Full opinion text
FRANK A. KAUFMAN, District Judge. The Secretary of Labor (plaintiff) alleges that the Board of Education of Baltimore County (defendant) violated the Equal Pay Act (“Act”) by paying female custodial workers in its schools a lower wage than male custodial workers performing substantially equal work. The Board is responsible for the operation of approximately 160 elementary and secondary schools in Baltimore County. In connection therewith the Board establishes educational policies, prescribes rules and regulations for the conduct and management of the county school system, issues policy guidelines, purchases supplies, handles payroll and bookkeeping functions, fixes compensation of all employees subject to funding by the Baltimore County Executive and County Council, and assigns all personnel. The Board concedes that its activities were performed through unified operation and control and are deemed to be for a common business purpose within section 3(r) of the Fair Labor Standards Act. The Board also concedes that the school system is a “single establishment” within the meaning of the Equal Pay Act. From 1964 to 1976, the Board utilized a job classification system under which all janitorial employees were categorized as Custodians I or Custodians II. Custodians I, nearly all of whom were male, received $.25 more per hour than Custodians II, most of whom were female. The separate classifications and the wage differentials were eliminated by the Board in July, 1976, shortly after this suit was filed. The Board contends that the tasks performed by the two categories of custodians were significantly different and unequal. The Board also asserts that the Secretary is estopped from pursuing relief in this case because of the manner in which the federal agency conducted its investigation of the Baltimore County schools. The Secretary seeks a permanent injunction enjoining the Board from violating the Act and the payment of back wages to the Board’s female employees for school months during the period from May 7,1974 through July 1,1976, with interest, at the rate of six percent per annum. Prior to trial, the parties took depositions de bene esse of 39 custodial employees. Those depositions have been ádmitted into evidence and are part of the record. In a non-jury trial held during the week of February 27,1978,11 additional custodians, certain Board of Education officials, a Department of Labor investigator assigned to the case, and several expert witnesses, testified. Jurisdiction exists pursuant to section 17 of the Fair Labor Standards Act, 29 U.S.C. § 217. I — AGENCY ESTOPPEL DEFENSE Defendant argues that plaintiff is es-topped from prosecuting this case because of alleged failure by the Department to follow its own regulations and procedures. Defendant relies heavily on the Department of Labor’s Field Operations Handbook (FOH). The estoppel defense has two prongs: (1) Contrary to Section 53b01 of the FOH, the Labor Department’s compliance officer failed to conduct a “final conference” to inform the Board of the results of his investigation and to attempt to obtain future compliance; and (2) Institution of this suit for back wages and injunctive relief after the Board had commenced compliance with the Act violated the Department’s policy as stated in section 81b03 of the FOH. In response, the Secretary contends that the evidence does not support those estoppel contentions and that, in any event, neither estoppel defense is legally viable. A. The Investigation In May 1973, Gary Legum, Compliance Officer of the Wage and Hour Division of the Department of Labor, began an investigation into the employment practices of the Board. Legum first contacted Thomas Regan, a specialist in the Board’s personnel department, and asked Regan for information regarding the Board’s personnel and pay policies. After visiting three of the Board’s 160 schools and talking with various employees, Legum again met with Regan and at that time informed him that the Board was violating the Equal Pay Act with respect to some of its custodial employees. Regan requested that Legum put his findings in writing. In a letter dated May 30,1973, Legum wrote Regan that the lower-paid female custodians were doing work substantially equal to that of the higher-paid male custodians. Subsequently, Legum met on June 18, 1978, with Dr. Joshua R. Wheeler, Superintendent, Dr. Robert Y. Dubel, the Deputy Superintendent, and other Board representatives to attempt to settle their differences. At the meeting Wheeler said that he felt the wages of the female custodians should be increased but that he did not believe their work to be equal to that of the male custodians. Wheeler also asserted that Le-gum had not visited a sufficient number of schools to obtain an accurate picture of the Board’s personnel policies. He asked that Legum expand his investigation to include other schools. After consulting with his supervisor, Le-gum visited three more schools during June and July, 1973. At trial, Legum testified that the additional investigation supported his original finding of an Equal Pay Act violation. He met with Board officials a second time on July 13, 1973 and informed them again of his conclusions. He modified his original findings by noting that in some schools male custodians appeared to spend substantial time during the summer on work not comparable to work done by female custodians. However, he reiterated his belief that there existed a violation of the Act in those schools during the school year. Wheeler responded by again requesting a more thorough investigation. He reasoned that, since Legum had found possible differences in work performed by male and female custodians during the summer months as a result of visits to schools during June and July, additional visits during the school term might yield similar conclusions for the rest of the jear. Legum testified that on August 9, 1973 he telephoned Wheeler concerning the latter’s request for additional investigation, and informed the superintendent that the investigation was “inconclusive” as to work performed during the summer months. However, Legum stated that Equal Pay Act violations existed during the school term and that additional investigation would not be fruitful. According to Legum, he warned Wheeler that if the Board continued to refuse to comply, Legum would submit the file to his superiors for potential litigation. Legum in fact did refer the file to the Solicitor of Labor for potential litigation. The Solicitor’s office returned the file to Legum with instructions to investigate additional schools. Legum then visited six more schools during February-May, 1974, and five schools during October-November, 1974. During his 1974 investigation Legum apparently did not contact Wheeler. Rather, he dealt with Donald E. Custer, Supervisor of the Board’s office of Building Maintenance and Operations, who prepared a letter of introduction and assisted Legum in gathering information. After the additional fact finding, Legum informed Custer that the Board was still in violation of the Equal Pay Act. According to Legum, Custer indicated that the Board would not alter its position and would not comply in accordance with Legum’s views. Custer testified at trial that he merely stated to Legum that he (Custer) personally did not agree with Legum’s findings. Custer seemingly did not have any express authority from the Superintendent’s office to state the Board’s position. In fact, Custer did not apprise the Superintendent’s office of Legum’s visit or of the compliance officer’s conclusions. Apparently, after the August 9,1973 telephone conversation between Legum and Wheeler, the superintendent’s office received no direct word of the Labor Department’s investigation until the spring of 1975. In a letter dated March 21, 1975, the Regional Solicitor of Labor wrote the superintendent that the investigation had been completed and that the matter had been referred to the Solicitor’s Office “for consideration of appropriate action in accordance with the provisions of law.” Dr. Dubel testified that, prior to receipt of the Solicitor’s letter, he and Wheeler had inferred from the Labor Department’s apparent silence that the government had either dropped the investigation or had not yet completed its fact-finding. Dubel and other Board officials then met with a representative of the Regional Solicitor on April 30, 1975 and restated the Board’s position that the work was unequal. The result of that meeting was apparently inconclusive. About a year later on March 5, 1976, another meeting was held in Baltimore between Labor Department attorneys and Board officials. At that meeting Wheeler and Dubel agreed to merge the custodial classification and to eliminate the existing pay differentials at a cost of $270,-000. Dubel testified that it was at this 1976 meeting that the Board members themselves first learned of the compliance officer’s additional 1974 investigations and visits arranged by supervisor Custer. The Board members requested that the Labor Department forego any demand for back wages for the female custodians. In a letter dated March 10, 1976, the Regional Solicitor rejected that request and, two months later, filed the within suit. B. The Field Operations Handbook The Board argues that this chronology reveals that the compliance officer failed to comply with procedures set forth in two sections of the Labor Department’s Field Operations Handbook (FOH). First, section 53b01 of the FOH provides a basic outline for a final conference to be held between a compliance officer and an employer upon the completion of the fact finding phase of an investigation. At such a conference, the compliance officer is to inform the employer of the results of the investigation, explain the steps necessary for compliance if violations are found, and attempt to obtain an agreement for future compliance. Another section of the FOH instructs the compliance officer to inform the employer of the “final conference” at their initial interview. Section 52a09 states in part: 52a09 Initial employer interview, (a) At his first interview with the employer (or his designated representative) the CO shall: ****** (2) outline in general terms the scope of the investigation, including the examination of pertinent records, employee interviews, and the final conference with the employer or his designated representative to discuss the investigation findings; ****** The Board concedes that Compliance Officer Legum substantially followed the directives of the FOH with respect to his 1973 investigation of six schools. However, it asserts that he neglected to hold any “final conference” or even to communicate with the Board following the 1974 investigation of eleven additional schools. The Board maintains that Custer, who was Legum’s contact in the school system during the 1974 investigation, had no authority to speak for the Board. Thus, defendant reasons, Le-gum’s conversations with Custer as the supervisor of building maintenance and operations did not: (1) apprise the Board of the further investigation and its results, (2) advise defendant of the steps needed for compliance, or (3) constitute an attempt to obtain future compliance. The Board argues that its position regarding future compliance might have changed if it had been informed that Legum’s further investigation reinforced his original conclusion. In response, the Secretary maintains that the fact finding phase of his investigation ended in the summer of 1973. He urges that Legum’s meeting with Board officials on July 13, 1973 at which the compliance officer stated his conclusions and delineated the steps necessary for compliance, along with his confirmatory telephone call to Wheeler, constituted the “final conference” described in the FOH. According to the Secretary, Legum’s later visits to the school system in 1974 were for the purpose of gathering data for the Regional Solicitor's Office, to whom he had already referred the file. Independently of the above, the defendant relies upon section 81b03, which states that if an employer alters its payroll practices to come into compliance, “ordinarily a complaint for a civil action will not be filed.” According to the FOH, an exception will be made to that policy if, despite current compliance by the employer, future compliance with the Act cannot reasonably be anticipated. At trial, Legum testified that he had no reason to doubt that, after the Board had eliminated the pay differential between categories of custodians, it would remain in compliance with the Act. The Board therefore contends that the filing of this suit was contrary to the Department of Labor’s policy as stated in the FOH. The plaintiff answers that section 81b03 was issued in December, 1955, when the Secretary did not have the power — as he does now — to seek back wages in an action under section 17 of the FLSA. While the Secretary concedes that section 81b03 still appears in the FOH, he denies that it represents the current policy of the Department of Labor. C. Accardi Doctrine The Board bases its defense on the principle that an agency is bound to follow its own rules and regulations. That principle was enunciated by the Supreme Court in United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), and elaborated upon by the Fourth Circuit in United States v. Heffner, 420 F.2d 809 (4th Cir. 1969). In Accardi, an alien, admittedly deportable, brought a habeas corpus action attacking the validity of the denial of his application for suspension of deportation. He claimed that his application to the Board of Immigration Appeals had been prejudged because, prior to the Board’s decision, the Attorney General had included the alien on a confidential list of “unsavory characters” (347 U.S. at 262, 74 S.Ct. 499) whom he wished to deport. The question before the Supreme Court was whether the alleged conduct of the Attorney General deprived the alien of any rights guaranteed him by statute or by regulation. Mr. Justice Clark, writing for a majority of five, first described (at 265-67, 74 S.Ct. at 502-03) certain regulations relevant to the case: Regulations with the force and effect of law supplement the bare bones of [the Immigration and Nationality Act]. The regulations prescribe the procedure to be followed in processing an alien’s application for suspension of deportation. Until the 1952 revision of the regulations, the procedure called for decisions at three separate administrative levels below the Attorney General — hearing officer, Commissioner, and the Board of Immigration Appeals. The Board is appointed by the Attorney General, serves at his pleasure, and operates under regulations providing that: “In considering and determining appeals, the Board of Immigration Appeals shall exercise such discretion and power conferred upon the Attorney General by law as is appropriate and necessary for the disposition of the case. The decision of the Board . . . shall be final except in those cases reviewed by the Attorney General. . . . ” 8 CFR § 90.3(c) (1949). See 8 CFR § 6.1(d)(1) (Rev.1952). * * * * * * The clear import of broad provisions for a final review by the Attorney General himself would be meaningless if the Board were not expected to render a decision in accord with its own collective belief. In unequivocal terms the regulations delegate to the Board discretionary authority as broad as the statute confers on the Attorney General; the scope of the Attorney General’s discretion became the yardstick of the Board’s. And if the word “discretion” means anything in a statutory or administrative grant of power, it means that the recipient must exercise his authority according to his own understanding and conscience. This applies with equal force to the Board and the Attorney General. * * * Mr. Justice Clark concluded that “as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.” Id. at 267, 7* S.Ct. at 503. The Court thus held that if the petitioner could prove his allegations that the Board had failed to exercise its discretion under the regulations, he would be entitled to a new hearing before the Board without the burden of the previous proscription by the Attorney General’s list. The Supreme Court subsequently applied the Accardi doctrine to invalidate discharges of federal employees when safeguards required by agency regulations were not provided. See Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959) (Department of Interior was bound to provide hearing with procedural safeguards pursuant to a departmental order promulgated by the Secretary relating to discharges on national security grounds); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957) (Secretary of State’s dismissal of foreign service officer was contrary to the State Department’s regulations applicable to loyalty discharges and therefore invalid). The Supreme Court has also reversed a conviction for contempt of the House Committee on Un-American Activities on the basis that the committee violated some of its own procedural rules designed for the protection of its witnesses. Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963). See also 3 Mezines, Stein & Gruff, Administrative Law (1977) § 14.02; Note, Violations by Agencies of Their Own Regulations, 87 Harv.L.Rev. 629 (1974). In United States v. Heffner, 420 F.2d 809 (4th Cir. 1969), Judge Winter applied the Accardi doctrine in the context of a criminal prosecution under the Internal Revenue Code. The IRS had issued instructions to its Special Agents regarding interviews with taxpayers during criminal investigations. The agents were instructed to produce thei” credentials during the initial contact with the taxpayer and to inform him that they were investigating the possibility of criminal tax fraud. The agents were also required to advise a taxpayer of his constitutional rights to remain silent and to retain counsel. The agent who interviewed Heffner failed to comply fully with those instructions because he never warned Heffner of the function of special agents nor did he tell Heffner of his right to retain counsel. Heffner was subsequently indicted and convicted on two counts of tax fraud. On appeal, the Fourth Circuit reversed Heffner’s conviction, holding that “[a]n agency of the government must scrupulously observe rules, regulations, or procedures which it has established.” 420 F.2d at 811. In so doing, Judge Winter wrote: It is of no significance that the procedures or instructions which the IRS has established are more generous than the Constitution requires. * * * * * * Nor does it matter that these IRS instructions to Special Agents were not promulgated in something formally labeled a “Regulation” or adopted with strict regard to the Administrative Procedure Act; the Accardi doctrine has a broader sweep. The Supreme Court in Vitar elli v. Seaton, supra, applied it to a Department of the Interior “Order.” The Second Circuit has applied it to the Army’s “Weekly Bulletin 42,” § 4(c) (Oct. 20, 1967). Smith v. Resor, 406 F.2d 141, 143-144 & n. 2, 146 (2 Cir. 1969). The District of Columbia Circuit has applied the doctrine to a FCC “rule” which had not been formally promulgated but which the court found had been established by the FCC’s “usual practice” of including the rule in its orders. Sangamon Valley Television Corp. v. United States, 106 U.S.App.D.C. 30, 269 F.2d 221, 224-225 & nn. 8 & 9 (1959). See also McKay v. Wahlenmaier [96 U.S.App.D.C. 313, 321,] 226 F.2d 35, 43 (D.C.Cir.1955) (alternative holding). The same court has also applied the doctrine to FCC “Standards.” American Broadcasting Co., Inc. v. FCC, 85 U.S.App.D.C. 343, 179 F.2d 437, 442-443 (1949). Finally, in United States ex rel. Brooks v. Clifford, 409 F.2d [700] at 706, this court applied the doctrine to a Department of Defense “Directive.” These cases are consistent with the doctrine’s purpose to prevent the arbitrariness which is inherently characteristic of an agency’s violation of its own procedures. As the Second Circuit said in Hammond v. Lenfest, 398 F.2d [705] at 715, cited with approval in United States ex rel. Brooks v. Clifford, 409 F.2d at 706, departures from an agency’s procedures “cannot be reconciled with the fundamental principle that ours is a government of laws, not men.” The arbitrary character of such a departure is in no way ameliorated by the fact that the ignored procedure was enunciated as an instruction in a “News Release.” The document purports to establish certain procedures which Special Agents are “required” to follow. Undoubtedly, a failure to comply is a rare event within the Intelligence Division — a fact which highlights the apparently inadvertent failure to give the required warnings here. Furthermore, a reversal here would not only have the salutary effect of encouraging IRS agents to observe their own procedures, L. Jaffe, Judicial Control of Administrative Action 369 (1965), cited with approval in Smith v. Resor, 406 F.2d [141] at-146, but would assist the IRS in fulfilling its own important stated purpose in requiring that the warnings be given. For the announcement of the instructions was coupled with the justification that they would insure “uniformity in protecting the Constitutional rights of all persons.” Id. at 812-13. See also United States ex rel. Brooks v. Clifford, 409 F.2d 700, 706 (4th Cir. 1969). The principles of Accardi and Heffner have been reiterated on numerous occasions in this circuit and elsewhere. In some circumstances, agencies have been permitted to depart from their regulations when those regulations were designed to govern internal agency procedures rather than to protect an interest of some other party. See, e. g., American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970). In American Farm Lines, a motor carrier applied to the Interstate Commerce Commission for temporary operating authority. The ICC was permitted by statute to grant such authority when there is an “immediate and urgent need for service which cannot be met by existing carriers” (at 534, 90 S.Ct. at 1290, at which the applicable ICC regulation is quoted). Pursuant to its statutory power, the Commission had promulgated rules requiring detailed information in support of applications for a temporary operating authority. Although the motor carrier in American Farm Lines did not file as detailed a statement as required by the Commission’s rules, the ICC eventually granted the authority. In a suit filed by competing carriers, the Supreme Court upheld the Commission’s decision. In his opinion for five members of the Court, Mr. Justice Douglas focused on a distinction between rules developed for the benefit of an agency and those promulgated for the protection of those who deal with an agency. In that vein, he wrote at 538-39, 90 S.Ct. at 1292: The Commission is entitled to a measure of discretion in administering its own procedural rules in such a manner as it deems necessary to resolve quickly and correctly urgent transportation problems. It is argued that the rules were adopted to confer important procedural benefits upon individuals; in opposition it is said the rules were intended primarily to facilitate the development of relevant information for the Commission’s use in deciding applications for temporary authority. We agree with the Commission that the rules were promulgated for the purpose of providing the “necessary information” for the Commission “to reach an informed and equitable decision” on temporary authority applications. ICC Policy Release of January 23, 1968. The Commission stated that requests for temporary authority would be turned down “if the applications do not adequately comply with [the] . . . rules.” Ibid. (Emphasis added.) The rules were not intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion as in Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012; nor is this a case in which an agency required by rule to exercise independent discretion has failed to do so. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681; Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778. Thus there is no reason to exempt this case from the general principle that “[i]t is always within the discretion of a court or an administrative agency to relax or modify its procedural rules adopted for the orderly transaction of business before it when in a given case the ends of justice require it. The action of either in such a case is not reviewable except upon a showing of substantial prejudice to the complaining party.” NLRB v. Monsanto Chemical Co., [8 Cir.,] 205 F.2d 763, 764. And see NLRB v. Grace Co., [8 Cir.,] 184 F.2d 126, 129; Sun Oil Co. v. FPC, [5 Cir.,] 256 F.2d 233; McKenna v. Seaton, 104 U.S.App.D.C. 50, 259 F.2d 780. Mr. Justice Douglas concluded that “[u]nlike some rules, the present ones are mere aids to the exercise of the agency’s independent discretion.” Id. at 539, 90 S.Ct. at 1293. The Fourth Circuit has also been careful to specify that the principles of Accardi and Heffner apply only (1) when the agency’s regulations are designed to protect the party dealing with the agency and (2) when the agency’s departure from those regulations results in prejudice to that party. Judge Winter stated it succinctly in Mayor and City Council v. Mathews, 562 F.2d 914, 922 n.6: * * * Federal agencies will be held to strict compliance with their own regulations and rules of procedure, when a failure to observe them results in prejudice to a party they were designed to protect. EEOC v. General Electric Co., 532 F.2d 359, 371 and n.37 (4th Cir. 1976); McCourt v. Hampton, 514 F.2d 1365, 1370 (4th Cir. 1975); United States v. Heffner, 420 F.2d 809, 811-12 (4th Cir. 1970). D. Analysis In this case, the Secretary relies on several cases in which the courts have held that the procedures set forth in the Field Operations Handbook and in the Department of Labor’s interpretive bulletins are not binding on the Secretary. In Brennan v. Ace Hardware Corp., 495 F.2d 368 (8th Cir. 1974), the Secretary instituted an investigation of the defendant and eventually filed suit under the Age Discrimination in Employment Act (ADEA). Although the district court found violations of the ADEA, it entered judgment for the employer because the Secretary had failed to comply with the statutory mandate to seek voluntary compliance through informal conciliation prior to bringing suit. The Eighth Circuit affirmed, holding that two personal meetings and one telephone call by the Secretary’s compliance officer did not fulfill the statutory directive. However, in the course of so doing, Judge Gibson stated that the FOH guidelines for compliance officers did not establish rigid standards to which the Secretary would be held. Specifically, Judge Gibson wrote (at 376): * * * Stated in other words, does a violation of the handbook provisions constitute a per se violation of the Act concerning conciliation attempts? We generally agree with the Secretary that “[cjonciliation is notably an assignment to be played by ear” for “it requires flexibility and responsiveness to the attitudes of the other participants and to the developing positions taken by them in conversations.” In this regard, courts would be unwise to hold the Secretary to rigid positions announced in the handbook as guidelines for the compliance officers. Handbooks should be ideally written to allow for far-reaching guidelines to implement enacted provisions. In short, there should be a measure of safety written into the procedures to be followed. Courts would also lack prudence to dictate to the Secretary exactly how to perform his duties, which are expressly within the expertise of the Secretary and his department. Our decision affirms the conclusions reached by the District Court, not because the conciliation officer failed to abide by the rules of the handbook, but rather, we think, the statute itself required at least the performance of the affirmative actions by the Secretary to eliminate discriminatory practices and effect voluntary compliance through conciliation and persuasion that were described herein, but not attempted in this case. The Government correctly argues that the handbooks cannot have the force or effect of regulations that are binding upon the Secretary. These handbooks are very similar to the handbooks in Hawkins v. Agriculture Stabilization and Conservation Committee, 149 F.Supp. 681 (S.D.Tex.1957), in which the court noted that the handbooks were not published in the Federal Register, were not intended by any government officials to have the force and effect of law, and were only guidelines for government personnel. That rationale applies here. In addition, since the handbook was the joint exhibit of the parties, the Government does not argue on appeal that its admission was prejudicial error. Judge Gibson did not discuss or distinguish Accardi and its progeny such as Heffner. He did conclude that the district court did not abuse its discretion in entering judgment for the employer-defendant. Unlike the ADEA, the Equal Pay Act contains no statutory provision requiring the Secretary to seek voluntary compliance before instituting legal action. However, Judge Gibson’s characterization of the FOH voluntary compliance provisions as guidelines rather than enforceable rules appears equally applicable in this case. In Brennan v. Lord & Taylor, Inc., 76 Lab.Cas. ¶ 33,234 (S.D.N.Y.1975), the Secretary brought an action against the defendant for alleged Equal Pay Act violations at three of its department stores. Later the Secretary sought to amend the complaint to add a claim regarding a fourth store. The defendant contended that the Secretary’s failure to comply with the conciliation provisions in his own Interpretive Bulletin with respect to the fourth store precluded him from amending the complaint. Judge Knapp began by stating that, while it was clear that the Secretary had not attempted to conciliate in accordance with his own regulation, 29 C.F.R. § 800.164, it was not clear what weight should be accorded in violation of such agency rules. Since neither the FLSA nor the Equal Pay Act contains any statutory conciliation requirement, the regulation purported to hold the Secretary to a higher standard of conduct than the statute. Judge Knapp also noted that 29 C.F.R. § 800.164 was not promulgated pursuant to any rulemaking authority granted in the FLSA and was therefore an “interpretive” rule without the effect of law. By contrast, he wrote, if the regulation were a “legislative” rule promulgated according to a statutory directive, then there would be no doubt that the Secretary was bound by it. “Given a convincing show of prejudice, the courts have held administrators to their regulations even in instances where the regulation requires of the agency a higher standard of conduct than the enabling statute . . . [citing Accardi, Service, Heffner, and other cases].” Id. at 46,935 (emphasis added; footnote omitted). In cases such as Heffner, “the courts were faced with a litigant who had or would shortly suffer grievously as a result of an administrative agency’s failure to comply with its own established procedures.” Id. at 46,936. In Lord & Taylor, Judge Knapp found that the only conceivable prejudice suffered by the employer was the inconvenience of defending a lawsuit that could perhaps have been avoided. Such “prejudice” was not as severe as a threatened deportation (Accardi) or a criminal conviction (Heffner). Judge Knapp thus allowed the Secretary to amend his complaint to include the fourth store. Under Ace Hardware and Lord & Taylor, the two provisions of the FOH relied upon by the Board in this case do not have the same force of law as “legislative” rules. However, consistent with Heffner and its kin, the Secretary is bound by those provisions if any deviation from them redounds to the prejudice of a party they were designed to protect. The final conference required by section 53b01 of the FOH appears designed at least as much for the benefit of the Secretary as for the benefit of the employer under investigation. At the conference the compliance officer, after informing the employer of the results of the investigation, can attempt to achieve voluntary compliance and thereby relieve the government of the burden of potentially costly litigation. Of course, the employer can also benefit from an opportunity to settle rather than litigate. In any event, although the investigation that led to the institution and prosecution of the within case was not a model in terms of communication with the employer, the concerns of the “final conference” provision were adequately met. Even ignoring Compliance Officer Legum’s contacts with Custer in 1974, the Board’s representatives were informed on several occasions both in person and in writing concerning the results of the 1973 investigation and the steps necessary for compliance. Although Dr. Wheeler did not recall the telephone call at trial, he did not directly or specifically contradict Legum’s testimony that the compliance officer informed the superintendent by telephone that the investigation was over and the case had been referred to the Solicitor’s office. Accordingly, this Court accepts Legum’s testimony with regard thereto. The 1974 investigation, whether characterized as a continuation of the initial fact-finding or as research on behalf of the Solicitor’s Office for this suit, did not alter the compliance officer’s conclusions. Although it would have been the better practice for the compliance officer to have reiterated his conclusions to the superintendent, any additional “final conference” in 1974 would have almost surely been quite perfunctory. Even assuming that a “final conference” should have been held after the 1974 visits, as in Lord & Taylor the defendant herein has suffered no prejudice other perhaps than the expense of litigating a possibly unnecessary lawsuit. Any relief granted by this Court in this suit would impose no greater burden on the Board than voluntary compliance in 1974. The injunction sought by the Secretary would merely order the defendant to comply with the Equal Pay Act and to continue personnel practices which it has already voluntarily adopted. If the Board had come into compliance in 1974, it would have already paid all or most of the back wages sought in this action. Thus, other than expense of defending this suit, the Board can show no substantial prejudice due to the failure to hold an additional “final conference.” It is also to be noted that even if Legum did not comply with the FOH in this case, no substantial “prophylactic” purpose would be served by dismissing this case on that ground. Cf. United States v. Walden, 490 F.2d 372 (4th Cir. 1974). In Walden, the defendants were convicted of violation of federal firearms statutes partially on the basis of evidence given by several enlisted Marines acting as undercover agents. The investigation contravened an “Instruction” issued by the Secretary of the Navy which prohibited the use of Navy and Marine Corps personnel to enforce local, state, and federal laws. On appeal, the defendants sought to have the convictions reversed on the ground that the evidence gathered by the Marines should have been excluded. The Fourth Circuit affirmed the convictions. Judge Winter observed that the Navy regulation was designed to restrict military involvement in civilian law enforcement — a policy that Congress had expressed in the Posse Comitatus Act with respect to other branches of the service. The violation of the regulation was apparently unintentional'. Despite the violation of the regulation, Judge Winter, in the course of holding that a number of considerations counseled against application of the exclusionary rule, wrote (at 377): Even though we sustain defendants’ convictions, we have no reason to fear that others will be sought or obtained in violation of the Instruction now that we have expressed our view of its scope and effect. Nor is there reason to doubt that the military, now that we have declared the effect of the Instruction, will fail to take steps to provide a mechanism to enforce it. For all of these reasons, we therefore decline to reverse defendants’ convictions or to impose the extraordinary remedy of an exclusionary rule at this time. Should there be evidence of widespread or repeated violations in any future case, or ineffectiveness of enforcement by the military, we will consider ourselves free to consider whether adoption of an exclusionary rule is required as a future deterrent. In the case at bar there is no indication that Legum intentionally violated the regulation in question, or that violations, intentional or otherwise, of the “final conference” directive are widespread. The “civil injunction policy” set out in section 81b03 of the FOH states that the government generally will seek an injunction only when an employer has refused voluntary compliance — even when restitution (i. e., back wages) has not been paid. That provision appears more directed toward conservation of government resources than protection or enforcement of any right of employers under investigation. That policy, formulated at a time when the Secretary only had power to seek prospective relief in a section 17 suit, seems antithetical to the remedy of back wages. Adherence to such a policy, while sensible in terms of prospective relief, could effectively diminish the Secretary’s statutory power to seek and insure payment of back wages to employees. In any event, given that section 81b03 of the FOH is not designed, at least primarily, to protect the employer, that it was not a published regulation, and that there was apparently no detrimental reliance by the Board upon the obsolete passage, the Secretary in this instance is not estopped from prosecuting this action due to any deviation from his own regulations. The Court will accordingly proceed to consider the merits of the case. II — MERITS The Equal Pay Act of 1963 prohibits an employer from discriminating “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.” Congress, “in prescribing ‘equal’ work did not require the jobs be identical, but only that they must be substantially equal.” Schultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3rd Cir.) cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970). However, the .Secretary has the burden of proving in a given case that the jobs in question require equal skill, effort, and responsibility, and that they are performed under similar working conditions. See Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 41 L.Ed.2d 1 (1974); see generally Sullivan, The Equal Pay Act of 1963: Making and Breaking a Prima Facie Case, 31 Ark.L.Rev. 544 (1978). Once the Secretary has established a prima facie case of unequal pay for equal work, the burden of proof shifts to the employer to show that the wage differential is based on one of the exceptions provided in the Act: (1) a seniority system; (2) a merit system; (3) a production incentive system; or (4) a differential based on any other factor other than sex. See Corning Glass Works v. Brennan, supra, at 196-97, 94 S.Ct. 2223. The Act provides no explicit criteria as to how the Secretary is to make out his prima facie case. However, in Hodgson v. Fairmont Supply Co., 454 F.2d 490, (4th Cir. 1972), Judge Craven offered the following guidelines: “. . . [J]obs do not entail equal effort [and skill and responsibility], even, though they entail most of the same routine duties, if the more highly paid job involves additional tasks which (1) require extra effort [and skill and responsibility], (2) consume a significant amount of time of all those whose pay differentials are to be justified in terms of them, and (3) are of an economic value commensurate with the pay differential.” 454 F.2d at 493 [quoting from Hodgson v. Brookhaven General Hosp., 436 F.2d 719, 725 (5th Cir. 1970).]. In Brennan v. Prince William Hosp. Corp., 503 F.2d 282 (4th Cir. 1974), Judge Butzner, in the course of reviewing the case law under the Act, concluded that “[h]igher pay is not related to extra duties when one or more of the following circumstances exists: ” (1) “Some male employees receive higher pay without doing the extra work.” (2) “Female employees also perform extra duties of equal skill, effort, and responsibility.” (3) “Qualified female employees are not given the opportunity to do the extra work.” (4) “The supposed extra duties do not in fact exist.” (5) “The extra tasks consume a minimal amount of time and are of peripheral importance.” (6) “Third persons who do the extra task as their primary job are paid less than the male employees in question.” 503 F.2d at 286. See also Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C. 322, 343, 567 F.2d 429, 450 (1976). Regulations issued by the Department of Labor are also of aid in determining the criteria of the equality required by the Act. Those regulations provide in part: Equal Skill: * * * Skill includes consideration of such factors as experience, training, education, and ability. It must be measured in terms of the performance requirements of the job. If an employee must have essentially the same skill in order to perform either of two jobs, the jobs will qualify under the Act as jobs the performance of which requires equal skill, even though the employee in one of the jobs may not exercise the required skill as frequently or during as much of his working time as the employee in the other job. Possession of a skill not needed to meet requirements of the job cannot be considered in making a determination regarding equality of skill. The efficiency of the employee’s performance in the job is not in itself an appropriate factor to consider in evaluating skill. 29 C.F.R. § 800.125. Equal Effort: * * * Effort is concerned with the measurement of the physical or mental exertion needed for the performance of a job. Where jobs are otherwise equal under the Act, and there is no substantial difference in the amount or degree of effort which must be expended in performing the jobs under comparison, the jobs may require equal effort in their performance even though the effort may be exerted in different ways on the two jobs. Differences only in the kind of effort required to be expended in such a situation will not justify wage differentials. 29 C.F.R. § 800.127. Equal Responsibility: * * * Responsibility is concerned with the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation. Differences in the degree of responsibility required in the performance of otherwise equal jobs cover a wide variety of situations. * * * 29 C.F.R. § 800.129. Similar Working Conditions: * * * It should be noted that the statute adopts the flexible standard of similarity as a basis for testing this requirement. In determining whether the requirement is met, a practical judgment is required in the light of whether the differences in working conditions are the kind customarily taken into consideration in setting wage levels. The mere fact that jobs are in different departments of an establishment will not necessarily mean that the jobs are performed under dissimilar working conditions. This may or may not be the case. 29 C.F.R. § 800.131. In this case the defendant Board has conceded that the Custodians I and the Custodians II performed their tasks under similar working conditions. The Board asserts, however, that the jobs were not otherwise equal and that the wage differential was based on a factor other than sex — i. e., a bona fide job classification system. The burden is thus on the Secretary' to show that those jobs involved equal skill, effort, and responsibility. A. Job Descriptions In arguing that the work performed by the two classes of custodians was basically unequal, the Board relies on job descriptions which it initially developed in 1964. The Board asserts that the wage differential was based on those job descriptions, which allegedly constituted a bona fide job classification system. In so doing the Board stresses certain parts of those job descriptions. The nearly all male Custodian I category is described in the job descriptions as follows: CUSTODIAN t Sweep and clean floors . . . collect and dispose of trash, scrap, ashes and garbage . . . maintain lavatories in clean and sanitary condition, clean and polish desks, chairs, etc. Select appropriate equipment and supplies. Wash and clean windows, light fixtures, ventilators, and other items which may necessitate climbing in excess of 15 feet. Use . . . power operated scrubbing machines, vacuum cleaners, buffers, floor scrapers, liquid and paste waxes . Make simple repairs . . . Unload supplies, deliver to proper storage area, and position on shelves or storage racks. Move furniture, office, and shop equipment and other items which might necessitate the lifting of heavy or bulky articles . . . lifting cartons or sacks of food or cafeteria supplies. EDUCATION . ability to follow simple oral or written instructions. INITIATIVE AND INGENUITY requires limited judgment when effecting simple repairs or deviating from schedule . . . PHYSICAL DEMAND . frequent intervals of considerable physical effort to lift and empty containers of trash, move furniture and unload and store supplies. MENTAL OR VISUAL DEMAND Requires normal mental and visual attention to operate power equipment. The largely female Custodian II classification is described: CUSTODIAN II Sweep and clean floors in classrooms, offices and corridors, using brooms, brushes, mops, vacuum cleaners, and similar cleaning aides. Empty wastebaskets and ashtrays. Clean windows which are accessible without necessity to utilize ladders in excess of three feet. Clean and polish desks and other office equipment. Clean & polish brass, bronze, & other metal ornaments, knobs, handles, etc. Maintain lavatories in clean and sanitary condition. Sweep, mop and scrub floors, walls, and partitions. Clean and deodorize wash basins and other lavatory facilities. Refill towel, tissue, soap containers, etc. EDUCATION Requires the ability to follow simple oral or written instructions. EXPERIENCE Prior work experience not required. INITIATIVE AND INGENUITY Requires the ability to understand and follow simple instructions in performing simple cleaning operations, etc., requiring little or no judgment since employee is told exactly what to do. PHYSICAL DEMAND Requires moderate but sustained physical effort while dusting, polishing, and cleaning. WORKING CONDITIONS . somewhat disagreeable working conditions such as the thorough cleaning of lavatories . UNAVOIDABLE HAZARDS Work is non-hazardous . . . little or no opportunity for job related injury. Examination of the job descriptions discloses that Custodians I and II perform essentially the same cleaning functions. They both sweep and clean floors, dispose of trash, clean desks and furniture and maintain lavatories in a clean and sanitary condition. However, the job description assigns the following extra tasks as part of the Custodian I’s duties: (1) use of power-operated floor cleaning machines; (2) disposal of all trash collected by Custodians I and II; (3) unloading and distribution of supplies; (4) movement of heavy articles; (5) snow removal; (6) simple repairs; (7) use of ladders; and (8) boiler maintenance. According to the Board’s answer to plaintiff’s interrogatories, the operation of boilers involves a greater degree of skill and responsibility than any jobs which the Custodian II perform, while all the other enumerated extra tasks the Custodians I perform involve greater effort. Mr. Herbert Mitchell, a job analyst for the Board, testified that he formulated the different custodial classifications in 1964 and that in so doing he gathered information for the job descriptions from a dictionary of occupational titles published by the federal government, from discussions with representatives of local industries and various governmental agencies, and from personal contacts with employees. Mitchell related that he used ten rating factors, including education, experience, ingenuity and initiative, mental and visual attention, and physical exertion — and applied them to the job in question. Each category was then sub-divided into five levels, with a certain point value attached to each. The sum total of all the points was converted into the appropriate pay grade. Mitchell further testified that sex was not a factor. In order for a worker to be rated in the higher custodial category, Mitchell testified, he would have to perform 50 per cent of the enumerated extra duties about 75-80 per cent of his work time. At trial, the Board also introduced the testimony of Donald E. Hoag, Chief of Trades and Labor Occupation Section of the United States Civil Service Commission. Hoag offered the Civil Service’s rating system for custodial workers in comparison with the system used by defendant. Generally, the Civil Service Commission rates jobs in the same manner as the Board, assigning varying point values for different criteria applied to each job. For example, dry mopping would receive a lower rating than machine scrubbing. Hoag emphasized that, in order for any task to affect a job grading, it would generally have to be performed on a regular and recurring basis, probably on every shift the employee works. In addition, no single factor would change the rating of a job unless that factor was very significant. In Corning Glass Works v. Brennan, 417 U.S. 188, 94 S.Ct. 2273, 41 L.Ed.2d 1 (1974), the only Supreme Court decision construing the Equal Pay Act, the Court examined the legislative history of the Act. Mr. Justice Marshall, writing for five members of the Court, noted that Congress intended that wage differentials based upon “bona fide job evaluation plans would be outside the purview of the Act” (id. at 201, 94 S.Ct. at 2231); that the legislative history revealed that the criteria of the Act were patterned on job classification systems used in industry; that such systems generally take into account the four factors of skill, effort, responsibility, and working conditions and apply them to each job; and that each component is then divided into sub-components resulting in a total point value (id. at 199-200, 94 S.Ct. 2223). Only bona fide job classification systems will survive scrutiny under the Equal Pay Act. In Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir.), cert. denied, 398 U.S. 905,90 S.Ct. 1696, 26 L.Ed.2d 64 (1970), Judge Freedman wrote: Differences in job classifications were in general expected to be beyond the coverage of the Equal Pay Act. This was because in the case of genuine job classifications the differences in work necessarily would be substantial and the differences in compensation therefore would be based on the differences in work which justified them. Congress never intended, however, that an artificially created job classification which did not substantially differ from the genuine one could provide an escape for an employer from the operation of the Equal Pay Act. * * * [Footnote omitted.] In other words, job requirements and performances, in actual fact, are controlling, not the mere words of job discriptions. The issue in this case therefore is whether, despite the Board’s job rating plan, the work of the two categories of custodians, as actually performed, was substantially equal. B. Job Performance The parties adduced the testimony of fifty custodial witnesses, thirty-nine by deposition de bene esse and eleven at trial, and also the trial testimony of Heinz Kinzel, an assistant supervisor for the Board, concerning the work actually performed by custodians. 1. Custodians II Despite their division into several shifts, Custodians II were usually assigned to clean classrooms, bathrooms, office and faculty areas. However, some female Custodians II were assigned to clean the gym and health areas or to help clean the cafeteria. The Custodian II’s customary equipment consisted of a a fibreboard barrel on wheels, a scrub bucket on wheels with an attached wringer, a wet mop of either 16 oz. or 24 oz. size, a dust mop either 16 or 24 inches in width, a small pail of water, rags, sponges and cleaning solutions. Custodians II assigned to clean bathrooms carried packages of hand towels and toilet paper. In the course of cleaning their assigned areas, Custodians II dust mopped or spot mopped floors and hallways and vacuumed carpeted areas. Sweeping classrooms involved moving furniture or putting chairs on top of desks in order to clean under them. After cleaning, the furniture had to be realigned. In the library, chairs weighing approximately 10 lbs. each had to be placed on the tables. In the music rooms pianos and band instruments had to be pushed aside or moved. The teachers’ desks, bookshelves, counter-tops and window ledges were dusted with a dust cloth, and chalk board ledges were wiped with a damp rag. Windows in classroom doors were cleaned with an ammonia solution, and in classrooms so equipped, sinks were scoured with a cleanser and a sponge. In the art rooms, paint and clay were cleaned or scraped from the sinks and floors. In carpeted areas and in newer “open space” schools the general routine was the same except that floors were vacuumed instead of dust mopped, with either a small 20 lb. vacuum cleaner or a large commercial model weighing approximately 75 lbs. The Custodian II would pull her wheeled fibreboard barrel behind her along her route and dump into it trash collected from classrooms, offices, and bathrooms. When full, those barrels were rolled to an exit door so that a Custodian I could empty them into a dumpster. However, many Custodians II regularly dumped their own trash. In the office area of each school, which consisted of the principal’s and other administrative offices, guidance offices, the health suite and faculty lounges, Custodians II dusted or wiped furniture and fixtures with a damp rag, emptied ashtrays and wastebaskets, and dust mopped or vacuumed floors, as required. In the bathrooms, toilets and urinals were cleaned and disinfected, sinks scoured, mirrors cleaned, walls spotted, floors wet mopped and paper supplies replenished. Custodians II were supposed to have no duties with regard to boiler operations, snow shoveling or handling cafeteria food supplies or satellite food containers. However, some Custodians II did perform those duties. Although Custodians II were not supposed to replace burned out lights, several did so at various times. Also, although they were not supposed to climb ladders, many Custodians II did so, either to change light bulbs or to perform other duties such as washing walls or Venetian blinds. A few Custodians II used the power scrubbing machines and helped to distribute school or cleaning supplies. Custodians II were not supposed to work alone in a building although many did so at some time. In addition, several of the Custodians II, on occasion, went outside of the school building to make certain that doors and windows were locked. According to supervisor Kinzel, female Custodians II never worked on weekends and were general1 y not left working alone in school buildings. Some Custodians II also performed simple repairs, such as'unstopping sinks and toilets, and fixing broken furniture glides. Custodians I Custodians I, although employed over three different shifts, were also engaged primarily in cleaning duties. They were responsible for cleaning classrooms, libraries, bathrooms, gyms, and hallways. While performing those tasks, they performed the same cleaning functions as the Custodians II. Floors and hallways were dust mopped or spot mopped and carpeted areas were vacuumed. Furniture in classrooms was moved so that the floors could be swept or dry mopped. The teachers’ desks, bookshelves, countertops and window ledges were dusted, and chalk board ledges were wiped. Bathroom floors were wet mopped, usually with a 24 oz. mop (most Custodians II use a 16 oz. wet mop). Toilets and urinals were cleaned and disinfected, sinks scoured, mirrors cleaned, walls spotted and paper supplies replenished. Custodians I use the same size scrub bucket and wringer as the Custodians II. In the office areas, furniture and fixtures were dusted or wiped with a damp cloth. Ashtrays and trash cans were emptied, and floors either dust mopped or vacuumed. According to the Board, the higher wage received by the Custodians I was based on the “operational” type work they did in addition to general cleaning duties. In practice, the performance of those additional tasks varied extensively among the custodians. For example, Custodians I were supposed to dump all trash, including that collected by the Custodians II, into the dumpster. Most Custodians I dumped three or four barrels weighing 20-50 lbs. each every night. However, Custodians I who worked as “cafeteria men” dumped more than ten barrels daily while several Custodians I dumped only one barrel. One custodian stated that he never dumped trash into the dumpster, but usually left it for the next shift. Custodians I were also responsible for all floor care that involved the power scrubber and water pick-up machines. Machine scrubbing involved putting down soapy water with a bucket and mop, operating the 115 lb. scrubber, picking up the water with the pick-up machine rinsing the floor with a bucket of water and a mop, and applying and buffing two coats of wax. Except during summers, when floor care was a major portion of the Custodian I’s duties, machine floor scrubbing involved only several days of work each year. Other than in the summer, the greatest frequency that any witness used the power scrubber was every weekend. Several Custodians I never used the floor care machines other than in the summer. Custodians I were also supposed to change all burned out light bulbs. Except for the lights in the gym, that task involved the use of a 6-8 foot ladder. Light bulbs were changed with varying frequencies, most men doing it several times per week. It was estimated by one witness that light bulb changing took at most a half hour per day. Although Custodians I were supposed to be responsible for making simple repairs, several Custodians I said that they never did so. The repairs that were made by them usually involved such things as plunging toilets and unstopping sinks. Some custodians also changed mop heads or took down doors to repair locks. Custodians I were also purportedly responsible for building security and for boiler safety. Generally, the Custodians I who worked the second or third shift would walk around the outside of the school building once or twice a night to make certain that doors and windows were secure. However, some custodians checked only from the inside to see that doors were locked. According to supervisor Kinzel, only Custodians I would be assigned to work alone in a building or to work on weekends. All Custodians I were trained in boiler operation and safety, and most had some responsibilities with regard to the boilers. However, the extent of their daily responsibilities