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May 1, 1968

W. Willard Wirtz, Secretary of Labor, United States Department of Labor, Plaintiff,
Wheaton Glass Co., Defendant

Cohen, D.J.

The opinion of the court was delivered by: COHEN

The plaintiff, W. Willard Wirtz, Secretary of the United States Department of Labor, commenced this action under Section 17 of the Fair Labor Standards Act of 1938, as amended, *fn1" and supplemented by the Equal Pay Act of 1963, *fn2" against defendant Wheaton Glass Co., a New Jersey corporation, seeking to enjoin it from allegedly violating the equal pay provisions of the latter Act. The gravamen of the complaint is that defendant is violating the Act by maintaining a wage rate disparity based upon sex discrimination between the male and female employees in its glass container inspecting and packaging department, in Millville, New Jersey. Restraint is sought, also, against the withholding of any back wages found to be due by reason of such alleged violation. *fn3"

 Plaintiff alleges that the defendant violates the Act by discriminating between men and women in the position of "selector-packer" of its glass bottle products on the basis of sex. He complains that in this job men and women perform equal work under similar working conditions, but receive unequal pay.

 While the defendant admits that the employees involved are covered by the Fair Labor Standards Act, it denies any violation thereof. It contends that the trial testimony amply demonstrates substantial differences in performance between the male and female selector-packers; accordingly, not only has the plaintiff failed to carry his required burden of establishing sex as the basis for the hourly wage differential of 21 1/2 cents ($2.355 for males and $2.14 for females), but that he has also failed in his burden of foreclosing "any other factor other than sex" as a basis for the wage differential.

 The factual dispute between the parties involves the question of how much, if any, of the work performed by male selector-packers differs substantially from that performed by the females. There is disagreement as well on the legal meaning to be attributed judicially to the phrase "equal work" as used in the Act, and whether the defendant's wage rate differential is based upon a factor or factors other than sex, as provided by the exceptive language of the Act. *fn4" Substantially, such are the contentions of the parties.

 Plaintiff's approach to these issues is that, as to the burden of proof under the Act, he is not required to prove that sex is the sole basis for the wage differential, for the word "sole" is used nowhere in the Act. Furthermore, if the plaintiff is to be confined to proof of sex as the sole factor, an employer could handily subvert the equal pay provisions by any ingenious increment of job duties. He recognizes that while the Act provides exceptions, these are directed to systems, patterns or distinctive classifications, such as seniority, merit, quantity or quality of product, *fn4" and not to self-serving, unrealistic, unsubstantial or inconsequential incidents in prime job content and performance. The plaintiff maintains that the intention of Congress was not to afford an employer opportunity to continue a wage differential based on sex simply by utilizing artificial classification or guise on the pretense of complying with the Equal Pay Act. He contends that the legislative history of the Act, together with the departmental regulations promulgated thereafter, as well as the decisions construing them, support his position. He stresses the fact that occasional performance by males of other tasks enumerated herein, which are merely incidental to the overall job cycle, and for which females may be inadequate, as well as other factors relied upon by the defendant, hereinafter, are not such bases under the Act, as will convert otherwise equal work into unequal. If not so, he argues, the equality in wage treatment of both sexes expressly sought to be accomplished by Congress could be defeated by the merest pretense of performance differences between the sexes.

 Defendant, in advancing justification both factually and legally for the wage rate differential between men and women, claims that the proofs at trial clearly establish essential and substantial differences in job performance; and that these differences are not based upon sex, nor devised to secure an economic advantage. Rather, they are necessary and proper, since the complete job cycle and content of its unique business demand a realistic distinction in job performance requirements and, thus, justify the difference in wage treatment.

 In light of the diametrically opposed factual and legal contentions of the parties, a history of the defendant's operations and an analysis of the trial proofs seem essential both for judicial choice of fact, as well as for interpretation and application of the law.

 The trial consumed 16 non-consecutive days, prior to which I visited the defendant's plant in order to gain some familiarity with the technical aspects of the job performed by the selector-packers. A similar visit was made at the conclusion of the trial, in order to correlate the testimony to the visual operation.

 Defendant is one of the largest manufacturers of glass containers in this Country. Its principal plant occupies an area approximating several metropolitan city blocks. It carries an hourly rate employee payroll, as distinguished from administrative and salaried, annually approximating eleven and a half million dollars. It engages some 2,200 hourly employees who are represented in collective bargaining by the Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, Local 219. For the purposes of this case, however, we need not attempt exposition of all the facets of the defendant's operation nor of the duties of all its employees. It will suffice to state that the two principal components of the defendant's plant are the "hot end," furnaces where the glassware is manufactured, and the "cold end" where it is inspected, selected and packaged. Our concern is solely with a category of employees denominated by the defendant as "selector-packers" located in the "cold end."

 It is at the emission point, where the bottles, jars and other containers leave the "hot end" on a lehr *fn5" and move forward on its conveyor belt to the "cold end," that the selector-packers are engaged. It is here, on a long, wide conveyor table, the belt of which moves at the approximate rate of 14 inches per minute past the male and female selector-packers, that containers are picked up by hand and visually inspected for defects. Defective bottles (cullet) are rejected and discarded into a waste container. Those selected are packed in cardboard cartons on a "buck," or stand, within arm's reach and lifted onto an adjacent conveyor, or stacked aside, for removal to the Quality Control or Inspection Department.

 In addition to the selector-packers, the defendant employs, in its packing department, some 37 base rate employees known as "snap-up" boys, who receive $2.16 per hour, 2 cents more than the females. Their function is that of the all-around "handy man." They act as relief selector-packers during the lunch period and other "breaks," so that the lehr is continuously manned to sustain its output and to prevent spillage and breakage. They also lift heavy or bulky cartons for women and perform whatever miscellaneous physical labor may be required of them on a given job at a particular time. Their higher rate is not challenged.

 In addition to selecting and packing, along with females at the lehr, other duties of the male selector-packers are as follows: (1) to lift anything weighing approximately in excess of 35 pounds; (2) to lift any bulky or unhandy cartons, regardless of weight; (3) to stack full cartons on wooden pallets, a process known in the trade as "palletizing," in the area of the related lehr; (4) to tie securely stacks of cartons on the pallets; (5) to move and place fully loaded pallets for further disposition; (6) to carry, move, place and stack empty pallets for later use; (7) to operate hand trucks in the areas of the lehrs; (8) to carry, move, position, install, set-up and adjust portable roller conveyors and packing "bucks" (waist high stands or racks positioned next to the moving conveyor, which hold empty cartons for filling); (9) to collect, carry and dump trays and tubs of cullet (rejected glassware); (10) to sweep and clean all work areas in and around the aisles near the lehrs, and to prepare for job changes; (11) to cut glass stoppers with a diamond saw at the lehrs; (12) to fit and attach metal clips to glass containers at the lehrs; (13) to unjam overhead carton conveyors and automatic cullet belts; (14) to occasionally reinspect, repack and restack delivered glassware on ...

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