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BRENNAN v. BOARD OF EDUC.

April 19, 1974

Peter J. Brennan, Secretary of Labor, Plaintiff
v.
Board Of Education, Jersey City, New Jersey et al., Defendants


Lacey, D.J.


The opinion of the court was delivered by: LACEY

This is one of some 22 suits, all assigned to this court, which have been instituted by the Secretary of Labor against various Boards of Education of this State under the Equal Pay Act provisions of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. § 201 et seq.). Plaintiff alleges in his several complaints that the said Boards have, for varying periods, violated §§ 6(d) (1) and 15(a) (2) of the Equal Pay Act, by paying their female custodial employees salaries and at rates less than they pay their male custodial workers for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which were and are performed under similar working conditions.

 At a Pre-Trial Conference attended by plaintiff's counsel and counsel for the several Boards of Education, this court suggested that the first of these cases to be tried be one embodying fact and law questions common to most if not all of the remaining cases. Counsel agreed and, accordingly, the instant matter was designated as the pilot case; however, from this it is not to be taken that the other Boards of Education have agreed to be bound by the determination herein.

 On March 11, 1974, a further Pre-Trial Conference was conducted, this time attended by counsel for the parties herein. The court at that time expressed the notion that its experience in handling the entire complex of these cases had led it to believe that factually there was little difference between the parties; that much historical and narrative data could be stipulated; and that, of the total testimony which would be adduced by the approximately 50 witnesses anticipated, only a small portion thereof, if any, would give rise to serious dispute. It was then and now the court's view that the parties were at odds essentially only as to the interpretation of the evidence which would be offered, and the inferences to be drawn therefrom under pertinent legal principles.

 Accordingly the court suggested that this non-jury case be tried by deposition de bene esse, the depositions to be taken out of the court's presence on a daily copy basis in the federal court house, with counsel free to apply to the court at any time for instant rulings as the need therefor arose. The court stated it would read daily the testimony transcribed, and would hear testimony of any witness at the request of either counsel. As the Pre-Trial Order of March 18, 1974 sets forth, counsel agreed to this innovative approach. See also, Minutes of Pre-Trial Conference, March 18, 1974, reflecting agreement upon the foregoing procedure. *fn1"

 Trial as thus defined then commenced on March 18, 1974. Plaintiff called 36 witnesses on March 18, 19 and 20, and rested. On March 21 the court heard and denied defendant's motion for dismissal under Fed. R. Civ. P. 42(b) and, thereafter, defendant presented its case on March 21 and 22, and rested. *fn2" Post-trial briefs and/or Proposed Findings of Fact and Conclusions of Law were exchanged on April 8, 1974, with each side's reply filed and served on April 11, 1974. On April 15, 1974 the court heard final argument.

 Based upon its careful consideration of the foregoing, the court hereinafter sets forth its Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

 Findings of Fact

 1. This action was instituted by the Secretary of Labor under 29 U.S.C. § 217 of the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.) (the Act) to enjoin the defendant Board of Education (the Board) from violating the Equal Pay provisions of the Act and to restrain the withholding of back wages resulting from such illegal pay differentials as the court might find to be due employees, together with interest thereon. Plaintiff charges that the Board has been and is violating the Act by paying higher salaries to male custodial workers than it pays to female custodial maids.

 2. The Board's initial defense of immunity under the Eleventh Amendment as "a political subdivision of the state" was stricken from its answer by this court's order of June 28, 1972 pursuant to opinions filed in this matter on June 14 and June 20 of 1972. At that time defendant's motion for summary judgment, consolidated with motions of several other New Jersey Boards of Education, faced with similar Equal Pay litigation, was also denied. See 344 F. Supp. 79 (D.N.J. 1972), app. dismissed, 468 F.2d 1325 (3d Cir. 1972).

 3. The complaint, filed December 1, 1971, originally named the Board's President and Secretary as codefendants, but the plaintiff, upon the Board's admission that it is an employer within the meaning of § 3(d) of the Act with respect to all affected employees, agreed to dismiss the action against the individual defendants. The parties further agreed, however, that no legal conclusion regarding the liability of any official of a Board of Education for back wages resulting from violations of the Act, in any other actions. Pre-Trial Order of March 11, 1974, at PVI(d), provides for said dismissal.

 4. The Board admits that it is an educational enterprise covered by § 3(r) and 3(s) (4) of the Act in that it operates public day elementary and secondary schools as defined in § 203(v) and (w) under common control and unified operation which perform the related activities of providing elementary and secondary education to students of the City of Jersey City. These activities are by § 3(r) "deemed to be activities performed for a common business purpose." The Board admits that it, under § 3(s), "has employees engaged in commerce or in the production of goods for commerce, including employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce . . . ."

 5. The Board operates 35 public schools, including 4 high schools, 31 elementary schools, and an administration building. (Ex. 2) All buildings are within the City of Jersey City. Many are close to one another; the Administration Building is on the same grounds with Lincoln High School. Other schools also have nearby but separate annex buildings. Individual schools may be a few miles apart, or as close as within one block from one another.

 6. Purchasing of materials, and maintenance services, are handled through the defendant's central administration. The Board employs a central force of mechanics and workmen, including carpenters, plumbers, painters, electricians, plasterers, and laborers. They are responsible for repair work at all the Board's buildings. A separate official, working out of the Board's Administration Building, coordinates this maintenance staff and each school's custodial staff. He visits the different buildings, deals with complaints, and sees that necessary work is performed.

 7. Cleaning at each school is performed by the custodial staff, consisting of a head custodian, one or more engineers, male custodial workers, and female custodial maids. Generally these employees are assigned to and work at one school, but may be transferred as the Board deems necessary. To determine the number of custodial employees required for a school, the Board assumes that each male custodial worker and each custodial maid cleans the same amount of space in all its buildings, about 12,000 square feet. Many people have performed work at more than one school during their tenure, and the period here involved. The Board views each custodial worker and custodial maid as working within one integrated school system, which constitutes a distinct facility or place of business. The janitorial staff performs similar work from school to school. The workers are hired and initially assigned to schools by the Board's Superintendent of Buildings and Management. Major complaints regarding their work, or requests for transfers, are referred by individual school principals to the Building Superintendent. All custodial workers and custodial maids are paid pursuant to the Board pay schedules and there is no differentiation in pay based upon the building in which these employees perform their services. Additionally, the members of the custodial staff usually work an 8-hour day with paid time off for lunch or dinner (Ex. 2). At some schools the staff works on two or more shifts with the night shift ending at 10 p.m. or midnight. Male custodial workers and female custodial maids are employed on both the day and night shifts. The Board makes no distinction in pay between custodial employees on the day and night shift. (Ex. 1).

 8. For the pertinent period, the Board pay schedules, related to the prevailing collective bargaining agreement, reflect the payment of a higher base salary to custodial workers, an all-male class, than to custodial maids, an all-female category. *fn3" Thus, in 1968 the starting salary for maids was $4,104 per year as against $4,309 for custodial workers, a difference of $205. That differential has risen since 1968, and the current pay schedule for 1974 reflects starting pay for custodial workers $410 per year higher than that for building service workers, the new name of the female category formerly designated custodial maids. The schedules for all years further show that the males get a yearly increment of $205, the females $195 per year. The initial difference in pay between the sexes thus increases as employees gain seniority. (Ex. 1)

 9. The Board pay schedules provide for higher salaries for other all-male classes such as head custodian, firemen, or employees of the central maintenance groups. (Ex. 1) However, male-female wage and work comparisons are made herein solely between the custodial maids (now building service workers) and the custodial workers.

 10. The Board admits the above differential favoring custodial workers as against custodial maids, but contends that jobs performed by individuals in those two categories are not substantially equal under the law. The Board claims that men perform certain additional duties not performed by women, including cleaning stairwells and corridors, sweeping and picking up papers outdoors, cutting grass and shrubs, shoveling snow, operating buffing machines, receiving deliveries, moving furniture, carrying five gallon water cooler jugs, screwing in lightbulbs, climbing ladders, and acting as watchmen. The Board claims that these extra duties are valid factors "other than sex" which justify the pay differential under 29 U.S.C. § 206(d) (1) (iv). The Board also claims that its adherence to state Civil Service laws and collective bargaining agreements with the union representing its employees justify the alleged violations.

 11. The primary function of male custodial workers and female custodial maids is to clean. (Tr. 125, 456, 969) *fn4" Each maid has her own assigned areas to do on a daily basis. In each classroom or office the women must sweep the floor, often moving students' desks and chairs, or teachers' furniture. They wet mop the classroom floors, dust the furniture and wash down the desk tops to remove ink marks and other dirt. They also wash the glass inside of the doors to each room and the water fountains out in the halls. They clean in some higher places like the upper surface of cabinets, the tops of lockers, and the upper woodwork or panes on a door, so they sometimes stand on chairs or step ladders to accomplish their work. They usually carry a pail of water, a mop, a broom, cloths, and cans of soap with them on their rounds. When these supplies run out, the women go downstairs and carry what they need to do their work area. They also have a large plastic garbage can or refuse bag which they may push on wheels, drag, or carry from room to room. They empty garbage from each basket into the larger container and carry it down or take it by elevator to the dumping area.

 In the bathrooms the women must wet wash the floors and scrub down the toilets, urinals, sinks and walls, a job which must often be done more than once a day per lavatory. They are also assigned to corridors and stairwells, and as part of their regular duty, must sweep these areas daily, with wet mopping as necessary. The women also work in teams, each for example taking a section of an auditorium, wiping down chairs, sweeping floors and dusting walls and woodwork, and periodically they wet mop the stage area. In addition, throughout the day, the women are available for and may respond to a number of emergencies, like cleaning up broken glass from windows, or mopping after pupil sickness.

 12. Most male custodial workers, like the females, have regular cleaning assignments and the areas to which they are assigned, and the duties they perform, are the same as those set forth for the maids above. (Tr. 52-54, 87, 111, 122, 126, 127, 141, 169, 190, 193-196, 252, 278, 355-359, 433, 455, 795, 811) In a few schools the same work is split between them. Thus females may be assigned to clean only the classrooms, offices and bathrooms, while the males clean mainly the stairwells and hallways. (Tr. 42, 43, 127, 410, 597-598, 665, 849, 870) However, the total area cleaned by each employee is about the same size (Tr. 712-716, 831, Ex. 6), and, as stated, this cleaning involves for both males and females the same dusting, mopping, sweeping, washing and scrubbing. (Tr. 59, 87, 88, 169, 211, 252, 363, 367, 407, 818)

 13. In a few schools, the manner in which men and women handle trash varies slightly from 11, supra, but not substantially. Thus the maids may put trash into plastic bags which are left at the elevator for a man to take downstairs. A custodial worker that day, or the following morning, will carry the garbage out to the curb or dumping area. At least one woman, at Ferris High School, regularly took out the garbage as well, with no increase in pay. (Tr. 342, 350) Most of the school buildings also have incinerators but they have not been in use for years, in some cases, not since August 1969. When incinerators were in operation, not all custodial workers used them, since the firemen usually burned the garbage.

 14. Although the Board claims that male custodial workers regularly function as watchmen, the testimony is otherwise. (Tr. 61, 82, 92, 136, 356, 419, 979) Indeed, the Board employs a separate category of "watchmen" and "security guards" (including females) at some of its schools. (Tr. 35, 61, 173, 384, 700, 948, 1017, 1018, Ex. 1) It is noted that adults in a school building naturally serve a security function and both the custodial maids and custodial workers are therefore incidentally involved in deterring and reporting incidents of vandalism or rowdiness in the locker rooms, bathrooms and hallways. (Tr. 34, 173, 344, 384, 431, 432, 903).

 15. The only area cleaned by men and not women is outdoors: the sidewalks, school yards, and building entrances. However, some men, such as those on the night shift, do no outdoor work regularly. (Tr. 67, 68, 91-92, 360) As to those who do, their regular outdoor duties are not substantially different from those performed by the maids indoors. Thus, a janitor must look over the outside area and pick up any papers, broken glass, cans, or other debris he may find there. He then sweeps the sidewalk with a broom and his outdoor work is done. (Tr. 167, 250, 252, 372)

 16. Grass cutting and other gardening is performed by some but not by the majority of custodial workers. (Tr. 55, 67, 68, 370, 422, 859) In fact, many schools have only concrete surrounding areas, with no grass. (Tr. 167, 227, 251, 370, 584, 601, 702, 703, 857, 1019) If there is a substantial grass area, the Board assigns a full-time groundskeeper to tend it, and the male custodial workers do little if anything in connection with its care. (Tr. 189, 560, 720, 858- 1094) In those schools where custodial workers cut the grass, its care is only an occasional responsibility of the male, since it must be cut only once a week, in the summer months, and the men at that school take turns doing it. Thus an individual male may work on it only once in three or four weeks, if that much, during only a small portion of the year. (Tr. 134, 135, 136, 371, 670, 858, 984, 985) In some schools the grass area is so small it requires no mowing but only occasional weeding. (Tr. 371)

 18. In summertime the custodial maids and workers begin general cleaning. The men and women work in teams. (Tr. 256, 266, 287, 313, 314, 349, 521, 674, 675) The women remove all the pupils' desks and chairs and carry them out in the hall. (Tr. 44, 109, 147, 221, 224, 240, 241, 256, 257, 337, 339, 387, 427, 448, 449, 501, 569, 619, 633, 687) Some push all the furniture, including teachers' desks and file cabinets, to one side of the room. (Tr. 8, 78, 107, 108, 152, 234, 235, 823, 1037) They wash down each piece of furniture with scouring powder to remove graffiti and other dirt markings, and also wash down the walls and baseboards of classrooms, hallways and bathrooms in a similar manner, polishing teachers' desks and woodwork on the moldings and doors. (Tr. 7, 223, 430, 448, 490) They clean out lockers (Tr. 449) and where machine stripping and buffing is not required, they sweep, wash, mop and wax floors. (Tr. 161, 313, 429)

 19. Meanwhile, the men go through the classrooms and hallways with the scrubbing machines. First a custodial worker sweeps the floor, and then another man goes over it with the scrubbing machine. This is done to a floor once a year. (Tr. 223) Another custodial worker follows the scrubber with a mop to pick up loose water behind it. He may also use a vacuum machine for picking up water. Then the men apply wax to the floor with a mop and a buffing machine is run over it if necessary.

 20. Some women work along with the men on the floor waxing detail, handling the water vacuum, and the maids have also used the same machine to clean rugs in the school library as part of their regular work. (Tr. 334, 338, 349, 350, 379)

 21. Although the women do not run the buffing and scrubbing machines, there are also many men who do not. (Tr. 96, 97, 195, 285, 286, 363, 588, 806, 1004) Usually it is the same custodial worker in each team who continually runs the machines, while the other men do only the sweeping, vacuuming or mop waxing, which, as has been noted, the maids also do. (Tr. 7, 8, 33, 44, 108, 148, 158, 223, 242, 259, 313, 343, 426, 429, 932) On some waxing teams, the men may simply alternate, each using the machine for only a part of the time. (Tr. 128, 129, 864) The men who regularly handle the buffing and scrubbing machines are paid no more for so doing than are the men who do not.

 22. The Board mechanics, carpenters, electricians and plumbers do the actual maintenance work in the schools. (Tr. 441) Only minor repairs and adjustments, requiring no trade skills, are left to the custodial staff. (Tr. 57, 58, 273, 457, 582, 596, 602, 776, 899, 977, 984, 1002) Thus the fixing of shades, repairing of a door check, boarding up a window, putting up a pencil sharpener, tightening a radiator joint, and the screwing in of lightbulbs, are for the most part, the only "repairs" made by the school's custodial workers. (Tr. 12, 57, 252, 253, 596, 707, 881, 884, 970, 977, 995) Indeed, some custodial workers make very few, if any, of these repairs. (Tr. 253, 254, 272, 359, 419, 600) On the other hand, some women make minor "repairs", such as tightening a screw on a locker door, tightening a door ...


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