A-56659, SEPTEMBER 10, 1934, 14 COMP. GEN. 199

A-56659, SEPTEMBER 10, 1934, 14 COMP. GEN. 199

COMPENSATION - 40-HOUR WEEK - CHEMICAL WARFARE SERVICE THE EMPLOYEES OF THE CHEMICAL WARFARE SERVICE AT THE EDGEWOOD ARSENAL WHOSE COMPENSATION HAS BEEN ADMINISTRATIVELY FIXED PURSUANT TO A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS, ARE SUBJECT TO THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING A 40- HOUR WEEK.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, SEPTEMBER 10, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 28, 1934, AS FOLLOWS:

1. THE FOLLOWING PROVISION IS CONTAINED IN THE ACT MAKING APPROPRIATIONS FOR THE EXECUTIVE OFFICE AND SUNDRY INDEPENDENT EXECUTIVE BUREAUS, BOARDS, COMMISSIONS, AND OFFICES FOR THE FISCAL YEAR ENDING JUNE 30, 1935, AND FOR OTHER PURPOSES, APPROVED MARCH 28, 1934:

"SEC. 23. 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.'

2. THE CHEMICAL WARFARE SERVICE AT EDGEWOOD ARSENAL HAS THREE CLASSES OF EMPLOYEES AS FOLLOWS:

(A) EMPLOYEES OF THE QUARTERMASTER CORPS WHOSE SALARIES HAVE BEEN ADJUSTED UNDER THE BROOKHART ACT.

(B) EMPLOYEES OF THE ORDNANCE DEPARTMENT WHOSE SALARIES AND WAGES ARE SET BY THE CHIEF OF ORDNANCE UNDER PERTINENT LAWS AND REGULATIONS PERTAINING TO THAT DEPARTMENT.

(C) EMPLOYEES OF THE CHEMICAL WARFARE SERVICE PAID, IN GENERAL, FROM THE LUMP SUM APPROPRIATION CHEMICAL WARFARE SERVICE--- ARMY.

THESE EMPLOYEES ARE FURTHER SUBDIVIDED INTO CLASSIFICATIONS AS FOLLOWS:

1. TECHNICAL.

2. CLERICAL.

3. SUBPROFESSIONAL.

4. CUSTODIAL.

5. SKILLED TRADES.

6. CLASSIFIED AND UNCLASSIFIED LABOR.

THE SALARIES OF TECHNICAL, CLERICAL, SUBPROFESSIONAL, AND CUSTODIAL EMPLOYEES ARE THOSE PAID AS PRESCRIBED UNDER THE WELCH AND BROOKHART ACTS. THE SKILLED TRADES AND CLASSIFIED AND UNCLASSIFIED LABOR HAVE THEIR RATES OF PAY FIXED THROUGH WHAT IS KNOWN AT EDGEWOOD ARSENAL AS A WAGE BOARD.

THE ESTABLISHMENT OF THE WAGE BOARD AT EDGEWOOD ARSENAL WAS BASED ON THE REQUIREMENTS OF THE LETTER FROM THE SECRETARY OF WAR TO THE DIRECTOR OF CHEMICAL WELFARE SERVICE, DATED JULY 27, 1918. THE PERTINENT SENTENCE THEREOF READS AS FOLLOWS: "RATES OF PAY IN THE MECHANICAL TRADES AND OTHER NON-EDUCATIONAL POSITIONS SHOULD CONFORM TO THE PREVAILING RATES OF PAY IN THE LOCALITY AND SHOULD BE APPROVED UNDER GENERAL ORDERS NO. 58, WAR DEPARTMENT, 1918.' FROM TIME TO TIME SINCE THAT DATE AS LABOR CONDITIONS IN THE LOCAL VICINITY WERE THOUGHT TO CHANGE, A BOARD, CONSISTING OF AN OFFICER AND THREE OR FOUR CIVILIAN EMPLOYEES, WAS APPOINTED BY THE COMMANDING OFFICER TO MAKE A STUDY OF THE WAGES PAID BY COMMERCIAL CONCERNS IN THE SKILLED AND UNSKILLED TRADES, COMPARABLE WITH SIMILAR POSITIONS IN THE GOVERNMENT SERVICE AT EDGEWOOD ARSENAL. SUCH SURVEYS WERE MADE ON THE FOLLOWING DATES: JUNE 1921, AUGUST 1924, APRIL 1925, AND AUGUST 1929. PRIOR TO 1921 RATES OF PAY WERE SET ADMINISTRATIVELY BY THE COMMANDING OFFICER ON INFORMATION HE HAD COLLECTED FROM COMMERCIAL CONCERNS. THE TERRITORY OF FIRMS COVERED RANGED FROM BALTIMORE TO PHILADELPHIA AND INCLUDED THE GOVERNMENT ESTABLISHMENT OF ABERDEEN PROVING GROUND. UPON THE SUBMISSION OF THE BOARD REPORT THE COMMANDING OFFICER OF THE ARSENAL APPROVED OR MODIFIED THE FINDINGS OF THE BOARD, AND THE PAY RATES ESTABLISHED THEREIN WERE MADE EFFECTIVE IF DIVERGENT FROM RATES PAID UNTIL THE ACTION OF A SUBSEQUENT BOARD. DUE TO THE UNSTABLE LABOR CONDITIONS SUBSEQUENT TO THE YEAR 1929 IT WAS DEEMED ADVISABLE THAT NO WAGE SURVEY BE MADE, AND THE RATES OF PAY OF PERMANENT CHEMICAL WARFARE SERVICE EMPLOYEES OF EDGEWOOD ARSENAL IN THE SKILLED AND UNSKILLED TRADES HAVE REMAINED THE SAME SINCE 1929. THE WAGES SET UP BY THIS WAGE BOARD WERE NOT ADJUSTED BY EITHER THE WELCH OR THE BROOKHART ACT.

THE CHEMICAL WARFARE SERVICE HAS THE FOLLOWING CLASSES OF EMPLOYEES WHO ARE NOT CONSIDERED AS COMING UNDER THE PROVISION OF THE CLASSIFICATION ACT OF 1923 AND AMENDATORY ACTS, AND WHOSE SALARIES ARE THEREFORE NOT FIXED BY STATUTE:

CHART ACETYLENE WELDER GAS-MASK FILTER PLANT OPERATOR AUTOMOBILE MECHANIC HELPER--- BLACKSMITH BLACKSMITH HELPER--- CARPENTER BRICKLAYER HELPER--- ELECTRICIAN CARPENTER

HELPER--- MACHINIST CHEMICAL PLANT OPERATOR HELPER--- PAINTER CHEMICAL PLANT WORKMAN HELPER--- PIPEFITTER DIEMAKER

HELPER--- PLASTERER ELECTRICIAN--- ARMATURE WINDER HELPER--- PLUMBER ELECTRICIAN--- BATTERY HELPER--- SHEET-METAL WORKER ELECTRICIAN--- LINEMAN HORSESHOER ELECTRICIAN--- WIREMAN HOSTLER--- LOCOMOTIVE ENGINE MAN--- CRANE IRONWORKER ENGINE MAN--- LOCOMOTIVE

INSTRUMENT MAKER FIREMAN--- LOCOMOTIVE LABORER FOREMAN--- AUTOMOBILE MECHANIC FOREMAN--- CARPENTER FOREMAN--- WELDER FOREMAN--- CARPENTER ASSISTANT GAS-MASK ASSEMBLER--- GR. I, II, AND III FOREMAN--- CHEMICAL AND FILLING

PLANTS FOREMAN--- ELECTRICIAN

MACHINE OPERATOR--- GAS MASK FOREMAN--- GAS MASK ASSEMBLY MACHINIST FOREMAN--- GAS MASK FILTER PLANT MUNITIONS HANDLER FOREMAN--- MUNITIONS HANDLER MUNITIONS OPERATOR FOREMAN--- PAINTER PACKER FOREMAN--- PIPEFITTER

PAINTER--- GENERAL FOREMAN--- PIPEFITTER ASSISTANT PAINTER-- SIGN FOREMAN --- RIGGER PAINTER--- SPRAY PLASTERER

PATTERN MAKER--- WOOD PLUMBER PIPEFITTER POWER-PRESS OPERATOR

SHEET-METAL WORKER PROCESS INSPECTOR--- GAS MASK STABLEMAN RIGGER

SUPERINTENDENT--- MACHINE SHOP SEWING-MACHINE ADJUSTER

SUPERINTENDENT--- RAILROAD

TRANSPORTATION LEADBURNER

TOOLMAKER

ATTENTION IS INVITED TO YOUR DECISION DATED MAY 16, 1929 (8 COMP. GEN. 606), WHICH STATES THAT CIVILIAN EMPLOYEES OF THE CHEMICAL WARFARE SERVICE ARE EMPLOYED AT AN ARSENAL AND THAT SUCH CIVILIAN EMPLOYEES OF THE CHEMICAL WARFARE SERVICE ARE FIELD EMPLOYEES OF THE WAR DEPARTMENT.

FURTHER ATTENTION IS INVITED TO DECISION OF APRIL 6, 1934 (13 COMP. GEN. 265, 267), AS FOLLOWS:

"IN SECTION 23 OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 1935, ENACTED MARCH 28, 1934, 48 STAT. 522 THERE ARE USED THE TERMS "WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES" SHOWING CLEARLY THAT THE STATUTE WAS INTENDED TO APPLY NOT ONLY TO EMPLOYEES OF THE CLASSES INCLUDED WHOSE COMPENSATION IS AUTHORIZED BY LAW TO BE FIXED BY WAGE BOARDS, BUT, ALSO, TO EMPLOYEES WHOSE COMPENSATION IS AUTHORIZED TO BE FIXED ADMINISTRATIVELY UNDER A PROCEDURE SIMILAR TO THAT FOLLOWED BY WAGE BOARDS, THAT IS, WITH REFERENCE TO WAGES, ETC., PAID TO SIMILAR CLASSES IN COMMERCIAL INDUSTRY RATHER THAN WITH REFERENCE TO SALARY RATES OR SCHEDULES OF RATES SPECIFICALLY FIXED BY OR PURSUANT TO STATUTE. * * *"

3. IN CONFORMITY WITH THE GENERAL UNDERSTANDING IN THE WAR DEPARTMENT OF THE PURPOSES OF THE FORTY-HOUR-WEEK LAW AS INTERPRETED BY YOUR DECISION OF APRIL 6, 1934 (13 COMP. GEN. 265), THE GROUPS OF EMPLOYEES MENTIONED ABOVE WERE CONSIDERED AS COMING WITHIN THE PURVIEW OF SUCH LAW, AND WERE PAID ON THAT BASIS FROM MARCH 28, TO JUNE 30, 1934. HOWEVER, IN VIEW OF YOUR DECISION OF JUNE 30, 1934 (13 COMP. GEN. 486), UNCERTAINTY HAS EXISTED AS TO THE CORRECTNESS OF THE ORIGINAL ACTION AND THE EMPLOYEES HAVE BEEN WORKING ON A 44-HOUR WEEK SINCE JULY 1.

4. IT IS REQUESTED THAT REPLY BE MADE TO THE FOLLOWING SPECIFIC QUESTIONS:

(1) DOES SECTION 23 OF THE ACT CITED APPLY TO THOSE EMPLOYEES OF THE SKILLED TRADES AND CLASSIFIED AND UNCLASSIFIED LABOR LISTED IN PARAGRAPH 2 ABOVE?

(2) WILL ANY ADJUSTMENT OF PAY FOR THE PERIOD SUBSEQUENT TO MARCH 28, 1934, BE REQUIRED AS A RESULT OF YOUR REPLY TO QUESTION (1/?

5. IN PRESENTING THESE QUESTIONS IT IS DEEMED PERTINENT TO POINT OUT AN APPARENT ERROR IN THE DECISION OF MAY 16, 1929 (8 COMP. GEN. 606), AS TO THE RELATION OF THE CHEMICAL WARFARE SERVICE TO THE CORPS OF ENGINEERS AND THE ORDNANCE DEPARTMENT. EDGEWOOD ARSENAL, AND IN FACT ALL THE MANUFACTURING WORK OF THE CHEMICAL WARFARE SERVICE, WAS TAKEN OVER IN TOTO FROM THE ORDNANCE DEPARTMENT DURING THE WORLD WAR AND AT NO TIME DID THE CORPS OF ENGINEERS HAVE ANY CONNECTION OR CONCERN THEREWITH.

ON THE BASIS OF THE STATEMENTS MADE IN YOUR LETTER SHOWING AN ADMINISTRATIVE PROCEDURE IN FIXING RATES OF COMPENSATION SIMILAR TO THAT USED BY WAGE BOARDS, IT SEEMS REASONABLY CLEAR THAT SECTION 23 OF THE ACT OF MARCH 28, 1934, ESTABLISHING A 40-HOUR WEEK, IS APPLICABLE TO EMPLOYEES OF THE CHEMICAL WARFARE SERVICE IN THE TRADES AND OCCUPATIONS LISTED IN THAT PORTION OF PARAGRAPH NO. 2 PRECEDED BY THE FOLLOWING:

THE CHEMICAL WARFARE SERVICE HAS THE FOLLOWING CLASSES OF EMPLOYEES WHO ARE NOT CONSIDERED AS COMING UNDER THE PROVISION OF THE CLASSIFICATION ACT OF 1923 AND AMENDATORY ACTS, AND WHOSE SALARIES ARE THEREFORE NOT FIXED BY STATUTE:

ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE.

THE DECISION OF JUNE 30, 1934, TO THE SECRETARY OF WAR, 13 COMP. GEN. 486, INVOLVING THE FIELD EMPLOYEES OF THE ENGINEER CORPS OF THE ARMY, CITED IN YOUR LETTER AS THE BASIS FOR DISCONTINUING THE 40-HOUR WEEK FOR THE EMPLOYEES OF THE CHEMICAL WARFARE SERVICE, WAS BASED ON AN ADMINISTRATIVE PROCEDURE FOR FIXING SALARY RATES RECOGNIZED AS EARLY AS AUGUST 8, 1918 (DECISION OF THE COMPTROLLER OF THE TREASURY OF THAT DATE), AS NOT CONSTITUTING A PROCEDURE SIMILAR TO THAT USED BY WAGE BOARDS. WAS ON THE BASIS OF THIS EARLY DECISION AND THE APPARENT SUBSEQUENT ADMINISTRATIVE PROCEDURE PURSUANT THERETO THAT THE DECISION CONCLUDED THAT THE FIELD EMPLOYEES OF THE ENGINEER CORPS OF THE ARMY WERE NOT SUBJECT TO THE 40-HOUR WEEK STATUTORY PROVISION. SAID EMPLOYEES WERE REGARDED AS IN A SPECIAL CLASS AND THE DECISION WAS NOT INTENDED TO BE APPLIED TO ANY OTHER CLASS. THE ADMINISTRATIVE OFFICE SHOULD NOT HAVE APPLIED THAT DECISION AS REQUIRING DISCONTINUANCE OF THE 40-HOUR WEEK FOR EMPLOYEES OF THE CHEMICAL WARFARE SERVICE PROPERLY WITHIN THE TERMS OF SECTION 23 OF THE ACT OF MARCH 28, 1934. SEE DECISION OF AUGUST 25, 1934, A-54762, 14 COMP. GEN. 156, TO THE GOVERNOR OF THE PANAMA CANAL. HOWEVER, IN VIEW OF THE ADMINISTRATIVE MISUNDERSTANDING AS TO THE SCOPE OF THE DECISION OF JUNE 30, 1934, SUPRA, AND AS THIS OFFICE HAD NOT SPECIFICALLY RULED ON THE STATUS OF THE EMPLOYEES OF THE CHEMICAL WARFARE SERVICE, NO ADJUSTMENT IN THE COMPENSATION OF THE EMPLOYEES INVOLVED FOR ANY PERIOD PRIOR TO THIS DECISION WILL BE REQUIRED. QUESTION (2) IS ANSWERED IN THE NEGATIVE.