rather than 8 1/2%, and could include that amount in their computation of 'direct labor costs', certainly they could include the lesser amount. It is interesting to note that the arbitrator fixed a lower percentage than that established in the industry solely because the Union desired a market-wide, uniform result, and therefore was willing to sacrifice part of that which it might have otherwise obtained.
For the reasons stated, it is my opinion that the additional 8 1/2% wage rate granted by the Impartial Chairman was includable as an item of 'direct labor costs' within the meaning of Section 30(a)(10) of MPR 287.
Because of the view I have taken, it is not essential that this Court rule on the collateral questions relating to injunctive relief and damages. However, since these matters have received so much attention from the parties, I am constrained to discuss them briefly. I am moved to consider the question of damages particularly, for it involves an interpretation of Rule 2 and is of great importance to the efficient enforcement of the Price Control Law. I do so also because in my opinion this section as presently stated imperatively requires clarification and implementation by the Administrator so that those who function under it, the enforcement officials and the manufacturers alike, may have a clear and concise understanding of the requirements the Rule imposes and its legal effect.
As to the injunction:
Even assuming that the adjustment ordered by the Impartial Chairman is not an item of 'direct labor costs' and assuming that therefore the defendants have violated the Regulation, it is my opinion that the circumstances would not warrant this court in issuing an injunction. Plaintiff's case does not disclose evidence of violations of such character and degree of wilfulness, nor of such continuity and duration as to justify the conclusion that the defendant will, in the future, violate the Price Control Law unless the injunctive relief sought is granted. Brown v. Standard Oil Co., D.C., 52 F.Supp. 1022. Moreover, there is a failure of plaintiff's evidence to show that the inclusion of the 8 1/2% item by the defendant in its computation of direct costs was done with any intention inconsistent with the spirit of price controls; there is no evidence of an attempt on the part of the defendant to evade the law, nor is there evident a negligent failure on its part to conduct its business in accordance with the law. It is conceded that the dress manufacturers of Philadelphia and their employees have been operating under contracts and practices which have established the Impartial Chairman as the virtual 'czar' of the industry with powers akin to those exercised by the 'czar' of baseball. As already stated, under the facts and the law, the decision of the Impartial Chairman was final and absolutely compelling on both the employer and labor. Moreover, it is admitted by the plaintiff that failure of the defendant and other employers to pay the rate ordered by the arbitrator would probably result 'in a strike in the industry with the resultant chaos'. Furthermore, defendant, being bound to pay the new rate, in good faith and on the advice of counsel, considered that it was a proper item of 'direct labor costs.' Although the increase was ordered on June 28, 1943, it was not until September 11, 1943, that the members of the Association were advised by the Office of Price Administration not to include the rate in their calculations, and not later than January 29, 1944, the defendant stopped the practice. In the face of these facts, for the Court to rule that the defendant was guilty of wilful intent to violate the Price Control Laws would be utterly contrary. As additional evidence of the good faith of the defendant plaintiff's evidence discloses that one style was sold by it substantially below the maximum price as computed by the Office of Price Administration.
As to damages:
With respect to plaintiff's claim for damages under Section 205(e) of the Act, it is obvious that, in order to assess damages -- in order to fix the amount of the alleged overcharges -- it is essential to know, or to be able to determine, the maximum selling prices. Plaintiff contends that Rule 2 provides a method for determining a maximum selling price while defendant urges that the Rule cannot be used for such a purpose.
Upon full consideration of the parties' contentions, I am of the opinion that Rule 2 was designed to provide a method for ascertaining a minimum allowable cost, and that only, and was intended to cover only a case where a manufacturer, having established price lines filed with the OPA, exercised his option to sell at an intermediate price line. No such situation exists here, and Rule 2 is inapplicable.
Consequently, damages cannot be calculated or awarded, since plaintiff has conceded that there is no other regulation applicable to the facts of this case, under which a maximum selling price (an indispensable element in the fixing of damages) may be determined or ascertained.
For the reasons stated, the defendant's motion to dismiss is granted.