Mitchell v. Covington Mills, Inc.

EDGERTON, Chief Judge.

The Walsh-Healey Public Contracts Act of 1936 provides that any government contract for more than $10,000 shall include a stipulation that all persons employed in manufacturing or furnishing goods under the contract will be paid “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; * * *” 41 U.S.C.A. § 35, 49 Stat. 2036, § 1.

The Secretary of Labor determined in January 1953, after extensive hearings, that the prevailing minimum wage in the Cotton, Silk, and Synthetic Textile Branch of the Textile Industry was $1.00 per hour.

Two separate groups of textile manufacturers brought separate suits against the Secretary, under § 10(b) of the Act, 41 U.S.C.A. § 43a(b), to set aside and enjoin his determination as illegal.1 By permission of the District Court the Textile Workers Union of America, CIO, The National Association of Cotton Manufacturers, Berkshire Fine Spinning Associates, Inc., Fitch-burg Yarn Company and Hathaway Manufacturing Company intervened as defendants in support of the determination. The cases were consolidated for hearing in the District Court. The court awarded summary judgment to all the plaintiffs and permanently enjoined the Secretary from putting the determination into effect as to any of them, on the ground that the Secretary’s authority under the Walsh-Healey Act is limited by the word “locality” and that, therefore, he may not determine a minimum wage on an industry-wide basis. The Secretary and the intervenors appeal.

The policy and purpose of the Act are plain. By statute and regulation, government contracts must go to the lowest responsible bidder. Until the WalshHealey Act was passed, it followed that the government, though it urged industry to maintain adequate wage standards, was often compelled to undermine them by contracting with low-wage concerns. The Walsh-Healey Act sought to support standards by withholding con*508tracts from such concerns. “This Act’s purpose was to impose obligations upon those favored with Government business and to obviate the possibility that any part of our tremendous national expenditures would go to forces tending to depress wages and purchasing power and offending fair social standards of employment. As stated in the Report of the House Committee on the Judiciary * * *) ‘The object of the bill is to require persons having contracts with the Government to conform to cex-tain labor conditions in the performance of the contracts and thus to eliminate the practice under which the Government is compelled to deal with sweat shops.’ ” Perkins v. Lukens Steel Co., 310 U.S. 113, 128, 60 S.Ct. 869, 877, 84 L.Ed. 1108. The Act’s “purpose is to use the leverage of the Government’s immense purchasing power to raise labor standards.” Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 507, 63 S.Ct. 339, 342, 87 L.Ed. 424.

The Secretary’s findings of fact make it clear that in the textile industry, unlike some industries, only an industry-wide minimum will serve this purpose, because the competition is industry-wide. The District Court’s construction of the Act would make it necessary for the Secretary to fix separate minima according to the wages that prevail in each separate textile community. This would freeze the competitive advantage of concerns that operate in low-wage communities and would in effect offer a reward for moving into such communities. Obviously this would defeat the purpose of the Act. It would also make the Act nearly meaningless as applied to a large part of the textile industry, since there is frequently only one textile concern in one neighbox*hood and it necessarily pays-the wages that prevail in its plant.

Because the Walsh-Healey Act uses the-word “locality”, the appellees say that, the plain meaning of the Act forbids the-Secretary to fix an industry-wide minimum. As to the “plain meaning” of an Act of Congress the Supreme Court has said: “When that meaning has led to absurd or futile results * * * this Court has looked beyond the words to the purpose of the act. Frequently, however, even when the plain meaning did not produce absurd results but merely an unreasonable one ‘plainly at variance with the policy of the legislation as a whole’ this Court has followed that purpose, x’ather than the literal words.” United States v. American Trucking Ass’ns, Inc., 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345.

Moreover, it is not true that the plain meaning of the Walsh-Healey Act forbids the Secretary to fix an industry-wide minimum in this case. It is not plain that every minimum wage detei*mination under the Act must be limited to a “locality”. It is not even plain that a large group of States can never be a “locality”.2 The word occurs only in the phrase “currently operating in the locality”.3 The phrase is not plainly intended to qualify any other term than “groups of industries”. It may or may not be intended to qualify “the particular or similar industries”. It can hardly be intended to qualify “similar work”, for “work * * * currently operating in the locality” would be a strange expression. The Secretary found that a dollar an hour is the prevailing minimum on “similar work”. He also found that it is the prevailing minimum in the *509particular industry. In our opinion these findings were fully warranted.

The Secretary’s interpretation of the Act as permitting industry-wide determinations of minimum wages is not new. In this industry and many others, during many years, the Secretary has made many such determinations. See, e. g., 41 C.F.R. Parts 202 et seq. His practice in this respect has repeatedly been called to the attention of committees of Congress. Attempts have been made to write his interpretation expressly into the Act. Attempts have also been made to write it expressly out of the Act. Both have failed. Congress has chosen to leave the interpretation of the Act to the Secretary and the courts. As the Supreme Court said in regard to a different but somewhat related statute, the Fair Labor Standards Act, [29 U.S.C.A. § 201 et seq.,] “We decline to repudiate an administrative interpretation of the Act which Congress refused to repudiate after being repeatedly urged to do so.” Alstate Construction Co. v. Durkin, 345 U.S. 13, 17, 73 S.Ct. 565, 568, 97 L.Ed. 745.

Appellees point out that “purchases of such materials, supplies, articles, or equipment as may usually be bought in the open market” are exempt from the statutory requirement of a stipulation that employees will be paid not less than the prevailing minimum determined by the Secretary. 41 U.S.C.A. § 43, 49 Stat. 2039, § 9. But this exemption has nothing to do with the only matter here in issue, which is the validity of the Secretary’s determination. The Secretary determined nothing with regard to the exemption. He determined that “The minimum wage for persons employed in the manufacturing or furnishing of the products of the Cotton, Silk, and Synthetic Textile Branch of the Textile Industry under contracts subject to the Walsh-Healey Public Contracts Act shall be $1.00 an hour arrived at either on a time or piece-rate basis.” He did not undertake to decide to what contracts the Walsh-Healey Act, and therefore the minimum wage determination, are applicable. The complaints in these suits do not ask the court to decide that question.4

In our opinion the plaintiffs’ other objections to the Secretary’s determination are likewise invalid.

The District Court thought it need not rule on a motion of the Secretary to dismiss the complaints, on jurisdictional grounds, as to 144 of the 158 plaintiffs. But the fact that some of the plaintiffs clearly have standing, under the Fulbright Amendment, to seek review of the Secretary’s determination, confers no standing on others. We think the District Court should decide, in the first instance, which plaintiffs have standing. Cf. B. F. Goodrich Co. v. Federal Trade Commission, 93 U.S.App.D.C. 50, 56, 208 F.2d 829, 834. The case is remanded with instructions to rule on the motion to dismiss, unless the government withdraws it or the plaintiffs concerned consent to it. As against plaintiffs who are not dismissed, judgment should be entered for the defendant.

Reversed and remanded.

. Before its effective date, the determination was stayed as to the plaintiffs and the Secretary was temporarily enjoined from putting it into effect as to them. While that order was in force, any plaintiff who entered into a contract otherwise subject to the determination was required to post a bond to pay the prescribed wage if the determination were upheld. We entered a somewhat similar order, requiring a bond of $2,000, ponding the present appeal.

. In Lukens Steel Co. v. Perkins, 70 App.D.C. 354, 107 F.2d 627, this court expressed a different view. But the Supreme Court reversed the judgment of this court, and affirmed the judgment of the District Court dismissing the complaint, on the ground that the plaintiffs had no standing to sue. Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108. This of course left the opinion, as well as the judgment, of this court without value as a precedent.

. It has been suggested that the words “in the locality” are not necessarily tied to the words “currently operating”, and that “similar work * * * in the locality” is a possible reading. But since it is by no moans the only possible reading it is not the “plain meaning” of the Act.

. It is therefore immaterial that the Fulbright Amendment to the Walsh-Healey Act provides that review of the “applicability” of a minimum wage determination may be had by any “person adversely affected or aggrieved”. 66 Stat. 308, 41 U.S.C.A. § 43a (b).

The Fulbright Amendment also provides that “Notwithstanding the inclusion of any stipulations required by any provision of sections 35-45 of this title in any contract subject to said sections, any interested person shall have the right of judicial review of any legal question which might otherwise be raised, including, but not limited to, wage determinations and the interpretation of the terms ‘locality’, ‘regular dealer’, ‘manufacturer’, and ‘open market’.” 41 U.S.C.A. § 43a (c). That is, a contractor who has been required to include a minimum wage stipulation in a contract need not perform the stipulation if the requirement was not in accordance with law. This is irrelevant here.