A-56659, NOVEMBER 26, 1934, 14 COMP. GEN. 419

A-56659: Nov 26, 1934

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YOUR ATTENTION IS INVITED TO THE FACT THAT THE LAST WAGE SURVEY AT THAT ARSENAL. - WAS BASED. WAS MADE IN AUGUST 1929. IN CONNECTION WITH THE PROPOSED NEW WAGE SURVEY BY THE WAGE BOARD AT EDGEWOOD ARSENAL THE FOLLOWING QUESTIONS HAVE ARISEN UPON WHICH YOUR DECISION IS RESPECTFULLY REQUESTED: A. WHEN AND IF CONDITIONS ARE FOUND TO HAVE CHANGED SINCE JUNE 1. OR SINCE THE SURVEY WAS MADE UPON WHICH THE SCHEDULES IN EFFECT ON JUNE 1. WERE BASED. B. WILL THE SAME CONSTRUCTION OF THE LAW APPLY TO A NEW EMPLOYEE HIRED TO FILL A VACANCY IN AN EXISTING POSITION. THE WAGE RATE OF WHICH WAS SET BY A WAGE BOARD? WOULD THIS SECTION OF THE LAW HAVE IN THE CASE OF A POSITION CREATED SINCE ITS ENACTMENT.

A-56659, NOVEMBER 26, 1934, 14 COMP. GEN. 419

COMPENSATION - 40-HOUR WEEK - MINIMUM WAGE SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING THE 40-HOUR WEEK, FIXES THE WAGE SCHEDULES IN EFFECT JUNE 1, 1932, FOR THOSE CLASSES OF POSITIONS WITHIN THE ACT THEN IN EXISTENCE, AS THE MINIMUM UNDER WHICH A WAGE BOARD MAY NOT GO IN ADJUSTING WAGES ON A 40 HOUR WEEK BASIS. A WAGE BOARD WOULD NOT BE LIMITED BY SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, IN FIXING THE WAGE RATES OR SCHEDULE OF RATES FOR AN ENTIRELY NEW CLASS OF POSITION SUBJECT TO THE 40-HOUR WEEK, CREATED SINCE JUNE 1, 1932, FOR WHICH THERE EXISTED ON THAT DATE NO WAGE RATE OR SCHEDULE OF WAGE RATES, ALTHOUGH THE SALARY RATE OR SCHEDULE OF RATES FOR THE NEW POSITION SHOULD BEAR THE PROPER RELATIONSHIP TO OTHER CLASSES OF POSITIONS PAID ON A 40-HOUR WEEK BASIS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, NOVEMBER 26, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 29, 1934, AS FOLLOWS:

1. WITH REFERENCE TO YOUR LETTER OF SEPTEMBER 10, 1934 (A-56659), PERTAINING TO THE APPLICATION OF SECTION 23, ACT OF MARCH 28, 1934, TO CERTAIN EMPLOYEES OF THE CHEMICAL WARFARE SERVICE AT EDGEWOOD ARSENAL, YOUR ATTENTION IS INVITED TO THE FACT THAT THE LAST WAGE SURVEY AT THAT ARSENAL, UPON WHICH THE WAGE SCHEDULE IN EFFECT JUNE 1, 1932--- AND STILL IN EFFECT--- WAS BASED, WAS MADE IN AUGUST 1929. IN CONNECTION WITH THE PROPOSED NEW WAGE SURVEY BY THE WAGE BOARD AT EDGEWOOD ARSENAL THE FOLLOWING QUESTIONS HAVE ARISEN UPON WHICH YOUR DECISION IS RESPECTFULLY REQUESTED:

A. DOES SECTION 23, ACT OF MARCH 28, 1934, PRECLUDE THE READJUSTMENT OF WAGE SCHEDULES DOWNWARD BY WAGE BOARDS, WHEN AND IF CONDITIONS ARE FOUND TO HAVE CHANGED SINCE JUNE 1, 1932, OR SINCE THE SURVEY WAS MADE UPON WHICH THE SCHEDULES IN EFFECT ON JUNE 1, 1932, WERE BASED, SO AS TO WARRANT SUCH REVISION?

B. WILL THE SAME CONSTRUCTION OF THE LAW APPLY TO A NEW EMPLOYEE HIRED TO FILL A VACANCY IN AN EXISTING POSITION, THE WAGE RATE OF WHICH WAS SET BY A WAGE BOARD?

C. WHAT APPLICATION, IF ANY, WOULD THIS SECTION OF THE LAW HAVE IN THE CASE OF A POSITION CREATED SINCE ITS ENACTMENT, WHETHER SUCH NEW POSITION BE FILLED BY PROMOTION FROM A LOWER POSITION OR BY A NEW APPOINTMENT?

SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, PROVIDES AS FOLLOWS:

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.

THIS SECTION NOT ONLY PROVIDES THAT WAGE SCHEDULES FOR THE 40-HOUR WEEK SHALL BE REESTABLISHED AT RATES NOT LOWER THAN NECESSARY TO RESTORE FULL- TIME WEEKLY EARNINGS UNDER SCHEDULES IN EFFECT ON JUNE 1, 1932, BUT ALSO THAT SUCH MINIMUM SCHEDULES SHALL BE "MAINTAINED," CLEARLY PROHIBITING A WAGE BOARD FROM ADOPTING NEW SCHEDULES OF WAGES FOR THE 40-HOUR WEEK AT RATES LESS THAN FOR FULL-TIME WEEKLY EARNINGS UNDER SCHEDULES IN EFFECT JUNE 1, 1932. IN OTHER WORDS, THE STATUTE FIXES THE WAGE SCHEDULES IN EFFECT JUNE 1, 1932, FOR CLASSES OF POSITIONS THEN IN EXISTENCE, AS THE MINIMUM UNDER WHICH A WAGE BOARD MAY NOT GO IN ADJUSTING WAGES ON A 40- HOUR WEEK BASIS. THE STATUTE DOES NOT PROHIBIT A WAGE BOARD FROM ADJUSTING DOWNWARD TO THE MINIMUM PRESCRIBED BY THE STATUTE ANY PRESENT WAGE SCHEDULE WHICH IS NOW HIGHER THAN SAID MINIMUM. QUESTION (A) IS ANSWERED ACCORDINGLY.

IN DECISION OF SEPTEMBER 12, 1934, A-56997, 14 COMP. GEN. 215, IT WAS HELD:

THE PROBLEM INVOLVED IN QUESTION (C) IS UNDERSTOOD TO BE WHETHER THE STATUTE SAVES TO EMPLOYEES ON A 40-HOUR WEEK BASIS THE SCHEDULED RATES AS OF JUNE 1, 1932, FOR A TRADE OR OCCUPATION, OR THE RATES THAT MAY HAVE BEEN PAID TO AN INDIVIDUAL. IN THIS CONNECTION THE STATUTE HAS REFERENCE TO THE SCHEDULE OF RATES PAID AS OF JUNE 1, 1932, FOR THE TRADE OR OCCUPATION PROPERLY WITHIN THE LAW, AND NOT TO THE RATE IN SUCH SCHEDULE RECEIVED ON JUNE 1, 1932, BY A PARTICULAR INDIVIDUAL.

IN OTHER WORDS, THE STATUTE RELATES TO POSITIONS AND NOT TO INDIVIDUAL EMPLOYEES. QUESTION (B) IS ANSWERED IN THE AFFIRMATIVE.

THE ADJUSTMENT OF WAGES REQUIRED BY THE STATUTE RELATES ONLY TO POSITIONS AS TO WHICH SCHEDULES OF WAGES WERE IN EFFECT ON JUNE 1, 1932. REFERRING TO QUESTION (C) A WAGE BOARD WOULD NOT BE LIMITED BY SAID STATUTE IN FIXING THE WAGE RATE OR SCHEDULE OF RATES FOR AN ENTIRELY NEW CLASS OF POSITION, SUBJECT TO THE 40-HOUR WEEK, CREATED SINCE JUNE 1, 1932, FOR WHICH THERE EXISTED ON THAT DATE NO WAGE RATE OR SCHEDULE OF WAGE RATES, ALTHOUGH THE SALARY RATE OR SCHEDULE OF RATES FOR THE NEW POSITION SHOULD BEAR THE PROPER RELATIONSHIP TO OTHER CLASSES OF POSITIONS PAID ON A 40- HOUR WEEK BASIS. DECISION OF NOVEMBER 10, 1934, A-58525, 14 COMP. GEN. 376.

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