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nature of a penalty, which except for the fact that it is dealing with the Government, the courts would not enforce. Moreover, even if not regarded as a penalty, contractor contends that this assessment was not warranted by the facts, the uncontradicted evidence in the record showing as hereinabove set forth that the delay in shipments was attributable entirely to very serious labor troubles encountered at the contractor's plant at the time, which were unforeseeable within the meaning of article 26 of the contract. For the very same reasons contractor urges that the aforesaid item of $2,400 was improperly assessed against it by the Government, so that this aggregate of $8,700 proposed to be repaid to the contractor under the bill should certainly be allowed in full.

* *

At the hearing on appeal the Government's attorney placed emphasis upon the fact that the contractor had no strike at its plant, with the intended inference that only such a contingency would excuse the delay under the contract. However, the fact is that the contract does not require a strike. but provides for "unforeseeable causes including but not restricted to * strikes * *." While it is true we had no strike at the plant in the technical sense of that term. nevertheless the record on the appeal shows that the Government's contracting officer and the Government's attorney both conceded that we did have serious labor troubles and a walk-out more nearly resembling a rebellion.

The record gives detailed facts and evidence of those troubles, as for example, the drop in the number of our operating employees from 247, when we took the contract in July 1942, to 142 on September 26, 1942. There is also a reference in the record to the practice, then current, of employees shopping around plants for the highest bidder and that labor "piracy" had become so prevalent that the War Man Power Commission had to step in to stop it because employers were powerless to stem the tide. Accordingly it would seem both unreasonable and unrealistic to hold that loss of help in such times was not unforeseeable. There is also evidence in the record that the contractor had great difficulty getting its operators to work on the very heavy, cumbersome, and difficult item of medical mattress covers called for under this contract. In fact the steady loss of operators by the contractor was so close to a strike situation that it could with good reason be urged that the situation comes specifically within the strike provision of the contract. The point is, however, that the contract itself does not require an actual strike and uses language as quoted which in fairness must certainly be construed to be broad enough to include the instant labor difficulty which the contractor suffered.

The further contention in the Secretary's report that the contractor preferred civilian work to Government work is entirely unsubstantiated. The record shows that the contractor made every effort to put as many operators as it possibly could on Government work, and that in fact, due largely to such insistence, the contractor lost over 100 operators. The record also shows that in a desperate effort to get on with the Government work the contractor went to the substantial expense of reopening an unused building for the sole purpose of housing and training a large force of colored help to work exclusively on the Government mattress covers under the instant contract, and also made desperate efforts to have substantial quantities of these mattress covers manufactured by subcontractors, which efforts however were frustrated by the Government's failure to approve.

The record also shows that in addition to these serious labor troubles, the delay was also due partially to the fact that the contractor complied with the Government's request to complete a Government priority job on sand-fly bars, for which the Government however allotted only 18 days, whereas the record shows clearly that it took at least 36 days for the contractor to handle this Government priority job-about 10 to 12 days to get ready and arrange the machinery, tables, and other fixtures on the floor for the purpose of going ahead with the manufacture of the sand-fly bars, about 2 weeks to do the actual manufacturing job, and then about another 10 to 12 days to reconvert the plant and get it ready to do the mattress-cover job and its regular civilian work. In a letter addressed by the contractor to the Philadelphia Quartermaster Depot, dated October 29, 1942, on this subject, the contractor specifically states: "We put aside these covers for approximately 36 days in order to put 100 percent of our facilities on the sand-fly bars which were so urgently needed."

Had the Government granted the contractor's request for 40 days extension of time due to its serious labor difficulties and the 36 additional days required to do the Government priority job on the sand-fly bars, the actual delay chargeable to the contractor would have been only for 16 days as against the 90 days assessed. Contractor feels that even the 16 days should be overlooked and forgiven inas

much as it had been optimistic in asking for only 40 days to solve its serious labor problems.

For the reasons stated, supported with greater detail in the record, contractor urges that it should in fairness be allowed a refund for the aforesaid $6,300 and $2,400 items, and leaves it in the sound discretion of the committee to make some reasonable allowance on account of the aforementioned loss items of $12,465.62 and $2,250

Contract No. W-669 om-23175.-With respect to this contract, contractor, and the Government agreed to cancel the largest portion of it, some 135,246 mattress covers out of a total contract for 165,000, which the Government was able to obtain from other sources at a saving of $6,478.15 Nevertheless, the Government assessed the contractor in the sum of $2,089.44 for so-called Liquidated damages due to delays under article 26 of the contract. Aside from the fact that this is purely a penalty assessment, it would seem in equity and good morals, having saved $6,478.15, the Government should not saddle the contractor with this additional penalty assessment, which except for the fact that the Government is involved, no court of law would enforce in the circumstances, particularly so if it is further borne in mind as hereinbefore explained that the delays involved were not due to any negligence on the part of the contractor, but due entirely to serious labor difficulties which were unforeseeable under article 26 of the contract.

IN CONCLUSION

1. Summarizing the above, contractor urges that in addition to the small claim for $303.16 under contract No. W-669 qm-20513 as to which the Secretary states in his report he has no serious objections, justice requires refund to the contractor of the penalties assessed against it for $6,300 and $2,400 under contract No. W-669 qm-20380 and at least a partial refund on the claim for $12,465.62 and $2,250 made under the same contract, and a refund of the full amount of $2.089.44 claimed under contract No. W-669 qm-23175.

2. There being no real foundation in fact for the Secretary's adverse recommendation, contractor respectfully urges that the proposed bill H. R. 2377 be enacted with such modifications as to the committee may seem just and proper Respectfully submitted.

THE GLUCKIN CORP.,
By CHARLES ROSENBAUM,
General Counsel.

WASHINGTON, D. C., June 3, 1949.

In re H. R. 3498, Eighty-first Congress, for the relief of Gluckin Corp.
Hon. EMANUEL CELLER,

Chairman, Committee on the Judiciary,

House of Representatives, Washington, D. C.

MY DEAR MR. CHAIRMAN: With further reference to the above claim, and in accordance with the suggestion of the subcommittee which heard the case this morning, please be advised that the items claimed are as follows:

1. Contract No. W-669 qm 20513: Overrun of 379 sand-fly bars delivered to, inspected. accepted, and retained by the Govern

ment

2. (a) Contract No. W-669 qm 20380: Liquidated damages deducted and retained by the Government-..

(b) Amount deducted by the Government when it relet balance of contract to others ($2,400 excess contract price plus $448.30 freight)

3. Contract No. W-669 qm 23175: Liquidated damages deducted and retained by the Government--

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$303. 16

6, 300.00

2,848. 30

2, 089. 44

11, 540. 90

With reference to item 2 (b) above, Contracts W-669 qm 20380 and 23175 were for the same item (mattress covers), were running concurrently, and were treated throughout more or less as one contract. When the terminated balance of Contract No. 20380 was relet to others it was done so at a cost to the Government of $2,848.30 ($2,400 plus $448.30 freight), while the terminated balance of contract

No. 23175 was relet to others at a saving to the Government of $6,478.15. It would appear that in equity and good conscience the $2,848.30 heretofore deducted and retained by the Government should be repaid to claimant, particularly in view of the fact that if this is done the Government will still have a net profit of ($6,478.15 less $2,848.30) $3,629.85 on the transaction.

Trusting the above gives you the desired information, and with kind regards, I am

Sincerely yours,

PAUL E. HAWORTH.

MRS. SARAH E. THOMPSON

AUGUST 3, 1949.-Committed to the Committee of the Whole House and ordered to be printed

Mr. DENTON, from the Committee on the Judiciary. submitted the following

REPORT

[To accompany H. R. 4563]

The Committee on the Judiciary, to whom was referred the bill (H. R. 4563) for the relief of Mrs. Sarah E. Thompson, having considered the same, report favorably thereon without amendment and recommend that the bill do pass.

The purpose of the proposed legislation is to require the Federal Security Agency (Bureau of Employees' Compensation) to consider and act upon the claim of Mrs. Sarah E. Thompson for compensation under the act of September 7, 1916, as amended, for the death of William Harvey Thompson, a prohibition agent of the Bureau of Internal Revenue, which occurred on or about August 3, 1927, as a result of his being shot by a member of the police department of Tacoma, Wash., on July 27, 1927, while he was collecting evidence to be used in the enforcement of the National Prohibition Act, shall be held and considered to have resulted from a personal injury sustained while in the performance of his duty as prohibition agent. The claim of Mrs. Sarah E. Thompson, dependent mother of the said William Harvey Thompson, on account of his death, shall be considered and acted upon by the Bureau of Employees' Compensation as if such death had resulted from a personal injury sustained while in the performance of his duty as prohibition agent, but only if such claim is filed with the Bureau of Employees' Compensation not later than 1 year after the date of enactment of this act.

STATEMENT OF FACTS

This proposed legislation has been introduced in the Seventy-sixth, Seventy-seventh, and Seventy-eighth Congresses and, due to the lack of sufficient evidence, there has never been any favorable con

sideration given the claim. However, Mrs. Thompson appeared before the subcommittee and submitted conclusive evidence of the merits of this bill, and also affidavits from Roy C. Lyle and Walter Marble, former superior officers of William Harvey Thompson, deceased, stating that young Thompson was on official duty at the time of his death. Ard, in a letter written by W. M. Whitney, who was the legal adviser and had been the Assistant Prohibition Administrator and had been very closely identified with the enforcement activities, he states that young Thompson had thereforeto worked to a large extent in his own way, and to a large extent upon his own initiative as to the methods of apprehension and he anticipated that he would do so in this case also.

Mr. Whitney further states that it is now very probable that young Thompson may have started on this particular investigation on the very night he was shot; may have discovered some lead or clue which led him to the places that he visited that night in Pierce County. The prohibition agent himself is the only one who knew whether this was true, and he is dead. Much corroborative testimony has been introduced in the record, bearing out Mrs. Thompson's claims.

Mr. Whitney adds further that it was a fact that Agent Thompson was a most energetic and resourceful worker. He was always at it, and the hours were never too long or the task too difficult for him. Mr. Whitney states, also, that in 1927 it was not considered a violation of regulations to make use of informers and of women to secure information. Agents were permitted to expend money in the purchase of liquor, and to consume liquor where purchased it if was necessary to avoid detection of their official status.

Mr. Whitney also said that on the morning that the policeman shot young Thompson, without probable or just cause, he believed and still believes the policeman's act was that of a man lacking judgment and proper balance.

All the evidence submitted to the committee definitely indicates that Agent Thompson was on official duty at the time of being shot, and there is nothing in the file (except the report from the Treasury Department) stating otherwise. And, it would appear that a grave injustice has been done to Mrs. Thompson, the mother of this deceased All of this evidence has been submitted to the Treasury Department and it is not understandable that the Treasury Department continues to oppose this legislation.

man.

Mrs. Thompson is a lady of advanced years and if this bill is enacted into law it will not be necessary to pay her compensation for many years. Mrs. Thompson has made several trips to Washington, pleading with the Members of Congress and the committee to recognize these injustices and, more especially, to clear the name of her boy, who had told her on his deathbed the story of being shot while he was on duty.

The woman referred to in the Department's report as being an informer had not only been used as an informer by Agent Thompson, but by other prohibition officers when they were engaged in obtaining evidence on behalf of the prohibition officers. It is true that she was with young Thompson, at the time he was shot, but she states in an affidavit that while he was turning, or attempting to turn the car around, he was accosted by an officer, who put his foot on the running board, and who told Harvey Thompson to get out of the car,

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