A-59309, DECEMBER 31, 1934, 14 COMP. GEN. 496

A-59309: Dec 31, 1934

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ARE NOT APPLICABLE TO ANY OF THE EMPLOYEES OF THE NATIONAL PARK SERVICE. WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES. THERE IS SOME DOUBT AS TO THE APPLICATION OF THIS PROVISION OF THE LAWTO CERTAIN EMPLOYMENTS IN THE FIELD SERVICE OF THE NATIONAL PARK SERVICE OF THIS DEPARTMENT. IS RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS: 1. DOES SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT APPLY TO TEMPORARY AND SEASONAL POSITIONS UNDER THE NATIONAL PARK SERVICE WHEN THE COMPENSATION IS NOT FIXED BY THE CLASSIFICATION ACT OF 1923. IF YOUR ANSWER IS IN THE AFFIRMATIVE. WILL YOU PLEASE INDICATE WHICH POSITIONS ARE CONSIDERED "TRADES AND OCCUPATIONS" WITHIN THE MEANING OF THIS SECTION ON THE ATTACHED NATIONAL PARK SERVICE FORM 10 200?

A-59309, DECEMBER 31, 1934, 14 COMP. GEN. 496

COMPENSATION - 40-HOUR WEEK - NATIONAL PARK SERVICE THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING THE 40-HOUR WEEK, ARE NOT APPLICABLE TO ANY OF THE EMPLOYEES OF THE NATIONAL PARK SERVICE, WITH THE POSSIBLE EXCEPTION OF EMPLOYEES IN THE "SEVERAL TRADES AND OCCUPATIONS" PAID UNDER THE APPROPRIATION ITEM "SALARIES AND EXPENSES, PUBLIC BUILDINGS OUTSIDE THE DISTRICT OF COLUMBIA," ACT OF MARCH 2, 1934, 48 STAT. 389.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, DECEMBER 31, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 15, 1934, AS FOLLOWS:

SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF MARCH 28, 1934, PUBLIC, NO. 141, 73D CONGRESS, 2D SESSION, PROVIDES THAT:

"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.'

THERE IS SOME DOUBT AS TO THE APPLICATION OF THIS PROVISION OF THE LAWTO CERTAIN EMPLOYMENTS IN THE FIELD SERVICE OF THE NATIONAL PARK SERVICE OF THIS DEPARTMENT. YOUR OPINION, THEREFORE, IS RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS:

1. DOES SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT APPLY TO TEMPORARY AND SEASONAL POSITIONS UNDER THE NATIONAL PARK SERVICE WHEN THE COMPENSATION IS NOT FIXED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED?

2. IF YOUR ANSWER IS IN THE AFFIRMATIVE, WILL YOU PLEASE INDICATE WHICH POSITIONS ARE CONSIDERED "TRADES AND OCCUPATIONS" WITHIN THE MEANING OF THIS SECTION ON THE ATTACHED NATIONAL PARK SERVICE FORM 10 200?

THE EMPLOYMENTS REFERRED TO ARE MADE ON A PER DIEM BASIS, WHEN ACTUALLY EMPLOYED, FOR SEASONAL OR TEMPORARY SERVICE, BY THE FIELD OFFICERS OF THE NATIONAL PARK SERVICE UNDER WHOSE SUPERVISION THEY WORK.

THE REGULATIONS GOVERNING APPOINTMENTS IN THE FIELD SERVICE OF THE DEPARTMENT OF THE INTERIOR AUTHORIZE THE FIELD OFFICERS OF THE NATIONAL PARK SERVICE TO MAKE SUCH EMPLOYMENTS, BUT PROVIDE THAT THE MAXIMUM RATES TO BE PAID SHALL BE APPROVED IN ADVANCE BY THE SECRETARY OF THE INTERIOR. THE ACTUAL WAGES PAID DEPEND, HOWEVER, ON LOCAL CONDITIONS, AND ARE DETERMINED BY THE FIELD OFFICERS MAKING THE EMPLOYMENTS. THESE CANNOT EXCEED THE MAXIMUM RATES APPROVED BY THE SECRETARY.

FOR YOUR INFORMATION A COPY OF AN OPINION ON THIS QUESTION BY THE SOLICITOR FOR THE DEPARTMENT IS ENCLOSED.

IN DECISION OF SEPTEMBER 12, 1934, 14 COMP. GEN. 215, 217, IT WAS STATED-

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. * * *

NOTWITHSTANDING YOUR STATEMENT IN THE NEXT TO THE LAST PARAGRAPH OF YOUR LETTER, 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 EMPLOYEES OF THE NATIONAL PARK SERVICE UNDER A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS. THE ADMINISTRATIVE PRACTICE MENTIONED THAT "ACTUAL WAGES SHALL DEPEND, HOWEVER, ON LOCAL CONDITIONS," DOES NOT NECESSARILY BRING ANY OF THE EMPLOYEES OF THE NATIONAL PARK SERVICE WITHIN THE 40-HOUR WEEK STATUTORY PROVISION. FURTHERMORE, THE COMPENSATION OF THE EMPLOYEES OF THE NATIONAL PARK SERVICE HAS NEVER BEEN GENERALLY REGARDED AS FIXED ADMINISTRATIVELY UNDER A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS.

YOU ARE ADVISED, THEREFORE, THAT ON THE BASIS OF THE FACTS PRESENTED THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, ARE NOT APPLICABLE TO ANY OF THE EMPLOYEES OF THE NATIONAL PARK SERVICE, WITH THE POSSIBLE EXCEPTION OF THOSE MENTIONED IN THE NEXT PARAGRAPH OF THIS DECISION.

THERE HAS BEEN NOTED IN THE APPROPRIATION ITEM "SALARIES AND EXPENSES, PUBLIC BUILDINGS OUTSIDE THE DISTRICT OF COLUMBIA," APPEARING FOR THE FIRST TIME IN THE ANNUAL APPROPRIATION ACT FOR THE FISCAL YEAR 1935, DATED MARCH 2, 1934, 48 STAT. 389, THE PROVISION FOR "PERSONAL SERVICES AT RATES OF COMPENSATION NOT IN EXCESS OF THE RATES CURRENT IN THE PLACE WHERE SUCH SERVICES ARE EMPLOYED.' IT WOULD APPEAR THAT THE CLASSES OF EMPLOYEES WITHIN THE "SEVERAL TRADES AND OCCUPATIONS" PAID UNDER THIS ITEM OF APPROPRIATION, ARE WITHIN THE 40 HOUR WEEK STATUTORY PROVISION. SEE DECISION OF DECEMBER 11, 1934, A 58689, 14 COMP. GEN. 448, RELATIVE TO THE MECHANICAL LABOR FORCE FOR THE CUSTODIAL SERVICE IN PUBLIC BUILDINGS UNDER THE POST OFFICE DEPARTMENT. IF YOU HAVE ANY DOUBT AS TO THE STATUS OF THE EMPLOYEES PAID UNDER THIS APPROPRIATION, FURTHER CONSIDERATION WILL BE GIVEN TO THE MATTER UPON REQUEST.