B-160778, JUL 20, 1971, 51 COMP GEN 42

B-160778, JUL 20, 1971, 51 COMP GEN 42

CONTRACTS - LABOR STIPULATIONS - DAVIS-BACON ACT - CLASSIFICATION OF WORKMEN - LOCAL AREA PRACTICE IN THE DISPUTE CONCERNING WAGES PAID FOR PLACING AND PUDDLING CONCRETE IN WHICH FIBER DUCT PIPE WAS ENCASED, WHERE THE WAGE RATE DETERMINATION INCORPORATED IN THE CONTRACT ONLY LISTED "CONCRETE PUDDLER," AND THE INVITATION HAD NOT INDICATED ANY OTHER RATE WAS TO BE PAID FOR FIBER DUCT ENCASED CONCRETE, THE REQUEST BY THE CONTRACTING AGENCY FOR INFORMATION THAT WOULD INDICATE THE SUBSTANTIAL AREA PRACTICE OF USING CONCRETE PUDDLERS FOR ENCASING FIBER DUCT IN CONCRETE AT THE RATES SPECIFIED IN THE WAGE DETERMINATION WAS IN ACCORD WITH DECISIONS OF THE COMPTROLLER GENERAL AND, ALTHOUGH THE SECRETARY OF LABOR'S FUNCTION UNDER THE DAVIS-BACON ACT, 40 U.S.C. 276A, GENERALLY IS EXHAUSTED WHEN A WAGE DETERMINATION IS FURNISHED, THE CONTRACT PROVIDED FOR REFERRAL TO THE SECRETARY OF CLASSIFICATION DISAGREEMENTS AND, THEREFORE, NEW EVIDENCE OF LOCAL AREA PRACTICES MAY NOT BE CONSIDERED BY THE GENERAL ACCOUNTING OFFICE. COMP. GEN. 103, HOLDING THE CONTRACTOR LIABLE FOR DAVIS-BACON ACT VIOLATIONS, IS AFFIRMED.

TO THE SOUTHWEST ENGINEERING COMPANY, INC., JULY 20, 1971:

REFERENCE IS MADE TO YOUR LETTERS DATED FEBRUARY 8, 15, AND 25, APRIL 20, AND MAY 18, 1971, REQUESTING RECONSIDERATION OF OUR DECISION OF AUGUST 19, 1970, 50 COMP. GEN. 103, WHICH DISALLOWED YOUR CLAIM FOR $410.47 WITHHELD TO COVER ALLEGED VIOLATIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, UNDER CONTRACT NO. DA-23-028-ENG-7904.

YOUR REQUEST FOR RECONSIDERATION IS BASED UPON YOUR CONTENTION THAT OUR DECISION OF AUGUST 19, 1970, IS ERRONEOUS IN THAT IT IS IN CONFLICT WITH CERTAIN PRIOR DECISIONS OF OUR OFFICE. IN THIS CONNECTION, YOU POINT OUT THAT THE MAJOR PORTION OF THE WAGES IN ISSUE ARE THOSE PAID FOR PLACING AND PUDDLING CONCRETE IN WHICH FIBER DUCT PIPE WAS TO BE ENCASED, AND THAT THE WAGE RATE DETERMINATION INCORPORATED INTO YOUR CONTRACT INCLUDED A CLASSIFICATION AND WAGE RATE FOR "CONCRETE PUDDLERS." IN VIEW THEREOF, YOU CONTEND THAT IF IT WAS INTENDED THAT ANY OTHER RATE WAS TO BE PAID FOR PUDDLING THE CONCRETE IN WHICH FIBER DUCT WAS TO BE ENCASED, THE INVITATION FOR BIDS SHOULD HAVE SO INDICATED, AND YOU CITE OUR DECISIONS 45 COMP. GEN. 532, MARCH 1, 1966, AND B-158511, JULY 6, 1966, AS SUPPORTING THIS CONCLUSION.

ADDITIONALLY, YOU CONTEND THAT OUR DECISION OF AUGUST 19, 1970, IS PREDICATED ON THE PREMISE THAT A BIDDER MUST ASCERTAIN FOR HIMSELF WHETHER ANY LOCAL PRACTICES MAY EXIST WHICH DIFFERENTIATE BETWEEN NORMALLY ACCEPTED WORKER CLASSIFICATIONS, EVEN THOUGH SUCH DIFFERENTIATION MAY BE BASED UPON LABOR UNION JURISDICTIONAL CLAIMS, AND THAT A BIDDER SHOULD THEN PREPARE HIS BID ON THE BASIS OF SUCH LOCAL PRACTICES. YOU CLAIM THAT ALL PRIOR DECISIONS OF OUR OFFICE HAVE RULED THAT SUCH A LOCAL PRACTICE THEORY IS IMPROPER, AND YOU CITE 36 COMP. GEN. 806, JUNE 10, 1957; B- 147602, JANUARY 23, 1963; 43 COMP. GEN. 84, JULY 26, 1963; AND 43 COMP. GEN. 623, MARCH 31, 1964, AS BEING ILLUSTRATIVE OF OUR PRIOR POSITION. THE FOREGOING DECISIONS, YOU INDICATE YOUR BELIEF THAT B-147602, JANUARY 23, 1963, IS DECISIVE OF THE ISSUE IN THE INSTANT CASE.

ALTERNATIVELY, YOU CONTEND THAT IF THIS OFFICE SHOULD AGAIN CONCLUDE THAT THE "LOCAL JURISDICTIONAL PRACTICE" OF A GIVEN AREA CONTROLS, WE SHOULD THEN CONSIDER THE FACT THAT THE AFFIDAVITS OF THE WICHITA ELECTRICAL CONTRACTORS ON WHICH THE GOVERNMENT RELIED IN THE INSTANT CASE DO NOT, IN FACT, ESTABLISH A LOCAL PRACTICE, SINCE NONE OF THE CONTRACTORS STATE THAT THEY EVER INSTALLED FIBER DUCT ENCASED IN CONCRETE.

CONCERNING YOUR CONTENTION THAT YOU WERE ENTITLED TO RELY UPON THE CLASSIFICATION AND WAGE RATE FOR CONCRETE PUDDLERS IN THE ABSENCE OF ANY INDICATION TO THE CONTRARY IN THE INVITATION FOR BIDS, OUR DECISIONS 45 COMP. GEN. 532, MARCH 1, 1966, AND B-158511, JULY 6, 1966, ON WHICH YOU RELY, BOTH INVOLVED SITUATIONS IN WHICH TWO SEPARATE AND DISTINCT WAGE RATE DETERMINATIONS WERE INCLUDED IN THE INVITATION FOR BIDS, AND NO ADVICE WAS GIVEN TO BIDDERS AS TO WHICH DETERMINATION WAS APPLICABLE TO THE WORK NECESSARY TO PERFORM THE CONTRACT. WHILE WE HELD IN THOSE CASES THAT BIDDERS WERE ENTITLED TO DETERMINE WHICH OF THE WAGE RATE DETERMINATIONS WOULD BE APPLICABLE, AND TO COMPUTE THEIR BID PRICES ON SUCH RATES, WE CANNOT AGREE WITH YOUR CONTENTION THAT BIDDERS ARE ENTITLED TO ASSUME, WITHOUT REGARD TO LOCAL PRACTICE, THAT ALL CONCRETE PUDDLING (AND ALL OTHER UNSKILLED LABOR WHICH MAY BE REQUIRED IN THE PERFORMANCE OF A CONTRACT OF THE TYPE HERE INVOLVED) MAY BE PERFORMED BY CONCRETE PUDDLERS AND LABORERS AND PAID FOR AT THE WAGE RATE FOR SUCH WORKERS SPECIFIED IN THE WAGE RATE DETERMINATION. SEE IN THIS CONNECTION, B- 147602, JANUARY 23, 1963, WHICH INDICATES THAT WHERE THE PRACTICE OF USING ELECTRICIANS TO INSTALL FIBER DUCT IS EXCLUSIVE, PAYMENT OF ELECTRICIANS' WAGES WOULD BE APPROPRIATE. CONVERSELY, WHERE A SUBSTANTIAL AREA PRACTICE OF USING LABORERS OR PIPELAYERS FOR A PART OF THE INSTALLATION CAN BE SHOWN, PAYMENT OF LABORER OR PIPELAYER RATES FOR SUCH WORK IS PROPER.

IN THIS CONNECTION, YOU ALSO CITE BLACK, RABER-KEIF AND ASSOCIATES V UNITED STATES, 174 CT. CL. 302 (1966), WHICH HOLDS THE GOVERNMENT LIABLE IF IT REQUIRES A CONTRACTOR TO PAY HIGHER WAGES THAN HE IS OBLIGATED TO PAY UNDER HIS CONTRACT, AS SUPPORTING YOUR POSITION. THAT CASE, HOWEVER, INVOLVED THE QUESTION OF WHETHER A WAGE RATE OF 60[ PER HOUR SPECIFIED IN THE WAGE RATE DETERMINATION INCLUDED OR EXCLUDED ADDITIONAL PREREQUISITES OF APPROXIMATELY 40[ PER HOUR. WE SEE NO BASIS UPON WHICH THE COURT'S CONCLUSION IN THAT CASE WOULD IMPOSE A DUTY UPON THE CONTRACTING AGENCY OR THE DEPARTMENT OF LABOR TO ASCERTAIN AREA PRACTICES RELATIVE TO TYPES OF UNSKILLED WORK WHICH ARE PERFORMED BY JOURNEYMAN MECHANICS, AND TO INCLUDE SUCH INFORMATION IN WAGE RATE DETERMINATIONS.

YOU ALSO CONTEND THAT OUR DECISION OF AUGUST 19 IMPOSES A REQUIREMENT ON BIDDERS TO ASCERTAIN LOCAL PRACTICES, INCLUDING THOSE BASED UPON UNION JURISDICTIONAL CLAIMS, AND THAT SUCH A REQUIREMENT WOULD BE CONTRARY TO PREVIOUS DECISIONS OF THIS OFFICE FROM 1957 TO 1964. WHILE THE DECISIONS YOU HAVE CITED DO SET OUT THE GENERAL RULE THAT WORK CLASSIFICATIONS SHOULD NOT BE MADE SOLELY ON THE BASIS OF LOCAL PRACTICES WHICH ARE THE SUBJECT OF UNION JURISDICTIONAL DISPUTES AND WHICH DO NOT CLEARLY ESTABLISH ACTUAL DIFFERENCES IN WORK SKILLS, THOSE SAME DECISIONS SET OUT SEVERAL EXCEPTIONS TO THE RULE. THUS, IN 43 COMP. GEN. 623, MARCH 31, 1964, THE FOLLOWING IS STATED:

*** UNLESS LOCAL PRACTICES CLEARLY ESTABLISH ACTUAL DIFFERENCES IN WORK SKILLS *** OR UNLESS THEY ARE EXCLUSIVE, IT SEEMS CLEAR THAT THEIR ADOPTION *** IS NEITHER REQUIRED NOR PERMITTED BY THE TERMS OF THE DAVIS- BACON ACT.

AND IN B-147602, JANUARY 23, 1963, WE SAID THE FOLLOWING:

*** IN ANY EVENT, SINCE A SUBSTANTIAL PRACTICE OF USING THE LABORER AND PIPELAYER CLASSIFICATION EXISTED *** WE WOULD BE INCLINED TO CONCLUDE THAT THE CLASSIFICATIONS USED BY THE CONTRACTOR, (LABORER AND PIPELAYER) SHOULD NOT BE QUESTIONED FOR WAGE ADJUSTMENT PURPOSES.

WE BELIEVE THESE CASES CLEARLY INDICATE TWO PRINCIPLES. FIRST, THAT A LOCAL AREA PRACTICE MUST BE FOLLOWED WHERE IT IS EXCLUSIVE. SECOND, THAT A PREVAILING LOCAL AREA PRACTICE NEED NOT BE FOLLOWED IF A SUBSTANTIAL AREA PRACTICE TO THE CONTRARY CAN BE SHOWN. THOSE PORTIONS OF OUR DECISIONS WHICH SPEAK OF JURISDICTIONAL DISPUTES ARE DIRECTED TO AREAS IN WHICH THERE ARE, IN FACT, TWO ESTABLISHED PRACTICES, RATHER THAN ONE EXCLUSIVE PRACTICE. AND THOSE PORTIONS OF OUR DECISIONS WHICH SPEAK OF A SUBSTANTIAL PRACTICE ARE DIRECTED TO ESTABLISHING THAT THERE IS NO EXCLUSIVE PRACTICE IN AN AREA, AND THAT MORE THAN ONE PRACTICE EXISTS IN AN AREA, I.E., A PREVAILING PRACTICE AND A SUBSTANTIAL PRACTICE. THEREFORE DO NOT AGREE WITH YOUR CONTENTION THAT OUR PRIOR DECISIONS DO NOT OBLIGATE BIDDERS TO ASCERTAIN AND CONFORM TO LOCAL AREA PRACTICES, ESPECIALLY IF SUCH PRACTICES ARE EXCLUSIVE OR IF THERE IS NO SUBSTANTIAL AREA PRACTICE TO THE CONTRARY. IN THE INSTANT CASE WE MUST THEREFORE AGREE THAT THE REQUEST BY THE CONTRACTING AGENCY, THAT YOU SHOULD FURNISH ANY INFORMATION AVAILABLE TO YOU WHICH MIGHT INDICATE A SUBSTANTIAL AREA PRACTICE OF USING CONCRETE PUDDLERS TO ENCASE THE FIBER DUCT IN CONCRETE, WAS IN ACCORD WITH THE DECISIONS OF THIS OFFICE CITED ABOVE.

IN THIS CONNECTION, YOU HAVE ALSO CITED THAT PORTION OF OUR DECISION OF JANUARY 23, 1963, B-147602, WHICH READS AS FOLLOWS:

*** IT HAS BEEN OBSERVED THAT UNDER THE ACT THE SECRETARY'S FUNCTION IS EXHAUSTED ONCE HE HAS FURNISHED SUCH A WAGE DETERMINATION AND A SCHEDULE BASED THEREON HAS BEEN INCLUDED IN THE CONTRACT SPECIFICATION *** .

*** MOREOVER, IT SHOULD BE OBSERVED THAT BY THE TERMS OF THE DAVIS BACON ACT THE GENERAL ACCOUNTING OFFICE, RATHER THAN THE DEPARTMENT OF LABOR, IS GIVEN SOLE RESPONSIBILITY TO MAKE WAGE ADJUSTMENTS AND TO DETERMINE VIOLATIONS FOR PURPOSES OF IMPOSING DEBARMENT. WHILE CONTRACTING AGENCIES ARE RESPONSIBLE IN THE FIRST INSTANCE FOR VERIFYING AND ENFORCING MINIMUM WAGE REQUIREMENTS, FOR DOING SO IN ACCORDANCE WITH APPROPRIATE INTERPRETATIONS AND REGULATIONS OF THE DEPARTMENT OF LABOR, AND EVEN FOR DECIDING CERTAIN FACTUAL MATTERS IN ACCORDANCE WITH THE CONTRACT PROVISIONS, IN INSTANCES OF NON-COMPLIANCE THEY ARE RESTRICTED TO WITHHOLDING FUNDS TO OFFSET UNDER-PAYMENTS, AND DISPUTES OVER ANY WAGE ADJUSTMENT INVOLVED ARE FOR FINAL RESOLUTION BY OUR OFFICE IN THE SPECIFIED MANNER.

THIS DECISION (AS WELL AS THE OTHER THREE DECISIONS WHICH YOU CITE AND WHICH WE RENDERED FROM JUNE 1957 THROUGH MARCH 1964) WERE RENDERED IN CONNECTION WITH CONTRACTS WHICH CONTAINED THE FOLLOWING DAVIS-BACON ACT PROVISION:

(A) ALL MECHANICS AND LABORERS EMPLOYED OR WORKING DIRECTLY UPON THE SITE OF THE WORK WILL BE PAID UNCONDITIONALLY AND NOT LESS OFTEN THAN ONCE A WEEK, AND WITHOUT SUBSEQUENT DEDUCTION OR REBATE ON ANY ACCOUNT (EXCEPT SUCH PAYROLL DEDUCTIONS AS ARE PERMITTED BY THE COPELAND ACT (ANTI- KICKBACK) REGULATIONS (29 CFR, PART 3)) THE FULL AMOUNTS DUE AT TIME OF PAYMENT, COMPUTED AT WAGE RATES NOT LESS THAN THOSE CONTAINED IN THE WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR WHICH IS ATTACHED HERETO AND MADE A PART HEREOF, REGARDLESS OF ANY CONTRACTUAL RELATIONSHIP WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR OR SUBCONTRACTOR AND SUCH LABORERS AND MECHANICS; AND A COPY OF THE WAGE DETERMINATION DECISION SHALL BE KEPT POSTED BY THE CONTRACTOR AT THE SITE OF THE WORK IN A PROMINENT PLACE WHERE IT CAN BE EASILY SEEN BY THE WORKERS.

HOWEVER, THE CONTRACT IN THE INSTANT CASE CONTAINED AN ADDITIONAL PROVISION, AS PART OF PARAGRAPH (D) OF STANDARD FORM 19-A AS REVISED IN JUNE 1964 AND APRIL 1965, READING AS FOLLOWS:

(D)THE CONTRACTING OFFICER SHALL REQUIRE THAT ANY CLASS OF LABORERS OR MECHANICS WHICH IS NOT LISTED IN THE WAGE DETERMINATION DECISION AND WHICH IS TO BE EMPLOYED UNDER THE CONTRACT SHALL BE CLASSIFIED OR RECLASSIFIED CONFORMABLY TO THE WAGE DETERMINATION DECISION, AND SHALL REPORT THE ACTION TAKEN TO THE SECRETARY OF LABOR. IF THE INTERESTED PARTIES CANNOT AGREE ON THE PROPER CLASSIFICATION OR RECLASSIFICATION OF A PARTICULAR CLASS OF LABORERS OR MECHANICS TO BE USED, THE CONTRACTING OFFICER SHALL SUBMIT THE QUESTION, TOGETHER WITH HIS RECOMMENDATION, TO THE SECRETARY OF LABOR FOR FINAL DETERMINATION.

WHILE YOUR LETTER OF FEBRUARY 15 POINTS OUT THAT IN B-147602, SUPRA, WE SAID THAT THE SECRETARY'S FUNCTION UNDER THE ACT IS EXHAUSTED ONCE HE HAS FURNISHED A WAGE RATE DETERMINATION, AND THAT DISPUTES OVER WAGE ADJUSTMENTS ARE FOR FINAL RESOLUTION BY THIS OFFICE, THOSE STATEMENTS MUST BE REEXAMINED AND QUALIFIED WHERE, AS IN THE INSTANT CASE, A CONTRACTOR AGREES TO A CONTRACTUAL PROVISION WHICH PROVIDES FOR REFERRAL OF DISPUTES TO THE SECRETARY OF LABOR FOR FINAL DETERMINATION. AS STATED IN OUR DECISION OF AUGUST 19, 1970, IT IS OUR VIEW THAT, HAVING AGREED TO THE INCLUSION OF CLAUSE 49 IN YOUR CONTRACT, THE REFERRAL OF THE DISPUTE TO THE DEPARTMENT OF LABOR ON MARCH 7, 1967, WAS PROPER, AND YOU ARE BOUND BY THE DECISION RENDERED BY THE SOLICITOR OF LABOR UNLESS SUCH DECISION WAS ARBITRARY, CAPRICIOUS, OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE.

WHILE WE HELD IN OUR AUGUST 19 DECISION THAT THERE WAS SUBSTANTIAL EVIDENCE BEFORE THE SOLICITOR TO SUPPORT HIS DETERMINATION THAT IT WAS THE PREVAILING PRACTICE IN THE AREA TO USE ELECTRICIANS FOR THE INSTALLATION OF FIBER DUCT AS A CONDUIT FOR ELECTRICAL WIRES, YOU NOW ALLEGE THAT NONE OF THE EVIDENCE SUPPORTS A CONCLUSION THAT THERE WAS ANY PRACTICE IN THE AREA OF USING ELECTRICIANS TO PUDDLE CONCRETE USED IN THE INSTALLATION OF FIBER DUCT. IN SUPPORT OF THIS CONTENTION YOU POINT OUT THAT THREE OF THE AFFIDAVITS RELIED ON BY THE GOVERNMENT DO NOT SUPPORT THE GOVERNMENT'S POSITION, SINCE NONE OF THEM STATES THAT THE CONTRACTORS USED ELECTRICIANS TO PUDDLE CONCRETE, AND SINCE YOUR RESEARCH FAILS TO INDICATE THAT ANY OF THESE CONTRACTORS HAS EVER INSTALLED FIBER DUCT ENCASED IN CONCRETE. VIEW THEREOF, YOU ALLEGE THAT THE PORTIONS OF OUR DECISION OF AUGUST 19 WHICH STATE THAT THE EVIDENCE OF RECORD BEFORE THE CONTRACTING OFFICER AND THE SOLICITOR OF LABOR INDICATED THAT FOUR OUT OF THE FIVE CONTRACTORS SURVEYED USED ELECTRICIANS FOR THE INSTALLATION OF FIBER DUCT IS IN ERROR, AND THAT OUR DECISION SHOULD THEREFORE BE REVERSED.

WHERE, AS IN THE INSTANT CASE, THE PARTIES HAVE AGREED THAT A DETERMINATION BY A THIRD PARTY SHALL BE FINAL ON A DISPUTED QUESTION OF FACT, IT IS SETTLED THAT A REVIEW BY THIS OFFICE SHALL BE LIMITED TO THE RECORD BEFORE SUCH THIRD PARTY WHEN HIS DETERMINATION WAS MADE. SEE 46 COMP. GEN. 441, 461-462 (1966), AND CASES CITED THEREIN. AS INDICATED AT PAGE 2 OF OUR DECISION TO YOU OF AUGUST 19, THE DEPARTMENT'S SURVEY SHOWED THAT FOUR OF THE FIVE COMPANIES WHICH HAD INSTALLED FIBER DUCT AS CONDUIT FOR ELECTRIC WIRES HAD USED ELECTRICIANS TO PERFORM BOTH THE JOINING OF THE DUCT AND THE PUDDLING OF CONCRETE.

THE FACT THAT YOU WERE NOT AFFORDED AN OPPORTUNITY TO PRESENT ARGUMENT OR EVIDENCE TO REFUTE THE SURVEY RESULTS WHILE THE QUESTION WAS BEFORE THE SOLICITOR OF LABOR DOES NOT ALTER THE RULE AS STATED ABOVE, SINCE THE RECORD CLEARLY INDICATES THAT YOU WERE ADVISED OF THE RESULTS OF THE DEPARTMENT'S INVESTIGATION, AND THAT YOU WERE REQUESTED ON SEVERAL OCCASIONS TO FURNISH EVIDENCE TO THE CONTRACTING OFFICER OF A SUBSTANTIAL AREA PRACTICE OF USING LABORERS FOR THE INSTALLATION OF FIBER DUCT, AND YOU REFUSED TO DO SO. IT WOULD THEREFORE APPEAR THAT YOU HAD THE OPPORTUNITY TO REFUTE ARMY'S FINDINGS, AND SINCE IT MUST BE ASSUMED THAT ANY EVIDENCE OR ARGUMENT YOU MAY HAVE SUBMITTED WOULD HAVE BEEN REFERRED TO THE SOLICOTOR OF LABOR, IT CANNOT BE SAID THAT YOU WERE NOT AFFORDED AN OPPORTUNITY TO PRESENT EVIDENCE FOR CONSIDERATION BY THE SOLICITOR. VIEW THEREOF, ANY CONSIDERATION AT THE PRESENT TIME OF ANY EVIDENCE WHICH YOU COULD, AND SHOULD, HAVE SUBMITTED TO THE CONTRACTING OFFICER WOULD AMOUNT TO A HEARING DE NOVO, AND WOULD BE IMPROPER.

IT IS OUR OPINION THAT THE STATEMENTS YOU HAVE NOW SUBMITTED TO THIS OFFICE (AND ANY EVIDENCE IN SUPPORT THEREOF) RELATIVE TO THE SUFFICIENCY AND CREDIBILITY OF THE DEPARTMENT'S SURVEY SHOULD HAVE BEEN SUBMITTED TO THE CONTRACTING OFFICER AT THE TIME HE ADVISED YOU OF THE SURVEY RESULTS AND REQUESTED YOU TO SUBMIT CONTRARY EVIDENCE RELATIVE TO THE AREA PRACTICE. SINCE YOU FAILED TO DO SO, THIS OFFICE CANNOT NOW CONSIDER SUCH ALLEGATIONS OR EVIDENCE, OR DISAGREE WITH THE CONCLUSIONS OF THE SOLICITOR OF LABOR ON THE BASIS OF SUCH STATEMENTS OR EVIDENCE.

IN VIEW OF THE FOREGOING, WE FIND NO MATERIAL ERROR OF FACT OR LAW IN OUR DECISION OF AUGUST 19, 1970, AND IT MUST THEREFORE BE AFFIRMED.