523 Reporter's Statement of the Case For paragraph 2 of President's Agreement. For paragraph 3 of President's Agreement. No factory or mechanical worker or artisan (except emergency repair employees and old and partially disabled employees who shall comprise not more than 2% of the total number of employees) shall be employed for more than a 40-hour week provided, however, that these limitations shall not apply to branches of this industry in which seasonal or peak demand or break-down places an unusual and temporary burden upon such branches and provided, however, that in no case shall the hours worked in any one week exceed 48 hours and provided, further, that the number of hours over 40 per week worked in any six months' period shall not exceed 32. For paragraph 6 of President's Agreement. Code reference: (Article II, Sections 3, 4, and 7) No factory or mechanical worker or artisan shall be paid less than 35c per hour for males and 30c per hour for females unless the hourly rate for the same class of work on July 15, 1929, was less than the above specified minima in which latter case they shall be paid not less than 30c per hour for males and 25c per hour for females and provided further, that learners and apprentices may be paid not less than 80% of the above minimum wages for a period of not to exceed three months, but the total number of such learners and apprentices shall not exceed 5% of the total number employed by any such employer in any calendar month, provided, further, however, that where female employees do substantially the same work or perform substantially the same duties as male employees, they shall be paid the same rate of pay as male employees are paid for doing such work or performing such duties. This paragraph establishes a guaranteed minimum rate of pay regardless of whether the employees are compensated on the basis of a time rate or on piece-work performance. Reporter's Statement of the Case 100 C. Cls. November 12, 1933, Kawneer and the Bronze Company became bound by a Code of Fair Competition for the Fabricated Metal Products Manufacturing and Metal Finishing and Metal Coating Industry, also providing for maximum hours and minimum wages. From and after July 31, 1933, Kawneer and the Bronze Company substantially complied with and adhered to the agreement with the President, the substituted provisions thereof, and the applicable Code of Fair Competition in the manufacture and production of the materials called for by their respective contracts as above enumerated. 14. In substantially complying with the agreement with the President, as originally signed and as amended by the substituted provisions, and with the Code of Fair Competition applicable to its industry, Kawneer and the Bronze Company, in their respective plants at Niles, Michigan, and Chicago, Illinois, shortened the total weekly hours of employment, increased the hourly rates of pay of their employees to the required minimum, and made equitable adjustments with those employees earning more than the minimum rate of pay so that under the shortened workweek such employees received approximately the same weekly wages as formerly received, all as required by the provisions of the President's Reemployment Agreement and Applicable Code; and, as a result of such compliance, Kawneer and the Bronze Company incurred increased costs in the manufacture and production of materials called for and used in connection with the above enumerated subcontracts. 15. Between May 1930 and February 28, 1934, it had been customary in the operation of the respective plants, where either had facilities to better perform certain types of work, for one of them to undertake the performance of portions of work called for under contracts held by the other. After February 28, 1934, Kawneer performed all the remaining incomplete portions of the Bronze Company contracts involved herein at which time it operated the plants at both Niles, Michigan, and Chicago, Illinois. 16. As appears from the summary of an audit made by the defendant, Kawneer and the Coleman Bronze Company between July 31, 1933, and February 28, 1934, and Kawneer 523 Reporter's Statement of the Case between February 28, 1934, and the date when it completed both its own and the Bronze Company's contracts, incurred increased costs over and above those they would have incurred had they not operated pursuant to the National Industrial Recovery Act and Agreements and Codes thereunder, for direct and indirect labor used in the execution of said contracts as follows: Total direct and indirect labor increases incurred by The Kawneer Company, August 1, 1933, to completion of contracts._. Total direct and indirect labor increases incurred by Coleman Bronze Company, August 1, 1933, to February 28, 1934__ Total, both companies--- $12, 349. 77 12, 304. 55 $24, 654.32 17. December 12, 1934, Kawneer filed claims under the Act of June 16, 1934 (41 U. S. C. A. 28-33), styled "The Kawneer Company (Successors to the Coleman Bronze Company)" with the Treasury Department of the United States, the department concerned with erection of Federal Buildings above enumerated, claiming reimbursement of increased costs allegedly due to the enactment of the National Industrial Recovery Act with respect to its and all the Bronze Company's subcontracts for furnishing materials used in construction of the aforesaid Federal buildings, that is, with the exception of the claim for reimbursement of alleged increased costs with respect to the Columbus, Ohio, post office building. Final settlement of the contract with Henry Ericsson Company for construction of the Columbus, Ohio, post office was made June 8, 1935, and on January 10, 1936, Kawneer filed a claim styled "The Kawneer Company (Suc Reporter's Statement of the Case 100 C. Cls. cessors to the Coleman Bronze Company)" with the Treasury Department of the United States, the Department concerned with construction of this post office, claiming losses incurred by reason of enactment of the National Industrial Recovery Act. 18. The claims filed by Kawneer were considered by the Comptroller General under the Act of June 16, 1934 (41 U.S. C. A. Secs. 28-33). November 12, 1937, the Comptroller General directed to Kawneer eight separate settlement certificates, one for each claim submitted, all showing the same action and disallowing each of the claims; the one with regard to the Columbus, Ohio, post office was in part as follows: Your claim No. 057727 (6) for $3,401.51, filed under the act of June 16, 1934, 48 Stat. 974, representing increased costs alleged to have been incurred by reason of compliance with the National Industrial Recovery Act in the performance, as subcontractor, under contract No. Tlsa-4159, entered into by the United States with the Henry Ericsson Company, in furnishing and installing miscellaneous and ornamental metal work at the Columbus, Ohio, Post Office, Courthouse, etc., has been carefully examined and it is found that no part thereof may be allowed for the reasons hereinafter stated. The act of June 16, 1934, supra, authorized relief to those contractors or their subcontractors who entered into contracts with the United States prior to August 10, 1933, and incurred increased costs in the performance thereof by reason of compliance on and after August 10, 1933, with the applicable code or codes of fair competition approved by the President under section 3 of the National Industrial Recovery Act, 48 Stat. 196, or an agreement with the President under section 4 (a) of said act. By its express terms, the act makes compliance a condition precedent to the allowance of any benefits thereunder. In the absence of compliance relief may not be granted. Full compliance must be established as a fact-partial compliance will not suffice-and failure to establish full compliance means failure to establish a right to relief. Although you were required on and after August 10, 1933, until the completion of your contract, to comply with each and every provision of the aforementioned agreement, the approved substituted provisions therefor, and the applicable approved code, the record indi 523 Opinion of the Court cates and you admit that during the period from August 10, 1933, to March 8, 1934, two of your employees classified as messengers, were paid only 25 cents per hour, or $10 per week based on the maximum 40-hour week, although until the effective date of the code as prescribed by the President's Reemployment Agreement, the minimum wage for these employees was 372 cents per hour, or $15 per week. On and after the effective date of the code, in accordance with the provisions thereof, you were required to pay one of the messengers, 18 years old, a minimum wage of 30 cents per hour, or $12 per week, while with reference to the other, 19 years old, the minimum wage rate remained 372 cents per hour, or $15 per week. Since, as hereínabove indicated, you not only failed to comply with the President's Reemployment Agreement, but also failed to comply with the applicable approved code, you are not entitled to any benefits under the act of June 16, 1934. I therefore certify that no balance is found due you from the United States. No payment has been made upon any of the claims. 19. The increased labor costs totaling $24,654.32, as set forth in finding 16, were incurred as a result of the enactment of the National Industrial Recovery Act by the Coleman Bronze Company, a wholly-owned subsidiary of the Kawneer Company, July 31, 1933, to February 28, 1934, and by the Kawneer Company individually July 31, 1933, to completion of the contracts, and as the successor by operation of law of the Coleman Bronze Company between February 28, 1934, and the completion of the contracts. The court decided that the plaintiff was entitled to recover. LITTLETON, Judge, delivered the opinion of the court: The facts are stipulated and show, as set forth in findings 16 and 19, that the increased direct and indirect labor costs incurred between July 31, 1933, and the completion of the contracts, under the subcontracts made by the Kawneer Company and the contracts made by the Coleman Bronze Company, and performed by Kawneer after February 28, 1934, were $12,349.77, and that the increased direct and indirect labor costs incurred between July 31, 1933, and February 28, 1934, under the subcontracts made by Kawneer's |