B-144604, DEC. 18, 1961
Highlights
WAS FOUND TO HAVE BREACHED THE REPRESENTATIONS AND STIPULATIONS INCLUDED IN A NUMBER OF CONTRACTS BETWEEN THAT COMPANY AND THE GOVERNMENT PURSUANT TO THE WALSH-HEALEY ACT. THAT THE COMPANY WAS INDEBTED TO THE UNITED STATES IN THE SUM OF $9. 045.93 AS LIQUIDATED DAMAGES RESULTING FROM ITS FAILURE TO COMPENSATE ITS EMPLOYEES AT TIME AND ONE-HALF THEIR REGULAR RATES FOR OVERTIME HOURS SPENT IN CHANGING CLOTHES AND SHOWERING ACTIVITIES WHICH WERE REQUIRED BY THE NATURE OF THEIR WORK AND WHICH THE SUPREME COURT HELD TO BE COMPENSABLE UNDER THE PORTAL TO PORTAL ACT. A CIVIL ACTION WAS FILED AGAINST THE CUMBERLAND BATTERY COMPANY TO RECOVER THE SUM OF $4. A JUDGMENT WAS ENTERED IN FAVOR OF THE UNITED STATES IN THE AMOUNT OF $4.
B-144604, DEC. 18, 1961
TO THE SECRETARY OF THE ARMY:
BY A LETTER DATED MARCH 23, 1955, THE SOLICITOR OF LABOR ADVISED THAT FOLLOWING A HEARING THE CUMBERLAND BATTERY COMPANY, NASHVILLE, TENNESSEE, WAS FOUND TO HAVE BREACHED THE REPRESENTATIONS AND STIPULATIONS INCLUDED IN A NUMBER OF CONTRACTS BETWEEN THAT COMPANY AND THE GOVERNMENT PURSUANT TO THE WALSH-HEALEY ACT, AND THAT THE COMPANY WAS INDEBTED TO THE UNITED STATES IN THE SUM OF $9,045.93 AS LIQUIDATED DAMAGES RESULTING FROM ITS FAILURE TO COMPENSATE ITS EMPLOYEES AT TIME AND ONE-HALF THEIR REGULAR RATES FOR OVERTIME HOURS SPENT IN CHANGING CLOTHES AND SHOWERING ACTIVITIES WHICH WERE REQUIRED BY THE NATURE OF THEIR WORK AND WHICH THE SUPREME COURT HELD TO BE COMPENSABLE UNDER THE PORTAL TO PORTAL ACT. SEE STEINER, ET AL. V. MITCHELL, 350 U.S. 247.
A CIVIL ACTION WAS FILED AGAINST THE CUMBERLAND BATTERY COMPANY TO RECOVER THE SUM OF $4,349.95, REPRESENTING THE AMOUNT NOT BARRED BY OPERATION OF THE STATUTE OF LIMITATIONS CONTAINED IN THE PORTAL TO PORTAL ACT, AND UNDER DATE OF JUNE 29, 1956, A JUDGMENT WAS ENTERED IN FAVOR OF THE UNITED STATES IN THE AMOUNT OF $4,349.95. THE DEFENDANT REMITTED THE AMOUNT OF THE JUDGMENT.
IN A LETTER DATED NOVEMBER 26, 1956, THE SECRETARY OF LABOR EXPRESSED THE VIEW THAT THE RESPONDENTS REMAINED INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $4,695.98, DESPITE THE FACT THAT THE AMOUNT COULD NOT BE RECOVERED IN THE COURT ACTION BECAUSE OF THE TWO YEAR STATUTE OF LIMITATIONS CONTAINED IN THE PORTAL TO PORTAL ACT.
OUR RECORDS INDICATE THAT THE CUMBERLAND BATTERY COMPANY WAS PLACED ON THE DEPARTMENT OF THE ARMY HOLD-UP LIST OF PERSONS AND FIRMS INDEBTED TO THE UNITED STATES. BY REASON THEREOF, BY AN INDORSEMENT DATED NOVEMBER 6, 1961, (FINED) THE OFFICE OF THE CHIEF OF FINANCE FORWARDED TO OUR CLAIMS DIVISION A CHECK IN THE AMOUNT OF $4,197.73, COVERING FIVE INVOICES SUBMITTED BY DEBTOR COMPANY AMOUNTING TO $4,283.40, LESS DISCOUNT OF TWO PERCENT, AS DESCRIBED IN A LETTER OF OCTOBER 31, 1961, FROM CAPTAIN H. D. HARRISON, FINANCE AND ACCOUNTING OFFICER, MEMPHIS GENERAL DEPOT, TO THE COMPANY--- A COPY OF WHICH WAS TRANSMITTED HERE WITH THE INDORSEMENT DATED NOVEMBER 6, 1961.
THE DEPARTMENT OF LABOR INFORMALLY ADVISED OUR OFFICE THAT THE FIVE ITEMS AGGREGATING $4,283.40, COVERED PURCHASES UNDER CONTRACTS NOT SUBJECT TO THE PROVISIONS OF THE WALSH-HEALEY ACT. UNDER THE DECISIONS OF THE COURT OF CLAIMS IN READY MIX CONCRETE CO. V. UNITED STATES, 130 F.SUPP. 390, AND UNEXCELLED CHEMICAL CO. V. UNITED STATES, 149 F.SUPP. 383, THE PROCEEDS OF THE INDICATED CHECK ARE NOT AVAILABLE FOR APPLICATION AGAINST THE INDEBTEDNESS HERE INVOLVED AND WITH LETTER OF TODAY WE ARE FORWARDING THE CHECK TO THE CONTRACTOR.
IT IS SUGGESTED THAT THE DEPARTMENT OF THE ARMY HOLD-UP LIST BE AMENDED, IF FEASIBLE, TO INDICATE THAT ONLY CHECKS UNDER CONTRACTS SUBJECT TO THE PROVISIONS OF THE WALSH-HEALEY ACT SHOULD BE FORWARDED TO OUR OFFICE FOR APPLICATION AGAINST THE OUTSTANDING INDEBTEDNESS OF THE CUMBERLAND BATTERY COMPANY.