A-56221, JUNE 30, 1934, 13 COMP. GEN. 486

A-56221: Jun 30, 1934

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IS NOT AND HAS NEVER BEEN REGARDED AS SIMILAR TO THE PROCEDURE FOLLOWED BY WAGE BOARDS. IS NOT APPLICABLE. AS FOLLOWS: THE FOLLOWING PROVISION IS CONTAINED IN THE ACT MAKING APPROPRIATIONS FOR THE EXECUTIVE OFFICE AND SUNDRY INDEPENDENT EXECUTIVE BUREAUS. WHICH IS SET BY WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES. THE ENGINEER DEPARTMENT HAS THE FOLLOWING CLASSES OF EMPLOYEES WHO ARE NOT CONSIDERED AS COMING UNDER THE PROVISION OF THE CLASSIFICATION ACT OF 1923. WHOSE SALARIES ARE. THE MAJORITY OF THESE MEN ARE EMPLOYED IN REPAIR SHOPS. OTHERS ARE EMPLOYED ON FLOATING PLANT OR ELSEWHERE. SOME OF THESE EMPLOYEES ARE IN REPAIR SHOPS. THE MAJORITY ARE WITH FIELD PARTIES. THE HOURS OF LABOR OF THESE EMPLOYEES ARE NOT RESTRICTED EVEN UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT.

A-56221, JUNE 30, 1934, 13 COMP. GEN. 486

COMPENSATION - FORTY-HOUR WEEK - ENGINEER DEPARTMENT OF THE ARMY AS THE ADMINISTRATIVE PROCEDURE FOR FIXING THE COMPENSATION RATES OF ALL OFFICERS AND EMPLOYEES OF THE ENGINEER DEPARTMENT OF THE ARMY, INCLUDING THOSE IN THE TRADES AND SIMILAR OCCUPATIONS, IS NOT AND HAS NEVER BEEN REGARDED AS SIMILAR TO THE PROCEDURE FOLLOWED BY WAGE BOARDS, SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING A 40-HOUR WEEK, IS NOT APPLICABLE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JUNE 30, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 16, 1934, AS FOLLOWS:

THE FOLLOWING PROVISION IS CONTAINED IN THE ACT MAKING APPROPRIATIONS FOR THE EXECUTIVE OFFICE AND SUNDRY INDEPENDENT EXECUTIVE BUREAUS, BOARDS, COMMISSIONS, AND OFFICES FOR THE FISCAL YEAR ENDING JUNE 30, 1935, AND FOR OTHER PURPOSES (H.R. 6663).

"SEC. 23. THE WEEKLY COMPENSATION, MINUS ANY GENERAL PERCENTAGE REDUCTION WHICH MAY BE PRESCRIBED BY ACT OF CONGRESS, FOR THE SEVERAL TRADES AND OCCUPATIONS, WHICH IS SET BY WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES, SHALL BE REESTABLISHED AND MAINTAINED AT RATES NOT LOWER THAN NECESSARY TO RESTORE THE FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN ACCORDANCE WITH THE FULL-TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932: PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE-HALF.'

THE ENGINEER DEPARTMENT HAS THE FOLLOWING CLASSES OF EMPLOYEES WHO ARE NOT CONSIDERED AS COMING UNDER THE PROVISION OF THE CLASSIFICATION ACT OF 1923, AND AMENDATORY ACTS, AND WHOSE SALARIES ARE, THEREFORE, NOT FIXED BY STATUTE:

A. CREWS OF DREDGES AND BOATS, INCLUDING MASTERS, PILOTS, MATES, ENGINEERS, DREDGE RUNNERS, DRILL RUNNERS, DREDGE HANDS, AND DECK HANDS. PRACTICALLY ALL OF THESE EMPLOYEES RECEIVE A MONTHLY RATE OF PAY.

B. CRAFTSMEN IN THE VARIOUS SKILLED TRADES, INCLUDING CARPENTERS, MACHINISTS, AND PLUMBERS, WHEN PAID AT AN HOURLY OR DAILY RATE. THE MAJORITY OF THESE MEN ARE EMPLOYED IN REPAIR SHOPS; OTHERS ARE EMPLOYED ON FLOATING PLANT OR ELSEWHERE.

C. CERTAIN SUPERVISORY EMPLOYEES, SUCH AS OVERSEERS AND FOREMEN, WHEN PAID AT AN HOURLY OR DAILY RATE. SOME OF THESE EMPLOYEES ARE IN REPAIR SHOPS, BUT THE MAJORITY ARE WITH FIELD PARTIES. THE HOURS OF LABOR OF THESE EMPLOYEES ARE NOT RESTRICTED EVEN UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT.

D. COMMON OR UNSKILLED LABORERS WHEN PAID AT AN HOURLY OR DAILY RATE. FEW OF THESE MEN ARE EMPLOYED IN SHOPS, BUT THE VAST MAJORITY ARE EMPLOYED BY FIELD PARTIES ON CONSTRUCTION OR OTHER WORK.

E. MISCELLANEOUS EMPLOYEES ON FIELD JOBS (AS DIFFERENTIATED FROM SHOP JOBS), SUCH AS PILE DRIVERMEN, OILERS, FIREMEN, AND TEAMSTERS. SOME OF THESE EMPLOYEES ARE ON MONTHLY RATES AND OTHERS ON HOURLY OR DAILY RATES.

BEFORE THE EXTENSION OF THE CLASSIFICATION ACT TO THE FIELD, THE RATES OF PAY OF ALL EMPLOYEES OF THE ENGINEER DEPARTMENT WERE FIXED BY DISTRICT ENGINEERS, OR BY THE CHIEF OF ENGINEERS AND THE SECRETARY OF WAR UPON RECOMMENDATION OF DISTRICT ENGINEERS, IN ACCORDANCE WITH THE FOLLOWING PRINCIPLES:

A. EACH EMPLOYEE MUST RECEIVE A "LIVING" SALARY OR WAGE.

B. THE RATES MUST BE HIGH ENOUGH TO ATTRACT THE NUMBER AND KINDS OF EMPLOYEES NEEDED. THIS PRINCIPLE RECOGNIZED THE LAW OF SUPPLY AND DEMAND.

C. THE RATES MUST BE IN LINE WITH THOSE PAID EMPLOYEES IN SIMILAR PROFESSIONS, POSITIONS, OR TRADES IN THE VICINITY. IN ACCORDANCE WITH THIS PRINCIPLE, HIGHER SALARIES WERE PAID IN THE LARGER CITIES THAN IN THE SMALLER COMMUNITIES. IT WAS NOT CONSIDERED PROPER, FOR EXAMPLE, FOR THE DEPARTMENT TO PAY A STENOGRAPHER $150 PER MONTH WHEN STENOGRAPHERS OF EQUAL ABILITY WERE BEING PAID $100 PER MONTH BY BUSINESS FIRMS. NOR WAS IT CONSIDERED PROPER FOR THE GOVERNMENT TO PAY MATERIALLY LESS THAN THAT PAID BY PRIVATE EMPLOYERS.

THE SAME PRINCIPLES WERE APPLIED TO ALL SALARIES OR WAGES WHETHER PROFESSIONAL, CLERICAL, OR IN THE TRADES OR COMMON LABOR GRADES, AND WHETHER FOR MONTHLY OR PER DIEM EMPLOYEES. NO WAGE BOARDS HAVE EVER BEEN SET UP IN THE ENGINEER DEPARTMENT AND NONE ARE IN EXISTENCE TODAY.

IT HAS NOT BEEN, AND IS NOT NOW, THE PRACTICE TO CONSULT WITH ANY CLASS OF EMPLOYEES AS TO THEIR RATES OF PAY, ALTHOUGH ANY EMPLOYEE, WHETHER UNDER OR OUTSIDE OF THE CLASSIFICATION ACT, MAY REQUEST AN INCREASE IN SALARY AND MAY BRING THAT AND ANY OTHER MATTER WHICH AFFECTS HIS WELFARE TO THE ATTENTION OF HIS EMPLOYING OFFICER.

SINCE THE APPLICATION OF THE CLASSIFICATION ACT TO FIELD EMPLOYEES, THE PRINCIPLES ENUMERATED ABOVE, WHICH WERE FORMERLY APPLIED TO ALL EMPLOYEES, HAVE BEEN APPLIED IN FIXING RATES FOR THOSE EMPLOYEES TO WHOM THE CLASSIFICATION ACT DOES NOT APPLY.

ATTENTION IS INVITED TO THE RULING OF THE COMPTROLLER OF THE TREASURY OF AUGUST 8, 1918, IN WHICH THE "ADJUSTING OF WAGES BY WAGE BOARDS OR SIMILAR AUTHORITY," A PHRASE USED IN SECTION 6 OF THE ACT OF JULY 3, 1918, AUTHORIZING AN INCREASE OF $120.00 PER YEAR IN THE COMPENSATION OF CIVILIAN EMPLOYEES, WAS HELD AS NOT APPLICABLE TO THE FIXING OF WAGES BY ADMINISTRATIVE OFFICERS WHO ARE CHARGED WITH THE DUTY OF FIXING WAGES TO BE PAID UNDER LUMP SUM APPROPRIATIONS.

ATTENTION IS FURTHER INVITED TO A STATEMENT BY SENATOR THOMAS OF OKLAHOMA, THE PROPONENT OF THE AMENDMENT WHICH BECAME SECTION 23, WHICH APPEARS ON PAGE 3055 OF THE CONGRESSIONAL RECORD OF FEBRUARY 21, 1934. THE STATEMENT INDICATES THAT IT WAS THE INTENTION TO LIMIT THE APPLICATION OF PROVISION IN QUESTION TO EMPLOYEES OF NAVY YARDS, ARSENALS, THE PANAMA CANAL, THE GOVERNMENT PRINTING OFFICE, AND THE BUREAU OF ENGRAVING AND PRINTING.

IT IS REQUESTED THAT REPLY BE MADE TO THE FOLLOWING SPECIFIC QUESTIONS:

1. DOES SECTION 23 OF THE ACT CITED APPLY TO ANY OF THE EMPLOYEES LISTED UNDER A, B, C, D, AND E, OF THE SECOND PARAGRAPH ABOVE?

IF THE ANSWER TO THE ABOVE SHOULD BE IN THE AFFIRMATIVE, THE FOLLOWING ADDITIONAL QUESTIONS ARE SUBMITTED:

2. BY WHAT METHOD SHALL THE PROPER RATES TO BE PAID BE COMPUTED? SINCE FORMAL SCHEDULES FOR EMPLOYEES OF THE ENGINEER DEPARTMENT AT LARGE OF THESE GRADES WERE NOT IN EFFECT ON JUNE 1, 1932, THE ONLY MEANS OF DETERMINING THE RATES IN EFFECT ON THAT DATE WOULD BE THROUGH REFERENCE TO THE PAY ROLLS FOR JUNE 1, 1932. IT IS ASSUMED THAT THE PROVISION OF LAW APPLIES TO THE RATES OF POSITIONS RATHER THAN TO THE RATES OF INDIVIDUAL EMPLOYEES, AND THAT AN EMPLOYEE NOW HOLDING A GIVEN POSITION IS TO BE PAID THE RATE WHICH APPLIED TO THAT POSITION ON JUNE 1, 1932, WHETHER OR NOT THE EMPLOYEE HELD THAT SAME POSITION ON JUNE 1, 1932, AND WHETHER OR NOT THAT PARTICULAR EMPLOYEE WAS IN THE SERVICE ON THAT DATE. AS AN EXAMPLE: IF IT SHOULD BE DETERMINED THAT THE RATE OF COMPENSATION OF A CARPENTER IN THE ENGINEER DEPARTMENT AT LARGE, CHICAGO DISTRICT, ON JUNE 1, 1932, WAS $6.40 PER DAY AND THE EMPLOYEES SERVED ON A 44-HOUR WEEK BASIS (FIVE 8- HOUR DAYS AND A 4-HOUR DAY ON SATURDAYS), INFORMATION IS REQUESTED AS TO THE METHOD OF COMPUTING THE COMPENSATION OF (A) AN EMPLOYEE WHO HELD THE POSITION OF CARPENTER AT $6.40 PER DAY ON JUNE 1, 1932, AND WHO NOW IS EMPLOYED IN THE SAME POSITION, AND (B) AN EMPLOYEE WHO HAS BEEN APPOINTED TO THE POSITION OF CARPENTER IN THE SAME DISTRICT SINCE JUNE 1, 1932.

3. IT IS ASSUMED THAT ANY CHANGES IN PAY MADE UNDER THIS SECTION WILL TAKE EFFECT ON THE DATE OF THE ACT, MARCH 28, 1934. IF SO, INFORMATION IS REQUESTED AS TO WHAT PROCEDURE SHALL BE FOLLOWED IN MAKING RETROACTIVE ADJUSTMENTS IN THE COMPENSATION OF ANY EMPLOYEES WHOSE PAY MAY BE INCREASED BY THE APPLICATION OF THE PROVISION OF LAW. (A) SHALL ADJUSTMENTS BE MADE BY THE DEPARTMENT IN THE CASES OF EMPLOYEES WHO ARE STILL IN THE SERVICE AND WHOSE NAMES ARE CARRIED ON CURRENT PAY ROLL? (B) WILL IT BE NECESSARY FOR EMPLOYEES WHO HAVE BEEN SEPARATED FROM THE SERVICE OR PLACED IN FURLOUGH OR OTHER NON-PAY STATUS SINCE MARCH 28, 1934, TO SUBMIT CLAIM TO THE GENERAL ACCOUNTING OFFICE TO OBTAIN ADJUSTMENT IN THEIR CASES? (C) IN MAKING RETROACTIVE ADJUSTMENTS, SHALL TIME AND A HALF BE PAID FOR HOURS OF WORK IN EXCESS OF FORTY PER WEEK FOR THE PERIOD BEGINNING MARCH 28, 1934? (D) IN THE CASE OF EMPLOYEES WHO HAVE BEEN ON A 44-HOUR WEEK WITH PAY FOR 48 HOURS, WOULD ADDITIONAL PAYMENT BE DUE, IN VIEW OF THE FACT THAT DOUBLE PAYMENT HAS, IN EFFECT, ALREADY BEEN MADE FOR THE FOUR HOURS OF WORK ON SATURDAY?

4. DOES THE PROVISION OF LAW ABOVE QUOTED APPLY TO POSITIONS ON WORK FINANCED WITH FUNDS PROVIDED BY THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933? IF SO, INFORMATION IS REQUESTED AS TO WHETHER THE RATES AS DETERMINED ARE TO SUPERSEDE THE MINIMUM RATES FIXED UNDER SECTION 54, PUBLIC WORKS ADMINISTRATION BULLETIN NO. 51.

IN DECISION OF APRIL 6, 1934, 13 COMP. GEN. 265, 267, IT WAS STATED AS FOLLOWS:

IN SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1935, ENACTED MARCH 28, 1934, 48 STAT. 522, THERE ARE USED THE TERMS "WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES," SHOWING CLEARLY THAT THE STATUTE WAS INTENDED TO APPLY NOT ONLY TO EMPLOYEES OF THE CLASSES INCLUDED WHOSE COMPENSATION IS AUTHORIZED BY LAW TO BE FIXED BY WAGE BOARDS BUT, ALSO, TO EMPLOYEES WHOSE COMPENSATION IS AUTHORIZED TO BE FIXED ADMINISTRATIVELY UNDER A PROCEDURE SIMILAR TO THAT FOLLOWED BY WAGE BOARDS, THAT IS, WITH REFERENCE TO WAGES, ETC., PAID TO SIMILAR CLASSES IN COMMERCIAL INDUSTRY RATHER THAN WITH REFERENCE TO SALARY RATES OR SCHEDULES OF RATES SPECIFICALLY FIXED BY OR PURSUANT TO STATUTE. * * *

IN DECISION OF AUGUST 8, 1918, 25 COMP. DEC. 131, 133, THE FOLLOWING QUESTION AND ANSWER ARE STATED:

"2. WHETHER EXECUTIVE OFFICERS (SECRETARY OF WAR, CHIEF OF ENGINEERS, AND DISTRICT ENGINEERS) MAY BE CONSTRUED AS SIMILAR AUTHORITIES TO WAGE BOARDS, SO THAT RATES OF PAY ADJUSTED BY THEM FROM TIME TO TIME SHALL BE TAKEN INTO CONSIDERATION IN ADJUSTING THE PAY OF EMPLOYEES.'

I DO NOT UNDERSTAND THAT THE PROVISION OF THE STATUTE RELATIVE TO THE ADJUSTING OF WAGES BY WAGE BOARDS OR SIMILAR AUTHORITY APPLIES TO THE FIXING OF WAGES BY ADMINISTRATIVE OFFICERS WHO ARE CHARGED WITH THE DUTY OF FIXING WAGES TO BE PAID UNDER LUMP-SUM APPROPRIATIONS. THE FIXING OR ADJUSTING OF SUCH COMPENSATION IS A MATTER FOR ADMINISTRATIVE DETERMINATION, SUBJECT TO OTHER LAWS AND REGULATIONS GOVERNING THE COMPENSATION OF THE EMPLOYEES. IN ADJUSTING WAGE SCALES TO ACCORD WITH LOCAL RATES, THE FACT THAT BY LAW THE EMPLOYEE RECEIVES THIS ADDITIONAL COMPENSATION MUST BE KNOWN AND DOUBTLESS MUST BE IN MIND WHEN FIXING WAGES, BUT THIS IS A MATTER OF ADMINISTRATIVE DISCRETION. WHEN THE WAGE SHALL HAVE BEEN LAWFULLY FIXED THE EMPLOYEE WILL BE ENTITLED THERETO, AND ALSO TO THE ADDITIONAL COMPENSATION, PROVIDED HE COMES WITHIN THE OTHER PROVISIONS OF THE STATUTE (25 COMP. DEC. 71).

IT APPEARS FROM THIS DECISION AND FROM THE FACTS STATED IN YOUR LETTER THAT THE ADMINISTRATIVE PROCEDURE IN FIXING THE COMPENSATION RATES FOR THE FIVE CLASSES OF EMPLOYEES MENTIONED IS NOT AND HAS NEVER BEEN REGARDED AS SIMILAR TO THAT FOLLOWED BY WAGE BOARDS. WHILE THE ADMINISTRATIVE REQUIREMENT STATED IN PARAGRAPH C OF YOUR LETTER THAT "THE RATES MUST BE IN LINE WITH THOSE PAID EMPLOYEES IN SIMILAR PROFESSIONS, POSITIONS OR TRADES IN THE VICINITY" ALSO MAY BE A FACTOR CONSIDERED BY FEDERAL WAGE BOARDS, IT IS NOT THE CONTROLLING FACTOR.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTIONS 2, 3, AND 4.