B-36217, AUGUST 21, 1943, 23 COMP. GEN. 123

B-36217: Aug 21, 1943

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COMPENSATION - OVERTIME - EMPLOYEES OF ALASKA RAILROAD WHOSE RATES ARE FIXED ON HOURLY. BASIS AND ADJUSTED BY WAGE BOARDS EMPLOYEES OF THE ALASKA RAILROAD WHO ARE PAID ON A MONTHLY OR YEARLY BASIS AND WHOSE WAGES ARE ADJUSTED. IN ACCORDANCE WITH WAGE RATES PAID RAILROAD EMPLOYEES IN THE CONTINENTAL UNITED STATES ARE EXPRESSLY INCLUDED WITHIN THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943. WHICH EXTENDS THE BENEFITS OF THE ACT TO EMPLOYEES PAID ON A MONTHLY OR YEARLY BASIS WHOSE WAGES ARE ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY. OR PIECE WORK EMPLOYEES OF THE ALASKA RAILROAD WHOSE WAGE RATES ARE FIXED BY NEGOTIATION BETWEEN RAILROAD OFFICIALS AND EMPLOYEE ORGANIZATIONS ON THE BASIS OF WAGE RATES PAID SIMILAR RAILROAD EMPLOYEES IN THE CONTINENTAL UNITED STATES SUBJECT TO APPROVAL BY THE SECRETARY OF THE INTERIOR.

B-36217, AUGUST 21, 1943, 23 COMP. GEN. 123

COMPENSATION - OVERTIME - EMPLOYEES OF ALASKA RAILROAD WHOSE RATES ARE FIXED ON HOURLY, DAILY, MONTHLY, YEARLY, ETC., BASIS AND ADJUSTED BY WAGE BOARDS EMPLOYEES OF THE ALASKA RAILROAD WHO ARE PAID ON A MONTHLY OR YEARLY BASIS AND WHOSE WAGES ARE ADJUSTED, SUBJECT TO THE APPROVAL OF THE SECRETARY OF THE INTERIOR, IN ACCORDANCE WITH WAGE RATES PAID RAILROAD EMPLOYEES IN THE CONTINENTAL UNITED STATES ARE EXPRESSLY INCLUDED WITHIN THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943, BY SECTION 1 THEREOF, WHICH EXTENDS THE BENEFITS OF THE ACT TO EMPLOYEES PAID ON A MONTHLY OR YEARLY BASIS WHOSE WAGES ARE ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY. COMP. GEN. 596, DISTINGUISHED. PER DIEM, PER HOUR, OR PIECE WORK EMPLOYEES OF THE ALASKA RAILROAD WHOSE WAGE RATES ARE FIXED BY NEGOTIATION BETWEEN RAILROAD OFFICIALS AND EMPLOYEE ORGANIZATIONS ON THE BASIS OF WAGE RATES PAID SIMILAR RAILROAD EMPLOYEES IN THE CONTINENTAL UNITED STATES SUBJECT TO APPROVAL BY THE SECRETARY OF THE INTERIOR, MAY BE REGARDED AS HAVING THEIR WAGES FIXED AND ADJUSTED BY AN ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE AS A WAGE BOARD WITHIN THE PURVIEW OF EXCEPTION (E) OF THE WAR OVERTIME PAY ACT OF 1943, EXCLUDING FROM THE BENEFITS OF THE ACT PER DIEM AND PER HOUR EMPLOYEES WHOSE WAGE RATES ARE FIXED BY WAGE BOARDS, ETC.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, AUGUST 21, 1943:

I HAVE YOUR LETTER OF AUGUST 5, 1943, REQUESTING DECISION AS TO WHETHER THE JOINT RESOLUTION OF DECEMBER 22, 1942, 56 STAT. 1068, AND THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, PUBLIC LAW 49, ARE APPLICABLE TO EMPLOYEES OF THE ALASKA RAILROAD.

YOU QUOTE THE ACT OF MARCH 12, 1914, 38 STAT. 307, WHICH PROPERLY HAS BEEN REGARDED AS AUTHORIZING THE PRESIDENT "THROUGH SUCH OFFICERS, AGENTS, OR AGENCIES AS HE MAY APPOINT OR EMPLOY" TO FIX THE SALARY, COMPENSATION, OR WAGE RATES OF ALL PERSONNEL OF THE ALASKA RAILROAD. ALSO, YOU QUOTE EXECUTIVE ORDER 3861 OF JUNE 8, 1923, BY WHICH THE PRESIDENT DELEGATED TO THE SECRETARY OF THE INTERIOR THE AUTHORITY VESTED IN HIM BY SAID STATUTE, AND WITH RESPECT TO THE APPLICATION OF SAID STATUTE AND EXECUTIVE ORDER, YOU STATE:

UNDER THE AUTHORITY CONFERRED BY EXECUTIVE ORDER 3861 ADJUSTMENTS IN WAGE RATES OF EMPLOYEES OF THE ALASKA RAILROAD BECOME EFFECTIVE UPON APPROVAL BY THE SECRETARY OF THE INTERIOR. THESE WAGE RATES ARE BASED UPON WAGES PAID TO RAILROAD EMPLOYEES IN THE STATES--- PARTICULARLY WAGES PAID TO EMPLOYEES OF RAILROADS OPERATING IN THE NORTHWESTERN PORTION OF THE UNITED STATES.

IN ACCORDANCE WITH AN UNDERSTANDING BETWEEN THE MANAGEMENT OF THE ALASKA RAILROAD AND EMPLOYEE ORGANIZATIONS, ALASKA RAILROAD EMPLOYEES ARE PAID A WAGE DIFFERENTIAL ABOVE THE WAGES PAID ON THE RAILROADS OF THE NORTHWEST, TO COMPENSATE THEM IN PART FOR THE HIGHER COST OF LIVING IN ALASKA. WAGES OF RAILROAD EMPLOYEES IN THE STATES ARE ADJUSTED FROM TIME TO TIME, CORRESPONDING ADJUSTMENTS ARE MADE IN THE WAGES OF EMPLOYEES OF THE ALASKA RAILROAD. SUCH ADJUSTMENTS RESULT FROM NEGOTIATIONS BETWEEN THE GENERAL MANAGER OF THE ALASKA RAILROAD AND THE REPRESENTATIVES OF RAILROAD EMPLOYEE ORGANIZATIONS IN ALASKA. WAGE RATES AGREED TO AS A RESULT OF SUCH NEGOTIATIONS ARE SUBMITTED BY THE GENERAL MANAGER TO THE SECRETARY OF THE INTERIOR FOR HIS APPROVAL.

ALSO, YOU FORWARDED A COPY OF YOUR LETTER DATED DECEMBER 22, 1941, TO THE GENERAL MANAGER OF THE ALASKA RAILROAD AUTHORIZING HIM TO GRANT TO CERTAIN EMPLOYEES OF THE ALASKA RAILROAD WAGE INCREASES WHICH WERE GRANTED TO RAILROAD EMPLOYEES IN THE CONTINENTAL UNITED STATES AND YOU HAVE FURNISHED A SCHEDULE OF WAGE RATES EFFECTIVE AS OF JANUARY 1, 1942, SHOWING THAT MOST OF THE EMPLOYEES OF THE ALASKA RAILROAD ARE PAID ON A MONTHLY OR YEARLY BASIS, BUT THAT CERTAIN CLASSES OR GROUPS ARE PAID ON A PER DIEM OR PER HOUR BASIS AND THAT AT LEAST ONE GROUP (LONGSHOREMAN AND/OR LABORER ENGAGED IN SACKING COAL AT SEWARD OR NENANA) ARE PAID ON A TONNAGE (PIECE WORK) BASIS.

BOTH OF THE INVOLVED STATUTES GRANTING WARTIME INCREASE IN COMPENSATION, CITED IN THE FIRST PARAGRAPH OF THIS DECISION, EXCLUDE FROM THEIR PROVISIONS BY EXCEPTIONS (A) AND (E), RESPECTIVELY, 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 SERVING THE SAME PURPOSE.' THE FIRST OF SAID STATUTES DID NOT EXPRESSLY INCLUDE WITHIN ITS PURVIEW OFFICERS OR EMPLOYEES WHOSE WAGES ON A MONTHLY OR YEARLY BASIS WERE FIXED AND ADJUSTED BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY. CONSEQUENTLY, AND IN THE LIGHT OF THE LEGISLATIVE HISTORY OF SAID EARLIER ENACTMENT, IT WAS HELD IN DECISION OF JANUARY 4, 1943, B-31430, TO THE PUBLIC PRINTER, 22 COMP. GEN. 596, THAT ALL EMPLOYEES WHOSE WAGES WERE FIXED AND ADJUSTED FROM TIME TO TIME BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY, INCLUDING MONTHLY OR YEARLY EMPLOYEES AS WELL AS PIECE WORKERS, WERE EXCLUDED FROM THE BENEFITS OF THE JOINT RESOLUTION OF DECEMBER 22, 1942, NOTWITHSTANDING THAT THE EXPRESS TERMS OF THE EXCEPTION WERE LIMITED TO EMPLOYEES WHOSE WAGES WERE FIXED AND ADJUSTED ON A DAILY OR HOURLY BASIS.

HOWEVER, UNLIKE THE EARLIER LAW, THE WAR OVERTIME PAY ACT OF 1943 CONTAINS THE FOLLOWING EXPRESS PROVISIONS:

THAT THIS ACT SHALL APPLY TO ALL CIVILIAN OFFICERS AND EMPLOYEES(INCLUDING OFFICERS AND EMPLOYEES WHOSE WAGES ARE FIXED ON A MONTHLY OR YEARLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE, EXCEPT THOSE IN OR UNDER THE GOVERNMENT PRINTING OFFICE OR THE TENNESSEE VALLEY AUTHORITY) IN OR UNDER THE UNITED STATES GOVERNMENT * * *. ( ITALICS SUPPLIED.)

APPARENTLY THAT CHANGE IN THE LAW WAS MADE TO OVERCOME THE RULE PREVIOUSLY STATED IN THE ABOVE-CITED DECISION SO FAR AS CONCERNS EMPLOYEES WHOSE WAGES ARE FIXED AND ADJUSTED ON A MONTHLY OR YEARLY BASIS OTHER THAN UNDER THE GOVERNMENT PRINTING OFFICE OR THE TENNESSEE VALLEY AUTHORITY. IN THAT CONNECTION, SEE DECISION OF JULY 23, 1943, B 35706, TO THE SECRETARY OF WAR, COPY ENCLOSED. WITH THE UNDERSTANDING THAT THERE ARE NO "NATIVE WAGE RATES" HERE INVOLVED (SEE EXCEPTION (F) (, NONE OF THE EXCEPTIONS (A) TO (H), APPEARING IN SECTION 1 OF THE WAR OVERTIME PAY ACT OF 1943, APPLIES TO EMPLOYEES OF THE ALASKA RAILROAD, EXCEPT (E) WHICH APPEARED IN THE EARLIER LAW OF DECEMBER 22, 1942, ALSO, AND HAS BEEN QUOTED AND CONSIDERED ABOVE.

AS THE CONGRESS APPARENTLY GAVE FULL CONSIDERATION IN THE LIGHT OF THE DECISION OF THIS OFFICE TO THE MATTER OF GRANTING WARTIME ADDITIONAL COMPENSATION ON THE BASIS OF AN OVERTIME FORMULA PRESCRIBED BY STATUTE, RATHER THAN TO PERMIT WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY TO CONTINUE TO FIX AND ADJUST THE RATES OF OVERTIME COMPENSATION TO BE PAID TO EMPLOYEES WHOSE WAGES ARE FIXED ON A MONTHLY OR YEARLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS, OR A SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE, AND EXPRESSLY PROVIDED THAT THE STATUTORY FORMULA SHOULD APPLY TO SUCH EMPLOYEES EXCEPT THOSE UNDER THE GOVERNMENT PRINTING OFFICE AND THE TENNESSEE VALLEY AUTHORITY, I HAVE NO ALTERNATIVE BUT TO CONCLUDE THAT EMPLOYEES OF THE ALASKA RAILROAD WHOSE WAGES ARE FIXED AND ADJUSTED ON A MONTHLY OR YEARLY BASIS COME WITHIN THE PURVIEW OF THE WAR OVERTIME PAY ACT OF 1943 EFFECTIVE ON AND AFTER MAY 1, 1943.

HOWEVER, THE FACTS PRESENTED WARRANT THE CONCLUSION THAT EMPLOYEES OF THE ALASKA RAILROAD WHOSE WAGES ARE FIXED AND ADJUSTED ON A PER DIEM, PER HOUR OR PIECE WORK BASIS IN ACCORDANCE WITH THE ADMINISTRATIVE PROCEDURE STATED IN YOUR LETTER, PROPERLY MAY BE REGARDED AS HAVING THEIR WAGES FIXED AND ADJUSTED BY AN ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE AS A WAGE BOARD THEREBY BRINGING THEM WITHIN THE PURVIEW OF EXCEPTION (E) OF THE WAR OVERTIME PAY ACT OF 1943. HENCE, AS TO EMPLOYEES OF THAT CLASS, THEY ARE PRECLUDED FROM RECEIVING THE OVERTIME BENEFITS OF SAID STATUTE.

UNDER THE RULE STATED IN 22 COMP. GEN. 596, ALL OF THE EMPLOYEES OF THE ALASKA RAILROAD MAY BE REGARDED AS HAVING BEEN EXCLUDED FROM THE BENEFITS OF THE JOINT RESOLUTION OF DECEMBER 22, 1942, EFFECTIVE OVER THE PERIOD DECEMBER 1, 1942, THROUGH APRIL 30, 1943.