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DAUGHERTY ET AL. v. CONTINENTAL CAN CO. (12/11/73)

decided: December 11, 1973.

DAUGHERTY ET AL., APPELLANTS,
v.
CONTINENTAL CAN CO., INC.



Appeals from orders of Court of Common Pleas of Allegheny County, April T., 1963, Nos. 2469 and 2470, in case of Harold Daugherty, George Plants, Donald Caldwell, Robert Kinsell, Charles Pattison, Earnest Calvert, Grayson Plants, Donald Anderson, Kenneth Burt, Tony Mancinia, Roy Winfield, Edward Razvoza, Donald Arnold, Mitchell Harton, Harold Lipscomb, Harold Sargent, Frank Mrukot, Brice Lilly, Eugene Crile, Leo DiVenzeno, Charles Knestrick, Clarence Woods, Theodore Warne and Edward Kubovick v. Continental Can Co., Inc.; and Thelma Stollar, Marie Rhoades, Helen Mrkvar, Pauline Fetty, Ruby Smith, Mary Harvey, Pearl Knestrick, Angeline Millar, Mary Adams, Ida Dale Wheeler, Alberta McKinney and Mary Jester v. Same.

COUNSEL

William C. Schwartz, with him Lipsitz & Nassau, for appellants.

Robert H. Shoop, Jr., with him Charles C. Hewitt, and Thorp, Reed & Armstrong, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J.

Author: Spaeth

[ 226 Pa. Super. Page 343]

This is an appeal from orders granting a compulsory non-suit in two assumpsit actions. Appellants (plaintiffs below) are fifty-seven men and women who were employed by appellee, the Continental Can Co.,

[ 226 Pa. Super. Page 344]

Inc. (hereinafter "Continental"), at its Hazel-Atlas Glass Division in Washington, Pennsylvania, from May 1962 until February 1964, when Continental sold its business. Appellants are seeking back wages, an equal amount in liquidated damages, and other sums allegedly due them under the Equal Pay Law, Act of Dec. 17, 1959, P. L. 1913, § 1, 43 P.S. § 336.1 et seq., as amended by the Act of July 31, 1968, P. L. 869, No. 262, § 1, 43 P.S. § 336.3 et seq. (Supp. 1973), which in pertinent part read as follows: "No employer shall discriminate in any place of employment between employes on the basis of sex by paying wages to any employe at a rate less than the rate at which he pays wages to employes of the opposite sex for work under comparable conditions on jobs the performance of which requires comparable skills, except where such payment is made pursuant to a seniority training or merit increase system which does not discriminate on the basis of sex." § 3, 43 P.S. § 336.3.

If appellants' claims are to be understood, some background must be stated. Under the terms of a collective bargaining agreement between Continental and appellants' duly recognized bargaining agent, the Glass Bottle Blowers Association of the United States and Canada (hereinafter "the Union"), selector-packers were paid at a base hourly rate of $1.965 if they were men, but $1.77 an hour if they were women; the men also received more per hour in bonus pay than the women. Because of this disparity, in 1960 some of the female employees filed an action under the Equal Pay Law in the Court of Common Pleas of Washington County. The lower court sustained Continental's preliminary objection on the ground that, since the Union represented both male and female employees, the collective bargaining agreement constituted a waiver of the plaintiffs' rights under the Equal Pay Law. This court affirmed. Stollar v. Continental Can Co., Inc., 197 Pa. Superior Ct. 15,

[ 226 Pa. Super. Page 345176]

A.2d 699 (1961) (Montgomery, J., joined by Flood, J., dissenting). The Supreme Court reversed and remanded for further proceedings. Stollar v. Continental Can Co., Inc., 407 Pa. 264, 180 A.2d 71 (1962).*fn1

By memorandum dated March 13, 1962, effective May 1, 1962, the Union entered into an agreement providing for the discontinuance of bonus plans and of all male classifications that duplicated female classifications. Thus, male selector-packers were classified the same, and received the same lower rate of pay, as female selector-packers. In addition, Continental offered to all employees whose bonus plans had been abolished an added 10 1/2 cents per hour on the condition ...


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