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BARBER-COLMAN CO. v. WIRTZ

December 9, 1963

BARBER-COLMAN COMPANY et al., Plaintiffs,
v.
W. Willard WIRTZ, Secretary of Labor, Defendant



The opinion of the court was delivered by: MCGARRAGHY

This is a suit brought by eleven manufacturers of machine tools against the Secretary of Labor for a declaratory judgment that a final determination of the prevailing minimum wages in the machine tools industry made by the Secretary under the Walsh-Healey Public Contracts Act (41 U.S.C. §§ 35-45) is unlawful and void and for a permanent injunction enjoining the Secretary and his agents from enforcing or applying that determination.

On July 16, 1963, the Court made findings of fact and conclusions of law and entered a preliminary injunction staying the determination until final adjudication of the action and provided that the final hearing should be advanced on the calendar.

 Thereafter, on September 27, 1963, the Court granted a motion to intervene filed by Industrial Union Department, AFL-CIO, International Association of Machinists, AFL-CIO, and International Union of Electrical Radio and Machine Workers, AFL-CIO.

 The case subsequently came on for final hearing on plaintiffs' motion for summary judgment, defendant's motion to dismiss and in the alternative for summary judgment, and intervenors' motion for summary judgment.

 The plaintiffs challenge the wage determination by the Secretary upon the ground that Section 1(b) of the Walsh-Healey Act does not authorize different prevailing minimum wages for different occupational classes; further, that in the instant case, the notice and hearing requirements of the Walsh-Healey Act and the Administrative Procedure Act were not complied with; that the plaintiffs were not given a full hearing as required by the Walsh-Healey Act and the Administrative Procedure Act; that the defendant's determination is not supported by the evidence; that the defendant failed to make adequate findings and state sufficient reasons as required by Section 8(b) of the Administrative Procedure Act; and that the defendant's action in making the determination effective seven days after publication in the Federal Register without a finding of good cause did not comply with the requirement of Section 4(c) of the Administrative Procedure Act.

 Section 1(b) of the Walsh-Healey Act (41 U.S.C. § 35) under which the defendant made his determination, provides:

 'That all persons employed by the contractor in the manufacture or furnishing of the materials, supplies, articles, or equipment used in the performance of the contract, will be paid, without subsequent deduction or rebate on any account, not less than the minimum wages as determined by the Secretary of Labor to be the prevailing minimum wages for persons employed on similar work or in the particular or similar industries or groups of industries currently operating in the locality in which the materials, supplies, articles, or equipment are to be manufactured or furnished under said contract.'

 Section 10(c) of the Act makes the Administrative Procedure Act applicable in the administration of Sections 1 to 5 and 7 to 9 of the Act.

 Section 10(b) provides:

 'All wage determinations under section 1(b) of this Act shall be made on the record after opportunity for a hearing. Review of any such wage determination, or of the applicability of any such wage determination, may be had within ninety days after such determination is made in the manner provided in section 10 of the Administrative Procedure Act by any person adversely affected or aggrieved thereby, who shall be deemed to include any manufacturer of, or regular dealer in, materials, supplies, articles or equipment purchased or to be purchased by the Government from any source, who is in any industry to which such wage determination is applicable.'

 In this case, the Secretary, by his final decision (28 F.R. 4898) determined:

 'Minimum Wages. The minimum wage for persons employed in the manufacture or furnishing of products of the machine tools industry, shall be $ 1.65 an hour for those employees engaged in the occupations of blueprint machine operator or draftsman, and $ 1.80 an hour for those employees engaged in other occupations.'

 The Secretary thus determined two different prevailing minimum wages, one in the amount of $ 1.65 an hour for blueprint machine operators or draftsmen, and another of $ 1.80 an hour for those employees engaged in other occupations.

 While various procedural infirmities are alleged by the plaintiffs, it is stated by counsel for the plaintiffs in their memorandum of authorities that this determination of different minimum wages for workers in different occupations in the industry gives rise to most of the dispute in this case.

 By notice dated August 9, 1961 and published in the Federal Register on August 15, 1961 (26 F.R. 7550) the Acting Secretary of Labor gave notice of a hearing by the Labor Department to determine the prevailing minimum wages in the machine tools industry under Section 1 of the Walsh-Healey Act to be held before a hearing examiner on September 6, 1961.

 The notice stated that interested persons might appear at the hearing and submit evidence on specified subjects and issues, including 'what are the prevailing minimum wages in the industry' * * * and 'whether there should be included in any determination for this industry provision for the employment of beginners or probationary workers at wages lower than the prevailing minimum wages and on what terms or limitations such employment should be permitted.'

 The notice further asked for evidence relating to various subjects including 'the minimum wage paid to covered workers (presently and, if possible, on April 15, 1960), and the number of covered workers ...


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