A-66226, JANUARY 10, 1936, 15 COMP. GEN. 593

A-66226: Jan 10, 1936

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AS FOLLOWS: WORK WAS BEGUN IN MARCH 1934 FOR THE CONSTRUCTION OF A FIRE LINE GRID (WATER MAIN) AND DOMESTIC WATER SUPPLY AT VETERANS' ADMINISTRATION FACILITY. WERE MADE OUT OF THE ANNUAL SALARIES AND EXPENSES APPROPRIATION FOR THE VETERANS' ADMINISTRATION. PAYMENTS FOR LABOR WERE MADE FROM A FUND OF $40. 000.00 WAS ALLOTTED TO THE FACILITY JULY 20. 000.00 WAS ALLOTTED MAY 23. $600.00 WAS ALLOTTED AUGUST 6. COMPLAINTS HAVING BEEN MADE THAT CERTAIN LABORERS EMPLOYED ON THIS PROJECT WERE ENTITLED TO A WAGE IN EXCESS OF THAT PAID TO THEM. AN INVESTIGATION WAS MADE BY MR. IS FORWARDED HEREWITH. YOUR ADVICE IS RESPECTFULLY REQUESTED WHAT ACTION SHOULD BE TAKEN BY THE VETERANS' ADMINISTRATION IN REFERENCE TO THE ALLEGATIONS OF UNDERPAYMENT OF WAGES.

A-66226, JANUARY 10, 1936, 15 COMP. GEN. 593

COMPENSATION - UNSKILLED LABORERS - OCCASIONAL TEMPORARY ASSIGNMENT TO WORK OF A HIGHER CLASSIFICATION THE OCCASIONAL TEMPORARY ASSIGNMENT OF MEN EMPLOYED AS UNSKILLED LABORERS TO WORK OF A HIGHER CLASSIFICATION DOES NOT OF ITSELF ENTITLE THEM TO THE RATE OF PAY APPLICABLE TO THE WORK TO WHICH SO TEMPORARILY ASSIGNED, PARTICULARLY WHERE PAYMENT HAS BEEN ACCEPTED DURING SUCH PERIODS AT THE LOWER RATE WITHOUT OBJECTION.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JANUARY 10, 1936:

THERE HAS BEEN CONSIDERED THE MATTER PRESENTED IN YOUR LETTER OF OCTOBER 7, 1935, AS FOLLOWS:

WORK WAS BEGUN IN MARCH 1934 FOR THE CONSTRUCTION OF A FIRE LINE GRID (WATER MAIN) AND DOMESTIC WATER SUPPLY AT VETERANS' ADMINISTRATION FACILITY, LOS ANGELES, CALIFORNIA. PAYMENTS FOR LABOR AND MATERIALS, UP TO AND INCLUDING JULY 15, 1934, WERE MADE OUT OF THE ANNUAL SALARIES AND EXPENSES APPROPRIATION FOR THE VETERANS' ADMINISTRATION, BUT BEGINNING JULY 16, 1934, PAYMENTS FOR LABOR WERE MADE FROM A FUND OF $40,000.00 ALLOTTED BY THE PUBLIC WORKS ADMINISTRATION. FROM THIS FUND $38,000.00 WAS ALLOTTED TO THE FACILITY JULY 20, 1934 (EXHIBIT NO. 18-B ATTACHED HERETO); $1,000.00 WAS ALLOTTED MAY 23, 1935, AND $600.00 WAS ALLOTTED AUGUST 6, 1935.

THE RECORDS OF THE VETERANS' ADMINISTRATION PERTAINING TO THIS PROJECT (DESIGNATED FEDERAL PROJECT NO. 15) SHOW THAT ON SEPTEMBER 1, 1935, PAYMENTS HAD BEEN MADE IN THE SUM OF $38,994.73, AND THAT THE OUTSTANDING OBLIGATIONS AMOUNTED TO $778.66, LEAVING AN UNOBLIGATED BALANCE OF $226.61. A SMALL AMOUNT OF WORK HAS BEEN DONE SINCE AUGUST 31, 1935, TO COMPLETE THE PROJECT, BUT UP TO DATE THE FACILITY HAS NOT REPORTED THE COST THEREOF.

COMPLAINTS HAVING BEEN MADE THAT CERTAIN LABORERS EMPLOYED ON THIS PROJECT WERE ENTITLED TO A WAGE IN EXCESS OF THAT PAID TO THEM, AN INVESTIGATION WAS MADE BY MR. WALLACE HOWLAND, SPECIAL AGENT, PWA, DIVISION OF INVESTIGATIONS, DEPARTMENT OF THE INTERIOR. A COPY OF HIS REPORT DATED JUNE 25, 1935, IS FORWARDED HEREWITH. YOUR ADVICE IS RESPECTFULLY REQUESTED WHAT ACTION SHOULD BE TAKEN BY THE VETERANS' ADMINISTRATION IN REFERENCE TO THE ALLEGATIONS OF UNDERPAYMENT OF WAGES.

THE ALLEGATIONS OF INTOXICATION ON THE PART OF THE SUPERINTENDENT OF CONSTRUCTION AND ON THE PART OF THE TIMEKEEPER ARE RECEIVING ATTENTION.

THE REPORT OF THE SPECIAL AGENT OF THE PUBLIC WORKS ADMINISTRATION, DIVISION OF INVESTIGATIONS, DEPARTMENT OF THE INTERIOR, OF JUNE 25, 1935, TOGETHER WITH EXHIBITS THEREWITH, REFERRED TO IN THE LETTER, SUPRA, IS TO THE EFFECT THAT FIVE MEN ORIGINALLY EMPLOYED AS UNSKILLED LABORERS ON THE PROJECT INVOLVED AT THE HOURLY WAGE RATE OF 45 CENTS WERE THEREAFTER PUT TO WORK FROM TIME TO TIME HELPING CALKERS IN THE INSTALLATION OF PIPE, AND THAT THE ESTABLISHED RATE OF WAGE FOR CALKERS' HELPERS WAS 80 CENTS PER HOUR. THE SPECIAL AGENT RECOMMENDED THAT THE FIVE MEN BE PAID VARYING AMOUNTS ACCORDING TO THE NUMBER OF HOURS EACH WAS EMPLOYED HELPING THE CALKERS, REPRESENTING THE DIFFERENCE BETWEEN THE WAGE RATE OF 45 CENTS AND THE RATE OF 80 CENTS, OR 35 CENTS, THE AGGREGATE AMOUNT BEING $1,441.48.

IT APPEARS THAT PRIOR TO JULY 16, 1934, THE PROJECT WAS CARRIED ON WITH FUNDS MADE AVAILABLE UNDER AN ANNUAL APPROPRIATION FOR THE VETERANS' ADMINISTRATION; THAT ALL MEN WERE HIRED THROUGH THE LOCAL OFFICE OF THE VETERANS' ADMINISTRATION FACILITY, WEST LOS ANGELES; THAT WITH THE EXCEPTION OF UNSKILLED LABORERS ALL WERE REQUIRED TO HAVE A CIVIL-SERVICE RATING AS SKILLED JOURNEYMAN OR MECHANIC; THAT UNSKILLED LABORERS WERE ALL VETERANS, AND THAT THE WAGES PAID WERE IN ACCORDANCE WITH THE REGULAR WAGE SCALE OF THE VETERANS' ADMINISTRATION UNDER THE SUPERVISION OF THE CIVIL SERVICE COMMISSION. BEGINNING WITH JULY 16, 1934, WORK WAS PROSECUTED WITH FUNDS ALLOTTED TO THE VETERANS' ADMINISTRATION BY THE PUBLIC WORKS ADMINISTRATION AND LABOR WAS EMPLOYED UPON CERTIFICATION OF THE REEMPLOYMENT SERVICE OF THE DEPARTMENT OF LABOR. IT IS STATED THAT THE REGULAR WAGE SCALE OF THE VETERANS' ADMINISTRATION PROVIDED FOR A WAGE OF 80 CENTS AN HOUR TO CALKERS' HELPERS. UPON TRANSFER OF THE WORK FROM THE REGULAR APPROPRIATION TO THE PUBLIC WORKS FUNDS, A LIST SETTING FORTH THE WAGES BEING PAID WAS SUBMITTED TO THE PUBLIC WORKS ADMINISTRATION OF LOS ANGELES, JULY 28, 1934. THIS LIST SHOWED ORDINARY LABORERS 45 CENTS AND CALKERS' HELPERS 80 CENTS PER HOUR. THE RATES WERE APPROVED BY THE PUBLIC WORKS ADMINISTRATION JULY 31, 1934, WITH CERTAIN CHANGES NOT HERE INVOLVED.

THE MEN WERE EMPLOYED AS UNSKILLED LABORERS, APPARENTLY ENGAGED IN DITCH DIGGING. AT DIFFERENT TIMES DURING THEIR EMPLOYMENT THEY HELPED THE CALKERS. APPARENTLY AT NO TIME WERE THEY CLASSIFIED AS CALKERS' HELPERS OR CONTINUOUSLY EMPLOYED AS SUCH FOR A CONSIDERABLE PERIOD OF TIME. THEY WERE PAID AT THEIR REGULAR RATE OF PAY AS UNSKILLED LABORERS, AND, ACCORDING TO THE SUPERINTENDENT OF CONSTRUCTION, ACCEPTED PAYMENT AT THAT RATE WITHOUT OBJECTION. IF THE MEN WERE IN FACT ENTITLED TO CERTIFICATION IN A STATUS OTHER THAN AS UNSKILLED LABORERS, IT IS TO BE ASSUMED SUCH CERTIFICATION WOULD HAVE BEEN MADE, OR AT LEAST CONTENDED FOR, AND WAGES FIXED AND PAID ACCORDINGLY. IT WOULD BE IMPROPER, OF COURSE, TO EMPLOY MEN AS UNSKILLED LABORERS BUT ACTUALLY FOR WORK ENTITLING TO A HIGHER CLASSIFICATION AND BETTER PAY, BUT THE CIRCUMSTANCES THAT AN UNSKILLED LABORER IS, UPON OCCASION, ENGAGED ON WORK WHICH USUALLY WOULD BE PERFORMED BY A PERSON OTHERWISE CLASSIFIED DOES NOT ORDINARILY CONTEMPLATE ADJUSTMENTS AND READJUSTMENTS IN THE COMPENSATION RATE IN CONNECTION WITH EACH SUCH OCCASION, OR, PER SE, ENTITLE SUCH UNSKILLED LABORER TO THE RATE OF PAY APPLICABLE TO THE PARTICULAR CLASS OF WORK TO WHICH SO TEMPORARILY ASSIGNED--- THERE BEING INVOLVED A PARTICULAR MATTER AND IT BEING GENERALLY RECOGNIZED THAT THE STATUS IN WHICH A PERSON IS CLASSIFIED CONTROLS THE RATE OF PAY AND NOT NECESSARILY THE CLASS OF WORK TO WHICH HE MAY BE OCCASIONALLY BUT TEMPORARILY ASSIGNED FROM TIME TO TIME AS EXIGENCIES MAY REQUIRE.

AS THE FACTS APPEAR, THE FIVE MEN WERE CLASSIFIED AND EMPLOYED AS UNSKILLED LABORERS, AND, IN GENERAL, ACTUALLY PERFORMED THE WORK OF UNSKILLED LABORERS. WHILE OCCASIONALLY THEY WERE TEMPORARILY ASSIGNED TO ASSIST CALKERS IT DOES NOT APPEAR THEY WERE EVER CLASSIFIED OR EMPLOYED AS CALKERS' HELPERS, AND THE EXTENT OF THEIR USE ON WORK OTHER THAN OF THE GRADE FOR WHICH CLASSIFIED AND EMPLOYED WAS NOT SUCH AS TO JUSTIFY AT THIS TIME SUCH RETROACTIVE ADJUSTMENTS AS TO ENTITLE TO A HIGHER RATE OF PAY THAN THAT FOR WHICH CLASSIFIED AND EMPLOYED, AND PAID. SEE ALSO 2 COMP. GEN. 16. ..END :