476 F.2d 1388 | Temp. Emerg. Ct. App. | 1973
In connection with the Phase II program for stabilization of wages in the construction industry,
Unfortunately jurisdictional and procedural problems of first impression in the context of the Economic Stabilization Acts have complicated the case and in one respect have precluded its final disposition here. The latter problems can be properly understood only in light of the largely undisputed facts of the case and the controlling law and regulations. Indeed they become significant largely because the court below
FACTS
The record indicates that for 25 years or more Local 612 of the Laborers International Union of North America has collectively bargained and concluded agreements with the Oklahoma Chapter —Builders’ Division of the Associated General Contractors of America, Inc. (AGC), all with little or no work stoppage. The Local’s parent International Union (International) has in recent years established a District Council having jurisdiction over the entire State of Oklahoma in an attempt to unify the bargaining efforts of its locals in the state. Apparently Local 612 has resisted affiliation with the District Council of the International Union, at least insofar as preserving its practice of directly bargaining with AGC. This is a problem not before us. The Local and AGC formally signed a collective bargaining agreement on March 13, 1972. International claimed before the trial court that this collective bargaining agreement was invalid because the Local was not represented by a proper bargaining agent. The trial court did not resolve this issue and we do not reach it here. The parties to the collective bargaining agreement forwarded the agreement the day of its execution to the Laborers National Craft Board (Craft Board) to obtain its approval of the wage increase of 5.5% therein provided. Upon receipt of the agreement the Craft Board’s research director sent a copy of the proposed agreement to the International’s general counsel along with a memorandum dated March 20, 1972, suggesting that the International take the agreement out of the hands of the Craft Board because, among other reasons, of Local’s failure to negotiate through the District Council, and that certain other provisions be included in conformity with District Council policies. The Craft Board then received a letter dated March 22, 1972, from the President of the Union’s District Council for Oklahoma which asserted that it, the Council, was the sole bargaining agent for all of its affiliated unions, that the agreement submitted by the AGC and the Local was invalid and that no action could be taken on it by the Craft Board. In a letter dated April 7, 1972, from the Board’s management co-chairman to AGC’s business manager, it was stated that the “ ‘results of recent negotiations’ between the Building Division and Local 612 ... do not square with the current recommendations of the Craft Board insofar as the restructuring of bargaining in the State of Oklahoma is concerned.” The statement continued:
“Since we are seeking the special consideration which the CISC [Construction Industry Stabilization Committee] may give to agreements which provide for significant changes in the geographical structure of bargaining, including the development of wage zones under one agreement in the firm belief such changes would promote stabilization of collective bargaining and the effective utilization of manpower and management resources, the management’s side of the Laborers’ Craft Board finds the joint petition from the Oklahoma Chapter and Laborers’ Local 612, Oklahoma City, not in conformance with these objectives and will not look favorably on your petition.”
The Craft Board, over the signatures of both co-chairmen by letter dated June 29, 1972, notified AGC’s business manager
“The proposed agreement failed to meet the Craft Board criteria for Oklahoma on the following counts. First, the agreement covers a three-year period and would stand as an absolute bar to necessary restructuring. Second, the agreement fails to narrow the economic gap between Tulsa and Oklahoma City and indeed, widens the margin. Third, we have reservations concerning the fact that no provisions have been made for welfare and pen-1 sion benefits. Even though the rest of Oklahoma is covered by agreements*1392 calling for these benefits negotiated by the Oklahoma Laborers’ District Council and the Oklahoma Chapter, AGC.
“The Craft Board also raised a question concerning the representative status of the Committee purportedly representing the interests of Local Union 612.”
The CISC then reviewed the Board’s action and communicated its agreement therewith in a letter to the Craft Board dated July 13, 1972. Rather than submit to the agency requests to renegotiate the contract with the District Council as Local 612's bargaining agent, AGC sought judicial relief by the filing of the action below.
THE ACTION BELOW
No. 72-544 Civil, the above-entitled case in which this appeal is being prosecuted, was commenced in the district court August 8, 1972. Without concerning itself with the trusteeship problem involved in a prior action, No. 70-520 mentioned hereafter, the complaint alleged the negotiation in good faith of “a valid collective bargaining agreement” between the AGC and the Local, the claims of others that it was “not valid and . . . binding on the defendant and its members” and prayed for a judgment declaring the contract to be valid, and for general relief. Plaintiff AGC took the position that it was not concerned with the intra-union squabble involved in the prior action and relied exclusively upon the asserted lack of authority of the Craft Board and the CISC to disapprove the collective bargaining agreement for the reasons stated. The prior action had been filed Oct. 20, 1970 by five Local members against the Local, and certain of its officers together with the Oklahoma Laborers District Council, and sought by an amended complaint termination of a trusteeship the International had imposed upon the Local. On the grounds that the cases involved common questions of fact and law, the district court ordered their consolidation for the purposes of trial.
Following trial to the court of the consolidated actions, the judgment of the trial court segregated the relief granted as between the two cases, holding as to No. 70-520 Civil that the injunction it had theretofore granted against the operation of the trusteeship in question should be dissolved and that the parties were “restored to their respective positions as of the time the preliminary injunction was issued”; as to the issues in No. 72-544 Civil (involved in the present appeal) the trial court held “that the purported contract of March 13, 1972, between Local 612 of Laborers’ International Union of North America and the Associated General Contractors of America, Inc., Oklahoma Chapter— Builder’s Division is void and unenforceable.”
In discussing the latter action the district court observed that “it was instituted pursuant to Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, which authorizes the federal district courts to entertain ‘[sjuits for violation of contracts between an employer and a labor organization . . . without respect to the
The court noted that “at the time the alleged contract was signed the parties were aware that the contract was subject to review by the Laborers National Craft Board. . . .” Holding, therefore, that the contract was entered into subject to “a condition subsequent” it said that the refusal of the agencies to approve the agreement rendered the agreement of “no force and effect.” Its reasoning in upholding the action of the Board and CISC was so broadly worded as to render these agencies virtual bargaining agents for the parties.
ISSUES
Aside from jurisdictional and procedural problems and the general question of the validity of the agreement to the extent this may have depended upon the identity of the union representatives negotiating it, significant issues before the trial court appear to have been:
1. Whether the Craft Board and CISC had authority to reject a negotiated agreement for a wage increase which did not exceed the “general wage and salary standard” established by the Pay Board
2. Whether included in the authority of the agencies to pass upon wage increases in question was the power to reject, or to require renegotiation of, the terms of collective bargaining agreements in their entirety.
3. If the plaintiffs were found entitled to prevail on these issues and thus to be entitled to a declaratory judgment accordingly, how could a declaration of the invalidity of the agencies’ rejection of the contract be rendered efficacious in view of the Executive Order provision that unless and until an increase has been approved by the agencies involved it is illegal to put such an increase into effect, and other authorized consequences to follow the certification of the agencies’ disapproval by the Secretary of Labor.
The foregoing issues were not insubstantial. They presented questions not resolved below nor to be avoided here in
THE REGULATORY FRAMEWORK
We must begin with a more detailed consideration of the governing statute, and the relevant orders, regulations, rulings and other administrative expressions.
The Economic Stabilization Act of 1970 (P.L. 91-379, 84 Stat. 799, Aug. 15, 1970), as amended (P.L. 92-210, 85 Stat. 743, Dee. 22, 1971), authorized the President to issue such orders and regulations as he deemed appropriate to stabilize wages and salaries at levels not less than those prevailing on May 25, 1970.
Section 1(a) of Executive Order 11640, issued January 27, 1972, provides that “. . .no person shall, directly or indirectly, pay or agree to pay, in any transaction, wages or salaries in any form, or to use any means to obtain payment of wages and salaries in any form, higher than those permitted hereunder, whether by retroactive increase or otherwise.” By § 203(b)(2) of the Economic Stabilization Act, as amended, the President was authorized to “provide for the making of such general exceptions and variations as are necessary to foster orderly economic growth and to prevent gross inequities, hardships, serious market disruptions, domestic shortages of raw materials, localized shortages of labor, and windfall profits. . . .”
In his Executive Order 11588, providing for the Stabilization of Wages and Prices in the Construction Industry, April 3, 1971, the President ordered as follows:
“Section 1(a). A Construction Industry Stabilization Committee . is hereby established to assure generally conformance of any increase in any wage or salary in the construction industry to the provisions of this order.
“Section 2. Associations of contractors and national and international unions shall jointly establish craft dispute boards ... to determine whether wages and salaries are acceptable in accordance with the criteria established in section 6
“Section 3(a). It shall be the responsibility of each board, in relation to the craft or branch over which it has jurisdiction, to provide advice and assistance in an effort to resolve any unresolved collective bargaining disputes involving wages and salaries and to promptly examine every collective bargaining agreement negotiated on or after the date of this order to determine, in accordance with the criteria established in section 6, whether wage and salary increases in the agreement are acceptable and may thus be approved. The board shall*1396 make determinations within a reasonable time and shall notify the parties and the Committee of action taken. When it is determined by the board that a wage and salary increase is not acceptable, the board shall also notify the Secretary of Labor.
“Section 6. [Revoked on- October 15, 1971, by Sec. 14(c) Executive Order 11627; revocation continued by Executive Order 11640; supplanted by “Substantive Policies” of Pay Board Amended Order No. 2 on April 24, 1972. ]
“Section 11(b). The term ‘wage or salary’ shall mean, for the purpose of this order, all wage or salary rate schedules and economic benefits established pursuant to a collective bargaining agreement in the construction industry.”
Pay Board Order 2, Amended, filed April 24, 1972, some six weeks after the collective bargaining agreement was signed and submitted to the Craft Board, authorized CISC to administer pay board regulations applicable to collective bargaining agreements in the construction industry, and to administer the CISC “Substantive Policies” which were submitted to replace the criteria in Section 6, Executive Order 11588. Those relevant to this case include the following:
“(2) No agreement is automatically entitled to the ‘general wage and salary standard’ [5.5% annual increase] or the exceptions thereto of the Pay Board. Moreover, the application of equal percentage adjustments to all crafts in any locality is often not a practical basis for stabilization; on occasion cents-per-hour developments among some or all crafts may be more appropriate.
“(3) Pending final resolution of treatment of fringe benefits exempt under section 203(g) of the Economic Stabilization Act Amendments of January 9, 1971, these benefits, together with all other benefits, will be considered in determining economic adjustments subject to the review of the CISC.
“(4) In the application of exceptions in individual cases providing for adjustments in excess of the ‘general wage and salary standard,’ the following principles are to be applied:
“(c) In general, any restoration appropriate historic relationships among crafts or localities should spread over a period of 2 or 3 years more. The CISC in reviewing historical relationships will also give attention to clear evidence of changing historical relationships over the past decade.
“(e) The CISC may give special consideration to agreements which provide for significant changes in geographical structure of bargaining, including the development of wage zones under one agreement, where such changes would promote the stabilization of collective bargaining and the effective utilization of manpower and management resources.
“(6) In the consideration of all applications in 1972, the CISC recognizes the necessity to show continued retardation in the rate of increases permitted for 1972 as measured by Pay Board standards. The CISC shall also apply this principle to agreements extending into 1973 and 1974.
“(7) The CISC is to continue to apply its policy on economic adjustments which are broader than wages and fringe benefits, that is, which would include the money value of all economic adjustments including work rules.
“(8) The CISC is to seek to improve the role of the craft boards and to enhance their contribution to the improvement of collective bargaining and procedures for dispute settlements in the industry.”
Ҥ 2001.5 Jurisdiction.
“Each such [craft] Board shall have jurisdiction, with respect to wage and salary increases negotiated or being negotiated in the appropriate craft or branch in any locality—
“(a) To provide advice and assistance in an effort to resolve any unresolved collective bargaining disputes involving wages or salaries; and
“(b) To consider and determine, subject to the provisions of the Executive order and this part, whether the wages and salaries provided in any labor contract negotiated for the craft or branch are acceptable in accordance with the criteria set forth in § 2001.-30.
Ҥ 2001.30 Acceptability of wage or salary increases.
“Determinations by a Board as to whether any wage or salary increases are acceptable shall be based on the following criteria and these criteria will be applied by the Committee in reviewing any matters before it:
“(a) Acceptable economic adjustments in labor contracts negotiated on or after March 29, 1971, will be those normally considered supportable by productivity improvement and cost of living trends, but not in excess of the average of the annual median increases in wages and benefits over the life of the contract negotiated in major construction settlements in the period 1961 to 1968. . . .
“(b) Equity adjustments in labor contracts negotiated on or after March 29, 1971 may, where carefully identified, be considered over the life of the contract to restore traditional relationships among crafts in a single locality and within the same craft in surrounding localities.”
Thus, all wage and salary increases and related economic adjustments in the construction industry required the approval of CISC and the appropriate craft board. The validity of these regulations has not been questioned. Nor can it be gainsaid that no agreement had automatic entitlement to the 5.5% standard. Yet agreements within the 5.5% standard were not properly subject to all of the criteria applicable to higher increases, and CISC and the craft boards had general advisory and assistance functions which were not wage increase criteria at all except to the extent that they might lend dimension and symmetry to the criteria specified. The agency appears not only to have applied unauthorized criteria to the collective bargaining agreement in question but to have parlayed its advisory and assistance functions virtually into bargaining authority. And it seems to have utilized its extended powers to reject the agreement as a whole because it was not properly negotiated
Executive Order No. 11588 established CISC “to assure generally conformance of any increase in any wage or salary in the construction industry to the provisions of this order.” (Sec. 1(a).) The craft boards were to be established “to determine whether wages and salaries are acceptable in accordance with the criteria established in section 6.” (Sec. 2.) While each board, in relation to the craft or branch over which it had-jurisdiction was given responsibility “to provide advice and assistance” in an effort to resolve any unresolved collective bargaining disputes involving wages and salaries, beyond this advisory and assistance function and separate from it, each was charged with the additional responsibility “to promptly examine every collective bargaining agreement . and to determine in accordance with the criteria established in Section 6, whether wage and salary increases in the agreement are acceptable and may thus be approved.” We make no point of the absence of any specific criteria because of the revocation of Section 6 of Executive Order No. 11588 and the nonexistence of its replacing Pay Board Order at the particular time the agreement in question was executed and submitted. We shall assume that it was reasonable to apply criteria expressed thereafter and in existence at the time of the Craft Board ruling.
With reference to increases beyond the “standard 5.5%”, the boards were granted power to consider restorations to appropriate historical relationships among crafts and agreements providing for significant changes in the geographical structure of bargaining. But as to increases within the standard the CISC and the Boards were directed to consider only whether insufficient retardation in the rates of increase
We are mindful of the broad delegation of power to the President for the purposes of economic stabilization and the broad redelegation of power that has occurred in other contexts.
The undisputed evidence before the district court threw no different light upon the rulings and indeed reinforced the conclusion that the controlling reasons for disapproving the contract were beyond the criteria delimiting the authority of the boards.
JURISDICTION — SUFFICIENCY OF PLEADINGS
The complaint in the district court alleged that jurisdiction existed by virtue of 29 U.S.C. § 185,
Another pleading difficulty arises from the fact that the action below was filed obviously as a friendly
EXHAUSTION OF ADMINISTRATIVE REMEDIES
In City of New York v. New York Telephone Company, 468 F.2d 1401 (Emm.App.1972), Chief Judge Tamm, speaking for this court, considered the necessity of the exhaustion of available administrative remedies before resort to the courts in eases arising under the Economic Stabilization Act of 1970, as amended. It was recognized that unlike its predecessors the Emergency Control Act of 1942 and the Defense Production Act of 1950, the present system shifts “some of the emphasis from the administrator to the district court in the development of factual issues.” Yet in considering the later acts and their legislative history the conclusion was reached that the exhaustion requirement fully extended into this area unless administrative remedies were found to be inadequate on a case by case basis. The opinion concluded:
“It is clear to us that there is an adequate administrative remedy here which must be pursued initially. Should we find the administrative remedy inadequate in the context of a particular factual situation or circumstance, we shall not hesitate to speak up. As the Congress has built the Economic Stabilization skeleton, and as the Executive has put some regulatory meat on its bones, so we too must fulfill our constitutional duty of breathing life into this golem-like creature, for it is all too clear that judicial review of esoteric questions involving the economy of a nation can only be meaningful where the administrative review is meaningful.” (468 F.2d at p. 1406.)
We find in the present case that to the extent administrative remedies may not have been exhausted they were inadequate to preclude recourse to the district court. Administrative review of the Craft Board decision by CISC was contemplated and, indeed, accomplished but was not meaningful because of the summary approval of the Craft Board ruling by CISC through application of the unauthorized criteria. Unlike the system of agency adjudication involved, in City of New York v. New York Telephone Company, supra, in which review of price decisions was contemplated and actually in progress at the time suit was initiated in the district court,
We find this situation to invoke an exception to the general rule of City of New York and contemplated thereby. Accordingly, we hold that recourse to the district court was not precluded by the exhaustion rule, and the conclusion of the case on the basis of the existing administrative record, and in light of evidence before the trial court is proper.
We have here an example of how an Economic Stabilization Act case within our appellate jurisdiction can become needlessly complicated, its expedition frustrated and controlling issues masked: Jurisdiction was laid under a statute not applicable to the principal controversy before us; the original parties were not shown actually to have been in an adverse position respecting the issue of the validity of agency action ; the original pleadings did not adequately disclose this issue; the consolidation of the case with another having only a tangential relationship and invoking the appellate jurisdiction of another court further obscured the issues and complicated review; the relief specifically requested, a declaration of the validity of the collective bargaining agreement in question as between the parties, did not come to grips with the problem as to which the judgment of this court is now sought — the absence of an affirmative order of the Craft Board accepted by CISC approving the pay increases provided in that agreement; and, finally, failure to name as parties the agencies which had refused such an order and whose approval (or its equivalent) was requisite to collection of the increased pay under the agreement however valid that agreement may have been otherwise as between the parties.
We do not assume to criticize the parties, much less the court, for these irregularities
ABSENCE OF THE AGENCIES AS PARTIES
As heretofore observed, neither the CISC nor the Craft Board was made a party to these proceedings. Enough already has been stated to make plain that a serious question concerning the validity of the agency action precludes bypassing problems of remedy by affirmance of the trial court’s judgment. On the other hand, however, as obvious as the invalidity of agency action might otherwise appear, a final disposition here to this effect would be clouded by lack of opportunity for the agencies as parties to be heard before the district court and by the prospective ineffectiveness of any declaratory judgment pronouncing the collective bargaining agreement valid between the parties whereas the real problem, if there is ultimately determined to be merit in plaintiff’s position, is the failure of the Craft Board or CISC to affirmatively approve the pay increase therein provided. Granted that any final declaratory judgment could be implemented or enforced by proceedings supplemental to that judgment, this would be possible only as between the parties.
In this particular case there are certain factors which appear to minimize the importance of agency joinder and which may have led to the overlooking of the problem heretofore. The statutory provisions for intervention and review, while referring to plaintiffs in various contexts, contain no express designation of parties defendant;
While the agencies in this case may not be regarded as being indispensable for every purpose so as to have required dismissal' of the áction in their absence, they should be made parties by reason of subdivision (a) (1) of Rule 19 before this litigation can be concluded.
In furtherance of a simplified and expeditious procedure we consider that the Laborers National Craft Board and the Construction Industry Stabilization Committee may be joined as such without naming the individual members.
Reversed and remanded for further proceedings not inconsistent with this opinion.
. Section 203(a) (1) of the Economic Stabilization Act of 1970, 84 Stat. 799-800 (P.L. 91-379, August 15, 1970), as amended and extended by the Economic Stabilization Act Amendments of 1971, 85 Stat. 743, (P.L. 92-210, December 22, 1971); Exec. Order No. 11,588, 3 C.F.R. 147 (1971), as extended and amended by § 14 of Exec. Order No. 11,627, 3 C.F.R. 218, 224 (1971); Exec. Order No. 11,640, 37 F.R. 1213, January 27, 1972, as amended by Exec. Orders Nos. 11660 and 11674; Pay Board Order No. 2, Amended, filed April 24, 1972, 37 F.R. 8140.
. Its decision is reported in Gordon v. Laborers’ International Union of No. America, 351 F.Supp. 824 (W.D.Okl. 1972) .
. If the trial court’s view, concerning the sweeping authority of the particular agencies over the negotiation of collective bargaining agreements had been valid, all of the procedural difficulties likely could have been surmounted and dis-positive action taken here because the position of appellants below and on appeal would have presented no substantial question requiring remand for further proceedings. But should we return the case now without at least a general indication of our opinion to the contrary, a mere conformance by the trial court with the required procedure likely would leave any new judgment as questionable on the merits as the present one now appears to be. This would seem to be inconsistent with the charge to this court to “exercise its powers and prescribe rules governing its procedure in such manner as to expedite the determination of cases over which it has jurisdiction under this title. . . .” § 211(b)(1), Economic Stabilization Act Amendments of 1971.
. Rule 42(a) Fed.R.Civ.P. The pleadings in No. 70-520 have not been brought before us, and we are left to gather various circumstances concerning it from the district court’s memorandum decision. Nor is the transcript before us complete as to No. 70-520, portions being omitted seemingly because they related exclusively to that case. While all of the exhibits were noted as having been received for the purposes of both cases, the testimony of the witnesses was segregated to some extent between them, a portion pertaining particularly to the older case not having been admitted for the case in which this appeal was taken. In any event, we see no relationship between the earlier action and the problems now before us, since the contract in question here was entered into during a time when International’s trusteeship was not yet in existence and there has been no contention made before us that the representatives of the Local were not proper agents for the negotiation of the collective bargaining agreement,
. The substance of its decision in the suit before us is indicated by the following conclusions of the trial court:
“Accordingly, the court concludes that the contract was entered into by the parties subject to the condition subsequent that it be approved by the Craft Board and/or the CISC and that, by reason of their refusal to approve the agreement, it was rendered void and of no force and effect.
“The Chapter appears to suggest that this court should ignore the action of the Craft Board and CISC with respect to this contract on the ground that those agencies acted in excess of their powers. However, the court concludes that such action was wholly consistent with the authority of these agencies under the relevant legislation and regulations.
“The Court further concludes, contrary to the contention of the Chapter, that in examining and reviewing proposed collective bargaining settlements, both the Craft Board and the CISC are authorized to disapprove agreements and make recommendations with regard to bargaining subjects which go well beyond the limited area of wages. Hence Section 11(b) of Executive Order 11588 declares that ‘[t]he term “wage or salary” shall mean, for the purpose of this order, all wage or salary rate schedules and economic benefits established pursuant to a collective bargaining agreement in the construction industry.’ (Emphasis added.) To adopt the notion advanced by the Chapter that the agencies are limited solely to reviewing the wage provisions of collective bargaining agreements would require the court to close its eyes to the express provisions of the control legislation and implementing orders as well as to the realities of collective bargaining in the construction industry. Hence, if the powers of these agencies were to be read narrowly, parties to collective bargaining agreements might avoid the strictures of the controls by merely concentrating on obtaining benefits outside the narrow ambit of hourly wages. But such was clearly not the intent of Executive Order 11588 nor of the other related governing regulations which sought to empower these agencies to impose effective controls upon collective bargaining in the construction industry. Indeed, in the instant case, the agencies indicated their concern regarding such bargaining subjects as fringe benefits, contract duration as well as the impact of the settlement on employment in surrounding geographical areas.” (See Gordon v. Laborers’ International Union of No. America, 351 F.Supp. 824, 835-836 (W.D.Okl.1972), supra.)
. 6 C.F.R. § 201.10:
“Effective on and after November 14, 1971, the general wage and salary standard (hereinafter referred to as the ‘standard’) is established as 5.5 percent. The*1394 standard shall apply to any wage and salary increase payable with respect to an appropriate employee unit pursuant to an employment contract entered into or modified on or after November 14, 1971, or to a pay practice established, modified or administered with discretion on or after November 14, 1971. Except as otherwise provided in the Regulations under this title or by decision of the Pay Board, the standard shall be used to compute the maximum permissible annual aggregate wage and salary increase. The appropriateness of the standard will be reviewed periodically by the Pay Board to insure that it is generally fair and equitable, that it calls for generally comparable sacrifice by business and labor as well as other segments of the economy and that it takes into account such factors as changes in productivity and the cost of living as well as other factors consistent with the purposes of the Act.”
The general language in subdivision 201.10(c) following the quoted language, contrary to the inference drawn in the brief of amicus curiae, seems to us to render even clearer by its heading “Increases other than standard” and by its reference to the “Pay Board or its delegate”, that the broader authority of the Pay Board over increases within the standard had not been delegated to craft boards or the CISC.
. Executive Order 11588 :
“Sec. 4(c) Unless and until an increase in wage or salary has been approved in accordance with the provisions of sections 3(a) and 4 of this order, it shall be a violation of this order to put such wage or salary increase into effect.
“Sec. 5. Upon a determination by a board or the Committee [CISC] that a proposed wage or salary increase is not acceptable and certification of that determination by the Secretary of Labor, the following actions shall be- taken:
“(a) In implementing the provisions of the Davis-Bacon Act of March 3, 1931 (46 Stat. 1494, as amended) and related statutes the provisions of which are dependent upon determinations by the Secretary requiring similar wage standards, the Secretary of Labor and all states shall not take into consideration any wage or salary increase in excess of that found to be acceptable in making determinations under that Act and related statutes.
“(b) in order to assure that unacceptable wage rates shall not be utilized in Federal or federally-related construction, the heads of all Federal departments and agencies, subject to the direction and coordination of the Secretary of Labor:
“(1) shall review all plans for construction and financial assistance for construction in localities in which wage or salary increases have been certified by the Secretary of Labor to be unacceptable and shall, on the basis of that review, determine whether such plans can be approved or continued; and
“(2) shall review current and prospective construction contracts for Federal construction and for construction on projects receiving Federal financial assistance in the area affected by a certification by the Secretary of Labor and shall, on the basis of such review, determine whether such contracts can be awarded or continued.
“(c) The Committee and the boards shall make public their determinations,*1395 specifying the craft and area affected and the wages or salaries deemed unacceptable.
“(d) Any other action authorized by law to carry out the purposes and policy of this order shall be available to the Secretary of Labor to assure the stabilization of wages and prices in the construction industry.” [This subsection revoked by Executive Order 11627.]
. To uphold the Board’s action on this basis could create in principle a jurisdictional conflict with the National Labor Relations Board, which expressly provides for resolution of agent and unit disputes in its Rules and Regulations: “Procedure under Section 9(c) of the Act for the Determination of Questions Concerning Representation of Employees and for Clarification of Bargaining Units and for Amendment of Certifications Under Section 9(b) of the Act,” 29 C.E.R. Part. 102, Subpart C. Refusal to sign an agreement when one has been reached by appropriate representations may itself be an unfair labor practice. See H. J. Heinz Co. v. N.L.R.B., 311 U.S. 514, 61 S.Ct. 320, 85 L.Ed. 309 (1941).
. Both counsel for tiie International and for the government stated their belief, upon query from the bench, that even though a collective bargaining agreement contained a wage increase lower than the standard it could be rejected by the Board on grounds that it should have been
. See letter of April 7, 1972, from the Board’s management co-chairman, and letter of June 29, 1972, from the full Board to AGO setting out specific reasons for the Board’s action, cited at pages 4 and 5, supra; also note 15, infra.
. In Section 3(a) of Executive Order 11588 it is declared to be the responsibility of the boards to “provide advice and assistance in an effort to resolve any unresolved collective bargaining disputes involving wages and salaries” and to promptly examine every collective bargaining agreement in accordance with the criteria of section 6. Section 6 was revoked on October 15, 1971, by Executive Order 11627 and the Substantive Policies of the CISC, contained in Pay Board Order No. 2, Amended, were, by their own terms, to “constitute a complete substitute for the standards set forth in sections 6(a) and (b) of Executive Order 11588. . ” Substantive Policy 4 lists principles to be applied in ruling on exceptions in individual cases providing for adjustments in excess of the standard and of these, 4(c) and 4(e) would involve CISC in collective bargaining. Policy No. 4(c) authorizes CISC to become involved in restorations to appropriate historic relationships; 4(e) instructs CISC to give special consideration to agreements which provide for significant changes in the geographical restructuring of bargaining. Substantive Policy 8 empowers OISO to seek to enhance the boards’ contribution to the improvement of collective bargaining and procedures for dispute settlement in the industry. Section 6 of the Executive Order 11588, replaced by these Substantive Policies, listed as criteria to be applied in determining acceptability of wage and salary increases, certain acceptable economic and equity adjustments, without reference to the boards’ involvement in collective bargaining. There is no indication that the role of the boards in resolving collective bargaining disputes involving wages and salaries (Executive Order 11588) corresponds to the role of the boards suggested in Substantive Policy 8 of contributing to the improvement of collective bargaining, although the provisions of the executive order restricting the boards’ involvement in collective bargaining disputes to those “disputes involving wages and salaries” would seem naturally to govern any provisions of the Pay Board order. A further complication arises in the fact that the Substantive Policies were not filed, and presumably did not become effective, until March 24, 1972, well after the contract was submitted for examination but before the Board issued its official rejection, and that Section 6 had been revoked on October 15, 1971.
. Substantive Policy No. 6: “In consideration of all applications in 1972, the CISC recognizes the necessity to show continued retardation in the rate of increases permitted for 1972 as measured by Pay Board standards. The CISC shall also apply this principle to agreements extending into 1973 and 1974.”
. Substantive Policy No. 7 : “The CISC is to continue to apply its policy on economic adjustments which are broader than wages and fringe benefits, that is, which would include the money value of all economic adjustments including work rules.”
. Mr. Paul B. Richards, management co-chairman of the Craft Board testified in response to a series of questions about the Board’s ruling on the element of retardation in the submitted agreement: “I explained to you, Counsellor, I did not vote on the basis of the wages before me, but on the basis of the general principles presented by the contents of that contract.” See also further testimony of Mr. Richards on the reasons for the Board’s action quoted at footnote 18, infra.
. As revealed in the record the wage increases proposed in the agreement at issue here brought the current rate of $4.03 up to $4.25, effective June 1, 1972; to $4.50, effective June 1, 1973; and to $4.75, effective June 1, 1974, each increase amounting to approximately 5.5%. In Tulsa, the current rate in 1971 of $4.55 (an increase of 9.6% over 1970) was increased to $4.65 in 1972. Approved increases for Lawton and Stillwater locals for 1972 amounted to 18% and 17%, respectively.
On oral argument it was represented without contradiction that the Tulsa contract was submitted to the Board after submission of the Oklahoma City contract and approved ns to its proposed increase before the Board took action on the Oklahoma City agreement.
. See U. of So. Calif. v. Cost of Living Council, 472 F.2d 1065 (Emm.App. 1972).
. See N.L.R.B. v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965).
. In his testimony, Dr. Richards, management co-chairman of the Board said, among other things:
“Q. Tell us, please, Mr. Richards, exactly what the objection is that your Board finds with this contract.
“A. Well, I expressed my objections for the management members of the Board, as expressed to Mrs. Leslie [AGC business manager] April 7, 1972—
“A. The basic objection is that it is a long term agreement.
“Q. What are your other objections?
“A. The other objections are basically that you don’t have a uniform welfare and pension system in the state. There is not a master agreement for all the Laborers’ Locals in the state, and there are many bargaining elements rather than a single bargaining element for a single trade in the state.
“A. We disapproved for a number of reasons, one of which went to the question of the state-wide pension, health and welfare.
“Q. What are the other reasons you turned it down?
“A. I explained to you that we turned it down on the basis of its length of term.
“Q. Is there any other reason?
“A. The management side of the Board thought that it did not exhibit retardation, as mandated by the policy of the Construction Industry Stabilization Committee.
“A. ' Well, let me go back in history. We had looked over the state of Oklahoma far prior to this case coming before us, and the Craft Board had considered this a state where restructuring should take place, and they had come up with a plan for the restructuring of Oklahoma within the terms and framework of the Executive Order.
“The fact is that Local 612 agreement did not meet that plan, and therefore it was rejected on basis it did not meet the restructuring program and the plan of the Laborers’ National Craft Board.
“Q. Then this case went to that Board [CISC]. Did they hear any new evidence of any kind?
“A. No, sir, as I explained now several times, the Laborers’ National Craft Board did the courtesy to the CISC of providing a copy of our rejection letter to the AGC and 612.”
. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945); United States v. International Brotherhood of Electrical Workers, Local No. 11, 475 F.2d 1204 (Em.App. (1973); Univ. of So. California v. Cost of Living Council, 472 F.2d 1065 (T.E.C.A.1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973); United States v. Lieb, 462 F.2d 1161 (Em.App.1972).
. N.L.R.B. v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965) supra; Atchison, T. & S. F. Ry. Co. v. United States, 284 U.S. 248, 52 S.Ct. 146, 76 L.Ed. 273 (1932); Conklin Pen Co. v. Bowles, 152 F.2d 764 (Em.Ct.1946); Federal Trade Commission v. Crowther, 139 U.S.App.D.C. 137, 430 F.2d 510 (1970); Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859 (1970); In re Hooper’s Estate, 359 F.2d 569 (3d Cir.), cert. denied, Marine National Exchange Bank, Executor v. Government of the Virgin Islands, 385 U.S. 903, 87 S.Ct. 206, 17 L.Ed. 2d 133 (1966). In the latter case it is noted that “administrative action is arbitrary if it is taken without any au
. The basic executive authorization for Phase III, Executive Order 11695, January 11, 1973, continues the CISC and the boards as before, with the added provisos that they shall perform “such functions with respect to the stabilization of wages and salaries in the construction industry as the Chairman of the [Cost of Living] Council may delegate to [them].” (Sec. 5.) On that same day, Cost of Living Council Order No. 16 made a Delegation of Authority to CISC, charging it in carrying out its functions to “give particular attention to improving the collective bargaining process in the construction industry and to the rationalization of the wage structure within geographic areas and between crafts within a particular area.” And a White House Fact Sheet released to accompany Executive Order No. 11695 states that the CISC “will continue its work with the twin goals of improving the bargaining structure in the industry and achieving additional progress in bringing the rate of growth in this sector into line with the general wage growth in the economy.”
Cost of Living Council Release No. 213, February 26, 1973, states that “[t]he fundamental objective of policy for the 1973 collective bargaining season is to move toward viable long-run arrangements for dispute settlement in each branch of the industry and toward more effective collective bargaining in the public interest.” It continues:
“The period of controls, as envisaged in Executive Order 11588, should be used to make a major contribution to the resolution of some of the major longer-term problems of the industry through effective cooperation between labor, contractors and the government. Among the most significant of these long-run problems has been: (a) the need for procedures at the national level to facilitate the settlement of disputes over the terms of local or regional collective bargaining agreements, (b) broadening the geographical structure of negotiations in some localities and for some crafts, (c) development of special wage rates for some branches of the industry, (d) review of some managerial and labor practices and contract provisions in some localities as they affect costs, (e) greater coordination of collective bargaining negotiations among crafts and associations in some localities, and (f) improvement in the quality of information available for collective bargaining among local and national parties.”
It is clear from these documents that the delegation of authority to CISC during Phase III includes a clear mandate to make improvement of collective bargaining a “fundamental objective.”
. Univ. of So. Calif. v. Cost of Living Council, 472 F.2d 1065 (Emm.App.1972).
. “(a) Suits for violation of contracts between an employer and a labor organ
. See, e. g., Buell v. Sears, Roebuck and Co., 321 F.2d 468 (10th Cir. 1963).
. The trial court seems to have based its decision at least in part upon the application of such a condition-subsequent-by-contract theory which now appears unwarranted; however the gist of its determination was that the refusal of the agencies to approve the agreement, including the pay increase, was within their authority and thus valid. In any event such problems and the question of whether a collective bargaining agreement has been validly entered into in the first instance have been held to be so related to the subject of “suits for violation of” labor contracts as to permit their resolution by district courts by virtue of § 185 notwithstanding their relationship to possible unfair labor practices within the exclusive cognizance of the Labor Relations Board. See United Steelworkers of Am., AFL-CIO v. Rome Indus., Inc., 437 F.2d 881 (5th Cir. 1970); Warrior Constructors v. International U. of Op. Eng., Local 926, 383 F.2d 700 (5th Cir. 1967); Heavy Cont’rs Ass’n v. International Hod Car., L. No. 1140, 312 F.Supp. 1345 (D. Nebr.1969); Lewis v. Splashdam By-Products Corporation, 233 F.Supp. 47 (W.D.Va.1964); Todd Shipyards Corp. v. Industrial U. of Marine & Ship Wkrs., 232 F.Supp. 589 (E.D.N.Y.1964).
. Economic Stabilization Act Amendments of 1971, § 211, Judicial Review:
“(a) The district courts of the United States shall have exclusive original jurisdiction of cases or controversies arising under this title, or under regulations or orders issued thereunder, notwithstanding the amount in controversy 11
. Fed.R.Civ.P. 15(b) Amended and Supplemental Pleadings: Amendments to Conform to the Evidence:
“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. 11
28 U.S.C. § 1653:
“Amendment of pleadings to show jurisdiction.
“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.”
Cf. United States v. Lieb, 462 F.2d 1161, 1168 (Emm.App.1972).
. 28 U.S.C. § 2201:
“In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.”
See International Longshoremen’s Association, AFL-CIO v. Seatrain Lines, Inc., 326 F.2d 916 (2d Cir. 1964).
. 468 F.2d at 1403-1406.
. On the contrary, Executive Order 11588 dated March 15, 1971, Section 5, authorized the immediate implementation and enforcement by the Secretary of Labor of any “determination by a [craft] board or the [Construction Industry Stabilization] committee that a proposed wage or salary increase is not acceptable. . ” That the omission of provision for any administrative review of CISC decisions was not an oversight is plainly shown by Cost of Living Council Order No. 22 effective March 1, 1973, which provides for a review or reconsideration of initial decisions regarding pay adjustments, but which expressly provides that “[t]he authority delegated in this Order shall not include any authority which has been delegated to the Construction Industry Stabilization Committee pursuant to Cost of Living Council Orders Numbers 16 and 20 or to the Administrator for Pay Board Matters pursuant to Cost of Living Council Order Number 21. A similar exception was contained in Cost of Living Council Order No. 16 providing authority for the Administrator for Pay Board- Matters to rule on requests for review or reconsideration in the period of transition of authority between Phases II and III.
. Cf. Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d 859, (1970); Koepke v. Fontecchio, 177 F.2d 125 (9th Cir. 1949).
. We do not find that any of these problems were called to the attention of the trial court and, in fact, counsel for the parties in their arguments before this court indicated satisfaction with the procedural and jurisdictional posture of the case and inferred that we were in a position to finally dispose of the case on its merits one way or the other. The government as amicus curiae stated in its brief that “the record is adequate to support the district court decision [but] if this court feels that the record is inadequate in this regard, the case should be remanded for further proceedings so that the Government can be made a party to the suit.” It is in view of this failure to raise the points below that we have gone as far as feasible to avoid having our decision turn upon them.
. 28 U.S.C. § 2202: “Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.”
. Economic Stabilization Act Amendments of 1971:
Ҥ 209. Whenever it appears to any person authorized by the President to exercise authority under this title that any individual or organization has engaged, is engaged, or is about to engage in any acts or practices constituting a violation of any order or regulation under this title, such person may request the Attorney General to bring an action. . .
Ҥ 210(a). Any person suffering legal wrong because of any act or practice arising out of this title, or any order or regulation issued pursuant thereto, may bring an action in a district court of the United States. .
Ҥ 211(a). The district courts of the United States shall have exclusive original jurisdiction of cases or controversies arising under this title. .
Ҥ 211(d)(2). A district court of the United States or the Temporary Emergency Court of Appeals may enjoin temporarily or permanently the application of a particular regulation or order issued under this title to a person who is a party to litigation before it. ff
. §§ 207(a) and 211(d)(1) of Economic Stabilization Act Amendments of 1971, supra.
. See United States v. McCrillis, 200 F.2d 884 (1st Cir. 1952); Senderowitz v. Clark, 162 F.2d 912 (Emm.App.1947).
. See, e. g., Templeton v. Atchison, T. & S. F. Ry. Co., 84 F.Supp. 162 (W.D.Mo. 1949), affd. Brotherhood of Railroad Trainmen v. Templeton, 181 F.2d 527 (8th Cir. 1950); Edwards v. Capital Airlines, Inc., 84 U.S.App.D.C. 346, 176 F.2d 755 (1949); Western Fruit Growers, Inc. v. Beilman Produce Co., Inc., 75 F.Supp. 334 (M.D.Pa.1948). See also Order of Ry. Conductors of America v. Penn. R. Co., 323 U.S. 166, 65 S.Ct. 222, 89 L.Ed. 154 (1944); Transport Wkrs. U. of Amer. v. Amer. Airlines, Inc., 413 F.2d 746 (10th Cir. 1969); Kansas Gas & Electric Co. v. City of Independence, Kansas, 79 F.2d 32 (10th Cir. 1935).
. McGuire Shaft & Tunnel Corp. v. UMW Local 1791, 475 F.2d 1209 (Em.App. 1973); City of N. Y. v. N. Y. Telephone Co., 468 F.2d 1401 (T.E.C.A.1972), supra,. However, these did not involve challenge to the validity of agency action.”
. “Rule 19 — Joinder of Persons Needed for Just Adjudication
“(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties. .
“(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a) (l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable.
See Provident Bank v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), reversing Provident Tradesmens B. & T. Co. v. Lumbermens Mut. Co., 365 F.2d 802 (3d Cir. 1966).
. See, e. g., United States v. IBEW Local 11, 475 F.2d 1204 (Emm.App.1973); United States v. Chicago Blackhawk Hockey Team, Inc., 468 L.Ed.2d 221 (Emm.App.1972).
. Cf. Order of Railway Conductors of America v. Pa. R. Co., 323 U.S. 166, 65 S.Ct. 222, 89 L.Ed. 154 (1944). The agency rulings of course have been established, but the agencies as parties should be afforded reasonable opportunity to explain them before the district court in any light they believe would be consistent with their validity; and upon the determination of validity or invalidity by the
. 468 F.2d at pp. 1402-1406.
. In two other cases in this court agency action has been challenged and the United States has not been a party. In each the defendants apparently were sued as agencies rather than as individual members comprising the agencies. Univ. of So. Calif. v. Cost of Living Council, 472 F.2d 1065 (Emm.App.1972); Mass Retailing Institute, Inc. v. Cost of Living Council, 468 F.2d 948 (Emm.App.1972). While the distinction between suing an agency officer and his agency may be important for some purposes, such as proper service of summons, Fed.R.Civ.P. 4(d) (1) and (5), avoidance of sovereign immunity, the assertion of personal liability, etc., such a distinction need not be controlling in this case in the absence of developing practical difficulties of which prospect we are not now aware. The precedents already established satisfy us that agency intervention is practical through participation by attorneys for the Department of Justice as in prior cases.
. The key principle was framed in Williams v. Fanning, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95 (1948): “The superior officer is an indispensable party if the decree granting the relief sought will require him to take action, either by exercising directly a power lodged in him or by having a subordinate exercise it for him.” See also Johnson v. Kirkland, 290 F.2d 440 (5th Cir.), cert. denied, 368 U.S. 889, 82 S.Ct. 142, 7 L.Ed.2d 88 (1961). The high court had earlier held that local officers may be mere agents and subordinates of the superior officer, and that where the superior’s “are the hands which would be tied” he should be made a party defendant. Gnerich v. Rutter, 265 U.S. 388, 44 S.Ct. 532, 68 L.Ed. 1068 (1924), Cf. May v. Maurer, 185 F.2d 475 (10th Civ. 1950).
The case before us now involves no challenge to the regulations, but only to a determination of agencies purportedly acting within those regulations. The Craft Board and CISC determinations are final; provision has not been made for administrative review by any superior agency. Cost of Living Council Order No. 22, which delegates authority to the Administrator for the Office of Wage Stabilization to issue decisions and orders with respect to eases involving pay adjustments under the regulations of the Cost of Living Council, specifically exempts CISC decision-making authority from the reach of that provision, as heretofore noted.
If the Craft Board and/or CISC approve the AGC contract, no other agency or official in the government is permitted to act administratively on the matter. Section 4, Cost of Living Council Order No. 6. Any judicial action in the nature of an injunction or mandamus to compel approval would expend itself only on the Craft Board or the CISC, rendering superior officials or agencies unnecessary parties.