Findings of Fact 123 C. Cls. by letter, making reference to the Wage Adjustment Board's telegram of March 6 and stating that this action had been disregarded by the Regional Director at Kansas City. In this letter it was pointed out that the United States Conciliation Service, the Regional and National War Labor Board, the Wage Adjustment Board, and the Regional War Manpower Commission had been unwilling or unable to take any action toward resuming referrals to plaintiffs' project. On July 8, 1944, the Director of the Bureau of Placement, War Manpower Commission at Washington, sent a teletype to the Regional Director at Kansas City requesting a report of the status of the labor dispute and the action taken. After referring to the Wage Adjustment Board's telegram of March 6, it was pointed out that the Regional Director maintained that the Conciliation Service should make a decision, but that the Conciliation Service had advised that it was no longer concerned with the case because it had been referred to the Wage Adjustment Board. The teletype concluded by stating that the Corps of Engineers was interested because nonreferral might cause plaintiffs to fall behind the work schedule, and asked for advice as to whether any action by headquarters could assist in this case. On July 10, 1944, the Regional Director responded by teletype, stating that on July 8, 1944, the Engineer's Office in Dallas, Texas, had been informed that "In accordance with our procedure in the handling of labor disputes, we do not feel justified in ordering our offices to make referrals to this job until such time as the labor dispute is resolved", and that there was no need for action from headquarters. By letter of July 15, 1944, the War Manpower Commission at Washington responded to the Chief of Engineers' letter of June 30, informing that official of the ruling received from the Regional Manpower Director. In this letter the Chief of Engineers was advised that under existing policies of the War Manpower Commission, the Regional Director was responsible for this decision, and it was controlling subject to the usual right of appeal. The letter concluded by stating that there was no basis for headquarters action in the matter. By letter of July 17, 1944, the War Manpower Commission responded to the Regional Director's telegram of July 10, requesting a full 23 Opinion of the Court report on the matter. The Regional Director responded by letter of July 21, 1944, stating in part as follows: Referrals have not been resumed because the WMC officials who are intimate with the disputants believe that the best interests of the war effort are furthered by settling the dispute. Among those officials who have this intimate knowledge of the disputants and of the people involved are the Regional Director, the Chief of Placement, the State Manpower Director, the Area Director and the local office manager. You will note that Arthur D. Hill, Jr., Co-Chairman of the Wage Adjustment Board, in his statement of March 6, 1944, did not say that the "agency believes that the making of referrals to such jobs will not interfere with negotiations or delay progress in the settlement of the dispute," but that the "referral by United States Employment Service of additional workmen to Ottinger Brothers Contract, West Tulsa, Oklahoma Levee Projects will not interfere with consideration of case by Wage Adjustment Board." It is our considered opinion that even though resumption of referrals might not interfere with the consideration of the case, that they might seriously affect the negotiations or delay progress in the settlement of the dispute. The fact, upon which this is based, is intimate knowledge, as we have tried to explain above, of the situation and is something that we submit for acceptance on faith. In our January 13 report on page 2, you will find the statement: "After the Tulsa Levee Project started, labor trouble arose and accord- [sic] to newspaper reports, an employee of the Ottinger Company was shot at and dynamite placed under the hood of Mr. Skidmore's (Ottinger Company Superintendent) car. We are strongly of the opinion that our responsibilities are most intelligently discharged and that the war effort, as a whole, is best protected by the earliest possible settlement of this dispute. It has been possible, apparently when occasion warranted, for disputes to be settled by another government agency in three days. Our recommendation is that the pressure directed toward us to resume referrals be directed toward a government agency to settle the dispute and notify us that the dispute no longer exists. 22. On July 31, 1944, plaintiffs, by letter to the War Manpower Commission at Tulsa, requested that certain labor Opinion of the Court 123 C. Cls. (one mechanic and one welder) be furnished. The Area Director responded by letter of August 4, stating that the Employment Service was unable to refer labor in view of the fact that the labor dispute had not been settled. 23. The District Engineer at Tulsa was advised by the Division Engineer at Dallas, Texas, that as the decision of the Regional War Manpower Director had been held to be controlling, subject to right of appeal, it was recommended that plaintiffs be instructed to appeal immediately and that a copy of the appeal be sent to the National Director of the War Manpower Commission. On August 14, 1944, plaintiffs were advised by the District Engineer's representative that an appeal should be made. 24. On August 23, 1944, plaintiffs made formal appeal to the Regional Director from the refusal of the local manager of the United States Employment Service at Tulsa, and of the Area Director, to make referrals of labor to plaintiffs' projects covered by the contracts involved herein. It was stated that the only difference existing between plaintiffs and the union was the question of open- or closed-shop operation, which dispute had been submitted to the National War Labor Board on December 24, 1943, which board had, on January 17, 1944, advised plaintiffs that they would be notified regarding the procedure to be followed, but nothing further had been heard from said board. The telegram of the Wage Adjustment Board, dated March 6, 1944, was referred to in the appeal, which concluded with a request for reconsideration of the prior decision in the matter and for advice as to action taken. On September 2, 1944, the Regional Director ruled on plaintiffs' appeal, stating that the following instructions had been issued to the State Manpower Director of Oklahoma: In accordance with the procedure outlined in Field Instruction No. 74 and U. S. Employment Service Manual, Sections 3440-3447, The Regional War Manpower Committee was consulted September 1, on the question whether referrals to Ottinger Brothers Construction Company, Tulsa, Oklahoma, should be resumed in the best interests of the war effort, before such referrals are automatically resumed by termination of the dispute. 23 Findings of Fact The committee expressed itself in a unanimous vote, except for one member, in voting that status quo of the case should be maintained, namely, the suspension of referrals should be continued pending termination of the labor dispute. The Regional Director, after considering the advice of the Regional War Manpower Committee and other information, determines that in the best interest of the war effort, referrals should not be resumed. 25. Following the calling out of the union men on December 6, 1943, plaintiff recruited its forces as best it could without help of referrals by the United States Employment Service, and finally completed the levee contracts some time after the scheduled completion dates. On October 9, 1944, plaintiffs, in a letter to the District Engineer at Tulsa, Oklahoma, filed a claim for the damages allegedly sustained as the result of the failure of the United States Employment Service to refer labor to plaintiffs' project. Plaintiffs' claim was referred to the War Department Board of Contract Appeals, which board ruled that it was without authority to consider the claim. 26. The contracts herein involved contain no provisions with respect to labor to be procured through the Employment Service. 27. Labor dispute notices such as are herein involved were frequently received by the United States Employment Service with respect to other contractors and it was the uniform policy of the Employment Service throughout the country to refuse to furnish labor as long as a dispute was pending. The treatment accorded plaintiffs was the same as was accorded all other contractors in similar situations. The contracting officer and the head of the department concerned with the contract performance at all times endeavored to assist plaintiffs in the matter of having labor referred to plaintiffs. 28. On June 22, 1949, upon motion filed by plaintiffs, the court limited the hearing to the question of liability and no evidence was offered on the extent of damages. The court decided that the plaintiffs were not entitled to recover. Opinion of the Court MADDEN, Judge, delivered the opinion of the court: 123 C. Cls. The plaintiffs are a partnership engaged in the construction business. They made four separate contracts with the United States, which acted through the Army Engineers, for constructing levee work near Tulsa, Oklahoma. The dates of the contracts were September 22 and December 6, 1943, and January 3 and February 29, 1944. Work under the first contract was commenced about October 6, 1943, by the preparation of the site for the reception of the construction equipment. Only a few workmen were used on this preparatory work. Shortly before the commencement of work on the contracts involved in this suit, the plaintiffs had performed another contract for the Government in the Tulsa area. They had operated on an open shop basis, and three different labor organizations had made written protests to the Tulsa office of the United States Employment Service, requesting that it refer no workmen to the plaintiff because of the existence of a labor dispute on the plaintiff's job. The other Government contractors working in the area had closed shop agreements with the unions. The United States Employment Service, apparently pursuant to the protests of the unions, refused to honor the plaintiffs' requests for the referral of workmen to that job. But the plaintiffs succeeded in completing it and it is not involved in this suit. On October 6, when work was commenced on the first of the four contracts herein involved, the alliance of Tulsa Building Trades, representing a number of building trades unions affiliated with the American Federation of Labor notified the Tulsa office of the United States Employment Service that its affiliated crafts were having labor difficulties with the plaintiffs, and, on October 14 notified that office that the job was being picketed. At first the plaintiffs were able by hiring applicants "at the gate" to obtain the small force that they needed. There was no law or policy against their doing so. But on October 9 the plaintiffs requested the Employment Service to refer seven common laborers to their job. They were told that no labor would be referred to them until it was determined that a labor dispute did not exist, or if one did exist, that it had been settled. |