A-82878, JANUARY 18, 1937, 16 COMP. GEN. 660

A-82878: Jan 18, 1937

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ESTABLISHING A 40- HOUR WEEK FOR EMPLOYEES IN THE SEVERAL TRADES AND OCCUPATIONS WHOSE COMPENSATION WAS THERETOFORE SET BY WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES. IS APPLICABLE TO EMPLOYEES OF THE DISTRICT OF COLUMBIA WHOSE DUTIES AND COMPENSATION RATE-FIXING BASIS IS SUCH AS TO COME WITHIN THE TERMS OF SAID PROVISIONS. AS THE 40-HOUR WEEK PROVISIONS ARE NOT SELF-EXECUTING AND REQUIRE AFFIRMATIVE ACTION. EMPLOYEES SO CLASSIFIED ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR OVERTIME PERFORMED IN PAST PERIODS IN EXCESS OF 40 HOURS PER WEEK. IS. WERE ACCUMULATED. "THE EMPLOYEES AT THIS SHOP WORK FOUR HOURS ON SATURDAYS AND ARE PAID FOR EIGHT HOURS.'. FOR THE SEVERAL TRADES AND OCCUPATIONS WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES.

A-82878, JANUARY 18, 1937, 16 COMP. GEN. 660

FORTY-HOUR WEEK - APPLICABILITY TO DISTRICT OF COLUMBIA EMPLOYEES - OVERTIME AND WAGE INCREASE ADJUSTMENTS SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING A 40- HOUR WEEK FOR EMPLOYEES IN THE SEVERAL TRADES AND OCCUPATIONS WHOSE COMPENSATION WAS THERETOFORE SET BY WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES, IS APPLICABLE TO EMPLOYEES OF THE DISTRICT OF COLUMBIA WHOSE DUTIES AND COMPENSATION RATE-FIXING BASIS IS SUCH AS TO COME WITHIN THE TERMS OF SAID PROVISIONS, THE PROPER CLASSIFICATION TO BE A MATTER FOR ADMINISTRATIVE CONSIDERATION, BUT AS THE 40-HOUR WEEK PROVISIONS ARE NOT SELF-EXECUTING AND REQUIRE AFFIRMATIVE ACTION, EMPLOYEES SO CLASSIFIED ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR OVERTIME PERFORMED IN PAST PERIODS IN EXCESS OF 40 HOURS PER WEEK, NOR MAY SUCH WAGE ADJUSTMENTS AS CONTEMPLATED BY SAID SECTION BE MADE RETROACTIVELY EFFECTIVE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, JANUARY 18, 1937:

YOUR LETTER OF DECEMBER 28, 1936, RECEIVED JANUARY 8, 1937, IS, IN PART, AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA DESIRE TO SUBMIT FOR YOUR EARLY CONSIDERATION AND ADVICE THE CLAIM OF A PAINTER AT THE DISTRICT OF COLUMBIA REPAIR SHOP HAVING A MORE OR LESS PERMANENT STATUS, FOR ADDITIONAL COMPENSATION FOR ALLEGED OVERTIME PERFORMED IN EXCESS OF 40 HOURS A WEEK.

THE DETAILS OF THE CLAIM INDICATE THAT DURING THE PERIODS MARCH 28 TO JUNE 30, 1934, AND JULY 7, 1934, TO AUGUST 31, 1935, OVERTIME OF FOUR HOURS ON SATURDAYS, EIGHT HOURS ON SUNDAY, SEPTEMBER 9, TWO HOURS ON MONDAY, SEPTEMBER 10, TWO HOURS ON TUESDAY, SEPTEMBER 11, AND TWO HOURS ON WEDNESDAY, SEPTEMBER 12, WERE ACCUMULATED, TO WHICH THERE HAS BEEN ADDED ONE-HALF TIME FOR OVERTIME, OR SIX HOURS FOR EACH SATURDAY, AT 95 CENTS AN HOUR. THE ENGINEER IN CHARGE OF THE REPAIR SHOP HAS CERTIFIED TO THE CORRECTNESS OF THIS OVERTIME, BUT HAS STATED THAT AS TO THE ALLEGED OVERTIME CLAIMED FOR SATURDAYS,"THE EMPLOYEES AT THIS SHOP WORK FOUR HOURS ON SATURDAYS AND ARE PAID FOR EIGHT HOURS.' IN OTHER WORDS, THESE EMPLOYEES RECEIVE A FULL DAY'S PAY FOR FOUR HOURS' SERVICE PERFORMED ON SATURDAYS.

SECTION 23 OF THE ACT OF MARCH 28, 1934 (48 STAT. 522), PROVIDES:

"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 COMMISSIONERS OF THE DISTRICT OF COLUMBIA, UNDER DATE OF JANUARY 24, 1930, ESTABLISHED A SCALE OF WAGES FOR MECHANICS AND LABORERS EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, EFFECTIVE ON AND AFTER APRIL 1, 1930, AND AT THE SAME TIME APPROVED A DETAILED REPORT OF THE WAGE BOARD DATED SEPTEMBER 28, 1929, INDICATING A GROUP CLASSIFICATION OF MECHANICS, LABORERS, AUTO DRIVERS, ETC., ON A SLIDING SCALE DEPENDING UPON THE LENGTH OF SERVICE. PAINTERS ARE DESCRIBED UNDER THE CAPTION "MECHANICS AND JUNIOR MECHANICS" OF THE REPORT. THE SCALE, HOWEVER, DOES NOT ATTEMPT TO ESTABLISH A WAGE SCALE ON A WEEKLY BASIS, BUT RATHER ON A PER DIEM BASIS.

THE ORDER OF THE COMMISSIONERS FURTHER PROVIDED THAT IN THE JUDGMENT OF THE HEADS OF THE DEPARTMENTS, THE RATES ESTABLISHED MAY BE EXCEEDED FOR BRIEF TERMS OF EMPLOYMENT, AND THAT THE PAY OF ANY EMPLOYEE WHOSE COMPENSATION IS SPECIFICALLY FIXED BY COMMISSIONERS' ORDER SHALL NOT BE AFFECTED BY THE WAGE SCALE. AT PRESENT THERE ARE NO PER DIEM EMPLOYEES WHOSE COMPENSATION IS SPECIFICALLY FIXED BY COMMISSIONERS' ORDER AS SUCH, EXCEPT THE THREE CHAUFFEURS TO THE COMMISSIONERS. THAT IS TO SAY, THEY ARE ALL FIXED BY THE COMMISSIONERS' ORDER OF JANUARY 24, 1930, AS AMENDED, AND ARE NOW CONSIDERED UNDER THE PER DIEM WAGE SCALE WITH THE EXCEPTION OF LABORER APPRENTICES, APPROVED BY THE COMMISSIONERS PRIOR TO JUNE 1, 1932. THE GROUP OF PER DIEM EMPLOYEES REFERRED TO CONTENDS THAT THE CLAIM PRESENTED COMES WITHIN THE PURVIEW OF THE COMPTROLLER GENERAL'S DECISIONS, 13 COMP. GEN. 265, 277, AND 307.

THERE ARE AT PRESENT EMPLOYED, PURSUANT TO SECTIONS 2, 3, AND 4 OF THE 1937 DISTRICT OF COLUMBIA APPROPRIATION ACT, APPROVED JUNE 23, 1936, APPROXIMATELY 2,000 PERMANENT PER DIEM EMPLOYEES OF THE DISTRICT GOVERNMENT--- THAT IS, EMPLOYEES WHO HAVE QUALIFIED FOR RETIREMENT STATUS AND HAVE BEEN IN THE SERVICE FOR TEN CONSECUTIVE MONTHS OR MORE, AND APPROXIMATELY 800 TEMPORARY PER DIEM EMPLOYEES OF THE DISTRICT GOVERNMENT- -- THAT IS, ENGAGED ON A ,WHEN-ACTUALLY EMPLOYED" BASIS, AS DISTINGUISHED FROM A CONTINUOUS EMPLOYMENT. IT IS CONSIDERED THAT THIS LATTER GROUP WOULD NOT BE ENTITLED TO THE BENEFITS OF THE ACT, SUPRA.

PRIOR TO THE ACT OF MARCH 3, 1931, ALL PER DIEM EMPLOYEES, WHETHER PERMANENT OR TEMPORARY, WERE ENGAGED ON A 48-HOUR WEEK BASIS, AND SINCE THAT TIME HAVE BEEN ENGAGED ON A 44-HOUR WEEK BASIS, AND HAVE SIGNED PAY ROLLS AND ACCEPTED PAYMENT IN FULL FOR SERVICE RENDERED, INCLUDING THE PAINTERS ABOVE REFERRED TO.

IN VIEW OF YOUR DECISION TO THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA DATED JULY 7, 1934 (A-56394), HOLDING SECTION 21 (E) AS BEING APPLICABLE TO OFFICERS AND TEACHERS IN THE PUBLIC SCHOOLS, AS WELL AS PRIVATES OF THE POLICE AND FIRE DEPARTMENTS, THERE WOULD BE FOR CONSIDERATION 13 COMP. GEN. 267 WHEREIN IT WAS HELD THAT THE TERM "WAGE BOARD AND OTHER WAGE FIXING AUTHORITIES" SHOWS "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.' THERE ARE NO SPECIFIC STATUTES FIXING THE RATE OF WAGES WHICH MAY BE PAID TO EITHER CLASS OF PER DIEM EMPLOYES OF THE DISTRICT OF COLUMBIA. THE SALARY RATES WERE FIXED ADMINISTRATIVELY BY THE COMMISSIONERS PRIOR TO JUNE 1, 1932, WITH THE EXCEPTION OF WAGES OF LABORER APPRENTICES. SEE ALSO 14COMP. GEN. 199 WHEREIN THERE WAS INVOLVED A CLASS OF EMPLOYEES NOT CONSIDERED AS COMING UNDER THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, SUCH AS CARPENTERS, BRICKLAYERS, PAINTERS, PLUMBERS, AND IN GENERAL, SIMILAR TO THE PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA, AND IN WHICH IT WAS HELD:

"THE EMPLOYEES OF THE CHEMICAL WARFARE SERVICE AT THE EDGEWOOD ARSENAL WHOSE COMPENSATION HAS BEEN ADMINISTRATIVELY FIXED PURSUANT TO A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS, ARE SUBJECT TO THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING A 40- HOUR WEEK.'

THIS DECISION CONCLUDES WITH THE FOLLOWING LANGUAGE:

"THE DECISION OF JUNE 30, 1934, TO THE SECRETARY OF WAR, 13 COMP. GEN. 486, INVOLVING THE FIELD EMPLOYEES OF THE ENGINEER CORPS OF THE ARMY, CITED IN YOUR LETTER AS THE BASIS FOR DISCONTINUING THE 40-HOUR WEEK FOR THE EMPLOYEES OF THE CHEMICAL WARFARE SERVICE, WAS BASED ON AN ADMINISTRATIVE PROCEDURE FOR FIXING SALARY RATES RECOGNIZED AS EARLY AS AUGUST 8, 1918 (DECISION OF THE COMPTROLLER OF THE TREASURY OF THAT DATE), AS NOT CONSTITUTING A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS. WAS ON THE BASIS OF THIS EARLY DECISION AND THE APPARENT SUBSEQUENT ADMINISTRATIVE PROCEDURE PURSUANT THERETO THAT THE DECISION CONCLUDED THAT THE FIELD EMPLOYEES OF THE ENGINEER CORPS OF THE ARMY WERE NOT SUBJECT TO THE 40-HOUR WEEK STATUTORY PROVISION. SAID EMPLOYEES WERE REGARDED AS IN A SPECIAL CLASS AND THE DECISION WAS NOT INTENDED TO BE APPLIED TO ANY OTHER CLASS. THE ADMINISTRATIVE OFFICE SHOULD NOT HAVE APPLIED THAT DECISION AS REQUIRING DISCONTINUANCE OF THE 40-HOUR WEEK FOR EMPLOYEES OF THE CHEMICAL WARFARE SERVICE PROPERLY WITHIN THE TERMS OF SECTION 23 OF THE ACT OF MARCH 28, 1934.'

THE DETAIL OF THE UNSIGNED, UNSUPPORTED, UNDATED CLAIM OF THIS PAINTER, STATED AS CONSISTING OF 457 HOURS, OR A TOTAL OF $435.10, IS SET UP UPON THE BASIS OF TIME AND HALF TIME, AND WITHOUT REGARD TO WEEKLY BASIS. THIS POINT YOU ARE ADVISED THAT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA, UNDER DATE OF MAY 26, 1933, ISSUED THE FOLLOWING ORDER:

"THAT THE ORDER OF THE COMMISSIONERS OF AUGUST 25, 1931, PROVIDING FOR THE PAYMENT OF "RATE AND HALF" FOR OVERTIME UNDER THE WAGE SCALE ORDER OF JANUARY 24, 1930, IS HEREBY AMENDED SO AS TO PROVIDE FOR "STRAIGHT TIME" INSTEAD OF "RATE AND HALF" FOR OVERTIME, UNDER THE CONDITIONS SET FORTH IN SAID ORDER.'

YOU WILL NOTE FROM THE LANGUAGE OF THE CURRENT DISTRICT OF COLUMBIA APPROPRIATION ACT THAT ALL PER DIEM EMPLOYEES MAY BE ENGAGED "TEMPORARILY," AND IT MAY BE THAT THESE EMPLOYEES DO NOT HAVE A PERMANENT STATUS AS WOULD QUALIFY THEM FOR CONSIDERATION ON A WEEKLY BASIS, OR ANY OTHER PERIOD THAN MEASURED BY THE DAY. SEE QUOTATION FROM 14 COMP. GEN. 818.

SECTION 2 OF THE CURRENT APPROPRIATION ACT READS AS FOLLOWS:

"THAT THE SERVICES OF DRAFTSMEN, ASSISTANT ENGINEERS, LEVELERS, TRANSITMEN, RODMEN, CHAINMEN, COMPUTERS, COPYISTS, OVERSEERS, AND INSPECTORS TEMPORARILY REQUIRED IN CONNECTION WITH SEWER, WATER, STREET, STREET-CLEANING, OR ROAD WORK, OR CONSTRUCTION AND REPAIR OF BUILDINGS AND BRIDGES, OR ANY GENERAL OR SPECIAL ENGINEERING OR CONSTRUCTION WORK AUTHORIZED BY APPROPRIATIONS MAY BE EMPLOYED EXCLUSIVELY TO CARRY INTO EFFECT SAID APPROPRIATIONS WHEN SPECIFICALLY AND IN WRITING ORDERED BY THE COMMISSIONERS, AND ALL SUCH NECESSARY EXPENDITURES FOR THE PROPER EXECUTION OF SAID WORK SHALL BE PAID FROM AND EQUITABLY CHARGED AGAINST THE SUMS APPROPRIATED FOR SAID WORK; AND THE COMMISSIONERS IN THEIR BUDGET ESTIMATES SHALL REPORT THE NUMBER OF SUCH EMPLOYEES PERFORMING SUCH SERVICES, AND THEIR WORK, AND THE SUMS PAID TO EACH, AND OUT OF WHAT APPROPRIATION: PROVIDED, THAT THE EXPENDITURES HEREUNDER SHALL NOT EXCEED $42,000 DURING THE FISCAL YEAR 1937: PROVIDED FURTHER, THAT, EXCLUDING INSPECTORS IN THE SEWER DEPARTMENT AND ONE INSPECTOR IN THE ELECTRICAL DEPARTMENT, NO PERSON SHALL BE EMPLOYED IN PURSUANCE OF THE AUTHORITY CONTAINED IN THIS PARAGRAPH FOR A LONGER PERIOD THAN NINE MONTHS IN THE AGGREGATE DURING THE FISCAL YEAR.

"THE COMMISSIONERS, OR THEIR DULY DESIGNATED REPRESENTATIVES, ARE FURTHER AUTHORIZED TO EMPLOY TEMPORARILY SUCH LABORERS, SKILLED LABORERS, DRIVERS, HOSTLERS, AND MECHANICS AS MAY BE REQUIRED EXCLUSIVELY IN CONNECTION WITH SEWER, WATER, STREET AND ROAD WORK, AND STREET CLEANING, OR THE CONSTRUCTION AND REPAIR OF BUILDINGS AND BRIDGES, FURNITURE AND EQUIPMENTS, AND ANY GENERAL OR SPECIAL ENGINEERING OR CONSTRUCTION OR REPAIR WORK, AND TO INCUR ALL NECESSARY ENGINEERING AND OTHER EXPENSES, EXCLUSIVE OF PERSONAL SERVICES, INCIDENTAL TO CARRYING ON SUCH WORK AND NECESSARY FOR THE PROPER EXECUTION THEREOF, SAID LABORERS, SKILLED LABORERS, DRIVERS, HOSTLERS, AND MECHANICS TO BE EMPLOYED TO PERFORM SUCH WORK AS MAY NOT BE REQUIRED BY LAW TO BE DONE UNDER CONTRACT, AND TO PAY FOR SUCH SERVICES AND EXPENSES FROM THE APPROPRIATIONS UNDER WHICH SUCH SERVICES ARE RENDERED AND EXPENSES INCURRED.'

1. ASSUMING THAT THIS PAINTER WORKED IN EXCESS OF 40 HOURS A WEEK, THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA WOULD APPRECIATE EARLY ADVICE FROM YOU AS TO WHETHER THERE IS ANY MERIT IN HIS CLAIM AND THE CLAIMS OF OTHER EMPLOYEES IN A SIMILAR STATUS TO COMPENSATION FOR STRAIGHT TIME, FOR OVERTIME, FOR SERVICES PERFORMED IN EXCESS OF 40 HOURS IN ANY GIVEN WEEK.

2. IN VIEW OF COMMISSIONERS' ORDER OF MAY 26, 1933, QUOTED HEREIN (PAGE 5), WOULD THESE EMPLOYEES BE ENTITLED TO TIME AND HALF TIME FOR OVERTIME PERFORMED IN EXCESS OF 40 HOURS A WEEK?

3.ASSUMING YOUR ANSWER TO THESE QUESTIONS TO BE IN THE AFFIRMATIVE, SHOULD THE SALARY OF THESE PER DIEM EMPLOYEES NOW IN THE SERVICE BE ADJUSTED IN ACCORDANCE WITH THE ACT OF MARCH 28, 1934, EFFECTIVE AS OF THAT DATE, OR CURRENTLY WITH THE NEXT PAY PERIOD?

WHILE SECTION 23 OF THE ACT OF MARCH 28, 1934, QUOTED IN YOUR LETTER, ESTABLISHING A 40-HOUR WEEK FOR EMPLOYEES IN THE SEVERAL TRADES AND OCCUPATIONS WHOSE COMPENSATION WAS THERETOFORE SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES IS NOT EXPRESSLY MADE APPLICABLE TO EMPLOYEES OF THE DISTRICT OF COLUMBIA, AS ARE CERTAIN OTHER SECTIONS IN THE SAME STATUTE, NEITHER DOES SAID SECTION REFER SPECIFICALLY TO EMPLOYEES OF THE FEDERAL GOVERNMENT. CONSEQUENTLY, IN VIEW OF THE BROAD TERMS OF SAID SECTION, THE CONCLUSION WOULD APPEAR JUSTIFIED THAT IT APPLIES TO EMPLOYEES OF THE DISTRICT OF COLUMBIA AS WELL AS TO EMPLOYEES OF THE FEDERAL GOVERNMENT, AND THAT EMPLOYEES OF THE DISTRICT GOVERNMENT ARE SUBJECT TO THE 40-HOUR WEEK PROVISIONS IF THE CHARACTER OF THEIR DUTIES AND THE BASIS FOR FIXING THEIR RATES OF COMPENSATION OTHERWISE BRING THEM WITHIN SAID PROVISIONS.

THE PROVISIONS OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR EMPLOYMENT OF SERVICES ON A TEMPORARY BASIS AND LIMITING EMPLOYMENT TO 9 MONTHS DURING THE FISCAL YEAR FOR CERTAIN CLASSES OF WORK DOES NOT EXCLUDE EMPLOYEES WHOSE WAGES ARE PAID UNDER SAID APPROPRIATION FROM THE PROVISIONS OF THE 40-HOUR WEEK STATUTE. NEITHER DOES THE FACT THAT THE RATES OF WAGES ARE FIXED ON A PER DIEM, PER-HOUR, OR PIECE WORK BASIS EXCLUDE THEM FROM THE 40-HOUR WEEK PROVISIONS. SEE 13 COMP. GEN. 277. THE SATURDAY HALF-HOLIDAY LAW HAS NO APPLICATION TO EMPLOYEES PAID ON A 40 -HOUR WEEK BASIS UNDER THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, SUPRA. DECISION OF DECEMBER 17, 1936, A-82245, 16 COMP. GEN. 600. THE WAGE SCALE REPORT OF SEPTEMBER 28, 1929, PRIOR TO JUNE 1, 1932, THE DATE STATED IN THE ACT, FIXING A WAGE SCALE FOR THE EMPLOYEES IN QUESTION, A COPY OF WHICH ACCOMPANIED YOUR LETTER, WAS MADE AND SIGNED BY THE "DISTRICT OF COLUMBIA WAGE BOARD" CONSISTING OF A CHAIRMAN AND FOUR OTHER MEMBERS. THE REPORT CLEARLY SHOWS A PROCEDURE CONTEMPLATED BY THE WORDS OF THE ACT "SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES.' THE CLASSES OF POSITIONS FOR WHICH THE SCALE OF WAGES WAS ADOPTED PURSUANT TO THE REPORT ARE AS FOLLOWS: MECHANIC GROUP:

TRADE FOREMEN.

SENIOR MECHANICS.

MECHANICS.

JUNIOR MECHANICS.

MINOR MECHANICS.

SUB-MECHANICS. LABOR GROUP:

LABOR FOREMEN.

LABOR SUB-FOREMEN.

SKILLED LABORERS.

LABORERS.

DRIVERS.

WATCHMEN.

JUNIOR LABORERS. AUTO DRIVER GROUP:

HEAVY TRUCK DRIVERS.

LIGHT TRUCK DRIVERS.

PASSENGER CAR DRIVERS. CHECKER GROUP:

MATERIAL CHECKERS.

SOME OF THESE CLASSES OF POSITIONS WOULD APPEAR TO BE WITHIN THE TERMS OF THE ACT--- PARTICULARLY THOSE UNDER THE MECHANIC GROUP AND PERHAPS SOME CLASSES UNDER THE LABOR GROUP. BUT IT IS DOUBTFUL WHETHER THE LAST THREE CLASSES UNDER THE LABOR GROUP OR ANY OF THE CLASSES UNDER THE AUTO-DRIVER GROUP OR THE CHECKER GROUP COME WITHIN THE TERM "SEVERAL TRADES AND OCCUPATIONS" AS REFERRED TO IN THE STATUTE. FOR INSTANCE, THE CLASSIFICATION ACT AS AMENDED BY THE WELCH ACT OF MAY 28, 1928, 45 STAT. 782, SEEMS TO INCLUDE IN GRADE 3 OF THE CUSTODIAL SERVICE POSITIONS REQUIRING THE "GUARDING OF OFFICE AND STORAGE BUILDINGS" AND THOSE "OPERATING PASSENGER AND FREIGHT AUTOMOBILES.' THE PROPER CLASSIFICATION OF THESE POSITIONS IS A QUESTION FOR ADMINISTRATIVE CONSIDERATION.

THE 40-HOUR WEEK STATUTORY PROVISIONS ARE NOT SELF-EXECUTING, THE STATUTE PROVIDING THAT THE SCHEDULES OF WAGES IN EFFECT JUNE 1, 1932, ON A BASIS OF 44 OR 48 HOURS PER WEEK "SHALL BE REESTABLISHED" ON A 40 HOUR WEEK BASIS WITH PROVISION FOR OVERTIME AT THE RATE OF TIME AND ONE-HALF. SEE 14 COMP. GEN. 199, 201. THE DECISIONS OF THIS OFFICE SET FORTH THE FORMULAS IN THIS REGARD. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE, AND QUESTION 2 IS ANSWERED IN THE NEGATIVE INSOFAR AS PAST PERIODS ARE CONCERNED.

WITH RESPECT TO QUESTION 3, THE WAGES OF SUCH OF THE EMPLOYEES IN QUESTION PROPERLY WITHIN THE TERMS OF THE ACT AS ARE NOW IN THE SERVICE SHOULD BE ADJUSTED IN ACCORDANCE WITH SECTION 23 OF THE ACT OF MARCH 28, 1934, PROSPECTIVELY EFFECTIVE.