procedures which had been violated were entitled to great deference, the Secretary concluded that no wage determination should be made.
Thus the primary issue is whether or not the language of Section 3 requires the Secretary to proceed to establish a prevailing rate for IBEW under these special circumstances. It is a question of first impression.
The Secretary and TVA take divergent views of the Secretary's statutory responsibilities. TVA contends that the Secretary is without power to intervene until a wage dispute has been fully developed through the "administrative process" set forth by the General Agreement.
The Secretary and IBEW contend that the Secretary can made a determination under Section 3 whenever a matter is referred to him, but dispute whether he may, in his discretion, decline under the circumstances presented here.
TVA's view is clearly erroneous. TVA has no authority to define when a "dispute" exists within the meaning of the statute, as it argues. The collective bargaining agreement is not an exercise of TVA's discretion to establish a binding administrative procedure. The authority to implement the prevailing wage provision lies with the Secretary of Labor and the TVA cannot require the Secretary to make appellants exhaust contractual procedures before addressing a dispute.
The Secretary's power under the statute to determine the prevailing wage whenever a dispute concerning such is referred to him is clear. The statute is far less clear as to whether or not the Secretary must decide every so-called dispute regardless of the underlying circumstances.
Nonetheless, the Court concludes that the Secretary must be allowed some discretion to decline to make a determination when an appeal is improvidently or inappropriately presented. In this case the Secretary's decision not to act on the referral as framed was, under all the circumstances, reasonable and not arbitrary. The historical method for establishing prevailing wage rates under the collective bargaining contract had not been followed. IBEW failed to raise its objections to the wage schedules in a timely manner. Finally, no showing of failure to pay prevailing rates was presented to the Secretary and, indeed, it is difficult to ascertain from what was before the Secretary that a genuine dispute or disparity in wages even existed.
While the Secretary would be subject to Court order requiring him to act on a referral of a substantial dispute if he were to decline in the face of a clear factual showing of failure to pay prevailing wage rates, there is no basis for the Court's intervention here. The Secretary has simply deferred by giving "due regard" to rates secured by collective bargaining as Section 3 instructs. IBEW has ample opportunity to pursue the matter by following the collective bargaining process. All that would be required would be to record its dissent to any further deferral and present concrete proof that other unions are locking its craft into less than the prevailing wage. In short, the Secretary has statutory power to proceed in spite of a collectively bargained rate but is not required to do so absent a factually supported showing that a genuine dispute exists.
An appropriate Order is filed herewith.
Upon consideration of the motions of the parties for summary judgment, and the entire record herein, and for the reasons set forth in the Court's Memorandum filed with this Order, it is hereby
ORDERED that the motion of Tennessee Valley Authority to dismiss for failure to join an indispensible party is denied; and it is further
ORDERED that the motion of defendants to strike the affidavit of Carl Lansden is granted; and it is further
ORDERED that defendants' motion is granted and summary judgment is entered for defendants; and it is further
ORDERED that the motions for summary judgment of plaintiff International Brotherhood of Electrical Workers, AFL-CIO and intervening defendant Tennessee Valley Authority are each denied.