The National War Labor Board, in its directive order, referred the issue of jobs and wage rates for women to the parties for further negotiation, stating as follows in its opinion: 39

"This issue relates to a number of different jobs including inspection. By agreement of the parties, certain jobs in specified departments are listed as female classifications and carry a lower rate than jobs in the same general category in other departments which are designated as male classifications.

"Such a set-up was largely based upon prewar conditions. The inspection jobs may be taken as an example. In the various departments such jobs were similar in many respects. In some departments, however, the work as a whole predominantly involved less skill and effort. It was assigned a relatively lower rate and the parties agreed that female inspectors could be employed on such tasks. In most of the departments, however, a more exacting type of inspection predominated and was paid a higher rate and was to be performed by men. It should be noted that certain inspection tasks in the two types of classifications were comparable. The classifications were apparently based upon the predominant characteristics.

"By their agreements, the parties have consistently restricted the extension of the female classification beyond certain named departments. Thus, in the present contract it is provided that the present female classifications shall remain as standard for automotive departments and for aircraft work now performed in departments noted with asterisks unless changed by agreement between the parties hereto.

"The above outlined arrangement adopted by the parties for prewar conditions has not met the needs of wartime operations. Increased production and extensive subcontracting has, for example, greatly increased the volume of inspection work. Relatively simple types of inspection have had to be performed in departments where only male inspection at the relatively higher rates were recognized by agreement. In such departments, because of the volume of inspection, there are now male employees whose work is undoubtedly comparable with that performed by female employees in the departments where female classifications are recognized. At the same time, there has been an increased volume of inspection involving more exacting operations, which have been assigned to employees in the female classification.

"In short, the wage rates paid for inspection are not related to the type of work actually performed. Nor can this problem be met by simply increasing all the rates for female classifications to the rate paid to male employees on inspection jobs. This would not give equal pay for equal work but equal pay for unequal work.

"The problem presented in this case is not primarily related to the Board's policy on equal pay for equal work to female employees. On the contrary, it represents a fundamental problem of intra-plant wage rate relationships arising from a lack of balance between various rates.

"What is obviously needed in this situation is a reevaluation of job classifications on the basis of job content. The job classification should not be divided on the basis of male and female classifications. They should be evaluated on the basis of skill, effort, and job content and classified into various grades of work with appropriate rates for each classification. The rates for each type of job should be made available to every employee on the job whether male or female. In other words, the female classifications for all departments should be eliminated as such."

Unable to reach agreement through further negotiation, the parties submitted the dispute to arbitration, and as a result of the arbitrator's award, the company was permitted to hire female employees without restoration.40 However, in respect to wage rates the company was to be bound by the following considerations: 41

"(4) In occupations for which there are now no female classifications, the female rates shall be five (5) cents under the male rates.

"(5) In occupations for which there are now female classifications the female rates shall be ten (10) cents under the male rates."

Since 4.5 cents per hour of the differential under provision (4) and 5 cents per hour under provision (5) represent an allowance agreed to by the parties to com

39 Ibid., pp. 45, 46.

40 The reasoning of the arbitrator is cited in part in appendix D.

41 Case No. 2941-D 11WLR 669-677 Arbitrator's Award, December 7, 1943, upheld by NWLB September 20, 1943. See also NWLB Press Release B 1061.

pensate for the two 10-minute rest periods allowed to women employees, the award, in effect eliminated the differential for females taking or doing men's jobs and reduced the differential against females employed in those classifications where some variations in rates were justified on the basis of differences in job content. It should be noted that under the old agreement the "female" classifications carried a single uniform rate of 82 cents per hour while jobs in the "male" classification paid a top rate of $1.08 per hour.

In summary it may be noted that on the basis of General Order No. 16, the National War Labor Board has sustained the doctrine of "equal pay for equal work" in cases where women were found to be replacing men, or working on the same job as men and their production was found to be substantially the same in quality and quantity. The National Board has modified decisions in cases where the "equal pay" principle was erroneously applied to jobs where women failed to meet the production standards set for men. Where the equal pay principle has been applied to equalize the rates paid to women in one plant with those paid, to men or women for comparable jobs in another plant, such decisions have been held improper and erroneous. Also in those cases where the "principle" has been applied to jobs traditionally assigned to women, denial of equality in pay has generally been based on the presumption that such rates were correctly rated in relation to other jobs in the plant, especially if those rates were established through collective bargaining.42

IV. THE EXTENT OF VOLUNTARY ADJUSTMENTS UNDER GENERAL ORDER NO. 16

Prior to January 3, 1944, employers making wage adjustments under General Order No. 16 as adopted November 24, 1942, were required to submit to the National Wage Stabilization Director sufficient information to show that they had properly applied the terms of the order.43 The reports are available in tabulated form for the period from November 24, 1942, through October 15, 1943, and may be summarized as follows:

Source: Reports transmitted to the National War Labor Board Washington Office Re: Adjustments in Wage or Salary Rates Paid to Women to Equalize Them With Rates Paid to Men in Accordance with General Order No. 16; adapted from table 12, week ending Oct. 15, 1943.

Additional unprocessed reports are available after this date but the material has not been tabulated and is not in usable form at this time. An estimate has been made of the reports filed by employers, notifying the National War Labor Board of voluntary increases granted under General Order No. 16, for the entire period from the promulgation of the order (November 24, 1942) to the revocation of its reporting provision (January 3, 1944). According to this estimate 2,250 reports were filed, involving increases to 59,500 women.44

42 See appendix D for notes and comments pertaining to opinion cases included in this report which were not carried in the main text since they were considered subsidiary to the principal problems studied.

43 Reported on Form NWLB 200. "Report of Adjustment of Wage or Salary Rates Paid to Women Under NWLB General Order No. 16." See appendix B for type of information required.

44 See NWLB Press Release B 1224, January 14, 1944.

APPENDIX A

Interpretation No. 1 to General Order No. 16 states that: 45

"Wage adjustments required by State statutes which prohibit wage discrimination between the sexes are 'adjustments which equalize the wage or salary rates paid to females with the rates paid to males for comparable quality and quantity of work on the same or similar operations' within the meaning of General Order No. 16, and may be made without approval of the National War Labor Board. "Q. 1. Must wage adjustments required by State statutes to equalize rates paid to women workers be reported to the Board?

"A. No.

"Q. 2. If the character of the work has been changed in order to permit it to be performed by women, may the wage rate for the job also be changed without approval?

"A. Yes. The new job constitutes a new classification and a rate may be set in accordance with General Order No. 6.

"Q. 3. If only women have been assigned to a particular job in the past, may their rate be increased without approval to equal the rate paid for similar jobs performed by men in the area without approval?

"A. No."

Form NWLB 200.

APPENDIX B

REPORT OF ADJUSTMENT OF WAGE OR SALARY RATES PAID TO WOMEN Under NWLB GENERAL ORDER No. 16

1. Name of employer: "X".

2. Main office address of employer: Los Angeles, Calif.

3. Address(es) of place(s) of business involved in this adjustment: Los Angeles, Calif.

4. (a) Type of establishment (factory, mine, wholesaler, retailer, etc.): Office building.

(b) Industry (clothing, coal, transportation, etc.): Real estate.

(c) Products or services (name two or three of the principal products made or handled, or services performed): Rental of stores and offices. 5. Total number of employees on the pay roll working at time of adjustment in the places of business involved: 14.

6. Enter on the form below, on a separate line for each job classification involved in this adjustment, the information requested. If different rates of pay are involved in this adjustment for the same job classification, separate lines should be used for each different rate. Use additional sheets of plain paper if more space is required.

7. State briefly why this adjustment has been made: To equalize wages of women elevator operators with those of men for comparable quality and quantity of work.

8. Person filing this report: Name, "X"; title, building manager; date, October 3, 1943.

45 Wage stabilization General Orders and Interpretations under Executive Order 9250, Executive Order 9328 and the Regulations of the Director of Economic Stabilization; pp. 27, 28. Issued by the Office of the General Counsel and approved by the National War Labor Board.

1 Except for the California Metal Trades Association case, which was certified to the National War Labor Board prior to the adoption of General Order No. 16, these cases do not have opinions by the National Board.

Frank Foundries, Moline, Ill.; involving United Automobile, Aircraft, and Agricultural Implement Workers, CIO. The directive order of the NWLB states that—

"4. Work and general conditions.-The parties shall incorporate under this heading in their contract the following provisions:

"SEC. 2. Female employees hired to perform the same work as performed by male employees shall be paid on the basis of the principle of equal pay for equal work."

United States Cartridge Corp., St. Louis, Mo.; involving the International Association of Machinists, AFL. The National Board directed that wage rates for women be set in accordance with the principle of equal pay for comparable quantity and quality of work. Disputes as to quality, quantity, or comparability of work are to be subject to arbitration.

Aluminum Co. of America, Los Angeles, Calif.; involving the UAW, CIO: "The NWLB upheld the referee, and ordered that on those jobs on which by established practice in the Vernon plant women exclusively are employed, the minimum wage for female employees shall be as follows: For the first month of service, 62 cents per hour; for the second month of service, 66 cents per hour; for the third month of service and therafter, 72 cents per hour; except that wage rates for women shall be set in accordance with the principle of equal pay for comparable quantity and quality of work on comparable operations with male employees.

'Any dispute arising as to the question of quality, quantity, or comparability, as herein defined, shall be subject to consideration under the established grievance procedure.

"On all jobs for which women are hired to perform work formerly done by men or on which both men and women are employed interchangeably, the minimum wage rate shall be 72 cents per hour for all hourly paid employees. "Such rate of pay shall be retroactive to August 7, 1942."

California Metal Trades Association, San Francisco, Calif., and International Association of Machinists, AFL. The following directive order and opinion was issued by the National War Labor Board:

Directive order:

"1. The parties shall within 1 week from the date of this order meet for the purpose of surveying the occupations in which women are or will be employed by

the company in order to negotiate the rates for these occupations upon the principle of equal rates for male and female employees, within the terms of the contract between the parties, for comparable quantity and quality of work on comparable operations.

"2. If, within 2 week thereafter, or at such later time as the parties may agree upon, the parties do not come to an agreement, the matter shall be referred to an arbitrator appointed by the National War Labor Board for final determination. "3. Until final determination of the issues, the company may continue to employ women at rates lower than those fixed in the contract for helpers or specialists, provided, however, that the final determination shall be retroactive to the dates of hiring both for present and future female employees."

Opinion by Wayne L. Morse (California Metal Trades Association of San Francisco) (case certified to NWLB October 31, 1942, i. e., prior to G. O. No. 16): "It is fundamental to the law of contracts that a contract must be construed in the light of circumstances in which it was made and of contemplation of the parties as to its purposes. The contract in this case was made when no female employment existed or was contemplated. The contract is silent on the question of female employment. To the extent that such employment raises a completely new issue, the contract does not preclude consideration and determination of

the issue.

"On the other hand, the fact that, as stated by the company, women employees as well as male employees in other plants performing the same operations receive lower rates than those claimed by the union in this case is irrelevant. If, by the terms of the contract, the company is obliged to pay such higher rates to its male employees it must also pay the higher rates to female employees for comparable quantity and quality of work on comparable operations. The determination of comparability in operations, quantity, and quality is obviously a matter in the first instance for the parties.

"In this case, negotiations between the parties on these issues proved abortive largely because of the insistence that a contract precludes any lowered rate of pay for women even when their work is of inferior quantity or quality. With the Board's determination that the contract is not so preclusive, the parties should be able to negotiate successfully on these issues.

'Accordingly, the Board directs that the parties should meet and jointly survey the occupations upon which women are or will be employed, for the purpose of determining whether the quantity and quality of their work is comparable to that of men on similar operations and if not what differentials in rates is necessary in order to equalize the real rates. These negotiations should commence within 7 days from the date of the directive order of the Board. If the parties cannot reach an agreement settling the dispute within 2 weeks thereafter, the matter shall be submitted to an arbitrator appointed by the War Labor Board for final determination. In the meantime, the company may continue to employ women at the lower rates. The final determination with respect to both the women who have already been hired, and those who will be hired in the future should be retroactive to the date of hiring so that no female employee will be prejudiced by the time consumed in the process."

Niles-Bemont-Pond Co., West Hartford, Conn.; United Electrical, Radio, and Machine Workers, CIO; the National War Labor Board equalized starting rates for men and women and also ordered that:

"4. The principle of equal pay for equal work shall apply among all employees, male and female."

Weatherhead Co., Cleveland, Ohio, and UAW, CIO. The National War Labor Board ordered that:

"1. * * * There shall be no sex differential in these increases." Leviton Manufacturing Co., Brooklyn, N. Y., and International Brotherhood of Electrical Workers, AFL. The National War Labor Board directed that: 66* * * Equal pay for equal work.

"Wages for women shall be set in accordance with the principle of equal pay for equal work. Any claim of irregularity shall constitute a grievance to be settled under the terms of this agreement.

W. B. Jarvis, Grand Rapids, Mich., and employees of W. B. Jarvis, independent: Directive order:

"2. New employees in each classification shall be hired at a rate of 10 percent below the going rate for that classification and receive an increase of 5 cents