Service Worker. (Ex. 17) However, the Commission had already tested and qualified women to hold the higher paying custodial worker position. (Ex. 11, promulgation date 11/22/72, 8/3/73, Tr. 1068) On September 13, 1973 the Board's new Superintendent wrote to the Commission to request that women who had qualified for the custodial worker position be instead certified to the Board for the lower paying Building Service Worker position. (Tr. 1054, Ex. 9) The letter also requested certification of men off the same list, for the higher paying custodial worker position. (Tr. 1089, 1090) Subsequently, women were regularly certified to the Board from the custodial workers' list for hire into the position of Building Service Worker. (Tr. 1055, 1076, 1078, 1089, Exs. 12, 20, certifications' date 8/20/73, 11/23/73)
35. The change in title of the custodial maid position to Building Service Worker did not equalize male and female rates of pay and represented only a change in the form, and not the substance, on the Board's pay procedures which procedures were and are violative of the Equal Pay Act. (Tr. 1080-1081, 1089, Ex. 1)
36. The work of some of the males is almost identical with that of females. As to other males, the only measurable differences lie in their doing certain outside work and using buffing and scrubbing equipment. The outside work, not performed by all males, does not occupy a substantial amount of time. It involves only a few hours of snow removal, and a few hours of grass cutting and hedge cutting and weeding during the entire year. It is thus only incidental and occasional. The use of buffing and scrubbing machines by certain, but not all, men occurs generally during the summer months. As has already been stated, the men who perform these "different" tasks are not paid at a higher rate than the men who do not.
Conclusions of Law
1. This court has jurisdiction over the subject matter of this action pursuant to § 17 of the Fair Labor Standards Act (Act) of 1938, as amended (29 U.S.C. § 201 et seq.), in which the Secretary of Labor seeks an injunction against future violations of the Act and recovery of back pay for past violations.
2. As set forth in Finding of Fact 4, supra, the Board admits coverage under § 3(r) and 3(s) (4), the "enterprise" and "educational" provisions of the Act.
3. The Board has violated and is continuing to violate §§ 6(d) and 15(a) (2) of the Act by discriminating, within an establishment, between employees on the basis of sex by paying wages to female custodial maids (now called "Building Service Workers") in such establishment at salaries and resulting rates less than the salaries and hourly rates at which it pays male custodial workers in such establishment, "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . ." 29 U.S.C. § 206(d) (1)
4. As set forth in Findings of Fact 8, 9 and 10, supra, a pay differential in favor of custodial workers, an all male class, over custodial maids, an all female class, has continued to exist at all times pertinent to this action.
5. Work performed by custodial workers and custodial maids has been, at all times, equal in skill, effort and responsibility, and performed under similar working conditions. The Court of Appeals of this Circuit has held in Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir.), cert. denied, 398 U.S. 905, 26 L. Ed. 2d 64, 90 S. Ct. 1696 (1970), that "equal work" does not mean "identical work " but only that the jobs "must be substantially equal." As that Court noted (421 F.2d at 265):
. . . Any other interpretation would destroy the remedial purpose of the Act.