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through his other arm, the Wage Determination Division in the Department of Labor.

It is hoped that this Appeal Board will provide a new and impartial look at the many determinations and interpretations which we have made, and will satisfy that need which the committee feels is foremost, to have some machinery, formal machinery, to which a contractor or indeed an agency or indeed a union may appeal to insure in a public way that whatever has been determined administratively is determined through what would be in effect a quasi-judicial process within the Department of Labor.

And I submit to the committee that this advance, this change, which has been long in the making, and perhaps too slow in the coming, be given an opportunity to operate fully and effectively and to work its will upon the Davis-Bacon Act, shall we say, before any further additional changes are put into effect.

Of course, in addition to this board, we have, as the committee well knows, during the past 2 or 3 years made various administrative changes in our wage-determining process.

We have concluded that this is not strictly a legal process, and for that reason, for the first time we have put wage analysts in charge of the work of making the factual determination, with legal advice, if necessary, and we have placed Mr. Monger-the Secretary has appointed him as my associate as a nonlawyer in charge of the administration of the act under my general supervision.

These changes, we hope, together with other changes which we will make, as experience has demonstrated the need for making them, will continue to improve our administration of this statute in the interests of carrying out the objective purposes of the Davis-Bacon Act, to find out what wages prevail, and, having found out what wages prevail, to prevent Government action from undercutting them.

I thank the committee very much for the consideration.

Mr. ROOSEVELT. I am sure the committee is very grateful to you for your presentation, and I personally want to tell you that I think you have certainly gone forward with a very constructive approach to the desire of the committee to see improvements in the administration of the Davis-Bacon Act.

There will be, of course, differences of opinion within the committee as to whether you have gone too far, or not far enough, but I think certainly we are most pleased that you have given the work of this committee the constructive effort which you have always shown in working with us.

I think I would make one general observation. First, most of the changes which are encompassed here are, indeed, what I would call administrative changes. They are changes which obviously come from experience in administering the act, and would be difficult if not impossible of legislative action, but would be required and should be, in my opinion, within the discretion of the executive in administering the act.

There are two proposals, of course, which I think particularly will be the subject of considerable discussion and possible action by this committee.

One of them would deal with the change which you have made with reference to giving information or making information available to the

parties concerned. Our problem here, of course, is that this is subject, as a regulation, to change, at any time, and does not have the full force of law, and in previous history of the administration of the act, I think you would have to agree that there have been some changes in the manner in which such a proposition has been carried out.

Sometimes it has been more disclosure, sometimes it has been less disclosure, depending pretty much upon the opinion or the policy of the Secretary at any given time, and there may well be within the discussion of the committee, here, a question as to whether this is not really a legislative matter, on which legislation is required.

I am not going to ask you to comment about that unless you want to. If you want to, I think we would be happy to discuss it with you. Mr. DONAHUE. No, Mr. Chairman. I think we have discussed this matter pretty adequately in the past.

Mr. ROOSEVELT. Certainly.

The second provision which I think will have most of the discussion is your decision to set up this board of review or appeals. As you have made very clear to us, you have attempted to make the board independent. There will be, I am sure, some disagreement as to whether it is truly independent in the manner in which you have set

it up.

Secondly, I think that you have followed, undoubtedly, some precedent in saying that the board should have jurisdiction as to what matters it will hear and what matters it will refuse to hear, I suppose basing your precedent upon the Supreme Court, which has the same

power.

And in essence, the question will resolve itself in our minds, I think, as to whether this is a power which should reside in this kind of appeals body. And if I judge your argument correctly, it is that unless this power of discrimination is allowed, the board could well become so overwhelmed with trivia that it might not be able to do important work and, therefore, instead of helping those who might well need help in important and basic cases, might find that its whole ability to improve the administration of the act would be destroyed. Would that be a fair statement of your position?

Mr. DONAHUE. I think that is a very fair statement, Mr. Chairman, and it would be my fear that the board might perhaps, be overwhelmed in the beginning.

I have it also in mind that we are creating something new, here, something that we have not had before. And I am a kind of a cautious, conservative person, and I like to see in advance where each one of my feet are going or where each step we are taking is going to be, in the Department of Labor and, therefore, I want to move kind of slowly, step by step.

I do not want to create a board that, before we know what it is going to do, brings upon us all kinds of additional problems which we did not anticipate.

Now, it may be in the administration of this statute we may want to have appeal as of right to some board. I am not sure of that at all. But in the beginning, I think it is wise in this area in the light of my own experience and Mr. Manger's in dealing with Davis-Bacon Act. problems, to give the board reasonable, flexible discretions.

There are many problems which the board itself would wish to handle informally, would wish to refer back to Mr. Manger, and with

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recommendations of an informal character; for example, as to how to handle a particular problem.

Many times, members of the board, within my concept of it, would want to get in touch with people in the contracting agency and perhaps iron these things out informally in that fashion. There are other times when the board would desire to proceed to a formal hearing on the record, for example.

All of these flexibilities would be built into a board of this sort in the beginning so that we could feel our way and move constructively to have a fully effective appeals process.

Mr. ROOSEVELT. Is the board a full-time board?

Mr. DONAHUE. It might well not be in the beginning a full-time board, with the thought in mind that if you create a full-time board, then as I have viewed bureaucracy over a period of years, having in mind what I think is known as Parkinson's law of bureaucracy, breeding upon itself and growing-if you have a full-time board, then the board is going to be in the business of providing itself with as much work as you possibly can. And I think that is a tendency which ought to be avoided in Government.

Mr. ROOSEVELT. The salaries, then, will come not from their positions as members of this board, but from the public body from which they have been drawn?

Mr. DONAHUE. That may be true. Those are details which are not entirely worked out, Mr. Chairman.

Mr. ROOSEVELT. It is rather an important point.

If this is going into effect February 3, that is not very far away, and I think the committee would be very interested in just how effective it

was.

No. 1, that would have some effect on its indpendence. No. 2, some assurance that it might not; for instance, what happens here if, let's say, you take a member from the Corps of Engineers, and the Corps of Engineers feels they need this individual? You have appointed him to the board. He has been accepted. But, all of a sudden, his work in the Corps of Engineers becomes so paramount that he neglects the duties of the appeals board. Who decides where his allegiance goes? Mr. DONAHUE. Well, we hope to work out those problems very soon, Mr. Chairman, and I would be more than delighted to report to you and the members of the committee concerned how we work them out.

But I would like to assure you of this: We are attempting to make every effort we can to make sure that this will be an impartial board, and that the persons assigned to it will have all the time that is necessary to be devoted to the problems of the appeals board.

Mr. ROOSEVELT. I think Mr. Pucinski has a question.

Mr. PUCINSKI. Mr. Donahue, I think these regulations that you have published are excellent. They are just too long in coming. I am sorry that you did not publish them last year, as you had intended to. I do not know what caused the delays. I am glad you finally did get around to publishing them.

But on this board, it would certainly be my recommendation-and I would be very happy to reduce it to writing and comment on following the procedures set up in the Federal Register-that I think this board ought to be a permanent board to meet the very problem which the chairman, Mr. Roosevelt, has raised, and as far as getting an appeal before this board, I think that any interested party should have a right.

I notice in your statement on page 5, you have said, "We have left these matters to the board." I think if you are going to have an effective review procedure-and this is what I have been interested in for a long time-it is my judgment that even if trivia might creep into this thing, I would rather that the board be confronted with the problem of finding procedures to deal with trivia than to deny anyone the right to appear before this board.

And in the very loose structure that is now before us in the Federal Register, I can appreciate the concern of those who have been arguing for judicial review that this is not strong enough. And it is my hope that within the next few days the Department is going to strengthen this procedure, one, in making the board a permanent board; that is, making it a board exclusively available for these problems, and two, it would seem to me that we should say: "Let's go the other way. Let's say that anyone has a right to appear before this board."

And if it develops that the board is inundated with requests for review, the Department can then take another look at this and see what machinery they want to set up to handle the load, rather than go the other way and say that at this point we are not going to make it mandatory, we are going to leave it discretionary with the board, and find ourselves in a position of being criticized that those who want to appeal a determination have no place to go.

As you know, Mr. Donahue, I have said many, many times before this committee: I am strongly in favor of administrative review of these wage determinations. I think that judicial review would open up just tremendous delays, costly legal fees, and would not do the job in the long run.

But I must say that as long as you leave this discretionary on the part of the board, we have not met the test, in my judgment, and it is my hope that within the next day or 2 you are going to offer an amendment to these published rules to make a review by an interested party a matter of right for that party, rather than a matter of discretion for the board.

I think you will find that we will then meet the test, and we will then be able to argue a good deal more effectively against judicial review. So long as you leave this discretionary, I am afraid it is going to be awfully difficult to convince the rest of the Congress on this question of judicial review.

Mr. DONAHUE. Well, I certainly respect the Congressman's judgment. We certainly will give full consideration to your recommendation in this regard.

I have already expressed my own fears on the subject. I always find that it is easier to take a second step than it is to pull back from the position you have already taken.

Once having created a full-time board, it is my fear that you will have a hard time getting away from a full-time board, if you find that is not the thing you need and you need something less than that.

Mr. ROOSEVELT. It would be a lot harder to break away from a judicial review mandatory provision, however, than it would be to do what the gentleman from Illinois suggests.

Mr. DONAHUE. That is correct, Mr. Chairman.

Mr. ROOSEVELT. I want to ask one last question, and then I will yield you to the tender mercies of my friend Mr. Goodell.

But may I ask what you think would be a fair opportunity for us to give to such a board in action? Would it be a year, or 2 years, that you think would be adequate to watch its development and to see whether it was really doing an effective job?

Mr. DONAHUE. Here, again, I think it would be silly of me to fix a certain time in advance. It depends upon what experience shows. Mr. ROOSEVELT. But certainly a year is too short. Roughly 2 years? Mr. DONAHUE. Roughly a year or so, I would say, would be a sufficient time to see whether this Board is having the type of constructive effect of providing equity and fairness in the administration of

this law.

Mr. ROOSEVELT. Mr. Goodell?

Mr. GOODELL. Mr. Donahue, I appreciate your being here, and I have a number of questions I would like to ask you.

I also appreciate your concern that we instituted some new procedures, here, where they are obviously very necessary, because of past problems. But I am afraid that I do not see very much new in what you offered, as far as the Appeals Board is concerned.

You describe yourself as being conservative about new procedures. I think you are being conservative about providing effective review of what now can essentially amount to arbitrary rulings of the Department. I mean arbitrary in the sense that there is no way of disturbing them, once somebody makes up their mind.

You have a board that the Secretary is going to appoint. My first problem with this is: When the Secretary appoints a Board within the Department, you immediately have a problem as to its independence, its ability to actually review independently a decision made in that same Department.

Secondly, if I understand it correctly, the members of the Board have no term of office. Is that correct?

Mr. DONAHUE. That is correct.

Mr. GOODELL. They are not appointed for any given period of time. They can be removed tomorrow if the Secretary or the Solicitor advising the Secretary does not like the rulings they make.

Mr. DONAHUE. Well, that is theoretically correct.

Mr. GOODELL. I do not think it is so theoretical. If the man is acting on a board of this nature, and you expect him to be independent and we do; the whole idea of providing a board is to get an independent judgment on this thing-if his position is subject to the discretion immediately of the Secretary to remove him, I think you ask too much of a frail human being that he be independent under those circumstances.

Also, and I would like to have you comment: A third point is that it seems to me you have implied they are going to be part time. In other words, you will take somebody who normally does a job over here in the Department, and somebody else that does a job over there in another Department, perhaps, and you are going to have them get together every so often to look things over.

And a fourth point that I think is made very effectively by the chairman and Mr. Pucinski is that there is no real right to appear before this Board or have any review. They make their own rules. They will listen to what they want to listen to. And they will reject what they want to reject.

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