B-16101, APRIL 24, 1941, 20 COMP. GEN. 673

B-16101: Apr 24, 1941

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1941: I HAVE YOUR LETTER OF APRIL 7. THE REQUISITIONS COVERING THE SERVICES OF THESE CONTRACT EMPLOYEES WERE SUBMITTED PRIOR TO THE PROMULGATION OF THE NATIONAL DEFENSE PROGRAM AND IT WAS NOT BELIEVED AT THAT TIME THAT THE SERVICES WOULD BE REQUIRED ON OTHER THAN THE REGULAR WORKING DAYS IN THE FIVE-DAY WEEK PERIOD. IT WILL BE NECESSARY TO WORK THESE MEN ON DAYS OTHER THAN THOSE NOW SPECIFIED IN THEIR CONTRACTS AND ON SPECIFIC OCCASIONS FOR MORE THAN EIGHT HOURS ON ANY ONE DAY. THIS SITUATION MAY OCCUR IN CONNECTION WITH WITNESSING TESTS AT OTHER PLANTS WHICH ARE HELD ON SATURDAYS AND SUNDAYS SO AS NOT TO INTERFERE WITHOTHER HIGH PRIORITY NATIONAL DEFENSE WORK. WHOSE WAGES ARE SET BY THE ACT OF JULY 16.

B-16101, APRIL 24, 1941, 20 COMP. GEN. 673

CONTRACTS - MODIFICATION - PERSONAL SERVICES - OVERTIME COMPENSATION THE SECRETARY OF THE NAVY MAY MODIFY CONTRACTS FOR THE PER DIEM EMPLOYMENT OF SCIENTISTS AND TECHNICISTS, CONTAINING PROVISIONS LIMITING WORK THEREUNDER TO 8 HOURS PER DAY OR 5 DAYS PER WEEK, TO PROVIDE FOR OVERTIME PAY FOR SERVICES DURING PERIODS IN ADDITION TO THOSE COVERED BY SAID CONTRACT PROVISION, SINCE THE ACT OF JUNE 11, 1940, AUTHORIZING SUCH CONTRACTS CONTAINS NO LIMITATION AS TO THE HOURS PER DAY FOR SUCH WORK, AND PARTICULARLY SINCE SECTION 9 OF THE ACT OF JUNE 28, 1940, AUTHORIZES THE SECRETARY TO MODIFY EXISTING CONTRACTS WHEN NECESSARY TO EXPEDITE MILITARY AND NAVAL DEFENSE. CONTRACTS FOR THE SERVICES OF SCIENTISTS AND TECHNICISTS MAY NOT BE MODIFIED BY THE SECRETARY OF THE NAVY SO THAT THE AGGREGATE AMOUNT PAID, INCLUDING OVERTIME, WOULD EXCEED $25 PER DIEM, THE MAXIMUM SET FOR SUCH WORK IN THE ACT OF JUNE 11, 1940, SINCE NEITHER THE GENERAL AUTHORITY IN THE ACT OF JUNE 28, 1940, TO MODIFY EXISTING CONTRACTS IN THE INTERESTS OF NATIONAL DEFENSE NOR THE GENERAL POLICY OF CONGRESS AS TO PAYMENT FOR OVERTIME SERVICES MAY BE CONSIDERED SUFFICIENT TO OVERCOME THE EXPRESS STATUTORY LIMITATION ON SUCH COMPENSATION RATES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, APRIL 24, 1941:

I HAVE YOUR LETTER OF APRIL 7, 1941, FILE NP16/L4-3 (410211) S, AS FOLLOWS:

THE UNITED STATES NAVAL ENGINEERING EXPERIMENT STATION, ANNAPOLIS, MARYLAND, HAS UNDER CONTRACT THE SERVICES OF FIVE EMPLOYEES FOR THE PERIOD EXTENDING FROM JULY 1, 1940, TO JUNE 30, 1941, COVERED BY REQUISITIONS NUMBER 34, 35, 41, 48, AND 79, NSA 1941 SERIES.

THE CONTRACTS COVER THE PERSONAL SERVICES OF SUCH EMPLOYEES, FOR EXAMPLE, REQUISITION NUMBER 48 READS IN PART:

"PERSONAL SERVICES OF * * * FOR SUPERVISION OF BEARINGS AND LUBRICATION PROJECTS FOR 244 DAYS DURING THE PERIOD 1 JULY 1940 TO 30 JUNE 1941 EXCLUSIVE OF SATURDAYS, SUNDAYS, AND HOLIDAYS AND ANY OTHER DAYS ON WHICH THE STATION MAY BE CLOSED--- 244 DAYS, $20.00, $4,880.00.'

THE REQUISITION CONTAINS THE FURTHER PROVISION THAT:

"WORK TO BE PERFORMED UNDER PROVISIONS OF EIGHT-HOUR LAW APPROVED 19 JUNE 1912.' (THIS PROVISION OF THE EIGHT-HOUR LAW HAS NOW BEEN SUSPENDED.)

"EMPLOYMENT TO BE AS DIRECTED BY DIRECTOR OF UNITED STATES NAVAL ENGINEERING EXPERIMENT STATION WITHIN THE LIMIT SPECIFIED.'

THE REQUISITIONS COVERING THE SERVICES OF THESE CONTRACT EMPLOYEES WERE SUBMITTED PRIOR TO THE PROMULGATION OF THE NATIONAL DEFENSE PROGRAM AND IT WAS NOT BELIEVED AT THAT TIME THAT THE SERVICES WOULD BE REQUIRED ON OTHER THAN THE REGULAR WORKING DAYS IN THE FIVE-DAY WEEK PERIOD.

THE DIRECTOR OF THE NAVAL ENGINEERING EXPERIMENT STATION REPORTS THAT, AS THE WORK LOAD OF THE STATION INCREASES, IT WILL BE NECESSARY TO WORK THESE MEN ON DAYS OTHER THAN THOSE NOW SPECIFIED IN THEIR CONTRACTS AND ON SPECIFIC OCCASIONS FOR MORE THAN EIGHT HOURS ON ANY ONE DAY. THIS SITUATION MAY OCCUR IN CONNECTION WITH WITNESSING TESTS AT OTHER PLANTS WHICH ARE HELD ON SATURDAYS AND SUNDAYS SO AS NOT TO INTERFERE WITHOTHER HIGH PRIORITY NATIONAL DEFENSE WORK.

SECTION 5 (A) OF PUBLIC ACT NUMBER 671--- 76TH CONGRESS, APPROVED JUNE 28, 1940, PROVIDES THAT , THE REGULAR WORKING HOURS OF THE NAVY DEPARTMENT AND THE COAST GUARD AND THEIR FIELD SERVICES SHALL BE EIGHT HOURS A DAY OR 40 HOURS PER WEEK DURING THE PERIOD OF THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON SEPTEMBER 8, 1939, TO EXIST," WITH AUTHORITY TO EXTEND THE HOURS TO MEET THE EXIGENCIES OF THE SITUATION WHERE ADDITIONAL EMPLOYEES CANNOT BE OBTAINED.

SAID SECTION CONTAINS THE FURTHER PROVISION:

"THAT COMPENSATION FOR EMPLOYMENT IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK COMPUTED AT A RATE NOT LESS THAN ONE AND ONE HALF TIMES THE REGULAR RATE SHALL BE PAID ONLY TO MONTHLY, PER DIEM, HOURLY, AND PIECEWORK EMPLOYEES, WHOSE WAGES ARE SET BY THE ACT OF JULY 16, 1862 (12 STAT. 587), AS AMENDED OR MODIFIED; AND ALSO TO PROFESSIONAL AND SUBPROFESSIONAL EMPLOYEES AND TO BLUEPRINTERS, PHOTOSTAT AND ROTAPRINT OPERATORS, INSPECTORS, SUPERVISORY PLANNERS AND ESTIMATORS, AND SUPERVISORY PROGRESSMEN, AND ASSISTANT TO SHOP AND PLANT SUPERINTENDENTS OF THE CAF SERVICE, AS DEFINED BY THE CLASSIFICATION ACT OF MARCH 4, 1923 (42 STAT. 1488; U.S.C. 5 CH. 13), AS AMENDED: * * *"

WHILE THE CONTRACT EMPLOYEES COVERED BY THE REQUISITIONS ABOVE DESCRIBED DO NOT APPEAR TO FALL STRICTLY WITHIN THE CLASSIFICATION OF EMPLOYEES DESIGNATED IN THE SECTION LAST QUOTED, IT IS CONSIDERED THAT THE INTENT OF CONGRESS IS CLEARLY SHOWN THAT EMPLOYEES PERFORMING SERVICES OF THE CHARACTER THEREIN DESCRIBED MAY BE PAID OVERTIME COMPENSATION FOR WORK IN EXCESS OF 40 HOURS A WEEK.

IN THIS CONNECTION IT IS NOTED THAT YOUR DECISION OF NOVEMBER 5, 1940 (20 COMP. GEN. 245), HELD THAT UNDER THE AUTHORITY GRANTED BY SECTION 9 OF PUBLIC ACT NUMBER 671, SUPRA, FOR THE SECRETARY OF THE NAVY TO MODIFY EXISTING CONTRACTS AS DEEMED NECESSARY TO EXPEDITE MILITARY AND NAVAL DEFENSE, FIXED PRICE CONTRACTS COULD BE MODIFIED TO PROVIDE FOR THE REIMBURSEMENT, TO THE CONTRACTOR, OF WAGES PAID BY THE CONTRACTOR TO HIS EMPLOYEES ON THE BASIS OF TIME AND ONE-HALF FOR HOURS WORKED BY THE EMPLOYEES IN EXCESS OF 40 HOURS PER WEEK IF NECESSARY TO AVOID DELAY OR OTHER SERIOUS INTERFERENCE WITH THE NATIONAL DEFENSE PROGRAM.

THE FOLLOWING EXCERPT FROM THE CITED DECISION IS PERTINENT TO THE MATTER UNDER DISCUSSION:

"FURTHERMORE, ASIDE FROM THAT SPECIFIC STATUTORY AUTHORITY WITH RESPECT TO THE MODIFICATION OF ,EXISTING CONTRACTS" THE CONGRESS CLEARLY HAS ESTABLISHED THE POLICY GENERALLY THAT EMPLOYMENT IN EXCESS OF FORTY HOURS PER WEEK SHOULD BE COMPENSATED AT OVERTIME RATES OF TIME AND ONE-HALF.'

THE PAYMENT OF TIME AND ONE-HALF TO THE EMPLOYEES CONCERNED MIGHT RESULT IN EXCEEDING THE PER DIEM LIMIT SPECIFIED IN THE APPROPRIATION TO WHICH THE CONTRACTS ARE CHARGED, NAMELY," MAINTENANCE, BUREAU OF SHIPS, 1941" WHICH IS A COMBINATION OF APPROPRIATIONS MADE UNDER THE HEADINGS " CONSTRUCTION AND REPAIR" AND " ENGINEERING.' THE MAXIMUM LIMIT CONTEMPLATED BY SAID APPROPRIATION IS $25.00 PER DIEM.

THE APPROPRIATION IS PROVIDED IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1941 ( PUBLIC NUMBER 588--- 76TH CONGRESS) APPROVED JUNE 17, 1940, WHILE THE AUTHORITY TO MODIFY EXISTING CONTRACTS AND PROVIDING FOR OVERTIME COMPENSATION OF CERTAIN EMPLOYEES IS FOUND IN A SUBSEQUENT ACT THAT WAS APPROVED AT A LATER DATE, THAT IS, JUNE 28, 1940.

IN VIEW OF THE URGENCY OF THE SITUATION AND OF THE NECESSITY OF OBTAINING THE SERVICES OF THESE EMPLOYEES FOR PERIODS ADDITIONAL TO THAT CONTEMPLATED BY THE CONTRACTS, DECISION IS REQUESTED AS TO WHETHER YOUR OFFICE WOULD INTERPOSE OBJECTION TO MODIFICATION OF THE CONTRACTS FOR THE SERVICES OF THE EMPLOYEES COVERED BY THE REQUISITIONS ABOVE MENTIONED TO PROVIDE FOR OVERTIME PAY OF SUCH EMPLOYEES UNDER CONDITIONS SIMILAR TO THOSE SPECIFIED FOR OTHER EMPLOYEES IN SECTION 5 (A) OF PUBLIC ACT NUMBER 671, SUPRA.

DECISION IS ALSO REQUESTED AS TO WHETHER THE AGGREGATE AMOUNT PAID ANY ONE EMPLOYEE FOR ANY ONE DAY INCLUDING THE OVERTIME PAY MAY EXCEED THE AMOUNT OF THE MAXIMUM DAILY RATE OF $25.00 SPECIFIED FOR SUCH EMPLOYEES UNDER THE APPROPRIATION ULTIMATELY CHARGEABLE PROVIDED THE BASIC DAILY RATE OF PAY IS WITHIN SUCH LIMIT.

THE APPROPRIATION FROM WHICH COMPENSATION IS TO BE PAID FOR THE SERVICES OF THE CONTRACT EMPLOYEES HERE INVOLVED, NAMELY," MAINTENANCE, BUREAU OF SHIPS, 1941," WAS ESTABLISHED, PURSUANT TO SECTION 1 (H) OF THE ACT OF JUNE 20, 1940, 54 STAT. 493, 494, BY COMBINING APPROPRIATIONS UNDER THE HEADINGS " ENGINEERING" AND CONSTRUCTION AND REPAIR," AS CARRIED IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1941, APPROVED JUNE 11, 1940, 54 STAT. 265, 272. UNDER EACH HEADING APPEARS, IN IDENTICAL LANGUAGE, THE FOLLOWING AUTHORITY WITH RESPECT TO THE CONTRACT EMPLOYMENT OF SCIENTISTS AND TECHNICISTS:

* * * PAYMENT OF PART-TIME OR INTERMITTENT EMPLOYMENT IN THE DISTRICT OF COLUMBIA, OR ELSEWHERE, OF SUCH SCIENTISTS AND TECHNICISTS AS MAY BE CONTRACTED FOR BY THE SECRETARY OF THE NAVY, IN HIS DISCRETION, AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM FOR ANY PERSONS SO EMPLOYED * * *.

IT APPEARS FROM YOUR ABOVE LETTER THAT PURSUANT TO SUCH AUTHORITY CONTRACTS WERE ENTERED INTO WITH FIVE PERSONS FOR EMPLOYMENT AT THE UNITED STATES NAVAL ENGINEERING EXPERIMENT STATION, ANNAPOLIS, MD., SUCH CONTRACTS RESTRICTING EMPLOYMENT TO 8 HOURS PER DAY AND PROVIDING THAT NO SERVICES WOULD BE REQUIRED ON " SATURDAYS, SUNDAYS, AND HOLIDAYS AND ANY OTHER DAYS ON WHICH THE STATION MAY BE CLOSED.' PAYMENTS FOR SERVICES RENDERED WAS TO BE MADE AT RATES OF PAY NOT EXCEEDING $25 PER DIEM. FURTHER APPEARS THAT BY REASON OF THE NATIONAL DEFENSE PROGRAM IT IS DESIRED TO OBTAIN THE SERVICES OF SUCH CONTRACT EMPLOYEES FOR PERIODS, ADDITIONAL TO THOSE REQUIRED BY THE CONTRACTS, AND YOUR FIRST QUESTION, THEREFORE, IS AS TO WHETHER THE CONTRACTS NOW MAY BE MODIFIED TO PROVIDE FOR OVERTIME PAY TO THE EMPLOYEES UNDER CONDITIONS SIMILAR TO THOSE SPECIFIED FOR OTHER EMPLOYEES IN SECTION 5 (A) OF THE ACT OF JUNE 28, 1940, PUBLIC, NO. 671, QUOTED IN YOUR ABOVE LETTER, I.E., AT A RATE NOT LESS THAN ONE AND ONE-HALF TIMES THE REGULAR RATE FOR EMPLOYMENT IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK.

THE STATUTORY PROVISION QUOTED ABOVE AUTHORIZING YOU TO CONTRACT FOR THE SERVICES OF SCIENTISTS AND TECHNICISTS DOES NOT LIMIT THE HOURS PER DAY WHICH SUCH EMPLOYEES MAY BE WORKED AND CONSEQUENTLY IT APPEARS WITHIN YOUR AUTHORITY TO PROVIDE BY CONTRACT FOR SERVICES TO BE PERFORMED SUCH NUMBER OF HOURS PER DAY AS YOU MAY SPECIFY OR REQUIRE, BUT, OF COURSE, SAID PROVISION SPECIFICALLY PROVIDES THAT THE COMPENSATION THEREFOR SHALL BE AT A RATE OF PAY NOT EXCEEDING $25 PER DAY. HOWEVER, WITH RESPECT TO THE EMPLOYEES HERE INVOLVED, THE CONTRACTS LIMITED THE EMPLOYMENT TO NOT IN EXCESS OF 8 HOURS PER DAY OR 5 DAYS PER WEEK AND THE EMPLOYEES ARE ENTITLED TO THE SPECIFIED CONTRACT COMPENSATION FOR THE SERVICES SO PERFORMED. YOU COULD NOT, UNDER THE CONTRACTS, REQUIRE THE EMPLOYEES TO WORK MORE THAN 8 HOURS PER DAY OR 40 HOURS PER WEEK (5 DAYS PER WEEK) FOR THE STIPULATED COMPENSATION. IF, THEREFORE, BY REASON OF THE INCREASED WORK INCIDENT TO THE NATIONAL DEFENSE PROGRAM IT IS ESSENTIAL THAT THE SERVICES OF THE EMPLOYEES BE OBTAINED FOR PERIODS ADDITIONAL TO THOSE CONTEMPLATED BY THE CONTRACTS IT WOULD BE NECESSARY FOR YOU TO MODIFY THE CONTRACTS TO PROVIDE FOR SUCH SERVICES AND NO REASON IS APPARENT WHY YOU MAY NOT DO SO, PARTICULARLY IN VIEW OF SECTION 9 OF THE ACT OF JUNE 28, 1940, PUBLIC, NO. 671, WHICH AUTHORIZES YOU TO MODIFY EXISTING CONTRACTS AS YOU MAY DEEM NECESSARY TO EXPEDITE MILITARY AND NAVAL DEFENSE.

HOWEVER, WITH RESPECT TO YOUR SECOND QUESTION, THERE WOULD APPEAR TO BE NO AUTHORITY TO MODIFY THE CONTRACTS ON SUCH A BASIS THAT THE AGGREGATE AMOUNT TO BE PAID ANY ONE EMPLOYEE, INCLUDING THE OVERTIME PAY, WOULD EXCEED $25 PER DIEM. WHILE YOU MAY MODIFY THE CONTRACTS TO PROVIDE FOR OVERTIME PAY, YOUR AUTHORITY IN THIS RESPECT IS SPECIFICALLY LIMITED BY THE ACT OF JUNE 11, 1940, SUPRA, IN THAT THE RATE OF PAY MAY NOT EXCEED $25 PER DIEM. AS POINTED OUT IN YOUR LETTER OF APRIL 7, 1941, SECTION 5 (A) OF THE ACT OF JUNE 28, 1940, QUOTED THEREIN, DOES NOT SPECIFICALLY INCLUDE THE CLASS OF EMPLOYEES HERE INVOLVED AMONG THOSE TO WHICH OVERTIME RATES OF TIME AND ONE-HALF ARE TO BE PAID AND AS YOU WILL NOTE, SAID SECTION PROVIDES THAT THE OVERTIME RATES SHALL BE PAID ONLY TO THOSE CLASSES OF EMPLOYEES SPECIFIED THEREIN. CONSEQUENTLY, SAID SECTION AFFORDS NO AUTHORITY FOR PAYING THESE CONTRACT EMPLOYEES IN EXCESS OF $25 PER DIEM BY REASON OF OVERTIME WHICH THEY MAY WORK.

THERE IS APPRECIATED THE FACT THAT YOU ARE AUTHORIZED UNDER SECTION 9 OF THE ACT OF JUNE 28, 1940, SUPRA, TO MODIFY EXISTING CONTRACTS, AS YOU MAY DEEM NECESSARY TO EXPEDITE NATIONAL DEFENSE, AND THAT THE CONGRESS HAS ESTABLISHED THE POLICY GENERALLY THAT EMPLOYMENT IN EXCESS OF FORTY HOURS PER WEEK SHOULD BE COMPENSATED AT OVERTIME RATES OF TIME AND ONE-HALF. STATED ABOVE, YOU MAY MODIFY THE CONTRACTS HERE INVOLVED, AND PROVIDE THEREIN THAT OVERTIME MAY BE PAID FOR AT RATES OF TIME AND ONE-HALF BUT YOUR AUTHORITY TO DO SO IS LIMITED TO THE EXTENT THAT PAYMENT TO ANY ONE EMPLOYEE MAY NOT EXCEED $25 PER DIEM. THE GENERAL AUTHORITY IN THE ACT OF JUNE 28, 1940, TO MODIFY EXISTING CONTRACTS MAY NOT BE CONSIDERED SUFFICIENT TO OVERCOME THE EXPRESS PROVISION OF THE PRIOR ACT OF JUNE 11, 1940, THAT THE RATE OF PAY SHALL NOT EXCEED $25 PER DIEM AND, OBVIOUSLY, A GENERAL POLICY ESTABLISHED BY THE CONGRESS WITH RESPECT TO OVERTIME MAY NOT BE RECOGNIZED AND APPLIED TO THE EXTENT THAT IT NULLIFIES EXPRESS STATUTORY PROVISIONS.