All of the duties testified to by the advanced aides at Washington Manor, I find that not a single one of these had performed all of the functions which orderlies had been trained to do at Washington Hospital, or any one of the functions continuously or over any extended period. For instance, one or two nurses aides catheterized occasionally, one removed two casts but did no catheterization or surgical preparation, one did catheterization on one male, but was told not to do it because it was the nurse's duty. This must, of course, be considered as of 1970. Nurses aides did not, and were never authorized to, perform catheterizations at Washington Hospital, or remove casts or do surgical preps. Incidental or occasional performance of a task does not classify it as one of content. Wirtz v. Rainbo Baking Co. of Lexington, 303 F. Supp. 1049 (D.C.Ky.1967).
After consideration of all of the evidence in the case, as a whole, and observing the plaintiff's witnesses who testified as to their capability in performing these occasional functions here entrusted to nurses and to orderlies, I was unimpressed by their credibility and concluded that their testimony was being colored by the possibility of receiving damages if the plaintiff prevailed. I was further impressed by the fact that so many other witnesses in the case, including some old-time nurses aides, either contradicted the testimony of these few formerly advanced aides, or provided circumstances which disputed their testimony in one or more instances.
The $ 10.00 raise in pay for advanced nurses aides at Manor Hospital was continued by the defendant after 1970, until in 1974 the hospital employees by a collective bargaining agreement entered into with their union, National Union of Hospital and Health Care Employees Division of RWDSU, AFL-CIO and District 1199P that fixed the grades and pay scales of these and other membership employees. However, the fixing of levels and classes of employees and wage scales in the union bargaining agreement is not controlling here. Shultz v. Wheaton Glass Company, 421 F.2d 259, C.A. 3, 1970. We are here concerned with two levels of employees, only, in the issue as raised by the parties, the nurses aides (Group 2) and the orderlies (Group 3), their similarities, differences, qualifications, knowledge, skills, competences, medical trustworthiness and performance efficaciousnesses, if any. The comparability of jobs is insufficient to give rise to the inference that jobs are "equal". Angelo v. Bacharach Insurance Co., Supra. Substantial likenesses and differences must be examined totally from all the evidence in the case as a whole. Therefore, the question to be resolved, as I already stated, is whether or not jobs involve equal work performance of which requires equal skill, effort and responsibility and under similar working conditions. Tuma v. American Can Co., 373 F. Supp. 218 (D.C.N.J.1974). Employees perform "equal work" when it is necessary to expend the same degree of skill, effort and responsibility in order to perform substantially equal duties which they do in fact routinely perform with the knowledge and acquiescence of the employer. Katz v. School District of Clayton, 557 F.2d 153, C.A. 3, 1977.
The burden is on the Secretary to prove by a preponderance of the evidence that the nurses aides at Washington Hospital perform equal work on their jobs, which requires equal skills, effort and responsibilities with that of the orderlies, and under similar working conditions. Hodgson v. Corning Glass Works, 474 F.2d 226, C.A. 2, 1973.
A credible explanation of what nurses aides are not taught and the skills which they do not possess in contradistinction to the many skills which are taught, possessed and practiced by orderlies has been set forth in the testimony. In making determinations of the questions originally posed and of the requirement that for the plaintiff to prevail, I must find that the job content as well as the skill, effort, responsibility and working conditions of the two groups are equal. In this regard, I am well guided by the principles laid down by our Circuit in two cases, with significant supports from other Circuits, which so pointedly accommodate the facts of the instant case. They are Usery v. Allegheny County Institution District, Supra and Angelo v. Bacharach, Supra.
In Usery v. Allegheny County et al., supra, these questions in substance were raised and answered. The question was raised as to why female beauticians were not paid equally with barbers. Judge Gibbons, speaking for the Court of Appeals, stated that the evidence in the case showed similarity between both groups of employees, as beauticians and barbers engaging in activities for "hair care for geriatric patients". It was found that while Pennsylvania law required each to receive separate professional licensing the work performed by the two professionals at Kane (hospital) was "substantially similar", and that even under Pennsylvania law, persons of either sex might serve members of either sex. In fact, Judge Gibbons (544 F.2d, page 154), said,
"We have concluded above that beautician and barber work at the hospital is substantially equal. And to the extent that there is a difference, The higher skill is employed by the lower paid group." (Emphasis added).
These findings were supported in the opinion by the facts that the training, the familiarizing of hair cutting and the accompanying treatments therefor and the use of electrical appliances were skills acquired by both barbers and beauticians, except that beauticians studied additionally such cosmetic skills as "permanent waving, rinses, hair tinting and bleaches, wigs and hair pieces, manicuring and makeup . . ." (Supra, at page 153). This it would seem was the basis for Judge Gibbons' statement that "the higher skill is employed by the lower paid group".
In accordance, then, with Judge Gibbons foundational findings of identical or equal work between the two groups, I am directed to the many differences which exist in the instant case between the training, skills, efforts and responsibilities between the orderlies and nurses aides at Washington Hospital. I am reminded by Judge Gibbons in Usery, supra, at page 153, that "Training and education are elements of skill for the purposes of the Act, 29 C.F.R. § 800.125 (1974)."
In that connection, since elements such as those which exist here, I am obligated to inquire into the character, quality and the eventual responsibility which such training and education as applied to either nurses aides or orderlies has had, and may have any effect, upon the functioning of either or both in the performance of their duties. Particularly, I should inquire into the character and quality of any specialized training and instruction which is vital to human welfare.
In Angelo, supra, equal pay was demanded for lower paid female positions who claimed that they did equal bench work in a heavy assembly department, particularly when some of the work of the higher paid male positions had been transferred to them. Here the Court of Appeals affirmed the directed verdict for the defendant of the late Judge Herbert P. Sorg, because of insufficient evidence by the plaintiff.
In the present case the advanced nurses aides' claim of doing equal work to that of the orderlies although they did not lay claim to functioning in the cystoscopy room or in manipulating the various kinds of traction equipment, or in certain other skills, or of even performing catheterizations regularly might well be adapted here by the words of Judge Rosenn in the Angelo case, Supra, at page 1173,
"Even when viewed in the light most favorable to the plaintiffs, the evidence does not suggest that the plaintiffs performed any more than an insignificant part of the duties ever performed by any male in Heavy Assembly. The bald assertion that certain duties were transferred cannot support an inference that the totality of the work performed in the positions to which the duties were transferred required substantially the same skill, effort, and responsibility as the totality of the work performed in the positions from which those duties were removed. Plaintiff's proof on this issue was not sufficient to carry their burden."