The subcommittee, until it was abolished late in Phase IV, was composed of six members, two each from management, labor, and the public. It considered nonunanimous task force handled cases as well as cases remanded from the full Committee. Recommendations were made by majority vote. The full Committee met 56 times in the 15 months of Phases III and IV and ruled on over 12,000 wage settlements, including eight or nine thousand cases resolved in accordance with Committee criteria on "expedited criteria." (See below.) The caseload was heavy as a result of a decision to review all cases, union and nonunion, whether they were within the standard or not. If the Committee could not reach a consensus in a particular case, decision was reached by majority vote. Each of the tripartite blocks had one vote, because the members generally voted as blocks with the public members holding the balance of power. The losing side was given the option of filing a minority report. Over time the Committee developed an "expedited" procedure; the members agreed on criteria based on accumulated precedent (variously expressed as cent-per-hour or as percentage increases), that could be approved without the necessity of cases being presented for formal Committee action. The criteria were devised to speed resolution of the large number of backlogged cases while not allowing "de-stabilizing" settlements to enter into operation. This expedited procedure should be distinguished from "staff disposable" cases that were solely limited to "follower" settlements. The Committee was extremely protective of its authority and so was determined to delegate only such responsibility to the staff as proved necessary. In order to get the labor and management representatives to participate and devote the necessary time (as much as one fifth of their working time) to the Committee, they were assured that only under the most unusual circumstances would their recommendations not be implemented. In those few cases, private consultations would be held with the Administrator, of the Office of Wage Stabilization (OWS), to resolve the impasse. While the Committee had de facto decision making power on individual cases, it was never the intention of the CLC to extend this deference to the general policy advice of the Committee. However, an ambiguity in the explanation of how the Committee's recommendations would be utilized gave rise to the presumption among some members that the ground rules for case and policy advice were similar. In fact, the view points of the Committee on policy matters were always given full consideration but members experienced some frustration when their advice was not implemented according to expectation. HEALTH INDUSTRY WAGE AND SALARY COMMITTEE Background and Purpose Health also remained under mandatory wage and price controls at the beginning of Phase III and many of the same factors that were instrumental in the decision to create a Food Wage and Salary Committee played a part in the development of the Health Industry Wage and Salary Committee. The Council needed technical advice on the effect of individual wage settlements in the health industry; it wanted labor and management representatives from the health sector involved in the decision-making process, and it hoped that the creation of a tripartite committee could foster some structural changes in collective bargaining in the industry. In early spring, Dr. Dunlop began to select representatives from various sectors of labor, management, and the public. On April 20, 1973, he announced the formation of the Committee. After several meetings when key members of the staff chaired the committee, a public member, Dr. Gerald Rosenthal of Brandeis University, was chosen Chairman by the other members of the Committee. Committee Operation Unlike the Food Wage and Salary Committee, an initial decision was made that the Committee would discuss only union cases (non-union health cases were handled essentially by the staff). The Committee developed a simple procedure to assure that all union cases were adequately addressed. When a case was received and the accounting staff had determined that all necessary cotsing information had been included, it was sent to an "adjudicator," a health staff member, who analyzed the case before it was presented to the Committee. Initially presentation was directly to the full Committee; however, when the workload became heavier in the fall of 1973, an ad hoc working group of the Committee was formed to speed up the process. The ad hoc review Committee was always tripartite and had a revolving membership. It reviewed each case in detail and made a specific recommendation to the full Committee. The full Committee usually ratified unanimously recommended actions without detailed consideration and focused its attention on key elements of more difficult cases which involved issues of a precedent setting nature, tandem relationships or simply the size of the increase. Decisions were reached by consensus or majority vote. Recommendations were then forwarded to the Administrator; no provision was made for minority reports. Generally the Committee met monthly and the ad hoc review Committee met twice a month. The difference in the workload between the health and food committee can be explained by two factors: (1) while the food regulations were designed to have every settlement receive Committee review, in health, reporting was not required for non-Category I adjustments as long as the settlement fell within the overall standard, and (2) while both union and nonunion settlements were reviewed by the food committee, nonunion health wage adjustments, over half the cases, were not reviewed by the health committee. In part, the Committee's reluctance to involve itself in nonunion matters sprang from a realization that the information available to union members of the Committee in examining cases could potentially be extremely useful in efforts to organize the nonunion sector. The Committee met in closed session four of its first five meetings. However, when a CLC official explained to the members the procedures necessary to close a meeting, he was able to secure their agreement that the sessions would be generally open. In fact, only one additional closed meeting was held. Although the internal procedures of the committee differed and the workload was significantly less in health, both the Food and Health Wage and Salary Committees fulfilled the same roles in the decision-making process. The recommendations of the Health Wage and Salary Committee had the same general de facto finality as those pertaining to food wages. Aside from reviewing wage cases, the Committee also offered advice to the Director on changes in wage policy and consulted with the Health Industry Advisory Committee on the development of the Phase IV health regulations. NONUNION CONSTRUCTION COMMITTEE Background and Purpose The Construction Industry Stabilization Committee (CISC) was established in March, 1971, to review and regulate union collective bargaining agreements in the construction industry. Since no provision was made for CISC to address nonunion wage rates, special regulations were developed first by the Pay Board and later by the Cost of Living Council which applied to economic adjustments not covered by collective bargaining agreements. After July, 1972, these regulations were implemented by a Nonunion Construction Division. Historically, there tended to be a two-tier relationship in construction wages between union and nonunion workers. In keeping with the stabilization purposes to make distortions of wage and salary relationships as small as possible, nonunion wage rates were not allowed to rise to the union level. An increase requested by a contractor could be approved if union craft employees performing the same work in the geographical area had also been granted an increase, but any increase was limited to the dollars-and-cents increase granted union employees by CISC. In this way the average cents-per-hour differentials were maintained. As with many other sectors under controls, some nonunion contractors alleged that, especially in tight labor markets, regulations were inequitable in that they prevented them from competing for needed employees. Although there had been a great deal of staff contact between the employers and the OWS, no specific public forum existed for nonunion employers to express their views on the application of economic stabilization rules to their sector of the construction industry, and a number desired more formal contacts at a higher level. The pressure of nonunion employers for a forum to express themselves on wage matters reinforced CLC interest in a body which would provide advice on the applicability of the regulations to this mandatory sector. It was also felt that such a group could lead to closer involvement in the program of nonunion employers. Although the Committee was created against a background of a need to deal with a caseload that began to grow substantially in 1973, it was always intended that the Committee would advise primarily on policy matters. For this reason, the Committee was not tripartite as were the other CLC wage related bodies. In dealing with a sector outside the scope of collective bargaining agreements, tripartitism seemed inapplicable. However, as is traditional in construction matters, the membership was selected with the intention of maintaining a rough balance between general and subcontractor representatives. After an initial decision to keep the group small in order to make the discussion more beneficial, the selection of members was undertaken. Members were selected to represent specific organizations whose participation was believed vital. Because of the existing organization of associations representing specialty contractors and subcontractors, many of the groups represented were primarily composed of union employers, but with significant nonunion membership as well. Committee Operations Unlike most of the other advisory committees used by CLC, there was no chairman appointed from the membership. Rather, the Administrator of OWS served as Chairman. A further difference between operations of the Nonunion Construction Advisory Committee (NCAC) and other CLC advisory committees was that there was no use of subcommittees or working groups. This non-use of subcommittees was probably due to the already small size of its Committee and the minor caserelated functions it was required to carry out. Although the NCAC included among its listed purposes providing advice on selected exceptions and area-wide wage rates, the Committee did not play an important role in the wage adjudicatory process per se. Thus, necessity for detailed, time consuming case analysis which had led to the creation of subcommittees in the food and health wage and salary cases was not present. Meetings consisted of a variety of elements. Members were briefed about on-going stabilization activities; in particular, aspects of construction wage compliance as well as the CLC-33 nonunion wage rate survey were discussed. (Although the Committee neither initiated or designed the survey, it was thought that representatives could assist in the interpretation of the results and would communicate with members of their associations regarding the purpose of the survey, urging prompt response). There was also general discussion of wage exception cases-in particular, those having to do with area-wide wage rates. Though these discussions of area-wide wage rate policy occupied a disproportionate percentage of the Committee's short existence, it was expected to move on to a wider variety of topics had the Program not terminated. In addition to the foregoing, portions of each meeting consisted of recommendations for decontrol of the nonunion sector. In soliciting the opinions of the Committee members, voting was not utilized. The opinions expressed by each member, and the availablity of the forum to their organizations, were sufficient for the Committee's purpose. The determination of a majority opinion as such was not of particular relevance. All other things being equal, the Chairman said that his inclination would have been to hold these meetings in closed session. However, the decision in the Nader v. Dunlop suit narrowed the basis for declaring meetings closed, and all three meetings were held in open session. This appeared to have only a limited impact on Committee functions; many of the representatives were, in fact, pleased to have a public forum. Public attendences varied, including the trade press and industry observers, who were permitted on occasion, and at the discretion of the group, to participate in the discussions. However, the numbers of outside observers present rarely exceeded three or four. LITIGATION ECONOMIC STABILIZATION PROGRAM By: Judith R. Goldstein Edward Stevens Atkinson Assisted by: Matthew Kamens Litigation was an important aspect of the Economic Stabilization Program. The Federal courts were the means through which Stabilization agencies (working through the Department of Justice) enforced compliance of the Economic Stabilization Act, and in which the agencies' administrative actions could be challenged. This paper addresses both the offensive and defensive aspects of litigation related to the program, but emphasizes the latter. Discussion of individual cases is organized by the type of legal issue presented in each case. Ms. Goldstein joined the Economic Stabilization Program in April, 1972, and has served in the Office of the General Counsel as Deputy Associate General Counsel for Litigation. She received her B.A. with honors in Social Sciences from Hofstra University in 1968, and earned her J.D. from New York University in 1971, where she was elected to Order of the Coif. Mr. Atkinson was a program analyst in the Office of the Executive Secretary, Cost of Living Council. He received his B.A. in international relations, from Michigan State University in 1971 and is a member of Phi Beta Kappa. Currently, he is a Research Assistant at the National Center for Prosecutorial Management and is completing his law degree at Georgetown University Law Center. Mr. Kamens received his A.B. in economics, cum laude, from Franklin and Marshall College in 1973, where he was a member of Phi Beta |