Petition — Carpenters 46 County Conference Board v. Construction Industry Stabilization Committee

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In the Supreme Court

OF THE

United States

OcToBeR TERM, 1975

No. 45-1021]

CARPENTERS 46 CouNTY CONFERENCE Boarp: Pi

Drivers, Bripck, Wane & Dookw Beiupers, Loo

Union No. 34 oF THe Unrrep Broraerieon o

CARPENTERS AND JOINERS or Aweniea, ARFL-C ©:

A. J. Menron: JoHN Warrs: and dows Rene ro,

Prtitioncrs

VS,

The Coxvstrececion Pxepcsrrey Srapinezyvrte

Coxvirree: and oun Po Dien -

id y prod le pits. f

PETITION FOR A WRIT OF CERTIORARI

to the Temporary Emergency Court of Appeals

Viceror J. Vax Rorne.

Davin A. Rosen ren,

Van Bourg. Auten. Weesnes

Witniawsd Rogen, ;

45 Polk

Atlorneuws for P?, filieapeay i

’

PLRNAU-WALSH PRINTING CO.- 562 MISSION STREET -. SAN FRANCISCO, CA (4105

Subject Index

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ERP PP PO TUT COTE T ET TPE VC ET CTE

Reasons why the writ should be granted .................

1. The issues presented to the court below are not moot

where petitioners continue to litigate their right to the

lost wages in collateral proceedings ................

2. The courts have been given jurisdiction to decide is-

sues arising under the Economie Stabilization Act,

notwithstanding its expiration, except for enforcement

EE n'a hdc Gan oN ddsdeede cee ehsacesesinnednsee

3. The Temporary Emergency Court of Appeals should

decide the issues presented to preserve the jurisdiction

Oe Oe ME. ons cance evckeccncnssebesiavts

ER I RG IB PROS OTN EE Oe. Pree

Table of Authorities Cited

Cases Pages

Associated General Contractors of California v. Carpenters

46 County Conference Board, No. C-73-2060 LHB ...... 6

Bray v. United States, ....... US. ....., 46 L.Ed.2d 215 (1975) 7

Carroll v. President & Commissioners, 393 U.S. 175, 178

NA EI COTE RS SLR EES) CR Err re ere 6

Powell v. MeCormack, 395 U.S. 486 (1969) ..........06.. 6

Super Tire Engineering Co. v. MeCorkle, 416 U.S. 115, 117

CRED 0.66 cvnceendacndnnnecscnsnddecdesesendeetessens 6

United States v. California, 504 F.2d 750 (T.E.C.A. 1974),

~ — —— § Se; 8 Peerrrrrr rrr rrr rt Tt 7

Statutes

Economie Stabilization Act of 1970, 84 Stat. 799, as

amended, 85 Stat. 743 and 87 Stat. 27 ...........0005. 2

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In the Supreme Court

OF THE

United States

OcToBEerR TERM, 1975

No.

CARPENTERS 46 CouNTY CONFERENCE Boarp; PILE

Drivers, Bripnge, WHaArF & Dock Burpers, LocaL

Union No. 34 oF THE UNiTED BROTHERHOOD OF

CARPENTERS AND JOINERS oF AMERICA, AF'L-CIO;

A. J. MELTON; JOHN Warts; and JOHN REBEIRO,

Petitioners,

Vs.

THE ConstRucTION INDUSTRY STABILIZATION

CoMMITTEE; and JonHn T. DuNLop,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

to the Temporary Emergency Court of Appeals

Petitioners, Carpenters 46 County Conference

Board, Pile Drivers, Bridge, Wharf & Dock Builders,

Local Union No. 34 of the United Brotherhood of

Carpenters and Joiners of America, AFL-CIO, A. J.

Melton, John Watts, and John Rebeiro, respectfully

pray that a writ of certiorari issue to review the

judgment and opinion of the Temporary Emergency

Court of Appeals.

OPINIONS BELOW

The opinion of the Temporary Emergency Court of

Appeals is unreported as vet. The opinion is printed

as Appendix D. The order dismissing the case en-

tered by the District Court is unreported, and appears

as Appendix C.

JURISDICTION

The judgment of the Temporary Emergency Court

of Appeals was entered on December 22, 1975. Juris-

diction of this Court is invoked pursuant to Section

211(g¢) of the Economic Stabilization Act of 1970, &4

Stat. 799, as amended, 85 Stat. 743 and 87 Stat. 27.

QUESTIONS PRESENTED

1. Whether the expiration of the Economic Stabi-

lization Act renders a case moot where the present

right to unpaid wages depends upon the validity of

governmental action challenged in the suit.

2. Whether the lower courts retain jurisdiction of

a civil action brought to challenge administrative

determinations made pursuant to the Economic Stabi-

lization Act, notwithstanding the subsequent expira-

tion of its enforcement provisions.

STATUTE INVOLVED

Section 218 of the Economie Stabilizetion Act (here-

inafter “the Act’):

rT ee tee

“The authority to issue and enforce orders and

regulations under this title expires at midnight

April 30, 1974, but such expiration shall not affect

any civil action or pending proceeding, civil or

criminal, not finally determined on such date, nor

any action or proceeding based upon any act

committed prior to May 1, 1974.”

PRELIMINARY STATEMENT

Pursuant to the authority of the Economie Stabi-

lization Act of 1970, 84 Stat. 799, as amended, The

Construction Industry Stabilization Committee dis-

allowed all but 15¢ of a 65¢ wage increase negotiated

in the Carpenters collective bargaining agreement

covering Northern California. The effect of this de-

cision was to reduce the hourly wages which con-

tractors paid to carpenter employees in Northern

California by 50¢ per hour from June 15, 1973 through

April 30, 1974.

After exhausting administrative appeals, the col-

lective bargaining agents for the carpenters in North-

ern California filed suit on October 25, 1973 in the

District Court for the Northern District of California

to invalidate this action of The Construction Industry

Stabilization Committee. After extensive discovery,

the district court entered an “Order Staying Decision

of Cross-Motions for Summary Judgment and Cer-

tifying Constitutional Issue to Temporary Emergency

Court of Appeals” on May 5, 1975. The opinion of

the district court is reprinted as Appendix A, and is

reported at 393 F.Supp. 480. In that decision, the

district court certified one substantial constitutional

issue to the Temporary Emergency Court of Appeals

and stayed the remaining issues. See § 211(c) of the

Act.

On July 31, 1975, the Temporary Emergency Court

of Appeals rendered an opinion declaring the issue

certified by the district court moot because of the

expiration of the enforcement powers of the Act. 'This

decision is reported at 522 F.2d 637 (1975), and is

reprinted as Appendix B. The Temporary Emergency

Court of Appeals remanded, and directed the district

court to dismiss the entire action as moot.

In response to the direction of the Temporary

Emergency Court of Appeals, the district court dis-

missed the entire case, including all those issues not

previously certified. See Appendix C.

Pursuant to Section 211(b) of the Act, petitioners

again appealed to the Temporary Emergency Court

of Appeals, which affirmed the dismissal, relying upon

its previous decision. The judgment and opinion of

the court is attached as Appendix D.

During the course of the litigation in which peti-

tioners sought a judicial declaration that the actions

of The Construction Industry Stabilization Commit-

tee were invalid, petitioners continually sought to

obtain the wage payments from the contractors.

Grievances with the building contractors have heen

filed under the collective bargaining agreements.’

Those grievances are being processed against the

1See, e.g., the affidavit of John Rebeiro, App. F, pp. 66-67.

various contractors, who retained the wage increments

which they had agreed to pay in the collective bar-

gaining agreements.

Furthermore, on October 20, 1975, a major con-

tracting party to the collective bargaining agreements

filed a complaint in the United States District Court

for the Northern District of California, seeking

among other things declaratory relief that “the claims

of the labor organizations to retroactive wage in-

creases during the period that said wage increases

were limited by The Construction Industry Stabiliza-

tion Committee were null and void.? Petitioner filed

a counterclaim seeking payment of the wages. This

suit is presently pending before the district court.

REASONS WHY THE WRIT SHOULD BE GRANTED

1. The issues presented to the court below are not moot where

petitioners continue to litigate their right to the lost wages

in collateral proceedings.

The labor unions, whose members lost wage incre-

ments in 1973 and 1974, are processing grievances

against the contractors who withheld those moneys.

An arbitrator, and eventually the courts,*® will be

ealled upon to determine whether The Construction

Industry Stabilization Committee properly invalidated

the wage increments in 1973, and whether the wages

should now be paid retroactively.

2See App. E for pertinent excerpts.

SReview of an arbitrator’s award would be asserted under the

jurisdiction of 29 U.S.C. § 185.

In addition, one of the major contracting parties

has itself filed suit in the district court seeking a

*adiciai declaration as to the right of the carpenters

io the wages. The outcome of this suit depends upon

the legitimacy of the actions of The Construction In-

dustry Stabilization Committee in 1973 and 1974.‘

Petitioners have counterclaimed, seeking payment of

the wages by way of damages.

This Court has continually recognized that where

a collateral issue or secondary claim exists, the pri-

mary action continues to be a case or controversy.

See Powell v. McCormack, 395 U.S. 486 (1969) ; Super

Tire Engineering Co. v. MeCorkle, 416 U.S. 115, 117

(1974); and Carroll v. President & Commissioners,

393 U.S. 175, 178 (1968). For that reason, the action

is not moot.

2. The courts have been given jurisdiction to decide issues

arising under the Economic Stabilization Act, notwithstand-

ing its expiration, except for enforcement actions.

The Economic Stabilization Act itself preserves this

action from mootness, notwithstanding the expiration

of the Act:

“ .. such expiration shall not affect any action

or pending proceeding, civil or criminal, not fi-

nally determined on such date, nor any action or

proceeding based upon any act committed prior

to May 1, 1974.” Section 218.

‘There is also pending before the District Court for the North-

ern District a suit for injunction and damages arising out of a

strike in late 1973 by carpenters to force contractors to pay the

wages. The damage claims have not been resolved, and contempt

proceedings initiated during the strike have not been dismissed.

See Associated General Contractors of California v. Carpenters

46 County Conference Board, No. C-73-2060 LHB.

This case is plainly a civil action commenced prior to

the expiration of the Act, and is based upon acts

committed prior to May 1, 1974. Cf. United States v.

California, 504 F.2d 750 (T.E.C.A. 1974), cert. denied,

er US. ...... (1975) (enforcement proceeding initiated

after expiration of the Act is moot).° The lower court’s

jurisdiction is unaffected by the expiration of the

Act’s enforcement provisions, and the lower court

should decide the issues presented.

3. The Temporary Emergency Court of Appeals should decide

the issues presented to preserve the jurisdiction granted in

the Act.

The suit filed by the contracting parties, the coun-

terclaim filed therein, and the grievances will ulti-

mately determine the validity of the action of The

Construction Industry Stabilization Committee. Since

the pending suit is brought pursuant to 29 U.S.C.

§ 185 (see App. E, p. 58), and any suit to review an

arbitrator’s award would assert jurisdiction under

the same statute, the Court of Appeals for the Ninth

Circuit and not the Temporary Emergency Court of

Appeals would review these decisions upon appeal.

This is in direct contravention of the specific adjudi-

catory powers granted to the Temporary Emergency

Court of Appeals to review such matters. See See-

tions 211(b) and (c) of the Act. Cf. Bray v. United

States, ......... US. ......, 46 L.Ed. 2d 215 (1975).

Moreover, any constitutional issues raised in those

district court actions would be preempted by the

5The government asserted in its petition for certiorari in the

California case that the issues involved were not moot. In the

instant ease. the government’s suggestion of mootness is a total

reversal of this position.

Temporary Emergency Court of Appeals’ exclusive

jurisdiction to decide constitutional issues. See Sec-

tion 211(g) of the Act.

Judicial economy and the need to prevent an im-

proper court from passing on these issues require

that the Temporary Emergency Court of Appeals hear

and decide this case.

CONCLUSION

Petitioners assert that carpenter employees in Cali-

fornia are still owed hundreds of thousands of dollars

of wage increments unlawfully limited by The Con-

struction Industry Stabilization Committee. These

demands are the subject of grievance procedures and

a lawsuit. A judicial determination as to the validity

of the actions of The Construction Industry Stabhiliza-

tion Committee under the auspices of the Economic

Stabilization Act is necessary. There is a continuing

case or controversy, and this petition for writ of

certiorari should be granted.

Dated, San Francisco, California,

January 15, 1976.

Respectfully submitted,

Victor J. VAN Bovra,

Davip A. Rosenrerp,

Van Bourne, ALLEN, WEINBERG,

WitiiaMs & Rocer,

Attorneys for Petitioners.

(Appendices Follow)

APPENDIX.

Appendix A

United States District Court

for the Northern District of California

No. C-73-1912 AJZ

Carpenters 46 County Conference Board, }

et al.

Plaintiffs,

vs. ,

The Construction Industry Stabilization

Committee, et al.,

Defendants. :

[Filed May 6, 1975]

ORDER STAYING DECISION

OF CROSS-MOTIONS FOR SUMMARY

JUDGMENT AND CERTIFYING

CONSTITUTIONAL ISSUE

TO TEMPORARY EMERGENCY

COURT OF APPEALS

This case involves a broad-based attack on the

Nixon Administration’s Economic Stabilization Pro-

gram of 1971-74. Plaintiffs are the Carpenters 46

County Conference Board, Local 34 of the United

Brotherhood of Carpenters,’ and three officials of

1The parties agree that, for purposes of this motion, the Car-

penters 46 County Board should be considered the representative

plaintiff and that Local 34’s claims should stand or fall with the

Board’s claims. Hence, the court shall hereinafter discuss only

these labor organizations, which represent workers in

the construction industry in Northern California. De-

fendants are the Construction Industry Stabilization

Committee (CISC) and its chairman, John 'T, Dun-

lop. The issue is whether CISC properly disapproved

all but 15 cents of the 65 cent wage increase plain-

tiffs were scheduled, under a collective bargaining

agreement, to receive beginning in June, 1973. Both

plaintiffs and defendants have moved for summary

judgment. In order to resolve plaintiffs’ multiplicity

of attacks on CISC’s action, the court must first out-

line the development of the Economie Stabilization

Program and review the history of the dispute be-

tween plaintiffs and defendants over the June, 1973,

wage increases,

Il. The Regulatory Background

The regulatory framework of the Program was

complicated and fluid, Its source was the Eeonomic

Stabilization Act of 1970, 84 Stat. 799. Section 202

of the Act empowered the President to issue “such

orders and regulations as he may deem appropriate

to stabilize prices, rents, wages and salaries.” Section

203 permitted the President to delegate performance

of any funetion under the Act to such officers as he

deemed appropriate. From this simple and broad be-

ginning, the Act has grown by amendment as Con-

gress has attempted to delimit the power delegated

to the President. Thus, on May 18, 1971, it added

—_——- —— -—— _——

the development of the Board’s dispute with CISC, and all refer-

ences to “plaintiffs” refer to the Board and its members and

officials, some of whom are named plaintiffs in this lawsuit.

PO IT OE Pe

section 202(b) which stated that the President’s

power to issue orders as to any given industry should

not be exercised

unless the President determines .. . that prices

or wages in that industry or segment of the econ-

omy have increased at a rate which is grossly

disproportionate to the rate at which prices or

wages have increased in the economy generally.

85 Stat. 38.

On March 31, 1971, the President made his first

use of power conferred upon him by the Act in

Executive Order 11588, which recited that “wages and

prices in the construction industry have tended in

recent years to increase at a rate greater than that

for the economy as a whole.” In response to this

problem the Order created CISC and, under it, vari-

ous Craft Boards, to review proposed increases in

wages in the construction industry. CISC was to con-

sist of ten members, four from labor, four from man-

agement and two “public” members. Section 6 of the

Order established various criteria that were to be

applied to such proposed increases, looking to mat-

ters like increases in productivity and the traditional

hierarchy of wages among different crafts. The Order

required that all proposed increases be approved by

CISC before being put into effect. CISC soon went

into operation and began to review wage increases

proposed in collective bargaining agreements sub-

mitted for its approval.

On August 15, 1971, the President inaugurated his

economy-wide Economic Stabilization Program with

Executive Order 11615. Section 1 of this Order stab-

ilized (froze) prices, rents, wages and salaries for

90 days, thereby beginning what was _ popularly

known as Phase I of the Program. The Order estab-

lished the Cost of Living Council (CLC), section 2,

delegated to the CLC all powers conferred upon the

President by the Act, section 3, and permitted the

CLC to redelegate these powers. Section 4(b).

Two months later the President announced Execu-

tive Order 11627, beginning what came to be known

as Phase II of the Program. Section 1 of the Order

stated that it was to be substituted for Executive

Order 11615. Sections 2 and 3 continued the CLC in

existence and continued the earlier delegation of

power to CLC. Section 7 established the Pay Board,

which was to perform functions delegated to it by

the CLC with respect to stabilizing wages. Section

14(a) continued CISC in existence but section 14(¢)

revoked section 6 of Executive Order 11588, which

had set out the criteria that CISC should apply to

proposed wage increases. That same day the CLC

issued its Order No. 3, 36 Fed. Reg. 20202, which

delegated the Pay Board authority to establish eri-

teria, standards and procedures for stabilization of

wages. On November 13, 1971, the Pay Board issued

its Order No, 2, 36 Fed. Reg. 21875, which author-

ized CISC to administer the Board’s policies in the

building and construetion industry, but provided that

the Board would preseribe the form of procedures to

he utilized by CISC,

On December 22, the President signed the Eeo-

nomic Stabilization Act Amendments of 1971, 85 Stat.

743, which greatly expanded the Act’s provisions. See-

tion 203 was amended to require that Presidential

Orders include a statement of reasons and that the

President issue standards that would make admin-

istration of the program “generally fair and equi-

table” by taking into account changes in productivity

and to provide for reductions in prices and rents to

correspond to wage declines. Section 203(c) was

added to limit the President’s power to limit wage

inereases scheduled to take place in the future in

several ways. Section 207 was added to the Act estab-

lishing certain procedural requirements for agency

action under the Act, but exempting the agencies

from most of the requirements of the Administrative

Procedure Act. Section 211 was added to the Act to

provide for judicial review of agency action under it.

It reposed exclusive jurisdiction of cases arising

under the Act in United States district courts and

created a Temporary Emergency Court of Appeals

(TECA) to hear appeals from decisions of district

courts. Section 211(d)(1) limited the authority of a

reviewing court to determine whether a challenged

order issued under the Act “is in exeess of the

agency’s authority, or is based upon findings which

are not supported by substantial evidence.” Addition-

ally, under sections 211(¢) and 211(g), the dis-

trict courts were prohibited from enjoining an order

issued by an agency on constitutional grounds and

required to certify all substantial constitutional chal-

lenges to an order to the TECA. On January 26,

1972, the President issued Executive Order 11640,

which was designed to reflect the changes made by

the Amendments and substituted for Order 11627.

Section 1 continued in existence the Pay Board and

the CLC. Section 3 continued the delegation of au-

thority to CLC; section 4(b) permitted the CLC to

continue to redelegate authority. Section 15 continued

CISC in existence and continued the revocation of

section 6 of the Order 11588 in effect.

On January 28, the Pay Board and CISC jointly

announced the issuance of an amended Pay Board

Order No. 2, which was published in the Federal

the authority of Exeeutive Order 11640, it again au-

thorized the CISC to administer its regulations with

respect to collective bargaining agreements in the con-

struction industry. Additionally, it set forth certain

“Substantive Policies” that CISC should apply to

such agreements. Paragraph 2 of these policies stated

that no agreed wage increase should be entitled to

automatic approval. Paragraph 3 provided that

fringe benefits should he considered along with other

benefits (such as wages) in determining the propriety

of the proposed economie adjustments. Paragraph 4

set guidelines for application of exceptions in indi-

vidual eases. Paragraph 5 provided in part that

Deferred increases which would cause unstabi-

lizing effects in a locality or among localities

(i.e, whieh would prove unreasonably incon-

sistent with the application of such standards to

a locality or a branch of the industry), should

he promptly reviewed and agreement sought on

adjustments at a local level or the adjustment

spread over a sufficiently long period to reduce

unstabilizing effects and to achieve settlements

at reasonable amounts.

On January 11, 1973, the President issued Execu-

tive Order 11695 which continued his Economic Sta-

bilization Program into Phase III. Section 1

continued the CLC in existence and section 2 dele-

gated all the President’s powers to the Chairman of

the CLC. Section 3(a) continued in effect all regula-

tions issued under any of the previous Orders and in

effect at that time. Section 5 continued CISC as an

agency of the United States. Section 10 abolished the

Pay Board. The following day the CLC issued its

Order No. 16, delegating to the CISC authority to

administer its policies in the construction industry

and arguably expanding the CISC’s role in the Pro-

gram. See Associated Gen. Contractors of America

v. Laborers’ Int’l Union, 476 F.2d 1388, 1401

(T.E.C.A. 1973). On February 26, 1973, the CISC

issued as a press release its 1973 Policies, which were

quite similar to those set out in the amended Pay

Board Order No. 2 published in the Federal Register

the previous April.? In particular, paragraph 2(a)

provided that the CISC could approve economic ad-

justments on a case-by-case basis

[w]here the parties have made a careful review

of the economic provisions of their collective bar-

gaining agreement and have provided for an eco-

nomic tradeoff between increase in wage rates

or benefits and other provisions of the agreement

2The 1972 Policies were not published in the Federal Register

until November 29, 1973, long after plaintiffs’ hearing in this

case had been held. See 38 Fed. Reg. 33030.

in view of the impact of the agreement on costs

of construction.

Additionally, paragraph 5 provided that

[d]eferred increases will continue to be reviewed

by the Committee, and those which would cause

unstabilizing effects on other negotiations in the

industry may be disallowed by the Committee as

in the past.

On April 30, 1973, Congress enacted, and the Presi-

dent signed, the Economic Stabilization Act Amend-

ments of 1973. These amendments extended the

Program for another year, to April 30, 1974, and,

among other things, added a proviso to section 207(b)

of the Act requiring that agencies created under the

Act

shall issue no order which has the effect of re-

ducing wages, or salaries in effect, or proposed

to be put into effect, in an appropriate employ-

ment unit unless such order is made on the record

after opportunity for a hearing. Not less than

thirty days after issuance of such an order, a

statement of explanation shall be directed to the

affected parties and made available to the public.

Such statement shall include a fair explanation

of the reasons why the existing wage or salary,

or proposed wage or salary adjustment, does not

meet the requirements of or the standards estab-

lished by the regulations preseribed by that

agency.

Congress made no further amendments to the Act.“

—— eee eee

‘Congress did not extend the Program beyond April 30, 1974.

In Executive Order 11781, issued May 6, 1974, the President eon-

tinued the CLC in effeet “to consider matters properly before it

It is against this statutory and regulatory back-

ground that the court must evaluate the CISC’s re-

fusal to allow the full 65 cent wage increase sched-

uled for June, 1973, to take effect.

Il. The Facts of This Case

In mid-1971 the existing collective bargaining agree-

ment between plaintiffs and various employers’ asso-

ciations expired and plaintiffs went on strike to obtain

the various items they wanted in their new contract.

They entered into an agreement with employer asso-

ciations that was to extend from June 15, 1971, to

June 14, 1974. This agreement provided for various

increases in wages and in fringe benefits at intervals

during its three year lifetime, culminating in a 25

cents increase in fringe benefits on June 1, 1973, and

a 65 cent increase in wages on June 16, 1971, bring-

ing plaintiffs’ wage package to $10.90 per hour. They

submitted the agreement to the National Carpenters’

Craft Board, which approved it and sent it along to

the CISC. CISC in turn approved the agreement on

September 3, 1971, subject to the wage freeze in

Executive Order 11615.

that relate to wages paid for work performed prior to May 1,

1974, and prices charged prior to May 1, 1974.” Section 8 of that

Order continued CISC in existence and provided that it should

“eontinue to perform such functions with respect to the stabili-

zation of wages and salaries in the construction industry as the

Chairman of the Council may delegate to it, for purposes of ae-

complishing the orderly conclusion of the activities of the CISC

through June 30, 1974.” In Exeeutive Order 11788, issued June

30, 1974, the President provided for the orderly termination of

the Program. Section 7(4) abolished CISC, leaving it the longest-

lived organization created under the Economic Stabilization Pro-

gram.

On November 12, 1971, CISC gave notice that no

further increases could go into effect even though it

had previously approved them, relying on Executive

Order 11627 and Pay Board Order No. 2. On Janu-

ary 17, 1972, CISC approved a 5 cent increase sched-

uled for the previous January 1. On March 30, May

5, June 28 and July 27 it approved other increases

in wages or fringe benefits as provided in the agree-

ment.

On February 20, 1973, CISC sent a letter to the

National Carpenters’ Craft Board indicating that the

increases scheduled for June, 1973, “appear to be in

excess of 1973 guidelines.” Plaintiffs claim they never

received this letter, but they clearly became aware of

its existence for, on March 9, John Rebeiro, Chair-

man of the Carpenters’ 46 County Board and a plaintiff

here, wrote a letter to Secretary of Labor Brennan

about it. In the letter Rebeiro suggested that he had

two possible courses of action open to him should the

CISC not approve the increases: a class action law-

suit or a general strike. On May 11 there was a meet-

ing between representatives of plaintiffs and CISC

to discuss the proposed increases. On June 14, CISC

voted on whether to approve the full increases. All

the labor members voted in favor of the full increases.

All the other members voted against such approval.

On June 18, the CISC sent letters to the Craft Board

approving the full inerease in fringe benefits, but

approving only 15 cents of the proposed 65 cent wage

increase. This letter was sent to plaintiffs, and stated

in part that “[t]he parties are advised to renegotiate

the agreement and submit it to the Craft Board for

review and resubmission to the Committee.” A cover

letter advised plaintiffs that, under section 207(b) of

the Act, they could request further review, including

a hearing.

On June 22, plaintiffs requested a hearing. On

July 12 and 13 their counsel requested various pieces

of information about the hearing procedure by letter

and demanded a complete explanation of the CISC’s

decision not to approve the full wage increase. On

August 7, Joe Russell, the Executive Director of the

CISC, responded by letter, answering counsel’s ques-

tions and providing a “brief statement” of the CISC’s

reasons for preliminarily disapproving the full in-

crease. On August 17, a hearing was held before

Stuart Rothman, a public member of the CISC, at

which plaintiffs were represented by counsel and pre-

sented evidence to justify the wage increase. During

September there was an interchange of letters bhe-

tween counsel for plaintiffs and the staff of the CISC

in which counsel for plaintiffs chose to stand on the

‘Russell explained CISC’s views as follows:

A brief statement of the Committee’s rationale ean be

given. It appeared to the Committee that to allow economic

adjustments of 90 cents for the June 1973 contract year

would cause unstabilizing effect [sic] on other negotiations

in the industry. This preliminary finding was made follow-

ing an analysis of the historic relationship of this craft to

other crafts in the same city and to other Carpenters in

California. In addition, the Committee considered the re-

lationship of the Carpenters to other crafts in areas of

Northern California outside of the Bay Area. The economic

adjustments then had to be viewed in the context of the

economic adjustments approved by the Committee over the

last two years, other negotiated economie adjustments and

Committee recomendations in Northern California and across

the state, and the impact of the economic adjustments in this

agreement on negotiations across the state in the next few

years.

record of the hearing rather than submit a formal

written statement of his position.

On October 25, plaintiffs undertook one of the

courses of action suggested by Mr. Rebeiro in his let-

ter to Secretary Brennan. They filed their complaint

in this case, seeking to represent a class composed of

“all district councils and local unions who engage in

negotiating and enforcing collective bargaining agree-

ments for and on behalf of all carpenters.” They

prayed an injunction restraining CISC from limiting

the wage increase they received. On November 12,

various carpenters’ unions, including plaintiffs here,

apparently decided to pursue the alternative course

of action Rebeiro suggested in his letter and began

to picket their employers in an attempt to force them

to disobey CISC and pay the entire amount of the

negotiated wage increase, The employers filed two

lawsuits in response, Swinerton & Walberg Co. v.

Bay Counties Dist. Council of Carpenters, No.

(1-73-2056 LHB, and Associated General Contractors

v. Carpenters 46 County Board, No, C-73-2060 LT.

On November 16, Judge Wollenberg of this court

issued a temporary restraining order against such

picketing and on December 7, Judge Burke prelimi-

narily enjoined it. When plaintiffs refused to obey

the preliminary injunction contempt proceedings

were begun, but plaintiffs eventually complied with

the court’s order. These cases remain open.

In October, CISC reconsidered the proposed wage

increase, but took no action. On December 4, plain-

tiffs telegrammed CISC that, except for the claims

[a RoI *

2 a

they make in this lawsuit, they would accept a wage

increase of 25 cents, 10 cents more than the CISC

had indicated it would approve. On December 6, the

CISC voted on the proposed increase, Again, all labor

members favored the full increase, while all other

members opposed it. On December 7, the CISC is-

sued its order approving a wage increase of only 15

cents.

On January 4, 1974, CISC issued its explanation

of the December 7 order in a statement authored by

its new chairman, Daniel Quinn Mills. The statement

explained that CISC had considered the claimed cost-

saving factors relied upon by plaintiffs—looser work

rule restrictions, permission to employers to choose

up to 25 percent of their work force from any source

and to subcontract installation of foundations. It had

balanced against these features certain cost-increasing

provisions—a decrease in the work week, increases

in subsistence pay and in pay for general foremen

and the requirement that employers provide parking.

Since it had already taken these cost-savings compo-

nents of the agreement into account when it approved

earlier increases provided in the contract, it con-

eluded that, under paragraph 2(a) of its 1973 Poli-

cies, the further increases were not justified by the

cost-saving elements of the agreements.

Instead, CISC found that to allow an inerease of

more than 15 cents “would cause unstabilizing effects

on other negotiations in the industry,” apparently

relying on paragraph 5 of its 1973 Policies. Tn sup-

port of this conclusion it explained that the wage

structure in the construction industry in California

had become distorted in the late 1960s and early

1970s. This distortion was the result of “leapfrog-

ging,” a process whereby unions would compete with

one another for ever larger increases in wages.’ To

counteract this tendency, CISC had undertaken, in

evaluating each proposed increase in California, to

reestablish the historic relationship between crafts

in the construction industry in Northern California

and between the carpenters of Northern California

and Southern California. Feeling that the increase

ii the differential between the Operating Engineers

and the carpenters from 51 cents in 1960 to $1.09 in

1972 was unjustified, for example, CISC had ap-

proved a package increase of only 30 cents for the

Operating Engineers in 1973, compared with the 40

cent package it had approved for the carpenters.

Similarly, .it attempted to redress the gap between

the carpenters of Southern California and Northern

California, which had grown from 6 cents in 1960 to

$1.11 in 1972, by approving a package increase of 55

eont> fur the Southern California carpenters, 15 cents

more than that allowed their Northern California

brethren.

Finally, CISC rejected plaintiffs’ contention that

the growth in the cost of living justified the full in-

5Mills explained that the “leapfrogging” problem was particu-

larly troublesome in the construction industry because that in-

dustry has an unusually large number of unions. While there

may be only one union representing most of the workers in

another industry, for example the auto industry, in construction

the multiplicity of unions breeds inter-union competition that is

not so prevalent in other industries.

OTR MLE ETO NEG E OTR EIETEIN IE AN ere

crease in wages. In fact, it noted, the Consumer

Price Index for the San Francisco Bay Area had

increased only 40 percent during the period 1960-73,

while the wage and fringe package for Northern Cali-

fornia carpenters had increased 155 percent. Simi-

larly, from June, 1970, to June, 1973, the Consumer

Price Index had increased only 13 percent, compared

with an increase of 25 percent in the carpenters’

wage package.

After the adverse decision, plaintiffs appealed and

were granted a further review. They enlisted the

support of various employer groups, which joined in

their request that the wage increase be permitted to

go up to 25 cents. On February 19 the CISC denied

the appeal on the ground that plaintiffs had pre-

sented no basis for changing the earlier decision.

Again the labor members of the CISC all lined up

in support of the full increase while all the manage-

ment and public members voted to affirm the earlier

decision.

Ill. Plaintiffs’ Contentions

As Part I of this order indicates, the regulatory

framework within which CISC operated was exceed-

ingly complex and fluid. Since Congress, the Presi-

dent and the agencies he created were writing on a

nearly clean slate,® the courts had some difficulty de-

‘During World War IT and the Korean War Congress had

enacted similar emergeney wage and price controls. See, e.g., Yakus

v. United States, 321 U.S. 414 (1944). While the courts therefore

had some precedents to rely upon, the different programs required

substantially different treatment, and the courts had to tailor their

rules of review to the contours of the given program,

veloping meaningful standards for review of action

by agencies created under the Act. While Congress

amended the Act to provide greater protections for

those aggrieved by actions of agencies created under

it, it never repealed section 211(d)(1) and the courts,

consequently, have a very limited scope of review.

Plaintiffs have sought to invoke this review by rais-

ing a variety of contentions about the propriety of

CISC’s handling of their contract, and of its busi-

ness in general. Plaintiffs’ contentions fall generally

into three categories: (1) claims that the CISC was

without authority to act on the June, 1973, increases ;

(2) claims that the procedure it used to review these

increases was deficient under its regulations, the Act

or the Constitution; (3) claims that the substance of

its review was inadequate. The slate is no longer

clean, however; before discussing plaintiffs’ specific

contentions, the court adverts to three themes that

the TECA has indicated should control review of

agency action under the Act.

First, the courts should take into account the “gar-

gantuan task” the Congress and the President set for

these regulatory agencies in assessing their compliance

with their mandate. University of Southern Califor-

nia v. Cost of Living Council, 472 F.2d 1065, 1072

(T.F.CLA. 1972), cert. denied, 410 U.S. 928 (1973).

The first court to confront a broad-hased constitu-

tional attack on the Program observed that “fi]n

other contexts when agencies have been given enor-

mous regulatory tasks, the courts have interpreted

the underlying statutes to take account of what is

feasible.” Amalgamated Meat Cutters & Butcher

Workers v. Connally, 337 F. Supp. 737, 743 (D.D.C.

1971) (three-judge court). The TECA has recognized

that “the task of filling in the interstices of the

skeletal outline provided by the Order, and of lit-

erally injecting life into the program, was consigned

to the CLC.” University of Southern California v.

Cost of Living Couneil, supra, 472 F.2d at 1067. Given

the enormity of the task, “complete success, or com-

plete fairness, is neither possible nor required in this

kind of administrative action.” Pacific Coast Meat

Jobbers Ass’n v. Cost of Living Council, 481 F.2d

1388, 1391 (T.E.C.A. 1973). The administrators are

only asked to do what is humanly possible.

Second, “fi]t is a well settled principle that the

courts place great weight on the interpretation given

to statutes and regulations by those agencies charged

with the responsibility of administering them.” [/n7-

versity of Southern California v. Cost of Living

Council, supra, 472 F.2d at 1068-69. Expanding on

this point in Pacific Coast Meat Jobbers Ass’n 1. Cost

of Living Council, supra, 481 F.2d at 1392, the TECA

quoted Udall v. Tallman, 380 U.S. 1, 16 (1965) :

When faced with a problem of statutory con-

struction, this Court shows great deference to the

interpretation given the statute by the officers

or agency charged with its administration. .. .

“Particularly is this respect due when the ad-

ministrative practice at stake ‘involves a con-

temporaneous construction of a statute by the

inen Charged with the responsibility of setting

its machinery in motion, of making the parts

work efficiently and smoothly while they are vet

untried and new.”

See also United States v. Lieb, 462 F.2d 1161, 1166

(T.E.C.A. 1972). Given the limited scope of the

court’s review, it appears that it need only ask that

the interpretation given a statute or regulation by the

administrative agency be reasonable. See University

of Southern California v. Cost of Living Council,

supra, 476 F.2d at 1068; ef. Udall v. Tallman, supra,

380 U.S. at 16-18.

Third, the court is to give great deference to the

agency’s evaluation of the factual material before it.

United States v. Electrical Workers Local 11, 475

F.2d 1204, 1209 (T.E.C.A. 1973). The TECA has

therefere recognized that “[t]his type of judgment,

involving the balancing of inter-related factors, is

peculiarly within the expertise with which CISC is

presumptively endewed.” Plumbers Local 519 v. Con-

struction Indus. Stabilization Comm., 479 F.2d 1052,

1056 (T.F.C.A. 1973).

Appreciating the enormity of the task thrust upon

the administrators by the Program, giving appropri-

ate deference to their interpretation of the Act and

the Executive Orders and regulations promulgated

under it and to their superior ability to weigh the

facts and equities in individual cases, the court pro-

ceeds to consider plaintiffs’ specific contentions.

A. CISC’s Authority to Act in 1973

Plaintiffs do net attempt a frontal attack on the

delegation of authority to CISC which was traced in

Part T of this order and appears undeniable. In-

stead, they argue that it was never validly constituted,

SO Ae

RSC) SE Se ERE

that having once approved the 1971-74 collective bar-

gaining agreement it could not reconsider the wage

increases provided therein, and that its renegotiation

recommendation was beyond its authority.

1. CISC was validly constituted.

Plaintiffs contend briefly that CISC never really

came into existence because “[t]here is simply no in-

dication that [its members] were legitimately ap-

pointed.” The court is tunable to agree that summary

judgment should be granted to plaintiffs on this

ground. The existence of the CISC has been repeat-

edly affirmed. See Electrical Workers Local 11 v.

Boldt, 481 F.2d 1392, 1394 (T.E.C.A. 1973) ; Plumbers

Union Local 519 v. Construction Indus. Stabilization

Comm., supra, 479 F.2d at 1054. Neither the Act nor

any Executive Order sets out any precise scenario

for appointments. CISC obviously functioned, had

meetings and was recognized to have a full comple-

ment of members and alternate members, whose names

could be obtained from its offices. It is not important

what mode the President or the Secretary of Labor

employed to appoint these individuals. Plaintiffs’ ar-

gument is frivolous.

9. The CISC had authority to reconsider this agree-

ment in 1973.

Plaintiffs energetically contend that since CISC’s

September 3, 1971, approval of their agreement was

“final” CISC was without authority to review that

approval at a later date. Defendants argue that the

approval was not “final” because it was made subject

to the provisions of Executive Order 11615, But that

Order merely imposed a wage freeze for 90 days

starting August 15, 1971, as plaintiffs point out, and

that freeze could have no bearing on wage increases

scheduled for 1973. The court accepts plaintiffs’ char-

acterization of the September 3, 1971, approval as

final. It does not follow, however that CISC was

without authority to reconsider that approval.

Plaintiffs’ position relies basically upon their in-

terpretation of the various Executive Orders and

regulations issued under the Act. Thus, they point

out that Executive Orders 11640 and 11695 ratified

acts done under Executive Order 11615, which was

in effect when the approval issued (but which did not

endow CISC with authority to approve wage in-

creases). They point also to certain regulations they

claim indicate that CISC approval was required only

as to future applications, e.g., 29 C.F.R. § 501.15(b) ;

paragraph 6 of the 1973 Policies. They argue that

Executive Order 11588 did not contemplate piecemeal

review, and that sound policy should not countenance

it. Finally, they urge that such reconsideration 1s

beyond the power of the CISC under Exeeutive Order

11627, but they do not explain why that Order so

limited the CISC’s power.

The problem with these arguments is that they dis-

regard the deference this court must accord the

agency’s interpretation of the Act and the Orders.

CISC’s interpretation of Executive Order 11627 was

that it required reconsideration of all agreements

et POR 6 Tes oe

previously approved. As Dr. Mills explained in his

January 4, 1974, explanation of reasons for the limi-

tation of plaintiffs’ wage increase,

the Committee commenced the review of all cco-

nomic adjustments scheduled to take effeet on or

after August 16, 1971, contained in those agree-

ments which had previously been approved

(roughly 800 agreements), and contained in col-

lective bargaining agreements negotiated prior to

the establishment of CISC on March 29, 1971

(roughly 3,000 agreements). Tt was generally the

practice of the Committee to examine these eco-

nomic adjustments one increment at a time, as

they became due.

This interpretation of Executive Order 11627 was

reasonable. Section 1 of that Order had frozen all

wage increases until approved, implying that future

approval was necessary. That Order had revoked sec-

tion 6 of Executive Order 11588, which had provided

the standards CISC had applied in approving the

agreement in September, 1971, implying that a new

review should be done under the new standards. The

decision to review agreements increase-by-increase is

reasonable. The Order required approval of wage

increases, not contracts. See Plumbers Union Local

11 v. Construction Indus. Stabilization Comm., supra,

479 F.2d at 1054. This method of approval would per-

mit CISC to take account of ongoing developments in

fashioning a sensible policy while approval of a long-

term agreement as a whole could work 2 hardship on

the parties to the agreement if CISC’s prediction

about the success of the Program proved imaccurate.

Most important, CTSC’s interpretation permitted

equal across-the-board treatment for all segments of

the economy. It was the only agency created under

the Act before the President issued Executive Order

11615 so the only agreements that might be exempted

from consideration under the economy-wide program

inaugurated in Executive Order 11627 were those in

the construction industry. Given the President’s ob-

viously paramount concern about inflation in that

industry, it would be unreasonable for CISC to have

concluded that he ~eant to tie its hands as to any

agreement it had approved while at the same time

revoking the criteria under which it had issued that

approval.

3. CISC acted within its authority in recommending

renegotiation.

In its June 18, 1973, letter to the National Carpen-

ters’ Craft Board, CISC stated that “[t]he parties

are advised to renegotiate the agreement and submit

it to the Craft Board for review and resubmission to

the Committee.” Finding this to be a “requirement”

that they renegotiate the agreement, plaintiffs contend

that it is “totally illegal.” They rely upon Associated

General Contractors of America v. Laborers’ Int’l

Union, 476 F.2d 1388 (T.F.C.A. 1973), for this con-

clusion. The argument has no merit. It is not clear

that CISC’s recommendation was a “requirement.”

The letter to the Craft Board was forwarded to plain-

tiffs with a cover letter that informed them they could

seek further review of their case. Thus, it appears

that CISC was merely suggesting a course of action

the parties might consider as an alternative to seeking

further review of the contract as written.

More important, the Associated General Contractors

ease does not support their position and is easily dis-

tinguishable. CISC had refused to approve the agree-

ment there even though it contained a wage package

increase of less than 5.5 percent. It had several ob-

jections to the agreement that were not related to the

amount of the wages and fringe benefits provided

therein. It felt, for example, that the pension fund

and fringe benefits paid into it were too small, that

the bargaining area was too small and that the inter-

national union, rather than the local, should do the

bargaining. See 476 F.2d at 1400 n.18. The trial

court upheld CISC’s action on the theory that “both

the Craft Board and CISC are authorized to dis-

approve agreements and make recommendations with

regard to bargaining subjects which go weil beyond

the limited area of wages.” Gordon v. Laborers’ Int’l

Union, 351 F. Supp. 824, 885 (W.D. Okla. 1972).

The TECA reversed. It noted that the case pre-

sented “unique questions” because it involved CISC

disapproval of an agreement partly on the ground

that the economic adjustments were not large enough.

476 F.2d at 1390. It objected to the trial court’s ap-

proach to the case because “[i]ts reasoning in up-

holding the action of the Board and CISC was so

broadly worded as to render these agencies virtual

hargaining agents for the parties,” id. at 1393, an

approach that raised the danger of a jurisdictional

conflict with the Natiunal Labor Relations Board. I¢.

at 1397 n.8. Instead, the TECA concluded that CISC

had been granted no authority to disapprove a con-

tract on grounds unrelated to guarding against infla-

tionary increases in wages and fringe benefits;’ it

could not “parlay its advisory and assistance func-

tions virtually into bargaining authority.” fd. at 1397.

The court recognized, however, that CISC was em-

powered to disapprove wage packages that were in

excess of its guidelines and that such a determination

was entitled to great deference. Id. at 1400.

Here CISC’s disapproval of a portion of the June

16, 1973, wage increase was premised solely upon its

objection that the proposed wage package was too

large and would have unsettling effects in the indus-

try if approved. It made no attempt to meddle with

other provisions of the agreement; certainly its ob-

jection was not that the increases should be larger.

Thus, the great deference the court must apply gen-

erally to CISC’s interpretation of its authority must

be applied in this instance, and its action must he

upheld because it seems an eminently reasonable in-

terpretation of its rules. It had authority to dis-

approve increases it determined were excessive, but

this authority was rather inflexible so it suggested to

the parties that they propose some other arrangement

that would meet its standards. It made no attempt to

7Specifieally, the court concluded that

neither the President nor the Pay Board delegated to the agen-

cies involved here any such general power to establish eriteria

different than those specified and hereinabove [dealing with

fringe benefits that should be considered part of the wage

package] discussed for disapproving pay increases within the

standard of 5.5%.

476 F.2d at 1399.

tell the parties what changes to make, but only kept

the door open for reconsideration based upon a re-

negotiated agreement. It would have been unreason-

able for CISC to refuse to reconsider a renegotiated

agreement; its indication that it was receptive to such

renegotiation was not in excess of its authority.

B. The Procedure CISC Employed.

Plaintiffs contend that CISC violated its own regu-

‘ations, the Administrative Procedure Act, the Eeo-

nomic Stabilization Act and the due process clause

of the Fifth Amendment to the Constitution in deny-

ing them their full wage increase.

1. CISC complied with its own requlations.

Plaintiffs make two arguments directed toward

showing that the procedure CISC employed violated

its own rules and the requirements of the Executive

Orders. First, they point to various provis‘ons in the

Orders and the regulations indicating that CISC and

the Craft Boards were to act promptly upon appli-

eations for approval. See Executive Order 11695

§5(a); Executive Order 11640 §15(a); Executive

Order 11627 § 14(a); Executive Order 11588 $6 3(a) ;

4(a); 29 C.F.R. §§ 2001.41(a); 2001.42(b). They

argue additionally that these provisions should be in-

terpreted strictly to achieve the purposes of the Act

because deferred disapproval of wage increases can

only have modest effects on the inflationary spiral,

although it can hardly be said that approving wage

increases is a more salutary means of containing in-

flation. The court is somewhat at sea in determining

how to interpret the general admonitions to prompt-

ness upon which plaintiffs rely. It feels that the

controlling principle on such matters is the proper re-

gard it should have for the enormity of the task

CISC was required to undertake. It had to review

thousands of agreements. Like plaintiffs’ many of

them probably had several increases at intervals, thus

multiplying the number of reviews CISC had to do.

In view of this workload, the court cannot accept

plaintiffs’ argument that there is some “absolute re-

quirement” of prompt review that operates to exempt

from review all those agreements CISC was unable

to evaluate immediately. To accept plaintiffs’ view

would require haste in an effort that required de-

liberation.

Plaintiffs also rely upon CISC’s rule that it would

“not review wage and salary increases in a collective

bargaining agreement if a work stoppage is in pree-

ress that involves wages and salaries contained in that

agreement.” 6 C.F.R. § 505.27(¢c). They claim CISC

violated this rule, relying on their picketing activi-

ties in November, 1973, during the time CISC was

considering their application for review of its initial

determination that the scheduled wage increase was

excessive. The problem with this argument is that

it perverts the regulation, which was obviously in-

tended to reduce the meddlesome effect of CISC re-

view on relations of parties to a collective bargaining

agreement when they were engaged in economic con-

flict with one another. In this case the true adversary

against which the strikers were acting was not the

employers, but CISC itself. Their only dispute with

the employers was that they were obeying CISC (and

the President) by withholding that portion of the

negotiated increase that CISC had not approved.

Surely CISC did not intend by this regulation to

encourage aroused employees to use economic weapons

against it, so it was reasonable for it to interpret the

regulations not to apply to this situation. Moreover,

after November 16, 1973, any strikers were acting in

violation of either a temporary restraining order is-

sued by Judge Wollenberg or a preliminary injune-

tion issued by Judge Burke. Since CISC’s action

took place in December, it appears that they rely upon

their own contumacious disregard for the orders of

this court to justify overturning CISC’s decision. The

court cannot accept this position and rejects their

argument.

2. CISC complied with the Administrative Proce-

dure Act.

Plaintiffs assert that they should be awarded sum-

mary judgment because CISC had violated the “ab-

solute rule-making requirement of section 4(c) of

the Administrative Procedure Act (APA), 5 U.S.C.

§ 553(d), that a substantive rule be published 30 days

prior to its effective date.* They point to six instances

‘Defendants also urge that the court reject plaintiffs’ arguments

under 5 U.S.C. § 553(b), but the court is unaware that plaintiffs

presently rely upon those provisions in any of their challenges to

CISC’s action. It notes, however, that defendants’ arguments on

this score are persuasive. Additionally, it notes that the June 18,

1973, letter adequately informed plaintiffs of the reasons for CISC’s

determination that the full wage increase was unjustified as re-

quired by 5 U.S.C. 553(e). See Plumbers Local 519 v. Construc-

tion Indus. Stabilization Comm., supra, 479 F.2d at 1055-56.

in which they claim this requirement was not ful-

filled: (1) CLC Order No. 16; (2) CLC Order No.

20; (3) CLC Order No. 213; (4) Pay Board Order

No. 2; (5) Pay Board Order No. 2, as amended; (6)

CISC’s 1973 Guidelines. The core problem with this

argument is that none of these promulgations is sub-

ject to the requirements of section 4(c).

The rule-making requirements of the APA apply

only to substantive rules; the party complaining of

an agency’s failure to adhere to these requirements

must show that the promulgations involved impose

rights or obligations on some party. Plaintiffs have

made no attempt to demonstrate how any of these

items imposed rights or obligations on them. Texaco,

Inc. v. Federal Power Comm’n, 412 F.2d 740, 744

(1D).C. Cir. 1969). The first four were merely delega-

tions of authority and cannot in any way be said to

have imposed obligations on plaintiffs or anyone else.

They merely authorized various agencies created by

the President to administer the controls Congress and

the President had themselves decided to impose on

the economy. Arguably the last two items—which in-

elude CISC’s “Substantive Policies”—have some of

the attributes of substantive rules. But they imposed

no obligations upon anyone. The requirement of ap-

proval by CISC or the Pay Board or the CLC (which

delegated their tasks to CISC) was ultimately

grounded upon the Executive Orders, whose non-

publication is not challenged here.® The policies them-

®Attempts to impose the provisions of the APA on Executive

Orders raise diffieult problems diseussed in DeRieur v. The Five

Smiths. Inc., 499 F.2d 1321, 1331-32 (T.E.C.A. 1974), cert. denied,

95 S. Ct. 176 (Oct. 21, 1974).

selves merely indicate the general guidelines to which

CISC would look in administering that obligation.

The situation here is therefore distinguishable from

that which confronted the TECA in DeRieux v. The

Five Smiths, Inc., 499 F.2d 1321 (1964), cert. denied,

419 U.S. 896 (1974). Appellants there challenged

Executive Order 11615 and the regulations promul-

gated thereunder imposing a 90-day freeze on wages

and prices. This Order clearly imposed upon many

people obligations that had not existed theretofore,

and the Government had to justify its failure to pub-

lish them thirty days before their effective date. See

id. at 1331-34.’ No such situation is presented in this

ease and the publication requirement is inapplicable.

Moreover, even were the “Substantive Policies” char-

10Defendants rely on DeRicus for the proposition that deferred

effectiveness is not required in this case under 5 U.S.C. § 553(d)

(3), which exempts a rule from the requirement “for good cause

shown and published with the rule.” In DeRieur the court indi-

cated that in some extraordinary situations it would determine

for itself whether good cause existed and, if it concluded there was

good cause, it would exempt the regulation from the publication

requirement although there was no statement of good cause pub-

lished with the rule. In that case, however, the court dealt with the

wage and price freeze under Executive Order 11615 and found

that there was good cause not to defer the effective date of the reg-

ulation for Utrty days ‘‘based on facts so obvious that they may be

judicially noticed. Had advance notice issued, it is apparent that

there would have ensued a massive rush to raise prices.’’ 499 F.2d

at 1332. No similiar facts appear in this case to justify a finding of

good cause. The parties would not be expected to alter their econ-

duct in such a way as to frustrate the purposes of the Program in

response to announcement of the proposed ‘‘Substantive Policies.’’

Indeed, the improbability of any change in conduct based upon

the ‘‘Substantive Policies’’ underscores the fact that they did not

impose any obligations on anybody that could stimulate evasive

conduct.

acterized as substantive rules, they would fall within

the exception to the deferral requirement contained

in 5 U.S.C. §553(d)(2) because they were “inter-

pretive rules and statements of policy.”

It is additionally worth noting that plaintiffs were

not, as they-apparently claim they were, substantially

prejudiced by the delayed publication or immediate

effectiveness of the six items to which they refer. As

to the first four, of course, they could claim no preju-

dice sinee these items merely delegated authority to

CISC to administer the Program in the construction

industry. As to the “Substantive Policies,” there is

no doubt that they were fully advised of the standards

CISC would apply in time to prepare their factual

presentation to conform to those standards. Para-

graph 5 of the 1973 Policies, upon which CISC relied

in denying plaintiffs the full wage increase they

sought, was ineluded in virtually the same form as in

the 1973 Policies in the “Substantive Policies” of

Pay Board Order No. 2 as amended and _ published

on April 25, 1972, 37 Fed. Reg. 8110, nearly 16 months

before plaintiffs’ hearing. These standards were con-

tinued in effect by section 3(a) of Executive Order

11695. Plaintiffs could not have heen prejudiced by

CISC’s failure to publish its 1973 Policies prior to

the hearing since they were already aware of this

standard. See United States v. Lieb, supra, 462 F.2d

at 1166-67. Moreover, the President of plaintiffs’ in-

ternational union received a copy of the February 26,

1973, press release containing the 1973 Policies, so

plaintiffs apparently had actual notice of them. Plain-

tiffs themselves, through their counsel, inquired into

the standards used to review the agreement during

the period between the initial disapproval in June,

1973, and the hearing in August. In a letter dated

August 7, Joe Russell, the Executive Director of

CISC, informed them that CISC had determined that

“to allow economic adjustments of 90 cents for the

June 1973 contract year would cause an unstabilizing

effect on other negotiations in the industry.” Thus,

CISC indicated, before the hearing that it was rely-

ing on paragraph 5 of its “Substantive Policies.”

While it is true that the publication requirements of

section 4(c) of the APA are not designed primarily

to avoid this sort of prejudice,"' the court feels that

the absence of any conceivable prejudice to plaintiffs

as a result of the nonpublication of these six items

further undermines their meritless legal arguments

since they are seeking equitable relief.

3. CISC complied with section 207(b) of the Act.

On April 30, 1973, Congress added the St. Germain

amendment to section 207(b) of the Act. This pro-

viso required that any order reducing wages be made

“on the record after opportunity for a hearing.”

Plaintiffs claim that CISC violated the St. Germain

amendment at the time it sent the June 18, 1973, letter

initially disapproving the 65 cent wage increase and

11The requirement that the effective date of regulations be

deferred to thirty days after they are published is premised upon

fairness to those affected by the regulations: to permit interested

persons to express their views before the regulations are put into

effect. See Kelly v. United States Dep’t of Interior, 339 F. Supp.

1095, 1101-02 (E.D. Cal. 1972). Thus the court feels it is appro-

priate to advert to the fairness of nonpublication upon plaintiffs

= in evaluating their arguments based upon this deferral proce-

ure.

when it issued its order in December of 1973.'* First,

they argue that although the June letter was not

labeled “Order” it was, in effect, an order and that

the St. Germain amendment therefore required that

a hearing be afforded them before it issued. They

contend that the meeting held in May, 1973, between

their representatives and representatives of CISC

was not such a hearing and that it dealt solely with

the pension fund that depended upon the June 1,

1973, increase in fringe benefits. The problem with

their argument is that the June 18 letter was not a

final disposition of the matter. It was accompanied

by a letter advising them that they were entitled to

a hearing as required by the St. Germain amendment.

Thus, while it precluded immediate payment of the

unapproved portion of the wage increase, it merely

postponed such payment should CISC ultimately de-

termine that the full increase was justified. Such

postponements do not invoke the hearing requirement

of the St. Germain amendment. County of Nassau

v. Cost of Living Council, 499 F.2d 1340, 1348

(T.F.C.A. 1974).

12In response to the court's order for further briefing, plaintiffs

filed a supplemental memorandum arguing that since CISC had no

standards for reviewing proposed wage increases, its individual

determinations were de facto rule-making and subject to the re-

quirements of 5 U.S.C. §§ 556 and 557 via 5 U.S.C. § 553(e). This

argument appears inconsistent with their argument about the pub-

lication procedure used for CISC’s “Substantive Policies” because

that argument depends upon demonstrating that the policies were

substantive rules. Those policies, and the portions of the Act and

the Executive Orders upon which they were based, did provide

CISC with standards to apply to individual cases. The court there

fore rejects plaintiffs’ atternpt to impose the hearing requirements

for rule-making on CISC’s adjudicatory function.

Plaintiffs also contend that the August 17, 1973,

hearing before Stuart Rothman did not satisfy the

St. Germain amendment. This argument presents

rather difficult problems of statutory interpretation

because it is unclear what sort of hearing Congress

had in mind when it enacted the proviso upon which

plaintiffs rely. Plaintiffs contend that Congress in-

tended that the agencies provide a “full due process

hearing.” Since “[t]he typical federal statute says

nothing about a determination on the record,” 2

K. Davis, Administrative Law Treatise § 13.08 at 226

(1958), it appears that Congress does use the phrase

as a term of art to signify that some sort of adversary

process is required. See 5 U.S.C. §553(¢). But see-

tion 203(a) of the Act expressly exempts agencies

ereated under the Act from the requirements of the

APA except for 5 U.S.C. §§ 552, 553; 555(e). Plain-

tiffs’ interpretation of the St. Germain amendment is

basically that it mandates the full hearing procedure

required by 5 U.S.C. §§ 554; 556; 557 despite the ex-

plicit exemption of economic stabilization agencies

from those sections contained in section 203(a) of the

Act.

CISC has not so interpreted the St. Germain

amendment, and its interpretation of the Act is

reasonable. Its interpretation is presumptively valid

because it relies upon the “cardinal rule... that re-

peals by implication are not favored,” Posadas y.

National City Bank, 296 U.S. 497, 503 (71935). in

according to section 207(a) its full weight despite

the subsequent amendment to section 207(b). More-

over, it appears to serve the purpose Congress had in

mind in enacting the amendment. Congress was con-

cerned that the agencies were reducing wages of

persons without ever giving those persons an oppor-

tunity to attempt to justify their wage levels. CISC’s

procedure afforded affected parties just such an op-

portunity and was a reasonable effort to achieve the

Congressional purpose. The court therefore will up-

hold it.

4. Plaintiff’s right-to-hearing due process claims are

substantial,

Under section 211(g) of the Act the TECA has

exclusive jurisdiction to determine the constitutional

validity of any order issued under the Act. Thus this

court should certify to the TECA any substantial

constitutional issues raised by plaintiffs. A constitu-

tional challenge is substantial unless already decided

by the Supreme Court or obviously without merit.

Delaware Valley Apartment House Owners Ass’n v.

United States, 350 F. Supp. 1144, 1150 (E.D. Pa.

1972), aff'd, 482 F.2d 1400 (T.E.C.A. 1973). The

court concludes that plaintiffs have raised procedural

due process claims that are not obviously without

merit. It is apparently conceded by defendants that

the precise issues plaintiffs raise have not been de-

cided by the Supreme Court.”

13Plaintiffs properly distinguish Yakus v. United States, 321 U.S.

414 (1944), on several grounds. In that case the petitioners had

been convicted of sale of beef at a price above that allowed by the

price controls imposed under the Emergency Priee Control Act of

1942, 56 Stat. 23. The Act had required that all challenges to

orders issued under it be presented first for administrative review

and then to an Emergeney Court of Appeals. Based on its ruling

in Lockerty v. Phillips, 319 U.S. 182 (1943), the Court held that

Plaintiffs view their due process claims as the

central issue of this lawsuit. Their arguments are

premised upon the ‘‘fundamental requirements of

procedural due process.” They rely upon the desir-

ability of an adversary hearing in cases where a

party will suffer a detriment as a result of official

action. See, e.g., Wolff v. McDonnell, —. U.S, .......

(1974). Fuentes v. Shevin, 407 U.S. 67 (1972) ; Gold-

berg v. Kelley, 397 U.S. 254 (1970); Clutchette v.

the Act did not permit persons charged with disobedience of orders

to raise the constitutional invalidity of the Act as a defense to

prosecution. Jd. at 427-29. Stressing the emergency confronted by

Congress, see id. at 422, 431-32, it held this procedure not to be

unconstitutional on its face because “|s|uch a procedure, so long

as it affords to those affected a reasonable opportunity to be heard

and present evidence, does not offend against due process.” Id. at

433. But it was not asked to review the adequacy of any review

actually done by the administrators:

In the absence of any proceeding before the Administrator we

cannot assume that he would fail in the performance of any

duty im on him by the Constitution and laws of the

United States, or that he would deny due process to peti-

tioners by “ioading the record against them” or denying such

hearing as the Constitution prescribes. [Citations omitted. ]

Only if we could say in advance of resort to the statutory

procedure that it is incapable of affording due process to peti-

tioners could we conclude that they have shown any legal

excuse for their failure to resort to it or that their constitu-

tional rights have been or will be infringed.

Id. at 434-35.

The situation presented in this case is substantially different. While

the nation may be confronting an “emergency” brought on by the

wage-price spiral, it is not an emergency of the character that con-

fronted the nation when it was plunged into World War II, so

equally stringent measures may not be called for. Plaintiffs here

have availed themselves of the administrative review to the maxi-

mum extent possible and ask the court to evaluate the treatment

actually accorded them, not to entertain their speculations about

the adequacy of the administrative procedures in the abstract.

Thus Yakus is sufficiently distinguishable for the court to conclude

that the Supreme Court has not decided the issues presented in

this case. Moreover, the court entertains some doubts about the

effect of recent right-to-hearing decisions by the Supreme Court on

the continued vitality of Yakus’ thirty-vear old sanction of the pro-

cedure employed by the Act then before the court.

Procunier, 328 F. Supp. 767 (N.D. Cal. 1971), aff’d,

497 F.2d 809 (9th Cir. 1974). They attack both the

preliminary determination that the full increase not

be allowed in June, 1973, and the final order issued

on December 7, 1973, confirming that only 15 cents

of the proposed wage increase would be allowed. Cer-

tainly they have suffered a detriment as a result of

these actions, see Fuentes v. Shevin, supra, 407 USS.

at 80-87, and they claim that they were constitution-

ally entitled to an opportunity to rebut the evidence

upon which CISC based its determination.

Defendants contend that plaintiffs have had as full

an opportunity to a hearing as the Constitution re-

quires. They point out that prior to the June deter-

mination representatives of plaintiffs met with

representatives of CISC to discuss the proposed in-

creases, although plaintiffs contend that only the in-

crease in fringe benefits was discussed at that time.

They rely heavily on the August 17, 1973, hearing

before Stuart Rothman but concede that they made

no affirmative showing at that hearing that plaintiffs

could rebut and that matters not introduced at that

hearing were used in the decision-making process

CISC used in considering the increases proposed in

the agreements. Plaintiffs contend additionally that

while they were permitted to inspect the data in the

CISC files relating to their contract, they were unable

to make sense of the contents of the files because

the files were in such disorder, Under these cireum-

stances their opportunity to present evidence was

severely circumscribed by their inability to determine

what evidence CISC would rely upon in reviewing

their case.

While the court is mindful of the counterbalancing

interests of the nation in efficient administration of

the Economic Stabilization Program and the bona

fide attempt by CISC to permit plaintiffs to make

their views known, the court cannot conclude that

plaintiffs’ right-to-hearing arguments are without

merit. It therefore must defer to the judgment of

the TECA and certify this issue to the appellate

court.

Plaintiffs make another procedural due process

argument that is obviously without merit. They con-

tend that they were denied due process of law because

representatives of national associations of contrac-

tors voted on their proposed wage increases. They

reason that these members of CISC were interested

parties who should have disqualified themselves be-

cause of thetr interest. Defendants respond by

pointing out that Executive Order 11588 clearly con-

templates that the membership of CISC be tripartite

—with representatives of labor, management and the

public—and that such tripartite boards are a tradi-

tional method of administering such regulatory ef-

forts as the Program here involved. Moreover,

Congress specifically exempted the members of agen-

cies created under the Act from the conflict of in- —

terest provisions of 18 U.S.C. §§ 208, 205, 207, 208;

and 209 in section 204(2) of the Act. The TECA

has recognized the importance of the experience of

the members of CISC, See Umted States v, Electrical

Workers Local 11, supra, 475 F.2d at 1209; Plumbers

Union Local 519 v. Construction Industry Stabiliza-

tion Committee, supra, 479 F.2d at 1056. Plaintiffs

seck to reinstate the conflict of interest principles

Congress specifically eliminated from the Program

via the due process clause of the Fifth Amendment.

They cite no support for their position and the court

is aware of none. Their position is anomalous in that

the President of plaintiffs’ international union, Wil-

liam Sidell, was an alternate member of CISC, was

present at all deliberations of their case and, in

fact, voted in their favor when their appeal was con-

sidered on January 31, 1974. Plaintiffs’ conflict of

interest constitutional argument is obviously without

merit.

C. Challenges Going to the Substance

of CISC’s Action.

1. CISC did not violate its own rules in attempting

to maintain the historic relation, between crafts.

Plaintiffs concede that maintaining the historic re-

lation between crafts is a proper standard by which

CISC may measure the propriety of a given wage

increase. The TECA has declared such an attempt

inherently rational. Electrical Workers Local 11 v.

Boldt, supra, 481 F.2d at 1394-95, Nevertheless, plain-

tiffs challenge CISC’s action here as violative of the

“mandatory prerequisite” provided in its rules that

“fijn general, any restoration to appropriate his-

torical relationship among crafts or localities should

he spread over a period of two or three years,” See

37 Fed. Reg. 8141. ft is apparent that this regulation

is not a “‘mandatory prerequisite,” and that CISC

did not interpret it unreasonably in its handling of

plaintiffs’ case. CISC did not attempt fully to redress

the deviation it felt had developed from the tradi-

tional wage relationship among various crafts or

areas in the construction industry in California, but

only to go part of the way and reduce the differential.

Its attempt to do so was clearly reasonable and plain-

tiffs’ argument is frivolous.

2. CISC’s determination is supported by substantial

evidence.

Plaintiffs argue that there is no substantial evi-

dence to support CISC’s determination. They mis-

apprehend the role of the court in reviewing agency

action under the Act. Thus, they emphasize language

in Plumbers Local 519 v. Construction Industry

Stabilization. Committee, supra, 479 F.2d at 1055, to

the effect that the Government has the burden of

proof that a wage increase is inconsistent with the

Program and the statement in CISC’s rules that a

‘clear showing” of inequity must be made to justify

disallowing a proposed wage increase.'* Despite these

general admonitions, the court’s review is limited by

section 211(d)(1) of the Act to determining whether

1*Plaintiffs find in this requirement a broad requirement that

seems to the court entirely inconsistent with the purposes of the

Program. They argue that

(t]he purpose of this requirement is based upon the funda-

mental principle that it is unfair to reduce carpenters’ wages

because the wages of other werking people may be lower. The

burden should be on the employers to raise the wages of those

CISC’s conclusion is supported by substantial evi-

dence. In making this review, the court must give

great deference to CISC’s factual determinations and

to its interpretation of the standards it was autho-

rized to apply. To prevail, plaintiffs must demon-

strate that CISC acted in an ‘‘arbitrary or capricious

manner.” Pacific Coast Meat Jobbers Ass’n v. Cost

of Living Council, supra, 481 F.2d at 1391.

Adhering to this limited review, the court rejects

each of plaintiff’s three specific challenges to the

substantiality of the evidence upon which CISC

based its determination. First, they argue that CISC

had no data at all upon which to base its decision

because the charts and other materials ultimately

submitted in support of the December, 1973, order

had been prepared after the initial determination

in June. But they disregard the manner in which

CISC conducts its business. It keeps the data upon

which it relies on computer listings that are contin-

uously updated—called ‘‘city sheets” and ‘‘master

eards”—and cannot be faulted for using its latest

data in support of the December decision.

Second, plaintiffs argue that there is no evidence

of any inflationary impact from the 65 cent wage

increase. It is true that CISC cannot prove that to

other working people whose wages have fallen behind the

others.

The court is unaware of any support for this extraordinary propo-

sition, and plaintiffs cite none. Certainly it cannot be derived from

the Act, any Executive Order issued under it or any of the regu-

lations issued by agencies created under the Program. Indeed, it

seems anathema to any effort to control the spiralling increase of

wages and prices.

allow this increase will in fact cause the cost of living

to rise, or the value of the dollar to decline. Yet

plaintiffs would have the court disregard the under-

lying rationale of the Program—that limiting wage

and price increase will curb inflation—under the

guise of reviewing for substantial evidence. The de-

termination whether these regulatory tools will serve

their purpose is one for Congress, not the court;

the court need only determine whether there is sub-

stantial evidence to support application of this tool in

this case on the theory relied upon by the agency.

Third, plaintiffs contend that the decision is with-

out support because all the other crafts CISC re-

ferred to in its explanation had contracts extending

beyond April 30, 1974, the terminal date of the

Program. Thus, they reason, to permit them their

whole increase would not encourage ‘“‘leapfrogging”

during the time the Program was in effect. They

conclude that CISC was without power to consider

any effects after April 30, 1974. Plaintiffs have not

demonstrated, of course, that all agreements in the

construction industry in California extended beyond

April 30, 1974, or that none of those that on their

faces would not expire before that time might not be

renegotiated. Hence, even accepting their quasi-

jurisdictional argument about CISC’s reasoning, the

court would be unable to conclude that CTSC’s action

was arbitrary or capricious. But the court cannot

accept that CISC was compelled to close its eyes

to what might occur after it had ceased to exist

because to limit its power in that fashion seems in-

herently inconsistent with the whole pattern of the

Program, The Program had, by the time CISC de-

nied plaintiffs their fuil increase, reached its third

phase, and obviously was bound for other phases.

It was evolving gradually to a time when no further

controls would be imposed upon collective bargaining

agreements, and was designed to achieve this trans-

formation smoothly. If the agencies created under

the Act could not take account of what would happen

after the Program ended, its primary purpose—re-

storing to the economy the stability required to per-

mit. it to develop in an orderly fashion without

controls—would be defeated because the termination

of the Program could be expected to throw the econ-

omy into chaos. Certainly CISC’s attempt only par-

tially to remedy what it perceived as the distortion

of wage levels between crafts demonstrates that it

contemplated further orderly developments after it

ceased to exist. Since the court must give great defer-

ence to its interpretation of the statutes and Orders

endowing it with the authority it exercised, and since

its attention to longer-range developments seems

eminently reasonable, the court must reject plaintiffs’

third attack on the substantiality of the evidence

in support of limiting the wage increase in plaintiffs’

agreement.

More generally, the court is persuaded that CISC

did have a substantial basis in fact for concluding

that allowing the full increase ‘‘wouid cause unstabil-

izing effects on other negotiations in the industry.”

As its statement of explanation details, CISC had

before it data on the wages in the construction in-

dustry in California over the period 1960-73 and

on the rise in the Consumer Price Index over that

period. It determined that the wages in the industry

had risen much more dramatically than had the cost

of living and that the wages paid workers in various

crafts had also diverged remarkably. These were rea-

sonable conclusions and were supported by evidence

that was before CISC and is now before this court.

Pursuant to the authority conferred upon it by Con-

gress, the President and the CLC, CISC evolved a

coherent plan to reign in the runaway increase in

wages in the industry and restore order among the

various trades therein. It may be that some of its

decisions appear unwise in the light of hindsight.

It may be that the Program as a whole and in the

construction industry was largely a failure. But it

is abundantly clear from the record in this case that

CISC did not act arbitrarily or capriciously when

it approved a wage increase of only 15 cents for

plaintiffs.

3. Plaintiffs’ equal protection argument is not

substantial,

Plaintiffs argue that limitation of increases in their

wages is unconstitutional because CISC did not re-

quire contractors to reduce their prices at the same

time it lowered wages, thereby reducing the contrac-

tors’ costs. Since the contractors reaped windfall

profits as a result of the Program, they reason, they

have been denied due process. Insofar as the court

understands this argument, it relies on the concepts

of equal protection that are implicit in the due pro-

cess clause of the Fifth Amendment, see Bolling v.

Sharpe, 347 U.S. 479 (1954). It is not substantial

because it is obviously without merit.

In the first place, as defendants have demonstrated

in their memoranda and exhibits, they did make some

effort to avoid windfall profits by publicizing the

cases in which they refused workers wage increases

and keeping some track of the prices charged by

contractors. It is true that it did not have a compre-

hensive scheme to limit profits by contractors. But

it was not empowered to review such profits. If this

court is to give due attention to the magnitude of

the task confronting these administrators, it must

eredit this good faith effort to pass on the effects of

its limitations on wages to the consuming public.

More important, plaintiffs’ argument misconceives

the nature of equal protection. A person can mount

an equal protection challenge only on the ground

that the Government has chosen to treat differently

persons who are similarly situated. As the TECA has

indicated, employees and employers are not so simi-

larly situated that differences in treatment accorded

them are prohibited by equal protection. See Elec-

trical Workers Local 11 v. Boldt, supra, 481 F.2d at

1395. Such classifications ‘‘must be upheld if the

court can perceive any rational basis for the distine-

tions which they draw.” [d.; see Dandridge v. Wil-

liams, 397 U.S. 471, 487 (1970). Thus, Congress could

constitutionally have determined that wage controls

would be a more efficient way to combat inflation

than attempting also to reduce the prices charged by

employers." The wisdom of such a decision, were

Congress to make it, would not be a matter for the

court to disapprove. Plaintiffs’ argument is clearly

without merit and need not be certified to the TECA.

Conclusion

Having carefully considered the arguments made

by both plaintiffs and defendants, the court is some-

what uncertain how to dispose of their cross-motions

for summary judgment. Clearly under section 211(g)

of the Act, it may not grant plaintiffs the relief they

pray on constitutional grounds. Under section 211(¢)

it should certify to the TECA any substantial con-

stitutional challenges to the Program it determines

to exist. The court has determined that plaintiffs have

raised one such substantial claim. The problem it

confronts is how to give effect to its resolution of the

other claims plaintiffs have raised, all of which it

has rejected. Other district courts have had difficulty

coping with the certification requirement of section

211(c). In National Petroleum Refiners Ass’n v.

Daalop, 486 F.2d 1388 (T.E.C.A. 1973), for example,

the district court determined that there was a sub-

15('f. Amalgamated Meat Cutters & Butcher Workers v. Con-

nolly, supra, 337 F. Supp. at 788.

The law does not contemplate what is manifestly impracti-

cable, or suppose that all problems are to be taken care of at

onee. And so it has been held that broad emergency price con-

trol measures need not entitle each particular seller to consid-

eration of the equity of his position, for such an obligation

would impose an administrative impracticability that would

defeat the very purpose of the Act.

stantial issue and thereupon certified the case to the ~

TECA. The TECA observed initially’

that the trial court has incorrectly certified the

entire case to this court. Section 211(c) states

that when the trial court “determines that a sub-

stantial constitutional issue exists, the court

shall certify such issue to the Temporary Emer-

gency Court of Appeals.” (Emphasis supplied.)

The appeals court may then, in its discretion,

direct that the ‘‘entire action be sent to it for

consideration,” or it may treat the certified issues

and remand the case for further disposition

below.

Id. at 1389.

It remains unclear, however, whether -the trial

court ought first dispose of the nonconstitutional

claims before certifying the substantial constitutional

ones to the TECA. Given the normal rule that a

court will only reach a constitutional issue if no non-

constitutional basis for decision is available, it would

seem that the trial court should address all nonconsti-

tutional issues raised before, or at least in addition to,

certifying the constitutional ones to the TECA. Since,

under section 211(b)(2), all appeals from district

court decisions lie in the TECA, the difference in

practice seems mainly a matter of timing. In the

interests of judicial economy, and because its review

of the constitutional claims substantially required the

court to evaluate the nonconstitutional claims, the

court has attempted to decide all the other issues

presented by this complex case, Only the right-to-

hearing constitutional claim remains, and the court _

= ee

must certify that claim to the TECA. Since this issue

remains, however, the court may not grant or deny

the motions for summary judgment.

It is Therefore Ordered that plaintiffs’ claim that

they were unconstitutionally denied the hearing to

which the due process clause of the Fifth Amend-

ment entitles them is hereby certified to the Tempo-

rary Emergency Court of Appeals under section

211(c) of the Economie Stabilization Act of 1970.

It Is Therefore Ordered that plaintiffs’ claim that

ants’ motion for summary judgment and _ plaintiffs’

cross-motion for summary judgment is stayed pend-

ing resolution of the constitutional issue certified to

the Temporary Emergency Court of Appeals.

Dated: 4/21 /75.

/s/ Alfonso J. Zirpoli,

United States District Judge.

Appendix B

Temporary Emergency Court of Appeals

of the United States

No. 9-26

Carpenters 46 County Conference Board, et al.

Plaintiffs-Appellants.

vs.

The Construction Industry Stabilization Com-

mittee, et al.,

Defendants-Appellees. J

[Filed July 31, 1975]

Victor J. Van Bourg and David A. Rosenfeld of Van

Bourg, Allen, Weinberg, Williams & Roger, San

Francisco, California for the Appellants.

William C. White, Attorney, Rex E. Lee, Asst. Attor-

ney General, Stanley D. Rose, Attorney, Depart-

ment of Justice, Washington, D. C. for the

Appellees.

Appeal from the United States District Court

for the Northern District of California

(No. C-73-1912-AJZ)

Before CARTER, CHRISTENSEN, and Estes, Judges

Per Curiam.

This action was commenced on October 25, 1973,

in the District Court for the Northern District of

California, as a class action, by plaintiff Carpenters

46 County Conference Board, United Brotherhood of

Carpenters and Joiners of America, AFi-CIO [here-

inafter Carpenters Board], for itself and on behalf

of all affiliated district counciis and local unions and

on behalf of all working people covered by the rele-

vant collective bargaining agreement with the Asso-

ciated General Contractors of California, Inc., the

Engineering and Grading Contractors Association, and

the Northern California Home Builders Conference,

known as the “Master Agreement”; plaintiff Pile

Drivers, Carpenters, Bridge, Wharf and Dock Build-

ers, Local Union No. 34 of the United Brotherhood of

Carpenters and Joiners of America, AFL-CIO [here-

inafter Local 34], for itself and on behalf of all work-

ing people covered by the “Local 34 Agreement’?;

two named plaintiff officials of the Carpenters Board;

and one named plaintiff official of Local 34. The

plaintiffs seek declaratory and injunctive relief that

the actions of the Construction Industry Stabilization

Committee (CISC)* with regard to the reduction of

1The Master Agreement was executed on July 14, 1971, by the

United Brotherhood of Carpenters and Joiners of America, AF'L-

CIO, on behalf of its District Councils and Loeal Unions and

was to be effective for wages and benefits paid by the employers

under the agreement, from June 15, 1971 through June 15, 1974.

2The Local 34 Agreement was to be effective over approximately

the same time period as the Master Agreement. Since Local 34

agreed to be bound by any determination made as to the Uar-

penters Board, further discussion will refer only to the Master

Agreement.

8On March 29, 1971, the President exercised the authority con-

ferred on him by the Economie Stabilization Act of 1970 (ESA),

84 Stat. 799 as amended, to stabilize the wages and prices in the

construction industry which according to Executive Order 11588

the plaintiffs’ wage increases provided for in their

collective bargaining agreements were unlawful and

unconstitutional and should be enjoined.* Plaintiffs’

constitutional challenge of the regulations and orders

of the CISC and related agency bodies would nullify

the wage-price stabilization program under the Eco-

nomie Stabilization Act of 1970, Pub. L. 91-379, 84

Stat 799, as amended (ESA), 12 U.S.C. § 1904 note,

to the extent that it was inconsistent with wage in-

creases provided in their collective bargaining agree-

ments. Upon motions for summary judgment filed by

each side, the District Court determined all matters

in controversy adversely to the plaintiffs except one;

and that being a “procedural due process issue”

deemed by the court to be substantial, it has been

had “tended in recent years to increase at a rate greater than

that for the economy as a whole.” (36 F.R. 6339, April 3, 1971)

The Order created the Construction Industry Stabilization Com-

mittee (CISC) and required all proposed wage and salary in-

creases within the construction industry to be approved by the

CISC and the appropriate craft board before being put into

effect. For further background on the CISC and its regulations

and orders, see, Associated Gen. Con. of A., Inc., Okl., etc. v.

Laborers Int. U., 476 F.2d 1388, 1395-1401 (TECA 1973);

United States v. International Bro. of Elec. Wkrs., L. No. 11,

475 F.2d 1204, 1205-1208 (TECA 1973).

4The CISC informed the Craft Board on June 18, 1973, that

the 25¢ increase in fringe benefits scheduled to go into effect on

June 1, 1973 was not unreasonably inconsistent with the stabili-

zation policies but suggested that the 65¢ wage adjustment sched-

uled to go into effect on June 16, 1973 be limited to 15¢. Pur-

suant to the request by the Carpenters Board, a hearing was

held before a member of the CISC on August 17, 1973. On

December 7, 1973, CISC notified the parties to the Master Agree-

ment that the 65¢ wage increase scheduled for June 16, 1973 was

unreasonably inconsistent with its standards for wage stabuliza-

tion and authorized a 15¢ wage increase effective June 16, 1973.

Upon administrative appeal and further review, the CISC found

the parties had presented no basis for any modification of the

CSIC'’s earlier decision.

certified to this court pursuant to §211(c) of the

ESA. The District Court stayed its decision on sum-

mary judgment pending the resolution of the consti-

tutional issue certified to this court.

We do not reach the question of constitutionality,

except to note the tenuous nature of our jurisdiction

based upon certification of what appears to be an

insubstantial constitutional issue, See Shapp v. Simon,

510 F.2d 379 (TECA 1975); National Petroleum Re-

finers Association v. Dunlop, 486 F.2d 1388 (TECA

1973) ; District of Columbia v. Little, 339 U.S. 1, 70

S.Ct. 468 (1950). The constitutionality of the ESA

and implementing regulations and orders has been

consistently upheld against constitutional attacks in

a broad range of cases, e.g., wages, Fry v. United

States, ........ US. ......, 48 USLW 4651 (May 27, 1975),

aff’g. 487 F.2d 936 (TECA 1973); Local Union No.

11, Int. Bro. of Electrical Wkrs. v. Boldt, 481 F.2d

1392 (TECA 1973); Amalgamated Meat Cutters &:

Butcher Work, v. Connally, 337 F.Supp. 737 (D.D.C.

1971); rents, United States v. Lieb, 462 F.2d 1161

(TECA 1972); prices, Western States Meat Packers

Ass’n., Inc. v. Dunlop, 482 F.2d 1401 (TECA 1973);

University of Southern California v. Cost of Living

Council, 472 F.2d 1065 (TECA 1972). Plaintiffs would

assert that the non-adversary nature of the adminis-

trative hearing held by the CISC in their case denied

them their constitutional right of “procedural due

process.” However, this court has previously recog-

nized the important distinction of agency determina-

tions under the ESA from the “usual administrative

adjudications, subject to the full panoply of the

Administrative Procedure Act .. .” Plumbers Loe.

U’. No. 519, ete. v. Construction Ind, Stab. Com., 479

F.2d 1052, 1055 (TECA 1973).5

In Western States Veat Packers Ass’n., Inc. v. Dun-

lop, 482 F.2d 1401 (TECA 1973), this court rejected

the plaintiffs’ claims that the freeze on beef prices

by the CLC

“deprived plaintiffs of a substantial property in-

terest without opportunity for the notice and

heariic required by the due process clause of the

fifth amendment. Although this court’s discussion

of this issue in Pacific Coast [Meat Jobbers Ass’n

v. C.L.C., 481 F.2d 1388 (TECA) 1973) ] was con-

cerned only with statutory requirements, the court

was of the opinion that the CLC’s decision not

to hold formal public hearings after notice was

entirely rational in light of the extensive informal

consultations held, the possibility of counter-pro-

ductive economic effects, and the impracticability

due to the emergency confronting the CLC.” (482

F.2d at 1404).

While the instant case does not involve the failure to

hold public hearings, the factors considered by this

court in Western States clearly are relevant in deter-

mining the adequacy of the hearing procedure avail-

able to parties objecting to the ESA and its regula-

5Section 207 of the ESA exempts agency action under the Act

from most of the provisions of the Administrative Procedure Act,

title 5, United States Code, including § 556 on the conduct and

right of participants in administrative hearings.

tions.® Further, in settling the constitutionality of the

ESA as it applied to state govermnent employees in

Fry v. United States, —.. U.S. .-..... , 48 USLW 4651,

4652 (May 27, 1975), the Supreme Court stated:

“Congress enacted the Economic Stablization Act as

an emergency measure to counter severe inflation that

threatened the national economy.”

The question of the mootness of this appeal sug-

gested by the appellees is determinative. This suit was

commenced before the expiration date (April 30, 1974)

of the ESA. Section 218 of the ESA provided that

the “expiration [of the Act] shall not affect any action

or pending proceedings, civil or criminal, not finally

determined on such date, nor any action or proceed-

ing based upon any act committed prior to May 1,

1974.” This saving clause and the general saving

statute, 1 U.S.C. § 109, were carefully considered by

®6In University of Southern Cal. v. Cost of Living Council, 472

F.2d 1065, 1070 (TECA 1972), this court stated:

“The Economie Stabilization Act of 1970 gave to the

President the plenary power to stabilize prices . . . The right

of the Government to apply the freeze to existing contracts,

a right which has not been seriously disputed, has been ex-

pressly recognized of late in Amalgamated Meat Cutters &

Butcher Workmen v. Connally, 337 F Supp. 737 (D.D.C.

1971). The fact that payment has been received for an

event to be performed in the future does not alter this

‘doctrine of impairability.’ As in other contexts the date

of performance of the ‘service’ may be given effect as the

determinative of the time governing the application of the

price ceilings .. .”

Accord, DeRieux v. Five Smiths, Inc., 499 F.2d 1321 (TECA

1974), which upheld the constitutionality of the ESA as admin-

istered under Executive Order 11615, where attacked as an un-

constitutional delegation of authority to the executive branch of

the government; an unconstitutional bill of attainder or ez post

fecto law; an unconstitutional taking of property without just

compensation; and an unconstitutional deprivation of due process

of law.

this court in United States v. California, 504 F.2d

750 (TECA 1974), cert. dented, ... U.S. ...... , 43

USLW 3645 (June 9, 1975). This court held, inter

alia, that a “pending proceeding” which would sur-

vive the expiration of the ESA under the saving

statutes was a “pending enforcement proceeding”

based upon a violation of the Act during its existence.

The case sub judice, while pending on the expira-

tion date of the ESA, was not one “to enforce the

expired statute in relation to violations of it, or of

regulations issued under it, occurring before its

expiration.” California, supra, 504 F.2d 750, 754, quot-

ing from Allen v. Grand Central Atrcraft Co., 347

U.S. 535, 554-555 (1973). “The rule in federal cases

is that an actual controversy must be extant at all

stages of review, not merely at the time the complaint

is filed.” Preiser v. Newkirk, ........ US. .., 48 USLW

77 at 4879 (June 25, 1975), quoting from Steffel v.

Thompson, 415 U.S. 452, 459 n. 10 (1974). Thus,

following the California, supra, decision this case pre-

sents no justiciable controversy on which the relief

sought could be granted, and the case must be dis-

missed as moot. Securities d} Exch. Com’n. v. Medical

Com. for Human Rights, 404 U.S. 403, 407 (1972).

Accordingly, it is Ordered that this action is

remanded to the district court for dismissal.

So Ordered, Rules 23, 25 and 28 of this court.

Appendix C

United States District Court

for the Northern District of California

No. C-73-1912 AJZ

Carpenters 46 County Conference Board, |

et al., |

Plaintiffs,

ifn ‘

The Construction Industry Stabilization

Committee, et al.,

Defendants. :

[ Filed Sept. 23, 1975]

ORDER DISMISSING CASE

On April 22, 1975, the court entered its order stay-

ing decision of defendants’ motion for summary judg-

ment pending resolution of one issue by the Tempo-

rary Emergency Court of Appeuls. See 393 F. Supp.

480 (N.D. Cal. 1975). The Temporary Emergency

Court of Appeals on July 31, 1975, decided that the

case is moot and remanded for dismissal. No further

proceedings appearing appropriate,

It Is Therefore Ordered that this case is dismissed.

Dated: September 23, 1975

Alfonso J. Zirpoli

United States District Judge

Appendix D

Temporary Emergency Court of Appeals

of the United States

No. 9-28

Carpenters 46 County Conference Board, |

et al.,

Plaintiffs- Appellants,

VS. .

The Construction Industry Stabilization

Committee, et al.,

Defendants-Appellees. }

[ Filed Dee. 22, 1975]

Victor J. Van Bourg and David A. Rosenfeld of Van

Bourg, Allen, Weinberg, Williams & Roger, San

Francisco, California, for the Appellants.

C. Max Vassanelli, Attorney, Rex E. Lee, Assistant

Attorney General, Stanley D. Rose, Attorney, De-

partment of Justice, Washington, D. C., for the

Appellees.

Appeal from the United States District Court

for the Northern District of California

(No. C-73-1912-AJZ)

Before CARTER, CHRISTENSEN, and Estes, Judges

Per Curiam.

This appeal is from an order of the District Court

for the Northern District of California dismissing this

action in accordance with our decision in Carpenters

46 County Conference Board, et al. v. The Construc-

tion Industry Stabilization Committee, et al. (TECA

No. 9-26, July 31, 1975), .......... on . That deci-

sion is controlling here. The District Court’s order is

affirmed. Rules 23, 25, and 28 of this Court.

Appendix E [Excerpts]

United States District Court

Northern District of California

No. C-75-2206 RFP

Associated General Contractors of Califor-

nia, Inc., a non-profit corporation,

Plaintiff,

vs.

Carpenters 46 Northern Counties Confer-

ence Board of the United Brotherhood

of Carpenters and Joiners of America,

AFL-CIO, et al.,

Defendants. ;

[ Filed Oct. 20, 1975]

COMPLAINT

Now comes the plaintiff and for a First Cause of

Action alleges as follows:

1. Jurisdiction is vested in this Court under and

pursuant to the provisions of 29 U.S.C. Section 185

(Section 301 of the Labor Management Relations

Act).

2. Plaintiff Associated General Contractors of Cal-

ifornia, Inc. (hereinafter “AGC”) is, and at all times

material hereto was, a non-profit corporation duly

organized and existing under and by virtue of the

laws of the State of California. AGC is a trade asso-

ciation of employers in the construction industry.

Pursuant to its By-Laws, AGC is authorized to bring

this action on behalf of itself and its constituent

members doing business in the 46 Northern Califor-

nia Counties.

3. Defendant Carpenters 46 Northern Counties

Conference LGoard of the United Brotherhood of Car-

penters and Joiners of America, AFL-CIO is an un-

incorporated labor organization representing, through

subordinate district councils and local unions, car-

penter and piledriver members, including those em-

ployed by members of plaintiff AGC.

* * *

5. At all times material hereto, pursuant to Arti-

cle VIII, Sections One and Two of its By-Laws,

plaintiff AGC was authorized to negotiate and enter

into binding labor agreements with the defendants

to govern the employment of carpenter and piledriver

employees by AGC Regular, Specialty and Joint Ven-

ture Members.

6. On or about July 14, 1971, plaintiff entered

into a Master Agreement (hereinafter the “1971 Mas-

ter Agreement”) with the defendants, and/or their

predecessors in interest, which governed the terms

and conditions of employment of individuals by Reg-

ular, Specialty and Joint Venture members of AGC,

to perform carpentry work on building construction

in the 46 Northern California Counties. Said 1971

Master Agreement, by its terms, was in full force

and effect through June 15, 1974... .

7. On or about July 17, 1974, plaintiff AGC and

the defendants entered into a successor Master Agree-

merit (hereinafter the “1974 Master Agreement”)

which, by its terms, governed the conditions of em-

ployment by Regular, Specialty and Joint Venture

members of AGC, of individuals performing carpen-

try work on building construction in the 46 Northern

California Counties. ... Said Agreement will remain

in force and effect until June 15, 1977.

8. The aforesaid 1971 Master Agreement provided,

inter alia, that covered employees would receive a

wage increase of sixty-five ($ .65) cents per hour,

effective June 16, 1973. |

9. On March 31, 1971, pursuant to the provisions

of the Economie Stabilization Act of 1970, the Presi-

dent issued Executive Order 11588, which created the

Construction Industry Stabilization Committee (here-

inafter “CISC”). Said Order required that all pro-

posed wage increases in construction crafts, including

carpentry, must be approved by CISC and/or its

constituent craft boards prior to being put into effect.

Thereafter, pursuant to subsequent statutory amend-

ments and Executive Orders, CISC continued to con-

trol the implementation of proposed wage increases

in the construction industry, through April 30, 1974.

10. On or about June 29, 1973, plaintiff AGC was

notified by CISC that the wage increase scheduled to-

take effect June 16, 1973 might be inconsistent with

CISC’s economic stabilization policies, but that CISC

would approve a wage increase of fifteen ($ .15) cents

per hour... .

1l. On December 7, 1973, CISC issued its final

order, which limited the wage increase effective June

16, 1973 to fifteen ($ .15) cents per hour. AGC mem-

bers paid only the wage increase approved by CISC.

12. On October 25, 1973, defendant Carpenters 46

Northern California County Conference Board filed

suit in this Court challenging the legality of the pro-

cedures and determinations of CISC hereinabove de-

scribed. Said suit is No. C-73-1912 AJZ in the United

States District Court for Northern District of Cali-

fornia.

13. On April 22, 1975, District Judge Zirpoli

issued an Order rejecting all but one of the challenges

raised in the aforesaid suit to the procedures and

determination of CISC. This remaining issue was cer-

tified to the Temporary Emergency Court of Appeals

for determination. On July 31, 1975, the Temporary

Emergency Court of Appeals ordered the case re-

manded to the U. S. District Court for dismissal,

finding the issue certified for decision to be moot.

14. On November 12, 1973, defendants and their

agents commenced picketing and work stoppages at

worksites operated by members of plaintiff AGC.

Said picketing and work stoppages continued for a

period of approximately two months, despite the issu-

ance of a temporary restraining order on November

16, 1973 and a preliminary injunction on December

7, 1973. (See Associated General Contractors v. Car-

penters 46 County Board, No. C-73-2060 LHB and

Swinerton & Walberg Co. v. Bay Counties Dist.

Council of Carpenters, No. C-73-2056 LHB).

15. On April 30, 1974, the Economic Stabilization

Act expired and CISC was abolished by Executive

Order 11788, effective June 30, 1974.

16. Commencing in August, 1975, defendants is-

sued demands to plaintiff and its members that they

pay forthwith to each carpenter employee the sum of

($ .50) cents per hour in additional wages for each

hour worked by such employees during the period

from July 16, 1973 to April 30, 1974, inclusive. .. .

17. Both the 1971 and 1974 Master Agreements

contain a grievance procedure for the resolution of

disputes arising under said Agreements. Article XIII,

Paragraph E of the 1971 Master Agreement provides

that “Pending the decision upon any dispute or griev-

ance, work shall be continued in accordance with the

provisions of this Agreement.” Section 51 of the 1974

Master Agreement provides a grievance procedure

for the resolution of “Any dispute concerning any

application or interpretations of this Agreement. . .”

Section 15 of the 1974 Master Agreement further

provides that “Except as provided in this section,

there shall be no strike, lockout or work stoppage by

a party hereto or any individual employer. The Union

may withhold workmen or picket the job of any indi-

vidual employer who fails to pay wages or is in vio-

lation of the Piece Rate Prohibition or Trust Fund

Contribution provisions of this Agreement.”

18. The sums which defendants are demanding

that AGC members pay to carpenter employees do

~ DE Ee ER

not constitute a lawful wage demand, in that CISC

specificaily forbade the payment of such sums, and

said sums cannot legally be paid retroactively.

19. AGC has requested that defendants process

their claim through the grievance procedures set forth

in the 1971 and 1974 Master Agreements, but defend-

ants have failed and neglected to do so.

20. Plaintiff is informed and believes that defend-

ants are actively engaged in preparation to resume

the unlawful picketing and work stoppage enjoined

in December, 1973. Said preparations include the mail-

ing of a notice to carpenter members on or about Sep-

tember 15, 1975, informing said individuals, in sub-

stance, that they were entitled to receive wages for

the period June 16, 1973 through April 30, 1974,

which include the wage increases forbidden by CISC.

21. Plaintiff is informed and believes that defend-

ants, unless enjoined and restrained by the Court, will

conduct a strike and work stoppage at the worksites

operated by AGC member employers, and that said

work stoppage is imminent.

22. Plaintiff AGC has over 350 member employers

actively occupied in construction activities in the 46

Northern California Counties. A work stoppage will

cause irreparable injury to plaintiff’s members

through loss of production and enforced idleness of

eapital, and additional irreparable injury to the

general public through delay in the construction of

needed facilities throughout the 46 Northern Califor-

nia Counties. The extent of such damages cannot

presently be accurately estimated, but plaintiff be-

lieves they will exceed the sum of Fifty Thousand

($50,000) Dollars per day. Plaintiff has no adequate

remedy at law.

Wherefore, plaintiff prays for relief as follows:

1. For a preliminary injunction restraining the

defendants, and each of them, and their members,

officers, agents, employees, representatives, subordi-

nate organizations and affiliates, and each of them,

and all persons acting in concert with said defend-

ants, or any of them, from engaging in any strike,

picketing, or work stoppage relating to or by virtue

of any claim to retroactive wage increases for car-

penter employees for the period June 16, 1973

through April 30, 1974, inclusive.

2. For a permanent injunction restraining the

defendants, and each of them, and their members,

officers, agents, employees, representatives, subordi-

nate organizations and affiliates, and each of them,

and all persons acting in concert with said defend-

ants, or any of them, from engaging in any strike,

picketing or work stoppage relating to or by virtue

of any claim to retroactive wage increases for car-

penter employees for the period June 16, 1973

through April 30, 1974 inclusive.

3. For an order mandatorily enjoining the defend-

ants, and each of them, to submit any claim of their

members to retroactive pay increases for the period

June 16, 1973 through April 30, 1974, to the griev-

ance procedure prescribed by Section XTT of the 1971

Master Labor Agreement.

4. For a declaration of this Court that the claims

of members of defendant organizations and their sub-

ordinates and affiliates, if any, to retroactive wage

increases for the period June 16, 1973 to April 30,

1974, are subject to the grievance procedure set forth

in Section XIII of the 1971 Master Labor Agree-

ment.

5. For a decree of this Court requiring defend-

ants to specifically perform and conform to the re-

quirements of the 1971 and 1974 Master Labor

Agrvements and particularly the grievance procedures

set forth therein.

6. For costs of suit herein; and

7. For such other and further relief as to the

Court shall seem meet and just in the premises.

Dated: Oct. 17, 1975.

James P. Watson,

George M. Cox,

Cox, Castle, Nicholson & Weekes,

By: /s/ James P. Watson

James P. Watson,

Attorneys for Plaintiff.

Appendix F

Temporary Emergency Court of Appeals

of the United States

TECA Docket No. 9-28

Carpenters 46 County Conference Board, q

et al,

Plaintiffs and Appellants,

vs.

The Construction Industry Stabilization |

Committee, et al., |

Defendants and Appellees.

AFFIDAVIT OF JOHN A. REBELRO

State of California,

County of Santa Clara—ss.

John A. Rebeiro, being first duly sworn, deposes

and says:

I am one of the plaintiffs in the case styled Car-

poenters 46 County Conference Board, et al. v. The

Construction Industry Stabilization Committee, et al.,

No. C-73-1912 AJZ, in the Northern District of Cali-

fornia Distriet Court. | am Chairman of the Carpen-

ters 46 County Conference Board.

Plaintiffs in this matter have filed a grievance with

the employers in the 46-county area covered by our

collective bargaining agreement, Attached as Exhibit

A is a copy of that grievance, in which we seek to

regain the wages which were not paid by the contrae-

tors subject to our collective bargaining agreement

because of the orders of The Construction Industry

Stabilization Committee which are the subject of this

lawsuit. Although | cannot estimate the amount of

money which was not paid to carpenters because of

the orders of The Construction Industry Stabiliza-

tion Committee with any exactitude, the wages lost

must amount to more than $100,000.00,

One of the defenses which the contractors have

raised to this grievance is the fact that they believe

that during 1973 and 1974, they could not lawfully

pay all the wages called for in the collective bargain-

ing agreement because of the orders of The Construe-

tion Industry Stabilization Committee under attack

in this lawsuit. This will thus become a material issue

in the grievance and arbitration procedures called for

in the collective bargaining agreement.

/8/ John A. Rebeiro

John A. Rebeiro

[Subscription and Exhibit omitted]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.