970), and Hodgson v. American Can Company, 440 F.2d 916 (8th Cir. 1971).
This opinion embodies the court's conclusions of law. Supplemental Findings of Fact are filed herewith. Counsel shall submit an appropriate injunctive order within thirty days.
Supplemental Findings of Fact
1. The Secretary of Labor has sued under § 17 of the Fair Labor Standards Act (Act of June 25, 1938, 52 Stat. 1060, as amended; 29 U.S.C. 201, et seq.), to enjoin the defendant corporation from violating the equal pay provisions of the statute and to restrain the withholding of unpaid back wages resulting from the alleged violations of these provisions accruing since June 11, 1965. (Stipulation, Para. 1 -- references hereinafter to stipulation refer to Stipulation of Counsel entered into on March 1, 1971).
2. Defendant Food Fair Stores, Inc. is a corporation organized under and existing by virtue of the laws of the Commonwealth of Pennsylvania, with its registered office at 3175 John F. Kennedy Boulevard, Philadelphia, Commonwealth of Pennsylvania, and operating several hundred establishments in several states, including establishments operated at Clarks Valmont Plaza, West Hazleton, Luzerne County, and Meridian Avenue and Luzerne Streets, Scranton, Lackawanna County, both in the Commonwealth of Pennsylvania, and both within the jurisdiction of this court. (Stipulation, Para. 2).
4. The business activities of the defendant corporation involving the operation of retail food supermarkets are related and performed through unified operation and common control and for a common business purpose, and constitute an enterprise within the meaning of section 3(r) of the Fair Labor Standards Act. At all times relevant herein the annual gross volume of sales of the enterprise was and is not less than $1 million, exclusive of excise taxes at the retail level separately stated, and the enterprise purchased and received and purchases and receives goods for resale that move or have moved across state lines which amount to a total annual value of $250,000 or more. (Stipulation, Para. 4).
5. Both stores, operated by defendant at West Hazleton and Scranton, are unionized and covered under collective bargaining agreements with the Retail Clerks' International Association, AFL-CIO, Local Union 1087. The 1963-1965 collective bargaining agreement effective between March 3, 1963, and September 5, 1965, contained separate wage schedules for male and female employees categorized as " clerks ". (Stipulation, Para. 5).
Full time employees were considered as employees working at least a 40 hour workweek under the collective bargaining agreement. Full time male clerks were employed on a salary basis of $64 a week and received increments every 6 months and at the end of a 2 1/2 year period received $91 a week salaries. Full time female clerks commenced at a salary of $62 a week and received increments every 6 months until achieving an $83 weekly salary after 2 1/2 years' employment.
Part time male clerks were employed at $1.50 an hour, after 6 months received $1.55 an hour, 6 months thereafter $1.60 an hour, 6 months thereafter $1.70 an hour, 6 months thereafter $1.80 an hour, and 6 months thereafter received the last increment to $1.85 an hour; conversely, part time female clerks begin employment at $1.40 an hour, 6 months thereafter receive $1.50 an hour, 6 months thereafter $1.60 an hour, 6 months thereafter $1.65 an hour, 6 months thereafter $1.70 an hour, and 6 months thereafter received the last increment to $1.775 an hour.
There was only the classification of clerks, segregated either male or female, and either full time or part time, in the 1963-1965 collective bargaining agreement (a separate classification of head cashier, non-food department heads, male or female, contained in that agreement is not involved in this litigation). (Stipulation, Para. 5).
6. The 1965-1968 collective bargaining agreement effective from September 5, 1965, to July 6, 1968, preserved the 10 cents per hour differential for part time employees and the salary differential for full time employees between males and females, but dropped the male and female designation of clerks, and adopted the classification of " checker " and " clerk-checker ". This same pattern of separate and lower wage schedules for female checkers as opposed to male clerk-checkers continues in the 1968-1971 agreement effective from July 7, 1968, to July 3, 1971. (Stipulation, Para. 6.)
7. At all times since the effective date of the 1965-1968 collective bargaining agreement, only male employees have been employed in the classification of clerk-checker and only female employees have been employed in the classification of checker at defendant's establishments located at West Hazleton and Scranton. (Stipulation, Para. 8).
8. Although the classification of "clerk" segregated into either male or female categories in the 1963-1965 contract was changed to separate classifications of checkers and clerk-checkers under all subsequent collective bargaining agreements, the duties and job contents remained substantially the same. (Plaintiff's Exhibits A1, 2, and 3; 1 TR 72, 228, 2 TR 85). (References hereinafter to Transcript first indicate the transcript volume, as either Volume 1 reporting proceedings on March 22, Volume 2 reporting March 23 proceedings, and Volume 3 reporting March 24 proceedings.)
The redesignation of the jobs eliminating separate male and female categories was effected with no concurrent material change in job content (2 TR 85, 1 TR 51, 2 TR 40).
9. Males engaged in the classification of clerk-checker and females engaged in the classification of checker spent most of their time in cashiering operations checking purchases by customers at cash registers at the front of the establishments. (Stipulation, Para. 8).
10. At each of the separate establishments, the procedures utilized, the merchandise handled, the responsibility for merchandise and monies handled, and all other aspects of the jobs performed either by checkers or clerk-checkers while performing cashiering functions at registers were identical. (Stipulation, Para. 8). (1 TR 118, 143, 191, 218, 2 TR 40, 76).
11. Customers at establishments would select merchandise, place merchandise in carts, and bring the merchandise to the front of the establishment where the check-out counters were located. There were approximately six to eight check-out counters at various intervals during the relevant period at each of the establishments. Customers would remove the merchandise from the carts and place the merchandise on the check-out counter, where the merchandise would be totaled on the cash register by the employee and then placed in bags by the employee, except on limited occasions when the stores were extremely busy and other employees helped in bagging. (Stipulation, Para. 9).
12. On some infrequent occasions, because of such factors as the age of customers or at the request of customers, checkers removed or assisted customers in removing merchandise from shopping carts to the check-out counter. (2 TR 97).
13. Baggers, employees who worked in the cash register area placing merchandise in bags after being totaled by either male or female cashiers, performed this work indiscriminately for both male and female employees engaged in cashiering ...