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Accounting Office which goes in to the point and which argues fairly strongly.

Mr. O'HARA. At the top of page 3, first sentence, if you will read that, what does it say?

Mr. SILBERMAN. “As a possible solution for correcting apparent inequities in basis for determining wage rates for Star Route contracts we believe that consideration should be given by the Department to establishing Star Route drivers as a separate class of service employees for minimum wage determination purposes."

As I said, we did not accept that position. We took an intermediate position but we thought that did have merit. I would like to have Mr. Moran, who met with representatives of GAO, discuss with you the manner in which they presented their views and particularly the manner in which they presented their views as interpreting the intent of Congress.

Mr. MORAN. Mr. Chairman, I met with them here many times over a period of a year going back from the middle of 1969 to the middle of 1970. We had a number of visits from the General Accounting Office. They also sent teams around the country to various wage and hour offices to audit the operations of the Service Contract Act wage determinations with specific reference to mail haul drivers, the Star Route carriers. And it was their clear position that the law required us to set up a separate category for mail haul Star Route carriers and they represented to us that they were an agency of the Congress. I was aware that they had power over the purse strings. I have respect for their opinions and their statements to us because of this.

Mr. O'HARA. Well, Mr. Moran, I appreciate that concern but I must note, without dwelling on the point, that the Department is not always so alacritous in complying with GAO opinions. I am sure that all of you can think of a number of GAO opinions that are contrary to practices you follow at the Labor Department. And so when GAO sends a letter down, it is not engraved on any stone tablet and it is not necessarily going to be followed. I would agree with Mr. Silberman's statement in which he suggests that it is the responsibility of the Department of Labor to interpret the law; that after giving consideration to the views of GAO, or indeed I might add giving consideration to the views of the writers of articles for law reviews, after giving consideration to the views of other elements in the executive branch, after giving consideration to the views of the Attorney General, I would hope, it is the responsibility of the Department to determine and to interpret the law that they are charged with responsibility to administer.

Wr. SILBERMAN. Mr. Chairman, you are absolutely right that we bear the direct responsibility and delegation from Congress. However, I would like to make two points. First of all we do not regard the opinion of the Comptroller General as equivalent to a law review article.

It has a great deal more backing and a great deal more impact and a great deal more persuasiveness than just the average law review article. I think the Comptroller General would be somewhat astonished if we told him that is what we should regard his opinions as equivalent to. Indeed, the Congress just recently passed a law which we took note

of which gave the Comptroller General power to go to court and dispute the Attorney General or any of her Government agency opinion as to the law.

That is No. 1. No. 2, your reference to the deference which the Department of Labor has in the past given Comptroller Generals' opinions is perhaps centered on the now famous Philadelphia fight which is the only major issue I can recall where we took the Comptroller General on quite so squarely.

I would like to emphasize that which I said at the time, and I was then the Solicitor of Labor, that the Comptroller General's opinion on the Philadelphia plan was not entitled to the normal deference we would give his opinions because in effect he was interpreting the Civil Rights Act which is not a procurement statute or any connection with procurement statute, and it was that in my view fatal flaw which weakened considerably the impact of his opinion much weaker than that we would normally give an opinion of his in the procurement area, which is after all its main bailiwick of expertise.

Mr. O'HARA. Well, Mr. Silberman, I am not going to get diverted into this argument, but I will simply say that these two statutes are on an equal footing. The Philadelphia plan applied to contractors who were operating on Federal contracts or federally funded construction contracts in the city of Philadelphia and the interpretation was of title VI of the Civil Rights Act of 1964 and to equal employment opportunities legislation, all of which had to do with hiring of persons and the composition and things affecting the work force on those Federal contracts.

What we have here is the Service Contract Act of 1965, which does the same thing. It has to do with the work force on Federal contracts moreover.

The long and short of it is that we have had GAO up here, we have talked to them and we understand what their position is, and I don't think you can tell us anything about their position that we don't already know.

What we want to know about is your position. We want to know specifically how you could possibly find, in light of the legislative history of the Service Contract Act of 1965, that you ought to take steps to change the wage determinations for mail truck drivers in such a way that the rates of pay received by these drivers will be substantially reduced from what they would have been if you did not change your method of making your determinations and how you could possibly find that it was the intention of Congress that these people be paid less than other over the road haulers of dry freight in the case of long haul contracts for the carriage of mail, or paid less than local haulers of dry freight in the case of hauls of under 40 miles.

Now remember. It was stated frequently that the original Congressional impetus for writing this bilì came from the frightfully low wages being paid to Star Route drivers between the cities of Detroit and Port Huron, Michigan.

That was the case that got this member of Congress interested in the matter. I sat down and wrote the bill, together with the gentleman who is sitting at the end of this row (indicating Mr. Baker),

specifically to cope with that problem, with the problem brought to our attention by that case.

When the bill, an administration draft, came up to the 89th Congress, it exempted contracts for the carriage of mail. The one single amendment, the only amendment made by the Congress in that administration bill draft at that time, was to remove that exemption.

So in light of the clear intent that the drivers on contracts for the carriage of mail be paid the same as other over the road or local, as the case may be, drivers of goods in that particular locality, how could you find that an interpretation which did that, which you have been following for years, was suddenly wrong and you had to adopt a different interpretation ?

Mr. SILBERMAN. Mr. Chairman, that is a very probing question that covers a large area and I will try to answer as best I can and draw on Mr. Moran also. I realize and I sympathize with your purpose now in avoiding extraneous discussions of the Philadelphia plan here and I am sympathetic to that and I agree.

However, in light of the enormous importance to the Department and other departments. I believe it is appropriate to set forth, as best I can understand it, our relationships with the Comptroller General. With this in mind let me divert for a second to explain something.

And the reason I do this is I want to make it perfectly clear we don't follow the Comptroller General in one case and then ignore him in the next in a capricious manner.

The Comptroller General objected to the original Philadelphia plan, which was issued by the prior administration, because of certain evils which he saw in relation to procurement. That is, that under the plan promulgated by the Federal Board in Philadelphia, it was unclear to a contractor what his cost would be at the time he bid.

Putting aside any questions of equal employment, the Comptroller General opined that the plan was illegal because of that point. The last administration and this administration both accepted his views as to that point because it went directly into the procurement process and it was for that reason we developed a different kind of Philadelphia plan which had specific goals and timetables in it so that bidders on Government contracts would know beforehand what their potential costs would be.

Then when the Comptroller General issued his second opinion for this administration, he held not that there was anything wrong with the procurement aspect of the plan but that it violated not title 6 as you mentioned but title 7 of the Civil Rights Act which has nothing to do with government procurement. It was on that point we disagreed. We said, “Now, look. At this point the Comptroller General is extending beyond his normal area of expertise. The interpretation of the Civil Rights Act and of title 7 is peculiarly a matter for the Justice Department, not even the Department of Labor.” That is why we disagreed with him on that position.

We have been consistent all along. Going to your basic question

Mr. O'HARA. All right, for one moment. Is it your position that you have always invariably followed the opinions of the Comptroller General on matters that in any way touched upon government procurement ?

Mr. O'HARA. That is all I need to know.

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Mr. SILBERMAN. Let me state my position. My position is the Comptroller General's opinions are entitled to greater weight when he iş dealing with an area of procurement because as he has explained to me, his charter and, as I understand it, he is the congressional watchdog in the area of government procurement.

Mr. O'HARA. In any event the decision is yours, not his to make, isn't that right?

Mr. SILBERMAN. I would say that the responsibility for the ultimate decision is in the executive branch with respect to the interpretation of the law. I am not sure the Comptroller General takes that position and I am not exactly sure what position Congress takes as a whole but that would be my view. I would say he would be entitled to great weight in his interpretations of procurement statutes. Now getting back to your questions as to why we took the position we did, I think you suggested that we were taking a position that would result in a reduction of wage rates for mail haul carriers.

I don't know whether that follows or not. I guess that will depend on what the determination of wages, predetermined wages will be in the class that we set forth. I don't know whether that will be reduced or not.

It was certainly not our purpose in taking this position to, as you may have suggested, simply reduce the rates. Secondly, I do recall and recognize and it was for this reason we disagreed with the Comptroller General that classifications should be limited to mail haul drivers.

I recognize that was inconsistent with the amendment to include mail haul drivers which you put on the prior administration's bill. We could not treat them as totally separate classes because that ran the risk of being inconsistent with the purpose of your amendment.

With regard to the other aspects, of the question, if you can remember them now, I will turn to you, Mr. Moran.

Mr. MORAN. With respect to changing the basis for the rates, it may be of interest to the committee to know that prior to this survey conducted by the General Accounting Office, it was the Department's practice to adopt the over the road teamster rate in each of the 50 States as the prevailing rate for service contracts of that type in that State.

The General Accounting Office informed us that we should only adopt a teamster rate where in fact the teamsters had organized a majority of truck drivers in that particular State. Our indications were that the teamsters rate was the prevailing rate in each of the 50 States. On October 1, Mr. Sinclair of the General Accounting Office met with me and informed me that the General Accounting Office had made its own survey and he advised me that in 10 States the teamster rate was not prevailing. Those States were Florida, Georgia, North Carolina, South Carolina, Arizona, Colorado, New Mexico, Maine, New Hampshire and Vermont. '

In each such case the General Accounting Office advised me they had consulted with a top teamster official in each of the states and asked the official whether or not the teamsters had organized a majority of the truck drivers in that particular state.

Five of the teamsters officials said they had not organized a majority. Four said they had no opinion. One, in North Carolina, could not be reached by the General Accounting Office representatives.

On the basis of that representation we met with the representatives of the International Brotherhood of Teamsters in October and advised

them that in those 10 States we were withdrawing our wage determi. nation based on the Teamster rate, because of the survey of the General Accounting Office. That meeting was held on October 27, 1970. We asked a Teamster representative if he had any statement to give with respect to the General Accounting Office findings and, as of this date, we have not heard any further comment.

Mr. O'HARA. The point of the matter is that with respect to 10 States, one could make an argument, I am sure, that those drivers of mail on long haul contracts should not have the prevailing rate determined by the over-the-road teamster rate in those 10 States, and I am not going to quarrel with that. That may well be the case, and if indeed that is the case, then you shouldn't use the long haul over-the-road teamster rate in those 10 States.

But I strongly object to your creating a separate classification of mail and parcel drivers and looking just at them in the future, because I do think that that conflicts with the intent of Congress. Throughout the hearings and the two times the bill was reported and the debate on the floor and discussion of the bill, it all interrelated with this reference to the fact that drivers of the mail under service contracts had not been receiving as much as other drivers of freight in that particular area. Not that, I don't think it was ever suggested that one of the problems was that drivers of mail had not been receiving the same amount as other drivers of the mail, or was it ever suggested that one problem was that drivers of the mail had not been receiving the same amount as drivers of parcels.

The suggestion was throughout and the reason for the removal of the exemption was that drivers of the mail were not receiving the same amounts as other freight drivers, but I understand the Department's position perfectly. The GAO tells us they have the matter under review, that they are reconsidering their recommendation. I am simply going to ask with respect to that matter that the Department of Agriculture go back and the committee will assist the Department in finding the portions of the legislative history that we believe to be relevant and we would simply ask that the Department review its determination.

We think the Department has a responsibility of making such interpretations and determinations. We don't dispute that in any way.

We simply say, I say as one Member of Congress, that in this particular case I think the Department's proposed new determination may be in error, and we would like you to review the matter in light of any evidence that we can bring forward.

Mr. SILBERMAN. Mr. Chairman, I assure you that as an author of this bill, your view as to its appropriate purpose and the relevant legislative history would be given due weight also, and we will consider our position in light of any material you bring to our attention or that which your hearings develop. · Mr. O'HARA. Now, a second matter, if I could, with respect to the taking into account of the use of anpropriate reogra nhical areas and taking into account of prospective wage increases. Clearly the inteni of the Act was that we wanted the employees of Government service contractors to receive the same wages and other benefits as the employees of contractors who were doing the same kind of work in the same area, the employees of contractors who didn't hold Government con

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