The opinion of the court was delivered by: WYATT
This is the decision after trial to the Court without a jury of a claim by the plaintiffs named in the caption of a second amended complaint, and by others who became plaintiffs by the filing of written consents, under the Equal Pay Act of 1963 (29 U.S.C. § 206(d); sometimes referred to as the "Equal Pay Act", or "the Act").
Defendant Trans World Airlines, Inc. (TWA) is an air carrier of passengers and cargo. This action relates to passenger traffic which TWA flies on international routes between points in the United States and points in foreign countries and on domestic routes between points in the United States.
Plaintiffs are female cabin attendants employed by TWA. Their contention is that there was a violation of the Equal Pay Act in that TWA paid the female cabin attendants (who serve on both domestic and international flights) less than TWA paid male pursers (who serve only on international flights) for work said to be substantially the same. TWA has employed both male and female pursers since May 24, 1968. TWA has employed both male and female cabin attendants since December 3, 1970.
There will be judgment for defendant TWA.
A. PROCEEDINGS IN THE CASE AT BAR
The action was commenced on September 10, 1970. There were twelve female plaintiffs. TWA was the only defendant.
The complaint was not separated into counts but there were two claims made, one under the Equal Pay Act and the other under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.; usually referred to as "Title VII"). As will be seen hereafter, the claim under Title VII was dismissed, on a motion by TWA for partial summary judgment, as untimely commenced.
Only the claim under the Equal Pay Act remained for trial and decision.
On October 26, 1970, TWA moved to dismiss the action for failure to join an indispensable party, said to be Local 550, Air Line Stewards and Stewardesses Association, Transport Workers Union of America, AFL-CIO. This local union is sometimes referred to as "Local 550" and sometimes is referred to as "ALSSA"; its national or parent union is usually referred to as "TWU". The point made by TWA in its motion was that Local 550 was the certified collective bargaining representative of cabin attendants and pursers, that collective bargaining agreements had been made between Local 550 and TWA, that the wage differentials and other claimed discriminatory practices were provided for in those agreements, that TWA could not unilaterally change these provisions, and that this situation made Local 550 (as a contracting party) an indispensable party defendant. It may be noted in this connection that when plaintiff Maguire made charges of discrimination under Title VII to the Equal Employment Opportunity Commission (EEOC) she charged Local 550 as well as TWA. The decision of EEOC was that the "charges are true as against the Union (Local 550), as well as the Company (TWA)".
On December 10, 1970, Local 550 filed a notice that it would present a petition to intervene in the action. On December 15, 1970, such a petition was presented to Judge MacMahon, intervention being sought as a plaintiff. The lawyers acting for Local 550 were the same lawyers who had signed the complaint filed by the twelve individual plaintiffs to commence the action. On the same day, Judge MacMahon by endorsed order granted intervention as plaintiff to Local 550, believing (mistakenly) that TWA was not opposed.
Realizing that Judge MacMahon had misunderstood its position, TWA on December 24, 1970, filed notice of a motion for reargument, making clear that, while TWA did not oppose intervention by Local 550, it urged that Local 550 should be joined as a party defendant, not as a party plaintiff.
By endorsed order, filed January 12, 1971, Judge MacMahon denied the motion of TWA to dismiss the action for failure to join an indispensable party. His reasoning was that since Local 550 had now been joined as a party, even though as plaintiff, there was no longer any basis for the motion.
By order with memorandum opinion, filed February 16, 1971, Judge McMahon granted the motion of TWA for reargument and on reargument ruled against TWA and for the second time granted the petition of Local 550 to intervene as a party plaintiff.
On March 8, 1971, TWA filed its answer, which contained a counterclaim against Local 550, asserting that, since the acts complained of were done under agreements with Local 550, there was a right of contribution in TWA from Local 550 in respect of any liability imposed on TWA as a result of those acts agreed upon with Local 550.
Meanwhile, on October 9, 1970, a related action had been commenced in this Court. This was De Figueiredo v. TWA, (70 Civ. 4421). De Figueiredo was a male purser who complained that male pursers were being subjected to discrimination by TWA in favor of female cabin attendants.
On April 27, 1971, De Figueiredo filed notice of a motion to consolidate his action (70 Civ. 4421) with that of Maguire (70 Civ. 3947) because the two actions involved "a common question of law or fact". Fed.R.Civ.P. 42(a).
On June 4, 1971, an affidavit was filed by TWA opposing the motion to consolidate. The point made was that Local 550, an indispensable party defendant, was not a party to the De Figueiredo action.
On June 7, 1971, counsel for De Figueiredo filed an affidavit requesting the Court to join Local 550 as a party defendant in his action.
In an opinion filed December 29, 1971, 55 F.R.D. 44, Judge Lasker granted the motion of De Figueiredo to consolidate the two actions and to add Local 550 as a defendant to the De Figueiredo action. An order on this opinion was filed on February 24, 1972.
By order with memorandum opinion filed April 4, 1972, Judge Metzner granted a motion of the Maguire plaintiffs to serve an amended complaint adding averments appropriate under local rules for class actions.
On April 4, 1972, Judge Metzner filed an opinion (55 F.R.D. 48) granting a motion to determine that Maguire was a class action under Fed.R.Civ.P. 23(b)(2) in respect of the claim under Title VII. In respect of the claim under the Equal Pay Act, it was ruled that no determination under Rule 23(b)(2) would be appropriate because the statute itself provided for the procedure of filing written consents for participation by others in the action.
Up to May 3, 1972, as to criminal cases, and up to July 1, 1972, as to civil cases, this Court was governed by the Master Calendar System as to the handling of its pending cases. Effective on the dates just given, this Court by Rule adopted the Individual Assignment System for the handling of its cases. At some time shortly after July 1, 1972, the consolidated action was assigned to Judge Ryan for all purposes.
Some time prior to August 18, 1972, the Maguire plaintiffs served, but did not file, an amended complaint.
On August 18, 1972, TWA filed its answer to the amended complaint in the Maguire action, with counterclaim against intervening plaintiff Local 550.
On January 17, 1973, an order of Judge Metzner was filed that the Maguire action be maintained as a class action under Title VII. (This had earlier been decided in an opinion filed April 4, 1972.)
On November 19, 1973, the amended complaint of the Maguire plaintiffs (which had been served much earlier) was filed.
The docket sheet shows that on January 24, 1974, the Clerk's Office mailed notices to counsel that the two actions consolidated had been reassigned from Judge Ryan to me.
The unions involved in this action should be briefly described. Air Line Stewards and Stewardesses Association, International ("ALSSA") was the original bargaining representative for TWA flight attendants and since about 1961 ALSSA has been affiliated with TWU, the international union, as its Local 550. In March 1974, TWU chartered Local 551 and later in the same year Local 551 succeeded Local 550 as the representative of flight attendants employed by TWA. When this occurred, Local 550 became, and remains, inactive.
After arguments heard on February 7, 1975, and April 24, 1975, an order was filed on May 16, 1975, which made a number of significant procedural changes.
The two actions which had been consolidated were severed and it is the Maguire action only with which we will hereafter be concerned.
Local 550 was realigned and made a party defendant; Local 551 and TWU were joined as additional parties defendant. The Maguire plaintiffs were required to serve a second amended complaint naming TWA, Local 550, Local 551, and TWU as defendants but were not required to state claims against Local 550, Local 551 and TWU.
On May 30, 1975, the Maguire plaintiffs filed a second amended complaint. This stated the same claims against TWA as had been stated before. There were named as defendants, in addition to TWA, the unions-Local 550, Local 551, and TWU-but no claim was stated against the unions.
On July 2, 1975, TWA filed an answer to the second amended complaint with eighteen separately stated defenses. The answer contained a counterclaim against the plaintiffs, a cross-claim against defendants TWU and Local 550, and a separate cross-claim against defendant Local 551. The counterclaim and cross-claims asked for judgment over for TWA in the event TWA was held liable to plaintiffs.
On July 14, 1975, plaintiffs filed a reply to the affirmative defenses in the answer of TWA.
On July 14, 1975, plaintiffs filed an answer to the counterclaim in the answer of TWA.
On July 30, 1975, TWU, Local 550, and Local 551 filed a joint reply to the cross-claims against them in the answer of TWA.
On August 4, 1975, plaintiffs filed an amended reply to the counterclaim in the answer of TWA.
On September 8, 1975, TWA filed notice of motion for partial summary judgment dismissing for want of jurisdiction the Title VII claim in the Second Amended Complaint.
The trial began on September 16, 1975, and continued on September 17, 18, 19, 23, 24 and 25, 1975. The trial was then adjourned.
On September 29, 1975, there was oral argument on TWA's motion for partial summary judgment dismissing the Title VII claim.
On November 5, 1975, an opinion was filed granting the TWA motion to dismiss the Title VII claim. This opinion is reported at 403 F. Supp. 734. The possibility of an interlocutory appeal (28 U.S.C. § 1292(b)) was suggested in the opinion so that a decision of the Court of Appeals could be secured for guidance before the trial was resumed.
On November 24, 1975, the Court was advised that counsel were preparing a stipulation that by agreement there would be no interlocutory appeal from dismissal of the Title VII claim and that the trial proceed on the Equal Pay Act claim only.
On the basis of a stipulation of counsel for all parties, dated December 29, 1975, and filed January 9, 1976, an order was filed January 27, 1976, dismissing the Title VII claim, but no final judgment was entered and no interlocutory appeal was possible (nor was desired by any party).
The trial resumed on June 1, 1976. The period of trial recess was affected by other engagements of counsel and of the Court and the June 1, 1976 date was finally a matter of agreement. The trial continued on June 2, 3, 4, 7, 14, 15 and 16. The trial was concluded on June 16, 1976.
Post-trial briefs were exchanged in October 1976 and reply briefs were exchanged in November 1976.
B. THE ISSUE IN THE CASE AT BAR
The issue is whether TWA has violated the Equal Pay Act. On its face the Act is simple. It forbids an employer to "discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees 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 ..." (29 U.S.C. § 206(d)).
The issue is raised in respect of the differential between the pay of pursers (higher) and that of hostesses, later called cabin attendants (lower).
From the beginning of TWA international flights, stipulated to have been on February 5, 1946, pursers have been employed by TWA on such flights. Until May 24, 1968, all pursers were male. On August 8, 1967, a contract was signed between Local 550 and TWA which (in Article 13(G)) opened the position of purser to females by giving priority in filling future purser vacancies to hostesses in order of hostess seniority. The first TWA female pursers began work May 24, 1968.
Until an agreement signed October 22, 1970, between Local 550 and TWA all hostesses on both domestic and international flights were female; by the described agreement, males could be employed in that classification, the name of which was changed to "cabin attendant" to embrace both male and female. The first TWA male cabin attendants began work on December 3, 1970.
In an action in a federal court in Florida, it had been held that it was not a violation of Title VII for an airline to refuse to hire males as cabin attendants. Diaz v. Pan American World Airways, Inc., 311 F. Supp. 559 (S.D.Fla.1970). This decision was reversed by the Court of Appeals on April 6, 1971 (442 F.2d 385; 5th Cir., cert. denied, 404 U.S. 950, 92 S. Ct. 275, 30 L. Ed. 2d 267 (1971)). TWA apparently waited until the end of the Diaz litigation before hiring males in any numbers as cabin attendants.
A letter agreement, dated February 4, 1970, between Local 550 and TWA, provided for a "service manager" classification on some international flights, those using B-747 (wide-bodied) planes. After the February 4, 1970, agreement, a "service manager" classification was also added on TWA domestic wide-bodied flights.
There are two pay differentials which figure in the issue here.
There is a pay differential between cabin attendants on international flights (higher) and cabin attendants on domestic flights (lower). Plaintiffs appear to accept this differential as lawful and appear to concede that the work of domestic and international cabin attendants is not "equal work".
The other and more important (for this action) pay differential (the "purser differential") is between cabin attendants on international ...