would 'determine the prevailing minimum wages in the machine tools industry under Section 1 of the Walsh-Healey Public Contracts Act.'
The Secretary's determination makes it clear that he did not intend to fix the rate for blueprint machine operators and draftsmen under Section 6 but he intended to assert the power under Section 1(b) to make his determination by occupations.
The first paragraph of the tentative decision which was adopted by the final determination stated that 'A complete record of proceedings held under Sections 1 and 10 of the Walsh-Healey Act' had been certified by the hearing examiner.
Section 10 of the Act is that section which provides that wage determinations under Section 1(b) of the Act shall be made on the record after opportunity for a hearing and also makes Sections 1 to 5 and 7 to 9 of the Act subject to the Administrative Procedure Act which is not so with respect to Section 6.
The memorandum of points and authorities filed by counsel for the defendant in support of defendant's motion for summary judgment, on page 11, in the introduction to the argument, said:
'The Secretary's determination here in question was made pursuant to Section 1(b) of the Walsh-Healey Act.'
This is not merely a matter of form, but is one of substance. Under Section 10 of the Act, establishment of minimum wages under the authority of Section 1 must be made on the record after opportunity for a hearing with right of review pursuant to the terms of the Administrative Procedure Act.
Under the notice of hearing given in this case, the industry was entitled to proceed on the assumption that the hearing would relate to all covered workers and that the evidence was to be presented on that basis. It is clear that the final determination in this case was based upon evidence which did not include all covered workers.
This failure to include blueprint machine operators and draftsmen as covered workers in determining the prevailing minimum wage was prejudicial to the industry and of necessity had the effect of establishing a higher minimum wage than would have resulted had they been included.
The notice of hearing did not involve the determination of wages by occupations but expressly asked 'what are the prevailing minimum wages in the industry?'
Having concluded as a matter of law that the determination by the Secretary is not authorized by Section 1(b) of the Act under which the Secretary acted, it is unnecessary to pass upon the alleged procedural defects complained of by the plaintiffs.
Accordingly, the plaintiffs' motion for summary judgment will be granted and the defendant's and intervenors' motions for summary judgment will be denied.
Counsel for plaintiffs will submit an order in conformity with this ruling.
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