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April 9, 1986

WILLIAM E. BROCK, Secretary of Labor, ET AL., Defendants; TENNESSEE VALLEY AUTHORITY, Intervening Defendant

Gerhard A. Gesell, District Judge.

The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, District Judge.

 Plaintiff Union ("IBEW") seeks to compel the Secretary of Labor to determine prevailing wages for its members employed by the Tennessee Valley Authority ("TVA") for the year 1985. It has invoked Section 3 of the Tennessee Valley Authority Act, 16 U.S.C. § 831b.

 The issues have been thoroughly briefed and argued on IBEW's motion for summary judgment and the separate cross-motions for summary judgment filed by the Secretary of Labor and TVA.

 Section 3 of the 1933 TVA Act requires the TVA to pay its employees and contractors not less than the prevailing rates of wages and provides that

In the event that any dispute arises as to what are the prevailing rates of wages, the question shall be referred to the Secretary of Labor for determination, and his decision shall be final. In the determination of such prevailing rate or rates, due regard shall be given to those rates which have been secured through collective agreement by representatives of employers and employees.

 16 U.S.C. § 831b. The statute provides no procedures regarding how the Secretary is to carry out his duty. The legislative history is unenlightening. There are no regulations or procedures established by the Secretary to determine whether a dispute truly exists or how to decide it. The Secretary's wage rate determinations are not subject to judicial review. Cf. Universities Research Association. v. Coutu, 450 U.S. 754, 761 n. 10, 67 L. Ed. 2d 662, 101 S. Ct. 1451 (1981) (referring to same determination under Davis-Bacon Act).

 IBEW is a member of the Tennessee Valley Trades and Labor Council, which is party to a collective bargaining agreement with TVA called the General Agreement. The General Agreement contemplates that prevailing wages for employees represented by some seven different unions, including IBEW, shall be jointly bargained between TVA and representatives of the Council. The Agreement provides that each year the Council or the TVA may call a "preliminary conference." At the preliminary conference a determination is made as to whether a "wage conference" to consider requests for revisions in wage rates is necessary. Any union dissatisfied with the prevailing wage determination following a full wage inquiry and negotiation at the wage conference may refer to the Secretary for decision. (R. Ex. A. p. 12-14; Ex. B, p. 65-67). In the past, the Secretary has accepted referrals made after a wage conference in accordance with the Agreement.

 While an annual review was possible in the present instance, at the 1984 preliminary conference the Council proposed, and TVA agreed, not to hold a wage conference and thereby keep existing wages in effect for the year 1985. IBEW knew of this action but abstained from the Council's unanimous vote and did not dissent or object when the proposal was made to TVA. (R. 298-99; 324-325). It was not until after the TVA had accepted the Council's offer that IBEW indicated a desire to revise some wage schedules. TVA refused to negotiate outside the procedures of the General Agreement.

 IBEW appealed to the Secretary under Section 3 for a determination of the prevailing wage rate for its members. No provision is made in the Agreement recognizing any right to refer to the Secretary under these circumstances; nor is it provided that no such reference can be made. In referring the matter to the Secretary, IBEW admitted it had no data available indicating that the TVA rate was not the prevailing rate and suggested it would take four months to develop information. (R. 329-330). *fn1"

 The Secretary decided that, under the circumstances surrounding the appeal, it would not be appropriate to hear the dispute. The Secretary was careful to emphasize that he was not statutorily obligated to recognize the provisions of the General Agreement. But in light of the fact that the procedures had historically been adhered to, that IBEW had agreed to be bound by the agreement, that IBEW did not vote against deferral of the wage conference or voice its opposition when proposed to TVA, and that the collective bargaining 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. *fn2" 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 ...

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