B-153182, FEB. 26, 1964

B-153182, FEB. 26, 1964

TO WALTER N. TO BRINER:

YOUR LETTER OF DECEMBER 31, 1963, WITH ENCLOSURES, ACKNOWLEDGED JANUARY 21, 1964, ASKS WHETHER YOU LAWFULLY MAY CONTINUE THE PRACTICE OF PAYING CERTAIN EMPLOYEES ENGAGED IN THE COLLECTION OF REFUSE IN THE DISTRICT OF COLUMBIA UNDER THE TASK SYSTEM OF WORK PERFORMANCE FOR WHICH EMPLOYEES ARE COMPENSATED AT HOURLY PREVAILING RATES FIXED BY A WAGE BOARD.

THE PRACTICE IS MORE PARTICULARLY DESCRIBED BY YOUR LETTER, WHICH READS IN PERTINENT PART, AS FOLLOWS:

"THE DISTRICT OF COLUMBIA GOVERNMENT HAS FOLLOWED FOR A NUMBER OF YEARS THE PRACTICE USED IN MOST CITIES AND COUNTIES IN THAT A TASK SYSTEM IS UTILIZED FOR THE DETERMINATION OF WORK PERFORMANCE FOR THIS TYPE OF SERVICE. UNDER THE TASK SYSTEM, THE AMOUNT OF WORK TO BE ASSIGNED TO THE EMPLOYEES IS DETERMINED THROUGH AN EVALUATION OF MANY FACTORS INCLUDED, THE AMOUNT OF WORK WHICH MAY BE COMPLETED IN A NORMAL EIGHT HOUR DAY; THE LENGTH OF THE ROUTE; THE NUMBER OF STOPS; THE QUANTITY OF REFUSE; THE LENGTH OF TIME NECESSARY TO TRANSFER SUCH TRASH TO THE INCINERATOR OR DUMP AREA; AS WELL AS OTHER VARIABLES CREATED BY UNCONTROLLABLE CONDITIONS. USING THESE ITEMS AS A BASIS, THE ROUTES OR TASKS ARE ESTABLISHED AND ASSIGNED TO EACH COLLECTION UNIT. THE MEN SO ASSIGNED TO THE ROUTES AS A PART OF THE TASK SYSTEM ARE REQUIRED TO COMPLETE THEIR ASSIGNED TASKS EACH DAY. IN THIS MANNER, THE HOUSEHOLDER MAY EXPECT THE TRASH TO BE PICKED UP ON DESIGNATED DAYS.

"FOR PAY PURPOSES, THESE EMPLOYEES ARE REPORTED AS WORKING EIGHT HOURS EACH DAY. HOWEVER, THEIR ACTUAL DAY'S WORK MAY VARY DEPENDING UPON THE LENGTH OF TIME IT TAKES TO COMPLETE THE ASSIGNED TASK. IT MAY BE LESS OR MORE THAN EIGHT HOURS, DEPENDING UPON THE FACTORS ENUMERATED ABOVE AND THE SEASON OF THE YEAR (MORE TRASH DURING CERTAIN PERIODS, THAT IS CHRISTMAS), WEATHER CONDITIONS WHICH MAY SLOW UP COLLECTIONS, PHYSICAL CONDITIONS OF THE STREETS, ETC.

"THE DISTRICT OF COLUMBIA GOVERNMENT IS MOST DESIROUS TO CONTINUE THE PRESENT TASK SYSTEM FOR MANY REASONS INCLUDING THE FOLLOWING: (A) IT IS THE COMMON PRACTICE FOR THIS TYPE OF WORK IN OTHER CITIES AND COUNTIES AS INDICATED BY THE ATTACHED REPORTS FROM SUCH CITIES AND COUNTIES, AND THUS ITS SUCCESS IS COMPLETELY ACCEPTED ELSEWHERE, AS WELL; (B) IT IS A MORE EFFICIENT OPERATION; (C) TRASH COLLECTION DAYS MAY BE DESIGNATED AND THE HOUSEHOLDER IS ASSURED OF PICKUP ON THE SPECIFIED DAYS; (D) IT GIVES THE DISTRICT OF COLUMBIA GOVERNMENT MORE FLEXIBILITY IN WORK ASSIGNMENTS; (E) EMPLOYEES LOOK WITH FAVOR ON THIS SYSTEM SINCE THEY KNOW THEIR EXPECTED TASK FOR EACH DAY; AND (F) BECAUSE OF THE FAR-FLUNG OPERATIONS THROUGHOUT THE ENTIRE DISTRICT OF COLUMBIA AREA, IT WOULD BE ALMOST IMPOSSIBLE TO DECIDE WHEN AND WHERE THE MEN SHOULD QUIT WORK IN ORDER TO ARRIVE AT THE FINAL POINT FOR THE COMPLETION OF THEIR EIGHT HOUR DAY. WITH RESPECT TO ITEM (B) ABOVE, WHILE IT IS REALIZED THAT EFFICIENCY ALONE MAY NOT BE THE DECIDING FACTOR, IT IS A MOST IMPORTANT ONE IN THIS CASE. INVOLVED ARE SEVERAL HUNDRED EMPLOYEES IN GRADES WHEREIN THE DEGREE OF RESPONSIBILITY TO BE EXPECTED IS VERY LOW. THE NATURE OF THE OPERATION REQUIRES THAT THESE EMPLOYEES, IN SMALL GROUPS, BE SPREAD OVER THE ENTIRE AREA OF THE DISTRICT OF COLUMBIA, THUS MAKING IT IMPOSSIBLE TO APPLY CONTINUOUS SUPERVISION. WHEN WORKING UNDER THE TASK SYSTEM, THESE EMPLOYEES AUTOMATICALLY HAVE AN INCENTIVE TO KEEP MOVING AT A REASONABLE PACE AND TO GET THE DAY'S WORK DONE. IN THE ABSENCE OF THE TASK SYSTEM AND ITS BUILT- IN INCENTIVE, THE WORK WOULD SLOW DOWN IN SPITE OF ANY DEGREE OF SUPERVISION WITHIN THE RANGE OF PRACTICABILITY. THE RESULT WOULD BE HIGHER COSTS, ERRATIC SCHEDULES AND GENERALLY POORER SERVICE TO THE PUBLIC. THIS IS CONFIRMED BY THE FACT THAT THE TASK SYSTEM IS IN ALMOST UNIVERSAL USE FOR THIS WORK IN LARGER CITIES. IT PROVIDES A BENEFIT TO THE PUBLIC IN LOWER COSTS AND BETTER SERVICE AND IS PREFERRED BY THE EMPLOYEES THEMSELVES.

"WE, THEREFORE, REQUEST YOUR OPINION AS TO WHETHER THE DISTRICT OF COLUMBIA GOVERNMENT MAY CONTINUE TO HAVE ITS PERSONNEL WORK UNDER THE TASK SYSTEM AND TO HAVE THEIR PAY CALCULATED AND PAID IN ACCORDANCE WITH PRESENT STATUTES DEALING WITH WAGE BOARD EMPLOYEES, THAT IS, WOULD BE PAID FOR EIGHT HOURS EACH DAY FOR A FORTY-HOUR WEEK. THEY WOULD ALSO ACCRUE LEAVE IN THE SAME MANNER AS OTHER WAGE BOARD EMPLOYEES. THE DISTRICT OF COLUMBIA GOVERNMENT WOULD CONTINUOUSLY REVIEW THE TASK ASSIGNMENTS TO MAKE CERTAIN THEY ARE APPROPRIATE.'

STATUTORY AUTHORITY FOR THE PERFORMANCE OF THIS FUNCTION BY THE DISTRICT OF COLUMBIA IS FOUND IN THE ACT OF MARCH 6, 1918, 40 STAT. 539; 6 D.C. CODE 504, ENTITLED "AN ACT TO PROVIDE FOR THE COLLECTION AND DISPOSAL OF GARBAGE AND MISCELLANEOUS REFUSE OF THE DISTRICT OF COLUMBIA.' SECTION 11 OF THE STATUTE READS AS FOLLOWS:

"THAT IN ORDER TO PUT INTO EFFECT AND OPERATE SUCH METHOD OF DISPOSAL AS MAY BE ADOPTED BY THE COMMISSIONERS UNDER THE PROVISIONS OF THIS ACT, THE SAID COMMISSIONERS ARE AUTHORIZED TO SECURE THE NECESSARY MEANS OF TRANSPORTATION, INCLUDING THE HIRE OR PURCHASE OF HORSES AND HORSE-DRAWN VEHICLES AND PASSENGER-CARRYING AND OTHER MOTOR PROPELLED VEHICLES; ADDITIONAL EQUIPMENT, BUILDINGS AND MACHINERY; AND TO EMPLOY EXPERT AND OTHER PERSONAL SERVICES AND LABOR; AND TO PAY TRAVELING, MAINTENANCE, INCIDENTAL AND CONTINGENT EXPENSES.'

IT APPEARS THAT THE TASK SYSTEM OF COLLECTION WAS INAUGURATED BY THE DISTRICT OF COLUMBIA IN 1919, UNDER THE ABOVE-CITED AUTHORITY AND THAT IT HAS BEEN FOLLOWED CONTINUOUSLY FROM THAT TIME TO THE PRESENT. EARLIER, IN 1914, A STUDY CAUSED TO BE MADE BY THE COMMISSIONERS IN THE REFUSE COLLECTION AND DISPOSAL FIELD INDICATES THE TASK METHOD WAS USED THEN BY CONTRACTORS, IT HAVING BEEN FOUND BY THE CONSULTANT CONDUCTING THE STUDY, THAT COLLECTION ROUTES WERE SO ARRANGED THAT EACH WOULD REPRESENT A FULL DAY'S WORK.

WE FIND NO EXPRESS STATUTORY AUTHORITY FOR THE TASK SYSTEM OF EMPLOYMENT. HOWEVER, IT IS CLEAR FROM YOUR LETTER THAT THE SYSTEM REQUIRES THE ESTABLISHMENT OF ROUTES WHICH ARE RELATED TO THE 8-HOUR DAY AND 40-HOUR WEEK IN TERMS OF WORK PERFORMED. FURTHERMORE, IT IS EVIDENT THAT THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA WHO ARE CHARGED WITH THE RESPONSIBILITY FOR THE PERFORMANCE OF THE FUNCTION LONG HAVE CONSTRUED THE STATUTE AS AUTHORIZING THE TASK SYSTEM OF EMPLOYMENT. IN THE ABSENCE OF A STATUTE EXPRESSLY CONTRAVENING THAT CONSTRUCTION, WEIGHT MUST BE GIVEN THAT ADMINISTRATIVE INTERPRETATION OF THE LAW. A CONTEMPORANEOUS CONSTRUCTION BY OFFICERS UPON WHOM IS IMPOSED THE DUTY OF EXECUTING A STATUTE IS ENTITLED TO GREAT WEIGHT AND OUGHT NOT TO BE OVERTURNED UNLESS CLEARLY ERRONEOUS. UNITED STATES V. PHILBRICK, 120 U.S. 52; UNITED STATES V. MINNESOTA, 270 U.S. 181, 205; UNITED STATES V. AMERICAN TRUCKING ASSOCIATIONS, 310 U.S. 534, 549.

IN THE LIGHT OF WHAT HAS BEEN SAID WE ARE NOT REQUIRED TO OBJECT TO THE CONTINUATION OF THE ..END :