A-50072, AUGUST 2, 1933, 13 COMP. GEN. 35

A-50072: Aug 2, 1933

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NATIONAL INDUSTRIAL RECOVERY ACT - COMPENSATION TO EMPLOYEES PAID FROM ALLOTTED FUNDS EMPLOYEES OF THE FEDERAL GOVERNMENT ENGAGED ON CONSTRUCTION PROJECTS FINANCED FROM FUNDS ALLOTTED UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT ARE SUBJECT TO THE RESTRICTIONS AND LIMITATIONS PLACED ON THE EMPLOYMENT OF PERSONNEL BY SECTION 206 OF THE ACT. IF EXISTING PERSONNEL OF THE GOVERNMENT ARE ENGAGED IN CONNECTION WITH INDUSTRIAL RECOVERY ACT ON SUBSTANTIALLY THE SAME DUTIES AS PREVIOUSLY PERFORMED. THE COMPENSATION OF NEW PERSONNEL ENGAGED DIRECTLY AND EXCLUSIVELY ON CONSTRUCTION WORK UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT IS NOT SUBJECT TO THE 15 PERCENT REDUCTION. AS FOLLOWS: CONSIDERATION IS BEING GIVEN AT THIS TIME TO THE DETERMINATION OF MINIMUM WAGE RATES FOR GOVERNMENT EMPLOYEES ON HIRED LABOR WORK WHICH MAY ACT APPROVED JUNE 16.

A-50072, AUGUST 2, 1933, 13 COMP. GEN. 35

NATIONAL INDUSTRIAL RECOVERY ACT - COMPENSATION TO EMPLOYEES PAID FROM ALLOTTED FUNDS EMPLOYEES OF THE FEDERAL GOVERNMENT ENGAGED ON CONSTRUCTION PROJECTS FINANCED FROM FUNDS ALLOTTED UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT ARE SUBJECT TO THE RESTRICTIONS AND LIMITATIONS PLACED ON THE EMPLOYMENT OF PERSONNEL BY SECTION 206 OF THE ACT, INCLUDING THE 30 HOUR WEEK. IF EXISTING PERSONNEL OF THE GOVERNMENT ARE ENGAGED IN CONNECTION WITH INDUSTRIAL RECOVERY ACT ON SUBSTANTIALLY THE SAME DUTIES AS PREVIOUSLY PERFORMED, THEIR COMPENSATION, IF CONTROLLED BY THE CLASSIFICATION ACT OR ANY OTHER EXISTING LAW, ETC., REMAINS SUBJECT TO THE 15 PERCENT REDUCTION, BUT THE COMPENSATION OF NEW PERSONNEL ENGAGED DIRECTLY AND EXCLUSIVELY ON CONSTRUCTION WORK UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT IS NOT SUBJECT TO THE 15 PERCENT REDUCTION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, AUGUST 2, 1933:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 18, 1933, AS FOLLOWS:

CONSIDERATION IS BEING GIVEN AT THIS TIME TO THE DETERMINATION OF MINIMUM WAGE RATES FOR GOVERNMENT EMPLOYEES ON HIRED LABOR WORK WHICH MAY ACT APPROVED JUNE 16, 1933, AND WHICH MAY BE PROSECUTED BY THIS DEPARTMENT WITH FUNDS PROVIDED UNDER THE TERMS OF THAT ACT.

SECTION 206 (3) OF THE ACT REFERRED TO CONTAINS THE PROVISION "THAT ALL EMPLOYEES SHALL BE PAID JUST AND REASONABLE WAGES WHICH SHALL BE COMPENSATION SUFFICIENT TO PROVIDE, FOR THE HOURS OF LABOR AS LIMITED, A STANDARD OF LIVING IN DECENCY AND COMFORT.' IT IS NECESSARY IN ORDER TO DETERMINE "JUST AND REASONABLE WAGES," THAT THIS DEPARTMENT KNOW WHETHER THE COMPENSATION AS FIXED BY THE DEPARTMENT IS TO BE SUBJECT TO THE FIFTEEN PERCENT CUT APPLICABLE TO THE COMPENSATION OF GOVERNMENT EMPLOYEES IN GENERAL. IT IS NOT POSSIBLE TO CONSIDER THE RATES PRESCRIBED IN THE CLASSIFICATION ACT OF 1923, AND AMENDATORY ACTS, AS APPLICABLE TO THE POSITIONS SINCE THE RATES PROVIDED IN THE CLASSIFICATION ACT AS AMENDED, ARE NOT BASED ON THIRTY HOUR WEEK EMPLOYMENT, WHEREAS THE NATIONAL RECOVERY ACT LIMITS EMPLOYMENT (EXCEPT IN ADMINISTRATIVE, EXECUTIVE, AND SUPERVISORY POSITIONS), SO FAR AS PRACTICABLE AND FEASIBLE, TO THIRTY HOURS PER WEEK.

A RULING IS REQUESTED THEREFORE AS TO WHETHER THE MINIMUM WAGE RATES OF EMPLOYEES CARRIED ON THE ROLLS OF THE WAR DEPARTMENT BUT ENGAGED ON RECOVERY ACT PROJECTS AND WHOSE EMPLOYMENT IS SUBJECT TO THE PROVISIONS OF SECTION 206 OF THAT ACT SHOULD BE REGARDED AS GROSS RATES SUBJECT TO THE FIFTEEN PERCENT REDUCTION, OR WHETHER THEY WILL BE UNAFFECTED BY THE ACT OF MARCH 20, 1933, AND MAY THUS BE CONSIDERED AS THE RATES ACTUALLY TO BE PAID.

FOUR CLASSES OF EMPLOYEES WILL BE AFFECTED AND A RULING IS DESIRED AS TO WHETHER THE FIFTEEN PERCENT DEDUCTION APPLIES TO ANY OR ALL OF THESE CLASSES.

(A) EMPLOYEES ENGAGED FOR OR ASSIGNED TO THE WORK UNDER THE RECOVERY ACT, ON THE THIRTY-HOUR WEEK BASIS, WHO HAVE HERETOFORE SERVED ON THE BASIS OF A LONGER WEEK;

(B) EMPLOYEES ENGAGED FOR THE WORK UNDER THE RECOVERY ACT ON A THIRTY- HOUR WEEK BASIS, WHO HAVE NOT HERETOFORE BEEN EMPLOYED;

(C) EMPLOYEES SERVING IN A SUPERVISORY CAPACITY WHO ARE NOT LIMITED TO THIRTY-HOUR WEEK EMPLOYMENT AND WHO HAVE BEEN REASSIGNED TO WORK UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT;

(D) EMPLOYEES WHO HAVE BEEN APPOINTED FOR THE WORK UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT BUT NOT SUBJECT TO THE THIRTY-HOUR WEEK UNDER THE EXEMPTIONS PERMISSIBLE IN THE ACT, AND WHO HAVE NOT PREVIOUSLY BEEN EMPLOYED BY THE GOVERNMENT.

INASMUCH AS IT IS IMPORTANT THAT THE MINIMUM WAGE SCALES FOR THIS CLASS OF WORK UNDER THIS DEPARTMENT BE DETERMINED AS SOON AS POSSIBLE, IT IS REQUESTED THAT ACTION BE EXPEDITED.

SECTION 206 OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 204, FROM WHICH YOU QUOTE, PROVIDES AS FOLLOWS:

ALL CONTRACTS LET FOR CONSTRUCTION PROJECTS AND ALL LOANS AND GRANTS PURSUANT TO THIS TITLE SHALL CONTAIN SUCH PROVISIONS AS ARE NECESSARY TO INSURE (1) THAT NO CONVICT LABOR SHALL BE EMPLOYED ON ANY SUCH PROJECT; (2) THAT (EXCEPT IN EXECUTIVE, ADMINISTRATIVE, AND SUPERVISORY POSITIONS), SO FAR AS PRACTICABLE AND FEASIBLE, NO INDIVIDUAL DIRECTLY EMPLOYED ON ANY SUCH PROJECT SHALL BE PERMITTED TO WORK MORE THAN THIRTY HOURS IN ANY ONE WEEK; (3) THAT ALL EMPLOYEES SHALL BE PAID JUST AND REASONABLE WAGES WHICH SHALL BE COMPENSATION SUFFICIENT TO PROVIDE, FOR THE HOURS OF LABOR AS LIMITED, A STANDARD OF LIVING IN DECENCY AND COMFORT; (4) THAT IN THE EMPLOYMENT OF LABOR IN CONNECTION WITH ANY SUCH PROJECT, PREFERENCE SHALL BE GIVEN, WHERE THEY ARE QUALIFIED, TO EX-SERVICE MEN WITH DEPENDENTS, AND THEN IN THE FOLLOWING ORDER: (A) TO CITIZENS OF THE UNITED STATES AND ALIENS WHO HAVE DECLARED THEIR INTENTION OF BECOMING CITIZENS, WHO ARE BONA FIDE RESIDENTS OF THE POLITICAL SUBDIVISION AND/OR COUNTY IN WHICH THE WORK IS TO BE PERFORMED AND (B) TO CITIZENS OF THE UNITED STATES AND ALIENS WHO HAVE DECLARED THEIR INTENTION OF BECOMING CITIZENS, WHO ARE BONA FIDE RESIDENTS OF THE STATE, TERRITORY, OR DISTRICT IN WHICH THE WORK IS TO BE PERFORMED: PROVIDED, THAT THESE PREFERENCES SHALL APPLY ONLY WHERE SUCH LABOR IS AVAILABLE AND QUALIFIED TO PERFORM THE WORK TO WHICH THE EMPLOYMENT RELATES; AND (5) THAT THE MAXIMUM OF HUMAN LABOR SHALL BE USED IN LIEU OF MACHINERY WHEREVER PRACTICABLE AND CONSISTENT WITH SOUND ECONOMY AND PUBLIC ADVANTAGE.

THIS SECTION IS PRIMARILY APPLICABLE TO CONTRACTORS' EMPLOYEES, BUT IN DECISION OF SEPTEMBER 17, 1932, 12 COMP. GEN. 359, 361, WHEREIN WAS CONSIDERED THE "EMERGENCY RELIEF AND CONSTRUCTION ACT OF 1932" CONTAINING SOME OF THE SAME LIMITING PROVISIONS APPEARING IN THE ABOVE QUOTED STATUTE, IT WAS STATED:

SINCE THERE IS NO PROHIBITION AGAINST THE DIRECT EMPLOYMENT OF PERSONNEL BY THE GOVERNMENT UNDER THE APPROPRIATION ITEM "IMPROVEMENT OF THE NATIONAL FORESTS," THERE IS LIKEWISE NO PROHIBITION AGAINST DIRECT EMPLOYMENT OF PERSONNEL BY THE GOVERNMENT UNDER THE APPROPRIATION ITEM PROVIDED IN SECTION 301 (A) (2) (B) OF THE EMERGENCY RELIEF AND CONSTRUCTION ACT OF 1932. THAT IS, THE PROJECTS THEREIN AUTHORIZED MAY BE EXECUTED EITHER UNDER PRIVATE CONTRACTS OR BY DIRECT EMPLOYMENT OF PERSONNEL (LABOR) BY THE GOVERNMENT.

HOWEVER, CONTRARY TO THE UNDERSTANDING INDICATED IN YOUR SUBMISSION, THE 30-HOUR WEEK IS APPLICABLE TO BOTH CLASSES OF EMPLOYMENT. NOTE THAT THE SECOND CLAUSE OF SECTION 307, CONTAINING THE 30-HOUR WEEK LIMITATION, IS BROADLY STATED, AND PROVIDES THAT "/EXCEPT IN EXECUTIVE, ADMINISTRATIVE, AND SUPERVISORY POSITIONS) SO FAR AS PRACTICABLE, NO INDIVIDUAL DIRECTLY EMPLOYED ON ANY SUCH PROJECT SHALL BE PERMITTED TO WORK MORE THAN 30 HOURS IN ANY ONE WEEK.' OBVIOUSLY, THE PURPOSE OF THIS RESTRICTION IS TO PROVIDE FOR AS MANY JOBS AS POSSIBLE FROM THE FUNDS APPROPRIATED, WHICH PURPOSE MAY BE DEFEATED IF THE RESTRICTION WERE NOT APPLIED TO PERSONNEL EMPLOYED DIRECTLY BY THE GOVERNMENT. YOU ARE ADVISED, THEREFORE, THAT IN SO FAR AS PRACTICABLE, THE 30-HOUR WEEK IS REQUIRED TO BE ADOPTED FOR FEDERAL PERSONNEL--- WITH THE EXCEPTIONS NOTED IN THE STATUTE--- EMPLOYED AND PAID UNDER THE EMERGENCY RELIEF AND CONSTRUCTION ACT APPROPRIATIONS, SUPRA, AND EITHER OF THE TWO PLANS SUGGESTED BY YOU WOULD BE AUTHORIZED.

BY THE SAME REASONING IT IS CONCLUDED TO HAVE BEEN THE INTENTION OF THE CONGRESS THAT ALL OF THE LIMITATIONS AND RESTRICTIONS ON EMPLOYMENT STATED IN THE QUOTED STATUTE ARE FOR APPLICATION TO FEDERAL PERSONNEL AS WELL AS CONTRACTORS' PERSONNEL ENGAGED ON WORK UNDER SUCH PROJECTS.

IN SEVERAL RECENT DECISIONS OF THIS OFFICE IT HAS BEEN HELD THAT THE 15 PERCENT REDUCTION IS NOT APPLICABLE TO OFFICERS AND EMPLOYEES NEWLY APPOINTED OR EMPLOYED UNDER AUTHORITY OF EMERGENCY STATUTES CONTAINING PROVISIONS EXEMPTING SUCH PERSONNEL FROM THE PROVISIONS OF THE CIVIL SERVICE LAWS AND THE SALARY PROVISIONS OF THE CLASSIFICATION ACT, FOR THE REASON THAT THERE IS NO BASIC COMPENSATION FIXED BY LAW OR REGULATION, ETC., AS REQUIRED BY SECTION 2, TITLE II, OF THE ACT OF MARCH 20, 1933, ON WHICH THE 15 PERCENT REDUCTION COULD BE BASED. SEE DECISIONS OF JUNE 20, 1933, A-49565, 12 COMP. GEN. 655; JUNE 28, 1933, A-49652; JULY 6, 1933, A- 49751, 13 COMP. GEN. 3; JULY 8, 1933, A 49756, 13 COMP. GEN. 6; AND JULY 11, 1933, A-49892, 13 COMP. GEN. 15. HOWEVER, IN THE CITED DECISION OF JULY 6, 1933, TO THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, THE FOLLOWING LIMITATIONS ON SUCH CONCLUSION WAS MADE:

IT IS UNDERSTOOD YOUR QUESTION RELATES EXCLUSIVELY TO PERSONNEL EMPLOYED FOR SERVICE UNDER THE DIRECTION OF THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS AND NOT TO PERSONNEL OF OTHER FEDERAL AGENCIES WHO MAY BE EMPLOYED DIRECTLY OR INDIRECTLY IN CONNECTION WITH THE PUBLIC WORKS PROGRAM AND WHOSE COMPENSATION MAY BE PAID OUT OF FUNDS ALLOTTED FROM THE PUBLIC WORKS APPROPRIATIONS, AND THIS DECISION MUST BE REGARDED AS SO LIMITED.

ALSO IN THE CITED DECISION OF JULY 11, 1933, IT WAS SAID:

HOWEVER, ANY OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT LOANED, DETAILED, OR ASSIGNED TO DUTY WITH THE NATIONAL INDUSTRIAL RECOVERY ADMINISTRATION, AND WHOSE COMPENSATION IS AT THE TIME OF SUCH LOANING, DETAIL, OR ASSIGNMENT SUBJECT TO THE PERCENTAGE REDUCTION IN COMPENSATION UNDER TITLE II OF THE ACT OF MARCH 20, 1933, WILL CONTINUE TO BE SUBJECT TO SUCH REDUCTION EVEN THOUGH HE MAY BE FURLOUGHED OR GRANTED LEAVE WITHOUT PAY FROM HIS REGULAR POSITION FOR THE PERIOD OF SUCH LOANING, DETAIL, OR ASSIGNMENT. SEE DECISION OF JULY 8, 1933, A-49756.

IF THE WAR DEPARTMENT USES EXISTING PERSONNEL ON WORK TO BE CARRIED ON UNDER THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT WHOSE EXISTING RATES OF COMPENSATION ARE CONTROLLED BY THE CLASSIFICATION ACT OR ANY OTHER "EXISTING LAW, SCHEDULE, REGULATION, EXECUTIVE ORDER, OR DEPARTMENTAL ORDER" (QUOTING FROM SEC. 2 (A) OF THE ACT OF MAR. 20, 1933, PUB.NO. 2), AND THE CLASS OF WORK IS SUBSTANTIALLY THE SAME AS THEY HAD BEEN PERFORMING IN THE WAR DEPARTMENT REQUIRING NO CHANGE IN SALARY STATUS, THE COMPENSATION WOULD CONTINUE TO BE SUBJECT TO THE 15 PERCENT REDUCTION. HOWEVER, IF THE WAR DEPARTMENT, WHEN UNDERTAKING THE WORK ASSIGNED TO IT UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT, EMPLOYS NEW PERSONNEL TO BE ENGAGED DIRECTLY AND EXCLUSIVELY ON THAT WORK, THE ALLOCATION OF FUNDS CARRIES WITH IT THE AUTHORITY TO EMPLOY THE NEW PERSONNEL WITHOUT REGARD TO THE CLASSIFICATION ACT OR ANY OTHER EXISTING SALARY STATUTE OR REGULATION, AND THERE BEING NO EXISTING SALARY RATE WITHIN THE MEANING OF SECTION 2 (A) OF THE ACT OF MARCH 20, 1933, THE COMPENSATION OF SUCH NEW PERSONNEL WOULD NOT BE SUBJECT TO THE 15 PERCENT REDUCTION.

APPLYING THESE GENERAL PRINCIPLES, THE 15 PERCENT REDUCTION WILL BE APPLICABLE TO THE CLASSES OF EMPLOYEES MENTIONED IN PARAGRAPHS (A) AND (C) BUT NOT TO THE CLASSES OF EMPLOYEES MENTIONED IN PARAGRAPHS (B) AND (D).