B-61420, NOVEMBER 20, 1946, 26 COMP. GEN. 344

B-61420, NOVEMBER 20, 1946, 26 COMP. GEN. 344

COMPENSATION - OVERTIME - 40-HOUR WEEK ALIEN AND NATIVE EMPLOYEES ALIEN AND NATIVE EMPLOYEES OF NAVAL ACTIVITIES IN THE PHILIPPINE ISLANDS WHOSE WAGES ARE FIXED ON AN HOURLY OR PER DIEM BASIS BY THE SECRETARY OF THE NAVY THROUGH WAGE BOARDS OR SIMILAR ADMINISTRATIVE PROCEDURE UNDER THE ACT OF JULY 16, 1862, IN ACCORDANCE WITH PREVAILING LOCAL RATES ARE SUBJECT TO THE PROVISIONS OF THE 40-HOUR WEEK STATUTE OF MARCH 28, 1934, REQUIRING THAT OVERTIME BE PAID FOR WORK IN EXCESS OF 40 HOURS A WEEK, AND, THEREFORE, THERE MAY NOT BE ESTABLISHED FOR SUCH EMPLOYEES AN ADMINISTRATIVE 48-HOUR WORKWEEK WITH STRAIGHT-TIME RATES FOR WORK REQUIRED IN EXCESS OF 40 HOURS A WEEK.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, NOVEMBER 20, 1946:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 21, 1946, JAG:II:RT:DANC, TRANSMITTING FOR DECISION THE MATTER PRESENTED IN LETTER DATED OCTOBER 10, 1946, FILE OIR-415:SI, FROM THE ACTING CHIEF, OFFICE OF INDUSTRIAL RELATIONS, TO THE JUDGE ADVOCATE GENERAL, AS FOLLOWS:

SUBJECT: ESTABLISHMENT OF A 48-HOUR STRAIGHT-TIME WORKWEEK FOR PER DIEM EMPLOYEES AT SAMAR, P.I., PAID IN ACCORDANCE WITH ALIEN AND NATIVE WAGE SCHEDULES.

REF: (A) COMNAVFORPHIL DIS 160304 SEP TO ASSTSECNAVAIR.

1. FOR INFORMATION, REFERENCE (A) IS QUOTED HEREWITH:

"RE NCPI 85.2-1E REVISION ONE AMENDMENT FOUR OF 26 JUL 1946. ACCORDANCE PHILIPPINE COMMONWEALTH ACT 444 AM ESTABLISHING 48-HOUR STRAIGHT-TIME NAVY CIVILIAN WORKWEEK SAMAR AREA. GREAT MAJORITY SKILLED WORKERS THAT AREA RECRUITED ELSEWHERE. LIVING CONDITIONS AND RECREATIONAL FACILITIES POOR WITH RESULT EMPLOYEES PREFER WORK EXTRA DAY. THREE PRIVATE NAVY CONTRACTORS WORKING 48 HOURS THAT AREA. ACTION OUTLINED DEEMED NECESSARY TO AVOID SERIOUS LOSS SKILLED LABOR SAMAR AREA.'

2. THE ABOVE-CITED NCPI CONTAINS THE INSTRUCTIONS OF THE NAVY DEPARTMENT REGARDING THE FIXING OF HOURS OF WORK. THE SECRETARY OF THE NAVY HAS FIXED A 40-HOUR WORKWEEK FOR ALL EMPLOYEES IN THE FIELD SERVICE. THERE IS NO QUESTION CONCERNING THE AUTHORITY OF THE SECRETARY OF THE NAVY TO ALLOW ACTIVITIES A WORKWEEK IN EXCESS OF THAT BASICALLY ESTABLISHED AT 40 HOURS FOR ALL NORMAL OPERATIONS, WHEN CONDITIONS SO JUSTIFY. HOWEVER, THERE IS SOME QUESTION CONCERNING THE LEGALITY OF ESTABLISHING A 48-HOUR STRAIGHT- TIME WORKWEEK. IT IS UNDERSTOOD THAT REFERENCE (A) HAS TO DO ONLY WITH PER DIEM EMPLOYEES PAID IN ACCORDANCE WITH ALIEN AND NATIVE WAGE SCHEDULES.

3. AN OPINION OF THE COMPTROLLER GENERAL IS REQUESTED AS TO WHETHER OR NOT IT IS LEGALLY PROPER TO PAY ALIEN AND NATIVE EMPLOYEES WHO ARE PAID ON AN HOURLY OR PER DIEM BASIS IN ACCORDANCE WITH ALIEN AND NATIVE WAGE SCHEDULES, AT STRAIGHT-TIME RATES FOR WORK REQUIRED IN EXCESS OF 40 HOURS PER WEEK. PERTINENT FACTS IN RELATION TO THIS QUESTION ARE SET DOWN BELOW.

4. THE BASIC COMPENSATION OR SCHEDULE RATES OF PAY OF ALIEN AND NATIVE EMPLOYEES IN THE FIELD SERVICE OF THE NAVAL ESTABLISHMENT IS FIXED BY THE SECRETARY OF THE NAVY, THROUGH WAGE BOARDS OR SIMILAR ADMINISTRATIVE PROCEDURE, UNDER THE AUTHORITY CONTAINED IN THE ACT OF JULY 16, 1862 (12 STAT. 587).

5. IN THE PAYMENT OF OVERTIME COMPENSATION TO WAGE BOARD EMPLOYEES, I.E. EMPLOYEES WHOSE RATES OF PAY ARE FIXED BY THE SECRETARY OF THE NAVY UNDER THE AUTHORITY OF THE ACT OF JULY 16, 1862, THE NAVY DEPARTMENT IS GUIDED BY THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934 (48 STAT. 522), QUOTED HEREWITH IN PERTINENT PART.

"THE WEEKLY COMPENSATION, MINUS ANY GENERAL PERCENTAGE REDUCTION WHICH MAY BE PRESCRIBED BY ACT OF CONGRESS, FOR THE SEVERAL TRADES AND OCCUPATIONS, WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES, SHALL BE REESTABLISHED AND MAINTAINED AT RATES NOT LOWER THAN NECESSARY TO RESTORE THE FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN ACCORDANCE WITH THE FULL-TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932; PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE-HALF.'

6. THE CURRENT INSTRUCTIONS OF THE NAVY DEPARTMENT AS CONTAINED IN NCPI 85, REVISION I AS AMENDED, PROVIDE FOR THE PAYMENT OF OVERTIME COMPENSATION AT THE RATE OF 1 1/2 TIMES THE SCHEDULE RATE OF PAY FOR ALL LABOR ORDERED OR APPROVED IN EXCESS OF 40 HOURS PER WEEK, WITH RESPECT TO EMPLOYEES WHOSE COMPENSATION IS FIXED UNDER THE ACT OF JULY 16, 1862 (12 STAT. 587). THESE INSTRUCTIONS APPLY TO ALL SUCH EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT AND MARINE CORPS INCLUDING PER DIEM EMPLOYEES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WHOSE WAGES ARE FIXED IN ACCORDANCE WITH PREVAILING NATIVE AND ALIEN WAGE RATES, EXCEPT AT CERTAIN INDIVIDUAL ACTIVITIES LOCATED IN FOREIGN COUNTRIES WHERE SPECIAL OVERTIME RATES HAVE BEEN OR MAY BE AUTHORIZED BY THE DEPARTMENT IN CONFORMITY WITH LOCAL LAWS, REGULATIONS AND CUSTOMS. SEE NCPI 85.4 REVISION I.

7. IT IS HERE PERTINENT TO NOTE THAT PRIOR TO THE RECENT WAR WHEN THE PHILIPPINE ISLANDS WERE POSSESSIONS OF THE UNITED STATES, PER DIEM ALIEN AND NATIVE EMPLOYEES OF THE NAVAL ESTABLISHMENT THEREIN WHO WERE PAID IN ACCORDANCE WITH ESTABLISHED ALIEN AND NATIVE WAGE SCHEDULES, RECEIVED OVERTIME COMPENSATION FOR WORK IN EXCESS OF 40 HOURS PER WEEK. ALSO IN RECONSTRUCTING THE PAY ACCOUNTS OF SUCH EMPLOYEES WHO WERE CAPTURED AND IMPRISONED BY THE ENEMY, IN ACCORDANCE WITH THE PROVISIONS OF THE MISSING PERSONS ACT ( PUBLIC LAW 490, 77TH CONG., AS AMENDED), OVERTIME COMPENSATION WAS ALLOWED CERTAIN OF THESE EMPLOYEES WHO HAD BEEN RECEIVING IT PRIOR TO THE CAPTURE OF THE PHILIPPINE ISLANDS BY THE ENEMY. THE PAYMENT OF OVERTIME COMPENSATION TO SUCH EMPLOYEES WAS BASED ON 13 COMP. GEN. 370 OF 19 MAY 1934.

8. IN THE EVENT THAT THE QUESTION PRESENTED IN PARAGRAPH 3 HEREOF IS ANSWERED IN THE NEGATIVE, INFORMATION IS REQUESTED AS TO WHETHER OR NOT IT WOULD BE LEGALLY PROPER TO PAY ALIEN AND NATIVE EMPLOYEES WHOSE COMPENSATION IS FIXED ON AN HOURLY OR PER DIEM BASIS IN ACCORDANCE WITH ALIEN AND NATIVE WAGE SCHEDULES, AT STRAIGHT-TIME RATES FOR WORK REQUIRED IN EXCESS OF 40 HOURS PER WEEK, PROVIDED THE REGULATIONS OF THE NAVY DEPARTMENT ARE AMENDED TO THIS EFFECT.

IT WAS HELD IN DECISION OF MAY 19, 1934, 13 COMP. GEN. 370, THAT SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, WAS APPLICABLE TO EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WHO PREVIOUSLY HAD WORKED THE SAME HOURS ON THE SAME KIND OF WORK SIDE BY SIDE WITH AMERICAN CITIZEN EMPLOYEES, THE ONLY DIFFERENCE BEING THAT UNDER THE SCHEDULE OF WAGES THEN IN EFFECT THE ALIEN AND NATIVE EMPLOYEES RECEIVED A MUCH LOWER RATE OF PAY. THAT DECISION IS APPLICABLE WHENEVER ALIEN OR NATIVE EMPLOYEES ARE EMPLOYED (OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES) UNDER FACTS SIMILAR TO THOSE THEREIN APPEARING. GENERALLY, IT HAS BEEN HELD THAT THE SALARY AND WAGE RATES PAID ALIEN OR NATIVE EMPLOYEES (OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES) ADMINISTRATIVELY MAY BE ADJUSTED EITHER UPWARD OR DOWNWARD TO ACCORD WITH VARYING SPECIAL CIRCUMSTANCES AND LOCAL PREVAILING WAGES AND LIVING CONDITIONS. 10 COMP. GEN. 332; 21 ID. 522; 21 ID. 947; 22 ID. 432, 678. UNDER THOSE DECISIONS, THE SCHEDULE OF WAGES FOR ALIEN AND NATIVE EMPLOYEES (OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES) WHOSE WAGES ARE FIXED BY THE SECRETARY OF THE NAVY THROUGH WAGE BOARDS OR SIMILAR ADMINISTRATIVE PROCEDURE, AS PROVIDED IN THE ACT OF JULY 16, 1862, 12 STAT. 587, 34 U.S.C. 505, MAY INCLUDE RATES LOWER THAN THOSE CONTAINED IN THE SCHEDULE OF WAGES ESTABLISHED UNDER AUTHORITY CONTAINED IN THE SAME STATUTE FOR EMPLOYEES GENERALLY. HOWEVER, THERE IS NO AUTHORITY WHEREBY EMPLOYEES WHO ARE OTHERWISE INCLUDED WITHIN THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, MAY BE DENIED COMPENSATION FOR OVERTIME SERVICES PERFORMED AT A RATE OF NOT LESS THAN TIME AND ONE-HALF. SEE IN THAT CONNECTION, TOWNSLEY V. UNITED STATES, 101 C.1CLS. 237, WHICH CASE LATER WAS CONSIDERED BY THE SUPREME COURT IN 323 U.S. 557.

THE ACT OF JULY 16, 1862, 12 STAT. 587, AS CONTAINED IN SECTION 505 OF TITLE 34, U.S. CODE, PROVIDES:

THE RATE OF WAGES OF THE EMPLOYEES IN THE NAVY YARDS SHALL CONFORM, AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST, WITH THOSE OF PRIVATE ESTABLISHMENTS IN THE IMMEDIATE VICINITY OF THE RESPECTIVE YARDS, TO BE DETERMINED BY THE COMMANDANTS OF THE NAVY YARDS, SUBJECT TO THE APPROVAL AND REVISION OF THE SECRETARY OF THE NAVY.

THERE WAS CONSIDERED IN 14 COMP. GEN. 215, A REGULATION, HAVING THE FORCE AND EFFECT OF LAW, WHICH REGULATION WAS SUBSTANTIALLY SIMILAR TO THE ACT OF JULY 16, 1862, SUPRA. IT WAS STATED IN THAT DECISION AT PAGE 217:

SECTION 713, TITLE 33, U.S. CODE, PROVIDES AS FOLLOWS:

"REGULATIONS FOR LIGHTHOUSE SERVICE GENERALLY. THE COMMISSIONER OF LIGHTHOUSES, UNDER THE DIRECTION AND CONTROL OF THE SECRETARY OF COMMERCE, SHALL, FROM TIME TO TIME, PRESCRIBE AND DISTRIBUTE SUCH REGULATIONS AS HE MAY DEEM PROPER FOR SECURING AN EFFICIENT, UNIFORM, AND ECONOMIC ADMINISTRATION OF THE LIGHTHOUSE SERVICE. ( JUNE 17, 1910, C. 301 SEC. 10, 36 STAT. 38; MAR. 4, 1913, C. 141, SEC. 1, 37 STAT. 736)"

PARAGRAPH 412 (D) OF THE REGULATIONS FOR THE LIGHTHOUSE SERVICE EFFECTIVE JULY 1, 1927, PROVIDES IN PART AS FOLLOWS:

"IN CASE OF EMPLOYMENTS FOR FIELD CONSTRUCTION WORK SUPERINTENDENTS SHALL SEE THAT WAGES PAID DO NOT EXCEED THE RATES PAID IN THE LOCALITY WHERE WORK IS PERFORMED. * * *"

IN VIEW OF THE BASIC LAW ESTABLISHING THE LIGHTHOUSE SERVICE, THE REGULATIONS ISSUED PURSUANT THERETO HAVING THE FORCE AND EFFECT OF LAW, AND THE ESTABLISHED PROCEDURE AS SHOWN BY THE QUOTED STATEMENTS BY THE COMMISSIONER OF LIGHTHOUSES, THE ADMINISTRATIVE ACTION IN APPLYING THE 40- HOUR WEEK STATUTORY PROVISION TO THE FIELD FORCE FOR CONSTRUCTION AND REPAIR OF LIGHTHOUSES APPEARS CORRECT. 13 COMP. GEN. 265. IT IS TO BE UNDERSTOOD, OF COURSE, THAT THIS DECISION IS NOT TO BE REGARDED AS APPROVING WITHOUT FURTHER SPECIFIC EXAMINATION IN THE AUDIT EVERY PAYMENT OF COMPENSATION PAID TO THE EMPLOYEES INVOLVED ON THE BASIS OF 40 HOURS PER WEEK.

FURTHER, IT WAS HELD IN THE SAME DECISION, BUT WITH REFERENCE TO EMPLOYEES OF THE UNITED STATES SHIPPING BOARD MERCHANT FLEET CORPORATION, FOR WHOM IT DID NOT APPEAR THAT THERE WAS IN FORCE PRIOR TO MARCH 28, 1934, ANY LAW, EXECUTIVE ORDER, OR ADMINISTRATIVE REGULATION REQUIRING THE FIXING OF RATES OF COMPENSATION AND HOURS OF LABOR UNDER A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS OR OTHER WAGE FIXING AUTHORITY:

SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING THE 40-HOUR WEEK IS APPLICABLE ONLY TO EMPLOYEES OF THE FEDERAL GOVERNMENT OF THE CLASSES THEREIN MENTIONED WHOSE HOURS OF LABOR AND RATES OF COMPENSATION PREVIOUSLY HAD BEEN CONTROLLED BY STATUTE AND/OR REGULATIONS ISSUED PURSUANT TO STATUTE AND HAVING THE FORCE AND EFFECT OF LAW AUTHORIZING OR REQUIRING THE FIXING OF RATES OF COMPENSATION BY WAGE BOARDS OR PURSUANT TO A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS.

FROM THE FACTS STATED IN YOUR LETTER, INCLUDING THE HISTORY OF THE EMPLOYMENT OF THE TYPE OF INDIVIDUALS CONCERNED, I AM OF THE OPINION THAT SUCH EMPLOYEES PROPERLY ARE COVERED BY SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522.

ACCORDINGLY, THE TWO QUESTIONS PRESENTED, WHICH ARE CONTAINED IN PARAGRAPHS 3 AND 8 OF THE LETTER OF OCTOBER 10, 1946, SUPRA, ARE ANSWERED IN THE NEGATIVE.