B-35541, JULY 19, 1943, 23 COMP. GEN. 35

B-35541: Jul 19, 1943

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THE WAR OVERTIME PAY ACT OF 1943 ARE NOT APPLICABLE TO LABORERS AND MECHANICS OF THE ALASKA ROAD COMMISSION WHOSE RATE OF COMPENSATION IS FIXED ADMINISTRATIVELY ON A DAILY OR HOURLY BASIS AND ADJUSTED FROM TIME TO TIME. 1943: I HAVE YOUR LETTER OF JULY 5. IS ENGAGED IN CONSTRUCTING ROADS AND TRAILS IN ALASKA. THE COMMISSION WAS TRANSFERRED TO THE DEPARTMENT UNDER AUTHORITY OF THE ACT OF CONGRESS APPROVED JUNE 30. THE QUESTION IS NOW RAISED WHETHER PUBLIC LAW 821 APPROVED DECEMBER 22. ARE APPLICABLE TO THE ALASKA ROAD COMMISSION. THAT PORTION OF THE ACT DEALING WITH EXCEPTIONS TO ITS PROVISIONS STATES THAT IT "SHALL NOT APPLY TO (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.'.

B-35541, JULY 19, 1943, 23 COMP. GEN. 35

COMPENSATION - OVERTIME - ALASKA ROAD COMMISSION EMPLOYEES; SUSPENSION OF EIGHT-HOUR LAW THE PROVISIONS OF THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, AND THE WAR OVERTIME PAY ACT OF 1943 ARE NOT APPLICABLE TO LABORERS AND MECHANICS OF THE ALASKA ROAD COMMISSION WHOSE RATE OF COMPENSATION IS FIXED ADMINISTRATIVELY ON A DAILY OR HOURLY BASIS AND ADJUSTED FROM TIME TO TIME, AND WITH RESPECT TO WHOM THE EIGHT-HOUR LAW OF AUGUST 1, 1892, AS AMENDED, HAS BEEN SUSPENDED BY EXECUTIVE ORDER AUTHORIZING THE PAYMENT OF OVERTIME COMPENSATION AT THE RATE OF NOT LESS THAN TIME AND ONE-HALF OF THE BASIC RATE OF PAY FOR ALL HOURS WORKED IN EXCESS OF EIGHT IN ANY ONE DAY. IN VIEW OF THE EXPRESS PROVISIONS OF EXECUTIVE ORDER NO. 9231, SUSPENDING OPERATION OF THE EIGHT-HOUR LAW OF AUGUST 1, 1892, AS AMENDED, WITH RESPECT TO LABORERS AND MECHANICS OF THE DEPARTMENT OF THE INTERIOR EMPLOYED ON CERTAIN CONSTRUCTION PROJECTS IN ALASKA, WHICH AUTHORIZE PAYMENT OF OVERTIME COMPENSATION AT TIME AND ONE-HALF THE BASIC RATE FOR ALL WORK IN EXCESS OF EIGHT HOURS IN ANY ONE DAY, THE OVERTIME COMPENSATION OF SUCH EMPLOYEES SHOULD BE COMPUTED ON A DAILY BASIS FOR ALL HOURS OF WORK IN EXCESS OF EIGHT IN ANY ONE DAY, RATHER THAN ON A WEEKLY BASIS.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE INTERIOR, JULY 19, 1943:

I HAVE YOUR LETTER OF JULY 5, 1943, AS FOLLOWS:

THE ALASKA ROAD COMMISSION, WITH HEADQUARTERS AT JUNEAU, ALASKA, AN ACTIVITY UNDER THIS DEPARTMENT, IS ENGAGED IN CONSTRUCTING ROADS AND TRAILS IN ALASKA. THE COMMISSION WAS TRANSFERRED TO THE DEPARTMENT UNDER AUTHORITY OF THE ACT OF CONGRESS APPROVED JUNE 30, 1932 (47 STAT. 446).

THE QUESTION IS NOW RAISED WHETHER PUBLIC LAW 821 APPROVED DECEMBER 22, 1942, AND SUBSEQUENT PUBLIC LAW 49 APPROVED MAY 7, 1943, AND EXECUTIVE ORDER 9289 OF DECEMBER 26, 1942, PROVIDING FOR OVERTIME PAYMENTS TO GOVERNMENT EMPLOYEES, ARE APPLICABLE TO THE ALASKA ROAD COMMISSION, AND IF SO, THE METHOD BY WHICH THEY SHOULD BE APPLIED TO THIS ACTIVITY. THAT PORTION OF THE ACT DEALING WITH EXCEPTIONS TO ITS PROVISIONS STATES THAT IT "SHALL NOT APPLY TO (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.'

MOST OF THE EMPLOYEES OF THE ALASKA ROAD COMMISSION ARE PAID ON AN HOURLY BASIS AT WAGE RATES WHICH ARE ADJUSTED FROM TIME TO TIME. THESE RATES ARE FIXED BY THE CHIEF ENGINEER AND THE ASSISTANT CHIEF ENGINEER AFTER CONSULTATION WITH DISTRICT SUPERINTENDENTS AND THEN REFERRED TO THE GOVERNOR OF ALASKA FOR APPROVAL.

THE ALASKA ROAD COMMISSION IS CONSTRUCTING AND IMPROVING THE GLENN AND RICHARDSON HIGHWAYS IN ALASKA FOR MILITARY PURPOSES. IN VIEW OF THE SHORT WORKING SEASON FOR ROAD BUILDING IN ALASKA AND THE URGENCY OF COMPLETING THESE HIGHWAYS, EXECUTIVE ORDER 9231 WAS APPROVED AUGUST 20, 1942, SUSPENDING THE EIGHT HOUR LAW WITH RESPECT TO MECHANICS AND LABORERS EMPLOYED ON THIS WORK. THEREAFTER, DURING THE PAST SEASON, THESE EMPLOYEES WORKED SEVEN DAYS PER WEEK AND TEN HOURS PER DAY, AND WERE PAID ONE AND ONE-HALF FOR WORK IN EXCESS OF 56 HOURS PER WEEK.

THE ALASKA ROAD COMMISSION WAS SUBSEQUENTLY AUTHORIZED TO COMPLETE THE CONSTRUCTION OF THE RED MOUNTAIN CHROMITE ROAD NEAR SELDOVIA, ALASKA, FOR THE PURPOSE OF REMOVING CHROMITE FROM A MINE IN THAT AREA FOR MILITARY PURPOSES. IN VIEW OF THE URGENCY OF THIS WORK, EXECUTIVE ORDER 9613 WAS APPROVED MARCH 12, 1943, SUSPENDING THE EIGHT HOUR LAW WITH RESPECT TO ALL WORK ON THIS ROAD, AND EXTENDING TO THIS PROJECT THE PROVISIONS OF EXECUTIVE ORDER 9231 ABOVE MENTIONED.

THE ALASKA ROAD COMMISSION HAS TAKEN NO STEPS TO APPLY THE OVERTIME PROVISIONS OF PUBLIC LAW 821 AND SUBSEQUENT PUBLIC LAW 49 TO ITS EMPLOYEES. IT DESIRES TO CONTINUE ITS PRESENT PRACTICES IN THE FIXING OF WAGE RATES OF ITS HOURLY EMPLOYEES ON THE THEORY THAT THESE WAGES COME WITHIN THE EXCEPTIONS IN THE LAW AS QUOTED ABOVE.

THE ALASKA ROAD COMMISSION IS WELL ALONG IN THE WORKING SEASON FOR THE PRESENT YEAR, AND IT IS REQUESTED THAT AN OPINION UPON THIS SUBJECT BE RENDERED AT THE EARLIEST PRACTICABLE DATE.

EXECUTIVE ORDER 9231, DATED AUGUST 20, 1942, CONTAINS THE FOLLOWING PROVISION:

NOW, THEREFORE, BY VIRTUE OF THE AUTHORITY VESTED IN ME BY SECTION 1 OF THE SAID ACT OF AUGUST 1, 1892, AS AMENDED BY THE SAID ACT OF MARCH 3, 1913, AND AS PRESIDENT OF THE UNITED STATES, I HEREBY SUSPEND, FOR THE DURATION OF THE EMERGENCIES PROCLAIMED BY ME ON SEPTEMBER 8, 1939 AND MAY 27, 1941, THE ABOVE-MENTIONED PROVISIONS OF LAW PROHIBITING MORE THAN EIGHT HOURS LABOR IN ANY ONE DAY OF LABORERS AND MECHANICS EMPLOYED BY THE GOVERNMENT OF THE UNITED STATES AS TO ALL WORK PERFORMED BY LABORERS AND MECHANICS EMPLOYED BY THE DEPARTMENT OF THE INTERIOR IN THE CONSTRUCTION AND RECONDITIONING, RESPECTIVELY, OF THE GLENN AND RICHARDSON HIGHWAYS IN THE TERRITORY OF ALASKA, AND BY THE FEDERAL WORKS AGENCY IN THE CONSTRUCTION OF THE ALASKA-CANADA HIGHWAY IN THE TERRITORY OF ALASKA: PROVIDED, THAT THE WAGES OF ALL LABORERS AND MECHANICS EMPLOYED BY THE DEPARTMENT OF THE INTERIOR OR BY THE FEDERAL WORKS AGENCY UPON SUCH PROJECTS SHALL BE COMPUTED ON A BASIC DAY RATE OF EIGHT HOURS OF WORK WITH OVERTIME RATES TO BE PAID AT NOT LESS THAN TIME AND ONE-HALF THE BASIC RATE OF PAY FOR ALL HOURS OF WORK IN EXCESS OF EIGHT HOURS IN ANY ONE DAY.

EXECUTIVE ORDER 9313, DATED MARCH 12, 1943, PROVIDES:

BY VIRTUE OF THE AUTHORITY VESTED IN ME BY SECTION 1 OF THE ACT OF AUGUST 1, 1892 (27 STAT. 340), AS AMENDED BY THE ACT OF MARCH 3, 1913 (37 STAT 726, 40 U.S.C., SEC. 321), AND AS PRESIDENT OF THE UNITED STATES, I HEREBY EXTEND THE PROVISIONS OF EXECUTIVE ORDER NO. 9231 OF AUGUST 20, 1942, ENTITLED " SUSPENSION OF EIGHT-HOUR LAW AS TOMECHANICS AND LABORERS EMPLOYED BY THE DEPARTMENT OF THE INTERIOR OR THE FEDERAL WORKS AGENCY IN CONSTRUCTION AND RECONDITIONING OF HIGHWAYS NECESSARY FOR NATIONAL DEFENSE IN THE TERRITORY OF ALASKA," TO THE CONSTRUCTION BY THE DEPARTMENT OF THE INTERIOR OF RED MOUNTAIN CHROMITE ROAD, NEAR SELDOVIA, IN THE TERRITORY OF ALASKA, SUBJECT TO ALL THE CONDITIONS AND LIMITATIONS CONTAINED IN SAID EXECUTIVE ORDER. ( ITALICS SUPPLIED.) COMPARE EXECUTIVE ORDER NO. 9290, DATED DECEMBER 28, 1942, APPLICABLE TO LABORERS AND MECHANICS EMPLOYED BY THE WAR DEPARTMENT AS TO WHOM THE EIGHT-HOUR LAW HAS BEEN SUSPENDED AND, ALSO, SECTION 10 OF WAR DEPARTMENT ORDER H, DATED MAY 14, 1943.

BASED UPON THE REPORTED FACTS, THE CONCLUSION APPEARS JUSTIFIED THAT LABORERS AND MECHANICS WHOSE RATE OF COMPENSATION IS FIXED ADMINISTRATIVELY ON A DAILY OR HOURLY BASIS AND ADJUSTED FROM TIME TO TIME, AS TO WHOM THE EIGHT-HOUR LAW HAS BEEN SUSPENDED BY EXECUTIVE ORDER AUTHORIZING OVERTIME COMPENSATION TO BE PAID ON A DAILY BASIS AT THE RATE OF NOT LESS THAN ONE AND ONE-HALF TIMES THE BASIC RATE OF PAY FOR ALL HOURS OF WORK IN EXCESS OF EIGHT, MAY BE REGARDED AS EXCLUDED FROM THE PROVISIONS OF JOINT RESOLUTION OF DECEMBER 22, 1942, 56 STAT. 1068, PUBLIC LAW 821, AND WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 75, PUBLIC LAW 49.

ACCORDINGLY, SO FAR AS CONCERNS THE LABORERS AND MECHANICS HERE UNDER CONSIDERATION, THE QUESTION POSED IN THE FIRST SENTENCE OF THE SECOND PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.

THERE IS NOTED THE STATEMENT IN THE FOURTH PARAGRAPH OF YOUR LETTER THAT THE INVOLVED EMPLOYEES WORKED SEVEN DAYS PER WEEK AND TEN HOURS PER DAY BUT THAT THEY "WERE PAID ONE AND ONE-HALF TIME FOR WORK IN EXCESS OF 56 HOURS PER WEEK.' HOWEVER, IN VIEW OF THE EXPRESS PROVISION APPEARING IN EXECUTIVE ORDER NO. 9231, ABOVE QUOTED, WHICH SUSPENDS THE OPERATION OF THE EIGHT-HOUR LAW AND REQUIRES THAT THE EMPLOYEES SO AFFECTED BE PAID OVERTIME COMPENSATION ON A DAILY BASIS, RATHER THAN ON A WEEKLY BASIS, PAYMENT OF OVERTIME COMPENSATION TO THE EMPLOYEES COMING WITHIN THE PURVIEW OF THE EXECUTIVE ORDER ON THE BASIS OF ONE AND ONE-HALF TIME FOR WORK IN EXCESS OF 56 HOURS PER WEEK APPEARS TO BE WITHOUT AUTHORITY OF LAW.