A-44423, SEPTEMBER 8, 1932, 12 COMP. GEN. 336

A-44423: Sep 8, 1932

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ARE PLACED ON A 5-DAY WEEK FOR THE PERIOD THE ADMINISTRATIVE ORDER REMAINS IN EFFECT. ONE ELEVENTH OF THEIR COMPENSATION IS TO BE DEDUCTED AND IMPOUNDED UNDER THE PROVISIONS OF SECTION 101 (A) OF THE ECONOMY ACT. ALL OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF LABOR IN THE DISTRICT OF COLUMBIA WILL BE FURLOUGHED ON SATURDAY OF EACH WEEK FOR FORTY-EIGHT WEEKS. THIS METHOD OF CARRYING INTO EFFECT THE PROVISIONS OF THIS ACT WILL BE APPLIED TO THE FIELD SERVICE SO FAR AS PRACTICABLE. THE EFFECT THEREOF WAS TO PLACE THE SERVICE AFFECTED THEREBY ON A 5-DAY WEEK BASIS. THAT SUCH WAS ITS PURPOSE. THE SITUATION CREATED BY YOUR ORDER IS SUBSTANTIALLY THE SAME AS THAT PRESENTED BY THE CIVIL SERVICE COMMISSION.

A-44423, SEPTEMBER 8, 1932, 12 COMP. GEN. 336

ECONOMY ACT - 5-DAY WEEK - LABOR DEPARTMENT EMPLOYEES OF THE LABOR DEPARTMENT SUBJECT TO AN ADMINISTRATIVE ORDER REQUIRING WORK ONLY ON FIVE DAYS EACH WEEK FOR 48 WEEKS AND PERMITTING NO WORK ON SATURDAY MORNINGS DURING THAT PERIOD, ARE PLACED ON A 5-DAY WEEK FOR THE PERIOD THE ADMINISTRATIVE ORDER REMAINS IN EFFECT, AND ONE ELEVENTH OF THEIR COMPENSATION IS TO BE DEDUCTED AND IMPOUNDED UNDER THE PROVISIONS OF SECTION 101 (A) OF THE ECONOMY ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, SEPTEMBER 8, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 24, 1932, REQUESTING DECISION WHETHER DEDUCTIONS FROM COMPENSATION AND IMPOUNDING THEREOF SHOULD BE MADE PURSUANT TO SECTION 101 (A) OF THE ECONOMY ACT ESTABLISHING A 5-DAY WEEK, OR PURSUANT TO SECTION 101 (B) OF THE ECONOMY ACT REQUIRING LEGISLATIVE FURLOUGHS, AS APPLIED TO EMPLOYEES UNDER THE DEPARTMENT OF LABOR BY YOUR ADMINISTRATIVE ORDER ISSUED JULY 25, 1932, AS FOLLOWS:

IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (B), SECTION 101, OF PUBLIC NO. 212, ALL OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF LABOR IN THE DISTRICT OF COLUMBIA WILL BE FURLOUGHED ON SATURDAY OF EACH WEEK FOR FORTY-EIGHT WEEKS, BEGINNING WITH SATURDAY, JULY 30.

THIS METHOD OF CARRYING INTO EFFECT THE PROVISIONS OF THIS ACT WILL BE APPLIED TO THE FIELD SERVICE SO FAR AS PRACTICABLE, BUT SHALL NOT APPLY TO OFFICERS OR EMPLOYEES WHILE UNDER TRAVEL STATUS.

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE EXHAUSTIVE AND FORCEFUL ARGUMENT PRESENTED IN YOUR LETTER TO SUPPORT THE VIEW THAT YOUR ORDER DOES NOT ESTABLISH THE 5-DAY WEEK UNDER THE PROVISIONS OF SECTION 101 (A) OF THE ECONOMY ACT, AND THAT THE DEDUCTIONS AND IMPOUNDING OF COMPENSATION SHOULD BE MADE PURSUANT TO THE PROVISIONS OF SECTION 101 (B) OF THE ECONOMY ACT. I AM IMPELLED TO THE CONCLUSION, HOWEVER, THAT NOTWITHSTANDING THE WORDING OF THE ORDER QUOTED, THE EFFECT THEREOF WAS TO PLACE THE SERVICE AFFECTED THEREBY ON A 5-DAY WEEK BASIS, AND THAT SUCH WAS ITS PURPOSE. THAT HAVING BEEN DONE, THE STATUTE PRESCRIBES HOW THE DEDUCTIONS AND IMPOUNDINGS SHALL BE MADE.

THE SITUATION CREATED BY YOUR ORDER IS SUBSTANTIALLY THE SAME AS THAT PRESENTED BY THE CIVIL SERVICE COMMISSION, AND CONSIDERED IN DECISIONS OF AUGUST 1 AND 9, 1932, A-43622, 12 COMP. GEN. 149, 207; AND THAT PRESENTED BY THE FEDERAL FARM LOAN BOARD AND CONSIDERED IN DECISION OF AUGUST 23, 1932, AND ALSO THAT DURING THE PERIOD SUCH SITUATION EXISTS, IT IS NO DIFFERENT FROM THAT EXISTING IN THE GOVERNMENT PRINTING OFFICE, CONSIDERED IN DECISION OF JULY 8, 1932, A 43126, 12 COMP. GEN. 11, AND THAT EXISTING AT NAVY YARDS AND NAVAL STATIONS, CONSIDERED IN DECISION OF JULY 14, 1932, A-43185, 12 COMP. GEN. 30. IN THE DECISION OF AUGUST 23, 1932, TO THE FEDERAL FARM LOAN BOARD, A-44085, 12 COMP. GEN.273, IT WAS SAID:

THE PLAN PROPOSED BY THE CIVIL SERVICE COMMISSION AND ADOPTED BY THE FEDERAL FARM BOARD DIFFERS FROM THAT ADOPTED BY THE GOVERNMENT PRINTING OFFICE AND BY THE NAVY DEPARTMENT FOR NAVY YARDS AND NAVAL STATIONS, PRIMARILY AS TO THE PERIOD DURING THE YEAR THE PLAN IS TO OPERATE--- THE FORMER RUNNING ONLY A PORTION OF THE YEAR AND THE LATTER THE ENTIRE YEAR, IF NOT SOONER CHANGED--- AND AS TO THE NUMBER OF EMPLOYEES INVOLVED. CONSIDERABLE STRESS HAS BEEN PLACED ON THOSE MINOR DIFFERENCES, BUT THERE IS NOTHING IN THE WORDING OF SECTION 101 (A) OR (B), OR OTHERWISE IN THE ECONOMY ACT, REQUIRING THAT WHICHEVER OF THE THREE PLANS--- TO WIT, 5-DAY WEEK, LEGISLATIVE FURLOUGH, OR PERCENTAGE REDUCTION IN COMPENSATION--- IS ADOPTED, MUST CONTINUE THROUGHOUT THE ENTIRE FISCAL YEAR; NEITHER IS THERE ANYTHING IN THE LAW ON WHICH TO BASE A CONCLUSION THAT WHEN ONE OF THE THREE IS ADOPTED FOR ONLY A PORTION OF THE YEAR IT IS TO BE REGARDED FOR PAY AND IMPOUNDING PURPOSES AS ONE OF THE OTHER PLANS. FURTHERMORE, THERE IS NOTHING IN THE STATUTES REQUIRING THAT THE SAME PLAN BE ADOPTED FOR THE ENTIRE PERSONNEL OF AN OFFICE. THAT IS TO SAY, THERE IS NOTHING IN THE LAW TO PROHIBIT A DEPARTMENT OR ESTABLISHMENT FROM ADOPTING ONE PLAN FOR CERTAIN GROUPS AND ANOTHER PLAN FOR OTHER GROUPS OF ITS EMPLOYEES. NOTE THAT THE TERMS OF THE SECOND PROVISO TO SECTION 101 (A) AND OF THE FIRST PROVISO TO SECTION 101 (B) EACH AUTHORIZE THE PROVISIONS OF THE OTHER SUBSECTION TO BE APPLIED TO A SINGLE OFFICER OR EMPLOYEE. ALSO, SECTION 102 AND 105 (D) (6) WOULD PERMIT THE APPLICATION OF PERCENTAGE REDUCTION IN COMPENSATION, IN LIEU OF EITHER THE 5-DAY WEEK OR LEGISLATIVE FURLOUGH, TO INDIVIDUAL EMPLOYEES OR GROUPS OF EMPLOYEES, ALTHOUGH OTHER EMPLOYEES IN THE SAME OFFICE MIGHT BE OPERATING UNDER ONE OF THE OTHER PLANS.

WHEN INDIVIDUAL PER ANNUM OFFICERS OR EMPLOYEES, OR ANY NUMBER OF PER ANNUM OFFICERS OR EMPLOYEES, ARE REQUIRED BY ADMINISTRATIVE ACTION TO ABSENT THEMSELVES FROM THEIR PLACE OF DUTY ON SATURDAY--- THAT IS, WHEN SUCH ADMINISTRATIVE ACTION IS TAKEN SO AS TO PREVENT THEM GENERALLY FROM PERFORMING SERVICE ON SATURDAY, ONLY FIVE DAYS' SERVICE PER WEEK BEING REQUIRED OR PERMITTED--- UNQUESTIONABLY THERE IS THE ADOPTION OF THE 5-DAY WEEK, REQUIRING THE APPLICATION OF THE PROVISIONS OF SECTION 101 (A) OF THE STATUTE FOR DEDUCTING AND IMPOUNDING PURPOSES.

IT HAS BEEN SUGGESTED THAT SUBSECTION (A) OF SECTION 101 APPLIES TO PER DIEM EMPLOYEES, AND THAT AS PRACTICALLY NONE OF THE EMPLOYEES OF THE FEDERAL FARM BOARD ARE PER DIEM EMPLOYEES "THERE IS NOTHING IN THE NATURE OF THE DUTIES OF THESE EMPLOYEES TO RENDER ADVISABLE THE APPLICATION OF SUBSECTION (A).' IT IS TRUE THAT SUBSECTION (A) WAS INTENDED PRIMARILY FOR PER DIEM EMPLOYEES AND SUBSECTION (B) FOR PER ANNUM EMPLOYEES, BUT IT IS SPECIFICALLY PROVIDED THAT EITHER SUBSECTION MAY BE APPLIED TO EITHER CLASS OF EMPLOYEES, AND WHEN SUCH ACTION IS TAKEN THE DEDUCTING AND IMPOUNDING MUST BE IN ACCORDANCE WITH THE METHOD PRESCRIBED IN THE SUBSECTION APPLIED.

THE 5-DAY WEEK PLAN IS PROVIDED FOR ONLY IN SECTION 101 (A) OF THE ECONOMY ACT, AND UNDER NO RECOGNIZED RULE FOR THE CONSTRUCTION OF STATUTES CAN THERE BE ESTABLISHED AN INTENT ON THE PART OF THE CONGRESS TO PERMIT THE ADOPTION OF THE 5-DAY WEEK UNDER SECTION 101 (B) ALSO. THERE IS NOTED YOUR REFERENCE TO CERTAIN STATEMENTS MADE IN DEBATE IN THE CONGRESS AS SHOWING SUCH AN INTENT. I WOULD NOT REGARD THE STATEMENTS REFERRED TO AS INDICATING SUCH AN INTENT, BUT EVEN IF SUCH WERE THEIR PURPORT THERE IS NOTHING TO REQUIRE THEIR CONSIDERATION HERE. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO THE FOLLOWING STATEMENT MADE BY CHIEF JUSTICE TANEY IN DELIVERING THE OPINION OF THE SUPREME COURT OF THE UNITED STATES IN ALDRIDGE ET AL. V. WILLIAMS (3 HOW. 9, 24):

IN EXPOUNDING THIS LAW THE JUDGMENT OF THE COURT CAN NOT, IN ANY DEGREE, BE INFLUENCED BY THE CONSTRUCTION PLACED UPON IT BY INDIVIDUAL MEMBERS OF CONGRESS IN THE DEBATE WHICH TOOK PLACE ON ITS PASSAGE, NOR BY THE MOTIVES OR REASONS ASSIGNED BY THEM FOR SUPPORTING OR OPPOSING AMENDMENTS THAT WERE OFFERED.

THERE IS NOTED YOUR STATEMENT THAT THE APPLICATION OF SECTION 101 (A), RATHER THAN 101 (B), OF THE ECONOMY ACT, TO THE EMPLOYEES AFFECTED BY YOUR ORDER ADOPTING A 5-DAY WEEK RESULTS IN INEQUALITIES, REFERENCE BEING MADE TO THE CASE OF KNOWLTON V. MOORE, 178 U.S. 41. THE PRINCIPLE STATED IN THAT DECISION DOES NOT APPEAR TO HAVE ANY APPLICATION HERE. INEQUALITIES WOULD MOST CERTAINLY RESULT IF THE VIEW WERE ADOPTED THAT THERE SHOULD BE DEDUCTED ONLY 8 1/3 PERCENT, OR ONE-TWELFTH, FROM THE COMPENSATION OF EMPLOYEES UNDER THE DEPARTMENT OF LABOR PLACED ON A 5-DAY WEEK, WHILE EMPLOYEES UNDER OTHER BRANCHES OF THE FEDERAL SERVICE ON A 5-DAY WEEK, EITHER FOR THE ENTIRE YEAR OR A PORTION THEREOF,ARE REQUIRED TO HAVE ONE- ELEVENTH OF THEIR COMPENSATION DEDUCTED AND IMPOUNDED. FURTHERMORE, A DAY'S WORK IN THE DEPARTMENTS NORMALLY CONSISTS OF SEVEN HOURS FOR FIVE DAYS AND FOR FOUR HOURS FOR SATURDAY. HENCE, SUSPENSION OF WORK FOR 48 SATURDAYS INVOLVES A LOSS TO THE GOVERNMENT OF 192 HOURS' WORK WHEREAS A SUSPENSION FOR 24 OTHER WORKING DAYS WOULD INVOLVE A LOSS OF ONLY 168 HOURS.

ANSWERING SPECIFICALLY THE QUESTION PRESENTED I HAVE TO ADVISE THAT ONE- ELEVENTH MUST BE DEDUCTED AND IMPOUNDED FROM THE COMPENSATION OF ALL EMPLOYEES UNDER THE DEPARTMENT OF LABOR AFFECTED BY YOUR ORDER OF JULY 25, 1932.

YOUR REQUEST TO BE ADVISED, ALSO, WHETHER THERE SHOULD BE SOME ADJUSTMENT FOR JULY, DURING WHICH THE 5 1/2-DAY WEEK WAS IN OPERATION. AS YOU STATE THAT 8 1/3 PERCENT, OR ONE-TWELFTH, HAS BEEN DEDUCTED FROM THE COMPENSATION OF ALL OF THE EMPLOYEES COVERING JULY, NO ADJUSTMENT IS REQUIRED OR AUTHORIZED, IT BEING UNDERSTOOD THAT DEDUCTION WILL BE MADE AT THE RATE OF ONE-ELEVENTH OF EACH MONTH'S SALARY FOR THE PERIOD BEGINNING AUGUST 1, 1932.