District Lodge No. 166, Intern. Ass'n of Machinists and Aerospace Workers, AFL-CIO v. TWA Services, Inc., AFL-CI

• Decision Date: 03 May 1984
• Docket Number: AFL-CI,P,No. 82-3159,82-3159
• Citation: 731 F.2d 711
• Parties: 26 Wage & Hour Cas. (BN 1207, 101 Lab.Cas. P 34,547 DISTRICT LODGE NO. 166, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,laintiffs-Appellants, v. TWA SERVICES, INC., National Aeronautics and Space Administration, Raymond J. Donovan, Secretary of Labor, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 711

731 F.2d 711

26 Wage & Hour Cas. (BN 1207, 101 Lab.Cas. P 34,547

DISTRICT LODGE NO. 166, INTERNATIONAL ASSOCIATION OF

MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Plaintiffs-Appellants, v. TWA SERVICES, INC., National Aeronautics and Space

Administration, Raymond J. Donovan, Secretary of

Labor, Defendants-Appellees.

No. 82-3159.

United States Court of Appeals,

Eleventh Circuit.

May 3, 1984.

Mozart G. Ratner, P.C., Washington, D.C., Joseph P. Manners, Gen. Counsel, IAMAW, Washington, D.C., George H. Tucker, Miami, Fla., for plaintiffs-appellants.

Douglas Hendriksen, Kennedy Space Center, Fla., for NASA.

James M. Blue, Tampa, Fla., June Wagoner Edwards, U.S. Dept. of Justice, Washington, D.C., for TWA Services, Inc.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY and HENDERSON, Circuit Judges, and DYER, Senior Circuit Judge.

DYER, Senior Circuit Judge:

This appeal involves the application of the Service Contract Act of 1965, (SCA) as amended, 41 U.S.C. Secs. 351 to 353 (1976), to the Concession Agreement entered into between TWA Services, Inc. (TWAS), and the National Aeronautics and Space Administration (NASA), for the Visitors Information Center (VIC) at the Kennedy Space Center.

The district court found that the SCA covers the VIC Concession Agreement, but that the plaintiff is not entitled to recover from TWAS retroactive wage and fringe benefits between the date of the succession of TWAS under the Concession Agreement and the date of judicial declaration of coverage. The district court also found that mandamus does not lie to compel the Secretary of Labor to issue a retroactive wage determination for the period in question, or to compel NASA to amend the Concession Agreement to reflect this retroactive wage determination. Plaintiff asserts that these determinations are erroneous as a matter of law. We disagree and affirm.

TWAS has operated the VIC at the Kennedy Space Center since 1968 under a Concession Agreement with NASA, under the terms of which TWAS provides bus tours to visitors to the VIC, sells souvenirs, and maintains a cafeteria which caters to VIC visitors. In November 1978 the Concession Agreement was modified (Modification 9 to NAS 10-5755) by which TWAS agreed beginning November 8, 1978, to perform the landscaping function at the VIC which had previously been performed by Expedient Services, Inc. (ESI) pursuant to a base-wide contract under which ESI performed all the roads and ground maintenance work at the Center. ESI was a non-union company, its employees were not covered by a collective bargaining agreement. Likewise, TWAS assumed responsibility for facility maintenance at the VIC on January 1, 1979, which, prior to Modification 9, had been performed by Boeing Services International (BSI) whose contract with NASA required it to perform maintenance at all other center facilities. The employees of BSI who performed these functions were represented by the plaintiff union and were covered by a collective bargaining agreement. The contracts between BSI and ESI and NASA were treated as covered by the Service Contract Act.

At the time of the transfer of the work to TWAS, there were no employees transferred from either BSI or ESI, nor were the BSI or ESI forces reduced, and both companies continued to perform the facilities and landscape maintenance functions throughout the center, except at the VIC. The additional work transferred to TWAS by Modification 9 was performed by new hires of TWAS. As a result, no individual was ever paid less money than he was being paid under any prior contractual arrangement.

From the time that TWAS was first awarded the VIC concession in 1968, NASA took the position that the concessionaire agreement was exempt from the SCA by virtue of the statute and 29 C.F.R. Sec. 4.133, a Department of Labor regulation exempting from the coverage of the Act concessionaire agreements at national parks. ¹

The conclusion reached by NASA was also in reliance upon a 1973 amendment to the National Aeronautics and Space Act of 1958 ² which granted to the NASA Administrator discretionary authority to enter into Concessionaire Agreements to provide facilities for visitors to NASA centers. 42 U.S.C. Sec. 2473(c)(11) (1976). This amendment was intended to grant NASA authority similar to the authority granted the U.S. Parks Service to provide visitor services at national parks by Concessionaire Agreements. ³

Beginning in 1973 there was an exchange of letters between the Department of Labor and NASA, the former asserting that the Concessionaire Agreement was subject to the SCA, and the latter responding that it was exempt from SCA. At the time of Modification 9, when the scope of the work was modified to include landscaping and facility maintenance at the VIC, the coverage issue was raised again but the Department of Labor took no step to compel NASA to require compliance by TWAS with Sec. 353(c). ⁴

Suit was instituted on August 20, 1979 by plaintiff. On November 17, 1981, the district court ruled that the SCA applied to the VIC Concession Agreement entered into between TWAS and NASA and further found that the 29 C.F.R. Sec. 4.133 exemption did not apply to the VIC Concession. ⁵

On August 13, 1982 the Department of Labor issued a wage determination applicable to the VIC Concession Agreement effective as of November 17, 1981, the date of the district court's coverage ruling.

After a non-jury trial the district court entered a final judgment denying the relief sought by plaintiff.

The remedy plaintiff seeks is to recover the difference in wages and fringe benefits actually paid from those that would have been paid if the 1978 wage determinations had been made part of the VIC Concession Agreement. Further, it seeks the difference in wage and fringe benefits actually paid and those that would have been paid had subsequent wage determinations been issued for the new VIC Concession Agreement entered into between NASA and TWAS in 1979.

Essentially, plaintiff asserts two causes of action. Against NASA we are asked by mandamus to compel NASA to request an appropriate wage determination, to compel the Department of Labor to issue them, and to compel the agencies to enforce the wage determinations retroactively against TWAS. Against TWAS, plaintiff seeks to recover directly for the differences.

Taking the contentions in inverse order, we hold that the plaintiff cannot maintain a private right of action against TWAS under the SCA. ⁶

Plaintiff lays great stress upon the undisputed fact that the 1972 amendment ⁷ adding subsection (c) of Sec. 353 was prompted by Congress' dissatisfaction with the Secretary's inconsistent administration of the Act in granting exemptions from coverage. Building upon this premise, plaintiff contends that while it may be arguable that it did not have standing prior to 1972, the amendments created a private right of action thereafter. Plaintiff suggests that Sec. 353(c) imposes a mandatory obligation directly upon private parties, i.e., successor government service contractors. Moreover, it argues that the prohibitory language creates a correlative right in the employees of successor contractors that include plaintiff in this case.

Plaintiff submits that there is nothing in the legislative history of SCA that indicates that Congress meant to exclude private actions for enforcement of Sec. 353(c). Finally it argues that there is a private right of action under Sec. 353(c) that must be distinguished from the administrative remedies available to the Secretary in Sec. 352. For these reasons, plaintiff urges us to disavow the holding of the Ninth Circuit in Miscellaneous Service Workers, Local 427 v. Philco-Ford Corp., 661 F.2d 776 (9th Cir.1981). We are unpersuaded.

In Philco-Ford, the court properly pointed out that the "question of whether a private right of action is conferred by a federal statute is essentially one of interpreting congressional intent," and then looked to the test announced in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), as follows: (1) Is the plaintiff "one of a class for whose especial benefit the statute was created?" (2) Is there any indication of a legislative intent to fashion such a remedy? (3) Is it consistent with the underlying legislative scheme to imply such a remedy? (4) Is the cause of action one traditionally relegated to state law, so that a federal cause of action would be inappropriate?

661 F.2d at 780 (citing Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975).

In applying the test, the court found that the first question must be answered affirmatively, because the legislative history of the 1972 amendments make clear that they were enacted for the benefit of employees providing service work under government contracts. Id.

Concerning the legislative history, the court found that "it is apparent that nothing supports the inference of a legislative intent to create private remedies under the act." Id. Rather, the focus was upon a " 'more efficient administration' of the SCA by narrowing the Secretary's discretion in deciding whether to issue a wage determination for all government service contracts." ⁸ Moreover, the court continued, "it would be flatly inconsistent with the express provision of a limited governmental cause of action to imply a wide-ranging private right of action as an alternative to a government suit." 661 F.2d at 780.

Finally, the court noted that other courts that have considered the question have concluded that there is no implied private right of action under the SCA. Id. at 781 (citing International Ass'n of Mach. & Aero. Wkrs. v. Hodgson, 515 F.2d 373 (D.C.Cir.1975); Service Employees International, Local No. 36 v. General Services Administration, 443 F.Supp. 575, 580 (E.D.Pa.1977); Dodd v. Blackstone Cleaners, 61 Labor Cases (CCH) p 32,281 (N.D.Tex.1969)).

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