B-51791, OCTOBER 2, 1945, 25 COMP. GEN. 315

B-51791: Oct 2, 1945

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NEITHER THE DAILY LUNCH PERIOD OF ONE-HALF HOUR NOR ANY OTHER PERIOD OF NON- EMPLOYMENT DURING WHICH THE EMPLOYEES ARE REGULARLY AND TOTALLY EXCUSED FROM DUTY MAY BE INCLUDED AS OFFICIAL TIME WORKED AND BE COUNTED AS TIME TO BE PAID FOR. 1945: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17. WAS FORWARDED BY YOU FOR CONSIDERATION IN CONNECTION WITH THE QUESTION PRESENTED: IN OUR CONFERENCE WITH YOU ON JULY 25. YOU WILL RECALL THAT THE QUESTION AROSE AS TO WHETHER SECTION 3 OF OUR WAGE PROPOSAL. HEREWITH ARE OUR REASONS FOR BELIEVING THAT THE PROPOSAL IS NOT IN VIOLATION OF THE LAW: SECTION 23 OF THE ACT OF MARCH 28. PROVIDES THAT "FOR THE SEVERAL TRADES AND OCCUPATIONS (COMPENSATION FOR) WHICH IS SET BY WAGE BOARDS AND ADMINISTRATIVE AUTHORITIES * * * THE REGULAR HOURS OF LABOR SHALL BE NOT MORE THAN FORTY PER WEEK.'.

B-51791, OCTOBER 2, 1945, 25 COMP. GEN. 315

GOVERNMENT PRINTING OFFICE EMPLOYEES - INCLUSION OF LUNCH PERIOD AS COMPENSABLE TIME IN FIXING THE COMPENSATION OF JOURNEYMEN, APPRENTICES, LABORERS, ETC., OF THE GOVERNMENT PRINTING OFFICE BY THE HOUR "FOR THE TIME ACTUALLY EMPLOYED," UNDER THE PROCEDURE SET OUT IN THE ACT OF JUNE 7, 1924, NEITHER THE DAILY LUNCH PERIOD OF ONE-HALF HOUR NOR ANY OTHER PERIOD OF NON- EMPLOYMENT DURING WHICH THE EMPLOYEES ARE REGULARLY AND TOTALLY EXCUSED FROM DUTY MAY BE INCLUDED AS OFFICIAL TIME WORKED AND BE COUNTED AS TIME TO BE PAID FOR.

COMPTROLLER GENERAL WARREN TO THE PUBLIC PRINTER, OCTOBER 2, 1945:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17, 1945, IN WHICH YOU REQUEST DECISION AS TO WHETHER, UNDER A WAGE SCALE AGREEMENT PRESENTLY BEING NEGOTIATED UNDER THE KIESS ACT, 44 U.S.C. 40, THE DAILY LUNCH PERIOD OF ONE-HALF HOUR ALLOWED THE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE LAWFULLY COULD BE INCORPORATED AS OFFICIAL TIME WORKED AND BE COUNTED AS TIME TO BE PAID FOR. THE FOLLOWING LETTER, ADDRESSED TO YOU BY ONE OF THE EMPLOYEES' REPRESENTATIVES, WAS FORWARDED BY YOU FOR CONSIDERATION IN CONNECTION WITH THE QUESTION PRESENTED:

IN OUR CONFERENCE WITH YOU ON JULY 25, YOU WILL RECALL THAT THE QUESTION AROSE AS TO WHETHER SECTION 3 OF OUR WAGE PROPOSAL--- A WORK SHIFT OF 8 CONTINUOUS HOURS WITH ONE/HALF-HOUR PAID LUNCH PERIOD WITHIN THE SHIFT--- COULD BE INCORPORATED IN THE WAGE AGREEMENT IN VIEW OF THE APPLICABILITY OF THE 40-HOUR WEEK LAW, AND THAT YOU MENTIONED THE POSSIBILITY OF SUBMITTING THE QUESTION TO THE COMPTROLLER GENERAL.

HEREWITH ARE OUR REASONS FOR BELIEVING THAT THE PROPOSAL IS NOT IN VIOLATION OF THE LAW:

SECTION 23 OF THE ACT OF MARCH 28, 1934, PROVIDES THAT "FOR THE SEVERAL TRADES AND OCCUPATIONS (COMPENSATION FOR) WHICH IS SET BY WAGE BOARDS AND ADMINISTRATIVE AUTHORITIES * * * THE REGULAR HOURS OF LABOR SHALL BE NOT MORE THAN FORTY PER WEEK.'

CRAFTSMEN OF THE GOVERNMENT PRINTING OFFICE, BEING UNDER THE KIESS ACT (44 U.S.C. 40), ARE ENCOMPASSED BY THE SCOPE OF THE 40-HOUR WEEK LAW.

THERE ARE ONLY THREE OTHER GROUPS OF EMPLOYEES IN THE DISTRICT OF COLUMBIA WHO ARE SUBJECT TO THE 40-HOUR WEEK LAW. THESE ARE THE EMPLOYEES OF THE BUREAU OF ENGRAVING, THE NAVY YARD, AND THE COAST AND GEODETIC SURVEY. ALL THREE HAVE A PAID LUNCH PERIOD WITHIN THEIR 8 HOUR TOUR OF DUTY.

IN THE CASE OF THE BUREAU OF ENGRAVING THE PRACTICE OF GRANTING A PAID LUNCH PERIOD WITHIN THE SHIFT IS OF LONG STANDING--- ANTEDATING BY MANY YEARS THE ACT OF MARCH 28, 1934. THE BASIS UPON WHICH THE EMPLOYEES OF THE BUREAU OF ENGRAVING RECEIVE THIS PRIVILEGE IS THAT THEY ARE NOT PERMITTED TO LEAVE THE BUILDING UNTIL QUITTING TIME, BECAUSE THE LOSS OF TIME INVOLVED IN CHECKING THE PRINTED BONDS AND MONEY AGAINST THE STOCK WOULD MAKE FOR HIGHER RATHER THAN FOR LOWER OPERATING COSTS IF THE WORKERS DID NOT REMAIN WITHIN THE BUILDING DURING THE LUNCH PERIOD.

AND WHILE THE PARALLEL IS NOT EXACT BETWEEN THE GOVERNMENT PRINTING OFFICE CRAFTSMEN AND THOSE IN THE BUREAU OF ENGRAVING IN THE MATTER OF REMAINING WITHIN THE BUILDING DURING THE LUNCH PERIOD, THERE IS AT LEAST A REASONABLE BASIS FOR COMPARISON BETWEEN THE TWO GROUPS IN THIS RESPECT DUE TO THE FACT THAT THERE ARE SOME 7,000 EMPLOYEES IN THE GOVERNMENT PRINTING OFFICE AND ONLY A FEW SMALL RESTAURANTS IN THE VICINITY, THUS MAKING IT IMPOSSIBLE FOR MORE THAN A SMALL PERCENTAGE OF THE G.P.O. WORKERS TO LEAVE THE BUILDING IF THEY EXPECT TO FIND ANYTHING TO EAT. SO THAT, WHILE IN THEORY THERE IS A SUBSTANTIAL DIFFERENCE, IN ACTUAL PRACTICE THE DIFFERENCE IS VERY SMALL.

THE NAVY YARD HAS HAD FOR MANY YEARS A PAID LUNCH PERIOD IN ORDER THAT THREE 8-HOUR SHIFTS MIGHT BE WORKED WITHOUT OVERLAPPING TOURS OF DUTY. HERE THE PARALLEL WITH THE GOVERNMENT PRINTING OFFICE WOULD SEEM TO BE ESPECIALLY PERTINENT, BECAUSE IN THE OFFICE--- AS IN THE NAVY YARD--- THE AMOUNT OF WORK THAT CAN BE PRODUCED IS GOVERNED LARGELY BY THE NUMBER OF MACHINES AVAILABLE, AND FOR THAT REASON OVERLAPPING SHIFTS WOULD CAUSE MEN TO REMAIN IDLE WHILE OTHERS WERE USING THE MACHINES. THE ADVANTAGE TO THE OFFICE OF AROUND-THE-CLOCK OPERATION IS SO OBVIOUS THAT COMMENT WOULD BE SUPERFLUOUS.

RECAPITULATING, THEN, ONLY THE GOVERNMENT PRINTING OFFICE EMPLOYEES AMONG WORKERS IN THE DISTRICT OF COLUMBIA SUBJECT TO THE 40-HOUR WEEK LAW DO NOT HAVE A PAID LUNCH PERIOD WITHIN THE 8-HOUR TOUR OF DUTY.

IN FAIRNESS TO THE GOVERNMENT PRINTING OFFICE EMPLOYEES THIS DISCRIMINATION SHOULD BE TERMINATED IN THE NEW WAGE AGREEMENT. IT WOULD APPEAR THAT THERE IS AN ABSOLUTE DUTY TO ELIMINATE THE INEQUITY COMPLAINED OF BY CONFORMING TO THE PREVAILING PRACTICE.

THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES REQUIRES THAT NO STATE SHALL DENY TO ANY PERSON WITHIN ITS JURISDICTION THE EQUAL PROTECTION OF THE LAWS. WE ARE CONFIDENT THAT THE COMPTROLLER GENERAL WILL NOT EXERCISE A PREROGATIVE DENIED TO THE STATES AND RULE THAT THE 40-HOUR WEEK LAW IS TO BE APPLIED IN THE CASE OF THE GOVERNMENT PRINTING OFFICE EMPLOYEES IN A MANNER LESS FAVORABLE THAN IT IS APPLIED TO ALL OTHERS EMPLOYED IN THE DISTRICT OF COLUMBIA WHOSE HOURS OF WORK ARE GOVERNED BY THE SAID LAW.

MAY WE ASK, THEN, THAT YOU SUBMIT THE MATTER TO THE COMPTROLLER GENERAL FOR A RULING.

THE SUGGESTION WITH REFERENCE TO SECTION 23 OF THE ACT OF 1934, 48 STAT. 522, IS INAPPLICABLE FOR THE REASON THAT SAID STATUTE DOES NOT CONTROL THE MEASURE OF COMPENSATION FOR THE REGULAR WORKWEEK, BUT, INSTEAD, PROVIDES MERELY FOR (1) THE RESTORING OF WAGE EARNINGS PREVIOUSLY REDUCED, (2) THE FIXING OF THE REGULAR HOURS OF WORK AT NOT OVER FORTY PER WEEK, AND (3) THE COMPENSATING FOR OVERTIME AT NOT LESS THAN TIME AND ONE-HALF. IN THE CASE OF THE GOVERNMENT PRINTING OFFICE, THE STATUTORY GUIDE FOR THE COMPUTATION OF BASIC WAGES IS FOUND IN THE ACT OF JUNE 7, 1924, 43 STAT. 658, 44 U.S.C. 40, WHICH READS, IN PART--

SEC. 40. EMPLOYMENT BY PUBLIC PRINTER OF EMPLOYEES; PAY.

THE PUBLIC PRINTER MAY EMPLOY, AT SUCH RATES OF WAGE AND SALARIES, INCLUDING COMPENSATION FOR NIGHT AND OVERTIME WORK, AS HE MAY DEEM FOR THE INTEREST OF THE GOVERNMENT AND JUST TO THE PERSONS EMPLOYED, EXCEPT AS OTHERWISE PROVIDED HEREIN, SUCH JOURNEYMEN, APPRENTICES, LABORERS, AND OTHER PERSONS AS MAY BE NECESSARY FOR THE WORK OF THE GOVERNMENT PRINTING OFFICE; BUT HE SHALL NOT, AT ANY TIME, EMPLOY MORE PERSONS THAN THE NECESSITIES OF THE PUBLIC WORK MAY REQUIRE OR MORE THAN TWO HUNDRED APPRENTICES AT ANY ONE TIME. THE MINIMUM PAY OF ALL JOURNEYMEN PRINTERS, PRESSMEN, AND BOOKBINDERS EMPLOYED IN THE GOVERNMENT PRINTING OFFICE SHALL BE AT THE RATE OF 90 CENTS AN HOUR FOR THE TIME ACTUALLY EMPLOYED. EXCEPT AS HEREINBEFORE PROVIDED, THE RATE OF WAGES, INCLUDING COMPENSATION FOR NIGHT AND OVERTIME WORK, FOR MORE THAN TEN EMPLOYEES OF THE SAME OCCUPATION SHALL BE DETERMINED BY A CONFERENCE BETWEEN THE PUBLIC PRINTER AND A COMMITTEE SELECTED BY THE TRADES AFFECTED, AND THE RATES AND COMPENSATION SO AGREED UPON SHALL BECOME EFFECTIVE UPON APPROVAL BY THE JOINT COMMITTEE ON PRINTING; IF THE PUBLIC PRINTER AND THE COMMITTEE REPRESENTING ANY TRADE FAIL TO AGREE AS TO WAGES, SALARIES AND COMPENSATION, EITHER PARTY IS HEREBY GRANTED THE RIGHT OF APPEAL TO THE JOINT COMMITTEE ON PRINTING, AND THE DECISION OF SAID COMMITTEE SHALL BE FINAL; THE WAGES, SALARIES, AND COMPENSATION DETERMINED AS PROVIDED HEREIN SHALL NOT BE SUBJECT TO CHANGE OFTENER THAN ONCE A YEAR THEREAFTER. * *

EVEN IF THERE WERE NO OTHER STANDARD FIXED, EITHER BY LAW OR BY PRACTICE, IN PRIVATE INDUSTRY OR IN PUBLIC EMPLOYMENT, THE STATUTE JUST QUOTED WOULD REQUIRE THE RESULT IT PLAINLY CALLS FOR, NAMELY, COMPENSATION BY THE "HOUR FOR THE TIME ACTUALLY EMPLOYED," WHICH NECESSARILY EXCLUDES ANY HOURS OF NON-EMPLOYMENT IN RESPECT OF ANY PERIOD DURING WHICH THE PERSONNEL ARE TOTALLY EXCUSED FROM DUTY, WHETHER FOR LUNCHEON OR OTHERWISE. HOWEVER, FOR COMPARATIVE PURPOSES AT LEAST, A FURTHER GUIDE IS AVAILABLE UNDER THE FAIR LABOR STANDARDS ACT. IN SEVERAL CASES, INVOLVING EMPLOYEES REQUIRED TO STAY AT THE SITE OF THEIR WORK DURING THE ENTIRE NOON LUNCH PERIOD, THE UNIFORM RULING HAS BEEN THAT SUCH PERIODS ARE NOT COMPUTABLE AS "HOURS WORKED.' SEE TENNESSEE COAL, IRON AND R. CO. V. MUSCODA LOCAL ( D.C., ALA., 1941), 40 F. SUPP. 4, AS MODIFIED AND AFFIRMED ( C.C.A. 5), 137 F. 2D 176, THE RULING AS TO WHICH WAS NOT DISTURBED IN CONNECTION WITH THE APPEAL ON THE "PORTAL TO PORTAL" RULE, 321 U.S. 590. SEE, ALSO, SUNSHINE MINING CO. V. CARVER ( D.C., ID., 1941), 41 F. SUPP. 60; FOX V. SUMMIT KING MINES, LTD. ( C.C.A. 9, 1944), 143 F. 2D 926; AND CF. ARMOUR AND CO. V. WANTOCK, 323 U.S. 126.

ACCORDINGLY, IT MUST BE HELD THAT THE WAGES FIXED UNDER THE PROCEDURE SET OUT BY THE ACT OF 1924 MUST, AS THE STATUTE RECITES, BE COMPUTED UPON THE TIME ACTUALLY EMPLOYED, EXCLUDING ANY PERIOD DURING WHICH THE EMPLOYEES ARE REGULARLY AND TOTALLY EXCUSED FROM DUTY AT THE LUNCHEON HOUR OR OTHERWISE. IF THERE BE OTHER AGENCIES WHICH FOLLOW A DIFFERENT RULE--- PAYING FOR TIME NOT SERVED AND FOR WORK NOT DONE--- THE REMEDY, UNLESS THE DIFFERENTIATION IS SANCTIONED IN THE LAW, WOULD NOT LIE IN THE DIRECTION OF FURTHERING THE ERROR ELSEWHERE.