Appendix — Universities Research Assn., Inc. v. Coutu

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No. 78-1945

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1978

UNIVERSITIES RESEARCH ASSOCIATION, INC.,

Petitioner,

VS,

STANLEY E. COUTU, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

JOINT APPENDIX.

ROBERT E. MANN

SEYFARTH, SHAW, FAIRWEATHER

& GERALDSON

Suite 4200

55 East Monroe Street

Chicago, Illinois 60603

Attorney for Petitioner

HuGH B. ARNOLD

DANIEL N. KADJAN

ARNOLD and KADJAN

11 South LaSalle Street

Chicago, Illinois 60603

ROBERT JAY NYE

NYE and NYE

420 North Euclid Avenue

Oak Park, Illinois 60302

Attorneys for Respondent

PETITION FOR CERTIORARI FILED JUNE 30, 1979

CERTIORARI GRANTED MARCH 17, 1980

INDEX TO JOINT APPENDIX

PAGE

Chronological List of Relevant Docket Entries ........ 1

S| PTET TTT TT ee 3

PT 6 wk a0 eee ancene 00 66 Sa:5-0 06 hk ee 13

Opinion of the District Court, October 8, 1975 ........ 20

Opinion of the District Court, November 29, 1977 ...... 30

Opinion of the Court of Appeals, April 4, 1979 ........ 35

Order of the Supreme Court Granting Petition for Writ of

RUNNIN <x. 65.0 5 0000 pss 0 oo ee sa cae 47

SS. Pe eeeeTTTeT To ee 48

Provisions of Government Contract AT (49-8 )-3000 Desig-

PT ee 54

Additional Matter Included in Appendix

by Designation of Respondents.

Provisions of Government Contract AT (49-8 )-3000 Desig-

ee 61

Contract Letter Dated January 23, 1968.............. 62

Contract Letter Dated April 6, 1972................ 63

Amended First Request to Produce.................. 64

Motion to Shorten Time for Production............... 69

Answer to Plaintiffs Motion for Shortened Time for Pro-

duction of Documents; Motion for Stay of Production

Pending Resolution of Legal Issues; Alternate Motion for

oo Re eer rey ce 70

Order Entered December 21, 1976. .......cccccccces 77

Order Entered February 18, 1977........ Sst ena 78

Motion for Summary Judgment..................... 79

Affidavit of John R. Frazier in Support of Defendant’s

Motion for Summary Judgment................... 81

No. 78-1945

IN THE

Supreme Court of the GQnited States

OCTOBER TERM, 1978

UNIVERSITIES RESEARCH ASSOCIATION, INC.,

Petitioner,

VS.

STANLEY E. COUTU, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

JOINT APPENDIX.

CHRONOLOGICAL LIST OF RELEVANT

Date

DOCKET ENTRIES

Proceedings

4— 9-75

6— 5-75

10— 8-75

11-10-75

2— 6-76

2-18-76

8— 4-76

9— 9-76

1-13-77

1-31-77

12-12-77

2-18-77

3-18-77

11-29-77

Complaint filed as Case No. 75 C 1129, U. S. Dis-

trict Court, Northern District of Illinois, Eastern

Division; 29 U.S.C. § 256(a) consent filed for

Stanley E. Coutu

Defendant’s Motion to Dismiss Complaint, filed

Memorandum Opinion and Order of the District

Court, Dismissing Count I of the Complaint, filed

Answer to Remaining Counts, filed

Deposition of Coutu, filed

Deposition of Kennedy, filed

Class Action Certification Order, filed

Deposition of Orr, filed

Deposition of Carrigan, filed

Deposition of McCook, filed

Deposition of Peoples, filed

Deposition of Huson, filed

Deposition of Marofske, filed

Pre-trial Conference; briefing schedule set for

Summary Judgment Motion to resolve legal issues

Motion for Summary Judgment, filed

Memorandum Opinion and Order Granting De-

fendant’s Motion for Summary Judgment, filed

12-28-77

12— 6-78

4—- 4-79

S— 3-79

6— 1-79

6-30-79

11— 5-79

3-17-80

Notice of Appeal, filed

Oral Argument before the Court of Appeals for

the Seventh Circuit

Decision of the Court of Appeals, filed

Stay of Mandate issued

Stay of Mandate, extended

Petition for Writ of Certiorari Docketed

Solicitor General invited to file a brief expressing

views of the United States

Petition for Writ of Certiorari, granted

STANLEY E. COUTU,

Plaintiff,

vs.

UNIVERSITIES RESEARCH ASSOCIATION, INC.,

Defendant.

COMPLAINT

This is a class action for compensatory damages, and other

appropriate relief, resulting from certain practices in payment

of wages by defendants to members of plaintiff's class.

FIRST CAUSE OF ACTION

For A First Cause Of Action, Plaintiff And The Class Allege:

This action arises under one or more laws regulating Inter-

state Commerce, and jurisdiction of this action is predicated

upon 28 United States Code, Sections 1331 and 1337, among

others, and under the Davis-Bacon Act, Title 40 United States

Code, Section 276a, as hereinafter more fully appears.

The named defendants are contractors in a contract to which

the United States is a party. The said contract is for an amount

in excess of $2,000.00, is sometimes known as Contract No.

AT(49-8)-3000, and provides among other things for con-

struction, alteration and/or repair of public buildings or public

works of the United States at the facility known as the National

Accelerator Laboratories, and requires or involves the employ-

ment of mechanics and/or laborers. The named defendants have

the original or copies of the said contract.

Til

The named defendants have failed to pay to members of

plaintiff's class the minimum wages required to be paid pur-

suant to the said contract and the prevailing wage determina-

tions of the Secretary of Labor and the Davis-Bacon Act (Title

40, United States Code, Section 276a eft seq.), as is more fully

described below.

The defendants have, pursuant to the said contract, employed

each of the plaintiffs in the performance of labor for the con-

struction, alteration, and/or repair of public buildings and public

works of the United States. Further, and notwithstanding the

existence of determinations by the Secretary of Labor of pre-

vailing wages for corresponding labor on projects of a character

similar to the said contract work, the defendants have paid the

plaintiffs wages and wage rates substantially lower than specified

in such prevailing wage determinations. The total of the mini-

mum wages which have been withheld from plaintiffs in the man-

ner so specified, and the damage to plaintiffs thereby is in excess

of Five Million Dollars ($5,000,000.00).

This action is brought on behalf of the named plaintiff, in-

dividually, and as a representative of all persons similarly

situated. The class of plaintiffs consists of the following ascer-

tainable members:

1. All members of the class are mechanics and/or

laborers employed by defendants, pursuant to the said

contract, for construction, alteration, and/or repair of

public buildings or pubiic works of the United States, and

who have been illegally and wrongfully deprived of the

minimum wages and wage rates required to be paid pur-

suant to the said contract and the prevailing wage determi-

nations of the Secretary of Labor and the Davis-Bacon Act.

2. The names and addresses of all members of the

class can be ascertained from the business records of the

defendants.

3. Defendants’ class consists of all named defendants

paying or causing to be paid the herein described wrongful

and illegal wages and wage rates to the plaintiff and mem-

bers of plaintiff's class.

A community of interest exists in the plaintiff class on whose

behalf this action was instituted and against the defendant

class against whom this action is prosecuted for the following

reasons:

1. All members of the class are similarly situated as

shown in Paragraph V above. The only significant difference

between members is the amount which is owed to each,

which amount can be determined either by simple mathe-

matical calculations or from defendants’ business records.

2. Ail members of the class have a virtually identical

interest in having the court determine the legal questions

of the validity of the defendants’ wage payment practice.

The following policy considerations unite plaintiff and all

members of the class, including the class of defendants:

1. The members of the class are too numerous to bring

each and every member before the court as individual

parties.

2. Proof of a common or single state of law will estab-

lish the right of each member to recover damages for the

wrong inflicted upon them. Proof of a common state of

facts will establish the amount which each member of the

class is owed because of the wrong inflicted upon them.

3. Were a class action to be denied here, a multiplicity

of suits dealing with an identical legal question would be

required to give a remedy to the plaintiffs in the class

wronged by defendants’ actions. A single adjudication will,

on the other hand, be determinative of the interests of all

members of the class and prevent inconsistent adjudica-

tions, which would establish incompatible standards of

conduct for the defendants.

4. Individual actions by each member of plaintiff's

class are not practical since the total dollar amount arising

from such wrong perpetrated against each such member

is frequently smaller than would permit the retaining of

separate counsel and the prosecution of such claim.

5. Individual actions are further impractical since at

this time few members of plaintiff's class are aware of the

wrong done, and unless they are generally made aware of

the wrong, few would seek redress.

6. The claims of the named plaintiffs are representative

of the claims of all members of the class and the repre-

sentative party will fairly and adequately protect the in-

terest of the class.

7. Acclass action is superior to other available methods

for the fair and efficient adjudication of the controversy.

SECOND CAUSE OF ACTION

For A Second Cause Of Action, Plaintiff And The Class

Allege:

Plaintiff refers to and incorporates by reference, as though

set forth in full herein, Paragraphs I, UH, II, [V, V, VI and VII

of the plaintiff's First Cause of Action.

The contract pursuant to which the plaintiffs have been so

employed, itself provides for payment to members of the plain-

tiff class at the legal wage rate applicable to the work actually

performed. The defendants have failed to make such payments

as required by the said contract and have breached their con-

tractual obligations to the members of plaintiff class. By reason

of such breach of contract, the defendants have deprived plain-

tiffs of substantial amounts, to plaintiffs’ damage in excess of

$5,000,000.00.

THIRD CAUSE OF ACTION

For A Third Cause Of Action, Plaintiff And The Class

Allege:

This action derives from a nucleus of operative fact common

with the First Cause of Action, and is pendent thereto. Plaintiff

and the class incorporate herein by reference all of the allega-

tions of Paragraphs I through VII, inclusive, of the First Cause

of Action.

On various dates which are reflected in defendants’ business

records, defendants made improper wage payments as alleged

above, and defendants have failed to disclose to plaintiffs the

nature and amount of the said underpayments or to account to

plaintiffs for the amounts so withheld, and have represented

that the wages and wage rates paid to the members of plaintiff

class were valid and proper.

Defendants knew that the underpayments were wrongful and

nevertheless have failed to disclose to plaintiff and the class

the true nature and amount of the said underpayments, and

have knowingly failed to account to the plaintiff class and have

knowingly concealed said underpayments and falsely repre-

sented the facts concerning the impropriety of the wages and

wage rates actually paid.

By said practice and failure to disclose and representations,

defendants intended to and did defraud the plaintiff class by

unjustly depriving them of their proper wages and wage rates.

Plaintiff and the class were unaware of the wrong done them

and in accepting wages tendered by defendants reasonably relied

on the representations made by the defendants.

In or about June, 1973, the named plaintiff discovered the

fraud.

Vil

As a result of the foregoing, defendants acted maliciously,

oppressively, and were guilty of wanton disregard of the rights

of plaintiff and the class, and by reason thereof, plaintiff and

the class demand punitive damages in reasonable amount, for

the purpose of making an example, and for the purpose of pre-

venting further such actions on the part of defendants and their

class. Plaintiff and the class believe that said reasonable amount

would be measured by the sum of three times the amount of

the underpayment, and believe said amount to be in excess of

$15,000,000.00.

FOURTH CAUSE OF ACTION

For A Fourth Cause Of Action, Plaintiff And The Class

Allege:

This action derives from a nucleus of operative fact common

with the First Cause of Action, and is pendent thereto. Plain-

tiff and the class incorporated herein by reference all of the

allegations contested in paragraphs I through VII, inclusive,

of the First Cause of Action.

_ Within five years last past, within this jurisdiction, defend-

ants became indebted to plaintiff and the class for money had

and received by defendants for the use and benefit of plaintiff

and the class, in an amount equal to the amount of the wage

underpayments alleged above.

That no part of said sum has been paid, although demand there-

for has been made, and there is now due, owing and unpaid a

sum in excess of $5,000,000.00, with interest thereon at the

legal rate of interest per annum from the date said money was

had and received for the use and benefit of defendants.

FIFTH CAUSE OF ACTION

For A Fifth Cause Of Action, Plaintiff And The Class Allege:

This action derives from a nucivus of operative fact common

with the First Cause of Action, and is pendent thereto. Plain-

tiff and the class incorporate herein by reference all of the

allegations of Paragraphs I through VII, inclusive, of the First

Cause of Action.

Within five years last past, defendants rendered to plaintiff

and the class an account or accounts in writing, commonly

known as wage statements, purporting to show the balances

due from defendants to plaintiff and the class for labor per-

formed pursuant to the said contract.

lil

Plaintiff and the class, reasonably relying on said statements

of account and believing said statements to be correct, received

the amounts appearing on the said statement or statements.

Subsequent to the making of said payments, plaintiff and the

class discovered that said accounts were not correctly stated,

but were in fact understated by the failure to include therein

the proper wages and wage rates required to be paid them pur-

suant to the said contract and the law. Plaintiff and the class

are informed and believe and therefere allege that the

total underpayment to plaintiff and the class was in excess of

$5,000,000.00.

Plaintiff and the class demanded of defendants that defend-

ants pay and make restitution to plaintiff and the class for the

amount of the said wage underpayments, but defendants have

retained said amounts and have failed, neglected and refused

to pay same to plaintiff and the class, and no part thereof has

been paid.

SIXTH CAUSE OF ACTION

For A Sixth Cause Of Action, Plaintiff And The Class

Allege:

This action derives from a nucleus of operative fact common

with the First Cause of Action, and is pendent thereto. Plain-

tiff and the class incorporate herein by reference all of the alle-

gations of Paragraphs I through VII, inclusive, of the First

Cause of Action. |

Within five years last past, in this jurisdiction, defendants

became indebted to plaintiff and the class in an open book

account for money due in a sum which plaintiff and the class are

informed is in excess of $5,000,000.00, unpaid to plaintiff and

the class by defendants for labor performed pursuant to the said

contract at the special instance and request of defendants, and

which sum defendants are obligated to pay over to plaintiff and

the class.

Ill

No part of said sum has been paid although demand therefor

has been made, and there is now due, owing and unpaid a sum

in excess of $5,000,000.00, with interest thereon at the legal rate

of interest per annum, from the date said sum became due from

defendants to plaintiff and the class.

SEVENTH CAUSE OF ACTION

For A Seventh Cause Of Action, Plaintiff And The Class

Allege:

This action derives from a nucleus of operative fact common

with the First Cause of Action, and is pendent thereto. Plaintiff

and the class incorporate herein by reference all of the allega-

tions of Paragraphs I through VII, inclusive, of the First Cause

of Action.

Within five years last past, in this jurisdiction, defendants

became indebted to plaintiff and the class on and pursuant to

written contract or other evidences of.indebtedness in writing, for

money due in a sum which plaintiff anc the class are informed is

in excess of $5,000,000.00, unpaid to plaintiff and the class by

defendants for labor performed pursuant to the said contract at

the special instance and request of defendants, and which sum

defendants are obligated to pay over to plaintiff and the class.

Ill

No part of said sum has been paid although demand therefor

has been made, and there is now due, owing and unpaid a sum in

excess of $5,000,000.00, with interest thereon at the legal rate

of interest per annum, from the date said sum became due from

defendants to plaintiff and the class.

AD DAMNUM

Wherefore, plaintiff and the class request Orders and Judg-

ments granting them relief as follows:

1. An accounting;

Damages in such amounts as conform to the proof;

Punitive damages;

Interest at the legal rate of interest per annum;

Reasonable attorneys’ fees;

Cost and expenses of suit;

Injunctive relief;

Declaratory relief;

oP NAAR YWN

Such other relief, whether legal or equitable or other-

wise, as is just.

ANSWER

Defendant, Universities Research Association, Inc., a not-for-

profit incorporated consortium of Universities under contract

with the United States to administer the Fermi National Accel-

erator Laboratory, by its attorneys Seyfarth, Shaw, Fairweather

& Geraldson, answers the Complaint as follows:

FIRST DEFENSE

I. Answer To First Cause Of Action Alleged.

The first cause of action alleged in the Complaint was dis-

missed by order of this Court dated October 8, 1975, and

therefore requires no answer.

II. Answer To Second Cause Of Action Alleged.

1. (a) Defendant denies each and every allegation set forth

in Paragraph I of the dismissed First Cause of Action as incorpo-

rated by reference into Paragraph I of the Second Cause ot

Action.

(b) Defendant admits the allegations set forth in Paragraph

II of the dismissed First Cause of Action as incorporated by

reference into Paragraph I of the Second Cause of Action (with

the exception that the proper name of the referred to facility is

Fermi National Accelerator Laboratory). Defendant states that

the contract referred to therein also sets forth expressly schedules

of compensation for employees of Defendant, and establishes

procedures and conirols whereby said schedules are funded by

monies supplied directly by the United States for that purpose.

to the schedules approved by the United States and set forth in

said contract; Defendant admits that it has not paid wages to its

employees pursuant to any schedules other than those set forth in

the contract and approved by the United States; Defendant states

that the U. S. Secretary of Labor has made no wage determina-

tions relevant to said contract, and that the United States has

determined that 40 U.S.C. § 276(a) is not applicable to the

referenced contract, insofar as Defendant’s employees are con-

cerned; and Defendant denies each and every other allegation

set forth in Paragraph III of the dismissed First Cause of Action

as incorporated by reference into Paragraph I of the Second

Cause of Action.

(d) Defendant admits that it has not paid Plaintiff pursuant

to alleged determinations and/or schedules set by the Secretary

of Labor; Defendant states that it has not paid Plaintiff pursuant

to such determination for the reason that no such determinations

have been made relative to Plaintiff's work and for the further

reason that the United States, which supplies the monies to pay

Plaintiff, has determined and directed that Plaintiff be paid

pursuant to schedules approved by the United States and set

forth in the contract; and Defendant denies each and every other

allegation set forth in Paragraph IV of the dismissed First Cause

of Action as incorporated by reference into Paragraph I of the

Second Cause of Action.

(e) Defendant admits that the names and addresses of its

employees may be ascertained from its records; Defendant denies

the existence of any “class” and denies each and every other

allegation set forth in Paragraphs V, VI and VII of the dismissed

First Cause of Action as incorporated by reference into Para-

graph I of the Second Cause of Action.

2. Defendant denies each and every allegation set forth in

Paragraph II of the Second Cause of Action alleged.

III. Answer To Third Cause Of Action Alleged.

1. Defendant here incorporates by reference its answers to

the allegations set forth in Paragraph I of the Second Cause of

Action alleged, in answer to the allegations set forth in Para-

graph I of the Third Cause of Action alleged.

2. Defendant denies making any improper wage payments,

or underpayments, denies that any wage payments made were

wrongful or falsely represented, denies that any fraud occurred

in relation to wage payments or representations with respect

thereto, and denies each and every other allegation set forth

inclusive, in the Third Cause of Action alleged.

IV. Answer To Fourth Cause Of Action Alleged.

1. Defendant here incorporates by reference its answers to

the allegations set forth in Paragraph I of the Second Cause of

Action alleged, in answer to the allegations set forth in Para-

graph I of the Fourth Cause of Action alleged.

2. Defendant denies any underpayment of wages and denies

each and every other allegation set forth in the Fourth Cause of

Action alleged.

3. Defendant states, in further answer to the Fourth Cause

of Action alleged:

a) that it is a not-for-profit entity;

b) that all monies required for wage payments to persons

employed by it are supplied directly by the United

States;

c) that the United States supplies, for said wage payments,

monies strictly limited in amount to that required by

wage and benefit schedules previously approved by the

United States;

d) that the United States regularly audits said payments to

ensure conformity with said schedules;

e) that Defendant does not now receive and never has

received for its own use, any monies from the United

States computed with respect to, or otherwise related to,

employee wage payments;

f) that any monies the United States does not supply for

payment of wages in conformity to the aforesaid

schedules, or for payment to Defendant in relation to

Defendant’s own expenses of administration (said ex-

penses of administration being expressly agreed to by

the United States, regularly audited, and wholly unre-

lated to employee wage payments), or used for pur-

chase of materials, supplies and subcontracts, approved

by the United States, are retained by and for the use of

the United States.

V. Answer To Fifth Cause Of Action Alleged.

1. Defendant here incorporates by reference its answers to

the allegations set forth in Paragraph.I of the Second Cause of

Action alleged, in answer to the a tions set forth in Para-

graph I of the Fifth Cause of Action alleged.

2. Defendant admits the allegations set forth in Paragraphs

II and III of the Fifth Cause of Action alleged.

3. Defendant denies that any “wage statements of account”

as alleged in Paragraphs II, III and IV, were incorrect and there-

fore Defendant denies each and every allegation set forth in

Paragraph V of the Fifth Cause of Action alleged.

4. Defendant denies that Plaintiff, or any member of the

putative “class” received underpaid wages or demanded wages

different from those received for work performed and Defendant

therefore denies each and every allegation set forth in

Paragraph V of the Fifth Cause of Action alleged.

VI. Answer To Sixth Cause Of Action Alleged.

1. Defendant here incorporates by reference its answers to

allegations set forth in Paragraph I of the Second Cause of

Action alleged, in answer to the allegations set forth in

Paragraph I of the Sixth Cause of Action alleged.

2. Defendant denies each and every allegation set forth in

Paragraphs II and III of the Sixth Cause of Action alleged.

VII. Answer To Seventh Cause Of Action Alleged.

1. Defendant here incorporates by references its answers to

the allegations set forth in Paragraph I of the Second Cause of

Action alleged, in answer to the allegations set forth in Para-

graph I of the Seventh Cause of Action alleged.

2. Defendant denies each and every allegation set forth in

Paragraphs II and III of the Seventh Cause of Action alleged.

SECOND DEFENSE

The Court lacks jurisdiction over the subject matter of the

Complaint and/or the Complaint fails to state a claim upon

which relief may be granted by reason of Plaintiff's failure to

prosecute his claim pursuant to the provisions of 40 U.S.C.

§ 270a-d in the name of the United States, or under the provi-

sions of 40 U.S. C. § 276a-2(b), those statutory remedies being

the exclusive means to assert claims based upon 40 U.S.C.

§ 276(a), the substantive jurisdictional statute alleged in the

Complaint. University of Chicago and Argonne v. McDaniel,

dnckeac UL So oocceeenny 44 LW 3181 (October 6, 1975).

THIRD DEFENSE

The Complaint fails to state a claim upon which relief may

be granted by reason of Plaintiff's failure to allege a contract to

which Defendant is a party, which contains the provisions, or

determinations, referred to in 40 U.S.C. § 276(a), and pursu-

ant to which Plaintiff performed work.

FOURTH DEFENSE

The Court lacks jurisdiction over the subject matter of the

Complaint and/or the Complaint fails to state a claim upon

which relief may be granted by reason of the facts that:

1, Plaintiff, at all times relevant, performed work pursuant

to a contract between the United States and Defendant.

2. Said contract included provisions and schedules setting

forth the rates of Plaintiff's compensation.

3. Said contract affirmatively recites that it is not subject to

40 U.S.C. § 276(a).

4. The United States has, at all/times relevant:

a) supplied for payment to Plaintiff monies limited in

amount to those requiréd by the aforesaid compensa-

tion rate schedules approval by it and no more; and

b) audited, on a regular basis, records showing payments

to Plaintiff to ensure conformity to the aforesaid

schedules.

5. Defendant is entitled as a matter of law to rely upon its

contract with the United States as being the sole expression of

Defendant’s obligation to compensate Plaintiff.

FIFTH DEFENSE

The Court lacks jurisdiction over the subject matter of the

Complaint and/or the Complaint fails to state a claim upon

which relief may be granted by reason of Plaintiffs failure to

allege prior exhaustion of administrative remedies provided by

the United States, through the contracting agency (Energy Re-

search Development Administration), the U.S. Department of

Labor, and the Comptroller General.

SIXTH DEFENSE

The Court lacks jurisdiction with respect to any matter raised

in the Complaint and relating to events or transactions which

occurred prior to April 9, 1973, or, as to any claimant who has

not yet filed a consent as required by the Portal-to-Portal Act, 29

U.S.C. § 255, et seq. prior to two years preceding the date of

such filing, under the applicable statute of limitations, § 6 of the

Portal-to-Portal Act, 29 U.S. C. § 255.

SEVENTH DEFENSE

The Complaint fails to state a claim upon which relief can be

granted as to the purported “class” by reason of Plaintiff's failure

to allege a valid class action under Rule 23 of the Federal Rules

of Civil Procedure because:

a) the purported class is vague, indefinite and not reason-

ably identifiable; and

b) there are questions of law and fact bearing upon appli-

cation of the Davis-Bacon Act to specific work assign-

ments not common within the purported class.

EIGHTH DEFENSE

The Complaint should be dismissed on the ground that the

Court lacks jurisdiction over the Complaint, and specifically its

alleged Clauses of Action Second through Seventh, they being

pendent to an alleged federal cause of action over which this

Court lacks jurisdiction and which fails to state a claim upon

which relief may be granted.

NINTH DEFENSE

The Court lacks jurisdiction over the subject matter of the

Complaint and/or the Complaint fails to state a claim upon

which relief can be granted because the matter in controversy

does not exceed the sum or value of $10,000, exclusive of in-

terests and costs; and does not arise under the Constitution or

laws of the United States within the meaning of 28 U.S.C.

§§ 1331, or 1337.

Wherefore, Defendant prays that the Complaint be dismissed,

in its entirety, with prejudice, and with costs awarded to Defend-

ant together with such other relief as the Court shall deem just.

MEMORANDUM OPINION AND ORDER

This is an action brought on behalf of the named plaintiff,

Stanley Coutu, individually and as a representative of all per-

sons similarly situated, seeking relief from certain practices in

payment of wages by defendant to members of plaintiff's class.

The complaint alleges seven causes of action, the first of which

is based on the defendant’s violation of the provisions of the

Davis-Bacon Act, 40 U.S.C. § 276(a). The second cause of

action alleges a breach of défendant’s contractual obligations to

plaintiff and the class under the Davis-Bacon Act contract set

forth in the first cause of action and incorporated by reference

in the remaining causes of action. Jurisdiction is predicated on

28 U.S.C. §§ 1331 and 1337, and under the Davis-Bacon

Act, 40 U.S. C. § 276(a). The remaining causes of action are

based on common law counts for fraud, restitution, and pay-

ment of indebtedness on account and contract. Jurisdiction is

predicated on the allegation that each cause of action derives

from a nucleus of operative fact common with the first cause

of action, and is pendent thereto.

Leave to proceed on behalf of the class alleged has not been

granted.

Defendant has moved for dismissal of plaintiff's complaint

for any or all of eight reasons; the first three of which revolve

around the same issue and will be treated collectively.

1. Defendant first moves for dismissal for the reason that

this Court lacks jurisdiction over the subject matter of the

complaint and/or the complaint fails to state a claim upon which

relief can be granted, by reason of the plaintiff's failure to allege

prior exhaustion of administrative procedures.

2. In the alternative, defendant urges the Court to defer,

under the doctrine of Primary Jurisdiction, to administrative

resolution of issues relating to application of the Davis-Bacon

Act to work alleged under the sued-upon contract.

3. Furthermore, asserts defendant, the complaint fails to

state a claim upon which relief can be granted and the Court

lacks jurisdiction over the subject matter of the complaint, by

reason of, the absence of any allegations of determinations by

the Atomic Energy Commission (now U.S. Energy and Re-

search Development Administration, hereinafter referred to as

ERDA), or by the Secretary of Labor, specifying that compen-

sation is to be paid for work performed under the contract

different than the rates of compensation actually set forth

therein and approved by the United States through ERDA,

or that defendant has not in fact compensated employees in

accord with the rates specified in the contract as approved by

the United States through ERDA.

The defendant in its memorandum in support of its motion

to dismiss has summarized the issues raised in paragraphs 1,

2 and 3 of its motion as follows: whether this Court has

jurisdiction as a matter of law, or should as a matter of policy

undertake to review, revoke or overrule, retroactively, deter-

minations made by the agents of the United States government

in the contract in question.

In his complaint, plaintiff has alleged a contract between the

defendant and the United States for an amount in excess of

': $2,000 which provides for, among other things, construction,

‘alteration and repair of public buildings or public works of the

United States. Plaintiff has alleged that this contract requires

or involves the employment of mechanics and laborers, and has

further alleged that he and all the members of his class are

mechanics and laborers employed by defendant pursuant to the

said contract. The contract which plaintiff alleges exists between

defendant and the United States is commonly referred to as

Contract No. AT (49-8)-3000, a copy of which has been sub-

mitted to this Court by defendant.

In Paragraphs III and IV of what plaintiff labels his first

cause of action, plaintiff alleges that the defendant has failed to

pay to members of plaintiff's class the minimum wages required

to be paid pursuant to the said contract and the prevailing wage

determinations of the Secretary of Labor and the Davis-Bacon

Act, 40 U.S. C. § 276a, et seq. This allegation contradicts the

reasons which defendant cites for dismissal in the third para-

graph of his motion. However, this allegation is not totally

borne out by the alleged Contract No. AT (49-8)-3000.

Though the contract contains wage provisions, it does not

contain the standard provisions found in a Davis-Bacon con-

tract. 41 C.F. R. § 1-18.703-1. And as defendant has pointed

out in the memorandum in support of its motion, the contract

contains a clause in the labor provisions section which reads

as follows:

Article X XXII]——Labor Provisions

1. This contract does not contemplate the performance

of work by the Association (defendant herein), with

its own employees, which the Commission determines

is subject to the Davis-Bacon Act. Such work, if any,

performed under this contract shall be procured by

subcontracts which shall be subject to the written ap-

proval of the Commission (i.e., ERDA)....

(Contract AT (49-8)-3000, p. 54)

The defendant relies on the above contract provision and the

absence of standard Davis-Bacon Act provisions to support its

position that the contract in question is not a Davis-Bacon Act

contract. From this position, defendant reasons that plaintiff has

no cause of action pursuant to the contract upon which plain-

tiff can possibly base a claim for relief or over which the Court

can take jurisdiction. :

The defendant in its memorandum has soundly argued the

position that the administrative determinations of the contracting

agency are subject only to review by the Secretary of Labor, for

purposes of an authoritative ruling (29 C.F.R. 5.12), and in

certain instances are appealable to the Wage and Appeals Board

of the U. S. Department of Labor. 29 C. F. R. 5.11; 41 C. F.R.

7.10. Extrapolating on this position, defendant asserts that for

this Court to take jurisdiction over plaintiffs alleged cause of

action would be for the Court to subject the determinations of

the Secretary of Labor to judicial review. This, the defendant

asserts, the Court may not do, citing United States v. Binghamton

Construction Co., Inc., 347 U.S. 171, 74 S. Ct. 438 (1954)

and Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S. Ct. 869

(1940). .

The plaintiff, in response to defendant’s motion to dismiss and

memorandum in support thereof, relies exclusively on the recent

Seventh Circuit decision in McDaniel v. University of Chicago,

512 F. 2d 583 (7th Cir. 1975).

In McDaniel, the Court had before it a complaint containing

allegations almost identical to those in the case at bar. The

District Court concluded that the Davis-Bacon Act did not

confer a right of action against the contractor, cognizable in

Federal Court, under the circumstances alleged in the complaint.

On appeal, the Circuit Court agreed that § 276a-2(b) of the

Davis-Bacon Act did not create a cause of action, cognizable in

Federal Court, for one in plaintiff's position; the Court did

conclude, however, that “[W]age-earners have or may have rights

of action under the contractual provisions required by § 276a

which may be enforced in State Court actions or Federal Court

actions where jurisdiction is properly based.” McDaniel, 512

F. 2d 583, 586. The Court discussed the constitutional basis of

the Davis-Bacon Act, finding the Act to be significantly based

on the commerce clause. The Court therefore concluded that

“|. . [P]laintiffs complaint, in that it sought to enforce defend-

ant’s contractual commitment to pay ‘prevailing’ wages as deter-

mined by the Secretary of Labor, stated a cause of action under

the Davis-Bacon Act for which relief could be granted and that

subject matter jurisdiction was properly based upon 28 U. S. C.

§ 1337.” McDaniel, 512 F. 2d 583, 588.

Defendant has attempted to distinguish McDaniel on the

grounds that in McDaniel; there was no question but that the

contract involved was a Davis-Bacon contract, while in the case

at bar defendant asserts that the contract in question specifically

excludes Davis-Bacon Act work. If true, plaintiffs reliance on

McDaniel would surely be misplaced.

However, the purpose of a motion to dismiss is to test the

legal sufficiency of the allegations of the complaint. 2A Moore’s

Federal Practice, 2265, 2266. The plaintiff herein has properly

alleged a Davis-Bacon Act contract in his complaint, the only

difficulty being that the specific contract which plaintiff alleges,

Contract No. AT (49-8)-3000, does not bear out all of plain-

tiff’s allegations. It does not, however, conclusively foreclose the

possibility that plaintiff has stated a claim upon which relief may

be granted.

Defendant relies on the contract clause taken from the labor

provisions of the contract (quoted above) for its position that

the contract does not contemplate the performance of Davis-

Bacon work by defendant’s employees. This clause, however,

does not preclude the possibility of performance cf Davis-Bacon

Act work pursuant to the contract, albeit by someone other than

defendant’s employees. Furthermore, the Court is apprised of a

correspondence between the defendant and the United States

Atomic Energy Commission (ERDA) dated April 6, 1972,

which has seemingly been incorporated into the alleged contract.

This correspondence leaves open the possibility of performance

of Davis-Bacon Act work by defendant’s employees pursuant to

proper Davis-Bacon determinations by ERDA with regard to the

work to be performed, and pursuant to appropriate modification

of the contract to incorporate the necessary provisions relative

to wages and labor.

The Court is thus presented with factual considerations as to

the existence of Davis-Bacon Act determinations by ERDA

pursuant to the contract, and as to performance of Davis-Bacon

Act work, properly or improperly assigned to plaintiff and the

class by defendant, as alleged by plaintiff. This Court cannot

make factual determinations on a motion to dismiss. Schafly v.

Volpe, 495 F. 2d 273 (7th Cir. 1974). Rather the complaint

must be liberally construed with all factual allegations deemed to

be true and with doubts resolved in favor of the pleader. Parr v.

Great Lakes Express Co., 484 F.2d 767 (7th Cir. 1973). A

complaint should not be dismissed for failure to state a claim

unless it appears beyond doubt that plaintiff can prove no set of

facts in support of his claim which would entitle him to relief.

Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99 (1957).

Thus, accepting plaintiff's allegations as true and construing

all doubts in favor of plaintiff, this Court deems that plaintiff has

alleged a cause of action in Count II on a Davis-Bacon contract

which states a claim upon which relief may be granted and over

which this Court has jurisdiction, based on the Seventh Circuit’s

finding in McDaniel that in such a cause of action jurisdiction

may be properly predicated on 28 U.S.C. § 1337. Having

asserted jurisdiction over this cause of action, the Court also has

pendent jurisdiction to decide the state claims arising out of the

same facts, which have been set forth in counts three through

seven of the complaint. United Mine Workers v. Gibbs, 383

U.S. 715, 86 S. Ct. 1130 (1966). This Court does not thereby

seek to review the determinations of the Secretary of Labor of

the contracting agency; rather the Court gives plaintiff leave to

show that the Secretary of Labor through ERDA has made

Davis-Bacon Act determinations with respect to the alleged con-

tract, and that plaintiff and the class have performed such work

at defendant’s direction, pursuant to the contract.

Defendant’s fourth reason for dismissal of plaintiff's complaint

is based on the effect of the Portal-to-Portal Pay Act time

limitations, 29 U.S. C. §§ 255, 256, which bar any action for

unpaid minimum wages under the Davis-Bacon Act which is not

commenced within two years after the accrual of the cause of

action. Defendant asserts that under the provisions of 29 U. S. C.

§ 256, governing when an action is commenced for purposes of

tolling the statute of limitations set forth in 29 U.S.C. § 255,

the cause of action herein is determined to have been com-

menced as to the named plaintiff on April 9, 1975, when his

complaint and his written consent to become a party plaintiff

were filed. Therefore, as to the named plaintiff, Stanley Coutu,

the statute of limitations under § 255 would bar any cause of

action for minimum wages which accrued prior to April 9, 1973.

Some Federal Courts have found that the lack of detail in

notice pleading renders improper the raising of limitations ques-

tions by motion to dismiss, see Annot., 61 A. L. R. 2d 300, 327.

However, in the Seventh Circuit a motion to dismiss raising the

defense of the statute of limitations is proper where the bar of the

statute can be seen from the face of the complaint. Kincheloe v.

Farmer, 214 F. 2d 604 (7th Cir. 1954), cert. denied, 348 U. S.

920, 75 S. Ct. 306, 99 L. Ed. 721 (1955). In light of the

Portal-to-Portal Act provisions with respect to actions under the

Davis-Bacon Act, and in light of Rule 9A of the Federal Rules of

Civil Procedure, the Court finds that defendant has properly

raised the statute of limitations in his motion to dismiss.

The statutory language of § 255 clearly makes the statute of

limitations applicable to plaintiff's Federal cause of action which

predicates jurisdiction on 28 U.S.C. § 1337. The Court must

apply state substantive law to state claims taken under pendent

jurisdiction by a Federal Court. But while a statute of limitations

is often considered to be a substantive matter, J. M. Blythe v.

Blalock, 310 F.2d 77 (Sth Cir. 1962), the express purpose of

29 U. S. C. § 255 was to substitute a uniform Federal limitations

period for the diverse periods provided under statutes of the

several states. 29 U.S.C. § 251; Hodgson v. Humphries, 454

F.2d 1279 (10th Cir. 1972). Thus the Court finds that the

statute of limitations of § 255 is equally applicable to the state

claims taken under pendent jurisdiction insofar as they arise by

virtue of a Federal statute, and the Court’s jurisdiction over them

depends on their pendency to a cause of action under a statute

with a two-year limitation. |

There remains the question, however, whather the two-year

statute of limitations is applicable on the three-year limitation

period for “willful” violations. 29 U.S.C. § 255(a). Though

plaintiff has not specifically alleged “willfulness” in his com-

plaint, with the exception of Count III, he has sufficiently

pleaded his allegations to raise a factual issue as to whether

defendant’s actions were willful. The Court at this juncture can-

not determine the issue of willfuiness, but rather should defer a

ruling on this issue until further evidence is presented at trial.

Bormann v. Long Island Press Publishing Co., Inc., 379 F. Supp.

951 (1974).

Defendant’s fifth reason cited for dismissal of plaintiff's com-

plaint is that it fails to state a claim upon which relief can be

granted because of plaintiff's failure to allege a valid class under

Rule 23 of the Federal Rules of Civil Procedure. The action is

brought on behalf of the named plaintiff, individually, and as a

representative of the class. Therefore, dismissal of the class

would not dismiss the complaint. There has as yet been no deter-

mination as to whether the action may be maintained as a class

action pursuant to Rule 23 of the Federal Rules. For these

reasons, defendant’s motion to dismiss for failure to allege a

valid class action is unwarranted at this time.

Defendant’s sixth ground for dismissal is based on plaintiff's

failure to prosecute his claim pursuant to the provisions of the

Miller Act, 40 U.S.C. § 270a-d, which requires defendant to

procure a bond for payment of laborers and mechanics pursuant

to contracts of the type in question. Defendant also asserts that

plaintiff has failed to prosecute his claim under the provisions of

the Davis-Bacon Act; 40 U.S.C. § 270a-2(b), which authorizes

withholding of funds from the contractor for payment of unpaid

laborers and mechanics employed pursuant to the contract.

‘The cause of action on defendant’s contractual commitment

under the Davis-Bacon contract is distinct from that on a Miller

Act bond. McDaniel, 512 F.2d 583 (7th Cir. 1975). The

Miller Act cause of action arises when the contractor has fur-

nished a bond, and when the funds withheld pursuant to § 276a-

2(b), if any, are exhausted. In McDaniel, it'was undisputed that

the contractor had not supplied a Miller Act bond, nor had the

government withheld funds for payment of wage claims. In the

case at bar, there has been no allegation or determination that

a Miller Act bond exists or that funds were withheld from the

contractor by the government. The Court need not determine

whether exhaustion of these remedies is a condition precedent

to a cause of action on defendant’s contract commitments

unless it be shown that such remedies do, in fact, exist.

The withholding of funds by the government is not mandatory

under 40 U.S.C. § 276a-2(b). And, as pointed out in

McDaniel, the Miller Act bond can be waived in certain cir-

cumstances. 40 U.S.C. § 270(e). There has been no claim

that such waiver here would have been wnauthorized, and the

complaint does not suggest that plaintiffs claim is based on

defendant’s failure to provide a Miller Act bond. Thus the com-

plaint cannot be dismissed on the ground asserted by defend-

ant in paragraph six of his motion.

Paragraplis seven and eight of defendant’s motion charge

that the Court cannot take jurisdiction over the claims of plain-

tiffs complaint for the reason that plaintiff fails to allege the

requisite $10,000 damages for Federal jurisdiction and that

the Court has no jurisdiction under § 1337. Defendant further

asserts that, since the Court lacks jurisdiction over the Federal

claims, it cannot assert pendent jurisdiction over the state claims.

These issues have already been disposed of by the Court.

The Court recognizes defendant’s claim of jurisdiction under 28

U.S.C. § 1337 for which no jurisdictional amount need be

alleged. Having asserted Federal jurisdiction over plaintiff's

Count II, the Court has pendent jurisdiction of the claims in

Counts III through VII. United Mine Workers v. Gibbs, 383

U.S. 715 (1966).

Therefore, defendant’s motion to dismiss is granted as to

Count I. The motion is denied as to Counts II through VII.

The statute of limitations bars any cause of action of the named

plaintiff which accrued prior to April 9, 1972. Those claims

under Counts II, IV, V, VI and VII of the named plaintiff

accruing between April 9, 1972 and April 9, 1973 are not

dismissed but are subject to determinations at trial concerning

the willfulness of the violations. Count III is subject only to

the three-year statute of limitations.

DATED: October 8, 1975

ENTER:

/s/ Frank McGarr

MEMORANDUM ORDER

This dispute arises out of a contract for the design, construc-

tion, and operation of the National Accelerator Laboratories,

between defendant Universities Research Association, Inc. and

the United States government acting through the Atomic Energy

Commission and its successor, the Energy Research and De-

velopment Administration (hereinafter ERDA). Plaintiff

Stanley Coutu filed this class action claiming that defendant

failed to duly compensate plaintiff class for work it performed

during the construction of the facility. The class has been cer-

tified and is described as follows:

All “mechanics and/or laborers” employed by defend-

ant pursuant to Contract No. AT(49-8)-3000 between

defendant and the United States of America “for construc-

tion, alteration and/or repair, including painting and deco-

rating, of public buildings and public works of the United

States” who have been paid wages less than “the wages

* * * determined by the Secretary of Labor to be prevail-

ing for the various classes of laborers and mechanics * * *

in the city, town, village, or other civil subdivision of the

State” in which the work was performed, all as stated and

defined in the Davis-Bacon Act, 40 U. S. C. § 276a, et seq.

Defendant is a not-for-profit consortium of universities formed

for the purpose of facilitating scientific research and charged

with the responsibility for design, procurement, and fabrication

of the accelerator. Jurisdiction for Counts I and II of the com-

plaint is invoked pursuant to 28 U.S.C. §§ 1331, 1337, and

this court’s pendent jurisdiction is invoked to entertain the re-

maining counts. This cause is before the court on defendant’s

motion for summary judgment.

Count I and II of plaintiffs complaint are the core federal

claims contained in this suit. In Count I, plaintiff class pur-

ported to state a claim on the theory that defendant failed to

compensate plaintiff class in accordance with the prevailing

wage determinations made by the Secretary of Labor pursuant

to the authorization of the Davis-Bacon Act, 40 U.S. C. § 279a,

et seq., whether or not the wage determinations were incor-

porated in the contract. This count was dismissed by the memo-

randum opinion and order filed by the Honorable Frank

McGarr.

In Count II, plaintiff class alleges that the contract falls with-

in the purview of the Davis-Bacon Act, and that the contract

by its terms provides for “payment to members of plaintiff class

at the legal wage rate applicable to work actually performed.”

Judge McGarr denied defendant’s previous motion to dismiss

this count on the ground that plaintiff stated a claim on which

relief could be granted and over which the court had jurisdic-

tion in accordance with McDaniel v. University of Chicago, 512

F, 2d 583 (7th Cir.), vacated and remanded on other grounds,

423 U.S. 810 (1975). Judge McGarr held that the contract

did not preclude performance of Davis-Bacon work by defend-

ant’s employees pursuant to proper Davis-Bacon determina-

tions by the contracting agency, ERDA, and the necessary modi-

fications of the contract. [See Memorandum Opinion an Order

at p. 8] Accordingly, plaintiff class was given “leave to show

that the Secretary of Labor through ERDA has made Davis-

Bacon Act determination with respect to the alleged contract,

and that plaintiff and the class have performed such work at

defendant’s direction, pursuant to the contract.” [/d. at p. 10]

Defendant has filed a motion for summary judgment sup-

ported by the affidavit of John R. Frazier, Chief Legal Counsel

for the Fermi National Accelerator Laboratory, claiming that

there is no issue of material fact and defendant is entitled to

judgment as a matter of law. Defendant asserts that the only

contract between defendant and the United States government is

Contract No, EY-76-C-02-3000, as amended, formerly desig-

nated AT(49-8)-3000, and that “[nJo Davis-Bacon Act, 40

U.S. C. § 276a, et seq., stipulations requiring the payment of

prevailing wages have ever been made a part of or incorporated

in said Contract . . .” [Affidavit of John R. Frazier, 4 3]

Plaintiff class has filed a memorandum in opposition to de-

fendant’s motion. Plaintiff class as much concedes that the

contract fails to include Davis-Bacon specifications [Plaintiff's

memorandum at 1-3], but it argues that this amounts to a viola-

tion of the act which should not serve to shield defendant from

plaintiffs’ implied right of action found in McDaniel v. Univer-

sity of Chicago, 512 F.2d 588 (7th Cir.), vacated and re-

manded, 423 U.S. 810 (1975), reaffd, 548 F.2d 689 (7th

Cir. 1977). Plaintiff class argues that the following contract

language contemplated the likelihood that Davis-Bacon Act

work would be performed.

ARTICLE XXXIII—LABOR PROVISIONS

1. This contract does not contemplate the performance

of work by the Association, with its own employees,

which the Commission determines is subject to the

Davis-Bacon Act. Such work, if any, performed under

this contract shall be procured by subcontracts which

shall be subject to the written approval of the Commis-

sion and contain the provisions relative to labor and

wages required by law to be included in contracts for

the construction, alteration, and/or repair, including

painting and decorating, of a public building or public

work,

Based on its interpretation of the contract clause, plaintiff class

argues that there is a material issue of fact with regard to who

performed the contemplated Davis-Bacon work for defendant

over the years. Plaintiff class has offered no affidavit and has

failed to point to any material adduced during discovery which

would controvert the affidavit of John Frazier.

On the present state of the record it is clear that no Davis-

Bacon Act determinations have been made a part of this con-

thas

tract, requiring defendant to pay plaintiff class at wage rates

contemplated by the Davis-Bacon Act. The only issue is whether

plaintiff class can proceed in this action under the Davis-Bacon

Act absent any showing that the government and defendant

have made a determination that the contract is subject to the

Act’s provisions. An examination ef the contract, the Act, and

the relevant regulations reveals that defendant’s motion for sum-

mary judgment must be granted. There is no issue of material

fact and defendant is entitled to judgment on Count II as a

matter of law. See Rose v. Bridgeport Brass Co., 487 F. 2d 804,

808 (7th Cir. 1973).

The Davis-Bacon Act is essentially a minimum wage law

which requires that “specifications for every contract in excess

of $2,000, to which the United States . . . is a party, for con-

struction, alteration, and/or repair . . . of public works of the

United States . . . and which requires or involves the employ-

ment of mechanics and/or laborers shall contain a provision

stating the minimum wages to be paid various classes of laborers

and mechanics. .. .” 40 U.S.C. § 276a. The Act is designed

to protect employees of persons contracting with the ¢ “ern-

ment from substandard earnings. United States v. Binghamson

Construction Co., 347 U.S. 171 (1954). The determination

of whether a contract is subject to the Act is made by the

agency which is contracting on behalf of the United States gov-

ernment and the decision must be made in accordance with ap-

plicable regulations. 41 C. F. R. § 1-18.701-1, 1-18. 701-2, 9-

18.700(b). The contracting agency in this case has formal

guidelines and a Davis-Bacon Committee for determining what

work is subject to the Act. [Kennedy Dep. 42, 46-48, 75]. Any

dispute regarding the application of the Act is referable to the

Secretary of Labor for an authoritative ruling. 29 C. F. R. 5.12.

The efficacy of the Act hinges on minimum wage determina-

tions by the Secretary of Labor and the incorporation of mini-

mum wage specifications in the contract. See Walsh v. Schlecht,

97 S. Ct. 679, 686 (1977); United States v. Binghamton Con-

struction Co., 347 U.S. 171, 172 (1954); McDaniel v. Univer-

sity of Chicago, supra; North Georgia Bldg & C.T.C. v. U.S.

Dept. of Transportation, 399 F. Supp. 58, 60-61 (N. D. Ga.

1975); 41 C.F. R. § 1-18.703-1 (1974).

After examination of the statutory and regulatory framework,

it becomes clear that it would be improper for this court to

declare in the first instance that this contract is now subject to

the Davis-Bacon Act and to make appropriate wage determina-

tions for the parties. See Framlau Corporation v. Dembling,

360 F. Supp. 806, 809 (E. D. Pa. 1973) and cases cited therein.

This court concludes that there is no issue of material fact that

this contract fails to contain the requisite Davis-Bacon Act

specifications essential for maintenance of the claim stated in

Count II. Accordingly, this court enters judgment for defendant

on Count II of the complaint and that count is dismissed.

The court has examined the pendent counts raised in the

complaint and due to the legally insubstantial nature of the

federal claims raised in Counts I and II, the court, in the

exercise of its discretion declines to assert jurisdiction over the

claims raised therein. See United Mine Workers of America v.

Gibbs, 383 U.S. 715 (1966); Ohio Inns, Inc. v. Nye, 542 F. 2d

673 (6th Cir. 1976), cert. denied, 45 U.S. L. W. 3651 (March

28, 1977); Mcllhenny v. American Title Ins. Co., 418 F. Supp.

364, 372 (E.D. Pa. 1976). Accordingly, this suit is dismissed

in its entirety.

_ So ordered

/s/ George N. Leighton

George N. Leighton, United States

District Judge

Dated: November 29, 1977

IN THE UNITED STATES COURT OF APPEALS

For the Seventh Circuit

No. 78-1165

STANLEY EB. COUTHU, et al.,

Plaintiffs-A ppellants,

vs.

UNIVERSITIES RESEARCH ASSOCIATION, INC.,

Defendant-A ppellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 75 C 1129—George N. Leighton, Judge.

HEARD DECEMBER 6, 1978—DECIDED APRIL 4, 1979

Before CASTLE, Senior Circuit Judge, CUMMINGS and PELL,

Circuit Judges.

CuMMINGS, Circuit Judge. This action was brought by plain-

tiff, an electronics technician,’ and his class seeking $5,000,000

in damages and other relief on the ground that defendant did

not pay them the prevailing wages required by the Davis-Bacon

Act (40 U.S.C. § 276a ef seg.) for their construction work.

Defendant is a not-for-profit consortium of universities formed

to facilitate scientific research and to design, construct and

operate the Fermi National Accelerator Laboratory in Batavia,

1. Plaintiff was employed by defendant at the Fermi National

Accelerator Laboratory from 1972 until he resigned three years later.

Illinois. This facility is a 6800-acre Kane County site contain-

ing laboratories, research offices, related facilities, and the world’s

largest proton accelerator system. It is used to carry out research

in the field of high-energy physics by numerous scientists from

institutions located throughout the world. (App. 50 n. 3.) The

Davis-Bacon Act requires government construction contracts to

contain a provision stating that the minimum wages to be paid

various classes of laborers and mechanics shall be based upon

the wages to be determined by the Secretary of Labor to be pre-

vailing where the work is to be performed. 40 U. S. C. § 276a(a).

We held in McDaniel v. University of Chicago, 512 F. 2d 583

(7th Cir. 1975), reaffirmed on remand, 548 F.2d 689 (7th

Cir. 1977), certiorari denied, 434 U.S. 1033, that employees

have an implied private right of action to sue for wages due

under the Act. Our decision in the present case flows directly

from the McDaniel opinions. The complications arise only from

the procedural posture of the case and from defendant’s renewed

attempts to establish an exhaustion requirement.

Plaintiff and his class alleged in their “First Cause of Action”

(hereinafter “Count I’) that defendant violated the Davis-

Bacon Act by not paying members of plaintiff's class the mini-

mum wages “required to be paid pursuant to the said contract

and the prevailing wage determinations of the Secretary of Labor

and the Davis-Bacon Act” (App. 2). Count I was dismissed in

an unreported October 8, 1975, memorandum opinion and order

of Judge McGarr. However, that order did not dismiss the

remaining six Counties of the complaint.

On August 10, 1976, Judge Leighton, to whom the class

action had been transferred, certified the plaintiff class.? Dis-

2. The class was described as follows:

“All ‘mechanics and/or laborers’ employed by defendant

pursuant to Contract No. AT (49-8)-3000 between defendant

and the United States of America ‘for construction, alteration

and/or repair, including painting and decorating, of public

buildings and public works of the United States’ who have been

(Footnote continued on next page.)

covery was apparently stayed in February 1977.* In March

1977, defendant filed a motion for summary judgment. In

November 1977, Judge Leighton handed down a memorandum

order granting that motion. The court noted that in Count Il

the plaintiff class alleged that the contract fell within the pur-

view of the Davis-Bacon Act and that the contract by its terms

provides for “payment to members of plaintiff class at the legal

wage rate applicable to work actually performed.” In this

memorandum order, the district court noted that no Davis-Bacon

Act stipulations requiring the payment of prevailing wages were

ever made a part of the contract between defendant and the

United States.* The court noted that the plaintiffs class was

relying on Article XXXIII of the contract providing that the

contract did not contemplate the performance of work by

defendant with its own employees “which the Commission [now

the Energy Research and Development Administration (ERDA)*]

determines is subject to the Davis-Bacon Act” and that such

work was to be procured by subcontracts containing “the [Davis-

Bacon] provisions relative to labor and wages required by law.”

The court then held that the contract failed to contain the

“requisite Davis-Bacon Act specifications for maintenance of

(Footnote continued from preceding page.)

paid wages less than ‘the wages * * * determined by the Secre-

tary of Labor to be prevailing for the various classes of laborers

and mechanics * * *\in the city, town, village, or other civil

subdivision of the State’ in which the work was performed,

all as stated and defined in the Davis-Bacon Act, 40 U.S.C.

§ 276a, et seg.”

3. Plaintiff apparently relies on Judge Leighton’s minute order

of February 18, 1977, stating “P/T completed” to show discovery

was thereby stayed. Defendant’s brief nowhere disputes the stay. An

earlier discovery stay was ordered by Judge McGarr on December

22, 1975.

4. In this respect, the court relied on an affidavit of John R.

Frazier, chief legal counsel for the Fermi National Accelerator

Laboratory. As will be seen, this affidavit does not resolve the

controversy.

5. ERDA is the successor to the Atomic Energy Commission.

the claims stated in Count II” and accordingly dismissed that

Count. Counts III through VII of the complaint were based on

state claims, and the district court declined to assert pendent

jurisdiction over them “due to the legally insubstantial nature

of the federal claims.” Therefore, the complaint was dismissed in

its entirety.

No notice of appeal was filed with respect to Judge McGarr’s

dismissal of Count I of the complaint, so that the principal ques-

tion before us is whether Count II, asserting that defendant

breached contractual obligations to the members of plaintiff class,

was properly dismissed. At the outset, the parties disagree on

what was decided by Judge McGarr and therefore what re-

mained to be decided by Judge Leighton. The defendant insists

that only two narrow fact questions were left open by Judge

McGarr: (1) whether the contract actually contained Davis-

Bacon Act stipulations and, if so, (2) whether Davis-Bacon

Act work was performed by members of the plaintiff class. If

this were all that was left for Judge Leighton to decide, the

affidavit that there were no Davis-Bacon Act stipulations (n. 4

supra) might require affirmance of the summary judgment.

However, we do not believe that Judge McGarr reduced the suit

to a simple case of whether express wage stipulations in the

contract had been breached. On the contrary, in dismissing

Count I Judge McGarr held only that if the contract was not

a Davis-Bacon Act contract plaintiff could not recover.® Clearly

if a contract contains the required wage stipulations, this would

6. There is some support for the proposition that if work covered

by the Davis-Bacon Act happens to be performed under a contract

which did not intend that ‘such work be performed by anyone, it is

not covered by the Act. 40 Comp. Gen. 565 (1961). This inter-

pretation, however, raises the additional question of who is to decide

whether a contract is subject to the Act. Judge McGarr appeared to

accept defendant’s contention that authority to make this determina-

tion was accorded exclusively to the executive departments so that

their decisions in this regard are not subject to judicial review (App.

23). We note in addition that even if such administrative action is

reviewable, there may be an exhaustion requirement. We do not

decide any of these questions, since they are not before us.

show that it was a Davis-Bacon Act contract. Judge McGarr

apparently recognized, however, and we agree, that clauses in

the contract other than the wage stipulations may reveal that

the contract was one for Davis-Bacon Act work (App. 25).

Thus two theories of recovery remained open to the plaintiff

class after Judge McGarr’s dismissal: (1) there may have been

Davis-Bacon Act stipulations in the contract or (2) there may

have been other evidence that the contract was one for Davis-

Bacon Act work, in which case the required stipulations arguably

become a part of the contract by operation of law. Judge Leigh-

ton’s grant of summary judgment was based on the affidavit

(n. 4 supra) tending to disprove only the first of these two

theories. We hold that summary judgment was improperly

entered against plaintiff and his class because the required wage

stipulations were incorporated by operation of law.

The Davis-Bacon Act Applies to Construction, Alteration or

Repair Work Performed by Defendant

The key provision in the Contract between defendant and

the United States Government acting through ERDA is Article

XXXIII which provides in pertinent part as follows:

“This contract does not contemplate the performance of

work by the Association, with its own employees, which the

Commission determines is subject to the Davis-Bacon Act.

Such work, if any, performed under this contract shall be

procured by subcontracts which shall be subject to the

written approval of the Commission and contain the pro-

visions relative to labor and wages required by law to be

included in contracts for the construction, alteration and/or

repair, including painting and decorating, of a —" build-

ing or public work.”

In this lawsuit, plaintiff contends that defendant’s own employees

performed and are performing construction, alteration and repair

work at the Fermi Laboratory, so that the Davis-Bacon Act

wage provisions are applicable to the work done by plaintiff and

his class. We agree that if the defendant actually performed such

work with its own employees at the Fermi Laboratory, they

became entitled to the prevailing wages in Kane County where

the work was to be performed. This conclusion follows from our

holding in McDaniel v. University of Chicago, supra.

McDaniel involved a government contract clause which is

virtually identical to Article XX XIII of this contract. The con-

tract at issue in McDaniel was between the Atomic Energy Com-

mission and the University of Chicago for operation of the

Argonne National Laboratory. That contract barred the Uni-

versity of Chicago from construction work of a kind subject to

the Davis-Bacon Act. As with Article XX XIII of the present

contract, the University of Chicago was to have all Davis-Bacon

Act work performed by subcontractors.’ We held that the con-

struction or alteration work performed by the University of

Chicago was subject to the provisions of the Davis-Bacon Act

even though the contract lacked a stipulation requiring the pay-

ment of Davis-Bacon Act wage rates, stating:

7. The applicable clause of the McDaniel contract between the

University of Chicago and the Atomic Energy Commission provided:

“26.5 Davis-Bacon and Other Labor Provisions for Construc-

tion Subcontracts.

“The University and the Commission have agreed upon a

procedure under which the Commission will determine when

work to be undertaken at the Laboratory Facilities is covered

by the Davis-Bacon Act. When it is determined that the Davis-

Bacon Act does cover a particular work project, the University

shall procure by subcontract the covered work. Any subcontract

entered into under this section shall contain the provisions

relative to labor and wages required by law to be included in

contracts for the construction, alteration and/or repair, includ-

ing painting and decorating, of a public building or public work.

When requested by the Commission, any such subcontract shall

be submitted for Commission approval.

* * * * ao

“Supplement No. 16, Appendix D.”

(quoted at p. la of the Solicitor General’s amicus curiae brief

on petition for a writ of certiorari from the Supreme Court in

University of Chicago and Argonne v. McDaniel, 434 U.S.

1033.)

“There is no question but that this government contract

was subject to the provisions of the Davis-Bacon Act.

Accordingly 40 U.S.C. § 276a required the specifications

to ‘contain a provision stating the minimum wages to be

paid various classes of laborers and mechanics which shall

be based upon the wages that will be determined by the

Secretary of Labor to be prevailing for the corresponding

classes of laborers and mechanics employed on projects of

a character similar to the contract work’ in the place of

performance, and required any contract based on the

specifications to contain certain stipulations concerning pay-

ment of mechanics and laborers by the contractor or sub-

contractor.” (512 F. 2d at 584.)

Similarly here, the provisions of the Davis-Bacon Act must be

read into Article XX XIII when, pursuant to a contract requiring

Davis-Bacon Act work, the defendant performs “construction,

alteration, and/or repair * * * of public buildings or public

works of the United States * * * which requires or involves the

employment of mechanics and/or laborers.” Section 1 of the

Davis-Bacon Act applies to such work in government contracts

in excess of $2,000 and mandates that an employer must pay

“wages that will be determined by the Secretary of Labor to

be prevailing for the corresponding classes of laborers and

mechanics employed on projects of a character similar to the

contract work in the * * * subdivision of the State in which the

work is to be performed * * *.” 40 U.S.C. § 276a.

Indeed, in a January 23, 1973, letter from the Atomic Energy

Commission’s Chicago Operations Office Manager to the presi-

dent of the defendant, both those parties foresaw that conditions

might arise which might make it necessary for the defendant to

perform Davis-Bacon Act work and in such instance to modify

the contract to incorporate the Davis-Bacon Act provisions rela-

tive to labor and wages. Since under McDaniel I the contract

was already so modified by operation of law, amendments to the

contract were not needed to accomplish that result.

McDaniel was not an isolated instance of reading applicable

statutory requirements into government contracts. We were

merely following precedents established as early as 1827 and

applied consistently thereafter,* Because the provision to pay the

prevailing wage rate was incorporated by operation of law, the

affidavit relied upon by the district court to the effect that no

Davis-Bacon Act “stipulations requiring the payment of prevail-

ing wages have ever been made a part of or incorporated in” the

contract (see n. 4 supra) is insufficient to support the grant of

summary judgment. Therefore it was unnecessary for plaintiff to

tender a counter-affidavit.

It is uncontested that the Secretary of Labor has published

general wage determinations in decisions published in the

Federal Register that are applicable to labor on government

projects in Kane County, Illinois, where the Fermi Laboratory

is located and where the defendant’s alleged construction activity

has been performed.® Therefore the district court was mistaken

8. See, e.g., Ogden v. Saunders, 25 U.S. (12 Wheat.) 212

(1827); Woods v. Lovett, 313 U.S. 362, 370; G. L. Christian &

Associates V. United States, 312 F. 2d 418, 320 F. 2d 345 (Ct. Cl.

1963), certiorari denied, 375 U.S. 954; United States v. New

Orleans Public Service Inc., 553 F. 2d 459, 469 (5th Cir. 1977);

Campagnie Générale Transatlantique v. American Tobacco Co., 31

F. 2d 663, 666 (2d Cir. 1929); City of Tullahoma v. Coffee County,

204 F. Supp. 794, 800 (E. D. Tenn. 1962); 3 Corbin on Contracts,

§ 551; 4 Williston on Contracts, § 615 at p. 621; Dees and Ginsberg,

Contract Interpretations and Defective Specifications (Government

pre tir Monograph No. 4, 1975 ed., George Washington Univer-

sity) 1-4.

United States v. Joseph A. Holpuch Co., 328 U.S. 234, on which

defendant relies, is not to the contrary. It did not concern the ques-

tion whether applicable statutory terms must be read into government

contracts. International Association of Machinists v. Hodgson, 515

F. 2d 373 (D.C. Cir. 1975), cited by defendant at oral argument, is

also consistent with our holding. That case involved the Secretary of

Labor’s decision to exercise his discretion not to issue a wage deter-

mination under the Service Contract Act. The Davis-Bacon Act,

however, confers no such discretion on him.

9. See 43 F.R. 11379-11383 containing the introductory notice

to a recent compilation of the Secretary’s wage determinations and

decisions specifically applicable to government project work in

Kane County. 42 F. R. 30108-30111, 35522, 39847-39848 contain

examples of such decisions.

in concluding that to sustain plaintiff's position would require it

to make wage determinations for the parties.

Exhaustion of Administrative Remedies Is Not Required

If defendant or our own research had uncovered adminis-

trative regulations affording plaintiff and his class relief in this

situation, we might require recourse to that remedy before

permitting this lawsuit to proceed. The Davis-Bacon Act itself

does not contain a provision requiring exhaustion of adminis-

trative remedies in this kind of case. Moreover, we rejected such

an argument in the second McDaniel case where the University

of Chicago had argued that administrative procedures afforded

adequate relief to the individual employees of a government

contractor.’ In the McDaniel cases, there was no showing that

the plaintiff and his class had attempted to secure administrative

relief, and in according them a judicial remedy we necessarily

decided that there was no requirement that they first seek redress

from the contractor or the Department of Labor. Moreover, the

administrative procedures seem to be aimed at contractor com-

pliance with the Davis-Bacon Act. Defendant has not shown that

the Secretary of Labor has any authority to order a contractor to

pay more for Davis-Bacon work already completed.’ As the

Government itself recognized in McDaniel II,

10. See p. 12 of supplemental brief for defendants-appellees in

McDaniel v. University of Chicago, 548 F. 2d 689 (7th Cir. 1976),

certiorari denied, 434 U.S. 1033.

11. Enforcement through contract termination and debarment

from future contracts is provided for. 40 U.S.C. § 276a-1; 29

C. F.R. § 5.7(d); 29 C. F.R. § 5.6(b) (1). Additionally, the regu-

lations provide for suspension of payments under the contract if

the agency (here ERDA) determines the contractor has failed to

“comply with labor standards stipulations * * *” (29.C. F.R. § 5.9).

This remedy seems inadequate to assure the employees of a full

recovery in the present case for three reasons: (1) it is based on the

assumption that there are stipulations in the contract, (2) it provides

for withholding pormen only until the violations are discontinued or

(apparently in the agency’s discretion) enough has been withheld to

compensate the employees, and (3) withholding funds is hardly

(Footnote continued on next page.)

“Neither the statute nor the regulations promulgated there-

under provide any administrative remedy in favor of an

employee who has been injured by the failure to

include the prevailing-wage provisions in a contract.”

(Solicitor General’s amicus curiae brief opposing the peti-

tion for a writ of certiorari in University of Chicago and

Argonne V. McDaniel, 434 U.S. 1033, at 25, n. 20.)

Instead, the regulations are either inadequate as to this class or

are merely detailed guidelines for determining what constitutes

Davis-Bacon work.'* While such regulations presumably facili-

tate contractor compliance, they do not assure a remedy to

employees.’*

The cases cited by defendant for the proposition that the

administrative remedies are adequate involved contracts which

did contain Davis-Bacon Act stipulations. The disputes in those

cases focused on the proper classification of work’* or the

(Footnote continued from preceding page.)

feasible in this case since, as counsel for defendant advised us at oral

argument, the defendant is merely a conduit for federal funds. It is

thus not clear that such a contractor can or should be required to

make restitution out of its own unrelated funds.

Finally, the regulations provide that “[t]he Agency Head may, in

appropriate cases * * * request that restitution be made * * *.”

(29 C.F. R. $5.10.) Apart from the fact that the precatory lan-

guage of this regulation gives employees no sure means of redress,

this would not seem to be an “appropriate case” for such restitution

in view of the defendant’s self-styled conduit nature.

12. See n.11 supra and 41 C.F.R. §§ 9-18.701, 9-18.704,

9-18.740.

13. The Disputes clause contained in Article XIX of the contract

with respect to the resolution of controversies between the contract-

ing parties is inapplicable because it relates only to questions of fact

whereas the question before us is essentially one of law, vis., whether

the provisions of the Davis-Bacon Act apply to construction, altera-

tion or repair work performed by defendant’s employees, and because

this is not a controversy between the contracting parties.

14. North Georgia Building & Construction Trades Council v.

Department of Transportation, 399 F. Supp. 58 (N. D. Ga. 1975);

Framlau Corporation v. Dembling, 360 F.Supp. 806 (E.D. Pa.

1973); In re Stanford Linear Accelerator Center, 16 Wage-Hour

Cases 851 (Wage Appeals Board, Department of Labor 1965).

determination of wage rates.*° These and other cases involving

the finality of the Secretary of Labor’s decisions regarding wage

rates and job classifications are not germane to the central

question in this case, which is whether the required wage rate

stipulations are incorporated into the contract as a matter of

law. That is not a question on which deference to agency

expertise is appropriate.

In addition, defendant’s reliance on Section 4 of the Act

(40 U.S. C. § 276a-3)** is misplaced since defendant has been

unable to identify anything in the Atomic Energy Act or any

other federal statute that authorizes ERDA to establish specific

wage rates. While 41 C. F. R. § 9-15.5006(i) recommends that

wages as well as other costs be set out in ERDA contracts, this

does not authorize ERDA to establish non Davis-Bacon Act

rates in contracts to which that Act applies. Even if this were

the intent of the regulation, since it is not authorized by law it

could not qualify as an exception under Section 4 of the Act.’’

Plaintiff must now be permitted to resume discovery (or

employ other suitable means) to determine whether defendant

15. International Union of Operating Engineers v. Arthurs, 355

F. Supp. 7 (W.D. Okla. 1973), affirmed, 480 F.2d 603 (10th

Cir. 1973).

16. Section 4 of the Act provides:

“Effect on other Federal laws

“Sections 276a to 276a-S5 of this title shall not be construed

to supersede or impair any authority otherwise granted by

Federal law to provide for the establishment of specific wage

rates.”

17. There is other evidence that ERDA is not authorized to set

wage rates that do not comply with the Davis-Bacon Act. Executive

Order 10789, pursuant to 50 U.S.C. § 1431, authorizes the Secre-

tary of the Atomic Energy Commission (predecessor to ERDA) to

enter into contracts containing certain limitations. Paragraph 13 of

that Order specifically states that nothing in the Order shall be

construed to allow the Secretary to set aside the requirements of the

Davis-Bacon Act. If he already had that power by federal law, this

provision in the Executive Order would be both superfluous and

unavailing.

used plaintiff and his class to perform construction, alteration or

repair work at the Fermi Laboratory. If so, under the Davis-

Bacon Act they will be entitled to recover wages that the

Secretary of Labor has determined to be prevailing for the

corresponding classes of laborers and mechanics employed on

similar projects in Kane County, Illinois. Since the district court

had jurisdiction over Count II, it also had pendent jurisdiction

to decide state claims presented in Counts ITI-VII.

The judgment dismissing the complaint is reversed and the

cause is remanded for further consideration consistent with this

opinion.

A True Copy:

Teste:

Appeals for the Seventh Circuit

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No. 78-1945

UNIVERSITIES RESEARCH ASSOCIATION, INC.,

Petitioner,

vs.

STANLEY E. Courtu,

Respondent.

Facts and Opinion 595 F. 2d 396

Ordered that: The Petition for Writ of Certiorari is granted.

DAVIS-BACON ACT

§ 276a. RATE OF WAGES FOR LABORERS AND MECHANICS

(a) The advertised specifications for every contract in excess

of $2,000, to which the United States or the District of

Columbia is a party, for construction, alteration, and/or repair,

including painting and decorating, of public buildings or public

works of the United States or the District of Columbia within

the geographical limits of the States of the Union, or the District

of Columbia, and which requires or involves the employment of

mechanics and/or laborers shall contain a provision stating the

minimum wages to be paid various classes of laborers and

mechanics which shall be based upon the wages that will be

determined by the Secretary of Labor to be prevailing for the

corresponding classes of laborers and mechanics employed on

projects of a character similar to the contract work in the city,

town, village, or other civil subdivision of the State, in which

the work is to be performed, or in the District of Columbia if

the work is to be performed there; and every contract based

upon these specifications shall contain a stipulation that the

contractor or his subcontractor shall pay all mechanics and

laborers employed directly upon the site of the work, uncon-

ditionally and not less often than once a week, and without

subsequent deduction or rebate on any account, the full amounts

accrued at time of payment, computed at wage rates not less

than those stated in the advertised specifications, regardless of

any contractual relationship which may be alleged to exist be-

tween the contractor or subcontractor and such laborers and

mechanics, and that the scale of wages to be paid shall be posted

by the contractor in a prominent and easily accessible place at

the site of the work; and the further stipulation that there riay

be withheld from the contractor so much of accrued payments as

may be considered necessary by the contracting officer to pay to

laborers and mechanics eniployed by the contractor or any sub-

contractors on the work the difference between the rates of

wages required by the contract to be paid laborers and mechanics

on the work and the rates of wages received by such laborers

and mechanics and not refunded to the contractor, subcon-

tractors, or their agents.

(b) As used in sections 276a to 276a—S of this title the

term “wages”, “scale of wages”, “wage rates’, “minimum

wages”, and “prevailing wages” shall include—

(1) the basic hourly rate of pay; and

(2) the amount of—

(A) the rate of contribution irrevocably made by

a contractor or subcontractor to a trustee or to a

third person pursuant to a fund, plan, or program; and

(B) the rate of costs to the contractor or subcon-

tractor which may be reasonably anticipated in provid-

ing benefits to laborers and mechanics pursuant to an

enforcible commitment to carry out a financially re-

sponsible plan or program which was communicated

in writing to the laborers and mechanics affected,

for medical or hospital care, pensions on retirement or

death, compensation for injuries or illness resulting from

occupational activity, or insurance to provide any of the

foregoing, for unemployment benefits, life insurance, dis-

ability and sickness insurance, or accident insurance, for

vacation and holiday pay, for defraying costs of appren-

ticeship or other similar programs, or for other bona fide

fringe benefits, but only where the contractor or subcon-

tractor is not required by. other Federal, State, or local

law to provide any such benefits:

Provided, That the obligation of a contractor or subcontractor

to make payment in accordance with the prevailing wage deter-

minations of the Secretary of Labor, insofar as sections 276a

to 276a—S of this title and other Acts incorporating sections

276a to 276a—S of this title by reference are concerned may be

discharged by the making of payments in cash, by the making

of contributions of a type referred to in paragraph (2)(A), or

by the assumption of an enforcible commitment to bear the costs

of a plan or program of a type referred to in paragraph (2)(B),

or any combination thereof, where the aggregate of any such

payments, contributions, and costs is not less than the rate of pay

described in paragraph (i) plus the amount referred to in

paragraph (2).

In determining the overtime pay to which the laborer or

mechanic is entitled under any Federal law, his regular or basic

hourly rate of pay (or other alternative rate upon which premium

rate of overtime compensation is computed) shall be deemed

to be the rate computed under paragraph (1), except that where

the amount of payments, contributions, or costs incurred with

respect to him exceeds the prevailing wage applicable to him

under section 276a to 276a—S5 of this title, such regular or

basic hourly rate of pay (or such other alternative rate) shall

be arrived at by deducting from the amount of payments, con-

tributions, or costs actually incurred with respect to him, the

amount of contributions or costs of the types described in

paragraph (2) actually incurred with respect to him, or the

amount determined under paragraph (2) but not actually paid,

whichever amount is the greater.

§ 276a—1. TERMINATION OF WORK ON FAILURE TO Pay

AGREED WAGES; COMPLETION OF WorK BY GOVERNMENT

Every contract within the scope of sections 276a to 276a—5

of this title shall contain the further provision that in the event

it is found by the contracting officer that any laborer or mechan-

ic employed by the contractor or any subcontractor directly on

the site of the -work covered by the.contract has been or is being

paid a rate of wages less than the rate of wages required by the

contract to be paid as aforesaid, the Government may, by written

notice to the contractor, terminate his right to proceed with the

work or such part of the work as to which there has been a

failure to pay said required wages and to prosecute the work to

completion by contract or otherwise, and the contractor and his

sureties shall be liable to the Government of any excess costs

occasioned the Government thereby.

§ 276a—2. PAYMENT OF WAGES BY COMPTROLLER GENERAL

FROM WITHHELD PAYMENTS; LISTING CONTRACTORS VIO-

LATING CONTRACTS

(a) The Comptroller General of the United States is au-

thorized and directed to pay directly to laborers and mechanics

from any accrued payments withheld under the terms of the

contract any wages found to be due laborers and mechanics

pursuant to sections 276a to 276a—S of this title; and the

Comptroller General of the United States is further authorized

and is directed to distribute a list to all departments of the

Government giving the names of persons or firms whom he has

found to have disregarded their obligations to employees and

subcontractors. No contract shall be awarded to the persons or

firms appearing on this list or to any firm, corporation, partner-

ship, or association in which such persons or firms have an

interest until three years have elapsed from the date of publica-

tion of the list containing the names of such persons or firms.

(b) If the accrued payments withheld under the terms of the

contract, as aforesaid, are insufficient to reimburse all the labor-

ers and mechanics, with respect to whom there has been a failure

to pay the wages required pursuant to sections 276a to 276a—S5

of this title, such laborers and mechanics shall have the right of

action and/or of intervention against the contractor and his

sureties conferred: by law upon persons furnishing labor or ma-

terials, and in such proceedings it shall be no defense that such

laborers and mechanics accepted or agreed to accept less than

the required rate of wages of voluntarily made refunds.

§ 276a—3. EFFECT ON OTHER FEDERAL LAWS

Sections 276a to 276a—5 of this title shall not be construed

to supersede or impair any authority otherwise granted by Fed-

eral law to provide for the establishment of specific wage rates.

§ 276a—4. EFFECTIVE DATE OF SECTIONS 276a to 276a—5

days after August 30, 1935, but shall not affect any contract

then existing or any contract that may thereafter be entered

into pursuant to invitations for bids that are outstanding on

August 30, 1935.

§ 276a—5. SUSPENSION OF SECTIONS 276a TO 276a—S5

DuRING EMERGENCY

In the event of a national emergency the President is author-

ized to suspend the provisions of sections 276a to 276a—S of

this title.

§ 276a-—6. APPROPRIATION

§ 276a—7. APPLICATION OF SECTIONS 276a TO 276a—S5 TO

CONTRACTS ENTERED INTO WITHOUT REGARD TO SECTION 5

OF TITLE 41

The fact that any contract authorized by any Act is entered

into without regard to section 5 of Title 41, or upon a cost-plus-

a-fixed-fee basis or otherwise without advertising for proposals,

shall not be construed to render inapplicable the provisions of

sections 276a to 276a—S of this title, if such Act would other-

wise be applicable to such contract.

§276c. REGULATIONS GOVERNING CONTRACTORS

AND SUBCONTRACTORS

The Secretary of Labor shall make reasonable regulations for

contractors and subcontractors engaged in the construction,

prosecution, completion or repair of public buildings, public

works or buildings or works financed in whole or in part by

loans or grants from the United States, including a provision

that each contractor and subcontractor shall furnish weekly a

statement with respect to the wages paid each employee during

the preceding week. Section 1001 of Title 18 shall apply to

such statements.

PROVISIONS OF GOVERNMENT CONTRACT

AT (49-8)-3000

This Supplemental Agreement (hereinafter referred to as

“this contract”), is entered into the 6th day of April 1972,

effective as of July 1, 1971, between the. United States of

America (hereinafter referred to as the “Government”), acting

through the U. S. Atomic Energy Commission (hereinafter

referred to as the “Commissi~n”), and Universities Research

Association, Inc. (hereinafter referred to as the “Association”

or “Contractor”), a corporation organized and existing pur-

suant to the District of Columbia Non-Profit Corporation Act.

* * + * *

This contract is authorized by and has been negotiated and

entered into under Section 302(c)(15) of the Federal Property

and Administrative Services Act of 1949, as amended, and

the Atomic Energy Act of 1954, as amended.

* * * * *

ARTICLE VI—ALLOWABLE COSTS

1. Payment for the allowable cost as hereinafter defined, plus

the allowance provided for in paragraph 5 of this article,

shall constitute full and complete compensation for the

performance of the work under this contract.

2. The allowable costs of performing the work under this con-

tract shall be the costs and expenses that are actually in-

curred by the Association in performance of the contract

work in accordance with its terms, that are necessary or

incident thereto, and are determined to be allowable pur-

suant to this paragraph 2. The determination of the allow-

ability of cost hereunder shall be based on:

* * * * *

g. Personnel costs and related expenses incurred in accord-

ance with Appendix B, or amendments thereto, such as:

(i) Salaries and wages; bonuses and incentive compensa-

tion; overtime, shift differential, holiday and other

premium pay for time worked; nonwork time in-

cluding vacations, holidays, sick, funeral, military,

jury, witness, and voting leave; salaries and wages

to employees in their capacity as union stewards

and committeemen for time spent in handling griev-

ances, or serving on labor management (contractor)

committees: Provided, however, that the Contract-

ing. Officer’s approval is required in each instance

of direct compensation to an individual employee at

an annual rate in excess of $20,000, when it is

proposed that a total of 50 percent or more of such

compensation be reimbursed under AEC cost-type

contracts. Direct compensation, as used here, in-

cludes only the employee’s base salary and bonus

and incentive compensation payments.

* * * * *

Appendix B may be modified from time to time, in writing,

without execution of an amendment to this contract for the

purposes of effecting any changes in or additions to Appendix

B as may be agreed upon by the parties.

* * * *

ARTICLE XXXIII—LABOR PROVISIONS

1. This contract does not contemplate the performance of

work by the Association, with its own employees, which the

Commission determines is subject to the Davis-Bacon Act.

Such work, if any, performed under this contract shall be

procured by subcontracts which shall: be subject to the

written approval of the Commission and contain the provi-

sions relative to labor and wages required by law to be

included in contracts for the construction, alteration, and/or

repair, including painting and decorating, of a public build-

ing or public work.

” * * *

Contract No. AT (49-8)-3000

APPENDIX B

Index

PAGE

Allowability of Personnel Costs and Related

Pe rr, eng eee 1

J Ee eee eee ere 1

ee SN gs bo be ose ee awa ee ee 2

NE hs St a's Pe aw hae Ohi eae ees 5

Fire Department Provisions ................ 7

ee ere ee ee 8

Disability and Sick Leave .......s.cce0e00. 9

Other Excustd ADSOMCE .. 2.02 ccc ec cccenee 12

me a ERP PER ET EROEE ER TEES 13

Termination Prior to Retirement ............ 14

rey OTE CLE PERT EE ee 15

Theoretical Physics Program .............. 19

I CE cen ce kb oy 004 8.9 :¥. 0's 4:8 ooo 20

ee ee Tree Ty Sere ree Te Ter 23

Health and Morale Program ............... 26

Education and Training Policy ............. 27

COEIBVEROO PAWOTNIB ooo 5 oc eee de ame owes. 27

Employee Incentive Awards ............... 27

Special Professional Services .............. 28

Collective Bargaining Agreements .......... 28

Galedy GAMO ois. sec cosas eave sapiens 29

APPENDIX B

I. Allowability of Personnel Costs and Related Expenses

Allowability of personnel costs and related expenses

shall be in accordance with the provisions of this appendix,

unless individual exceptions are granted by the Labora-

tory Director or the President of URA and are approved

by the Contracting Officer.

* * * *

III. Wages and Salaries

A. Salary and Wage Schedules

The wage and salary schedules in effect at the

Laboratory are included in Section XIX.

The Laboratory will establish a pattern of wage

and salary review, and not less often than once

each year will provide the Commission with data

sufficient for the proper review and prior approval

of overall merit wage and salary adjustments pro-

posed for all employees, excluding organized

employees. In addition, the Laboratory will pro-

vide the Commission with such current wage and

salary data as may from time to time be required

in connection with the Laboratory’s wage and

salary program.

Except as may be approved by the Contracting

Officer, salary increases to present employees will

not exceed the employee’s prior rate of pay by

more than fifteen percent (15%), except in the

case of promotion to a higher classification, where

the new minimum rate for that classification may

be paid.

* * * * *

Revision No. 34 Contract AT (49-8 )-3000

March 1, 1975 Appendix B

FERMI NATIONAL ACCELERATOR LABORATORY

Weekly Job Titles and Grades

Titles Grades Titles Grades

Clerk I : W-1 Carpenter II W-4

Drafting Asst 1 Chief Telephone Operator 4

Fire Fighter 1 Cierk I 4

Fire Fighter Trainee 1 Computer Operator I 4

Fire Lieutenant 1 Food & Beverage Handler 4

Food Service Helper 1 Keypunch Operator II 4

Keypunch Operator I 1 Mail Clerk 4

Laboratory Asst 1 Secretary II a

Operating Asst/Accelerator 1 Mecdiie Once WS

Scanner Trainee 5 ein eo 5

her 1

Stenograp Groundskeeper 5

Assembler, Janitorial Worker II 5

Bench or Floor W-2 Ld Shop Helper 5

Clerk II 2 Mail Carrier 5

Keypunch Operator II 2 Maint. Electrician II 5

Scanner I 2 Maint. Mechanic II—

Secretary I 2 HVAC 5

Telephone Operator I 2 Maint. Worker II 5

Detail Deaton w-3 ee Trainee ;

Food Service Attendant 3 ed

Food Service Laborer 3 wut i 5

ree Technician I 5

Janitorial Worker I 3

Laboratory Technician 3 Bartender W-6

Maintenance Worker I 3. Clerk Sr. 6

Model Maker Jr. 3 Construction InspectorI 6

Operating Cook 6

Tech/ Accelerator 3 Food Service Supr. 6

Scanner II 3 Janitorial Group Ldr 6

Shop Helper 3 Lead Keypunch Operator 6

Telephone Operator II 3 Photographer 6

Secretary III 6

Maintenance Group Ldr 6

Titles Grades Titles Grades

Carpenter III W-7 Accelerator Operator il W-8

Computer Operator II 7 Asst Programmer 8

Expediter 7 Carpentry Grp Ldr 8

Locksmith 7 Construction Inspector II 8

Maint. Electrician III 7 Lead Groundskeeper 8

Maint. Mechanic III]— Maint. Electrician IV 8

HVAC 7 Maint. Mechanic [V—

Model Maker 7 HVAC 8

Nurse 7 Sr. Photographer 8

Painter 7

age 7 Computer Operator III W-9

' Design Draftsman 9

Sr. Groundskeeper 7 “tp

: : Electrician Group Leader 9

Sr. Mail Carrier 7

HVAC Group Leader 9

Sr. Scanner 7 Model Maker S 9

Technician II 7 neceat cuneate

Nurse Sr. 9

Sr. Technical Aide 9

Sr. Accelerator |

Operator W-10

Sr. Design Draftsman 10

Revision No. 35 Contract AT (49-8 )-3000

April 1, 1975 Appendix B

FERMI NATIONAL ACCELERATOR LABORATORY

Weekly Pay Ranges

Grade Minimum Midpoint Maximum

W- 1 $118 $136 $154

2 130 149 169

3 144 165 186

4 158 182 206

5 174 200 226

6 191 220 249

7 211 242 273

8 231 266 301

9 255 293 331

10 279 321 363

Revision No. 34

November 1, 1974

SCHEDULE OF WAGES* (EFF. 11/1/74)

1. Basic Hourly Rates: **

Occupational Group 1

Effective 11/1/74

Start 6 Months One Year

Working Foreman 7.61 7.76 7.81

Instrument Maker 6.91 7.31 7.41

Instrument Machinist 6.61 7.11 7.21

Occupational Group 2

Working Foreman 7.61 7.76 7.81

Repair Machinist 6.61 7.11 7.21

Occupational Group 3

Working Foreman 7.61 7.76 7.81

Lead Instrument Welder 6.91 Pe 7.41

Instrument Welder 6.61 7.11 7.21

Occupational Group 4

Machine Repair Mechanic 5.07 eT 5.57

Lead Machine Shop Ass’t 4.82 5.07 5.32

Machine Shop Ass’t 4.57 4.82 5.07

Occupational Group 5

Production Welder 4.82 5.07 oo

2. Longevity:

a. Two years’ service in bargaining unit—5¢ above basic

rate

b. Three years’ service in bargaining unit—10¢ above basic

rate

* This is a schedule of minimum rates; the Laboratory may pay

at rates above those listed to employees whose work performance, as

evaluated by the Laboratory, merits such treatment.

** Employees who are promoted to a higher classification shall

be paid at the equivalent bargaining unit seniority rate in the higher

classification as they previously occupied in the lower classification.

UNITED STATES ATOMIC ENERGY COMMISSION

Chicago Operations Office

9800 South Cass Avenue

Argonne, Illinois 60439

January 23, 1968

Dr. Norman F. Ramsey, President

Universities Research Association, Inc.

2100 Pennsylvania Avenue, N. W.

Washington, D. C. 20037

Dear Dr.

Ramsey:

Contract No, AT(49-8)-3000 for the 200 BEV Accelerator

does not contemplate the performance of Davis-Bacon Act work

by the Association with its employees, and provides that any

work determined by AEC to be subject to that Act will be per-

formed under subcontracts containing the provisions relative to

labor and wages required by law to be included in contracts for

the construction of a public building or work. This provision

with respect to the Davis-Bacon Act has been discussed between

representatives of AEC and the Association, and has been in-

cluded with the following understandings:

(a) If presently unforeseen conditions arise which make

(b)

it necessary in the best interests of timely and efficient

completion of the accelerator that work be performed

by the Association with its own employees which AEC

determines is subject to the Davis-Bacon Act, the

contract will be modified as appropriate to incorporate

the provisions relative to labor and wages required by

law.

Should the Laboratory Director desire a review of any

determinations with respect to the applicability of the

Davis-Bacon Act, written requests for such reviews

may be submitted to the AEC General Manager for

consideration and resolution.

Sincerely yours,

/s/ Kenneth A. Dunbar

Kenneth A. Dunbar

Manager

UNITED STATES ATOMIC ENERGY COMMISSION

Chicago Operations Office

9800 South Cass Avenue

Argonne, Illinois 60439

April 6, 1972

Dr. Norman F. Ramsey, President

Universities Research Association, Inc.

2100 Pennsylvania Avenue, N. W.

Washington, D. C. 20037

Dear Dr. Ramsey:

Modification No. 14 to Contract No. AT (49-8 )-3000 for the

200 BEV Accelerator does not contemplate the performance

of Davis-Bacon Act work by the Association with its employees,

and provides that any work determined by AEC to be subject to

that Act will be performed under subcontracts containing the

provisions relative to labor and wages required by law to be

included in contracts for the construction of a public building

or work. This provision with respect to the Davis-Bacon Act has

been discussed between representatives of AEC and the Associa-

tion, and has been included with the following understandings:

(a) If presently unforeseen conditions arise which make

it necessary to the best interests of timely and efficient

completion of the accelerator that work be performed

by the Association with its own employees which

AEC determines is subject to the Davis-Bacon Act,

the contract will be modified as appropriate to incor-

porate the provisions relative to labor and wages re-

quired by law.

(b) Should the Laboratory Director desire a review of

any determinations with respect to the applicability

of the Davis-Bacon Act, written requests for such re-

views may be submitted to the AEC General Manager

for consideration and resolution.

Sincerely yours,

/s/ Kenneth A. Dunbar

Kenneth A. Dunbar

Manager

AMENDED FIRST REQUEST TO PRODUCE.

Defendant, Universities Research Association, Inc., is hereby

requested, pursuant to Rule 34 of the Federal Rules of Civil

Procedure, to produce the items described hereafter for inspec-

tion and copying by plaintiff's attorneys at the offices of Arnold

and Kadjan, 11 South LaSalle Street, Chicago, Illinois within

thirty days after service hereof or within such shorter date as

may be fixed by the court herein.

I. DEFINITIONS AND CONSTRUCTION.

A. As used herein, the words and phrases set out below

shall have the meaning or meanings prescribed for them:

1. “Document or documents” shall mean every original (and

every copy of any original or copy which differs in any way from

any original) of every writing or recording of every kind or

description, whether handwritten, typed, drawn, sketched,

printed, or recorded by any physical, mechanical, electronic or

electrical means whatever, including without limitation books,

records, papers, pamphlets, brochures, circulars, advertisements,

specifications, blueprints, maps, plats, surveys, drawings,

sketches, graphs, charts, plans, tests, laboratory or engineering

reports, measurements, models, correspondence, communica-

tions, telegrams, memoranda, notes, notebooks, worksheets,

reports, lists, analyses, summaries, ledgers, books of original

entry, journals, accounts, audits, inventories, tax returns, Federal

Forms WH347, unemployment compensation forms, financial

statements, profit and loss statements, cash flow statements,

balance sheets, annual or other periodic reports, budgets,

prospectuses, registrations, solicitations, niinutes, stock ledgers,

stock certificates, certificates of deposit, time account passbooks,

securities, licenses, permits, calendars, appointment books,

diaries, telephone bills and toll call records, expense reports,

commission statements, itineraries, agendas, wage and payroll

records, employment and personnel records, checkbooks, check

stubs, bank statements, cancelled checks, receipts, cash disburse-

ment ledgers, contracts, agreements, instruments, assignments,

applications, authorizations, oilers, acceptances, bids, proposals,

financing statements, documents of title, appraisals, purchase

orders, invoices, bills or statement of account, bills of lading,

written memorials of oral communications, forecasts, photo-

graphs, photographic slides or negatives, films, filmstrips, tapes,

and recordings.

2. “Related” or “relating w” shall mean directly or in-

directly mentioning or describing, pertaining to, being connected

with, or reflecting upon a stated subject matter.

e. “Identification” or “identify” as applied to documents

shall mean stating the date, author, addressee, signatory, number

of pages, subject matter (which shall be stated with particularity)

and giving the name and address of the custodian thereof and

the location of the document.

4. “Relied upon” shall mean being or having been depended

upon or referred to or being or having been arguably appro-

priate for such reliance.

5. “Defendant” shall mean the defendant in this lawsuit

and its predecessors and successors, if any, and, when not

negated by the context, shall also mean each and every officer,

employee, attorney or ageni of each and every such entity who

presently holds such a position or has held such a position at any

time during the period covered by this request.

6. “Person” shall mean each and every individual, corpora-

tion, partnership, joint venture, social or political organization

or any other entity, whether real or juridical or incorporated

or unincorporated, encompassed within the usual and customary

meaning of “person” or ciherwise encompassed within this

definition.

7. “Technician” shall mean any person who is or has been

employed by defendant at the Fermi National Accelerator

Laboratory site at any time during the relevant period who was

assigned the title or performed the work of a Technician I, Tech-

nician II, Senior Technician, Technician (or “Tech”) Specialist,

Laboratory (or “Lab”) Assistant, Laboratory (or “Lab”) Tech-

nician (or “Tech”) or Operator.

B. In construing this request:

1. The singular shall include the plural and the plural shall

include the singular.

2. A masculine, feminine or neuter pronoun shall not ex-

clude the other genders.

3. If a request for production is silent as to the time span

for which production is desired, production shall be made of all

documents requested from January 1, 1970 to the date of

production.

4. Each request shall extend to all documents which are or

have been in the possession or subject to the contro] of the

defendant, its officers, agents, attorneys or employees at any

time during the period of time covered by this request.

5. The requests to produce contained herein shall be deemed

to be continuing in nature and shall include documents described

herein which are discovered after any initial production of

documents in compliance herewith, which later-discovered docu-

ments shall be produced in accordance with this Request to

Pre juce within thirty days after their discovery.

II. CLAIMS OF PRIVILEGE.

All documents as to which any privilege is claimed shall be

produced, marked, identified, held separately, and retained intact

by the defendant subject to and pending a ruling by the court

as to the claimed privilege.

{1Il. PRODUCTION REQUESTS.

The following are to be produced at the time and place

described above:

1. Each and every document related to the number, identity

number, present or last known address, hiring, advancement,

termination, tenure and conditions of employment, union mem-

bership, compensation (including fringe benefits), nature of

work performed, quality of work performed, job description and

job title of the following:

a. All persons employed or sought to be employed by

defendant as Technicians or any functional equivalent

thereof; and

b. All persons employed by defendant who performed any

labor in connection with construction, alteration and/or

repair, including painting and decorating, of any public

buildings or public works of the United States.

2. Each and every document related to communications

between defendant and any other person which related to the

application or non-application of the Davis-Bacon Act to any

undertaking of defendant or of any of its employees.

3. Each and every document, including without limitation

the following categories of documents, which is related to any of

the persons described in Request Number 1 or their work:

a. Job (or personnel) requisitions;

b. Notes or memoranda related to hiring or requests for

hiring;

Job offers extended;

Resumes and applications received;

Contractual change requests;

Crew chief logs;

Payroll records;

Equipment failure reports;

Personnel records;

“Village Crier” issues;

Monthly summaries of manpower (sometimes called

“moatiily personnel reports”);

1. Job descriptions;

m. Payroll authorizations;

n. The “personnel policy guide”, (including superseded

pages or issues) ;

cao oo mo oA

o. “Procedures for experimenters” (including superseded

pages or issues);

p. The Ledger of job requisitions;

q. The “Control list of employees”;

r. Reviews or surveys of labor markets, salaries, area

scales or wage determinations of any kind;

s. Minutes or notes relating to administrative meetings.

4. Each and every document related to correspondence be-

tween defendant and any other person relating to: any of the

persons described in Request No. 1 or their jobs or similar

positions (whether or not actually created or filled); the appli-

cation of the Davis-Bacon Act to any transaction or event; or

the subject matter of this lawsuit.

5. Each and every document setting out the organization

and structure of the defendant’s operations at Fermi National

Accelerator Laboratory.

6. Each and every statement obtained from any person who

may be called as a witness by defendant herein.

MOTION TO SHORTEN TIME FOR PRODUCTION.

Plaintiffs move the Court pursuant to Rule 34(b) of the

Federal Rules of Civil Procedure to shorten the time within

which defendant must comply with their attached Amended

First Request to Produce to fifteen days after service thereof.

In support of this motion, plaintiffs state as follows:

1. The documents requested must be examined so that fur-

ther discovery may proceed.

2. The Court has several times stated its desire that dis-

covery be expedited herein.

3. The hastening of the requested production will facilitate

the completion of discovery.

Wherefore, plaintiffs pray the Court to order defendant to

comply with plaintiffs’ Amended First Request to Produce

within fifteen days after service thereof.

ANSWER TO PLAINTIFF’S MOTION FOR A SHORTENED

TIME FOR PRODUCTION OF DOCUMENTS;

MOTION FOR STAY OF PRODUCTION PENDING RESOLU-

TION OF LEGAL ISSUES; ALTERNATE MOTION FOR PRO-

TECTIVE ORDER.

Defendant hereby answers Plaintiff's Motion as follows:

A. DEFENDANT CANNOT PRODUCE ALL OF THE

DOCUMENTS REQUESTED WITHIN THE TIME

SOUGHT.

Plaintiff requests all documents relating to “all persons em-

ployed or sought to be employed by Defendant as Technicians

or any functional equivalent thereof,” and other vaguely de-

scribed persons. Request, 4s I, III l.a.b., 3, 4. Plaintiff lists well

over one hundred twenty (120) species of documents as being

included in the Request. Request, 4’s I A.1., III 3.

Many species cover thousands of individual documents: e.g.,

crew chief logs, equipment failure reports and cancelled checks

which reflect daily occurrences (cf. Orr deposition, pp. 59-61).

Defendant employs more than four hundred (400) techni-

cians (Marofske deposition, p. 12). Adding persons who have

since terminated their employment, the total number is well over

five hundred (500) (cf. Marofske deposition, p. 28). Depend-

ing on how broadly one construes the vague reference “or

functiona) equivalent thereof,” many more persons could be

covered (cf. Huson deposition, pp. 1-13).

Defendant, therefore, is being requested to produce literally

tens of thousands of documents.

Gathering such material obviously would require thousands

of man-hours, To compress such time within the bounds of the

normal time allowed for production—and, a fortiori, within the

time now sought by the Plaintifi—would thoroughly disrupt

operations and would indeed be altogether impossible,

In addition, enormous costs would be incurred for personnel,

duplication and transportation expenses.

Accordingly, Defendant urges the Court to deny Plaintiff's

Motion for expedited production of documents because of

patent absurdity and because of sheer impossibility.

B. DEFENDANTS’ REQUEST SHOULD BE STAYED.

The great bulk of documents covered in Plaintiff's Request

relate to “Technicians.” However, “Technicians” are not in-

cluded in the class certified by the Court’s Order of August 4,

1976. That Order limited the class to:

“All ‘mechanics and/or laborers’ employed by defendant

pursuant to Contract No. AT(49-8)-3000 . . . as stated

and defined in the Davis-Bacon Act, 40 U.S.C. 276a,

et seq.” (Emphasis added.)

Accordingly, Plaintiff's request for documents rests on a bald

presumption that “mechanics and/or laborers” and “Techni-

cians” are syncnymous, That presumption is patently inaccurate.

Authority to resolve questions concerning application of the

Davis-Bacon Act to various classes of employees and work is

vested exclusively in the contracting agencies with appeal to the

Secretary of Labor and U.S. Department of Labor Wage

Appeals Board. Gillioz v. Webb, 99 F. 2d 585, 586-587 (Sth

Cir. 1938), cited with approval, United States v. Binghamton

Const. Co., Inc., 347 U.S. 171, 177, 74 S.Ct. 438, 441

(1954). See also Perkins v. Lukens Steel Co., 310 U.S. 113,

127-129, 60 S.Ct. 869, 876-877 (1940). And see Judge

McGarr’s earlier ruling in this case:

“The defendant . . . has soundly argued the position that

the administrative determinations of the contracting agency

are subject only to review by the Secretary of Labor, for

purposes of an authoritative ruling (29 C.F.R. 5.12),

and in certain instances are appealable to the Wage and

Appeals Board of the U.S. Department of Labor. 29

C.F. 8. 3.35 40-68. Te

Coutu Vv. Universities Research

Association, Inc., 75 C 1129

(N. D. Til. 1975) at p. 5.

By virtue of authoritative regulations at 41 C. F. R. §§ 9-18.700

through 9-78.750, scientific research and experimentation gen-

erally are excluded from Davis-Bacon Act coverage. The regu-

lations are approved by the Secretary of ".abor. 41 C.F.R.

§ 9-18.702-50.

In a case involving assembly of accelerator modules used in

conducting high energy physics research, the Wage Appeals

Board has ruled such work not covered by the Davis-Bacon Act.

In re Stanford Linear Accelerator Center, WAB Case No. 65-2,

16 WH 851 (BNA, 1965).

Federal Procurement Regulations, moreover, clearly provide

that the term “mechanics and laborers,” as used in the Davis-

Bacon Act:

“does not apply to . . . office workers, superintendents,

technical engineers or scientific workers. . . .”

41 C.F.R. § 1-18.701-1(b) (1)

(Emphasis added).

The contract sued upon here—a contract between the United

States and Defendant—expressly sets forth wage schedules for

“technicians,” in various grades. Contract No. AT(49-8)-3000

at Appendix B;* Marofske deposition at pp. 17-18, 28-30.

The contract further provides that it does not contemplate that

such employees will perform work which the Government deter-

mines to be governed by the Davis-Bacon Act. Contract, p. 54.

Government agents employed to enforce Davis-Bacon Act

requirements have closely monitored Defendant’s operations to

ensure compliance (Orr Deposition, pp. 82-83). Testimony

* The Court previously has been supplied a copy of the contract.

See Order dated October 5, 1975 at p. 4.

given by four (4) physicists who are members of Defendant’s

administration shows that Defendant employs technicians to

assemble, operate and maintain scientific equipment used to

assist scientists carry out experiments and research in the field

of high energy physics; they testified that technicians perform

no work falling outside the sphere of scientific work. Deposition

of Dr. Orr, pp. 27-36, 42-44, 52-54, 62-64, 75-76; Deposition

of Dr. Peoples, pp. 17-31, 45-49; Deposition of Dr. Huson, pp.

19-25, 29-35, 41-46; Deposition of Dr. Carrigan, pp. 33-40,

57-59.

No appeal has been made to the Labor Department Secretary

or Board in connection with the classification of Defendant’s

technicians or the work they perform.

In short, this Court has confined the action to mechanics and

laborers, as defined by the Davis-Bacon Act. Technicians are

not in that category, as determined by the Contracting Agency,

and regulations. No appeal has been taken to the Department

of Labor, which is the sole forum to resolve issues of coverage.

Material regarding technicians, therefore, cannot be pertinent

to this action.

In addition, no technician employed by Defendant, except

the named Plaintiff—has filed a written consent to become a

party plaintiff as required by 29 U.S.C. § 256:

“{I]n the case of a collective or class action instituted under

the Fair Labor Standards Act of 1938, as amended, or

the Bacon-Davis Act, it shall be considered to be com-

menced in the case of any individual claimant—

“(a) on the date when the complaint is filed, if he

is specifically named as a party plaintiff in the com-

plaint and his written consent to become a party

plaintiff is filed on such date in the court in which

the action is brought; or

“(b) if such written consent was not so filed or

if his name did not so appear—on the subsequent

date on which such written consent is filed in the court

in which the action was commenced.”

By virtue of that statute, technicians cannot be deemed parties

to the action. Compare, Kulik v. Superior Pipe Specialties Co.,

203 F. Supp. 938 (N. D. Ill. 1962) at Conclusion of Law No.

5, p. 941.

Since technicians are not covered by the ciass certification,

have not been determined by the Secretary of Labor to be

“mechanics or laborers,’ and have not—with one exception

only—entered the action, and in view of the enormous expense,

and dislocation which Defendant wculd suffer if required to

honor Plaintiffs request, it is submitted, respectfully, that the

Court should order a stay pending resolution of the question

whether “technicians” are or are not involved in the action.

C. ALTERNATIVE MOTION FOR

PROTECTIVE ORDER.

Contingent on the Court’s action on the points raised above,

Defendant alternately moves the Court for a protective order

pursuant to Rule 26(c), as follows:

(a) that Defendant be relieved of any obligation to pro-

duce documents respecting any “technician” for the

reasons set forth above;

(b) that Defendant be relieved of any obligation to pro-

duce routine payroll records, cancelled checks, per-

sonnel files, or, without limit, any documents relating

to employee hiring, hours worked, wages, terms and

conditions of employment, termination, and evalua-

tion for the reason that Defendant is prepared to

enter into appropriate stipulations concerning such

matters, to the extent they are deemed by the Court

relevant;

duce documents relating to any person, however

classified, who has not filed a consent, and respecting

any matter arising more than two (2) years prior to

_ any filing of such person’s consent in the future as

(d)

required by 29 U.S.C. § 256, for the reasons set

forth in that statute and explained by the Court in

Kulik v. Superior Pipe Specialties, supra;

that Defendant be relieved of any obligation to pro-

duce documents as described in Request, Item No.’s

III 2. and 4., for the reasons that such Request Items

are patently vague, uncertain, indefinite, and would

require Defendant to make assumptions. Defendant is

willing to produce “Requests for Davis-Bacon Deter-

mination” filed by it with the Government, covering

work performed within the limitation period specified

in 29 U.S.C. § 255. See Kennedy deposition, Plain-

tiff Exhibit 1;

(e) that Defendant be relieved of any obligation to pro-

(f)

(g)

(h)

duce documents as described in Request Item No.’s

Ill 2., 4. and 6. for the reasons set forth in Federal

Rule 26(b) (3);

that Defendant be relieved of any obligation to pro-

duce other than official documents made and filed in

the normal course of Defendant’s operations or docu-

ments specifically identified as to date, location and

person by Plaintiff for the reason that the Request

is otherwise too vague, and would cause Defendant

undue burden and expense;

that Defendant be relieved of any obligation to pro-

duce more than one of the documents described in

Request Item No. III as defined in Part I of the Re-

quest, for the reason that the Request is otherwise un-

duly burdensome and expensive;

that Plaintiff be directed to advance costs in excess

of two hundred dollars ($200.00) reasonably antici-

pated to be incurred by Defendant in honoring the *

Request, or post a bond for their payment, should

(i)

(j)

Defendant ultimately prevail for the reason that De-

fendant should not be expected to advance enormous

costs unsecured, in light of the dubious legal merit to

Plaintiff's claim;

that Defendant be permitted to construe all requests

as being limited generally by the provisions of the

Davis-Bacon Act and Regulations promulgated

thereunder, for the reason that otherwise the Request

particularly that part set forth in Item III 1.b other-

wise is too vague and indefinite; and

that Defendant not be required to produce any docu-

ment owned by the United States, or any other entity,

or person, other than Defendant.

ORDER ENTERED DECEMBER 21, 1976

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Name of Presiding Judge, Honorable George N. Leighton

Cause No. 75 C 1129 Date December 21, 1976

Title of Cause Stanley E. Coutu, vs. Universities Research

Association, Inc., a corporation

Brief Statement of Motion: Motion to Shorten Time for

Production

Names and Addresses of moving counsel: Arnold and Kadjan

11 South LaSalle Street; Chicago, Illinois 60603 Representing

Plaintiffs

Names and Addresses of other counsel entitled to notice and

names of parties they represent.: Robert E. Mann, Esq. Sey-

farth, Shaw, Fairweather & Geraldson 55 East Monroe Street

Chicago, Illinois 60603

Defendant

DOCKETED

Leighton. J.

December 27, 1976

Notes: The defendants shall file their Answer to the Motion

to shorten time for production on or before January 3, 1977.

The reply thereto shall be filed on or before January 17, 1977.

The Court will rule on said Motion on February 18, 1977, and

cause is not set for a pre-trial conference on said February 18,

1977 at 9:00 A. M.

ORDER ENTERED FEBRUARY 18, 1977

UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF ILLINOIS

EASTERN DVISION

Name of Presiding Judge, Honorable George N. Leighton

Cause No. 75 C 1129 Date 2-18-77

Title of Cause Stanley E. Coutu v. Universities Research

Association, Inc.

Brief Statement of Motion: Pretrial Conference

DOCKETED

LEIGHTON, J.

February 23, 1977

NOTES: P/T completed. Defendant to file motion for sum-

mary judgment on or before 3-18-77; Plaintiff to answer on or

before 3-28-77; defendant to reply by 4-4-77; court to rule

on 5-4-77. Status report of 3-4-77 vacated and reset for 5-13-77

at 2:00 P. M. :

MOTION FOR SUMMARY JUDGMENT

Defendant moves the Court to enter judgment for Defendant,

on the ground that no material issue of fact exists and Defend-

ant is entitled to judgment as a matter of law. In support, De-

fendant states:

(1) This action was brought to enforce an alleged contract

based upon provisions of the Davis Bacon Act, 40 U.S.C.

276(a), pursuant to which Plaintiff allegedly performed work.

(2) The only material issue is whether or not Defendant

has entered into such a contract.

(3) The only contract cited in the pleadings or referred

to in discovery is Contract No. AT(49-8)-3000, as amended,

. (now designated EY-76-C-02-3000) between Defendant and

United States of America.

(4) This Court previously has ruled that Contract No.

AT (49-8 )-3000 will not support a contract action based upon

the Davis-Bacon Act. See Memorandum Opinion and Order

dated October 8, 1975 issued by Judge McGarr. The Court al-

lowed the action to proceed thereafter solely to permit Plaintiff

an opportunity to show, if he could, the existence of a contract

incorporating Davis-Bacon Act stipulations.

(5) Plaintiff's counsel admitted at the pre-trial conference

held February 18, 1977 that it cannot prove the existence of

of any contract between the United States and Defendant, in-

corporating Davis-Bacon Act stipulations.

(6) There is in fact no contract between the United States

and Defendant other than Contract No. AT(49-8)-3000. See:

Affidavit of John R. Fraizer, Chief Legal Counsel of Fermi

National Accelerator Laboratory, attached.

(7) As a matter of law, Defendant cannot be held liable

on a contract which does not exist.

* The Court previously has been supplied a copy of Contract

No. AT(49-8 )-3000.

(8) The Court is without jurisdiction to fashion a contract

for the parties.

A memorandum of points and authorities in support of this

Motion is filed herewith.

Wherefore, Defendant prays that it be granted a Summary

Judgment.

AFFIDAVIT OF JOHN R. FRAZIER IN SUPPORT OF

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

JOHN R. FRAZIER, the undersigned, being first duly sworn

upon his oath, deposes and states that if called to testify in

this matter based on personal knowledge, he would state as

follows:

1. Affiant is and at all pertinent times to the Complaint

herein has been, Chief Legal Counsel for the Fermi National

Accelerator Laboratory (“Fermilab”). Pursuant to his duties

as Chief Legal Counsel, Affiant is and would be familiar with

all contracts and their terms and provisions, Defendant has with

the United States or any government agency acting on its behalf.

2. Contract No. EY-76-C-02-3000, as amended (formerly

designated as AT (49-8)-3000), is the only contract Defendant

has or ever had with the United States or any government agency

acting on its behalf.

3. No Davis-Bacon Act, 49 U.S. C. § 276a, et seq., stipula-

tions requiring the payment of prevailing wages have ever been

made a part of or incorporated in said Contract No. EY-76-C-

02-3000.

4. Further the Affiant sayeth not.

/s/ John R. Frazier

John R. Frazier

Subscribed and Sworn to before me this 16th day of March,

1977.

/s/ Joyce E. Sobinsky

Notary Public

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