A-91668, JANUARY 11, 1938, 17 COMP. GEN. 564

A-91668: Jan 11, 1938

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NOT UPON THE PLACE OR CITY IN WHICH THE OFFICE INVOLVED IS LOCATED. IS AS FOLLOWS: THE SOCIAL SECURITY BOARD IS UNDER THE IMMEDIATE NECESSITY OF OPERATING THREE SHIFTS OF EMPLOYEES ENGAGED IN ITS OLD-AGE INSURANCE RECORDS DIVISION LOCATED IN BALTIMORE. IS. THIS IS PARTICULARLY TRUE OF THE SHIFT WHICH WILL BEGIN WORK IN THE MIDDLE OF THE NIGHT. THE FOLLOWING QUESTIONS ARE SUBMITTED FOR CONSIDERATION: (1) WHETHER THE BOARD UNDER EXISTING STATUTES RELATING TO HOURS OF WORK OF GOVERNMENT EMPLOYEES (30 STAT. 316. IS AUTHORIZED TO INAUGURATE A FIVE-DAY WEEK UNDER THE CIRCUMSTANCES OUTLINED ABOVE. (2) IF THE ANSWER TO QUESTION (1) IS IN THE AFFIRMATIVE. WHETHER ANY DISTINCTION IS TO BE MADE BETWEEN THE EMPLOYEES CARRIED ON DEPARTMENTAL ROLLS BUT WORKING IN BALTIMORE AND THOSE CARRIED ON FIELD ROLLS.

A-91668, JANUARY 11, 1938, 17 COMP. GEN. 564

OFFICERS AND EMPLOYEES - DEPARTMENTAL AND FIELD SERVICES - 5-DAY WEEK - NIGHT SHIFT FOR SOCIAL SECURITY BOARD A 5-DAY WEEK MAY NOT BE ESTABLISHED ADMINISTRATIVELY UNDER EXISTING LAW, FOR SUPERVISORY AND ADMINISTRATIVE EMPLOYEES IN THE DEPARTMENTAL SERVICE, BUT MAY BE SO ESTABLISHED FOR EMPLOYEES IN THE FIELD SERVICE, AND THE DETERMINATION AS TO DEPARTMENTAL OR FIELD SERVICE DEPENDS UPON THE WORK PERFORMED, WHETHER LOCAL, OR OF A GENERAL SUPERVISORY AND ADMINISTRATIVE NATURE, AND NOT UPON THE PLACE OR CITY IN WHICH THE OFFICE INVOLVED IS LOCATED. A 5-DAY WEEK WITH FULL TIME COMPENSATION MAY BE ESTABLISHED ADMINISTRATIVELY FOR THE NIGHT SHIFT OF ADMINISTRATIVE FIELD EMPLOYEES OF THE SOCIAL SECURITY BOARD LOCATED AT BALTIMORE, MD., BUT NOT FOR THE NIGHT SHIFT OF THE DEPARTMENTAL EMPLOYEES SO LOCATED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, SOCIAL SECURITY BOARD, JANUARY 11, 1938:

YOUR LETTER OF JANUARY 7, 1938, IS AS FOLLOWS:

THE SOCIAL SECURITY BOARD IS UNDER THE IMMEDIATE NECESSITY OF OPERATING THREE SHIFTS OF EMPLOYEES ENGAGED IN ITS OLD-AGE INSURANCE RECORDS DIVISION LOCATED IN BALTIMORE, MARYLAND, AND OF INCREASING ITS STAFF TO A CONSIDERABLE EXTENT IN ORDER TO OPERATE THE THREE SHIFTS AT FULL CAPACITY. AN UNUSUAL AMOUNT OF DIFFICULTY HAS BEEN, AND IS, BEING EXPERIENCED IN SECURING ADEQUATE PERSONNEL UNDER THE CONDITIONS UNDER WHICH THE EMPLOYMENT CAN BE OFFERED. THIS IS PARTICULARLY TRUE OF THE SHIFT WHICH WILL BEGIN WORK IN THE MIDDLE OF THE NIGHT. THE BOARD FEELS THAT IF IT SHOULD INAUGURATE A FIVE-DAY WEEK OF THIRTY-NINE HOURS FOR THIS "MIDNIGHT" SHIFT, INSTEAD OF THE USUAL SIX-DAY WEEK OF THAT NUMBER OF HOURS, IT WOULD BE OF MATERIAL BENEFIT IN SECURING THE NEEDED PERSONNEL AND IN OPERATING THAT SHIFT EFFICIENTLY.

THE FOLLOWING QUESTIONS ARE SUBMITTED FOR CONSIDERATION: (1) WHETHER THE BOARD UNDER EXISTING STATUTES RELATING TO HOURS OF WORK OF GOVERNMENT EMPLOYEES (30 STAT. 316, 5 U.S.C. 29; 46 STAT. 1482, 5 U.S.C. 26A; AND 49 STAT. 1161, 5 U.S.C. 29A, SUPP.) IS AUTHORIZED TO INAUGURATE A FIVE-DAY WEEK UNDER THE CIRCUMSTANCES OUTLINED ABOVE, AND (2) IF THE ANSWER TO QUESTION (1) IS IN THE AFFIRMATIVE, WHETHER ANY DISTINCTION IS TO BE MADE BETWEEN THE EMPLOYEES CARRIED ON DEPARTMENTAL ROLLS BUT WORKING IN BALTIMORE AND THOSE CARRIED ON FIELD ROLLS.

IT SHOULD BE POINTED OUT IN CONNECTION WITH THE LATTER QUESTION THAT THE SMALL NUMBER OF EMPLOYEES ON DEPARTMENTAL ROLLS WHO MAY BE FOUND TO BE CONCERNED HAVE BALTIMORE AS THEIR OFFICIAL DUTY STATION AND NOT WASHINGTON, D.C. IT SHOULD PERHAPS ALSO BE POINTED OUT THAT MOST OF THE EMPLOYEES CONCERNED WILL BE ENGAGED ON A TEMPORARY BASIS AND THAT THE FIVE -DAY WEEK SCHEDULE IS CONTEMPLATED ONLY FOR THE "MIDNIGHT" SHIFT AND ONLY FOR SUCH PERIOD AS IT IS FOUND NECESSARY TO OPERATE THAT SHIFT, WHICH WE DO NOT ANTICIPATE WILL BE FOR A PERIOD LONGER THAN 90 DAYS.

IT IS UNDERSTOOD THE PERSONNEL INVOLVED ARE CLERKS, ETC., ENGAGED IN SUPERVISORY AND ADMINISTRATIVE WORK AND NOT MECHANICS OR LABORERS SUBJECT TO THE TERMS OF THE 8-HOUR LAW AS AMENDED BY THE ACT OF MARCH 3, 1913, 37 STAT. 726, AND SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING A 40-HOUR WEEK FOR CERTAIN CLASSES OF EMPLOYEES.

IN DECISION OF JUNE 4, 1936, 15 COMP. GEN. 1056, 1057, IT WAS HELD:

SECTION 5 OF THE ACT OF MAY 3, 1893, AS AMENDED BY SECTION 7 OF THE ACT OF MARCH 15, 1898 (30 STAT. 316), CITED BY YOU, PROVIDES IN PART AS FOLLOWS:

"HEREAFTER IT SHALL BE THE DUTY OF THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS, IN THE INTEREST OF THE PUBLIC SERVICE, TO REQUIRE OF ALL CLERKS AND OTHER EMPLOYEES, OF WHATEVER GRADE OR CLASS, IN THEIR RESPECTIVE DEPARTMENTS, NOT LESS THAN SEVEN HOURS OF LABOR EACH DAY, EXCEPT SUNDAYS AND DAYS DECLARED PUBLIC HOLIDAYS BY LAW OR EXECUTIVE ORDER; * * *"

THIS STATUTE, WHICH IS STILL IN EFFECT, REQUIRES WORK ON 6 DAYS PER WEEK, EXCEPT WHEN 1 OF THE 6 DAYS IS A HOLIDAY DECLARED BY LAW OR EXECUTIVE ORDER, AND IS APPLICABLE TO ALL ADMINISTRATIVE EMPLOYEES IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA. WHILE THE SATURDAY HALF -HOLIDAY LAW OF MARCH 3, 1931, 46 STAT. 1482, SHORTENED TO 4 HOURS THE WORK DAY ON SATURDAY, IT DID NOT OTHERWISE AFFECT THE REQUIREMENT OF THE ACT OF MARCH 15, 1898, SUPRA.

IN DECISION OF AUGUST 28, 1937, 17 COMP. GEN. 192, 193, WITH REFERENCE TO CERTAIN EMPLOYEES IN THE FIELD SERVICE, IT WAS STATED AS FOLLOWS:

SECTION 5 OF THE ACT OF MARCH 3, 1893, 27 STAT. 715 AS AMENDED BY SECTION 7 OF THE ACT OF MARCH 15, 1898, 30 STAT. 316, REQUIRING "NOT LESS THAN 7 HOURS OF LABOR EACH DAY, EXCEPT SUNDAYS AND DAYS DECLARED PUBLIC HOLIDAYS BY LAW OR EXECUTIVE ORDER," WHICH WAS HELD IN DECISION OF JUNE 4, 1936, 15 COMP. GEN. 1056, 1058, CITED BY YOU, TO REQUIRE "WORK ON 6 DAYS PER WEEK, EXCEPT WHEN 1 OF THE SIX DAYS IS A HOLIDAY DECLARED BY LAW OR EXECUTIVE ORDER," IS NOT APPLICABLE TO EMPLOYEES IN THE FIELD SERVICE. OTHER THAN THE 8-HOUR LAW, AS AMENDED BY THE ACT OF MARCH 3, 1913, 37 STAT. 726, PROHIBITING THE EMPLOYMENT OF MECHANICS, LABORERS, AND THOSE IN SIMILAR OCCUPATIONS FOR MORE THAN 8 HOURS ON ANY 1 CALENDAR DAY, EXCEPT IN CASE OF EXTRAORDINARY EMERGENCY, THERE IS NO STATUTE FIXING EITHER A MINIMUM OR MAXIMUM NUMBER OF HOURS WORK REQUIRED OF FIELD EMPLOYEES PER DAY OR PER WEEK. IT IS UNDERSTOOD THE 8-HOUR LAW IS NOT HERE INVOLVED.

ACCORDINGLY, IF ADMINISTRATIVELY DETERMINED TO BE NECESSARY IN THE PRESENT INSTANCE, THIS OFFICE WOULD NOT BE REQUIRED TO OBJECT TO THE ESTABLISHMENT OF A 5-DAY WEEK TOUR OF DUTY FOR THE COOPERATIVE EMPLOYEES IN QUESTION.

THERE IS NOTHING IN THE SATURDAY HALF-HOLIDAY LAW OF MARCH 3, 1931, 46 STAT. 1482, OR IN THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, CITED BY YOU, TO REQUIRE THE MAINTENANCE OF A 6-DAY WEEK IN THE FIELD SERVICE.

THE RULE MAY BE STATED, THEREFORE, THAT, UNDER EXISTING LAW, A 5 DAY WEEK MAY NOT BE ESTABLISHED ADMINISTRATIVELY FOR SUPERVISORY AND ADMINISTRATIVE EMPLOYEES IN THE DEPARTMENTAL SERVICE, BUT MAY BE ESTABLISHED ADMINISTRATIVELY FOR EMPLOYEES IN THE FIELD SERVICE.

IN DECISION OF OCTOBER 19, 1925, 5 COMP. GEN. 272, 273, IT WAS STATED:

* * * WHAT IS KNOWN AS A "FIELD" FORCE IS ENGAGED, DIRECTLY OR INDIRECTLY, IN EXECUTING THE LAWS LOCALLY, WHILE A "DEPARTMENTAL" FORCE IS ENGAGED IN GENERAL SUPERVISORY AND ADMINISTRATIVE DIRECTION AND CONTROL OF THE VARIOUS FIELD FORCES. VARIOUS GENERAL LAWS, SUCH AS THE POSTAL LAWS, MUST BE EXECUTED IN THE DISTRICT OF COLUMBIA AS WELL AS ELSEWHERE. FORCE ENGAGED EXCLUSIVELY IN THE LOCAL EXECUTION OF SUCH LAWS IN THE DISTRICT OF COLUMBIA IS A FIELD FORCE AS MUCH SO AS A LIKE FORCE IN ANY OTHER SECTION OF THE COUNTRY. IT IS ONLY IN THIS SENSE THAT THE TERM "FIELD" FORCE MAY PROPERLY BE APPLIED TO THE DISTRICT. SEE DISCUSSION IN DECISIONS REPORTED IN 21 COMP. DEC. 709, AND 27 COMP. DEC. 643.

CONVERSELY, A FORCE ENGAGED EXCLUSIVELY IN DEPARTMENTAL WORK, THAT IS, IN GENERAL SUPERVISION AND ADMINISTRATIVE DIRECTION AND CONTROL OF THE VARIOUS FIELD FORCES, EVEN THOUGH WITH HEADQUARTERS OUTSIDE OF THE DISTRICT OF COLUMBIA--- IN THIS INSTANCE AT BALTIMORE--- IS NEVERTHELESS A DEPARTMENTAL FORCE AS MUCH SO AS THE DEPARTMENTAL FORCE IN THE DISTRICT OF COLUMBIA.

ACCORDINGLY, I HAVE TO ADVISE THAT A 5-DAY WEEK WITH FULL TIME COMPENSATION MAY BE ESTABLISHED FOR THE NIGHT SHIFT OF FIELD EMPLOYEES, BUT NOT FOR THE NIGHT SHIFT OF THE DEPARTMENTAL EMPLOYEES LOCATED AT BALTIMORE.