B-50808, JULY 11, 1945, 25 COMP. GEN. 41

B-50808, JULY 11, 1945, 25 COMP. GEN. 41

COMPENSATION - PANAMA CANAL EMPLOYEES IN VIEW OF SECTIONS 102 (C) AND 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, PANAMA CANAL EMPLOYEES IN ARTISAN AND MECHANICAL GROUPS, NOT WITHIN THE CLASSIFICATION ACT, COMPENSATED AT MONTHLY OR ANNUAL RATES OF PAY FIXED BY A WAGE BOARD PROCEDURE ARE ENTITLED, ON AND AFTER JULY 1, 1945, TO BOTH BASIC AND OVERTIME COMPENSATION, COMPUTED AS PROVIDED BY SAID SECTION 203, UNDER THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, AS WELL AS EMPLOYEES ON FLOATING EQUIPMENT AND OTHER MISCELLANEOUS EMPLOYEES SIMILARLY COMPENSATED WHO HERETOFORE HAVE BEEN HELD TO BE WITHIN THE COVERAGE OF THE 1934 STATUTE ( TOWNSLEY V. UNITED STATES, 323 U.S. 557). PANAMA CANAL EMPLOYEES, NOT WITHIN THE CLASSIFICATION ACT, WHOSE BASIC COMPENSATION IS FIXED ADMINISTRATIVELY BY THE GOVERNOR ON A MONTHLY OR ANNUAL BASIS WITHOUT ANY REFERENCE TO OR RECOMMENDATION BY AN ADVISORY WAGE BOARD AND WITHOUT CORRELATION WITH RATES ESTABLISHED IN THE UNITED STATES BY A WAGE BOARD ARE ENTITLED TO OVERTIME COMPENSATION IN ACCORDANCE WITH SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, BUT THEY ARE NOT ENTITLED UNDER SAID ACT TO ANY INCREASE IN THEIR BASIC COMPENSATION, THAT BEING A MATTER FOR ADMINISTRATIVE CONSIDERATION, SUBJECT TO THE AVAILABILITY OF FUNDS THEREFOR. TEACHERS, POLICEMEN AND FIREMEN OF THE PANAMA CANAL, COMPENSATED AT RATES --- PLUS A 25 PERCENT DIFFERENTIAL--- ESTABLISHED BY A COMPARISON WITH SALARY RATES PAID SIMILAR CLASSES OF PERSONNEL IN THE DISTRICT OF COLUMBIA ARE NOT ENTITLED TO OVERTIME COMPENSATION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945. COMPARE 22 COMP. GEN. 752.

ACTING COMPTROLLER GENERAL YATES TO THE GOVERNOR OF THE PANAMA CANAL, JULY 11. 1945:

I HAVE YOUR LETTER OF JULY 2, 1945, AS FOLLOWS.

REFERENCE IS MADE TO YOUR DECISION B-48393 OF MARCH 24, 1945 HOLDING THAT NO PAYMENTS OF OVERTIME COMPENSATION BASED UPON THE RULE STATED BY THE SUPREME COURT OF THE UNITED STATES UNDER THE ACT OF MARCH 28, 1934 IN TOWNSLEY V. UNITED STATES, 323 U.S. 557, 65 S.CT. 413, ARE AUTHORIZED FOR THE CLASSES OF EMPLOYEES THERETOFORE CONSIDERED AS NOT WITHIN THE OVERTIME COVERAGE OF THE 1934 LEGISLATION. THE CLASSES OF EMPLOYEES IN QUESTION INCLUDE THE FOLLOWING:

(A) EMPLOYEES IN ARTISAN AND MECHANICAL GROUPS NOT WITHIN THE CLASSIFICATION ACT, COMPENSATED AT MONTHLY OR ANNUAL RATES OF PAY FIXED BY THE GOVERNOR AFTER RECOMMENDATIONS BY AN ADVISORY WAGE BOARD, AND HERETOFORE HELD (14 C.G. 156) TO BE WITHIN THE GENERAL COVERAGE, BUT NOT THE OVERTIME COVERAGE, OF THE 1934 LEGISLATION.

(B) EMPLOYEES ON FLOATING EQUIPMENT AND OTHER MISCELLANEOUS EMPLOYEES NOT WITHIN THE CLASSIFICATION ACT AND COMPENSATED AT MONTHLY AND ANNUAL RATES OF PAY FIXED BY THE GOVERNOR AFTER RECOMMENDATION BY AN ADVISORY WAGE BOARD BASED ON RATES IN THE GOVERNMENT SERVICED IN THE CONTINENTAL UNITED STATES NOT ESTABLISHED BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES.

(C) EMPLOYEES NOT WITHIN THE CLASSIFICATION ACT WHOSE COMPENSATION IS FIXED BY THE GOVERNOR, ON A MONTHLY OR ANNUAL BASIS, ADMINISTRATIVELY AND WITHOUT ANY REFERENCE TO OR RECOMMENDATION BY AN ADVISORY WAGE BOARD AND WITHOUT CORRELATION WITH RATES ESTABLISHED IN THE CONTINENTAL UNITED STATES BY A WAGE BOARD.

SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, NOW PROVIDES THAT EMPLOYEES WHOSE BASIC RATE OF COMPENSATION IS FIXED ON AN ANNUAL OR MONTHLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE SHALL BE ENTITLED TO OVERTIME PAY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934. SUCH EMPLOYEES ARE EXCLUDED FROM THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 PROVIDING FOR THE PAYMENT OF OVERTIME COMPENSATION BY SECTION 102 (C) THEREOF. THESE PROVISIONS OF THE PUBLIC LAW APPEAR TO HAVE BEEN INCORPORATED IN VIEW OF THE DECISION OF THE SUPREME COURT IN THE TOWNSLEY CASE AND ACCORDINGLY IT IS ASSUMED THAT IT WILL BE IN ORDER TO PAY OVERTIME COMPENSATION UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 TO THE EMPLOYEES IN CLASS (A) AS LISTED ABOVE, THAT IS EMPLOYEES IN ARTISAN AND MECHANICAL GROUPS NOT WITHIN THE CLASSIFICATION ACT WHO ARE COMPENSATED AT MONTHLY OR ANNUAL RATES OF PAY FIXED BY THE GOVERNOR AFTER RECOMMENDATIONS BY AN ADVISORY WAGE BOARD AND HERETOFORE HELD (14 C.G. 156) TO BE WITHIN THE GENERAL COVERAGE, BUT NOT THE OVERTIME COVERAGE, OF SECTION 23 OF THE ACT OF MARCH 28, 1934.

IN REFERENCE TO THE EMPLOYEES INCLUDED IN CLASSES (B) AND (C) LISTED ABOVE IT IS UNDERSTOOD THAT THE ISSUES INVOLVED IN THE LITIGATION PENDING IN THE COURT OF CLAIMS TO WHICH YOU REFER IN YOUR DECISION OF MARCH 24, 1945 INCLUDE THE ISSUE WHETHER THE WAGES OF EMPLOYEES IN CLASSES (B) AND (C) ARE SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES WITHIN THE MEANING OF SECTION 23 OF THE ACT OF MARCH 28, 1934 (5 U.S.C. SEC. 673). HOWEVER, IN VIEW OF THE ENACTMENT OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 DURING THE PENDENCY OF THIS LITIGATION YOUR ADVICE IS REQUESTED WHETHER EMPLOYEES IN CLASS (B), THAT IS EMPLOYEES ON FLOATING EQUIPMENT AND OTHER MISCELLANEOUS EMPLOYEES NOT WITHIN THE CLASSIFICATION ACT AND COMPENSATED AT MONTHLY AND ANNUAL RATES OF PAY FIXED BY THE GOVERNOR AFTER RECOMMENDATION BY AN ADVISORY WAGE BOARD, BASED ON RATES IN THE GOVERNMENT SERVICE IN THE CONTINENTAL UNITED STATES NOT ESTABLISHED BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES, ARE TO BE REGARDED AS WITHIN THE COVERAGE OF THE OVERTIME PROVISIONS OF THE PAY ACT OR WHETHER THEY ARE TO BE REGARDED AS EXCLUDED AS BEING EMPLOYEES WHOSE BASIC COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR OTHER SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE.

IT IS ASSUMED THAT EMPLOYEES IN CLASS (C), THAT IS EMPLOYEES NOT WITHIN THE CLASSIFICATION ACT WHOSE COMPENSATION IS FIXED BY THE GOVERNOR ON A MONTHLY OR ANNUAL BASIS ADMINISTRATIVELY AND WITHOUT ANY REFERENCE TO OR RECOMMENDATION BY AN ADVISORY WAGE BOARD AND WITHOUT CORRELATION WITH RATES ESTABLISHED IN THE CONTINENTAL UNITED STATES BY A WAGE BOARD, ARE TO BE PAID OVERTIME COMPENSATION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945.

ANOTHER CHANGE IN THE OVERTIME PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943 EFFECTED BY THE PROVISION FOR THE PAYMENT OF OVERTIME COMPENSATION IN THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS THAT THE PROVISIONS IN THE NATURE OF A WAR EMERGENCY GENERAL SALARY INCREASE WHICH WERE INCORPORATED IN THE WAR OVERTIME PAY ACT OF 1943 HAVE NOT BEEN INCLUDED IN THE OVERTIME PROVISIONS OF THE NEW ACT. THIS CHANGE PRESENTS THE QUESTION WHETHER OVERTIME COMPENSATION UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 MAY BE PAID TO POLICEMEN, FIREMEN, AND TEACHERS WHOSE COMPENSATION IS FIXED BY THE GOVERNOR ADMINISTRATIVELY UNDER SECTION 81 OF TITLE 2 OF THE CANAL ZONE CODE, AS AMENDED, AND EXECUTIVE ORDER NO. 1888 OF FEBRUARY 2, 1914 IN REFERENCE TO COMPENSATION PAID TO SIMILAR EMPLOYEES IN THE DISTRICT OF COLUMBIA.

IN YOUR DECISION B-32503 (B-32053) OF FEBRUARY 4, 1943 (22 C.G. 752) IT WAS HELD THAT SUCH EMPLOYEES WERE NOT ENTITLED TO OVERTIME COMPENSATION UNDER THE JOINT RESOLUTION OF DECEMBER 22, 1942 (56 STAT. 1068), THE TEMPORARY OVERTIME ACT IMMEDIATELY PRECEDING THE WAR OVERTIME PAY ACT OF 1943, BECAUSE THE RATES OF PAY OF SUCH EMPLOYEES WERE FIXED IN REFERENCE TO THE COMPENSATION OF RATES OF PAY OF SIMILAR EMPLOYEES IN THE DISTRICT OF COLUMBIA WHO WERE NOT INCLUDED WITHIN THE PURVIEW OF THE JOINT RESOLUTION. THIS CONSTRUCTION WAS CONTINUED UNDER THE WAR OVERTIME PAY ACT OF 1943.

SECTION 101 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 PROVIDES THAT SUBJECT TO THE EXEMPTIONS SPECIFIED IN SECTION 102 OF THE ACT, TITLES II AND III OF THE ACT RELATING TO COMPENSATION FOR OVERTIME, NIGHT AND HOLIDAY WORK SHALL APPLY TO ALL CIVILIAN OFFICERS AND EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND IN OR UNDER THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, AND TO CERTAIN OTHER SPECIFICALLY ENUMERATED CLASSES OF EMPLOYEES NOT MATERIAL HERE. SECTION 102 OF THE ACT ENUMERATES CERTAIN CLASSES OF EMPLOYEES WHO ARE EXCLUDED EITHER FROM THE PROVISIONS OF THE ENTIRE ACT OR FROM CERTAIN SPECIFICALLY DESIGNATED PROVISIONS OF THE ACT, BUT NONE OF THE EXCLUDED CLASSES COMPREHEND THESE CLASSES OF EMPLOYEES OF THE PANAMA CANAL. IN VIEW OF THE CHANGE IN THE NATURE OF THE OVERTIME PROVISIONS CONTAINED IN THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND IN VIEW OF THE FACT THAT PANAMA CANAL POLICEMEN, FIREMEN, AND TEACHERS ARE NOT EXCLUDED BY ANY PROVISIONS OF THE NEW ACT, YOUR ADVICE IS REQUESTED AS TO WHETHER SUCH EMPLOYEES MAY BE PAID OVERTIME COMPENSATION UNDER ITS PROVISIONS FOR OVERTIME ACTUALLY WORKED BY SUCH EMPLOYEES IN EXCESS OF 40 HOURS PER WEEK.

SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 297, PUBLIC LAW 106, PROVIDES, UNDER THE HEADING," WAGE- BOARD EMPLOYEES," AS FOLLOWS:

SEC. 203. EMPLOYEES WHOSE BASIC RATE OF COMPENSATION IS FIXED ON AN ANNUAL OR MONTHLY BASIS AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE. THESE EMPLOYEES, EXCEPT IN THE GOVERNMENT PRINTING OFFICE AND THE TENNESSEE VALLEY AUTHORITY, WERE SPECIFICALLY INCLUDED WITHIN THE WAR OVERTIME PAY ACT OF 1943, BECAUSE AT THAT TIME THEY WERE NOT REGARDED AS FALLING WITHIN THE ACT OF MARCH 28, 1934, WHICH PROVIDES TRUE TIME AND ONE-HALF RATES FOR SIMILAR EMPLOYEES PAID AT HOURLY OR DAILY RATES.

SINCE THAT TIME, HOWEVER, THE SUPREME COURT OF THE UNITED STATES, IN U.S. V. TOWNSLEY (323 U.S. 557, JAN. 15, 1945) HAS DECIDED (1) THAT SECTION 23 OF THE ACT OF MARCH 28, 1934, INSOFAR AS IT APPLIES TO OVERTIME PAY, COVERS WAGE-SCHEDULE EMPLOYEES WHOSE BASE PAY IS FIXED ON A MONTHLY BASIS; AND (2) THAT THE PROPER METHOD OF COMPUTING SUCH OVERTIME COMPENSATION FOR EMPLOYEES PAID ON A MONTHLY BASIS IS FIRST TO MULTIPLY THE MONTHLY RATE BY 12 AND DIVIDE THE PRODUCT BY 260, I.E. 52 TIMES 5. THIS GIVES THE STRAIGHT-TIME DAILY RATE, WHICH IS MULTIPLIED BY 1 AND 1/2 TO DERIVE THE OVERTIME RATE FOR 1 DAY OF 8 HOURS.

THE COMMITTEE BELIEVES IT TO BE SOUND TO TREAT THE MONTHLY AND PER ANNUM WAGE-SCHEDULE EMPLOYEES IN THE SAME WAY AS PER DIEM AND HOURLY WAGE- SCHEDULE EMPLOYEES ARE TREATED UNDER THE ACT OF MARCH 28, 1934. THE FUNDAMENTAL CRITERION SHOULD BE THE METHOD BY WHICH THE BASIC RATES ARE ESTABLISHED, AND DIFFERENCES IN OVERTIME PAY TREATMENT SHOULD NOT REST ON WHETHER SUCH RATES ARE ADMINISTRATIVELY EXPRESSED IN TERMS OF AN HOUR,A DAY, A MONTH, OR A YEAR.

SECTION 203, ACCORDINGLY, MAKES MONTHLY AND PER ANNUM WAGE-SCHEDULE EMPLOYEES, WHOSE BASIC RATES ARE ESTABLISHED BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY WITH REFERENCE TO PREVAILING RATES, SUBJECT TO THE OVERTIME PAY PROVISION OF SECTION 23 OF THE ACT OF MARCH 28, 1934, WHICH HAS ALWAYS APPLIED TO SIMILAR HOURLY AND PER DIEM WAGE-SCHEDULE EMPLOYEES. IT ALSO SPELLS OUT THE SAME OVERTIME PAY COMPUTATION METHOD AS APPROVED BY THE SUPREME COURT IN THE TOWNSLEY CASE.

UNDER THE STATUTORY PROVISION, SUPRA, AND IN THE LIGHT OF THE ABOVE- QUOTED STATEMENT APPEARING IN THE HOUSE REPORT, THERE IS NO ALTERNATIVE IN THIS OFFICE BUT TO CONCLUDE THAT FOR PERIODS ON AND AFTER JULY 1, 1945, EMPLOYEES OF CLASSES (A) AND (B), AS DESCRIBED IN YOUR LETTER--- CLASS (B) EMPLOYEES HAVING BEEN CONSIDERED SPECIFICALLY BY THE SUPREME COURT OF THE UNITED STATES IN THE TOWNSLEY DECISION, 323 U.S. 557--- ARE ENTITLED TO BE PAID BOTH BASIC AND OVERTIME COMPENSATION IN ACCORDANCE WITH THE PROVISIONS OF THE 40-HOUR WEEK LAW, SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, AND SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, SUPRA, RATHER THAN UNDER THE OTHER PROVISIONS OF THE LAST-MENTIONED STATUTE. THAT IS TO SAY, SUCH CLASSES OF EMPLOYEES NOW ARE REGARDED AS WITHIN THE PURVIEW OF SECTION 102 (C) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, PROVIDING:

(C) THIS ACT, EXCEPT SECTIONS 203 AND 607, SHALL NOT APPLY TO EMPLOYEES WHOSE BASIC COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE. HOWEVER, THIS DECISION IS NOT TO BE REGARDED AS AUTHORIZING SUCH PAYMENTS FOR PERIODS PRIOR TO JULY 1, 1945--- OTHERWISE NOT AUTHORIZED AT THAT TIME--- WHICH PAYMENTS WERE DIRECTED TO BE SUSPENDED IN LETTER OF MARCH 24, 1945, B 48393, TO YOU, PENDING THE OUTCOME OF ADDITIONAL LITIGATION INVOLVING THE QUESTIONS CONSIDERED BY THE SUPREME COURT IN THE TOWNSLEY CASE PROPOSED TO BE INSTITUTED BY THE DEPARTMENT OF JUSTICE.

YOUR UNDERSTANDING AS TO CLASS (C) EMPLOYEES, AS EXPRESSED IN THE FOURTH FROM THE LAST PARAGRAPH OF YOUR LETTER, IS CORRECT. THAT IS, AS EMPLOYEES IN THAT CLASS ARE NOT EXCEPTED FROM THE STATUTE BY ANY OF THE PROVISIONS OF SECTION 102, THEIR OVERTIME COMPENSATION IS FOR COMPUTING IN ACCORDANCE WITH SECTION 201 OF THE STATUTE, 59 STAT. 296, BASED UPON THEIR PRESENT RATES OF BASIC COMPENSATION UNTIL CHANGED PURSUANT TO LAW. THERE IS NO PROVISION IN THE NEW LAW WHICH AUTOMATICALLY INCREASES THE BASIC RATE OF COMPENSATION OF SUCH CLASS (C) EMPLOYEES. THAT IS A MATTER FOR ADMINISTRATIVE CONSIDERATION, SUBJECT TO THE AVAILABILITY OF FUNDS THEREFOR. SEE DECISION OF JULY 10, 1945, B 50789, 25 COMP. GEN. 35, TO THE UNITED STATES COMMISSIONER, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO.

WITHOUT RESTATING THE MATTER HERE, IT IS ASSUMED FOR THE PURPOSE OF THIS DECISION THAT THE STATEMENTS MADE IN THE GOVERNOR'S SUBMISSION OF JANUARY 23, 1943, UPON WHICH WAS RENDERED THE DECISION OF FEBRUARY 4, 1943, 22 COMP. GEN. 752, REGARDING THE CONDITIONS AND HOURS OF EMPLOYMENT OF TEACHERS, POLICEMEN, AND FIREMEN IN THE CANAL ZONE, REMAIN THE SAME AT THE PRESENT TIME. UPON THE BASIS OF THE FACTS THERE DISCLOSED IT WAS CONCLUDED IN THAT DECISION THAT SUCH CLASSES OF EMPLOYEES DID NOT COME WITHIN THE PURVIEW OF THE FORMER OVERTIME PAY LAW--- NOT PRIMARILY BECAUSE OF THE HOURS AND CONDITIONS OF THEIR EMPLOYMENT, BUT RATHER BECAUSE THEIR COMPENSATION RATES WERE FOR FIXING BY COMPARISON WITH THE SALARY RATES PRESCRIBED BY STATUTE FOR TEACHERS, POLICEMEN, AND FIREMEN IN THE DISTRICT OF COLUMBIA, PLUS THE DIFFERENTIAL NOT TO EXCEED 25 PERCENT, AUTHORIZED BY THE PANAMA CANAL ACT, AS AMENDED. FOR LIKE REASONS I AM PERSUADED THAT TEACHERS, POLICEMEN AND FIREMEN IN THE CANAL ZONE DO NOT COME WITHIN THE PURVIEW OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.