B-32283, FEBRUARY 13, 1943, 22 COMP. GEN. 804

B-32283: Feb 13, 1943

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WHICH EXCEPTS FROM THE BENEFITS OF THE ACT EMPLOYEES WHOSE WAGES ARE FIXED ON A DAILY OR HOURLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY. RELATES TO ADMINISTRATIVE WAGE BOARD PROCEDURES IN FORCE ON THE DATE THE LAW WAS ENACTED AND WAS NOT INTENDED TO REQUIRE THE ADOPTION OF A WAGE BOARD PROCEDURE NOT OTHERWISE REQUIRED BY LAW FOR CLASSES OF EMPLOYEES WHOSE SALARY RATES HAD NOT PREVIOUSLY BEEN ADMINISTRATIVELY ADJUSTED PURSUANT TO A WAGE BOARD PROCEDURE. WHICH HAS FIXED THE WAGES OF ITS EMPLOYEES WHO ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1923. WITHOUT REGARD TO PREVAILING WAGE RATES UNDER VARIOUS INFORMAL ADMINISTRATIVE POLICIES AND PRACTICES ADOPTED UNDER THE GENERAL AUTHORITY VESTED IN THE HEAD OF A DEPARTMENT OR AGENCY TO FIX SALARY RATES WHICH ARE NOT CONTROLLED BY SPECIFIC STATUTE.

B-32283, FEBRUARY 13, 1943, 22 COMP. GEN. 804

OVERTIME AND ADDITIONAL COMPENSATION - RIGHTS OF EMPLOYEES AS AFFECTED BY INFORMAL WAGE-FIXING PROCEDURE THE SECOND PROVISO OF SECTION 1 OF THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, WHICH EXCEPTS FROM THE BENEFITS OF THE ACT EMPLOYEES WHOSE WAGES ARE FIXED ON A DAILY OR HOURLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY, RELATES TO ADMINISTRATIVE WAGE BOARD PROCEDURES IN FORCE ON THE DATE THE LAW WAS ENACTED AND WAS NOT INTENDED TO REQUIRE THE ADOPTION OF A WAGE BOARD PROCEDURE NOT OTHERWISE REQUIRED BY LAW FOR CLASSES OF EMPLOYEES WHOSE SALARY RATES HAD NOT PREVIOUSLY BEEN ADMINISTRATIVELY ADJUSTED PURSUANT TO A WAGE BOARD PROCEDURE. THE DEPARTMENT OF AGRICULTURE, WHICH HAS FIXED THE WAGES OF ITS EMPLOYEES WHO ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, WITHOUT REGARD TO PREVAILING WAGE RATES UNDER VARIOUS INFORMAL ADMINISTRATIVE POLICIES AND PRACTICES ADOPTED UNDER THE GENERAL AUTHORITY VESTED IN THE HEAD OF A DEPARTMENT OR AGENCY TO FIX SALARY RATES WHICH ARE NOT CONTROLLED BY SPECIFIC STATUTE, IS NOT CONSIDERED AS HAVING ADOPTED ADMINISTRATIVELY--- AND IS NOT REQUIRED BY LAW TO ADOPT--- A WAGE BOARD PROCEDURE IN FIXING THE WAGE RATES, AND, THEREFORE, THESE EMPLOYEES ARE NOT PRECLUDED FROM RECEIVING THE BENEFITS OF THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, BY THE PROVISION THEREOF WHICH EXCLUDES FROM ITS BENEFITS EMPLOYEES WHOSE WAGES ARE FIXED BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, FEBRUARY 13, 1943:

I HAVE YOUR LETTER OF FEBRUARY 4, 1943, AS FOLLOWS:

THE VARIOUS BUREAUS OF THE DEPARTMENT OF AGRICULTURE EMPLOY A CONSIDERABLE NUMBER OF PERSONS IN THE FIELD SERVICE WHOSE POSITIONS ARE EXEMPT FROM THE COMPENSATION SCHEDULES OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND WHOSE POSITIONS ARE LIKEWISE EXEMPT FROM CLASSIFICATION PURSUANT TO EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934.

THE MANNER OF FIXING THE RATES OF PAY FOR POSITIONS EXEMPT FROM THE PROVISIONS OF THE CLASSIFICATION ACT AND OF THE EXECUTIVE ORDER IS NOT PRESCRIBED OR LIMITED BY THE ACT OR ORDER, NOR DOES ANY OTHER LAW OR EXECUTIVE ORDER PRESCRIBE THE MANNER OF FIXING RATES OF PAY FOR SUCH POSITIONS IN THIS DEPARTMENT. THE DEPARTMENT HAS NOT ESTABLISHED ANY METHOD BY WHICH RATES OF PAY FOR UNALLOCATED POSITIONS SHALL BE SET, ALTHOUGH IT HAS ADOPTED A POLICY OF PAYING NOT LESS THAN 30 CENTS PER HOUR FOR ANY CLASS OF WORK. THE ACTUAL SETTING OF RATES IS DONE IN MOST INSTANCES BY FIELD OFFICIALS LOCATED AT OR NEAR THE SCENE OF EMPLOYMENT. IN GENERAL, SUCH FIELD OFFICIALS SET RATES ACCORDING TO THEIR OWN JUDGMENT. IN THE FOREST SERVICE, THERE IS A PREVALENT TENDENCY TO SET RATES FOR FIRE FIGHTERS AT LESS THAN PREVAILING RATES ON THE THEORY THAT TO DO SO WOULD DISCOURAGE INCENDIARISM. THE FARM SECURITY ADMINISTRATION HAS GONE FURTHER PERHAPS THAN ANY OTHER BUREAU IN ESTABLISHING A FORMAL PROCEDURE FOR SETTING WAGE RATES. IT EMPLOYS LABOR RELATIONS SPECIALISTS WHOSE DUTIES INCLUDE THE MAKING OF WAGE SURVEYS AND RECOMMENDING OF WAGE RATES FOR LABORERS AND CRAFTSMEN.

IN GENERAL, HOWEVER, IT MAY BE SAID THAT THERE DOES NOT EXIST IN THE DEPARTMENT OF AGRICULTURE ANY FORMAL PROCEDURE FOR FIXING WAGES OR ANY ADMINISTRATIVE OFFICER OR BODY WHICH MIGHT BE CONSTRUED TO BE A "WAGE BOARD.' WHILE WAGES WERE ADJUSTED FROM TIME TO TIME BY THE VARIOUS BUREAUS PRIOR TO PROMULGATION OF THE WAGE STABILIZATION POLICY ( EXECUTIVE ORDER NO. 9250), THERE WAS NO CONSISTENT POLICY GOVERNING THE ADJUSTMENTS MADE BY THE VARIOUS BUREAUS, NOR WERE THE ADJUSTMENTS BASED EXCLUSIVELY UPON COMPARISONS WITH LOCAL PREVAILING WAGE RATES. IN MANY INSTANCES, THE MINIMUM WAGE OF 30 CENTS PER HOUR IS MORE THAN THE LOCAL PREVAILING RATE. THE CONDITION OF THE BUDGET, THE EFFICIENCY AND LENGTH OF SERVICE OF THE PARTICULAR EMPLOYEE INVOLVED, THE RATES PAID OTHER EMPLOYEES OCCUPYING CLASSIFIED POSITIONS, AND OTHER ADMINISTRATIVE CONSIDERATIONS GENERALLY ENTERED INTO THE FIXING OF EACH RATE. NONE OF THESE EMPLOYEES HAVE HERETOFORE RECEIVED OVERTIME COMPENSATION. NO FORMAL PROCEDURE IS PRESCRIBED BY THE DEPARTMENT AND LITTLE IS IN FACT FOLLOWED BY THE BUREAUS.

IN YOUR DECISION OF JANUARY 11, 1943, ADDRESSED TO THE SECRETARY OF THE INTERIOR (B-31530), IT WAS STATED THAT, IN DETERMINING WHETHER AN ADMINISTRATIVE AUTHORITY IS SIMILAR TO AND SERVES THE SAME PURPOSE AS A WAGE BOARD, THERE SHOULD BE FOLLOWED, GENERALLY, THE RULES STATED BY YOUR OFFICE UNDER THE ACT OF MARCH 28, 1934 (5 U.S.C. 1940 ED. 673C). THERE IS FOR CONSIDERATION, THEREFORE, YOUR DECISION APPEARING IN 20 COMP. GEN. 392 (CITED IN THE JANUARY 11, 1943, DECISION), DISCUSSING THE QUESTION AS TO WHETHER CERTAIN EMPLOYEES OF THE BONNEVILLE POWER ADMINISTRATION CAME WITHIN THE PROVISIONS OF THE ACT OF MARCH 28, 1934. AFTER FINDING THAT A PROCEDURE ADOPTED BY THE BONNEVILLE POWER ADMINISTRATION FOR FIXING WAGES OF ITS EMPLOYEES WAS EQUIVALENT TO THE PROCEDURE USED BY A WAGE BOARD OR OTHER WAGE-FIXING AUTHORITY, YOU, NEVERTHELESS, HELD THAT THE PROVISIONS OF THE STATUTE COULD 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.' AS STATED PREVIOUSLY, THIS DEPARTMENT HAS NEVER ESTABLISHED A "WAGE BOARD" OR OTHER SIMILAR ADMINISTRATIVE AUTHORITY, AND OUR EMPLOYEES WHO COULD BE PAID TIME AND ONE-HALF FOR OVERTIME UNDER THE ACT OF MARCH 28, 1934, IF INVOKED, HAVE NEVER RECEIVED SUCH COMPENSATION.

IT IS OUR CONSIDERED OPINION, THEREFORE, THAT THERE DOES NOT EXIST IN THE DEPARTMENT OF AGRICULTURE A "WAGE BOARD OR A SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE," AND THAT ACCORDINGLY, IT IS PROPER FOR THIS DEPARTMENT TO PAY OVERTIME OR 10 PERCENT IN LIEU OF OVERTIME PURSUANT TO PUBLIC LAW 821, 77TH CONGRESS, TO THE EMPLOYEES UNDER CONSIDERATION. WE BELIEVE THAT YOUR DECISION OF JANUARY 14, 1943 (B- 31623), TO THE UNITED STATES COMMISSIONER, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, LENDS SUPPORT TO OUR CONCLUSION. HOWEVER, THE DECISION OF JANUARY 11, 1943 (B-31530), TO THE SECRETARY OF THE INTERIOR HAS CAST SOME DOUBT UPON THE MATTER AND ACCORDINGLY, WE SHOULD LIKE TO HAVE IT CLARIFIED. SPECIFICALLY, MAY THE DEPARTMENT OF AGRICULTURE EXTEND THE BENEFITS OF PUBLIC LAW 821, 77TH CONGRESS, APPROVED DECEMBER 22, 1942, TO THOSE OF ITS EMPLOYEES WHO OCCUPY POSITIONS THAT ARE EXEMPT FROM THE COMPENSATION SCHEDULES OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND FROM CLASSIFICATION UNDER EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934?

THE SECOND PROVISO OF SECTION 1 OF THE JOINT RESOLUTION OF DECEMBER 22, 1942, 56 STAT. 1068, PUBLIC LAW 821, EXPRESSLY EXCEPTS FROM THE PURVIEW OF THE LAW---

* * * (A) THOSE WHOSE WAGES ARE FIXED ON A DAILY OR HOURLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE * *

WITH RESPECT TO SAID PROVISO, IT WAS HELD IN DECISION OF JANUARY 4, 1943, B-31430, 22 COMP. GEN. 596, TO THE PUBLIC PRINTER, THAT THE CONGRESS INTENDED SAID EXCEPTION TO APPLY TO---

* * * ALL EMPLOYEES WHOSE WAGES ARE FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE, REGARDLESS OF THE BASIS UPON WHICH THEIR COMPENSATION IS FIXED, THAT IS, WHETHER ON THE BASIS OF THE HOUR, THE DAY, THE YEAR, OR PIECE WORK. * * *

THE INVOLVED EXCEPTION TO THE JOINT RESOLUTION WAS INTENDED TO, AND DOES, RELATE TO ADMINISTRATIVE WAGE BOARD PROCEDURES IN FORCE WHEN THE LAW WAS ENACTED, DECEMBER 22, 1942. IN OTHER WORDS, THERE WAS NO INTENTION BY SAID EXCEPTION TO REQUIRE THE ADOPTION OF A WAGE BOARD PROCEDURE NOT OTHERWISE REQUIRED BY LAW FOR ANY CLASS OF EMPLOYEES WHOSE SALARY RATES HAD NOT, PRIOR TO DECEMBER 22, 1942, BEEN ADMINISTRATIVELY ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES, THAT IS, PURSUANT TO A WAGE BOARD PROCEDURE.

BASED UPON THE DETAILED ANALYSIS SET FORTH IN YOUR LETTER AS TO THE ADMINISTRATIVE POLICIES AND PRACTICES CONTROLLING THE FIXING OF THE SALARY RATES OF THE INVOLVED EMPLOYEES, THE CONCLUSION APPEARS JUSTIFIED THAT THE DEPARTMENT OF AGRICULTURE HAS NOT ADOPTED ADMINISTRATIVELY--- AND IS NOT REQUIRED BY LAW TO ADOPT--- A WAGE BOARD PROCEDURE IN FIXING THE COMPENSATION OF THE EMPLOYEES UNDER THE DEPARTMENT. IN THAT CONNECTION, THE DECISION OF JANUARY 11, 1943, B 31530, 22 COMP. GEN. 641, TO THE SECRETARY OF THE INTERIOR TO WHICH YOU REFER, HELD---

HOWEVER, EMPLOYEES WHOSE RATES OF WAGES ARE ADMINISTRATIVELY FIXED UNDER GENERAL ADMINISTRATIVE AUTHORITY GRANTED BY OR PURSUANT TO STATUTE WITHOUT REFERENCE TO PREVAILING WAGES, DO FALL WITHIN THE PURVIEW OF THE ACT OF DECEMBER 22, 1942, AND ARE ENTITLED TO THE BENEFITS THEREOF REGARDLESS OF WHETHER THEY BE PAID ON A PER ANNUM, PER DIEM, OR SOME OTHER BASIS.

THAT RULING WAS INTENDED TO, AND DOES, APPLY TO EMPLOYEES WHOSE RATES OF WAGES ARE FIXED WITHIN ADMINISTRATIVE DISCRETION UNDER GENERAL AUTHORITY OF LAW VESTED IN THE HEAD OF A DEPARTMENT OR AGENCY OF THE GOVERNMENT TO FIX SALARY RATES WHICH ARE NOT CONTROLLED BY SPECIFIC STATUTE, AND WAS SO APPLIED IN THE DECISIONS OF JANUARY 2, 1943, B 31316, 22 COMP. GEN. 589, TO THE ARCHITECT OF THE CAPITOL, JANUARY 14, 1943, B-31623, 22 COMP. GEN. 651, TO THE UNITED STATES COMMISSIONER, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, JANUARY 20, 1943, B-31747, 22 COMP. GEN. 682, TO THE LIBRARIAN OF CONGRESS ( SUNDAY OPENING RATES), AND FEBRUARY 8, 1943, B -32063, 22 COMP. GEN. 770, TO THE FEDERAL SECURITY ADMINISTRATOR (EMPLOYEES OF HOWARD UNIVERSITY AND THE COLUMBIA INSTITUTION FOR THE DEAF).

ACCORDINGLY, THE QUESTION CONTAINED IN THE LAST SENTENCE OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.