A-56997, SEPTEMBER 12, 1934, 14 COMP. GEN. 215

A-56997: Sep 12, 1934

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THE ESTABLISHED PROCEDURE PURSUANT TO WHICH THE RATES OF WAGES ARE FIXED ADMINISTRATIVELY UNDER A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS. TO THE FIELD FORCE FOR THE CONSTRUCTION AND REPAIR OF LIGHTHOUSES WAS CORRECT. ARE NOT APPLICABLE TO THE EMPLOYEES OF THE UNITED STATES SHIPPING BOARD. ADJUST PROSPECTIVELY THE HOURS AND RATES IN ACCORDANCE WITH THE PRINCIPLES UNDER SAID SECTION 23 IS A MATTER FOR ADMINISTRATIVE CONSIDERATION. WHICH WAS PASSED ON MARCH 28. WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES. YOUR DECISION IS ACCORDINGLY REQUESTED AS TO WHETHER SAID SECTION 23 APPLIES TO LABORERS AND THOSE ENGAGED IN THE MECHANICAL TRADES IN THE LIGHTHOUSE SERVICE. ARE PAID ON A DAILY OR MONTHLY BASIS UNDER THE APPROPRIATION "GENERAL EXPENSES.

A-56997, SEPTEMBER 12, 1934, 14 COMP. GEN. 215

COMPENSATION - 40-HOUR WEEK - LIGHTHOUSE SERVICE - MERCHANT FLEET CORPORATION IN VIEW OF THE BASIC LAW ESTABLISHING THE LIGHTHOUSE SERVICE, THE REGULATIONS ISSUED PURSUANT THERETO HAVING THE FORCE AND EFFECT OF LAW, AND THE ESTABLISHED PROCEDURE PURSUANT TO WHICH THE RATES OF WAGES ARE FIXED ADMINISTRATIVELY UNDER A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS, THE ADMINISTRATIVE ACTION IN APPLYING THE 40-HOUR WEEK PROVISION IN SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, TO THE FIELD FORCE FOR THE CONSTRUCTION AND REPAIR OF LIGHTHOUSES WAS CORRECT. THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING A 40-HOUR WEEK, ARE NOT APPLICABLE TO THE EMPLOYEES OF THE UNITED STATES SHIPPING BOARD, MERCHANT FLEET CORPORATION. WHETHER THE CORPORATION, UNDER ITS INHERENT AUTHORITY TO FIX HOURS OF LABOR AND RATES OF COMPENSATION OF ITS EMPLOYEES, SHALL, WITH RESPECT TO ANY PARTICULAR GROUP OR GROUPS OF SUCH EMPLOYEES, ADJUST PROSPECTIVELY THE HOURS AND RATES IN ACCORDANCE WITH THE PRINCIPLES UNDER SAID SECTION 23 IS A MATTER FOR ADMINISTRATIVE CONSIDERATION. THE SAVING TO EMPLOYEES PLACED ON A 40-HOUR WEEK UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, HAS REFERENCE TO THE SCHEDULE OF RATES PAID AS OF JUNE 1, 1932, FOR THE TRADE OR OCCUPATION PROPERLY WITHIN THE LAW, AND NOT TO THE RATE IN SUCH SCHEDULE RECEIVED ON JUNE 1, 1932, BY A PARTICULAR EMPLOYEE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, SEPTEMBER 12, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 28, 1934, AS FOLLOWS:

SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1935 (PUB. ACT 141), WHICH WAS PASSED ON MARCH 28, 1934, PROVIDES AS FOLLOWS:

"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 40 PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF.'

YOUR DECISION IS ACCORDINGLY REQUESTED AS TO WHETHER SAID SECTION 23 APPLIES TO LABORERS AND THOSE ENGAGED IN THE MECHANICAL TRADES IN THE LIGHTHOUSE SERVICE, WHO, UNDER THE GENERAL PRACTICE OF THAT SERVICE, ARE PAID ON A DAILY OR MONTHLY BASIS UNDER THE APPROPRIATION "GENERAL EXPENSES," AND WHICH PERSONNEL GENERALLY COMPRISE THE FIELD FORCE FOR CONSTRUCTION AND REPAIR. SEE COPY OF LETTERS OF COMMISSIONER OF LIGHTHOUSES AND BUREAU OF LIGHTHOUSES CIRCULAR LETTER NO. 432, HERETO ATTACHED, MARKED (A), (B), AND (C).

YOUR DECISION IS ALSO REQUESTED ON THE FOLLOWING QUESTIONS ARISING IN CONNECTION WITH SAID SECTION 23 WITH RESPECT TO THE UNITED STATES SHIPPING BOARD MERCHANT FLEET CORPORATION:

(A) WHETHER THE PER-DIEM EMPLOYEES OF THE FLEET CORPORATION WHO ARE HIRED BY DISTRICT REPRESENTATIVES AT WAGES IN ACCORDANCE WITH THOSE PREVAILING IN THE PARTICULAR LOCALITY AND SOME OF WHOM ARE EMPLOYED ONLY FOR TEMPORARY SPECIFIC WORK AND OTHERS FOR GENERAL WORK OF A CONTINUING NATURE, COME WITHIN THE CLASSIFICATION OF THOSE WHOSE WAGES ARE SET BY "WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES," REFERRED TO IN SAID SECTION 23?

(B) WHETHER SAID SECTION 23 APPLIES TO WATCHMEN, INVENTORY CHECKERS, AND INVENTORY CLERKS; AND WHETHER IT WILL BE NECESSARY TO PAY TIME AND ONE- HALF FOR THE HOURS WORKED BY WATCHMEN IN EXCESS OF 40 HOURS A WEEK, THEY HAVING BEEN EMPLOYED ON A PER-DIEM BASIS BUT ON AN UNDERSTANDING THAT THEY WOULD WORK 56 HOURS A WEEK?

(C) WHETHER OR NOT SAID SECTION 23 REFERS TO THE CLASS OF LABOR RATHER THAN TO THE INDIVIDUAL? SEE INCLOSED MEMO. (E) 3D PAR., P. 2.

PLEASE RETURN THE ENCLOSED FILE WITH YOUR DECISION IN THIS MATTER.

CIRCULAR LETTER NO. 432, DATED APRIL 16, 1934, ADDRESSED TO SUPERINTENDENTS OF LIGHTHOUSES BY THE COMMISSIONER OF LIGHTHOUSES, IS AS FOLLOWS:

SECTION 23 OF INDEPENDENT OFFICES APPROPRIATION ACT, 1935, PROVIDING 40- HOUR WEEK FOR CERTAIN PERSONNEL.

1. IT IS UNDERSTOOD THAT YOUR OFFICE HAS RECEIVED A COPY OF THIS ACT, AND THERE IS ENCLOSED A COPY OF A DECISION WITH REGARD TO IT RENDERED TO THE PUBLIC PRINTER ON APRIL 6, 1934, BY THE COMPTROLLER GENERAL AND NUMBERED A -54736.

2. THIS DECISION APPEARS TO COVER MOST OF THE QUESTIONS THAT WILL BE INVOLVED IN THE APPLICATION OF THE ACT TO THE LIGHTHOUSE SERVICE. THE BUREAU CONSIDERS THE ACT IS APPLICABLE GENERALLY TO LABORERS AND THOSE ENGAGED IN MECHANICAL TRADES WHO, UNDER THE GENERAL PRACTICE OF THE LIGHTHOUSE SERVICE, ARE PAID ON A DAILY OR MONTHLY BASIS UNDER THE APPROPRIATION,"GENERAL EXPENSES," AND WHICH PERSONNEL GENERALLY COMPRISE THE FIELD FORCE FOR CONSTRUCTION AND REPAIR. IT IS ALSO CONSIDERED THAT THE MONTHLY RATE OF COMPENSATION IS FOR THE PURPOSES OF THE ENCLOSED DECISION THE SAME AS IF SUCH PERSONS WERE ON AN ANNUAL RATE.

3. AS STATED, THE ENCLOSED DECISION APPEARS TO ANSWER MOST OF THE QUESTIONS ARISING IN THE APPLICATION OF THE ACT TO THIS SERVICE, BUT IF THE DISTRICT OFFICES HAVE ANY FURTHER SPECIFIC QUESTIONS, THEY MAY BE SUBMITTED TO THE BUREAU. THE BEST METHOD OF REGULATING HOURS OF EMPLOYMENT MAY DIFFER IN DIFFERENT LOCALITIES AND CONDITIONS AND SUPERINTENDENTS SHOULD STUDY THIS PROBLEM AS IT PRESENTS ITSELF TO THEM.

4. YOUR PROMPT REPORT IS REQUESTED AS TO WHETHER OR NOT THE APPLICATION OR THE ACT WILL RESULT IN ANY ADDITIONAL COST FOR THE REST OF THE FISCAL YEAR, AND, IF SO, IF THE INCREASED COST CAN BE MET FROM YOUR PRESENT ALLOTMENTS. ALSO INCLUDE AN ESTIMATE OF THE ADDITIONAL COST, IF ANY.

THE MEMORANDUMS DATED APRIL 30 AND JULY 28, 1934, BY THE COMMISSIONER OF LIGHTHOUSES, ARE AS FOLLOWS:

REFERRING TO DEPARTMENT CIRCULAR LETTER OF APRIL 24, REGARDING EMPLOYEES AFFECTED BY SEC. 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF MARCH 28, 1934:

THE BUREAU ENCLOSES COPY OF ITS CIRCULAR LETTER NO. 432, DATED APRIL 16, 1934, TO SUPERINTENDENTS OF LIGHTHOUSES ON THE SUBJECT. PARAGRAPH 2 OF THIS CIRCULAR INDICATES THE CLASSES OF EMPLOYEES IN THE LIGHTHOUSE SERVICE WHO IN THE OPINION OF THE BUREAU ARE SUBJECT TO THE LAW IN QUESTION. THESE POSITIONS ARE FOUND IN ALL DISTRICTS OF THE SERVICE, EXCEPT THE 15TH, WHICH EMBRACES THE MISSISSIPPI RIVER AREA. FULL DETAILS AS TO NUMBER AND SALARY CAN BE FURNISHED IF DESIRED, BUT AT THE PRESENT THE NUMBER, WHICH FLUCTUATES APPRECIABLY, IS APPROXIMATELY 285 REGULAR EMPLOYEES, AND 225 TEMPORARY EMPLOYEES. THE PAY RANGES FROM THE LOWEST- PAID LABORER TO $15.60 PER DAY (NEW SCALE).

FROM A CAREFUL CONSIDERATION OF THE LAW AND THE DECISIONS THUS FAR RENDERED IN CONSTRUING IT, THE BUREAU IS OF THE OPINION THAT NO OTHER OF ITS PERSONNEL ARE AFFECTED.

WITH REFERENCE TO BUREAU MEMORANDUM OF APRIL 30, 1934, IN REGARD TO EMPLOYEES OF THE LIGHTHOUSE SERVICE WHO ARE REGARDED AS AFFECTED BY SECTION 23 OF THE INDEPENDENT OFFICES ACT OF MARCH 28, 1934:

BUREAU CIRCULAR LETTER NO. 432, DATED APRIL 16, 1934, COPY OF WHICH WAS FURNISHED WITH ABOVE-MENTIONED MEMORANDUM, WAS ISSUED AFTER RECEIPT OF COMPTROLLER GENERAL'S DECISION A-54736 OF APRIL 6, 1934, WHICH USES THE FOLLOWING LANGUAGE (13 COMP. GEN. 267):

"IN SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 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.'

THE COMPENSATION OF EMPLOYEES OF THE LIGHTHOUSE SERVICE INDICATED IN PARAGRAPH 2 OF CIRCULAR LETTER NO. 432 IS FIXED ADMINISTRATIVELY WITH REFERENCE TO WAGES PAID TO SIMILAR CLASSES IN COMMERCIAL INDUSTRY IN THE LOCALITY WHERE EMPLOYED; FROM WHICH IT WAS CONCLUDED THAT SUCH EMPLOYEES ARE WITHIN THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934. TWO STATIONS OF THE LIGHTHOUSE SERVICE, VIZ, STATEN ISLAND, N.Y., AND PORTSMOUTH, VA., WHICH ARE IN CLOSE PROXIMITY TO THE NEW YORK AND NORFOLK NAVY YARDS, RESPECTIVELY, AND EMPLOY A NUMBER OF MEN AT TRADES SIMILAR TO THOSE EMPLOYED AT THE NAVY YARDS, IT HAS LONG BEEN THE PRACTICE TO PAY THE RATES IN EFFECT AT THE NAVY YARDS, WHICH ARE UNDERSTOOD TO BE FIXED BY WAGE BOARDS.

SECTION 713, TITLE 33, U.S. CODE, PROVIDES AS FOLLOWS:

REGULATIONS FOR LIGHTHOUSE SERVICE GENERALLY. THE COMMISSIONER OF LIGHTHOUSES, UNDER THE DIRECTION AND CONTROL OF THE SECRETARY OF COMMERCE, SHALL, FROM TIME TO TIME, PRESCRIBE AND DISTRIBUTE SUCH REGULATIONS AS HE MAY DEEM PROPER FOR SECURING AN EFFICIENT, UNIFORM, AND ECONOMIC ADMINISTRATION OF THE LIGHTHOUSE SERVICE. (JUNE 17, 1910, C. 301 SEC. 10, 36 STAT. 538; MAR. 4, 1913, C. 141 SEC. 1, 37 STAT. 736.)

PARAGRAPH 412 (D) OF THE REGULATIONS FOR THE LIGHTHOUSE SERVICE EFFECTIVE JULY 1, 1927, PROVIDES IN PART AS FOLLOWS:

IN CASE OF EMPLOYMENTS FOR FIELD CONSTRUCTION WORK SUPERINTENDENTS SHALL SEE THAT WAGES PAID DO NOT EXCEED THE RATES PAID IN THE LOCALITY WHERE WORK IS PERFORMED. * * *

IN VIEW OF THE BASIC LAW ESTABLISHING THE LIGHTHOUSE SERVICE, THE REGULATIONS ISSUED PURSUANT THERETO HAVING THE FORCE AND EFFECT OF LAW, AND THE ESTABLISHED PROCEDURE AS SHOWN BY THE QUOTED STATEMENTS BY THE COMMISSIONER OF LIGHTHOUSES, THE ADMINISTRATIVE ACTION IN APPLYING THE 40- HOUR WEEK STATUTORY PROVISION TO THE FIELD FORCE FOR CONSTRUCTION AND REPAIR OF LIGHTHOUSES APPEARS CORRECT. 13 COMP. GEN. 265. IT IS TO BE UNDERSTOOD, OF COURSE, THAT THIS DECISION IS NOT TO BE REGARDED AS APPROVING WITHOUT FURTHER SPECIFIC EXAMINATION IN THE AUDIT EVERY PAYMENT OF COMPENSATION PAID TO THE EMPLOYEES INVOLVED ON THE BASIS OF40 HOURS PER WEEK.

SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING THE 40-HOUR WEEK IS APPLICABLE ONLY TO EMPLOYEES OF THE FEDERAL GOVERNMENT OF THE CLASSES THEREIN MENTIONED WHOSE HOURS OF LABOR AND RATES OF COMPENSATION PREVIOUSLY HAD BEEN CONTROLLED BY STATUTE AND/OR REGULATIONS ISSUED PURSUANT TO STATUTE AND HAVING THE FORCE AND EFFECT OF LAW AUTHORIZING OR REQUIRING THE FIXING OF RATES OF COMPENSATION BY WAGE BOARDS OR PURSUANT TO A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS.

IT DOES NOT APPEAR THAT THERE WAS IN FORCE PRIOR TO MARCH 28, 1934, ANY LAW, EXECUTIVE ORDER, OR ADMINISTRATIVE REGULATION REQUIRING THE FIXING OF THE RATES OF COMPENSATION AND HOURS OF LABOR OF THE EMPLOYEES OF THE UNITED STATES SHIPPING BOARD MERCHANT FLEET CORPORATION UNDER A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS. HENCE, THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, ARE NOT APPLICABLE TO SAID EMPLOYEES AND THERE IS NO AUTHORITY OF LAW FOR THE ADJUSTMENT OF THE WAGES OF THE EMPLOYEES OF THE CORPORATION RETROACTIVELY AS OF MARCH 28, 1934, AS PROPOSED. WHETHER THE CORPORATION, UNDER ITS INHERENT AUTHORITY TO FIX HOURS OF LABOR AND RATES OF COMPENSATION OF ITS EMPLOYEES, SHALL, WITH RESPECT TO ANY PARTICULAR GROUP OR GROUPS OF SUCH EMPLOYEES, ADJUST PROSPECTIVELY THE HOURS AND RATES IN ACCORDANCE WITH THE PRINCIPLE OF SAID SECTION 23 IS A MATTER FOR ADMINISTRATIVE CONSIDERATION.

REFERRING TO QUESTION (B), REFERENCE IS MADE TO THE FOLLOWING FROM DECISION OF APRIL 6, 1930, 13 COMP. GEN. 265, 268:

EVIDENTLY THE WORDS "TRADES AND OCCUPATIONS" APPEARING IN SECTION 23 OF THE ACT OF MARCH 28, 1934, SUPRA, WERE INTENDED TO EMBRACE, NOT ONLY ALL POSITIONS OR EMPLOYMENTS IN THE RECOGNIZED TRADES AND CRAFTS AND OCCUPATIONS OF A SIMILAR CHARACTER, BUT ALSO SUPERVISORY AND ADMINISTRATIVE POSITIONS AND EMPLOYMENTS, THE DUTIES OF WHICH ARE ENTIRELY CONNECTED WITH, AND DEPENDENT UPON, THE DUTIES PERFORMED BY THE PERSONNEL IN THE TRADES, CRAFTS, AND SIMILAR OCCUPATIONS, THE COMPENSATION OF WHICH IS SUBJECT TO ADJUSTMENT BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES. SEE GENERALLY SECTION 5 OF THE ORIGINAL CLASSIFICATION ACT OF MARCH 4, 1923, 43 STAT. 1489, AND 4 COMP. GEN. 900; ID. 959.

THE PROBLEM INVOLVED IN QUESTION (C) IS UNDERSTOOD TO BE WHETHER THE STATUTE SAVES TO EMPLOYEES ON A 40-HOUR WEEK BASIS THE SCHEDULED RATES AS OF JUNE 1, 1932, FOR A TRADE OR OCCUPATION, OR THE RATES THAT MAY HAVE BEEN PAID TO AN INDIVIDUAL. IN THIS CONNECTION THE STATUTE HAS REFERENCE TO THE SCHEDULE OF RATES PAID AS OF JUNE 1, 1932, FOR THE TRADE OR OCCUPATION PROPERLY WITHIN THE LAW, AND NOT TO THE RATE IN SUCH SCHEDULE RECEIVED ON JUNE 1, 1932, BY A PARTICULAR INDIVIDUAL.