McDonald v. Pend Oreille Mines & Metals Co.

• Decision Date: 11 March 1937
• Docket Number: 26371.
• Court: Washington Supreme Court
• Parties: McDONALD v. PEND OREILLE MINES & METALS CO.

65 P.2d 1250

189 Wash. 389

McDONALD v. PEND OREILLE MINES & METALS CO.

No. 26371.

Supreme Court of Washington, En Banc.

March 11, 1937

Appeal from Superior Court, Spokane County; R. M. Webster, Judge.

Action by R. J. McDonald, on behalf of himself and others, against the Pend Oreille Mines & Metals Company. From a judgment sustaining defendant's demurrer that the complaint did not state facts sufficient to constitute a cause of action the plaintiff appeals.

Affirmed.

Evert Arnold, of Seattle, and C. W. Greenough, of Spokane, for appellant.

Davenport & Wakefield, of Spokane, for respondent.

MILLARD Justice.

Plaintiff on behalf of himself and 60 other employees of defendant domestic corporation, seeks recovery against the defendant as beneficiaries of a contract made by the defendant with the President of the United States. The 61 causes of action are based upon the President's Reemployment Agreement, oral promises and estoppel.

The complaint alleges that, on or about August 14, 1933 defendant voluntarily entered into an agreement known as the President's Reemployment Agreement with the President of the United States with reference to employment of labor covering the period from August 1, 1933, to December 31, 1933. The agreement reads as follows:

'Exhibit A

'President's Reemployment Agreement

'During the period of the President's emergency reemployment drive, that is to say, from August 1, to December 31, 1933, or to any earlier date of approval of a Code of Fair Competition to which he is subject, the undersigned hereby agreed with the President as follows:

'(1) After August 31, 1933, not to employ any person under 16 years of age, except that persons between 14 and 16 may be employed (but not in manufacturing or mechanical industries) for not to exceed 3 hours per day and those hours between 7 a. m. and 7 p. m. in such work as will not interfere with hours of day school.

'(2) Not to work any accounting, clerical, banking, office, service, or sales employees (except outside salesmen) in any store, office department, establishment, or public utility, or on any automotive or horsedrawn passenger, express, delivery, or freight service, or in any other place or manner, for more than 40 hours in any one week and not to reduce the hours of any store or service operation to below 52 hours in any 1 week, unless such hours were less than 52 hours per week Before July 1, 1933, and in the latter case not to reduce such hours at all.

'(3) Not to employ any factory or mechanical worker or artisan more than a maximum week of 35 hours until December 31, 1933, but with the right to work a maximum week of 40 hours for any 6 weeks within this period; and not to employ any worker more than 8 hours in any 1 day.

'(4) The maximum hours fixed in the foregoing paragraphs (2) and (3) shall not apply to employees in establishments employing not more than two persons in towns of less than 2,500 population which towns are not part of a larger trade area; nor to registered pharmacists or other professional persons employed in their profession; nor to employees in a managerial or executive capacity, who now receive more than $35 per week; nor to employees on emergency maintenance and repair work; nor to very special cases where restrictions of hours of highly skilled workers on continuous processes would unavoidably reduce production but, in any such special case, at least time and one third shall be paid for hours worked in excess of the maximum. Population for the purposes of this agreement shall be determined by reference to the 1930 Federal census.

'(5) Not to pay any of the classes of employees mentioned in paragraph (2) less than $15 per week in any city of over 500,000 population, or in the immediate trade area of such city; nor less than $14.50 per week in any city of between 250,000 and 50,000 population or in the immediate trade area of such city; nor less than $14 per week in any city of between 2,500 and 250,000 population, or in the immediate trade area of such city; and in towns of less than 2,500 population to increase all wages by not less than 20 per cent, provided that this shall not require wages in excess of $12 per week.

'(6) Not to pay any employee of the classes mentioned in paragraph (3) less than 40 cents per hour, unless the hourly rate for the same class of work on July 15, 1929, was less than 40 cents per hour, in which latter case not to pay less than the hourly rate on July 15, 1929, and in no event less than 30 cents per hour. It is agreed that this paragraph establishes a guaranteed minimum rate of pay regardless of whether the employee is compensated on the basis of a time rate or on a piecework performance.

'(7) Not to reduce the compensation for employment now in excess of the minimum wages hereby agreed to (notwithstanding that the hours worked in such employment may be hereby reduced) and to increase the pay for such employment by an equitable readjustment of all pay schedules.

'(8) Not to use any subterfuge to frustrate the spirit and intent of this agreement which is, among other things, to increase employment by a universal covenant, to remove obstructions to commerce, and to shorten hours and to raise wages for the shorter week to a living basis.

'(9) Not to increase the price of any merchandise sold after the date hereof over the price on July 1, 1933, by more than is made necessary by actual increases in production, replacement, or invoice costs of merchandise, or by taxes or other costs resulting from action taken pursuant to the Agricultural Adjustment Act [48 Stat. 31], since July 1, 1933, and, in setting such price increases, to give full weight to probable increases in sales volume and to refrain from taking profiteering advantage of the consuming public.

'(10) To support and patronize establishments which also have signed this agreement and are listed as members of N. R. A. (National Recovery Administration).

'(11) To cooperate to the fullest extent in having Code of Fair Competition submitted by his industry at the earliest possible date, and in any event Before September 1, 1933.

'(12) Where, Before June 16, 1933, the undersigned had contracted to purchase goods at a fixed price for delivery during the period of this agreement, the undersigned will make an appropriate adjustment of said fixed price to meet any increase in cost caused by the seller having signed this President's Reemployment Agreement or having become bound by any Code of Fair Competition approved by the President.

'(13) This agreement shall cease upon approval by the President of a code to which the undersigned is subject; or, if the N. R. A. so elects, upon submission of a code to which the undersigned is subject and substitution of any of its provisions for any of the terms of this agreement.

'(14) It is agreed that any person who wishes to do his part in the President's reemployment drive by signing this agreement, but who asserts that some particular provision hereof, because of peculiar circumstances, will create great and unavoidable hardship, may obtain the benefits hereof by signing this agreement and putting it into effect and then, in a petition approved by a representative trade association of his industry, or other representative organization designated by N. R. A., may apply for a stay of such provision pending a summary investigation by N. R. A., if he agrees in such application to abide by the decision of such investigation. This agreement is entered into pursuant to section 4(a) of the National Industrial Recovery Act [15 U.S.C.A. § 704(a)] and subject to all the terms and conditions required by sections 7(a) and 10(b) of that act [15 U.S.C.A. §§ 707(a), 710(b)].

'This Agreement is subject to the substitution of Sections II, III and IV of the Code of Fair Competition submitted for the Zinc Industry for Sections 3, 6 and 9 of the President's Reemployment Agreement.'

'Dated August 14, 1933

'[Sign Here] Lewis P. Larsen

Name

President

Official Position

Pend Oreille Mines & Metals Co.

Firm & corporation name

Zinc

Industry or trade

Seventy-three (73)

Number of employees at the date of signing

'Metaline Falls Washington'

Town or city _____ State

On December 19, 1933, the President of the United States, by executive order, offered to defendant and other employers of labor an extension of the above-quoted agreement to April 30, 1934. That offer reads as follows:

'Exhibit B

'No. 6513

'Executive Order

'Extension of the President's Re-employment Agreement to April 30, 1934.

'I, Franklin D. Roosevelt, President of the United States, pursuant to the authority vested in me by title I of the National Recovery Act, approved June 16, 1933, and otherwise do hereby provide as follows and do hereby prescribe the rules and regulations hereinafter set forth which I deem necessary for carrying out the purpose of title I of said act:

'I hereby offer to enter into the President's Reemployment Agreement with every employer, insofar as he is not covered by an approved code of fair competition, for a further period of 4 months from January 1, 1934, to April 30, 1934, or to any earlier date of approval of a code of fair competition to which he is subject.

'Employers who shall have already signed the President's Reemployment Agreement Before January 1, 1934, may accept this offer of extension by display of the Blue Eagle on or after January 1, 1934. Employers who shall not have signed the President's Reemployment Agreement Before January 1, 1934, may accept this offer of extension by signing the President's Reemployment Agreement.

'All substitutions and exemptions approved, and all exceptions granted to particular employers, Before January 1, 1934, will apply to the President's Reemployment Agreement as so extended.

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