That would make it impossible, Mr. Chairman, administratively, to make these determinations. Therefore, we have a law which Iwould be so difficult of administrativeness that the effectiveness of the law would be gone.

Senator ROBERTSON. That is on the assumption that every one of those communities you mention is going to have a Government contract?

Secretary TOBIN. Under the remaining provisions in the law that have not been changed by Senator Fulbright, the stipulation has to be written into the contract prior to the letting of the contract.

Now, under Senator Fulbright's amendments, all of the determinations that I have already made in 40 industries will be null and void because in the future under his amendments determinations will have to be made in each of the localities in which they are likely to bid because we do not know who is going to bid and no one is going to place a bid on any articles that are to be procured by the Federal Government-I was going to say until these wages have been determined.

However, what will happen is that they will make their bids in the event I am unable to make these determinations in 3,000 communities beforehand, and the task will be so colossal that the effect of the amendments is to completely nullify the Walsh-Healey Act as regards minimum wage rate determinations.

Senator FULBRIGHT. May I come back to the original question and will you answer it, please?

Do these amendments in any way affect the application of the Fair Labor Standards Act? That goes right on, the same; does it not?

Secretary TOBIN. It does not affect the Fair Labor Standards Act. Senator FULBRIGHT. That law sets a minimum wage. The act set

a minimum for the Nation; did it not? Do you contend that that still permits sweatshop labor to exist in these factories?

Secretary TOBIN. It certainly is going to make it impossible for manufacturers and dealers paying good wage rates to compete for Govern ment business.

Senator FULBRIGHT. You say, "Good wage rates." Do you interpret the Walsh-Healey Act as permitting you, not merely to set minimum rates, but good rates; is that right?

Secretary TOBIN. Well, in minimum wage rates you will find that the prevailing minimum-well, to give you an example, I have some figures here that will show you the great range of wages in many industries, and the determinations that are made by the Department so you can see the amount of protection.

Senator FULBRIGHT. Do you think it is a bad thing to have a range in wages; that all wages should be the same?

Secretary TOBIN. I do not think all wages should be the same. Senator FULBRIGHT. I believe you have misinterpreted and misconstrued the main intent of the act as it was passed. These amendments do not purport to repeal this act, although I think a good case might be made for that. We are not attempting to do that. As it has been applied by your Department, it does not follow the plain language of the bill as it was passed; particularly, for example, on this question of locality.

The legislative history is very clear as to what the Congress intended. If you say that is administratively impossible, I think you should have offered an amendment to make it administratively feasible,

if that is your contention, rather than ignoring and completely misconstruing the clear intent of the law.

Can you speak to that subject? Do you feel that the way you have interpreted locality is in accord with the law?

Secretary TOBIN. The question of locality has been determined by the Supreme Court of the United States.

Senator FULBRIGHT. That is not true, Mr. Tobin. Could you tell us where that is?

Secretary TOBIN. I am not a lawyer.

Senator FULBRIGHT. You make the statement that it was determined. Where was it determined?

Secretary TOBIN. I would like to have the Solicitor answer that question.

Senator FULBRIGHT. In what case, Mr. Solicitor?

Mr. RAY. I believe the Secretary is referring to the Lukens Steel case which in effect held that there was no way in which the Secretary's discretion as to what the term locality meant could be determined in the courts.

Senator FULBRIGHT. Does that say they have determined "locality" to mean what you said it means?

Mr. RAY. Not at all. It does make clear that the Secretary of Labor has discretion in that respect. He has some considerable margin of discretion in deciding what scope the term "locality" will be given. He also has discretion under that act probably to do what you would require him to do under the amendments which you propose.

Senator FULBRIGHT. Now we are getting down to the point. All the Lukens case decided was that the plaintiff had no standing in court because the Secretary has complete arbitrary discretion, if he chooses to use it. It cannot be disputed in the courts.

Now, my third amendment goes to the question of whether or not there should be judicial review and until that is put into the law we cannot determine whether or not he has been arbitrary. That is the fact of the matter.

Mr. RAY. That question might be raised if there is money collected from the contractor.

Senator FULBRIGHT. That is a very remote possibility because under your power of penalizing and blacklisting and so on you can prevent anybody's doing that.

We agree then, that the Lukens case does not confirm your interpretation of locality?

Mr. RAY. It does not disaffirm it, at least.

Senator FULBRIGHT. It does not affirm it. The Secretary said it has been sustained by the Supreme Court. That is not a true statement; is it?

Secretary TOBIN. Well, Senator, does this not seem to be a reasonable conclusion to arrive at: After all of the penalties that have been exacted against concerns over the country, any concern that has had a penalty exacted against it could have then proceeded to question the legality of my interpretation of locality. They then would have a perfect right to pursue their claims to the highest court in the land.

Am I right in that?

Mr. RAY. Probably, although they have not decided on that feature of it.

Senator FULBRIGHT. They have all the penalties and blacklisting to risk and when they get there they are confronted with the probability that the court will say that this contractor agreed to these conditions because he had to agree to to them as a precondition to the contract. That is what he would be faced with because you forced him to agree in writing to these conditions and the Government contract not being a matter of right, but merely privilege, I do not see how you can arrive at any other conclusion.

Secretary TOBIN. I am not a lawyer, Senator, but could I force someone to do something that was illegal?

Senator FULBRIGHT. You do not force them to take a contract, but anybody who wants a contract has to agree to these conditions. You do not force him.

Secretary TOBIN. But once they have agreed to those conditionsSenator FULBRIGHT. Then they cannot do anything about it. Secretary TоBIN. And those conditions were illegal to start with and I had established illegal conditions in that contract-I am not a lawyer, but I would have the feeling that then they would have the right to pursue their rights to the courts to determine whether or not I had misinterpreted the meaning of the word "locality."

Senator FULBRIGHT. We have gotten off the track on a strictly legal question. I was trying to pursue one question at a time.

That properly comes to the third one which merely provides for judicial review.

On the question of locality you have not had any court say that your interpretation of it is correct. Is that not true?

Secretary TOBIN. No one has attempted to, apart from the Lukens case in 1939, no one has questioned it.

Senator FULBRIGHT. That, in itself, is quite persuasive that they have no legal remedy because I can assure you there have been lots of complaints about it.

Secretary TOBIN. Would it be that the law has been administered so fairly that after they got good legal counsel the counsel had advised them that the law had been so perfectly administered that they had no legal appeal? I am inclined to believe that that is the answer. Senator FULBRIGHT. It could be that, but that would be most. unusual in administration I think.

Now, on that question of locality, let us take the exact language of the law. Do you not think it is quite clear that the locality that was intended, from the legislative history in the House particularly, where this bill was largely written, means just what my amendment says? I would like to read section 1 (b) for the record:

All persons employed by the contractor in the manufacturing or furnishing of materials, supplies, articles or equipment used in the performance of the contract will be paid without subsequent deduction or rebate on any account, not less than the minimum wages as determined by the Secretary of Labor to be the prevailing minimum wages for persons employed on similar work, or in the particular or similar industries or groups of industries currently operating in the locality in which the materials, supplies, articles or equipment are to be manufactured or furnished under said contract.

The key words are "currently operating in the locality."

Now, the Secretary has interpreted those words to mean that the United States is a locality, in effect.

I do not see, Mr. Secretary, how you can read that into that act.

Senator ROBERTSON. If the Senator from Arkansas will yield, you can bring it down to a pin point right in building operations around Washington.

The Secretary held that housing built close to the town of Warrenton, where there has been a number of houses built, was in the metropolitan area of the District of Columbia where we have the highest wage rates for carpenters, plumbers, and bricklayers in the Nation. In housing operations at Quantico where they had building operations, in Alexandria, in Arlington County and in Fairfax-big developments again it was the rates of the District of Columbia that applied.

Senator CAPEHART. Will you yield for just one question?

Senator FULBRIGHT. I want to be sure the committee understands what the sponsors of this legislation said about it at the time.

Senator CAPEHART. Let me have just one question, will you please? Mr. Secretary, have you ruled that "locality" means the entire United States?

Secretary TOBIN. The equivalent of it because the decisions in 36 cases out of 40 cover the United States.

Senator CAPEHART. The answer is that you have ruled that "locality" means the whole United States?

Secretary TOBIN. Yes, because if you will follow the rest of the language, it would be very difficult to administer the law and to accomplish the purposes that are declared here except by doing that. Senator FULBRIGHT. He says it is difficult, and theref re h just ignores the language of the law, and the intent.

This is what was said in the debate. Congressman Greenwood, who was in charge of the rule under which the Healey bill was considered in the House, said this:

This bill provides that they shall pay the prevailing wages in the community where the work is performed.

Mr. Healey, in presenting the bill, said this:

This bill does not set the standard for minimum wages by reference to the codes that obtain under NRA, but definitely sets as the prevailing wage for similar work, or in the industries currently operated in the locality in which the contract is to be performed.

Mr. Walter, who was on the Judiciary Committee which handled this bill at that time, said this:

We have had no difficulty in determining what the prevailing rates are under the Bacon-Davis Act. It has been a comparatively simple matter to go into each community in which Government buildings are being constructed and determine what every particular artisan is paid in that community.

The problem is the same here.

Mr. Citron, speaking in behalf of the bill, said as follows:

The bill merely provides that the Government shall have the right to refuseNow, I call special attention to this

to refuse the bids on all purchasers over 10,000 to those who paid less than the prevailing rate of wages in their community.

Mr. Bierman also commented:

I should like to ask one more question: In a small plant such as we have in northeastern Iowa, say a town of 4,500, who is going into that town and say what is the prevailing wage?

Mr. HEALY. The prevailing wage will be determined for the general locality. It will be, as I have stated, by investigation and hearing.

There are several other references along the same line, but there is no question that in the minds of the people who passed this bill and sponsored it, they were talking about the local community in which the contract is to be performed.

Now, the Secretary says it is difficult to administer. I say if that is true, rather than ignoring it because under the protection of the Lukens case he can ignore it, you ought to ask for an amendment, to say you can set industry-wide, Nation-wide appliance.

Do you say that is what would be in the minds of those who wrote this legislation?

Secretary TOBIN. Senator, at the time they did have the words "cities, towns, or villages," and they eliminated that language and changed it to "locality."

I am not thoroughly familiar with the legislative history of the whole law, but I think that if you will read beyond the words "locality:" the prevailing minimum wages for persons employed on similar work or in the particular or similar industries or group of industries currently operating in the locality in which the materials, supplies, articles or equipment are to be manufactured or furnished under said contract, the materials, supplies, or articles er equipment that are to be manufactured or furnished under said contract can be in any part of the United States.

Senator FULBRIGHT. It says "locality in which."

Secretary TOBIN. The stipulation has to be in the contract in advance.

Senator FULBRIGHT. What is that?

Secretary TOBIN. The stipulation as to the minimum wages has to be in the contract in advance, before the invitations for bids are extended. They cannot be established at a later date.

Senator FULBRIGHT. Well, that is true of all contracts made after you have made a determination, but until you have made a determination the contract is perfectly legal.

Secretary TOBIN. But then you would have no Walsh-Healey Act and no Minimum Wage Act.

Senator FULBRIGHT. What do you mean, "no Minimum Wage Act"? Do not keep bringing in the Minimum Wage Act, because that has no effect upon it.

Secretary TOBIN. You would have no prevailing minimum wage in the industry nor any stipulation setting forth the determination unless it was done before the contract was put out. If a determination is not made, in any field in which a determination is not made, wages are not part of the contract. Therefore, upon the enactment of your amendments, all of the existing determinations would be wiped out so that we would have no prevailing minimum wage in industry, and then we would be confronted with the problem of making the determinations under your amendment in each of the communities in the United States that would have an establishment that could bid. Senator FULBRIGHT. I do not think that is correct. I hate to differ with you on the interpretation of that. If these amendments are put into effect-if both of them are put into effect-the second one, of course, will limit the number of contracts subject to the act-because I think you have also extended your authority contrary to the exception in the act as to the standard articles purchased