# Petition — Carpenters 46 County Conference Board v. Construction Industry Stabilization Committee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1597%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 425 U.S. 951 ## Text 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 EE cho ciacks dau eeekeGVaddnebnen ecdedeeseas SE Secii alas Gawuied se ceddnsonbe s0bebeseees cheese oo ks Ce wees cheb edeigebnhbedhaaktaee aren cnc ecs sd abeecoudwees es caeeeedie 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 I SD og 0606.06 beens ccnssbddenenvedesde ches 4,7 EO i. Sib 6666 6b bn 66 08 sedcenuets evens 4,7 |” APPT orerrrrrrrrrerirrirr cirri re rhe 2,8 eo eee deg itenaetdb edhe iepesaduewees ye 2,6 ci nage hen ckudeadneeeneocnnameeua 5,7 ARE RS Bete ET oe ~e 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. 2 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 3 “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 4 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. 5 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. 6 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. 7 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. 8 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) yr 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 2 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 3 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 4 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. 5 743, 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 (j 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 Register on April 25. 37 Fed. Reg. 8110. Pursuant to 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 7 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. S 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 9 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. 10 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 11 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. 12 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 i3 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 14 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 15 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, 16 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 17 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.” 18 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 19 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 20 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 21 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 22 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 23 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¢. 24 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. 25 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 26 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 27 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. 28 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). 29 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. 30 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 31 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. 32 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). os 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. 33 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 34 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 37 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 38 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 40 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. 41 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- 42 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 43 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 +4 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 45 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. 46 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 47 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. 48 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 49 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 50 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. 51 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 52 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. 93 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. 54 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. 55 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 56 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 57 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. 58 Appendix E [Excerpts] United States District Court Northern District of California No. C-75-2206 RFP Y 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 59 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 60 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 61 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 62 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 63 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- 64 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. 65 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. 66 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 67 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] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1597%3A1. Public record. Not legal advice.