Hodgson v. Food Fair Stores, Inc.

329 F. Supp. 102, 9 Fair Empl. Prac. Cas. (BNA) 654, 1971 U.S. Dist. LEXIS 12500, 3 Empl. Prac. Dec. (CCH) 8295
CourtDistrict Court, M.D. Pennsylvania
DecidedJuly 9, 1971
DocketCiv. A. No. 68-269
StatusPublished
Cited by6 cases

This text of 329 F. Supp. 102 (Hodgson v. Food Fair Stores, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hodgson v. Food Fair Stores, Inc., 329 F. Supp. 102, 9 Fair Empl. Prac. Cas. (BNA) 654, 1971 U.S. Dist. LEXIS 12500, 3 Empl. Prac. Dec. (CCH) 8295 (M.D. Pa. 1971).

Opinion

OPINION

MUIR, District Judge.

The Secretary of Labor seeks by this action to enjoin Food Fair from violating the Equal Pay Provisions of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. Jurisdiction is conferred on this Court by 29 U.S.C. § 217.

Section 29 U.S.C. § 206 provides in part, as follows:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to em: ployees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex 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, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex; Provided, That an 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.

Deleting from this section language which has no vitality with respect to this action, the statute would read as follows: “No employer * * * shall discriminate * * * between employees on the basis of sex by paying wages to employees * * * at a rate less than the rate at which he pays wages to employees of the opposite sex * * * for equal work on jobs, the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.” The statutory exceptions relating to (i) seniority systems, (ii) merit systems, or (iii) systems measuring earnings by quantity or quality are not applicable to this case. The fourth exception, “a differential based on any other factor other than sex”, is a Congressional pleonasm. In my view, it is impossible for an employer to discriminate between employees on the basis of sex “except where such payment is made pursuant [104]*104to * * * (iv) a differential based on any other factor other than sex.” Were it not for Shultz v. Wheaton Glass Company, 421 F.2d 259 (3d Cir. 1970) certiorari denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64, I would hold the fourth exception to be a meaningless tautology.

The Secretary of Labor claims that Food Fair has discriminated against female cashiers by paying them at rates less than the pay rates for male cashiers. For the last few years, the male cashiers have been designated as clerk-checkers and the female cashiers have been designated as checkers.

The Secretary of Labor also seeks the payment of the wage differential resulting from the violation of the statute. Testimony in this case dealt only with Defendant’s stores in West Hazleton and Scranton, Pennsylvania. The stores are unionized.

The obvious purpose of the Equal Pay Act is to correct discriminatory wage practices having a burdensome effect on the economy and on the living standards of workers. Shultz v. Wheaton Glass Company, supra.

The Secretary of Labor has proven here that females received lesser wages than males for performing equal work, under similar conditions, on jobs requiring equal skill, effort, and responsibility.

Under the 1963-1965 collective bargaining agreement applicable to this case, there were separate wage schedules for male and female clerks. The agreement established higher wage rates for male clerks than for female clerks. Subsequent collective bargaining agreements removed the specific sex label and purported to establish new categories of checker and clerk-checker. Only male employees have been employed as clerk-checkers since 1965 and only female employees have been engaged as checkers since that date.

Notwithstanding these new titles, the duties of the male and female employees remained the same.

All non-management male employees were designated clerk-checkers, although there was a well-established operational breakdown of clerk checkers into grocery clerks, produce clerks, and cashiers.

Defendant has attempted to justify the differential favoring cashier clerk-checkers (males) on the basis of their asserted performance of the miscellaneous tasks in addition to cashiering operations. The defendant in particular maintains that the clerk-checkers were engaged in performing the following duties, in addition to checking, registering, and bagging customers’ purchases: (a) loading L trucks in the receiving area, taking them to customer counters and unloading them, stamping prices on goods and placing them on counters; (b) hanging signs on store windows; (c) changing fluorescent lights in the ceiling; (d) loading ice on produce counters; (e) shoveling snow from sidewalks; (f) retrieving store carts from the store parking lots; (g) relieving grocery clerks during vacations, personal holidays, illnesses and other temporary vacancies; (h) removing produce from the produce shelves at night; (i) mopping floors and cleaning rest room facilities; (j) loading purchases into customers’ cars; and (k) assisting in manager’s office.

Female clerks also performed miscellaneous subsidiary activities in addition to their cashiering operations, such as: (a) straightening and taking care of candy, cigarette and tobacco racks; (b) straightening, stocking and ordering drug and spice supplies, including unloading and lifting crated drug supplies; (c) collecting shopping carts from the interior and exterior of the establishments; (d) unpacking, marking, and stocking soft goods and housewares; (e) using stepladders in the performance of miscellaneous stocking and other activities; (f) loading merchandise on L carts in the warehouse area and pushing them to the merchandise area; (g) occasionally removing boxes of merchandise from the warehouse conveyor belt; (h) straightening empty boxes accumulating near the vicinity of the check-out .counters; (i) [105]*105returning and shelving merchandise which accumulated in the area of the check-out counter; (j) occasionally assisting in t breaking down the produce department; (k) substituting for male employees in the produce department; (1) assisting in removing window signs at the front window.

The amount of time spent off the register in the performance of additional activities was approximately the same for both female checkers collectively and male clerk-checkers collectively. The amount of effort required to be expended in cashiering was at least equal to the effort expended in the performance of subsidiary activities by male and female employees. Considering all the subsidiary activities actually performed on occasion by front-end clerk-checkers, neither the time expended for performance, nor the nature of the additional tasks actually performed introduce any substantially greater skill, effort, or responsibility into the front-end clerk-checker jobs than to the checker jobs.

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Bluebook (online)
329 F. Supp. 102, 9 Fair Empl. Prac. Cas. (BNA) 654, 1971 U.S. Dist. LEXIS 12500, 3 Empl. Prac. Dec. (CCH) 8295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodgson-v-food-fair-stores-inc-pamd-1971.