A-36167, JULY 14, 1931, 11 COMP. GEN. 19

A-36167, JULY 14, 1931, 11 COMP. GEN. 19

COMPENSATION - OVERTIME - IMMIGRATION SERVICE EMPLOYEES IT IS WITHIN ADMINISTRATIVE DISCRETION, AND NOT IN CONTRAVENTION OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467, AUTHORIZING PAYMENT OF OVERTIME COMPENSATION, OR ANY OTHER STATUTE, TO ISSUE A REGULATION TO THE EFFECT THAT EIGHT WORKING HOURS SHALL CONSTITUTE A WORKING DAY FOR INSPECTORS AND OTHER EMPLOYEES IN THE IMMIGRATION SERVICE PERFORMING DUTIES IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS, SUCH HOURS TO BE WITHIN NINE CONSECUTIVE HOURS, WITH NO EXCEPTION TO BE MADE WITHOUT AUTHORIZATION BY THE COMMISSIONER GENERAL OF IMMIGRATION WITH THE APPROVAL OF THE SECRETARY OF LABOR, SUCH APPROVAL TO BE GRANTED ONLY UNDER UNUSUAL OR EMERGENCY CIRCUMSTANCES AND WHERE DURING THE DAY THE DUTIES OF THE OFFICER OR EMPLOYEE ARE IN PERIODS WITH INTERVALS IN WHICH THERE ARE NO SUCH DUTIES TO BE PERFORMED. IF THE EXTRA COMPENSATION FOR OVERTIME OF INSPECTORS AND OTHER EMPLOYEES IN THE IMMIGRATION SERVICE PERFORMING OVERTIME SERVICE ALONG THE CANADIAN BORDER WITHIN THE MEANING OF SECTION 1 OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467, IS NOT PAYABLE BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF ANY VESSEL OR OTHER CONVEYANCE UNDER SECTION 2 OF THE STATUTE, THE GOVERNMENT IS LIABLE FOR PAYMENT OF THE OVERTIME AND THE APPROPRIATION FOR REGULATING IMMIGRATION IS AVAILABLE THEREFOR. 10 COMP. GEN. 487 AFFIRMED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, JULY 14, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 8, 1931, QUOTING THE QUESTIONS AND ANSWERS 1, 3, AND 4 APPEARING IN DECISION OF APRIL 22, 1931, 10 COMP. GEN. 487, 489, RELATIVE TO THE APPLICATION OF THE ACT OF MARCH 2, 1931, 46 STAT. 1467, PROVIDING FOR OVERTIME COMPENSATION OF INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE UNDER CERTAIN CONDITIONS, ALSO REFERRING TO A CONFERENCE HELD BETWEEN REPRESENTATIVES OF THE DEPARTMENT OF LABOR AND OF THIS OFFICE, AND CONCLUDING AS FOLLOWS:

THIS DEPARTMENT, IN ORDER TO CLARIFY THE PRESENT REGULATION UNDER THE OVERTIME ACT, PROPOSES TO ISSUE AN AMENDMENT TO THE EFFECT THAT EIGHT WORKING HOURS SHALL CONSTITUTE A WORKING DAY FOR INSPECTORS AND OTHER EMPLOYEES IN THE IMMIGRATION SERVICE PERFORMING DUTIES IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS, SUCH HOURS TO BE WITHIN NINE CONSECUTIVE HOURS, WITH NO EXCEPTION TO BE MADE WITHOUT AUTHORIZATION BY THE COMMISSIONER GENERAL OF IMMIGRATION WITH THE APPROVAL OF THE SECRETARY OF LABOR, AND SUCH APPROVAL MAY BE GRANTED ONLY UNDER UNUSUAL OR EMERGENT CIRCUMSTANCES, AND WHERE DURING THE DAY THE DUTIES OF THE OFFICER OR EMPLOYEE ARE IN PERIODS WITH INTERVALS IN WHICH THERE ARE NO SUCH DUTIES TO BE PERFORMED.

I RESPECTFULLY ASK WHETHER UNDER SUCH REGULATION IT IS YOUR HOLDING THAT INSPECTORS AND EMPLOYEES PERFORMING DUTY IN CONNECTION WITH THE EXAMINATION AND LANDING OF PASSENGERS AND CREWS ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT AND REQUIRED TO REMAIN ON DUTY BETWEEN 5 P.M. AND 8 A.M. FOR AS MUCH AS ONE HOUR IMMEDIATELY FOLLOWING AND IN ADDITION TO THE TRICK OF DUTY, WHATEVER IT MAY BE, FIXED UNDER THE PROPOSED REGULATION, ARE NOT ENTITLED TO EXTRA COMPENSATION, AND IF ENTITLED TO COMPENSATION FOR SUCH OVERTIME, I RESPECTFULLY ASK WHETHER IT MUST BE PAID BY THE GOVERNMENT IN CASES WHERE THE TRANSPORTATION INTERESTS ARE NOT LIABLE FOR THE PAYMENT THEREOF.

THE FIXING OF THE NUMBER OF HOURS OF WORK, OR THE LENGTH OF THE REGULAR "TRICK OF DUTY" FOR ANY AND ALL INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE IS, SUBJECT TO STATUTORY REQUIREMENTS, MATTER FOR ADMINISTRATIVE ACTION. IN ORDER PROPERLY TO APPLY THE STATUTE, IT WOULD APPEAR NECESSARY TO PRESCRIBE THE REGULAR WORKING HOURS FOR ALL INSPECTORS AND EMPLOYEES TO WHOM THE ACT APPLIES. THE REGULATION PROPOSED IN THE FIRST PARAGRAPH QUOTED FROM YOUR SUBMISSION WOULD APPEAR TO BE WITHIN YOUR ADMINISTRATIVE DISCRETION AND NOT IN CONTRAVENTION OF THE ACT OF MARCH 2, 1931, SUPRA, OR ANY OTHER STATUTE. OF COURSE, IT WOULD BE PROPER, UNDER SAID REGULATION, TO FIX THE HOURS BETWEEN WHICH THE REGULAR DUTY TRICK IS TO BE PERFORMED AS 10 A.M. AND 7 P.M., FOR INSTANCE, AT PORTS WHERE THE REGULAR WORK FALLS NORMALLY BETWEEN THOSE HOURS.

THE MATTER WHICH APPEARS TO HAVE GIVEN CONCERN IS THE POSSIBLE ADDITIONAL COST TO THE GOVERNMENT IN PUTTING THE ACT INTO OPERATION ALONG THE CANADIAN BORDER, THE VIEW HAVING BEEN EXPRESSED BY THE COMMISSIONER OF IMMIGRATION THAT THE STATUTE WAS NOT INTENDED TO IMPOSE UPON THE UNITED STATES ANY ADDITIONAL EXPENSE BUT THAT IN THOSE CASES WHERE THE EXTRA COMPENSATION FOR OVERTIME IS NOT PAYABLE BY THE TRANSPORTATION INTERESTS UNDER THE TERMS OF SECTION 2 OF THE STATUTE, OVERTIME IS NOT PAYABLE AT ALL EITHER BY THE GOVERNMENT OR BY THE TRANSPORTATION INTERESTS. IN THE DECISION OF APRIL 22, 1931, SUPRA, IT WAS HELD THAT IF THE EXTRA COMPENSATION FOR OVERTIME IS NOT PAYABLE BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF ANY VESSEL OR OTHER CONVEYANCE UNDER SECTION 2 OF THE STATUTE, THE GOVERNMENT IS LIABLE FOR PAYMENT OF THE OVERTIME, AND THAT THE APPROPRIATION FOR "REGULATING IMMIGRATION" CONTAINING AN ITEM FOR "SALARIES AND EXPENSES OF OFFICERS, CLERKS, AND EMPLOYEES APPOINTED TO ENFORCE SAID LAWS," IS AVAILABLE THEREFOR.

SECTION 1 OF THE STATUTE GRANTS THE OVERTIME COMPENSATION UNDER THE PRESCRIBED CONDITIONS TO ALL INSPECTORS AND EMPLOYEES OF THE IMMIGRATION SERVICE WHEREVER LOCATED.

SECTION 2 OF THE STATUTE PROVIDES AS FOLLOWS:

THE SAID EXTRA COMPENSATION SHALL BE PAID BY THE MASTER, OWNER, AGENT, OR CONSIGNEE OF SUCH VESSEL OR OTHER CONVEYANCE ARRIVING IN THE UNITED STATES FROM A FOREIGN PORT TO THE SECRETARY OF LABOR, WHO SHALL PAY THE SAME TO THE SEVERAL IMMIGRATION OFFICERS AND EMPLOYEES ENTITLED THERETO AS PROVIDED IN THIS ACT. SUCH EXTRA COMPENSATION SHALL BE PAID IF SUCH OFFICERS OR EMPLOYEES HAVE BEEN ORDERED TO REPORT FOR DUTY AND HAVE SO REPORTED, WHETHER THE ACTUAL INSPECTION OR EXAMINATION OF PASSENGERS OR CREW TAKES PLACE OR NOT: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO THE INSPECTION AT DESIGNATED PORTS OF ENTRY OF PASSENGERS ARRIVING BY INTERNATIONAL FERRIES, BRIDGES, OR TUNNELS, OR BY AIRCRAFT, RAILROAD TRAINS, OR VESSELS ON THE GREAT LAKES AND CONNECTING WATERWAYS, WHEN OPERATING ON REGULAR SCHEDULES.

THE EXCEPTION CONTAINED IN THIS PROVISO IS ONLY TO "THIS SECTION," AND NOT "TO THIS ACT.' SECTION 1 OF THE ACT WHICH GRANTS THE RIGHT TO THE OVERTIME IS NOT AFFECTED BY THE PROVISO TO SECTION 2. THEREFORE, IT WAS REASONABLE TO CONCLUDE THAT IF THE TRANSPORTATION INTERESTS ARE NOT LIABLE FOR THE EXTRA COMPENSATION AUTHORIZED UNDER SECTION 1, THE GOVERNMENT MUST BE.

THIS CONCLUSION IS BORNE OUT BY THE LEGISLATIVE HISTORY OF H.R. 3309, SEVENTY-FIRST CONGRESS, WHICH BECAME THE ACT IN QUESTION. THE BILL AS FIRST INTRODUCED IN THE HOUSE ON MAY 24, 1929, AND IN THE SENATE (S. 1126) MAY 7 (CALENDAR DAY, MAY 14), 1929, DID NOT CONTAIN THE PROVISO, WHICH WAS FIRST PROPOSED BY CONGRESSMAN JENKINS IN THE HOUSE ON JUNE 16, 1930, IN THE FOLLOWING TERMS:

PROVIDED, HOWEVER, THAT THE PROVISIONS OF THIS ACT RELATING TO EXTRA COMPENSATION SHALL NOT APPLY TO INTERNATIONAL BRIDGES, OR TO FERRIES AND RAILROAD TRAINS OPERATING ON REGULAR SCHEDULES.

THIS AMENDMENT WAS AGREED TO AND PASSED THE HOUSE. SEE PAGES 10907 TO 10909 OF THE CONGRESSIONAL RECORD OF JUNE 16, 1930. NOTE THAT THE PHRASE "THIS ACT" WAS USED. IF IT HAD BEEN ENACTED IN THAT FORM, THE PROVISO WOULD HAVE HAD THE EFFECT OF EXCLUDING FROM THE BENEFITS OF THE ACT ALL INSPECTORS AND EMPLOYEES ENGAGED ON OVERTIME WORK OF THE CHARACTER MENTIONED IN THE PROVISO. BUT WHEN THE PROPOSED AMENDMENT WAS CONSIDERED BEFORE THE SENATE COMMITTEE ON IMMIGRATION, HEARINGS WERE HELD DECEMBER 16, 1930, FROM WHICH IT CLEARLY APPEARS THAT THE QUESTION WAS FULLY CONSIDERED WHETHER THE GOVERNMENT SHOULD PAY FOR THE EXTRA COMPENSATION FOR OVERTIME IN THOSE CASES WHERE THE TRANSPORTATION INTERESTS WERE EXCEPTED FROM LIABILITY UNDER SECTION 2 OF THE ACT. SEE PAGES 5, 6, 17, 18, 21, AND 24. THIS CONSIDERATION OF THE QUESTION WAS REFLECTED IN THE HOUSE ON FEBRUARY 27, 1931 (P. 6274 OF THE CONGRESSIONAL RECORD OF THAT DATE), WHEN THE FOLLOWING SENATE AMENDMENT REVISING THE PROVISO TO SECTION 2 WAS PRESENTED BY MR. JENKINS AND CONCURRED IN BY THE HOUSE:

PAGE 3, LINE 4, AFTER "NOT," INSERT "PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO THE INSPECTION AT DESIGNATED PORTS OF ENTRY OF PASSENGERS ARRIVING BY INTERNATIONAL FERRIES, BRIDGES, OR TUNNELS, OR BY AIRCRAFT, RAILROAD TRAINS, OR VESSELS ON THE GREAT LAKES AND CONNECTING WATERWAYS, WHEN OPERATING ON REGULAR SCHEDULES.'

THE PROVISO AS THUS REVISED IS THAT APPEARING IN THE LAW. APPARENTLY, THE PHRASE "THIS ACT" WAS PURPOSELY CHANGED TO "THIS SECTION" IN ORDER THAT THE EXCEPTION WOULD BE LIMITED TO SECTION 2, AND WOULD NOT DEFEAT THE RIGHTS OF INSPECTORS AND EMPLOYEES ENGAGED ON WORK OF THE CHARACTER MENTIONED IN THE PROVISO TO OVERTIME COMPENSATION IF THE CONDITIONS PRESCRIBED IN SECTION 1 WERE MET.

THERE HAS NOT BEEN OVERLOOKED THE FACT THAT WHILE THE COST TO THE GOVERNMENT OF PUTTING THE NEW STATUTE INTO OPERATION WAS DISCUSSED AT THE HEARINGS, THE SAME APPARENTLY WAS NOT INCLUDED IN THE ESTIMATES ON WHICH THE APPROPRIATION ACTS FOR REGULATING IMMIGRATION FOR 1931 AND 1932 WERE BASED, AND THAT IT MAY BE THESE APPROPRIATIONS WILL BE INADEQUATE TO PAY FOR OVERTIME COMPENSATION OF INSPECTORS AND EMPLOYEES COMING WITHIN THE PROVISO TO SECTION 2 WITHOUT OTHERWISE CURTAILING EXPENDITURES UNDER THE APPROPRIATION, BUT THESE FACTS MAY NOT CONTROL THIS OFFICE IN CONSTRUING THE PROVISIONS OF THE BASIC LAW AS ENACTED. UNDER THE TERMS OF THE ANNUAL APPROPRIATION ACTS FOR REGULATING IMMIGRATION THEY ARE CLEARLY AVAILABLE FOR THE PAYMENT OF THE OVERTIME COMPENSATION FOR WHICH THE GOVERNMENT WILL BE LIABLE TO THE EXTENT OF THE AMOUNTS APPROPRIATED, AND ANY DEFICIENCIES ARISING BY REASON OF PUTTING THE ACT INTO OPERATION ARE TO BE OTHERWISE AVOIDED OR PROVIDED FOR.