To determine whether women workers are performing comparable work for less pay, the inspector who goes to the plant must have a broad understanding of industrial processes as well as familiarity with personnel classification methods. The supervisor who reviews the inspector's findings and the official who presides at a hearing where the employer has an opportunity to present his side of the case should have similarly expert knowledge. The administrative procedures established in the legislation take into account the specialized character of the initial fact-finding process, and are a recognized way of dealing with them. I believe the procedures provide a sound basic framework which, as a practical matter, will facilitate the accomplishment of the legislative purpose, that of securing equal pay for women.

In addition to provisions for quasi-judicial proceedings at the administrative level to determine the rights of individuals, the bills also provide for establishment of tripartite industry committees to make special studies and recommend methods to facilitate accomplishment of the fundamental purpose, the elimination of wage discrimination. This is desirable because of the practical experience and knowledge of industry that labor and employer members bring to such a committee and the balance provided by impartial public members. The value of tripartite industry committees has been amply demonstrated by experience under both State and Federal law and I believe such procedure, as incorporated in the present bills with appropriate administrative standards and legal safeguards, offers an effective method of facilitating the widespread application by industry of the equal pay principle.

Miss Miller, Director of the Women's Bureau, will give testimony concerning practices by the States and in private industry concerning the equal-pay principle. I would, however, like to refer briefly to a study made by the National Association of Manufacturers, conducted early in 1942, of 550 companies which were described as representing a fairly typical cross-section of the war industries at that time.

I do not know what attitude the National Association of Manufacturers has on the subject of equal pay for women today. I would, however, like to quote a few factual excerpts from its 1942 report as follows:

We believe that women can satisfactorily fill all or most jobs performed by men, subject only to the limitations of strength and physical requirements. However, although true, this statement should not preclude recognition of the fact that jobs which by nature are particularly dirty, dusty, hot, or wet, are not desirable for women and should not be performed by women until after other more suitable jobs have been filled.

There is little difference between men and women as regards their satisfactory performance in industry. Sound employment and personnel practices are applicable to both men and women and no emphasis should be placed on any distinctions between them as workers.

In the matter of wage policies we advocate the principle of equal pay for equal performance by women. In effectuating this policy it is essential that consideration be given to methods whereby "equal work" may be measured. In this connection we recommend that industry give thought to the wider use of such techniques as job analysis and evaluation to determine the precise nature of the job and the elements comprising it.

We have already gone some distance toward remedying this longstanding injustice to women-of unequal pay for comparable work, but there is urgent need for further action. Millions of women workers are not protected against this gross inequity either by State

laws or by union contracts. Hundreds of fair employers who are paying "the rate for the job," regardless of sex must still compete with those who are willing to take advantage of the weaker bargaining position of women. The gains that have been made through voluntary action and through War Labor Board influence during the war years can be retained on a lasting basis only by establishing equal pay for equal work by law, a law which is clearly in the national interest.

In concluding, however, I should like to say this: that laying aside all the sound economic reasons for establishing equal pay for women, I think this bill should become law because it is a matter of simple justice. If a woman does the same job or a job requiring comparable skill she ought to be paid the same rate as a man. There is no sex differential in the food she buys or the rent she pays. There should be none in her pay envelope. I still believe in the truth of the old adage and I commend it to this committee, that "the laborer is worthy of his hire.

That concludes my prepared statement.

I would like to call attention of the committee to the fact that in this statement-if you will take the bill and look at the top of page 3-I have not discussed subsection (2) of section 2 (a), "for comparable quality and quantity of work on the same or similar operations."

I take the position that—and the head of any bureau is entitled to disagree with me, and perhaps Miss Miller will disagree with mebut she has not been able to convince me of the desirability of subsection (2), for some very practical reasons, as I see it.

I do not think it is possible to write into a law and give to a Government agency the power or the skill to determine whether or not work being turned out is of comparable quality.

If you have a woman worker who is doing a complete job, a whole line of them, each one doing a complete job, then it might be possible to determine what is comparable quality. But most of our work is not turned out in that way at the present time.

It seems to me it is within the province of management to determine whether or not they are getting the quality of work that they want out of a worker. If they do not get the quality of work they want they should have and they do have the right of discharge, or they have the right of transferring to some other job.

Quantity of work is about the same. If you have one person doing a complete job and another person doing a complete job, you can figure out how much will be turned out by each one, but I do not think that in most of our manufacturing work, which is done in line production, you can tell who in that line is slowing up the work, who it is that is making the output less. I do not think we should attempt to take away from management the right to have somebody there looking on and making that determination. No inspector representing either the Federal Government or the State Government could come in and say: "It is John Smith here that is slowing up the work." It is going to take a supervisor who is there every day watching the work go out. I am not going to say any more than that.

Mr. McCONNELL. Mr. Secretary, I would agree with your comment there, but where do you protect that right of management in the wording of this bill? I would agree with your statement that management should have that right, but where is management protected in this bill?

Mr. SCHWELLENBACH. I would eliminate subsection (2) of section 2 (a) on page 3.

Mr. McCONNELL. Oh, I am sorry. I did not understand that. Mr. SCHWELLENBACH. Miss Miller may be able to convince you I am wrong about that, but she has not been able to convince me. However, I protect her right of freedom of opinion in the Department. Mr. McCONNELL. Mr. Smith.

Mr. SMITH. Do you have any figures to show where there have been strikes over the subject matter of this bill?

Mr. SCHWELLENBACH. I would like to put into the record the report of the War Labor Board which, while it does not show very many actual strikes, shows a lot of disputes and slowing up of work as a result of this. May I put this into the record?

Mr. McCONNELL. Without objection it is so ordered. (The report referred to is as follows:)

NATIONAL WAR LABOR BOARD

PROGRAM APPRAISAL AND RESEARCH DIVISION

H. M. DOUTY, Director

RESEARCH AND STATISTICS REPORT No. 32: NATIONAL WAR LABOR BOARD POLICY ON EQUAL PAY FOR EQUAL WORK FOR WOMEN

(Prepared by Ella J. Polinsky, Washington, D. C., September 1945)

PREFACE

The recent introduction of a bill (S. 1178) in the United States Congress to provide for equal pay for equal work for women has aroused considerable interest in WLB policy on the subject. The present report is an attempt to summarize Board policy on the basis of the more important “equal pay" cases which were decided by the Board. The report reveals that the Board has carefully limited the application of its policy and that the limitations have frequently been misunderstood.

I. GENERAL ORDER NO. 16 AND AMENDMENTS

The practice of paying the same rates to men and women working in the same occupation within an establishment and producing work of comparable quantity and equality was supported by the National War Labor Board before the promulgation of General Order No. 16, the "equal pay" order.1 This practice became official Board policy when General Order No. 16 was adopted, November 24, 1942. The order, as amended January 3, 1944, provided that:2

"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, and adjustments in accordance with this policy which recognize or are based on differences in quality or quantity of work performed, may be made without approval of the National War Labor Board, provided that

"(1) Such adjustments shall be subject to the Board's ultimate power of review, but any modification or reversal thereof will not be retroactive;

"(2) Such adjustments shall not furnish a basis either to increase price ceilings of the commodity or service involved or to resist otherwise justified reductions in such price ceilings.'

13 precedent cases decided by the National War Labor Board on the basis of the "equal pay" principle prior to the adoption of General Order No. 16 are: Norma Hoffman Bearings Corp., case No. 120, decided July 18, 1942; Brown & Sharpe Manufacturing Co., case No. 101, decided Sept. 25, 1942; General Motors Corp., cases Nos. 125 and 128 (one opinion written), decided Sept. 26, 1942. See appendix C for other cases decided by the National Board on the basis of the "equal pay" principle, prior to the adoption of General

Order No. 16.

2 See appendix A, for interpretation No. 1 to General Order No. 15, issued by the Office of the General Counsel and approved by the National War Labor Board. The order, unamended, included the following provisions: "Such adjustments are reported, when made, to the Division of Review, Analysis, and Research of the National War Labor Board, together with sufficient information to show that they are in accordance with the policy referred to above."

In accordance with the post-VJ-day policy of the War Labor Board, General Order No. 16 has been rewritten to read:3

"Increases 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, and increases in accordance with this policy which recognize or are based on differences in quality or quantity of work performed, may be made without approval of the National War Labor Board, provided that such increases will not be used in whole or in part as the basis for seeking an increase in price ceilings, or for resisting otherwise justifiable reductions in price ceilings, or in the case of products or services being furnished under contract with a Federal procurement agency, will not increase the cost to the United States."

Comparatively few cases involving the "equal pay" principle have come to the level of the National Board for determination, since General Order No. 16 was intended as the national industrial guidepost on this issue. As was indicated in a letter from Chairman William H. Davis to the Secretary of Labor:4

11* * * The order is, however, addressed to employers who desire to make appropriate wage payments within their own established wage structures. The order is liable to abuse, and wage adjustments cannot be made under it, without Board approval, unless they are made to equalize the wage or salary rates paid to females with the rates paid to males for comparable quantity and quality of work on the same or similar operations in the same plant."

In clarification of the application of General Order No. 16, Mr. Davis continued: "The application of the order is quite plain and simple in cases where women are employed to replace men on jobs which are not changed.

"Where the plant management, in order to meet the necessity of replacing men and women, has rearranged or lightened the job, perhaps with the employment of helpers to do heavy lifting or the like, a study of job content and job evaluation should afford the basis for setting 'proportionate rates for proportionate work.' Such questions require a reasonable determination, by collective bargaining or arbitration, of the question whether, or how far, the newly arranged job is of equal quantity and quality with the old job. The new wage set on such a basis does not require the approval of the National War Labor Board under the terms of General Order No. 16.

"We have found from experience that there has been some tendency to abuse this rule of equal pay for equal work.

"This refers particularly to job classifications to which only women have been assigned in the past. The rates for such jobs, especially when developed by collective bargaining, are presumed to be correct in relation to other jobs in the plant.

"Whether a job is performed by men or women, there may be a dispute over correctness of its wage rate in relation to rates for other jobs in the same plant. These are the so-called intraplant inequality cases. Their determination should not be related to the 'equal pay for equal work' question; they should be determined on the basis for maintaining or developing a proper balance of wage rates for various jobs based upon job evaluation.

"We have even seen instances in which the workers have demanded, or the employers have proposed, that the wages being paid to women in one plant should be increased on the ground that in some other plant similar work is being done by men at a higher wage. Such proposals tend to overlook the fact that wages paid to men in the same occupation generally vary from plant to plant. In such cases, the question whether the work is done by men or women is irrelevant. The claim for increased wages immediately reduces itself to a simple question of different wage rates for the same work in different plants. Interplant inequalities in wage rates are quite common in American industry, and often well established. They afford a basis for a wage increase only in very exceptional If the interplant inequality is in fact one that should be corrected at all, its correction is independent of any question of men and women workers." It should be noted that while the precedent cases discussed in this report have been grouped into the situations described in the above letter, this arrangement 3 General Orders, sec. 803.16, General Order No. 16; adopted Aug. 20, 1945. It should be noted that while upward or downward adjustments were permitted under General Order No. 16, as amended Jan. 3, 1944, under the presently operative order only upward adjustments may be made without Board approval. See War Labor Reports, vol. 8, p. xxvi or full text of latter; also see National War Labor Board press release No. B 693, June 4, 1943. (Note: W. L. R. citations are from War Labor Reports published by the Bureau of National Affairs, Washington, D. C.)

cases.

is an arbitrary device to facilitate analysis. Actually, several situations have been found in the same case. The three situations considered in section I fall within the area of applicability of the "equal pay" formula (General Order No. 16), while the two situations taken up in section II involve a misapplication of this formula.

II. ANALYSIS OF NATIONAL WAR LABOR BOARD PRACTICE IN APPLYING THE "EQUAL PAY" PRINCIPLE

In these precedent cases which were decided on the basis of the "equal pay' principle and in which opinions were written by the National Board, the following situations may be differentiated:

(A) Where female workers were being paid a lower rate than male workers in the same plant for work of comparable quality and quantity.

(B) Where female workers were replacing male workers on jobs that had been traditionally performed by males and whose job content was not altered. (C) Where female workers were being placed in jobs that were diluted in content.

Situation A: Women are paid less than men for comparable quality and quantity of work

5

In the Brown & Sharpe Manufacturing Co. case, the company proposed to pay women up to 20 percent less than men for work of comparable quantity and quality, in the same occupations. The National War Labor Board panel in this case unanimously agreed that: "

(* * * There is no proof, scientific or other, that women are 20 percent less capable than men all the time.

"The panel realizes that women possess physical limitations which make it impossible or inadvisable for them to do the heavy physical labor that men are called on to perform. It is likewise true that a smaller proportion of women possess the background and the aptitude for machine jobs. For these physical and aptitude limitations no management should be penalized. Extra supervision, extra 'set-up' and 'carry-off' men thus become a direct charge against the rates paid women. But wherever and whenever women are able to do identical work, or substantially the same work as men, any differential is clearly discriminatory."

The National War Labor Board, sustaining the panel, directed the inclusion in the labor agreement of an article incorporating "the principle of 'equal pay for equal work' for female employees who, in comparable jobs, produce work of the same quantity and quality as that performed by men.'

" 7

The opinion of the National War Labor Board stated that:8

11* * * In treating this question in the present case, the panel has recommended, in part, that 'rates of pay for female employees will be based upon the established rates for the work performed. Where such work is identical with, or substantially the same as, that performed by men, on the same or comparable operations, the base rates and hourly rates will be the same.' The wording of the above-quoted section indicates the impropriety of using slight or inconsequential changes in job content or in method of operation as a sole reason for setting up a wage differential against women employees. Wage setting on such a basis is considered by the Board to be discriminatory and hence not compatible with the principle of 'equal pay for equal work.' The Board approves the abovequoted wording as recommended by the panel with the proviso, however, that it cannot be interpreted solely in relation to the physical characteristics of the operations performed. It must also be related to the quality and quantity of production turned out. Female employees assigned to the same operation which has been or which is performed by men should receive the same pay when they produce the same quantity and quality of output. Any differential which results in lower pay to women under such conditions would be discriminatory. On the other hand, where lower production or decreased performance standards must be established for women as compared with men, a proportionate adjustment of wages for women is compatible with the principle of 'equal pay for equal work.'

66* * * Any dispute regarding the rates established for women employees will be treated as a grievance and will be handled through the established griev

5 Case No. 101, Brown & Sharpe Manufacturing Co., decided by NWLB Sept. 25, 1942, involving the International Association of Machinists, AFL; 3 W. L. R. 323-343.

• Ibid., p. 331.

7 Ibid., p. 323.

Ibid., pp. 325, 326.