A-90345, NOVEMBER 13, 1937, 17 COMP. GEN. 400

A-90345: Nov 13, 1937

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FOR TERMINATION AND CANCELATION OF THE CONTRACT WHERE THE TERMS OF THE ACT ARE FOUND TO HAVE BEEN VIOLATED. THE GENERAL ACCOUNTING OFFICE IS NOT REQUIRED TO RAISE ANY QUESTION AS TO COMPLIANCE WITH SAID ACT BY CONTRACTORS. WHERE THE GOVERNMENT PURCHASES COAL FROM A CONTRACTOR WHO IS NOT A PRODUCER OF COAL. IT IS THE CONTRACTOR'S RESPONSIBILITY TO ASCERTAIN WHETHER THE PRODUCER IS IN COMPLIANCE WITH THE ACT. AS FOLLOWS: MOST OF THE COAL USED TO HEAT LEASED OR RENTED POST-OFFICE QUARTERS IS PURCHASED FROM LOCAL DEALERS UNDER CONTRACTS MADE BY POSTMASTERS. PAYMENTS FOR SUCH PURCHASES ARE MADE FROM ALLOWANCES GRANTED BY THE DEPARTMENT. IN VIEW OF THE FOREGOING FACTS A DECISION IS REQUESTED AS TO WHAT EVIDENCE OF COMPLIANCE WITH THE BITUMINOUS COAL ACT OF 1937 WILL BE REQUIRED BY YOUR OFFICE IN ORDER TO ASSURE APPROVAL OF THE CONTRACTS ENTERED INTO.

A-90345, NOVEMBER 13, 1937, 17 COMP. GEN. 400

CONTRACTS - COAL - BITUMINOUS COAL ACT OF 1937 - COMPLIANCE DETERMINATION AND MEANS OF ENFORCEMENT THE BITUMINOUS COAL ACT OF 1937, 50 STAT. 72, HAVING SPECIFICALLY PROVIDED THE MEANS FOR HOLDING HEARINGS ON COMPLAINT OF ANY EMPLOYEE OF A PRODUCER OF COAL, OR OTHER INTERESTED PARTY, TO DETERMINE WHETHER ANY PRODUCER SUPPLYING COAL FOR THE UNITED STATES FAILED, AT THE TIME OF PRODUCTION, TO ACCORD TO HIS EMPLOYEES CERTAIN RIGHTS SPECIFIED IN THE ACT, AND FOR TERMINATION AND CANCELATION OF THE CONTRACT WHERE THE TERMS OF THE ACT ARE FOUND TO HAVE BEEN VIOLATED, THE GENERAL ACCOUNTING OFFICE IS NOT REQUIRED TO RAISE ANY QUESTION AS TO COMPLIANCE WITH SAID ACT BY CONTRACTORS, AND WHERE THE GOVERNMENT PURCHASES COAL FROM A CONTRACTOR WHO IS NOT A PRODUCER OF COAL, IT IS THE CONTRACTOR'S RESPONSIBILITY TO ASCERTAIN WHETHER THE PRODUCER IS IN COMPLIANCE WITH THE ACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, NOVEMBER 13, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 6, 1937, AS FOLLOWS:

MOST OF THE COAL USED TO HEAT LEASED OR RENTED POST-OFFICE QUARTERS IS PURCHASED FROM LOCAL DEALERS UNDER CONTRACTS MADE BY POSTMASTERS. PAYMENTS FOR SUCH PURCHASES ARE MADE FROM ALLOWANCES GRANTED BY THE DEPARTMENT. THE DEPARTMENT RARELY PURCHASES COAL FOR HEATING LEASEDOR RENTED QUARTERS DIRECTLY FROM PRODUCERS.

IN VIEW OF THE FOREGOING FACTS A DECISION IS REQUESTED AS TO WHAT EVIDENCE OF COMPLIANCE WITH THE BITUMINOUS COAL ACT OF 1937 WILL BE REQUIRED BY YOUR OFFICE IN ORDER TO ASSURE APPROVAL OF THE CONTRACTS ENTERED INTO.

PUBLIC, NO. 48, SEVENTY-FIFTH CONGRESS, ENTITLED "AN ACT TO REGULATE INTERSTATE COMMERCE IN BITUMINOUS COAL, AND FOR OTHER PURPOSES," PROVIDES IN SECTION 9 (B) AND (C) THEREOF AS FOLLOWS:

(B) NO COAL (EXCEPT COAL WITH RESPECT TO WHICH NO BID IS REQUIRED BY LAW PRIOR TO PURCHASE THEREOF) SHALL BE PURCHASED BY THE UNITED STATES, OR BY ANY DEPARTMENT OR AGENCY THEREOF, PRODUCED AT ANY MINE WHERE THE PRODUCER FAILED AT THE TIME OF THE PRODUCTION OF SUCH COAL TO ACCORD TO HIS OR ITS EMPLOYEES THE RIGHTS SET FORTH IN SUBSECTION (A) OF THIS SECTION.

(C) ON THE COMPLAINT OF ANY EMPLOYEE OF A PRODUCER OF COAL, OR OTHER INTERESTED PARTY, THE COMMISSION MAY HOLD A HEARING TO DETERMINE WHETHER ANY PRODUCER SUPPLYING COAL FOR THE USE OF THE UNITED STATES OR ANY AGENCY THEREOF, IS COMPLYING WITH THE PROVISIONS OF SUBSECTION (A) OF THIS SECTION. IF THE COMMISSION SHALL FIND THAT SUCH PRODUCER IS NOT COMPLYING WITH SUCH PROVISIONS, IT SHALL CERTIFY ITS FINDINGS TO THE DEPARTMENT OR AGENCY CONCERNED. SUCH DEPARTMENT OR AGENCY SHALL THEREUPON DECLARE THE CONTRACT FOR THE SUPPLY OF THE COAL OF SUCH PRODUCER TO BE CANCELED AND TERMINATED.

IT WILL BE NOTED THAT THE BITUMINOUS COAL COMMISSION IS AUTHORIZED, IN EVENT OF A COMPLAINT OF ANY EMPLOYEE OF A PRODUCER OF COAL, OR OTHER INTERESTED PARTY, TO HOLD A HEARING TO DETERMINE WHETHER ANY PRODUCER SUPPLYING COAL FOR THE UNITED STATES FAILED AT THE TIME OF THE PRODUCTION OF SUCH COAL TO ACCORD TO HIS OR ITS EMPLOYEES THE RIGHTS SET FORTH IN SECTION 9 (A) WHICH READS:

IT IS HEREBY DECLARED TO BE THE PUBLIC POLICY OF THE UNITED STATES THAT--

(1) EMPLOYEES OF PRODUCERS OF COAL SHALL HAVE THE RIGHT TO ORGANIZE AND TO BARGAIN COLLECTIVELY WITH RESPECT TO THEIR HOURS OF LABOR, WAGES, AND WORKING CONDITIONS THROUGH REPRESENTATIVES OF THEIR OWN CHOOSING, WITHOUT RESTRAINT, COERCION, OR INTERFERENCE ON THE PART OF THE PRODUCERS.

(2) NO PRODUCER SHALL INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR SAID RIGHTS, NOR DISCHARGE OR DISCRIMINATE AGAINST ANY EMPLOYEE FOR THE EXERCISE OF SUCH RIGHTS.

(3) NO EMPLOYEE OF ANY PRODUCER AND NO ONE SEEKING EMPLOYMENT WITH HIM OR IT SHALL BE REQUIRED AS A CONDITION OF EMPLOYMENT TO JOIN ANY ASSOCIATION OF EMPLOYEES FOR COLLECTIVE BARGAINING IN THE MANAGEMENT OF WHICH THE PRODUCER HAS ANY SHARE OF DIRECTION OR CONTROL.

AND SINCE THE LAW PROVIDES FOR THE CANCELATION AND TERMINATION OF ANY SUCH CONTRACT WHERE IT IS FOUND BY THE COMMISSION THAT THE COAL BEING FURNISHED THEREUNDER WAS PRODUCED BY A PRODUCER WHO FAILED TO ACCORD TO HIS OR ITS EMPLOYEES THE RIGHTS SET FORTH IN SAID SECTION 9 (A), IT IS THE RESPONSIBILITY OF THE CONTRACTOR TO ASCERTAIN WHETHER THE PRODUCER FROM WHICH IT OBTAINS COAL FOR DELIVERY TO THE GOVERNMENT COMPLIES WITH THE REQUIREMENTS OF SAID SECTION 9 (A).

THE SAID ACT OF APRIL 26, 1937, IMPOSES NO DUTY OR RESPONSIBILITY ON THIS OFFICE WITH RESPECT TO THE ENFORCEMENT OF THE TERMS OF SAID ACT, AND YOU ARE ADVISED THAT THIS OFFICE WILL NOT BE REQUIRED TO RAISE ANY QUESTION AS TO WHETHER ANY PARTICULAR CONTRACTOR COMPLIED, OR COMPLIES, WITH THE ABOVE -QUOTED TERMS OF SECTION 9 (A) OF THE ACT OF APRIL 26, 1937.