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

SUPERIOR COURT OF PENNSYLVANIA


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 that the employee sign a waiver of any and all claims he or she might have under the Equal Pay Law.*fn2 As a result, the

[ 226 Pa. Super. Page 346]

    maximum wage rate for selector-packers was a uniform $1.875 per hour.

The actions now before this court were filed on March 4, 1963. Each proceeds on the theory that an employer who has been guilty of wage discrimination cannot bring himself into compliance with the Equal Pay Law by reducing the wage rate of the group that he formerly favored or by paying both groups at some in-between rate; rather he must increase the wage rate of the group that he has discriminated against, making it the same as the rate at which he paid the favored group. Because the statute provides that "[a]ny action pursuant to the provisions of this act must be brought within one year from the date upon which the violation complained of occurs," § 5(b), 43 P.S. § 336.5(b), the actions relate only to the period from March 5, 1962, through March 4, 1963. They were submitted together, on the pleadings and stipulated facts. The trial judge granted Continental's motions for compulsory non-suit and denied appellants' request to amend their complaints to include violations occuring after May 1, 1963. A court en banc affirmed.

Because we find that the lower court properly granted Continental's motions for compulsory non-suit, we do not reach the question whether appellants should have been permitted to amend their complaints.

Appellants place heavy emphasis on the goals that equal pay legislation might have. Among the possible goals the following four seem to be the most prominent: to end wage discrimination practiced against female employees performing tasks comparable to those performed

[ 226 Pa. Super. Page 347]

    by male employees; to improve the financial status of female employees by assuring them salaries equal to those paid male employees performing comparable tasks; to strengthen the job security of male employees who face the threat of replacement by lower paid female employees; and to improve the financial condition of male employees who, faced with competition from lower paid female employees, accept lower wages for themselves.*fn3 With the identification of these

[ 226 Pa. Super. Page 348]

    goals, appellants reason as follows: To permit an employer to lower the wages paid to males as a means of ending a wage pattern that discriminated against females ends the discrimination by wiping out any disparity between the wages paid males and females, but it does not improve the economic lot of the females, and it puts the males in a worse financial position than before. Paying a sum somewhere between that formerly paid males and that formerly paid females is of some benefit to the females, but not to the males. If an employer were required to raise the salaries of the females, however, all four of the goals would be accomplished.

One difficulty with this argument is that it ignores the fact that there is no provision in the Equal Pay Law that to comply with the statute an employer must raise the wages paid female employees against whom he has discriminated, and we cannot add "a requirement which the legislature did not see fit to include." Commonwealth v. Rieck Inv. Corp., 419 Pa. 52, 60, 213 A.2d 277, 282 (1965). See also Hochgertel v. Canada Dry Corp., 409 Pa. 610, 187 A.2d 575 (1963); Olyphant Borough School District v. American Surety Co., 322 Pa. 22, 184 A. 758 (1936).

Nor is there any ambiguous language in the statute that provides an excuse for reading into it a requirement such as appellants advance. The Equal Pay Law is violated when an employer "discriminate[s] . . . 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 comparable work. After Continental lowered the wages paid its male employees, it was no longer acting in violation of the statute. The words of the statute leave no doubt about that; they are free from obscurity and ambiguity and are incapable of two or more meanings. If it were otherwise, we would be required to rely on legislative intent in choosing among

[ 226 Pa. Super. Page 349]

    the possible meanings. See Philadelphia v. Schaller, 148 Pa. Superior Ct. 276, 281, 25 A.2d 406, 409 (1942). In the absence of ambiguity, however, we have no occasion to be concerned with legislative intent. It is an established rule of statutory construction that "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa. S. § 1921 (1973).

In addition, in 1968, the following provision was added to the Equal Pay Law: "Provided, that any 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." § 1, 43 P.S. § 336.3(a) (Supp. 1973).*fn4 As noted in Funk v. Buckley & Co., Inc., 158 Pa. Superior Ct. 586, 593, 45 A.2d 918, 921-22 (1946): "A material change of the language of an original act always indicates a legislative intent to effect a change of legal rights. Fidelity Trust Co. v. Kirk, 344 Pa. 455, 25 A.2d 825; Commonwealth v. Lowe Coal Co., 296 Pa. 359, 145 A. 916, Ogilvie's Estate, 291 Pa. 326, 139 A. 826. And a radical change in the phraseology of a statute . . . is a legislative declaration that the law so amended did not as originally framed embrace the amending provision. MacFarland v. Unemployment Compensation Board of Review, 158 Pa. Superior Ct. 418, 45 A.2d 423; 59 C.J., Statutes, § 647; 50 Am. Jur., Statutes, § 337."

Even if we were free to interpret the statute with reference to its possible goals, we would not be obliged to hold that an employer must increase the wages of employees against whom he has discriminated. It would be sufficient if we merely read the statute as barring wage discrimination based on sex. Perhaps the General

[ 226 Pa. Super. Page 350]

Assembly intended only this narrow goal for the Equal Pay Law. This was in any event its "primary purpose." Stollar v. Continental Can Co., Inc., supra, at 268, 180 A.2d at 73. It must be remembered that the Equal Pay Law is not a minimum wage law. Pennsylvania has since 1937 had a minimum wage law covering women. Act of May 27, 1937, P. L. 917, § 1, 43 P.S. § 331a et seq.; The Minimum Wage Act of 1961, Act of Sept. 15, 1961, P. L. 1313, § 2, 43 P.S. § 333.1 et seq.; The Minimum Wage Act of 1967, Act of Jan. 17, 1968, P. L. 11, No. 5, § 2, 43 P.S. § 333.101 et seq. The Minimum Wage Law fixes the wage rates of certain workers; nothing indicates that the Equal Pay Law was intended to duplicate this function. Viewing the Equal Pay Law merely as an anti-discrimination law leaves an employer with some flexibility in the event he cannot financially raise the wages of the group against whom he has discriminated. Consider the following ing statements made by Elizabeth S. Johnson, Director of the Bureau of Women and Children of the Pennsylvania Department of Labor and Industry, before the Select Subcommittee on Labor of the House Committee on Education and Labor, on the administration of the Equal Pay Law:

"In spite of our success in a few cases, we have not been able to move forward as effectively as the problem calls for. Where the size of the wage differential or the number of workers involved is small, adjustments to secure compliance are not usually difficult to arrange.

"The big problem comes when the number and proportion of workers affected is high and the size of the wage differential is large. The problem may be further compounded when a corporation's plants are operating in several States and management can shift production from one state to another.

[ 226 Pa. Super. Page 351]

"The department of labor and industry has not yet succeeded in getting compliance in several cases of clear-cut violation for this reason. In one Pennsylvania plant of a corporation with plants in other States, 441 women are being paid approximately 20 cents per hour less than 239 men in the same occupation -- a major one in the business.

"To immediately raise the women's rates to the men's would increase the annual wage cost by $176,000 a year. The manufacturer threatened to move his Pennsylvania production to newer facilities in other States. The department consented to allow the company some time to come into compliance by transferring the men to other jobs.

"However, the location of the plant and the relatively few openings for men in other occupations and the union security rights created problems that have made this approach to compliance impracticable.

"I might add, also, that many people would question the propriety of considering any such adjustment a proper one, but we were in a difficult position because we did not want to see the men put out on the streets." Hearings on H.R. 898 and H.R. 10266, supra note 3, at 125. There should be a clear indication that the legislature wanted to limit the options of employers, before the Equal Pay Law is read to require higher wages for some workers. There is none.

The orders of the court below are affirmed.

Disposition

Orders affirmed.


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