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The conditions which led to the adoption of the limitation in 1967 under the authority of Section 4(b) of the Act are equally persuasive now and are reinforced by the fact that a change at this time might be prejudicial to the public interest in the success of the President's economic program to combat inflation.

Mr. SILBERMAN. I am trying to find it. Our letter is dated September 10. You say yours is dated September 13?

Mr. THOMPSON. It is stamped September 13.
Mr. SILBERMAN. Is that a receipt stamp?

Mr. THOMPSON. My receipt stamp is for the 13th also, indicating that it must have been hand-carried. The third paragraph says

The Department of Labor decided in 1967 that the pattern of wages in Brevard County was such that the limited resources available for making wage determinations could more appropriately be utilized in other localities. I have concluded that the policy is still reasonable and proper.

Mr. SILBERMAX. That is correct.

Mr. THOMPSOx. In other words, that is a reference to Secretary Wirtz' decision of 1967; in a sense, a reaffirmation of it as of September 13, 1971.

Mr. SILBERMAN. It was a reaffirmation as of sometime in 1970. This is the third time that has come up. Mr. THOMPSOX. I see. .

That is the same letter, Mr. O'Hara. Mr. O'HARA. Well, let me then ask about that. I think that we could discuss at least the matters contained in your letters—if your letters set forth a proposition, obviously that is a proposition you aren't afraid to develop and I would like to discuss those propositions. · Mr. SILBERMAN. We are certainly not afraid to develop it in the generalities insofar as we can. But concerning specific circumstances, I would prefer my counsel answer,

Mr. O'HARA. We can get into 1967? · Mr. SILBERMAN. We can. I wasn't at the Department in 1967.

Mr. O'HARA. But you are basing your decision now on the 1967 decision.

Mr. SILBERMAX. That is right; the rationale.
Mr. O'Hara (reading).

The conditions which led to the adoption of the limitation in 1967 under the authority of Section 4(b) of the Act are equally persuasive now. And then down in the next paragraph

The Department of Labor decided in 1967 that the pattern of wages in Brerard County was such that the limited resources available for making wage deter minations could more appropriately be utilized in other localities

What is the situation in 1967? Are any of you able to advise me of that? That irere the circumstanees under which you had been asked to make vrage determinations?

Jr. SILBERMAX. I think there is a reference to that 1967 situation, too, in the documents, is there not? Just a moment.

Mr. O'HARA. Yes. There is.
Mr. SII BERMAX. I beliere you have that, but let me check

Wr. (HR. I hare a memo and it doesn't really talk about it much. But the situation in 1967 vras-well, let's start in the beginning. Sixteen vears ago the contract for operation of the Eastern Test Range was given to Pan Am and continuously since that time, the additional

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inappropriate for you to comment further on the matter of the Eastern Test Range contract, because of pending litigation on a different contract, on what is your decision, that it would be inappropriate for you to comment, based ? Is it based on any provision of law or any constitutional privilege or anything of that nature?

Mr. SILBERMAN. Well, as usual, Mr. O'Hara, on a legal matter such as this, our response is based on the advice of the Solicitor. I have the Acting Solicitor with me and I have tried, since I left the position of Solicitor and became Under Secretary, to not be my own lawyer. In pursuance of that restraint, I would prefer you question the Acting Solicitor.

Mr. O'HARA. I would like to hear him on it, Mr. Chairman, if I could.

Mr. THOMPSON. Yes.

Mr. ALBERT. I think that since the fundamental problem underlining both situations is the same, to get into an adjudication case here on the merits of the various challenges that have been posed in the litigation in another situation in which the proposition is exactly the same, would be in effect attempting to adjudicate the law suit here..

Now, I think, as the Under Secretary indicated, that the broad general principles which arise out of the provisions in the law and the regulations under which the Secretary of Labor took this action are perfectly proper subjects for discussion, but to go into the particular merits of the contest which is now in the Federal District Court in the District of Columbia, I think it would be improper.

I don't think it rests on any constitutional privilege. It is just a sense of propriety among lawyers that you don't adjudicate law suits outside the courtroom.

Mr. O'HARA. I am not going to be asking anything about the facts of the dispute you have with the IAM. I am going to be asking about the facts of the dispute involving the Eastern Test Range, which you recognize is a different contract.

I have difficulty accepting your reasoning. In other words, if a mail truck were to knock over the mailbox of one of my constituents and I were to call up the post office to discuss what had happened, they wouldn't do so because there was a similar case pending out in Idaho somewhere.

In other words, I am not asking about the same set of facts at all. I am asking you about a completely different contract and a different set of facts. I don't think the International Association of Machinists, for instance, are even involved in any of the work at the Eastern Test Range, are they?

Mr. ALBERT. Yes, I think they are.

Mr. THOMPSON. I might point out that the two facilities involved are 11 miles apart, in addition to the difference in the contract.

Mr. O'HARA. Well, I guess I am not constrained, Mr. Chairman, from discussing the facts of the Eastern Test Range case.

I note in your letter to the chairman dated September—you refer to it as the letter of September 10, the chairman's copy suggests that it was sent to him on September 13, but I think it is the same letter we are talking about.

Mr. THOMPSON. Is that the one in which, in the second paragraph, the Secretary writes

The conditions which led to the adoption of the limitation in 1967 under the authority of Section 4(b) of the Act are equally persuasive now and are reinforced by the fact that a change at this time might be prejudicial to the public interest in the success of the President's economic program to combat inflation.

Mr. SILBERMAN. I am trying to find it. Our letter is dated September 10. You say yours is dated September 13?

Mr. THOMPSON. It is stamped September 13.
Mr. SILBERMAN. Is that a receipt stamp?

Mr. THOMPSON. My receipt stamp is for the 13th also, indicating that it must have been hand-carried. The third paragraph says

The Department of Labor decided in 1967 that the pattern of wages in Brerard County was such that the limited resources available for making wage determinations could more appropriately be utilized in other localities. I have concluded that the policy is still reasonable and proper.

Mr. SILBERMAX. That is correct.

Mr. THOMPSON. In other words, that is a reference to Secretary Wirtz' decision of 1967; in a sense, a reaffirmation of it as of September 13, 1971.

Mr. SILBERMAN. It was a reaffirmation as of sometime in 1970. This is the third time that has come up. Mr. THOMPSON. I see.

That is the same letter, Mr. O'Hara.... - Mr. O'HARA. Well, let me then ask about that. I think that we could discuss at least the matters contained in your letters—if your letters set forth a proposition, obviously that is a proposition you aren't afraid to develop and I would like to discuss those propositions.

7 Mr. SILBERMAN. We are certainly not afraid to develop it in the generalities insofar as we can. But concerning specific circumstances, I would prefer my counsel answer. 1. Mr. O'HARA. We can get into 1967? 41 Mr. SILBERMAN. We can. I wasn't at the Department in 1967.

Mr. O'HARA. But you are basing your decision now on the 1967 decision. | Mr. SILBERMAN. That is right; the rationale.

Mr. O'HARA (reading). "The conditions which led to the adoption of the limitation in 1967 under the authority of Section 4(b) of the Act are equally persuasive now. And then down in the next paragraph

The Department of Labor decided in 1967 that the pattern of wages in Brevard County was such that the limited resources available for making wage determinations could more appropriately be utilized in other localities.

What was the situation in 1967 ? Are any of you able to advise me of that? What were the circumstances under which you had been asked to make wage determinations?

Mr. SILBERMAN. I think there is a reference to that 1967 situation, too, in the documents, is there not? Just a moment.

Mr. O'HARA. Yes. There is.
Mr. SILBERMAN. I believe you have that, but let me check.

Mr. O'HARA. I have a memo and it doesn't really talk about it much. But the situation in 1967 was-well, let's start in the beginning. Sixteen years ago the contract for operation of the Eastern Test Range was

en to Pan Am and continuously since that time, the additional

procurements of services under the contract have been done on a single source basis.

In 1967 the contract with Pan Am was being renegotiated. May I inquire if that is the situation now? Mr. SILBERMAN. With respect to what? Mr. O'Hara. Are you renegotiating the current contract with the current contractor or are you doing something different?

Mr. SILBERMAN. The Department of Labor is not negotiating any contract.

Mr. O'HARA. Is the Air Force renegotiating the current contract with Pan Am or doing something different ?

Mr. SILBERMAN. I guess we would have to defer to the Air Force to find out what they are doing.

Mr. Menasco, do you know what the Air Force is doing now?

Mr. MENASCO. The Air Force is proposing to advertise, to recompete, the contract.

Mr. THOMPSON. In other words, they are not renegotiating with the incumbent contractor?

Mr. MENASCO. As far as I know, what I just stated is the intention.

Mr. O'HARA. We have Mr. Racusin's statement here. I don't want to anticipate his testimony, but I have had a chance to glance at it. On page 2 he states

The ETR-Eastern Test Range_contract was first awarded some 16 years ago. Since that time it has been determined on an annual basis that the complexities of the requirement made it an exception to the general rule and justified award on a sole source basis.

In other words, they have simply renegotiated with Pan Am. Mr. THOMPSON. Isn't there reference there to Pan Am's then existing collective bargaining agreements ?

Mr. O'HARA. Let me get to that in a minute, Mr. Chairman, if I might. .

In any event, they aren't doing that now,
In our judgment, there is now no valid justification- '.'s prt. 11

Mr. Racusin goes on-
noi to continue awarding the contract on a sole source basis.,,,

Accordingly, the requirement was synopsized in the Commerce Business Daily on June 8, 1971, and on September 2, 1971, a Request for Proposal was issued to 12 prospective bidders. ,

So I would suggest that in terms of the kind of contracting situation in which you found yourself, 1967 was a great deal different than 1971. In 1967 they were renegotiating with the same contractor. In 1971 they have invited 12 prospective contractors to bid on a new contract,

So we don't know if the new contractor is going to be Pan Am, the current contractor, or somebody else.

If you will look at the documentation of the 1967' decision, and I quote from the June 20, 1967, memorándum which sets forth the basis for the decision not to make a wage survey at that time, which counsel for the committee obtained from the Departmentiras'' it yesterday?

Mr. DUFFY. Yes, yesterday.
Mr. O'Hara. About 6 o'clock yesterday evening, wasn't it? '
69–938—71—pt.

2 7

Mr. DUFFY. Yes.
Mr. O'HARA. And I quote from it-

In view of the prevalence of labor-management agreements at the Government installations in the locality and the omission of data for the construction industry, it is felt that any wage determination in the locality for the skills and crafts primarily employed at the Government installations would create more problems than it would solve.

The prevalence of the agreements also ensure adequate wage and fringe benefits for the workers employed at the installations.

In other words, since the contractor was going to be the same contractor, since the employees were going to be the same employees, since most of them were covered by collective bargaining agreements, since those collective bargaining agreements were going to remain in effect, thereby setting the wage rate and other working conditions for these employees, there was no need for a wage determination.

Mr. SILBERMAN. Unfortunately, Mr. O'Hara, you have the advantage of me. I don't have the document from which you quote, but I didn't hear the quote as adding up to your summation of the quote.

It sounds to me like that was apples and oranges.
Mr. O'HARA. Not at all, Mr. Silberman.
Do you have a copy of that you can provide to Mr. Silberman?
Mr. DUFFY. Yes.

Mr. SILBERMAN. May I check and see if I can identify the document from which Congressman O'Hara is reading.

Is that a memorandum? · Mr. O'HARA. Yes. It is a June 22 memorandum from a gentleman named Schiferl to a gentleman named Landis, provided us by the Department yesterday evening, in accordance with the regulations of the Department setting forth the fact that the documents on which such a decision is based are public property and open to public inspection.

Mr. SILBERMAN. I have no problem. I wanted to identify the document.

Mr. THOMPSON. Would you indulge us for about 3 or 4 minutes while we go to make a quorum: we will come right back. It will give you a chance to look at this.

Mr. SILBERMAN. Mr. Chairman, I am always delighted to indulge this committee. ...

(A brief recess was taken.)
Mr. THOMPSON. The subcommittee will be in order.
Mr. O'Hara.

Mr. O'HARA. Mr. Chairman, when we left I think Mr. Silberman was studying the memorandum which set forth the reasons for the decisions of the Department in the 1967 wage determination. I had asserted that the reasons set forth therein were no longer appropriate because in 1967 they had been renewing a single source procurement, simply renegotiating with the contractor, Pan Am, and on this occasion they were inviting bids from 12 prospective contractors.

There was no assurance they would renegotiate with Pan Am and therefore the reasons set forth in the first paragraph of the memorandum were not applicable to the current situation. And Mr. Silberman said he would like to have an opportunity to study the memorandum and the quorum call gave him that opportunity.

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