York Engineering & Construction Co. v. United States

• Decision Date: 04 June 1945
• Docket Number: No. 45282.,45282.
• Citation: York Engineering & Construction Co. v. United States, 62 F. Supp. 546, 103 Ct. Cl. 613 (Fed. Cl. 1945)
• Parties: YORK ENGINEERING & CONSTRUCTION CO. v. UNITED STATES.
• Court: U.S. Claims Court

62 F. Supp. 546

103 Ct. Cl. 613

YORK ENGINEERING & CONSTRUCTION CO. v.UNITED STATES.

No. 45282.

Court of Claims.

February 5, 1945.

On Motion for New Trial June 4, 1945.

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Robert P. Smith, of Washington, D. C.(William Ristig, of Washington, D. C., on the brief), for plaintiff.

W. A. Stern, II, of Washington, D. C., and Francis M. Shea, Asst. Atty. Gen., for defendant.

Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.

MADDEN, Judge.

The plaintiff, a partnership, entered into a contract in August of 1935 to build for the United States Lock and DamNo. 9 in the Allegheny River in Pennsylvania.The work was done in the autumn of 1935, and in the open seasons of 1936, 1937, and 1938.It was completed on or about October 6, 1938.The plaintiff was paid the agreed price for the work.It sues here for damages for several alleged breaches of contract by the United States.It sets forth in its petition sixteen separate causes of action.All but 4 of them are for damages which, the plaintiff asserts, resulted from one breach of the contract, viz., the Government's failure to furnish the plaintiff a supply of labor to adequately man the work and carry it forward to completion.The plaintiff asserts that this failure prevented the plaintiff from completing the work before the winter of 1937-1938, which it would have done if it had had an adequate supply of labor, and that several of the items of its claim resulted from its having to carry the work over that winter and through the following summer.

The alleged duty on the part of the Government to supply the plaintiff with labor is said to flow from the following provision of the contract: "Art. 19.(a) Labor preferences.— With respect to all persons employed on projects, except as otherwise provided in RegulationNo. 2, (a) such persons shall be referred for assignment to such work by the United States Employment Service, and (b) preference in employment shall be given to persons from the public relief rolls, and, except with the specific authorization of the Works Progress Administration, at least ninety per centum (90%) of the persons employed on any project shall have been taken from the public relief rolls: Provided, however, That, expressly subject to the requirement of subdivision (b), the supervisory, administrative, and highly skilled workers on the project, as defined in the specifications, need not be so referred by the United States Employment Service. * * *"

The plaintiff's interpretation of this provision of the contract is given in its reply brief as follows: "We submit that under Article 19 of the contract the defendant undertook the responsibility of supplying plaintiff with sufficient workers to properly staff the job."

We think that this interpretation is not the correct one.The primary purpose of most of the public works financed by the Government during this period was to relieve unemployment.In order that the jobs created with public money for this purpose should go to those who were in such distress as to be eligible for the relief rolls, it was necessary that the Government keep a careful check on the roll of employees.Its method of doing so was to require that all employees except those in supervisory, administrative and highly skilled jobs, be referred to the employer by the United States Employment Service.In that way the requirement that 90% of the persons employed should be obtained from the public relief rolls, unless the Works Progress Administration should otherwise authorize, could be enforced.

We think, therefore, that Article 19 was a promise by the plaintiff not to employ labor except as therein provided.We think it also, by implication, contained a promise by the Government to apply the provisions of the article with fair consideration for the problems and difficulties of the contractor, and to make it possible for him to get his work done, if there was not enough relief labor available, but there were persons not on relief who desired to work for the plaintiff.For example, we think that the Government would have breached this implied term of the contract if its Works Progress Administration had not, when there were not enough men on the relief rolls to fill the plaintiff's needs, authorized the United States Employment Service to refer men to the plaintiff who were not on the relief rolls.But there was no such failure, as such authorizations were given with reasonable promptness when the need for them arose, many of them in the first months of the work, and remained in effect for the duration of the work.

The relevant facts concerning the plaintiff's shortage of labor seem to be about as follows.In the summer of 1935, when the plaintiff was about to bid on the work, it inquired in the locality and found that there was a large labor surplus, with many workmen on relief.It therefore assumed and counted on an adequate supply of labor, since it needed only some 600 men.When it began its work, however, it found almost immediately that some classes of labor, such as crane operators, pile drivers and, a few weeks later, form carpenters, could not be obtained from the relief rolls.It requested permission to hire nonrelief workmen for these trades, and the Works Progress Administration authorized the Employment Service to send nonrelief men.The Government also authorized the plaintiff to work the men that it could get a much longer work week than was permitted by the contract without special authorization.Nevertheless, almost from the beginning, the plaintiff did not get enough workmen.Working conditions were not attractive, the work having to be done in water.The principal employment in the area before the depression had been coal mining, and that industry revived, giving employment to many men at higher wages and with more agreeable working conditions than the plaintiff's job offered.The site of the dam was in a rural area, so that there was no great number of workmen living within easy distance.Public transportation was not available, from most directions.The cost of meals and lodging was high, in comparison with the potential earnings, at least of common laborers.The plaintiff did not establish a work camp at the job, so that workmen would have had to find lodging places for themselves, many of them at inconvenient distances from the job.The Government was carrying on, in the area, projects such as the construction of sewers which were of public importance, and which probably competed with the plaintiff's project in the sense that if they had been closed down, some of the workmen on them might have been diverted to the plaintiff's job.The plaintiff's requisitions for men, sent to the employment service, prescribed qualifications in the way of experience and equipment not likely to be met by many persons living in the area of the work.

The Government was responsible for practically none of the factors listed above, which prevented the plaintiff from getting enough men.It may be that it could have, by the closing down of relief work projects in adjacent areas compelled men to take jobs with the plaintiff and board away from home, though the net wages available to support their families would have been small.We think it has not been proved that the refusal of the relief authorities to thus forcibly recruit workmen for the plaintiff was so inconsiderate of the plaintiff's difficulties as to be a breach of the Government's implied contract.

The plaintiff contends that the Government should have cancelled the requirement of Article 19(a) that the plaintiff should employ only those referred to it by the United States Employment Service.We have indicated above the reason for this requirement.After the Employment Service had been authorized to refer men not on relief, it did so, and permitted the plaintiff to select persons whom it wanted, and send them to register at the Employment Service so that they might be referred to the plaintiff for employment.In that way the plaintiff could get men if it could find them, but the Employment Service would have a record of who they were, where they came from, etc., which might be useful if the relief problem again became acute.The plaintiff contends that if it could have hired men "off the street" at the site, instead of having to send them to register at the Employment Service, it could have obtained enough help.We think this has not been proved.We do not see why a workman, desirous of working for the plaintiff, would be substantially deterred from doing so by being required to register at the Employment Office.It could have been, if it was not, explained to him that he was not asking for relief; that there was no difference between the public employment office and a private employment agency except that the former charged no commission.We think it would have made no substantial difference in the plaintiff's labor situation if the Government had cancelled Article 19 of the contract.The plaintiff had a shortage of labor because there were not enough men, at the place and time, who wanted to work for the plaintiff.So it cannot recover, unless the Government guaranteed to put enough men into the plaintiff's employ and keep them there, to man the job adequately, or pay the plaintiff damages if there should be a shortage, however unavoidable.As we have said, we do not so interpret Article 19(a).We do not read into that language the implication that the Government will pay damages as for breach of contract if an unavoidable shortage...