A-98723, NOVEMBER 28, 1938, 18 COMP. GEN. 485

A-98723: Nov 28, 1938

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- SAVED TO EMPLOYEES THE AMOUNT THEY COULD HAVE EARNED DURING FULL TIME IN A REGULAR WORK WEEK PAID ON THE BASIS OF THE ESTABLISHED SCHEDULE OF WAGES PER HOUR. NOT NECESSARILY WHAT THEY WERE ACTUALLY EARNING DUE TO OVERTIME. EMPLOYEES OF THE PANAMA CANAL WHO WERE PAID ON JUNE 1. WHOSE HOURLY WAGE RATES WERE INCREASED UNDER THE 40-HOUR-WEEK STATUTE. ARE NOT ENTITLED TO ANY FURTHER INCREASE OF COMPENSATION UNDER THE SAID ACT EVEN THOUGH THE HOURLY RATE AS INCREASED RESULTS IN LESS EARNINGS THAN RECEIVED BY THE CLASSES OF EMPLOYEES WHOSE SCHEDULE OF WAGE RATES WAS FIXED ON A MONTHLY BASIS AS OF JUNE 1. IN THE DECISION FIRST CITED IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS): EMPLOYEES OF THE PANAMA CANAL IN THE ARTISAN AND MECHANICAL GROUPS.

A-98723, NOVEMBER 28, 1938, 18 COMP. GEN. 485

COMPENSATION - 40-HOUR WEEK - PANAMA CANAL EMPLOYEES THE 40-HOUR-WEEK STATUTE--- SECTION 23, ACT, MARCH 28, 1934, 48 STAT. 522 --- SAVED TO EMPLOYEES THE AMOUNT THEY COULD HAVE EARNED DURING FULL TIME IN A REGULAR WORK WEEK PAID ON THE BASIS OF THE ESTABLISHED SCHEDULE OF WAGES PER HOUR, PER DAY, PER MONTH, OR PER YEAR, IN EFFECT ON JUNE 1, 1932, AND NOT NECESSARILY WHAT THEY WERE ACTUALLY EARNING DUE TO OVERTIME, ETC. EMPLOYEES OF THE PANAMA CANAL WHO WERE PAID ON JUNE 1, 1932, IN ACCORDANCE WITH AN ESTABLISHED WAGE SCHEDULE FIXED ON AN HOURLY BASIS WHICH HAD NOT BEEN CONVERTED TO A MONTHLY BASIS AS HAD BEEN DONE IN THE CLASSES CONSIDERED IN DECISION A-54762, 14 COMP. GEN. 156, AND WHOSE HOURLY WAGE RATES WERE INCREASED UNDER THE 40-HOUR-WEEK STATUTE--- SECTION 23, ACT, MARCH 28, 1934, 48 STAT. 522--- BY 20 PERCENT, ARE NOT ENTITLED TO ANY FURTHER INCREASE OF COMPENSATION UNDER THE SAID ACT EVEN THOUGH THE HOURLY RATE AS INCREASED RESULTS IN LESS EARNINGS THAN RECEIVED BY THE CLASSES OF EMPLOYEES WHOSE SCHEDULE OF WAGE RATES WAS FIXED ON A MONTHLY BASIS AS OF JUNE 1, 1932.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE GOVERNOR, THE PANAMA CANAL, NOVEMBER 28, 1938:

YOUR LETTER OF OCTOBER 18, 1938, WITH INCLOSURES, PRESENTS FOR CONSIDERATION THE CLAIMS OF G. W. POUGHER ON BEHALF OF HIMSELF AND OTHER EMPLOYEES IN THE OIL HANDLING PLANTS OF THE PANAMA CANAL FOR AN INCREASE IN THEIR RATES OF COMPENSATION UNDER THE TERMS OF THE 40-HOUR WEEK STATUTE, SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522. THEY ALLEGE IN EFFECT THAT THE ADMINISTRATIVE ADJUSTMENT MADE IN THEIR RATES OF COMPENSATION PURSUANT TO SAID STATUTE RESULTED IN REDUCTION IN THE TOTAL AMOUNT RECEIVED PER MONTH AND THEREFORE THAT THEY DO NOT RECEIVE 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" (QUOTING FROM THE STATUTE). THEY BASE THEIR CLAIMS PRIMARILY ON THE DECISIONS OF THIS OFFICE OF AUGUST 25, 1934, 14 COMP. GEN. 156, AND FEBRUARY 16, 1938, 17 ID. 646.

IN THE DECISION FIRST CITED IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

EMPLOYEES OF THE PANAMA CANAL IN THE ARTISAN AND MECHANICAL GROUPS, INCLUDING SUPERVISORS, WHETHER PAID ON AN ANNUAL, MONTHLY, OR DAILY BASIS, ARE WITHIN THE TERMS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING A 40-HOUR WEEK.

NO CHANGE IS AUTHORIZED IN THE MONTHLY OR ANNUAL RATES OF COMPENSATION OF EMPLOYEES OF THE PANAMA CANAL SUBJECT TO THE 40-HOUR WEEK STATUTORY PROVISION OTHER THAN THAT REQUIRED TO PAY A RATE NOT LOWER THAN THE RATE PER MONTH OR PER ANNUM PAID AS OF JUNE 1, 1932, LESS ANY APPLICABLE PERCENTAGE REDUCTION, AND NO ADDITIONAL COMPENSATION FOR OVERTIME IS AUTHORIZED IN SUCH CASES. THE ACTION OF THE PANAMA CANAL IN ADJUSTING THE COMPENSATION OF CERTAIN EMPLOYEES PREVIOUSLY PAID ON A MONTHLY BASIS TO COMPENSATION ON AN HOURLY BASIS BECAUSE OF THE 40-HOUR-WEEK STATUTORY PROVISIONS, RESULTING IN AN ACTUAL REDUCTION OF COMPENSATION, WAS UNAUTHORIZED AND THE CLAIMS OF THE EMPLOYEES AFFECTED ARE REQUIRED TO BE READJUSTED ON A MONTHLY BASIS, RETROACTIVE AS OF MARCH 28, 1934, THE DATE OF THE ACT.

THERE IS NO CONTENTION ON THE PART OF THE EMPLOYEES THAT THEIR WAGE RATES WERE NOT ADJUSTED ADMINISTRATIVELY UNDER THE RULE STATED IN THE FIRST PARAGRAPH OF THE QUOTED SYLLABUS, BUT THEY CONTEND THAT THEIR MONTHLY EARNINGS AS OF JUNE 1, 1932, HAVE BEEN REDUCED CONTRARY TO THE RULE STATED IN THE SECOND PARAGRAPH.

SAID RULE RELATED ONLY TO CLASSES OF EMPLOYEES WHOSE SCHEDULE OF WAGES HAD SPECIFICALLY BEEN FIXED ON AN ANNUAL OR MONTHLY BASIS ON JUNE 1, 1932, REGARDLESS OF THE FACTORS WHICH MAY HAVE ENTERED INTO THE FIXING OF SAID SCHEDULE, THERE HAVING BEEN STATED IN THE SUBMISSION OF THE PANAMA CANAL AND, QUOTED IN THE DECISION, A NUMBER OF EXAMPLES OR TYPICAL CASES. THE RULE WAS NOT INTENDED TO APPLY AND DOES NOT APPLY TO CLASSES OF EMPLOYEES WHOSE SCHEDULES OF WAGE RATES WERE FIXED ON AN HOURLY BASIS AS OF JUNE 1, 1932, SO AS TO SAVE TO EMPLOYEES THE AMOUNT OF THEIR AVERAGE OF MONTHLY OR WEEKLY EARNINGS AS OF THAT DATE.

YOU STATE SPECIFICALLY IN YOUR CORRESPONDENCE WITH THE EMPLOYEES THAT THEIR SCHEDULE OF WAGE RATES WERE FIXED ON AN HOURLY BASIS AS OF JUNE 1, 1932. APPARENTLY THE EMPLOYEES ACCEPT THIS TO BE TRUE, BUT CONTEND THAT IT WAS THEIR MONTHLY OR WEEKLY EARNINGS THAT WERE SAVED TO THEM BY THEIR 40-HOUR-WEEK STATUTE. TO SHOW THE CONTENTION OF THE EMPLOYEES, THE FOLLOWING IS QUOTED FROM THEIR LETTER TO YOU OF MAY 21, 1938:

THE CONCLUSION APPEARS TO US TO BE INESCAPABLE THAT IF THE COMPENSATION RECEIVED BY ONE CLASS OF EMPLOYEES ON JUNE 1, 1932, ON THE BASIS OF 28 DAYS OF 8 HOURS EACH PER MONTH, INCLUDING A DEFINITE ALLOWANCE FOR NORMAL OR AVERAGE OVERTIME, IS SAVED TO THEM BY THE PROVISIONS OF THE 40-HOUR WEEK LAW, THE EARNINGS OF ANOTHER CLASS OF EMPLOYEES, WORKING ON AN IDENTICAL BASIS, MUST LIKEWISE BE SAVED TO THEM, REGARDLESS OF WHETHER, AT THE MOMENT, EITHER CLASS WAS BEING PAID ON AN HOURLY BASIS WHICH HAD NEVER BEEN CONVERTED, A MONTHLY BASIS WHICH HAD BEEN CONVERTED FROM A FORMER HOURLY BASIS, OR AN HOURLY BASIS WHICH HAD BEEN RECONVERTED FROM A MONTHLY BASIS DERIVED FROM A PREVIOUS CONVERSION FROM AN HOURLY BASIS. WE CONTEND THAT ANY OTHER CONSTRUCTION OF THE COMPTROLLER GENERAL'S DECISION WOULD MEAN THAT, MERELY BECAUSE OF THE FORTUITOUS CIRCUMSTANCE THAT WE HAD NOT BEEN CHANGED FROM AN HOURLY TO A MONTHLY BASIS OF COMPENSATION PRIOR TO JUNE 1, 1932, WE ARE TO SUFFER A LOSS OF NORMAL, FULL-TIME PAY WHICH IS NOT IMPOSED UPON ANY OTHER EMPLOYEES WORKING UNDER IDENTICAL HOURS AND CONDITIONS. HOW, FOR INSTANCE, COULD OUR PAY PROPERLY BE REDUCED, BY THE OPERATION OF THE 40-HOUR WEEK LAW, FROM THE BASIS OF 224 HOURS PER MONTH AT $1.11 PER HOUR, FOR STEAM ENGINEERS, TO THAT OF 208 HOURS PER MONTH AT $1.11 PER HOUR, WHEN A PUMPMAN, WHOSE HOURS AND CONDITIONS OF SERVICE ARE IDENTICAL WITH OURS, AND WHOSE RATES OF PAY, ACCORDING TO THE GOVERNOR,"HAVE BEEN COORDINATED FOR A NUMBER OF YEARS" WITH THOSE OF STEAM ENGINEERS, IS NOT SUBJECTED TO ANY REDUCTION WHATEVER? THE NET RESULT OF THIS PARTICULAR SITUATION IS THAT WHEREAS A STEAM ENGINEER RECEIVED, PRIOR TO THE APPLICATION OF THE 40-HOUR WEEK LAW, $12,00 MORE PER MONTH THAN A PUMPMAN, HE NOW RECEIVES $5.58 PER MONTH LESS; THAT IS, THE DIFFERENTIAL FORMERLY ESTABLISHED IN FAVOR OF THE STEAM ENGINEER IS NOW OPERATING IN REVERSE.

THE 40-HOUR-WEEK STATUTE OPERATED ON WAGE SCHEDULES ONLY, NOT ON TOTAL WEEKLY EARNINGS; THAT IS, THERE WAS SAVED TO THE EMPLOYEES THE AMOUNT THEY COULD HAVE EARNED DURING FULL TIME IN A REGULAR WORK WEEK PAID ON THE BASIS OF THE ESTABLISHED SCHEDULE OF WAGES PER HOUR, PER DAY, PER MONTH, OR PER YEAR IN EFFECT ON JUNE 1, 1932, NOT NECESSARILY WHAT THEY WERE ACTUALLY EARNING DUE TO OVERTIME, ETC. 13 COMP. GEN. 456; 14 ID. 215; ID. 419; ID. 594.

THESE EMPLOYEES WERE PAID ON JUNE 1, 1932, IN ACCORDANCE WITH AN ESTABLISHED WAGE SCHEDULE FIXED ON AN HOURLY BASIS WHICH HAD NOT BEEN CONVERTED TO A MONTHLY BASIS, AS HAD BEEN DONE IN THE CLASSES CONSIDERED IN THE DECISION OF AUGUST 25, 1934, SUPRA, WHICH FORM THE BASIS OF THE RULE STATED IN THE SECOND PARAGRAPH OF THE SYLLABUS. THAT RULE HAS NO APPLICATION TO THESE EMPLOYEES. THE PANAMA CANAL INCREASED THE HOURLY WAGE RATES OF THE CLAIMANTS 20 PERCENT UNDER THE 40-HOUR-WEEK STATUTE, WHICH WAS CORRECT. 13 COMP. GEN. 265; ID. 277; ID. 295; ID. 401. THE FACT, IF IT BE SUCH, THAT SUCH ADJUSTMENT MAY HAVE RESULTED IN LESS EARNINGS THAN RECEIVED BY THE CLASSES OF EMPLOYEES WHOSE SCHEDULE OF WAGE RATES WAS FIXED ON A MONTHLY BASIS AS OF JUNE 1, 1932, DOES NOT JUSTIFY OR AUTHORIZE INCREASING CLAIMANT'S WAGE RATES CORRESPONDINGLY. THE DECISION OF FEBRUARY 16, 1938, ALSO CITED BY THE CLAIMANTS, MERELY APPLIES THE GENERAL RULE TO PERIODS OF LEAVE OF ABSENCE AND HAS NO APPLICATION IN THE INSTANT MATTER.

ACCORDINGLY, THERE APPEARS NO BASIS OF LAW OR FACT FOR ANY INCREASE IN THE WAGES OF THE CLAIMANTS SOLELY BY REASON OF THE TERMS OF THE 40 HOUR- WEEK STATUTE. THE EMPLOYEES SHOULD BE ADVISED ACCORDINGLY.