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July 24, 1973

Ruth M. Phillips et al., Plaintiffs,
Carborundum Company, Defendant.

Curtin, D.J.

The opinion of the court was delivered by: CURTIN


The above actions were consolidated by order of Judge John O. Henderson of this court on March 5, 1973 and referred to my Part for disposition. Both lawsuits charge that the Carborundum Company [Carborundum] failed to pay female employees at the same rate as male employees working at the same jobs. The attorneys for all the parties appeared before this court on March 16, 1973 orally arguing the motions previously filed. I directed the filing of additional briefs and a stipulation of fact about the proceedings previously held before the New York State Division of Human Rights. The private plaintiffs and Carborundum have filed a stipulation covering these proceedings and delivered to the court a decision of the State Human Rights Appeal Board of April 17, 1973. After considering the additional briefs filed and the oral argument made on May 10, 1973, the court files the following decision on the motions pending.

 The action of Ruth M. Phillips, et al. v. The Carborundum Company, Civil 1972-394 [Phillips], brought by 22 female employees of Carborundum, was filed on July 25, 1972. The first two causes of action allege violations of the "Equal Pay" provisions of the Fair Labor Standards Act [F.L.S.A.], 29 U.S.C. ยง 201 et seq. The third cause of action charges a violation of Section 194 of the New York Labor Law. The complaint alleges a class action on behalf of all females employed by Carborundum at its plant in the Town of Wheatfield, New York. Although there is no diversity of citizenship between plaintiffs and defendant, the plaintiffs urge that, in the third cause of action, they are entitled to proceed in federal court under the doctrine of pendent jurisdiction.

 The action in Hodgson v. Carborundum Company (now Brennan v. Carborundum Company), Civil 1972-436, filed by the Secretary of Labor on August 14, 1972, also charges violations of the Equal Pay provisions of the F.L.S.A. at the same Carborundum facility. The individual plaintiffs in Phillips (Civil 1972-394) concede that the commencement of the suit by the Secretary on August 14, 1972 terminates the right of those employees not filing consents to join in Civil 1972-394 to assert privately their F.L.S.A. claims [29 U.S.C. s 216(b)].

 At the Wheatfield plant of Carborundum, abrasive substances are applied to suitable backing materials which are then fashioned into abrasive products. There are a number of different operations involved in the manufacturing process and a number of job classifications covering the various processes. There are about 628 persons employed there, with 340 working in the finishing plant where the abrasive products are put in final form for shipment. About 230 female employees are at the Wheatfield facility, of whom about 220 work in the finishing plant. All of the named plaintiffs in the Phillips case have been employed in the wide belt and narrow belt departments of the finishing plant, except for temporary assignment elsewhere. The employees at this facility, including the plaintiffs, are represented by the Oil, Chemical and Atomic Workers Local Union [Local Union], and the Oil, Chemical and Atomic Workers International Union [National Union]. For many years, Carborundum and the Unions have entered into a series of collective bargaining agreements establishing job classifications, wage rates and evaluation of various jobs. The agreement has a grievance procedure requiring binding arbitration for the resolution of disputes. Under these procedures, the evaluation of job content and claims about work actually being performed are subject to grievance and arbitration. Since 1969, the collective bargaining agreement has also included a clause prohibiting discrimination on the basis of sex.

 In 1969, 43 female employees at Wheatfield filed complaints with the New York State Division of Human Rights [Human Rights Division] claiming discrimination and claiming also that, as females, they were being paid at lower rates than males for the performance of equal work. *fn1" Both Carborundum and the Local Union were named as parties respondent. After the Human Rights Division conducted an investigation and an inspection of the work being performed under the various job classifications, it determined that there was probable cause to believe that Carborundum and the Local Union had engaged in an unlawful discriminatory practice by maintaining a collective bargaining agreement which designated some job classifications as "male" and others as "female." However, the Human Rights Division determined that there was no probable cause to believe that Carborundum and the Local Union had engaged in the unlawful discriminatory practice of paying female employees less than male employees for the performance of equal work. Thus the equal pay charge was dismissed.

 For purposes of this decision, it is not necessary to set forth a detailed history of the resulting litigation but, after the complainants protested the dismissal of the equal pay claim, the proceedings were reopened. The original decision, however, was eventually reaffirmed. An appeal was taken by 29 of the complainants, including all of the named plaintiffs in this action but one. On April 17, 1973, the Human Rights Appeal Board affirmed the order of dismissal. *fn2" Under state law, the complainants have the right to appeal to the Supreme Court, Appellate Division, of the State of New York. *fn3"

 There are a number of motions pending before the court. In the Phillips case, Civil 1972-394, Carborundum moves to dismiss the third cause of action based upon the New York State Labor Law for lack of diversity between the parties. In both the Secretary's suit and the Phillips case, Carborundum has moved to dismiss all claims on the ground that the action of the Human Rights Division finding no probable cause in the proceeding brought there by a number of individual complainants is res judicata *fn4" and a bar to an action under the F.L.S.A. or the New York State Equal Pay Act. Carborundum has also moved in both actions to dismiss the complaints for lack of jurisdiction because the alleged disputes are required to be submitted to arbitration under the terms of the collective bargaining agreement between Carborundum and the Union. Also pending in both actions is Carborundum's motion for an order compelling the individual plaintiffs and the Secretary of Labor to join the Local Union and the National Union as parties defendant pursuant to Rule 19 of the Federal Rules of Civil Procedure, and for a stay of the Secretary's suit until resolution of the motions in the Phillips suit.

 The Secretary urges that the actions not be consolidated, that the joinder of the Unions not be ordered and that the employees not be required to exhaust the grievance procedures before prosecuting an action under Section 16(b) of the F.L.S.A. Furthermore, the Secretary urges that rulings by a state agency on equal pay claims arising under state law cannot bar the Secretary of Labor or private plaintiffs from maintaining actions to enforce equal pay claims under the federal laws. The Secretary moves that the order of consolidation be vacated.

 The defendant Carborundum moves for the joinder of the National and Local Unions as parties defendant pursuant to Rule 19(a) of the Federal Rules of Civil Procedure, claiming that, in the absence of the Unions, complete relief cannot be afforded among the parties and, if plaintiffs obtain any of the relief sought, Carborundum will be subjected to a substantial risk of incurring multiple and inconsistent obligations. Carborundum argues that, if relief is granted to the plaintiffs, the agreements between Carborundum and the Unions with respect to job content, wage scales and job classification will all be affected, that Carborundum will be obliged to by-pass job evaluation provisions of the collective bargaining agreement, and that this is a matter in which the Unions and the male employees they represent have an important interest. In support of its application, Carborundum points out that 29 C.F.R. 800.106, a regulation issued by the Department of Labor with respect to "equal pay," provides:

In situations where wage rates are governed by collective bargaining agreements, unions representing the employee shall share with the employer the responsibility for insuring that the wage rates required by such agreements will not cause the employer to make payments that are not in compliance with the equal pay provisions.

 At first blush, Carborundum's argument is persuasive. Undoubtedly relief granted to the plaintiffs will have an impact on the actual wage paid to a number of the women employees at Carborundum and will change certain job classifications. Nevertheless, in the absence of the Unions, complete relief can be afforded to those already parties. The defendant's argument that judgment for the plaintiffs will subject Carborundum to a substantial risk of incurring multiple and inconsistent obligations is without merit. An order to pay women at an increased rate will not in any way affect its obligation to the male employees. Further, the provisions of the F.L.S.A. supersede the lower rates established by collective bargaining. Perhaps an order of the court directing the payment of additional wages to certain women employees will be upsetting to some of the male workers and precipitate additional collective bargaining problems. Nevertheless, these reasons are not sufficient to require an order pursuant to Rule 19 adding the National Union and the Local Union as parties. See Hodgson v. Board of Education of Parsippany-Troy Hills, 344 F. Supp. 79, 86 (D.N.J. 1972).

 Carborundum's motion for the joinder of the National and Local Unions as parties is denied.

 Carborundum moves to dismiss all causes of action on the ground that the alleged disputes must be submitted to arbitration under the terms of the collective bargaining agreement between the Unions and Carborundum. Carborundum argues that the claim of plaintiffs that they receive lesser pay for the performance of work alleged to be equal to that performed by male employees would be a "grievance" under the terms of the agreement. In Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 1 L. Ed. 2d 972, 77 S. Ct. 912 (1957), and in subsequent decisions, the Supreme Court has indicated that arbitration is the preferred method of settling collective bargaining disputes. However, remitting an employee to arbitration is favored only when the employee's substantial rights are derived from the collective bargaining agreement. When the employee asserts rights derived from a federal statute, "the presumption of comprehensiveness of the arbitral remedy is . . . rebutted." United States Bulk Carriers v. Arguelles, 400 U.S. 351, 362, 27 L. Ed. 2d 456, 91 S. Ct. 409 (1971). In McKinney v. Missouri-Kansas-Texas R. Co., 357 U.S. 265, 268, 78 S. Ct. 1222, 2 L. Ed. 2d 1305 (1958), the Supreme Court held that a returning serviceman seeking reemployment "was not obliged . . . to pursue remedies possibly available under the grievance procedure set forth in the collective bargaining agreement" before bringing an action in court under Section 9(d) of the Universal Military Training and Service Act. And this was so even though determination of the statutory rights asserted by the serviceman may have involved interpretation of a collective bargaining agreement. In this case, the employees' statutory rights are ...

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