B-119547, APRIL 16, 1954, 33 COMP. GEN. 477

B-119547: Apr 16, 1954

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1954: REFERENCE IS MADE TO LETTER OF THE ASSISTANT SECRETARY OF DEFENSE DATED APRIL 1. HAVE BEEN EMPLOYING THEIR WORKERS 8 HOURS PER DAY. IT IS FURTHER STATED IN YOUR LETTER THAT IT IS THE FEELING OF THE SECRETARY OF LABOR THAT SUCH AN ADMINISTRATIVE RESTRICTION "WOULD BE AN IMPORTANT CONTRIBUTION TOWARD PROMOTING AND MAINTAINING FAIR LABOR STANDARDS PREVAILING IN THE AREA. TOWARD PROMOTING EQUALITY OF BIDDING OPPORTUNITY AMONG BIDDERS WHO ARE INTERESTED IN MAINTAINING WHAT SEEMS TO BE GENERALLY CONCEDED AS A DESIRABLE AND ACCEPTABLE FAIR LABOR STANDARD. MATERIALLY DISTINGUISHABLE FROM THE ABOVE STATUTES IS THE FAIR LABOR STANDARDS ACT OF JUNE 25. WHICH IS A STATUTE OF GENERAL APPLICATION DESIGNED FOR THE DECLARED PURPOSE OF CORRECTING AND ELIMINATING UNWHOLESOME LABOR CONDITIONS AND UNSAVORY COMMERCIAL PRACTICES IN INDUSTRIES ENGAGED IN INTERSTATE COMMERCE.

B-119547, APRIL 16, 1954, 33 COMP. GEN. 477

CONTRACTS - MILITARY CONSTRUCTION CONTRACTS - LABOR STIPULATIONS APPROPRIATIONS MADE FOR MILITARY CONSTRUCTION WORK MAY NOT BE UTILIZED FOR THE BETTERMENT OF WORKING CONDITIONS AMONG THOSE EMPLOYED ON SUCH CONSTRUCTION WORK, AND THEREFORE DEPARTMENT OF DEFENSE CONSTRUCTION CONTRACTS AND SPECIFICATIONS MAY NOT INCLUDE A MINIMUM WORKWEEK AND OVERTIME WAGE PROVISION IN ORDER TO PROMOTE AND MAINTAIN FAIR LABOR STANDARDS.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF DEFENSE, APRIL 16, 1954:

REFERENCE IS MADE TO LETTER OF THE ASSISTANT SECRETARY OF DEFENSE DATED APRIL 1, 1954, REQUESTING MY OPINION AS TO WHETHER THERE MAY BE ADMINISTRATIVELY INCLUDED IN DEPARTMENT OF DEFENSE CONSTRUCTION SPECIFICATIONS AND CONTRACTS, AS SUGGESTED BY THE SECRETARY OF LABOR, AN APPROPRIATE PROVISION WHICH WOULD LIMIT THE WORK WEEK OF LABORERS AND MECHANICS TO 40 HOURS PER WEEK WITH THE PAYMENT OF OVERTIME COMPENSATION FOR HOURS WORKED IN EXCESS OF 40 HOURS PER WEEK. IN THAT CONNECTION, YOU STATE THAT THE SECRETARY OF LABOR HAS NOTED THAT CONTRACTORS ENGAGED IN MILITARY CONSTRUCTION AT LITTLE ROCK, ARKANSAS, HAVE BEEN EMPLOYING THEIR WORKERS 8 HOURS PER DAY, 7 DAYS PER WEEK, OR A TOTAL OF 56 HOURS PER WEEK WITHOUT THE PAYMENT OF OVERTIME COMPENSATION.

IT IS FURTHER STATED IN YOUR LETTER THAT IT IS THE FEELING OF THE SECRETARY OF LABOR THAT SUCH AN ADMINISTRATIVE RESTRICTION "WOULD BE AN IMPORTANT CONTRIBUTION TOWARD PROMOTING AND MAINTAINING FAIR LABOR STANDARDS PREVAILING IN THE AREA, AND TOWARD PROMOTING EQUALITY OF BIDDING OPPORTUNITY AMONG BIDDERS WHO ARE INTERESTED IN MAINTAINING WHAT SEEMS TO BE GENERALLY CONCEDED AS A DESIRABLE AND ACCEPTABLE FAIR LABOR STANDARD; " AND THAT SUCH RESTRICTION GENERALLY WOULD COINCIDE WITH THE HOURLY AND OVERTIME REQUIREMENTS OF THE WALSH-HEALEY PUBLIC CONTRACTS ACT AND THE FAIR LABOR STANDARDS ACT.

THE CONGRESS HAS ENACTED VARIOUS STATUTES DEALING WITH LABOR STANDARDS TO BE OBSERVED BY GOVERNMENT CONTRACTORS, AMONG THEM THE DAVIS-BACON ACT, 40 U.S.C. 276A ET SEQ., REQUIRING THE PAYMENT OF MINIMUM WAGES, THE EIGHT- HOUR LAW, 40 U.S.C. 321-326, FORBIDDING WORK IN EXCESS OF 8 HOURS PER DAY WITHOUT OVERTIME PAY, THE WALSH-HEALEY ACT OF 1936, 49 STAT. 2036, REQUIRING SPECIFIC REPRESENTATIONS AND STIPULATIONS RELATING TO MAXIMUM HOURS, MINIMUM WAGES, ETC., IN ALL SUPPLY CONTRACTS EXCEEDING $10,000, AND THE ANTI-KICKBACK ACT, 40 U.S.C. 276B AND C, PROHIBITING REBATES OF WAGES BY EMPLOYEES. MATERIALLY DISTINGUISHABLE FROM THE ABOVE STATUTES IS THE FAIR LABOR STANDARDS ACT OF JUNE 25, 1938, 52 STAT. 1060, WHICH IS A STATUTE OF GENERAL APPLICATION DESIGNED FOR THE DECLARED PURPOSE OF CORRECTING AND ELIMINATING UNWHOLESOME LABOR CONDITIONS AND UNSAVORY COMMERCIAL PRACTICES IN INDUSTRIES ENGAGED IN INTERSTATE COMMERCE, AND ONE WHICH, WHILE VESTING IN THE EMPLOYEE A DIRECT LEGAL REMEDY FOR RECOVERY OF UNPAID WAGES, NEITHER AUTHORIZES NOR REQUIRES THAT GOVERNMENT CONTRACTS CONTAIN STIPULATIONS AS TO COMPLIANCE THEREWITH. SEE 22 COMP. GEN. 265, 266.

WITH REFERENCE TO THE CITED EIGHT-HOUR LAW, THE PROVISIONS THEREOF DO NOT RELATE TO WORK IN EXCESS OF 40 HOURS PER WEEK OR THE PAYMENT OF OVERTIME COMPENSATION FOR WORK IN EXCESS OF 40 HOURS A WEEK. THAT STATUTE MERELY PERMITS THE EMPLOYMENT OF LABORERS AND MECHANICS IN EXCESS OF 8 HOURS PER DAY UPON THE CONDITION THAT TIME AND ONE-HALF BE PAID FOR OVERTIME WORK IN EXCESS OF 8 HOURS. SEE 20 COMP. GEN. 233. THERE IS NO EXPRESS STATUTORY PROVISION WHICH REQUIRES THAT THE EMPLOYMENT OF WORKERS UNDER GOVERNMENT CONSTRUCTION CONTRACTS BE LIMITED TO 40 HOURS PER WEEK WITH PAYMENT OF OVERTIME FOR HOURS WORKED IN EXCESS OF 40 HOURS.

THE INTENDED PURPOSE OF THE PROPOSED PROVISION WOULD NOT APPEAR TO INSURE THAT THE WORK UNDER A PARTICULAR CONTRACT WILL BE OF HIGHER QUALITY OR MORE PROMPTLY PERFORMED, BUT PRIMARILY IS TO SECURE MORE ADVANTAGEOUS WORKING CONDITIONS FOR THE LABORERS AND MECHANICS PERFORMING THE WORK. ALSO, IT IS EVIDENT THAT THE PROPOSED PROVISION WOULD TEND TO INCREASE THE COST TO THE GOVERNMENT OF THE WORK TO BE DONE. THUS, THE BASIC QUESTION FOR CONSIDERATION IS WHETHER APPROPRIATIONS MADE BY THE CONGRESS FOR MILITARY CONSTRUCTION MAY BE UTILIZED IN PART FOR THE BETTERMENT OF WORKING CONDITIONS AMONG THOSE EMPLOYED ON SUCH CONSTRUCTION WORK.

THE RULE IS WELL-SETTLED THAT AN APPROPRIATION IS AVAILABLE ONLY TO ACCOMPLISH THE PARTICULAR PURPOSES AUTHORIZED BY THE APPROPRIATION TO BE DONE, AND MAY BE EXPANDED ONLY FOR THINGS HAVING A DIRECT CONNECTION WITH AND ESSENTIAL TO THE CARRYING OUT OF THE STATED GENERAL PURPOSES FOR WHICH THE FUNDS WERE GRANTED. OBVIOUSLY, COMPLIANCE WITH THE PROPOSED PROVISION WOULD NOT HAVE SUCH A DIRECT CONNECTION WITH CONSTRUCTION WORK AS TO BE REGARDED AS ESSENTIAL TO ITS ACCOMPLISHMENT.

FOR THESE REASONS, I AM OF THE OPINION THAT THE PROPOSED PROVISION WOULD TEND TO RESTRICT COMPETITION AND TO INCREASE THE COST TO THE GOVERNMENT OF THE WORK TO BE DONE, AND THAT COMPLIANCE THEREWITH MAY NOT BE REGARDED AS REASONABLY REQUISITE TO THE ACCOMPLISHMENT OF WORK UNDER A PARTICULAR CONSTRUCTION CONTRACT. SEE 18 COMP. GEN. 285. HENCE, IN THE ABSENCE OF STATUTORY AUTHORIZATION THEREFOR, THERE IS NO LEGAL JUSTIFICATION FOR THE INCLUSION OF SUCH A MINIMUM WORK WEEK AND OVERTIME WAGE PROVISION IN THE DEPARTMENT OF DEFENSE CONSTRUCTION SPECIFICATIONS AND CONTRACTS. SEE 17 COMP. GEN. 37; 20 ID. 18; ID. 24; 31 ID. 561.