Perkins v. Endicott Johnson Corporation

• Decision Date: 01 February 1941
• Citation: 37 F. Supp. 604
• Parties: PERKINS, Secretary of Labor, v. ENDICOTT JOHNSON CORPORATION et al.
• Court: U.S. District Court — Northern District of New York

37 F. Supp. 604

PERKINS, Secretary of Labor, v. ENDICOTT JOHNSON CORPORATION et al.

District Court, N. D. New York.

February 1, 1941.

Ralph L. Emmons, U. S. Atty. for Northern District of New York, of Binghamton, N.Y. (Rawlings Ragland, Sp. Asst. to Atty. Gen., and Clifford P. Grant, of Washington, D.C., Atty. in Department of Labor, of counsel), for the Government.

Howard A. Swartwood, of Endicott, N. Y. (William H. Pritchard, Jr., of Endicott, N.Y., of counsel), for defendants.

BRYANT, District Judge.

This is a proceeding to obtain an order of the Court directing the Endicott Johnson Corporation and its Secretary to obey certain subpoenas duces tecum issued by the Secretary of Labor in an administrative proceeding under the Act of June 30, 1936, 49 Statutes 2036, known as the Walsh-Healey Public Contracts Act, 41 U. S.C.A. § 35 et seq. Jurisdiction to issue such an order is provided by Section 5 of the Act.

Plaintiff maintains that the Court has power, in a summary proceeding, to grant the requested order. However, to avoid any question of procedural irregularity, she has followed the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, governing plenary actions. The proceeding was initiated by the filing of a pleading denominated "complaint and application". Issue was joined by the filing of a joint answer which later, by stipulation, was limited relative to construction to be placed upon certain denials contained therein.

Plaintiff now asks for relief in three alternative forms: (1) By motion for judgment on the pleadings; (2) by motion for summary judgment; (3) by motion for an order directing compliance with the subpoena.

Plaintiff's contention can be fairly summarized by stating that, regardless of whether or not a plenary civil action is required, she is entitled to the relief contemplated by alternative (1) and (2) and that (3) becomes academic. However, should the court hold otherwise on alternatives (1) and (2) then her contention is that only a summary proceeding is needed to obtain an order to enforce an administrative subpoena and that the Federal Rules of Civil Procedure are not applicable to restrict such a summary proceeding.

Discussion of procedure seems to be unnecessary. The question at issue is whether or not the court, without further showing, will require defendants to obey the departmental subpoena. Decision of the question will affect the parties the same whether the present controversy be considered a plenary action or a summary proceeding. On this point, suffice to say that I do not consider it necessary to follow the Federal Rules controlling plenary actions. Relief can be granted in a summary proceeding. National Labor Relations Board v. Goodyear Tire & Rubber Co., D.C.N.D. Ohio, 36 F.Supp. 413, decided Nov. 27, 1940.

Endicott Johnson Corporation is engaged in manufacturing in four cities in New York State, all of which are within a radius of about nine miles. It operates twenty-two footwear factories, six tanneries and twenty-six independent departments. The shoe factories are located in all four cities; the tanneries are all in Endicott and the rubber mill is in Johnson City. In the fall of 1936, the corporation received fifteen orders from the Government. Twelve of these orders were for the manufacture of men's leather welt shoes; two for the manufacture of gymnasium shoes and one for arctic overshoes. All orders were completed by about October 11, 1938. The corporation received these orders or contracts as a result of bids submitted. In each bid the corporation was required to submit the place or places where the articles would be manufactured. The specifications covering this requirement reads:

"Names and locations of factories: Bidders must state in space provided below names and locations of the factories where manufacture of the item bid upon will be performed. The performance of any of the work contracted for in any place other than that named in the bid is prohibited, unless the same is specifically approved in advance by the contracting officer. If more than one place of manufacture is named, the quantity to be manufactured in each place must be given: —

"Names and Locations of Factories Quantities."

In compliance with above requirement the corporation designated the George F. Tabernacle Factory, Binghamton, N.Y., as the place for the manufacture of men's leather welt shoes; the Jigger Factory, Johnson City, N.Y., as the factory for the manufacture of gymnasium shoes, and the Sunrise Factory, Johnson City, N.Y., as the place of manufacture of arctic overshoes. These factories do not make or tan leather, neither do they make rubber soles, out soles or cartons. These articles are produced in tanneries, rubber mills and factories located at distances ranging from two to nine miles from the designated factories. These facts were known to the Labor Department (Public Contracts Division), if not at the time of the making of the contract then very soon thereafter, because periodical inspections were made. No complaint of noncompliance by the four designated factories with the provisions of the Walsh-Healey Act has been made.

In July, 1938, when thirteen of the...