§ C. Acheson, U.S. Atty., Charles T. Duncan, Joseph M. Hannon, Arnold T. Aikens, Asst. U.S. Attys., Sylvia S. Ellison, James B. Leist, U.S. Dept. of Labor, Washington, D.C., for defendant. ,BALDOR ELECTRIC COMPANY et al., Plaintiffs, v. W. Willard WIRTZ, Secretary of Labor, Defendant" />

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BALDOR ELEC. CO. v. WIRTZ

February 28, 1964

BALDOR ELECTRIC COMPANY et al., Plaintiffs,
v.
W. Willard WIRTZ, Secretary of Labor, Defendant



The opinion of the court was delivered by: MATTHEWS

This is an action for review of an administrative determination by the Secretary of Labor under the Walsh-Healey Public Contracts Act (49 Stat. 2036-2039, 41 U.S.C. §§ 35-45) of prevailing minimum wages in the motors and generators industry (27 F.R. 1016 3). The case previously was before the Court on plaintiffs' motion for preliminary injunction, defendant's motion to dismiss and in the alternative for summary judgment, and plaintiffs' cross-motion for summary judgment. These motions were decided by an Order entered on April 5, 1963 which granted summary judgment in favor of plaintiffs and set aside defendant's minimum wage determination for the motors and generators industry.

Defendant appealed to the Court of Appeals for this Circuit, and the Appellate Court stayed this Court's order pending final disposition of the appeal.

 The Court of Appeals has rendered a decision on the merits, but has remanded to this Court with directions 'to resolve any remaining factual issues with respect to the standing to sue of the various plaintiffs-appellees' in accordance with the test for standing enunciated in Part II of their opinion; 'to supplement the record by incorporating therein its (this Court's) findings and conclusions on the subject of standing'; and, if one or more of the plaintiffs is found to have standing to sue, to 'enjoin the effectiveness of the Secretary's determination with respect to the entire industry' (W. Willard Wirtz, Appellant v. Baldor Electric Company, et al., Appellees, opinion and Order of December 31, 1963 in No. 17,770 at page 32).

 Pursuant to the remand on the question of the standing to sue of the plaintiffs, an informal conference with counsel for the parties was held at the Court's request on January 17, 1964 to ascertain the parties' views with respect to appropriate disposition of this matter. Defendant's counsel stated at the January 17, 1964 conference that the Department of Labor had been unable to formulate its position at that time, and the conference thereupon was terminated with directions to the parties to file such papers as they deemed appropriate.

 Plaintiffs filed a motion on January 20, 1964 for entry of proposed findings and conclusions and a proposed order with respect to the standing to sue of the plaintiffs-appellees, which motion was set for hearing on January 31, 1964. On that day defendant served and filed a memorandum in opposition thereto. At the hearing on January 31, 1964 plaintiffs were directed to submit new proposed findings and conclusions and order with respect to standing to sue which plaintiffs did on Feb. 6, 1964. Thereafter on February 11 and 13, 1964, defendant filed additional opposition to said proposed findings, conclusions and order.

 This Court now makes the following:

 FINDINGS OF FACT

 1. All eleven of the plaintiffs-appellees are manufacturers of electric motors and generators and are engaged in the industry to which defendant's minimum wage determination applies (Complaint, par. 3, Joint Appendix, page 4; Supplemental Statement of Material Facts, par. 10, Joint Appendix, page 59).

 2. Agencies of the United States annually purchase motors and generators in total dollar amounts exceeding ninety million dollars ($ 90,000,000) under contracts subject to the requirements of the Walsh-Healey Public Contracts Act (Complaint, par. 8, Joint Appendix, page 6). All eleven of the plaintiffs-appellees intend and expect to submit bids for sale of motors and generators to agencies of the United States, and all desire to be eligible to submit bids for contracts subject to the requirements of the Walsh-Healey Public Contracts Act (Complaint, par. 16, Joint Appendix, page 9).

 3. Defendant's minimum wage determination requires manufacturers, including plaintiffs-appellees, who enter into contracts subject to the requirements of the Walsh-Healey Public Contracts Act for motors and generators to pay not less than $ 1,48 per hour to all persons engaged in the manufacture or furnishing of fractional horsepower motors and generators and not less than $ 1,73 per hour to all persons engaged in the manufacture or furnishing of non-fractional horsepower motors and generators (Minimum Wage Determination for the Motors and Generators Industry, 41 C.F.R. § 50-2 02.29, Joint Appendix, pages 15-16; Complaint, par. 7, Joint Appendix, page 5).

 4. Plaintiffs-appellees Bodine Electric Company, Lamb Electric Company, a Division of Ametek, Inc. and Peerless Electric Division of H. K. Porter Company, Inc. pay minimum wages equal to or greater than those prescribed by the Secretary of Labor in his determination for this industry (Complaint, par. 20, Joint Appendix, page 10). The only allegation of injury to these companies is the contention that the general level of wages in the industry will rise as a result of the Secretary's minimum wage determination, and that they will be forced to compete for labor in a higher cost market (Complaint, par. 20, Joint Appendix, pages 10-11).

 5. Plaintiffs-appellees Century Electric Company, The Imperial Electric Company and the Marathon Electric Manufacturing Corporation allege in the complaint that they pay minimum wages less than those found by the Secretary to be the prevailing minimums and that they would be required to increase the minimum wages they pay in order to comply with the Secretary's determination (Complaint, pars. 17, 19, Joint Appendix, pages 9-10). These three plaintiffs-appellees have not, however, submitted any affidavits or other facts in support of their allegations, despite the defendant's jurisdictional challenge in his motion to dismiss and in the alternative for summary judgment filed February 1, 1963.

 6. Plaintiff-appellee Baldor Electric Company has established that: it manufactures and sells both fractional and non-fractional horsepower motors and generators; its employees are subject to the Secretary's minimum wages for both branches of the industry since the same employees produce both fractional and non-fractional horsepower items; at one of its manufacturing plants the average wage paid to production employees is less than the non-fractional minimum of $ 1,73 per hour, and a large number of these employees are paid less than the fractional minimum of $ 1,48 per hour; and at its other plant some employees are paid less than the non-fractional minimum wage determined by defendant (Ballman Affidavit, par. 3, Joint Appendix, pages 30-32). In recent years Baldor has sought to obtain government contracts for motors and generators (Ballman Affidavit, par. 6, Joint Appendix, page 31). However, if the company were required to comply with the Secretary's minimum wage determination, Baldor would have to increase wages paid to a majority of employees at its Fort Smith, Arkansas plant dnt to some of the employees at its St. Louis plant, which would result in a serious threat to the company's economic survival (Ballman Affidavit, par. 4, Joint Appendix, page 31).

 7. Plaintiff-appellee Holtzer-Cabot Corporation manufactures and sells fractional and non-fractional horsepower motors and generators (Frost Affidavit, par. 2, Joint Appendix, page 37). The same employees at Holtzer-Cabot's only plant are engaged in producing both fractional and non-fractional horsepower items and are subject to the Secretary's minimum wage determinations for both branches of the industry; the company employs blueprint machine operators and nameplate typists who are paid less than the Secretary's minimum wage determination for the fractional horsepower branch and a number of direct production employees who are paid less than the minimum wage for the non-fractional branch of the industry (Frost Affidavit, par. 3, Joint Appendix, page 37). If Holtzer-Cabot were required to comply with the minimum wage rates specified by defendant, it would have to pay increased wages of as much as twenty-three (23) cents per hour to meet the Secretary's minimum for the fractional horsepower branch and fifty (50) cents per hour to meet the Secretary's minimum for the non-fractional horsepower branch; these increases probably would result in an upward revision of rates for most other employees, since increases in minimum wage rates affect the entire wage structure of this company (Frost Affidavit, par. 5, Joint Appendix, page 38). Compliance with the minimum determined by the Secretary for the non-fractional branch of the industry would nullify the wage rates specified for four of the labor grades for production employees contained in the company's labor contract (Frost ...


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