B-14084, JANUARY 18, 1941, 20 COMP. GEN. 392

B-14084: Jan 18, 1941

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COMPENSATION - FORTY-HOUR WEEK - BONNEVILLE POWER ADMINISTRATION PART TIME OR "WHEN ACTUALLY EMPLOYED" EMPLOYEES WHO ARE EMPLOYED IN ONE OF "THE SEVERAL TRADES AND OCCUPATIONS" AT HOURLY RATES WITH WAGES FIXED BY "WAGE BOARDS OR BY OTHER WAGE FIXING AUTHORITIES" ARE WITHIN THE TERMS OF THE 40-HOUR WEEK STATUTE OF MARCH 28. ARE ENTITLED TO RATES OF PAY FIXED PURSUANT TO THE STATUTE FOR THEIR REGULAR TOUR OF DUTY AND FOR OVERTIME. THE PROCEDURE ADOPTED BY THE BONNEVILLE POWER ADMINISTRATION FOR FIXING WAGES OF ITS EMPLOYEES IN TRADES AND OCCUPATIONS IS EQUIVALENT TO THE PROCEDURE USED BY A WAGE BOARD OR OTHER WAGE-FIXING AUTHORITY UNDER THE TERMS OF THE 40-HOUR WEEK STATUTE OF MARCH 28. MAY NOT BE APPLIED UNTIL SUCH WAGE-FIXING PROCEDURE IS FORMALLY ADOPTED BY ADMINISTRATIVE ORDER OR REGULATION OF THE ADMINISTRATOR OF THE BONNEVILLE POWER ADMINISTRATION.

B-14084, JANUARY 18, 1941, 20 COMP. GEN. 392

COMPENSATION - FORTY-HOUR WEEK - BONNEVILLE POWER ADMINISTRATION PART TIME OR "WHEN ACTUALLY EMPLOYED" EMPLOYEES WHO ARE EMPLOYED IN ONE OF "THE SEVERAL TRADES AND OCCUPATIONS" AT HOURLY RATES WITH WAGES FIXED BY "WAGE BOARDS OR BY OTHER WAGE FIXING AUTHORITIES" ARE WITHIN THE TERMS OF THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, AND ARE ENTITLED TO RATES OF PAY FIXED PURSUANT TO THE STATUTE FOR THEIR REGULAR TOUR OF DUTY AND FOR OVERTIME. UNLESS AND UNTIL OTHERWISE DETERMINED BY COMPETENT AUTHORITY, BONNEVILLE POWER ADMINISTRATION EMPLOYEES DESIGNATED AIR HAMMER OPERATOR, BLACKSMITH, CARPENTER, CARPENTER FOREMAN, CARPENTER HELPER, CONCRETE FOREMAN, ETC., MAY BE CONSIDERED AS EXCEPTED FROM THE TERMS OF THE CLASSIFICATION ACT BUT WITHIN THE CLASSIFICATION "TRADES AND OCCUPATIONS" TO WHICH THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, APPLIES. TRUCK DRIVERS, BEING SUBJECT TO THE CLASSIFICATION ACT, MAY NOT BE REGARDED AS WITHIN THE TERMS OF THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934. THE PROCEDURE ADOPTED BY THE BONNEVILLE POWER ADMINISTRATION FOR FIXING WAGES OF ITS EMPLOYEES IN TRADES AND OCCUPATIONS IS EQUIVALENT TO THE PROCEDURE USED BY A WAGE BOARD OR OTHER WAGE-FIXING AUTHORITY UNDER THE TERMS OF THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, BUT THE PROVISIONS OF SAID STATUTE, INCLUDING AUTHORITY FOR PAYMENT OF OVERTIME COMPENSATION, MAY NOT BE APPLIED UNTIL SUCH WAGE-FIXING PROCEDURE IS FORMALLY ADOPTED BY ADMINISTRATIVE ORDER OR REGULATION OF THE ADMINISTRATOR OF THE BONNEVILLE POWER ADMINISTRATION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, JANUARY 18, 1941:

I HAVE YOUR LETTER OF DECEMBER 17, 1940, AS FOLLOWS:

THE BONNEVILLE POWER ADMINISTRATION EMPLOYS A CONSIDERABLE NUMBER OF EMPLOYEES FOR THE CONSTRUCTION OF ELECTRIC TRANSMISSION LINES, SUBSTATIONS, AND APPURTENANT FACILITIES. IN THIS CONSTRUCTION WORK IT IS NECESSARY TO EMPLOY THE FOLLOWING TYPES OF EMPLOYEES: AIR HAMMER OPERATOR. BLACKSMITH. CARPENTER FOREMAN. CARPENTER. CARPENTER HELPER. CONCRETE FOREMAN. CONCRETE FINISHER. CONCRETE LABORER. CONCRETE MIXER OPERATOR. ELECTRICIAN FOREMAN. ELECTRICIAN. ELECTRICIAN HELPER. HIGH CLIMBER. IRON WORKER (REINFORCING STEEL). LABOR FOREMAN. LINEMAN FOREMAN. LINEMAN. LINEMAN HELPER. MACHINIST. MACHINIST HELPER. MECHANIC (GENERAL). MECHANIC HELPER. PAINTER, BRUSH. PIPE FITTER. PLUMBER. PLUMBER HELPER. POWDERMAN. POWDERMAN HELPER. POWER SHOVEL OPERATOR. RIGGER FOREMAN. RIGGER. SAW FILER. STRUCTURAL STEEL WORKER. TIMBER FOREMAN. TIMBER FALLER. TRACTOR OPERATOR. TRUCK DRIVER. WELDER (ACETYLENE OR ARC). WELDER HELPER.

ALL OF THE ABOVE EMPLOYEES ARE OUTSIDE THE CLASSIFICATION ACT OF 1923, AS AMENDED, SINCE THEIR DUTIES ARE NOT COVERED IN ANY CLASSIFICATION ESTABLISHED THEREIN. ALL ARE TAKEN FROM CIVIL-SERVICE REGISTERS AND GIVEN PROBATIONAL CIVIL SERVICE APPOINTMENTS. NONE ARE EMPLOYED ON AN ANNUAL SALARY. ALL ARE EMPLOYED AT AN HOURLY WAGE RATE WHICH IS ADMINISTRATIVELY DETERMINED BY THE BONNEVILLE POWER ADMINISTRATION. ALL ARE PAID ON A W.A.E. (WHEN ACTUALLY EMPLOYED) BASIS.

TITLE 5, SECTION 673 (C), U.S. CODE, DEALING WITH COMPENSATION OF CIVILIAN EMPLOYEES, PROVIDES AS FOLLOWS:

"THE WEEKLY COMPENSATION * * * FOR THE SEVERAL TRADES AND OCCUPATIONS, WHICH IS SET BY WAGE BOARDS OR BY OTHER WAGE-FIXING AUTHORITIES, SHALL BE REESTABLISHED AND MAINTAINED AT RATES NOT LOWER THAN NECESSARY TO RESTORE THE FULL 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 -HALF.' ( ITALICS SUPPLIED.)

YOUR OPINION IS RESPECTFULLY SOUGHT AS TO WHETHER THE ABOVE STATUTE AUTHORIZES THE BONNEVILLE POWER ADMINISTRATION TO PAY ALL OR ANY OF THE ABOVE-MENTIONED EMPLOYEES THE PREVAILING RATE OF OVERTIME PAY.

I. INDEFINITE EMPLOYEES

ALL OF THE ABOVE LIST OF EMPLOYEES ARE CLASSED AS "INDEFINITE" EMPLOYEES FOR LEAVE PURPOSES, I.E., THEY ARE ENTITLED TO SICK AND ANNUAL LEAVE FOR THE TIME THEY ACTUALLY WORK.

DECISIONS OF THE COMPTROLLER GENERAL DO NOT MAKE CLEAR WHETHER, PRESUMING THAT THE OTHER REQUIREMENTS OF THE STATUTE HAVE BEEN MET, SUCH "INDEFINITE" EMPLOYEES MAY BE COMPENSATED FOR OVERTIME UNDER TITLE 5, SECTION 673 (C), SUPRA.

IN 13 COMP. GEN. 265, 275 (A-54736) (1934), THE COMPTROLLER GENERAL HELD THAT THE ABOVE-MENTIONED STATUTE IS NOT APPLICABLE TO EMPLOYEES PAID ON AN "ANNUAL BASIS.' YOUR OPINION IS REQUESTED AS TO WHETHER "INDEFINITE EMPLOYEES" AS DESCRIBED ABOVE ARE WITHIN THE MEANING OF THE STATUTE OR ARE TO BE TREATED AS EMPLOYEES PAID ON AN "ANNUAL BASIS.'

II. TRADES AND OCCUPATIONS

TITLE 5, SECTION 673 (C), PERMITS OVERTIME TO BE PAID ONLY TO SUCH EMPLOYEES AS ARE EMPLOYED ,WITHIN THE SEVERAL TRADES AND OCCUPATIONS.' YOUR OPINION IS SOUGHT AS TO WHICH OF THE ABOVE-DESCRIBED EMPLOYEES COME WITHIN THOSE TERMS. A BRIEF DESCRIPTION OF THE WORK PERFORMED BY EACH OF THE ABOVE-DESCRIBED OCCUPATIONS IT ATTACHED HERETO.

IT WOULD SEEM THAT THE STATUTE DOES NOT AUTHORIZE PAYMENT OF OVERTIME TO HOURLY EMPLOYEES WHO FURNISH COMMON, UNSKILLED LABOR. BUT FROM THE DESCRIPTION OF DUTIES ATTACHED HERETO IT APPEARS THAT EACH OF THESE TYPES OF EMPLOYMENT IS A RECOGNIZED TRADE OR OCCUPATION, REQUIRING HIGHLY SKILLED LABOR OR PARTICULAR QUALIFICATIONS SUBSTANTIALLY ABOVE THOSE REQUIRED OF UNSKILLED LABORERS. YOUR OPINION IS SOUGHT AS TO WHETHER ALL OF THE LISTED EMPLOYMENTS ARE WITHIN "TRADES AND OCCUPATIONS.' FOR FUTURE REFERENCE, IS THERE ANY STANDARD WHEREBY IT MAY BE DETERMINED THAT A PARTICULAR EMPLOYEE IS EMPLOYED WITH A "TRADE" OR "OCCUPATION" WITHIN THE MEANING OF TITLE 5, SECTION 673 (C/?

III. WAGE FIXING PROCEDURE

EVEN THOUGH HOURLY EMPLOYEES ARE WITHIN RECOGNIZED "TRADES" OR "OCCUPATIONS," TITLE 5, SECTION 673 (C), DOES NOT APPLY UNLESS THE WAGES OF SUCH EMPLOYEES ARE FIXED BY "WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES.'

DECISIONS OF THE COMPTROLLER GENERAL MAKE IT CLEAR THAT NOT ALL ADMINISTRATIVE WAGE FIXING IS INCLUDED WITHIN THE SCOPE OF THE STATUTE. THE GENERAL PRINCIPLE TO BE USED FOR INTERPRETATION OF THIS PART OF THE STATUTE WAS APPARENTLY STATED IN 13 COMP. GEN. 265 (A 54736) (1934) IN THE FOLLOWING LANGUAGE:

"THERE ARE USED THE TERMS "WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES" SHOWING CLEARLY THAT THE STATUTE WAS INTENDED TO APPLY NOT ONLY TO EMPLOYEES * * * 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 PROCEDURE SIMILAR TO THAT FOLLOWED BY WAGE BOARDS, THAT IS, WITH REFERENCE TO WAGES, ETC., PAID TO SIMILAR CLASSES IN COMMERCIAL INDUSTRIES RATHER THAN WITH REFERENCE TO SALARY RATES OR SCHEDULES OF RATES SPECIFICALLY FIXED BY OR PURSUANT TO STATUTE.' ITALICS SUPPLIED.)

IT IS RELEVANT HERETO DESCRIBE WITH SOME PARTICULARITY THE WAGE FIXING PROCEDURES FOLLOWED BY THE BONNEVILLE POWER ADMINISTRATION.

WHEN THE BONNEVILLE POWER ADMINISTRATION DESIRES TO CONSTRUCT A CERTAIN PROJECT WITH ITS OWN CREWS, IT ADOPTS THE FOLLOWING PROCEDURE FOR FIXING WAGES FOR ALL EMPLOYEES NEEDED ON THE PROJECT WHO DO NOT FALL WITHIN THE CLASSIFICATION ACT:

1. THE DUTIES AND QUALIFICATIONS OF THE WORKMEN NEEDED ARE LISTED.

2. LOCAL CONTRACTORS ARE CONSULTED TO DETERMINED THE WAGES PAID BY THEM FOR SIMILAR WORK.

3. A CHECK IS MADE WITH THE LOCAL CHAMBERS OF COMMERCE TO DETERMINE PREVAILING WAGES FOR SIMILAR WORK.

4. UNIONS WHICH INCLUDE THE PARTICULAR WORKMEN NEEDED ARE REQUESTED TO FURNISH EVIDENCE OF THE UNION SCALE OF WAGES FOR SIMILAR WORK. COPIES OF ANY WAGE AGREEMENTS FOR SIMILAR WORK ARE ALSO OBTAINED.

5. PREVIOUS PWA AND PRIVATE JOBS WHICH REQUIRED SIMILAR WORKMEN ARE CHECKED TO DETERMINE WAGES PAID. THIS OFTEN REQUIRES A DETAILED CHECK OF PWA RECORDS.

6. STATEMENTS AS TO PREVAILING RATES OF PAY ARE SECURED FROM THE STATE EMPLOYMENT SERVICE.

7. REFERENCE IS MADE TO THE BACON-DAVIS WAGE SCALE FOR SIMILAR TYPES OF WORK.

AFTER ASSEMBLING THE ABOVE INFORMATION, UNION REPRESENTATIVES FOR THE UNIONS AFFECTED ARE CALLED IN FOR ORAL PRESENTATION OF THEIR CONTENTIONS AS TO THE PREVAILING WAGE FOR THE KIND OF WORK REQUIRED. THE UNIONS AND WORKMEN PRESENT THE SAME EVIDENCE AND CONDUCT THEMSELVES IN MUCH THE SAME MANNER AS THEY DO BEFORE WAGE-FIXING BOARDS IN PRIVATE INDUSTRY.

THEREAFTER, THE DIRECTOR OF PERSONNEL OF THE BONNEVILLE POWER ADMINISTRATION PROMULGATES WHAT HE HAS DETERMINED TO BE THE PREVAILING WAGE FOR EACH TYPE OF EMPLOYMENT, WHICH WAGE WILL BE IN EFFECT FOR ALL OF THE ACTIVITIES OF THE BONNEVILLE POWER ADMINISTRATION THROUGHOUT THE STATES OF WASHINGTON AND OREGON.

IF THERE IS NO APPEAL FROM THE DIRECTOR OF PERSONNEL'S DETERMINATION, THE WAGES ARE APPROVED BY THE BONNEVILLE POWER ADMINISTRATOR AND THE NECESSARY EMPLOYEES ARE FORTHWITH HIRED AT THOSE WAGE LEVELS.

IF, HOWEVER, THE WORKMEN OR THE UNIONS AFFECTED DISAGREE WITH THE DIRECTOR OF PERSONNEL'S DETERMINATION, THEY MAY APPEAL THEREFROM BY MAKING A FORMAL REQUEST FOR REDETERMINATION. THIS APPEAL, TOGETHER WITH ANY EVIDENCE TO SUPPORT IT, IS HEARD AND DECIDED BY A COMMITTEE COMPOSED OF (1) THE DIRECTOR OF PERSONNEL, (2) A REPRESENTATIVE OF THE LEGAL DIVISION, AND (3) THE CHIEF OF THE CONSTRUCTION SECTION. THE COMMITTEE'S DETERMINATION IS APPROVED BY THE BONNEVILLE POWER ADMINISTRATOR.

THE ABOVE PROCEDURE WAS DESIGNED TO ENABLE THE EFFICIENT ASSEMBLING OF ALL RELEVANT EVIDENCE AND TO GIVE INTEREST PARTIES A FAIR HEARING AND OPPORTUNITY FOR APPEAL. IN THESE RESPECTS THE PROCEDURE IS VERY SIMILAR TO THAT FOLLOWED BY MOST WAGE BOARDS.

NEITHER THE ORIGINAL DETERMINATION PROCEDURE NOR THE APPEAL PROCEDURE HAS EVEN BEEN FORMALIZED BY ADMINISTRATIVE ORDER, BUT BOTH ARE CONSISTENTLY FOLLOWED AND HAVE ACHIEVED A CERTAIN FORMALITY BY ROUTINE.

IT SHOULD ALSO BE MENTIONED THAT THE BONNEVILLE POWER ADMINISTRATION USES THE ABOVE PROCEDURE FOR ANOTHER WAGE-FIXING FUNCTION, I.E., THAT IN CONNECTION WITH THE BACON-DAVIS LAW. IN SOME INSTANCES THE BONNEVILLE POWER ADMINISTRATION, RATHER THAN CONSTRUCT A CERTAIN PROJECT WITH ITS OWN CREWS, LETS A CONSTRUCTION CONTRACT TO A PRIVATE CONTRACTOR. THE BACON- DAVIS LAW ( PUBLIC, 403, 74TH CONG., ST SESS., APPROVED AUGUST 30, 1935) REQUIRES THE PAYMENT OF "PREVAILING WAGES" ON SUCH CONSTRUCTION CONTRACTS, WHICH WAGES ARE TO BE DETERMINED BY THE DEPARTMENT OF LABOR.

THE REGULATIONS OF THE LABOR DEPARTMENT AND ITS PROCEDURES ESTABLISHED UNDER THE BACON-DAVIS LAW REQUIRE THE CONTRACTING AGENCY TO MAKE AN INDEPENDENT INVESTIGATION OF THE LOCAL PREVAILING RATE FOR EACH KIND OF EMPLOYEE TO BE EMPLOYED BY THE PRIVATE CONTRACTOR, AND THEN TO STATE ITS FINDINGS AND TO RECOMMEND A SPECIFIC WAGE RATE TO THE DEPARTMENT OF LABOR FOR THE WORK TO BE PERFORMED. (SEE DEPARTMENT OF LABOR FORM DB15, A COPY OF WHICH IS ATTACHED HERETO.)

IN FULFILLING THIS REQUIREMENT THE BONNEVILLE POWER ADMINISTRATION EMPLOYS THE SAME SOURCES OF INFORMATION, AS IS DESCRIBED ABOVE FOR FIXING THE WAGES OF ITS OWN CONSTRUCTION EMPLOYEES.

THE FACT THAT THE BONNEVILLE ADMINISTRATION PROCEDURE LENDS ITSELF TO, AND HAS ALSO BEEN USED FOR THIS BACON-DAVIS WAGE DETERMINATION, DEMONSTRATES ITS FORMALITY AND ITS ADAPTABILITY TO OTHER SITUATIONS. AND INSOFAR AS THE PROCEDURE IS FORMALIZED AND ADAPTED TO VARIOUS KINDS OF WAGE DETERMINATIONS, IT WOULD SEEM TO BE "SIMILAR TO THAT FOLLOWED BY WAGE BOARDS" WITHIN THE MEANING OF THE DECISION IN 13 COMP. GEN. 265, SUPRA.

BUT LATER DECISIONS OF THE COMPTROLLER GENERAL INVOLVING ANALOGOUS WAGE DETERMINATIONS APPEAR TO BE CONFLICTING AND TO THROW SOME DOUBT ON THE QUESTION.

IN 13 COMP. GEN. 367 (A-55528) (1934) THE COMPTROLLER GENERAL HELD THAT CERTAIN EMPLOYEES IN THE SMALL EQUIPMENT JOBS OF THE POST OFFICE DEPARTMENT WERE WITHIN THE STATUTE SINCE---

"THE POSTMASTER GENERAL FIXES THEIR RATES OF COMPENSATION WITH REFERENCE TO RATES OF WAGES, C., PAID TO SIMILAR CLASSES IN COMMERCIAL INDUSTRY * *

IN 14 COMP. GEN. 156 (A-54762) (1934) THE COMPTROLLER GENERAL SIMILARLY HELD THAT WHEN THE GOVERNOR OF THE PANAMA CANAL ADMINISTRATIVELY SET WAGES FOR TEMPORARY EMPLOYEES BY COMPARISON WITH AND REFERENCE TO WAGES PAID BY PRIVATE INDUSTRIES, SUCH EMPLOYEES WERE WITHIN THE SCOPE OF TITLE 5, SECTION 673 (C).

THESE DECISIONS TEND TO THE CONCLUSION THAT THE PRESENT BONNEVILLE ADMINISTRATION PROCEDURE MEETS THE REQUIREMENTS OF THE STATUTE SINCE UNDER IT, GREAT CARE IS TAKEN TO SET THE WAGES "WITH REFERENCE TO" AND AT AN EQUAL LEVEL WITH THOSE PAID IN PRIVATE INDUSTRY.

BUT TWO OTHER DECISIONS OF THE COMPTROLLER GENERAL INTIMATE THAT, IN SPITE OF SETTING WAGES IN COMPARISON WITH THOSE PAID IN PRIVATE INDUSTRY, THE ADMINISTRATIVE WAGE FIXING PROCEDURE MUST BE ADMINISTRATIVELY PROMULGATED AND STANDARDIZED TO FALL WITHIN THE TERMS OF THE STATUTE.

IN 14 COMP. GEN. 496 (A-59309) (1934) THE COMPTROLLER GENERAL WAS ASKED WHETHER CERTAIN EMPLOYEES OF THE NATIONAL PARK SERVICE WERE WITHIN THE STATUTE. THESE EMPLOYEES WERE EMPLOYED ON A PER DIEM BASIS "WHEN ACTUALLY EMPLOYED" BY FIELD OFFICERS OF THE NATIONAL PARK SERVICE AT WAGES WHICH "DEPEND * * * ON LOCAL CONDITIONS" BUT WERE LIMITED BY MAXIMUM RATES APPROVED IN ADVANCE BY THE SECRETARY OF THE INTERIOR. THE OPINION STATES:

"IT DOES NOT APPEAR THAT THERE WAS IN FORCE * * * ANY LAW, EXECUTIVE ORDER OR ADMINISTRATIVE REGULATION REQUIRING THE FIXING OF THE RATES OF COMPENSATION AND HOURS OF LABOR OF EMPLOYEES OF THE NATIONAL PARK SERVICE UNDER A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS. THE ADMINISTRATIVE PRACTICE MENTIONED THAT "ACTUAL WAGES SHALL DEPEND, HOWEVER, ON LOCAL CONDITIONS," DOES NOT NECESSARILY BRING ANY OF THE EMPLOYEES OF THE NATIONAL PARK SERVICE WITHIN THE 40 HOUR WEEK STATUTORY PROVISION. FURTHERMORE, THE COMPENSATION OF THE EMPLOYEES OF THE NATIONAL PARK SERVICE HAS NEVER BEEN GENERALLY REGARDED AS FIXED ADMINISTRATIVELY UNDER A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS.'

IN 14 COMP. GEN. 215 (A-56997) (1934), VERY SIMILAR LANGUAGE WAS EMPLOYED TO HOLD THAT ADMINISTRATIVE WAGE FIXING WAS NOT WITHIN THE SCOPE OF THE STATUTE ALTHOUGH THE EMPLOYEES WERE HIRED "AT WAGES IN ACCORDANCE WITH THOSE PREVAILING IN THE PARTICULAR LOCALITY.' IF THESE TWO DECISIONS REQUIRE A STANDARDIZATION OF WAGE FIXING PROCEDURE BY ADMINISTRATIVE ORDER, THE PRESENT BONNEVILLE ADMINISTRATION PROCEDURE IS OUTSIDE THE STATUTE. BUT IF IT IS SUFFICIENT THAT THE WORKMEN, UNIONS, AND OTHERS "GENERALLY REGARD" THE PROCEDURE AS ONE SIMILAR TO THAT USED BY "WAGE BOARDS" THE BONNEVILLE ADMINISTRATION PROCEDURE WOULD SEEM TO FALL WITHIN THE STATUTE.

IF YOU SHOULD DECIDE THAT THE PRESENT PROCEDURE IS NOT WITHIN THE STATUTE, WOULD IT BE SUFFICIENT TO BRING IT WITHIN THE STATUTORY LANGUAGE IF THE PRESENT PROCEDURE WERE TO BE STANDARDIZED BY ADMINISTRATIVE ORDER? IF THIS WOULD NOT BE SUFFICIENT, WOULD IT BE SUFFICIENT, BY ADMINISTRATIVE ORDER, TO VEST THE AUTHORITY TO FIX WAGES IN A COMMITTEE COMPOSED OF ADMINISTRATIVE OFFICERS AND REPRESENTATIVES OF THE EMPLOYEES WHOSE WAGE IS BEING SET? (SUCH PROCEDURE WAS APPARENTLY UPHELD IN 14 COMP. GEN. 199 (A- 56659) (1934). IF THIS WOULD NOT BE SUFFICIENT, WOULD IT BE SUFFICIENT, BY ADMINISTRATIVE ORDER, TO ADOPT AS AN ABSOLUTE STANDARD THE WAGE SCALE PAID FOR SIMILAR WORK UNDER THE BACON-DAVIS ACT?

FOR YOUR CONVENIENCE THE QUESTIONS UPON WHICH YOUR OPINION IS SOUGHT ARE BRIEFLY RESTATED:

(1) DO EMPLOYEES PAID ON AN HOURLY BASIS BUT CLASSIFIED AS INDEFINITE EMPLOYEES AND ENTITLED TO SICK AND ANNUAL LEAVE, FALL WITHIN THE TERMS OF TITLE 5, SECTION 673 (C/?

(2) ARE ALL OR ANY OF THE EMPLOYEES WHOSE DUTIES ARE DESCRIBED ABOVE WITHIN "TRADES" OR ,OCCUPATIONS" WITHIN THE MEANING OF TITLE 5, SECTION 673 (C/?

(3) IS THE PRESENT WAGE-FIXING PROCEDURE OF THE BONNEVILLE POWER ADMINISTRATION THAT OF A ,WAGE BOARD OR * * * OTHER WAGE-FIXING AUTHORITY" WITHIN TITLE 5, SECTION 673 (C/?

(4) IF THE ANSWER TO QUESTION 3 IS IN THE NEGATIVE, WOULD IT BE POSSIBLE TO BRING THE PRESENT PROCEDURE WITHIN THE STATUTE BY ESTABLISHING IT THROUGH ADMINISTRATIVE ORDER OR REGULATION?

(5) IF THE PRESENT PROCEDURE AS ESTABLISHED BY ADMINISTRATIVE ORDER WOULD NOT BE ADEQUATE, WOULD ANY OF THE OTHER PROCEDURES BE ADEQUATE TO BRING THE WAGE-FIXING DETERMINATION WITHIN THE STATUTE?

ACCOMPANYING YOUR LETTER IS THE FOLLOWING STATEMENT OF EMPLOYEE'S DUTIES:

AIR HAMMER OPERATOR.--- TO OPERATE A JACKHAMMER IN CONNECTION WITH CONSTRUCTION OF CONCRETE MANHOLES AND DUCT RUNS FOR THE OUTGOING FEEDERS FOR THE SUBSTATION.

BLACKSMITH.--- TO FORGE AND FABRICATE METAL WORK AND USE POWER EQUIPMENT.

CARPENTER FOREMAN.--- TO SUPERVISE A CREW OF CARPENTERS AND HELPERS IN CONNECTION WITH THE CONSTRUCTION OF TRANSMISSION LINES, SUBSTATIONS, FIELD CONSTRUCTION BUILDINGS AND OFFICE INTERIORS.

CARPENTER.--- TO PERFORM VARIED TYPES OF DIFFICULT CARPENTER WORK IN CONNECTION WITH A WIDE RANGE OF CONSTRUCTION PROJECTS.

CARPENTER HELPER.--- TO ASSIST JOURNEYMAN CARPENTER IN THE PERFORMANCE OF VARIED TYPES OF DIFFICULT CARPENTER WORK.

CONCRETE FOREMAN.--- TO SUPERVISE MIXING AND PLACING OF CONCRETE AND TO RUN CONCRETE CREW.

CONCRETE FINISHER.--- TO PLACE, FINISH, AND CURE CONCRETE.

CONCRETE LABORER.--- TO MIX, PLACE, PATCH, AND PERFORM RELATED WORK IN CONNECTION WITH ALL CONCRETE JOBS. REQUIRES AT LEAST SIX MONTHS' EXPERIENCE IN SIMILAR WORK.

CONCRETE MIXER OPERATOR.---TO OPERATE, ADJUST, AND MAKE ORDINARY REPAIRS TO A GASOLINE-POWERED CONCRETE MIXER; TO CHECK THE PROPORTIONS OF SAND, GRAVEL, CEMENT, AND WATER USED TO INSURE CONFORMITY WITH SPECIFICATIONS.

ELECTRICIAN FOREMAN.--- TO SUPERVISE A GROUP OF ELECTRICIANS AND HELPERS IN THE CONSTRUCTIONS, INSTALLATIONS, ADJUSTMENT AND ERECTION OF ELECTRICAL APPARATUS, EQUIPMENT AND STRUCTURES.

ELECTRICIANS.--- TO INSTALL, ASSEMBLE, ADJUST, AND ERECT ELECTRICAL EQUIPMENT, APPARATUS AND STRUCTURES.

ELECTRICIAN HELPER.--- TO ASSIST JOURNEYMAN ELECTRICIANS IN THE CONSTRUCTION, INSTALLATION, AND MAINTENANCE OF ELECTRICAL EQUIPMENT, APPARATUS, WIRING, AND STRUCTURES.

HIGH CLIMBER.--- TO TOP DANGER TREES, DIRECTING WORK IN FALLING AND DISPOSAL OF DANGER TREES ADJACENT TO TRANSMISSION LINE RIGHT-OF WAY.

IRON WORKER (REINFORCING STEEL).--- TO PLACE AND TIE REINFORCING STEEL AND CHECK CORRECTNESS OF SAME.

LABOR, FOREMAN.--- TO SUPERVISE LABORERS INSTALLING WATER MAINS, RAILROAD SPUR, EQUIPMENT FOOTINGS, DRAINS, CLEARING AND GRADING WORK,AND INSTALLATION OF SUBSTATION EQUIPMENT.

LINEMAN FOREMAN.--- TO SUPERVISE A CREW OF LINEMEN IN THE ERECTION OF HIGH-VOLTAGE POWER TRANSMISSION LINE STEEL TOWERS AND WOOD POLES AND IN CONNECTION WITH THE STRINGING AND SAGGING OF CONDUCTORS, THE PLACEMENT OF HARDWARE AND INSULATORS.

LINEMAN.--- TO ERECT HIGH-VOLTAGE POWER TRANSMISSION LINE STEEL TOWERS AND WOOD POLES; TO STRING AND SAG THE CONDUCTORS; TO CLIMB THE POLES AND PLACE THE CROSSARMS, HARDWARE, AND INSULATORS.

LINEMAN HELPER.--- TO ASSIST LINEMEN AND TO PERFORM SIMPLE AND ROUTINE TASKS INCIDENTAL TO THE CONSTRUCTION, INSTALLATION, MAINTENANCE, AND REPAIR OF ELECTRIC LINES, APPARATUS AND EQUIPMENT.

MACHINIST.--- TO OPERATE LATHES, MILLING MACHINES, DRILL PRESSES, AND OTHER POWER/MACHINE SHOP EQUIPMENT, SUCH AS REPAIRING AUTOMOBILES, TRUCKS, AND GAS AND DIESEL TRACTORS.

MECHANIC HELPER.--- TO ASSIST THE MECHANIC IN REPAIRING VARIOUS TYPES OF AUTOMOTIVE AND CONSTRUCTION EQUIPMENT; TO CLEAN AND WASH EQUIPMENT; TO GREASE AND SERVICE EQUIPMENT; AND TO PERFORM THE MISCELLANEOUS RELATED DUTIES NECESSARY IN THE OPERATION OF THE GARAGE.

PAINTER, BRUSH.--- TO DO ORDINARY PAINTING ON FRAME STRUCTURE BOTH EXTERIOR AND INTERIOR, AS DIRECTED.

PIPE FITTER.--- TO MAKE UP VARIOUS PIPE LINES, PIPE FITTINGS, AND VALVES.

PLUMBER.--- TO MAKE TIGHT CONNECTIONS INCLUDING WATER AND SEWER WORK AS DIRECTED AND CALLED FOR ON PLANS.

PLUMBER HELPER.--- TO ASSIST THE PLUMBER IN CONNECTION WITH THE INSTALLATION OF WATER AND SEWER SYSTEM.

POWDERMAN.--- TO HANDLE AND FIRE EXPLOSIVES IN CONNECTION WITH THE BLASTING OF HOLES IN ROCK FOR ANCHORS AND POLES ON THE TRANSMISSION LINES.

POWDERMAN HELPER.--- TO ASSIST THE POWDERMAN IN CONNECTION WITH THE HANDLING AND FIRING OF EXPLOSIVES.

POWER SHOVEL OPERATOR.--- TO OPERATE POWER SHOVEL FOR LOADING OF SAND AND GRAVEL INTO 2 1/2 TON TRUCKS (DUMP).

RIGGER FOREMAN.--- TO SUPERVISE UNLOADING OPERATIONS IN CONNECTION WITH HEAVY EQUIPMENT AT ALL POINTS ON THE BONNEVILLE PROJECT, INVOLVING ALL NECESSARY SAFETY FEATURES FOR PROTECTION OF LIFE AND PROPERTY.

RIGGER.--- TO PERFORM DUTIES IN CONNECTION WITH THE LOADING, UNLOADING, AND PLACING OF HEAVY MACHINERY AND EQUIPMENT IN POSITION.

SAW FILER.--- UNDER GENERAL SUPERVISION TO SHARPEN, SWAGE, SET, AND GUM SAWS.

STRUCTURAL STEEL WORKER.--- TO CONSTRUCT, ASSEMBLE, AND ERECT STRUCTURAL STEEL TOWERS AND TO PERFORM RELATED WORK AS REQUIRED.

TIMBER FOREMAN.--- TO SUPERVISE THE WORK OF TIMBER FALLERS, HIGH CLIMBERS, AXEMEN, LABORERS, AND OTHER EMPLOYEES ENGAGED ON CLEARING OPERATIONS INVOLVING FALLING, BUCKING, TRIMMING, LIMBING, BURNING, GRUBBING, AND OTHER SIMILAR OPERATIONS ON BOTH HEAVY AND LIGHT CLEARING OF TIMBER AREAS FOR ELECTRICAL TRANSMISSION LINE RIGHT-OF-WAY; TO KEEP AND WORK RECORDS; TO MAKE INSPECTIONS AND TO PERFORM RELATED WORK AS REQUIRED.

TIMBER FALLER.--- IN CONNECTION WITH CLEARING OPERATIONS FOR TRANSMISSION -LINE CONSTRUCTION, TO SPOT AND FALL TREES ACCURATELY AND TO TRIM AND LIMB FALLEN TIMBER.

TRACTOR OPERATOR.--- TO DRIVE AND OPERATE TRACTORS WITH ATTACHMENTS.

TRUCK DRIVER.---TO DRIVE AND OPERATE 2 1/2-TON DUMP TRUCKS.

WELDER (ACETYLENE OR ARC).--- TO TAKE CARE OF ANY TYPE ACETYLENE OR ELECTRIC ARC WELDING IN CONNECTION WITH THE OPERATION OF A SHOP AND THE INSTALLATION OF WROUGHT-IRON BUS WORK.

WELDER HELPER.--- TO ASSIST THE WELDER SETTING UP AND ALIGNING WORK; TO CLEAN AND REPAIR WELDS, TO HANDLE MATERIALS IN THE WORK WHILE WELDING IS IN PROGRESS.'

THE 40-HOUR WEEK STATUTE EFFECTED (1) AN ADJUSTMENT IN REGULAR WEEKLY HOURS OF DUTY FROM 48 TO 44 TO 40 HOURS; (2) AN ADJUSTMENT IN THE SCHEDULES OF COMPENSATION RATES AS OF JUNE 1, 1932, ON THE BASIS OF REDUCED WEEKLY TOUR OF DUTY OF 40 HOURS; AND (3) PROVISION FOR OVERTIME COMPENSATION FOR WORK IN EXCESS OF 40 HOURS PER WEEK AT THE RATE OF NOT LESS THAN TIME AND ONE-HALF. IN OTHER WORDS, THIS STATUTE PROVIDED FOR AN ADJUSTMENT IN HOURS OF WORK AND WAGE RATES AND IS APPLICABLE TO ANY EMPLOYEE COMING WITHIN ITS TERMS. AN EMPLOYEE WHO OTHERWISE FALLS WITHIN THE TERMS OF THE STATUTE, THAT IS, IS EMPLOYED IN ONE OF THE "SEVERAL TRADES AND OCCUPATIONS" AND HIS WAGES ARE FIXED UNDER AN AUTHORITY WHICH MAY PROPERLY BE REGARDED AS ONE OF THE "WAGE BOARDS OR * * * OTHER WAGE- FIXING AUTHORITIES" IS ENTITLED TO RATES OF PAY FIXED PURSUANT TO THE STATUTE FOR HIS REGULAR TOUR OF DUTY AND FOR OVERTIME, WHETHER HIS EMPLOYMENT IS FOR FULL TIME OR PART TIME OR ON THE BASIS OF "WHEN ACTUALLY EMPLOYED.' SEE 13 COMP. GEN. 265; ID. 277; ID. 401. COMPARE 15 ID. 937. ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE.

SECTION 5 OF THE ORIGINAL CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1489, PROVIDES IN PART AS FOLLOWS:

THAT THE COMPENSATION SCHEDULES SHALL APPLY ONLY TO CIVILIAN EMPLOYEES IN THE DEPARTMENTS WITHIN THE DISTRICT OF COLUMBIA AND SHALL NOT APPLY TO EMPLOYEES IN POSITIONS THE DUTIES OF WHICH ARE TO PERFORM OR ASSIST IN APPRENTICE, HELPER, OR JOURNEYMAN WORK IN A RECOGNIZED TRADE OR CRAFT AND SKILLED AND SEMISKILLED LABORERS, EXCEPT SUCH AS ARE UNDER THE DIRECTION AND CONTROL OF THE CUSTODIAN OF A PUBLIC BUILDING OR PERFORM WORK WHICH IS SUBORDINATE, INCIDENTAL, OR PREPARATORY TO WORK OF A PROFESSIONAL, SCIENTIFIC, OR TECHNICAL CHARACTER. * * *

SEE ALSO SECTION 3 (D) OF THE ACT OF NOVEMBER 26, 1940, PUBLIC, NO. 880, AUTHORIZING THE PRESIDENT TO EXTEND THE PROVISIONS OF THE CLASSIFICATION ACT, WHEREIN THE FOLLOWING EXCEPTION IS MADE:

EXCEPT AS CONGRESS MAY OTHERWISE PROVIDE BY LAW, THE POWER GRANTED TO THE PRESIDENT BY THIS SECTION SHALL NOT APPLY TO THE FOLLOWING:

(XI) OFFICES OR POSITIONS THE DUTIES OF WHICH ARE TO PERFORM THE WORK OF AN APPRENTICE, HELPER, OR JOURNEYMAN IN A RECOGNIZED TRADE OR CRAFT, OR OTHER SKILLED MECHANICAL CRAFT, OR THE WORK OF AN UNSKILLED, SEMISKILLED, OR SKILLED LABORER, EXCEPT THAT WHENEVER SUCH OFFICES OR POSITIONS INVOLVE WORK IN THE REGULAR CUSTODY, OPERATION, OR MAINTENANCE OF A GOVERNMENT BUILDING, OR OTHER GOVERNMENT PROPERTY, OR WORK WHICH IS SUBORDINATE, INCIDENTAL, OR PREPARATORY TO WORK OF PROFESSIONAL, SCIENTIFIC, OR TECHNICAL CHARACTER, THE PRESIDENT, UPON A FINDING THAT THE CHARACTERISTICS AND WORKING CONDITIONS OF SUCH OFFICES OR POSITIONS RENDER THEM SUBSTANTIALLY THE SAME AS COMPARABLE OFFICES OR POSITIONS IN THE DISTRICT OF COLUMBIA INCLUDED WITHIN THE CLASSIFICATION ACT OF 1923, AS AMENDED, MAY BY EXECUTIVE ORDER EXTEND THE PROVISIONS OF SUCH ACT TO INCLUDE THEM; * * *

WITH THE EXCEPTION OF TRUCK DRIVER-- THE BASIS FOR SUCH EXCEPTION BEING HEREINAFTER SET FORTH--- AND UNLESS AND UNTIL IT BE OTHERWISE DETERMINED BY COMPETENT AUTHORITY, THIS OFFICE WOULD NOT BE REQUIRED TO QUESTION AN ADMINISTRATIVE DETERMINATION TO THE EFFECT THAT ALL OF THE TYPES OF EMPLOYEES LISTED IN YOUR LETTER FALL WITHIN THE EXCEPTION TO THE CLASSIFICATION ACT STATED IN THE ABOVE-QUOTED STATUTES, AND, ALSO, WITHIN THE CLASSIFICATION "TRADES AND OCCUPATIONS" WITHIN THE MEANING OF THE 40- HOUR WEEK STATUTE OF MARCH 28, 1934, 48 STAT. 522 ( TITLE 5, SEC. 673 (C), U.S. CODE) QUOTED IN YOUR LETTER.

THERE IS NOTED THE STATEMENT IN THE SECOND PARAGRAPH OF YOUR LETTER THAT "ALL OF THE ABOVE EMPLOYEES ARE NOT COVERED IN ANY CLASSIFICATION ESTABLISHED THEREIN.' REGARDING THE POSITION OF TRUCK DRIVER, THIS OFFICE HELD IN DECISION OF JULY 30, 1940, B-11394, AS FOLLOWS:

THE CIVIL SERVICE COMMISSION ADVISED THIS OFFICE INFORMALLY THAT DRIVERS OF HEAVY-DUTY TRUCKS HAVE BEEN CLASSIFIED FOR MANY AGENCIES IN THE DEPARTMENTAL SERVICE; FOR EXAMPLE, DRIVERS OF FUEL TRUCKS FOR THE PROCUREMENT DIVISION, TREASURY DEPARTMENT--- THE CLASSIFICATION IN EACH INSTANCE BEING GRADE 3 OF THE CUSTODIAL SERVICE. IF SUCH BE FOUND TO BE THE FACT, AND THE TRUCK DRIVERS BE FOUND COMPARABLE TO THOSE WHOSE POSITIONS HAVE BEEN CLASSIFIED IN THE DEPARTMENTAL SERVICE, YOU ARE ADVISED THAT, IN LINE WITH THE DECISION, SUPRA, AND BY VIRTUE OF THE PROVISIONS OF SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, THE POSITION OF TRUCK DRIVER IN THE FIELD SERVICE SHOULD BE CLASSIFIED BY THE ADMINISTRATIVE OFFICE IN THE APPROPRIATE GRADE. COMPARE 11 COMP. GEN. 259 AND DECISION OF AUGUST 18, 1938, A-95910, INVOLVING THE RELATED POSITION OF CHAUFFEUR. ACCORDINGLY, UNLESS AND UNTIL THE EXCEPTION OF TRUCK DRIVER FROM THE TERMS OF THE CLASSIFICATION ACT IS MADE BY COMPETENT AUTHORITY, EMPLOYEES IN SUCH OCCUPATION MAY NOT BE REGARDED AS WITHIN THE TERMS OF THE 40-HOUR WEEK STATUTE.

SECTIONS 2 (A) AND 10 OF THE ACT OF AUGUST 20, 1937, 50 STAT. 732, 736, CREATING THE BONNEVILLE POWER ADMINISTRATION, PROVIDED, IN PERTINENT PART, AS FOLLOWS:

* * * THE ADMINISTRATOR SHALL BE APPOINTED BY THE SECRETARY OF THE INTERIOR; SHALL BE RESPONSIBLE TO SAID SECRETARY OF THE INTERIOR; SHALL RECEIVE A SALARY AT THE RATE OF $10,000 PER YEAR; AND SHALL MAINTAIN HIS PRINCIPAL OFFICE AT A PLACE SELECTED BY HIM IN THE VICINITY OF THE BONNEVILLE PROJECT. * * *

THE ADMINISTRATOR, THE SECRETARY OF WAR, AND THE FEDERAL POWER COMMISSION, RESPECTIVELY, SHALL APPOINT SUCH ATTORNEYS, ENGINEERS, AND OTHER EXPERTS AS MAY BE NECESSARY FOR CARRYING OUT THE FUNCTIONS ENTRUSTED TO THEM UNDER THIS ACT, WITHOUT REGARD TO THE PROVISIONS OF THE CIVIL- SERVICE LAWS, AND SHALL FIX THE COMPENSATION OF EACH OF SUCH ATTORNEYS, ENGINEERS, AND OTHER EXPERTS AT NOT TO EXCEED $7,500 PER ANNUM; AND THEY MAY, SUBJECT TO THE CIVIL-SERVICE LAWS, APPOINT SUCH OTHER OFFICERS AND EMPLOYEES AS MAY BE NECESSARY TO CARRY OUT SUCH FUNCTIONS AND FIX THEIR SALARIES IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED. REFERRING TO QUESTIONS (3) AND (4), THE PRESENT WAGE-FIXING PROCEDURE OF THE BONNEVILLE POWER ADMINISTRATION, AS SET FORTH IN YOUR LETTER, APPEARS EQUIVALENT TO THE PROCEDURE USED BY A WAGE BOARD OR OTHER WAGE-FIXING AUTHORITY UNDER THE TERMS OF THE 40-HOUR WEEK STATUTE, BUT THE PROVISIONS OF SAID STATUTE, INCLUDING AUTHORITY FOR PAYMENT OF OVERTIME COMPENSATION, MAY NOT BE APPLIED TO THE EMPLOYEES IN QUESTION UNLESS AND UNTIL SUCH WAGE -FIXING PROCEDURE IS FORMALLY ADOPTED BY ADMINISTRATIVE ORDER OR REGULATION OF THE ADMINISTRATOR OF THE BONNEVILLE POWER ADMINISTRATION. SEE 16 COMP. GEN. 660.

THE ABOVE-STATED ANSWER TO QUESTIONS (3) AND (4) MAKES IT UNNECESSARY TO ANSWER QUESTION (5).