B-5383, AUGUST 16, 1939, 19 COMP. GEN. 208

B-5383: Aug 16, 1939

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THAT A BITUMINOUS COAL CONTRACTOR IS IN VIOLATION OF THE EMPLOYEE ORGANIZING AND BARGAINING PROVISIONS OF SECTION 9 (A) OF THE BITUMINOUS COAL ACT OF 1937. THE FINDINGS OF THE COMMISSION HAVE BEEN DULY CERTIFIED TO THE DEPARTMENT CONCERNED. THE FACT THAT THE CONTRACT FOR PURCHASE OF COAL BY THE GOVERNMENT WAS AWARDED PRIOR TO THE DATE OF DETERMINATION OF SAID VIOLATION WOULD APPEAR TO HAVE NO BEARING ON THE STATUTORY REQUIREMENT THAT THE CONTRACT BE CANCELLED AND TERMINATED. AS FOLLOWS: THERE IS ATTACHED FOR YOUR INFORMATION COPY OF LETTER DATED JULY 15. UNDER WHICH ORDERS HAVE ALREADY BEEN PLACED AND SOME DELIVERIES ACCOMPLISHED. IN VIEW OF THE FACT THAT THE CONTRACT WAS AWARDED PRIOR TO JUNE 28.

B-5383, AUGUST 16, 1939, 19 COMP. GEN. 208

CONTRACTS - TERMINATION - BITUMINOUS COAL ACT VIOLATIONS WHERE THE NATIONAL BITUMINOUS COAL COMMISSION HAS DETERMINED, APPARENTLY IN STRICT CONFORMITY WITH PROCEDURE CONTEMPLATED BY STATUTE, THAT A BITUMINOUS COAL CONTRACTOR IS IN VIOLATION OF THE EMPLOYEE ORGANIZING AND BARGAINING PROVISIONS OF SECTION 9 (A) OF THE BITUMINOUS COAL ACT OF 1937, 50 STAT. 87, AND THE FINDINGS OF THE COMMISSION HAVE BEEN DULY CERTIFIED TO THE DEPARTMENT CONCERNED, THE FACT THAT THE CONTRACT FOR PURCHASE OF COAL BY THE GOVERNMENT WAS AWARDED PRIOR TO THE DATE OF DETERMINATION OF SAID VIOLATION WOULD APPEAR TO HAVE NO BEARING ON THE STATUTORY REQUIREMENT THAT THE CONTRACT BE CANCELLED AND TERMINATED, BUT PAYMENTS MAY BE MADE THEREUNDER FOR ANY DELIVERIES EFFECTED PRIOR TO DATE OF TERMINATION.

COMPTROLLER GENERAL BROWN TO THE POSTMASTER GENERAL, AUGUST 16, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 3, 1939, AS FOLLOWS:

THERE IS ATTACHED FOR YOUR INFORMATION COPY OF LETTER DATED JULY 15, 1939, ADDRESSED TO THIS DEPARTMENT BY THE DIRECTOR OF THE BITUMINOUS COAL DIVISION OF THE DEPARTMENT OF THE INTERIOR, REGARDING A CONTRACT FOR COAL ENTERED INTO BETWEEN THIS DEPARTMENT AND THE WEST KENTUCKY COAL COMPANY UNDER DATE OF JUNE 1, 1939, UNDER WHICH ORDERS HAVE ALREADY BEEN PLACED AND SOME DELIVERIES ACCOMPLISHED.

IN VIEW OF THE FACT THAT THE CONTRACT WAS AWARDED PRIOR TO JUNE 28, 1939, THE DATE OF THE COMMISSION'S FINDINGS, WILL YOU PLEASE FURNISH ME WITH A DECISION AS TO WHETHER THE DEPARTMENT SHOULD CONTINUE TO ABIDE BY THE CONTRACT.

AN EARLY REPLY WILL BE APPRECIATED AS SEVERAL ORDERS ARE NOW OUTSTANDING AND PAYMENTS FOR DELIVERIES ALREADY ACCOMPLISHED ARE BEING WITHHELD PENDING YOUR DECISION.

THE LETTER OF JULY 15, 1939, FROM THE DIRECTOR, BITUMINOUS COAL DIVISION, AS MENTIONED IN YOUR SUBMISSION, IS IN PART AS FOLLOWS:

I AM ATTACHING HEREWITH COPY OF A LETTER RECEIVED FROM A. D. LEWIS, ASSISTANT TO THE PRESIDENT OF THE UNITED MINE WORKERS OF AMERICA, AND A COPY OF A TELEGRAM TO MR. LEWIS FROM USED J. MORGAN, PRESIDENT OF DISTRICT NO. 23 OF THAT SAME ORGANIZATION.

THESE DOCUMENTS CHARGE THAT THE WEST KENTUCKY COAL COMPANY RECENTLY RECEIVED A CONTRACT TO SUPPLY COAL FOR POST OFFICES, IN VIOLATION OF SECTION 9 (B) OF THE BITUMINOUS COAL ACT OF 1937. * * *

ON JUNE 28, 1939, THE BITUMINOUS COAL COMMISSION FOUND THAT THE WEST KENTUCKY COAL COMPANY WAS IN VIOLATION OF SECTION 9 (A) OF THE ACT, AT THE TIMES AND IN THE MANNER SPECIFIED IN THOSE FINDINGS. THE FINDINGS WERE CERTIFIED TO YOUR DEPARTMENT BY THE THEN SECRETARY OF THE BITUMINOUS COAL COMMISSION, UNDER DATE OF JUNE 29, 1939.

YOU WILL NOTICE FROM THE ATTACHED LETTER THAT MR. LEWIS REQUESTS THIS DIVISION TO INVESTIGATE THIS MATTER. IN THE OPINION OF THE GENERAL COUNSEL OF THIS DIVISION, SECTION 9 (C) OF THE ACT PROVIDES THAT, IF ANY DEPARTMENT OR AGENCY OF THE UNITED STATES GOVERNMENT SHALL HAVE ENTERED INTO A CONTRACT TO PURCHASE COAL DESPITE THE PROHIBITION OF SECTION 9 (B), SUCH CONTRACT MUST BE CANCELLED AND TERMINATED, IN THE EVENT THAT THIS DIVISION FINDS THAT THE PRODUCER OF SUCH COAL IS NOT COMPLYING WITH SECTION 9 (A) AND CERTIFIES SUCH FINDINGS TO THE DEPARTMENT OR AGENCY CONCERNED.

WILL YOU KINDLY ADVISE ME OF THE FACTS RELATING TO THE ALLEGED CONTRACTS AND SHIPMENTS OF COAL? WE ARE ESPECIALLY INTERESTED IN THE DATE THE CONTRACT WAS AWARDED, THE DATES OF DELIVERY, AND THE TONNAGES INVOLVED, AS WELL AS IN ASCERTAINING WHETHER YOUR DEPARTMENT PROPOSES TO MAKE ANY INVESTIGATION OR TO TAKE ANY ACTION WITH RESPECT TO THIS MATTER IN LIGHT OF THE PROVISIONS OF SECTION 9 (B) OF THE ACT.

SECTION 9 OF THE BITUMINOUS COAL ACT OF 1937, 50 STAT. 87, PROVIDES, IN PART, AS FOLLOWS:

SEC. 9. (A) 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.

(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.

UNDER DATE OF JUNE 28, 1939, THE SECRETARY OF THE NATIONAL BITUMINOUS COAL COMMISSION ISSUED A CERTIFICATE AS FOLLOWS:

I HEREBY CERTIFY THAT I, F. W. MCCULLOUGH, SECRETARY OF THE NATIONAL BITUMINOUS COAL COMMISSION, CUSTODIAN OF ITS DOCKETS, ORDERS, DECISIONS, RECORDS, AND FILES; THAT ON THE 28TH DAY OF JUNE 1939, THE COMMISSION ADOPTED AN ORDER AND FINDINGS AND CONCLUSIONS IN THE MATTER OF THE WEST KENTUCKY COAL COMPANY--- COMPLAINT OF THE UNITED MINE WORKERS OF AMERICA, DISTRICT NO. 23, ALLEGING VIOLATION OF SECTION 9 OF THE BITUMINOUS COAL ACT OF 1937, DOCKET NO. 602-FD, DETERMINING THAT WEST KENTUCKY COAL COMPANY IS IN VIOLATION OF SECTION 9 OF SAID ACT; AND THAT THE ATTACHED COPIES OF THE ORDER AND THE FINDINGS AND CONCLUSION OF THE COMMISSION ARE TRUE AND CORRECT COPIES.

IN WITNESS HEREOF I HAVE HEREUNTO SET MY HAND, AND CAUSED THE SEAL OF THE NATIONAL BITUMINOUS COAL COMMISSION TO BE AFFIXED, IN THE CITY OF WASHINGTON, DISTRICT OF COLUMBIA, ON THIS 28TH DAY OF JUNE 1939.

THE REQUIREMENTS OF SUBSECTION (B) OF SECTION 9 OF THE BITUMINOUS COAL ACT OF 1937, SUPRA, ARE CLEAR THAT NO COAL TO BE PROCURED UNDER CONDITIONS SUCH AS ARE HERE INVOLVED SHALL BE PURCHASED BY ANY DEPARTMENT OF THE GOVERNMENT FROM A 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.' UNDER THE PROCEDURE STIPULATED IN SUBSECTION (C), THE COMMISSION IS AUTHORIZED TO HOLD A HEARING TO DETERMINE WHETHER SAID "PRODUCER" IS COMPLYING WITH THE PROVISIONS OF SUBSECTION (A), SUPRA. UPON A FINDING BY THE COMMISSION THAT SAID PRODUCER IS NOT COMPLYING WITH SUCH PROVISIONS AND A CERTIFICATION THEREOF TO THE DEPARTMENT CONCERNED, IT IS A MANDATORY REQUIREMENT OF THE ACT THAT " SUCH DEPARTMENT OR AGENCY SHALL THEREUPON DECLARE THE CONTRACT FOR THE SUPPLY OF THE COAL OF SUCH PRODUCER TO BE CANCELED AND TERMINATED.'

THE EVIDENCE NOW OF RECORD ESTABLISHES THAT THE NATIONAL BITUMINOUS COAL COMMISSION DETERMINED UNDER DATE OF JUNE 28, 1939, AND APPARENTLY IN STRICT CONFORMITY WITH PROCEDURE CONTEMPLATED BY STATUTE, THAT THE WEST KENTUCKY COAL CO. IS IN VIOLATION OF SECTION 9, SUPRA. ALSO, IT APPEARS THAT THE FINDINGS OF THE COMMISSION WERE DULY CERTIFIED TO YOUR DEPARTMENT. THE FACT THAT THE CONTRACT WAS AWARDED JUNE 1, 1939, WHICH WAS PRIOR TO DATE OF DETERMINATION OF SAID VIOLATION, WOULD APPEAR TO HAVE NO BEARING ON THE STATUTORY REQUIREMENT THAT THE CONTRACT BE CANCELED AND TERMINATED.

ACCORDINGLY, YOU ARE ADVISED THAT IN CONFORMITY WITH THE TERMS OF THE QUOTED STATUTE THE NECESSARY STEPS SHOULD BE TAKEN TO TERMINATE THE CONTRACT IN QUESTION. HOWEVER, PAYMENTS MAY BE MADE THEREUNDER FOR ANY DELIVERIES EFFECTED PRIOR TO DATE OF TERMINATION.