Skip to main content

B-150253, DECEMBER 14, 1962, 42 COMP. GEN. 309

B-150253 Dec 14, 1962
Jump To:
Skip to Highlights

Highlights

GOVERNMENT PRINTING OFFICE - EMPLOYEES OVERTIME COMPENSATION - WORK HOURS ACT OF 1962 - EFFECTIVE DATE ALL EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WHOSE COMPENSATION IS FIXED UNDER THE AUTHORITY OF THE KIESS ACT. ARE ENTITLED TO THE OVERTIME COMPENSATION BENEFITS OF SECTION 201 OF THE WORK HOURS ACT OF 1962 (5 U.S.C. 673C). THE WORK HOURS ACT IN AMENDING THE OVERTIME PROVISIONS OF THE 1934 ACT NOT CHANGING THE COVERAGE OF THE ACT TO EMPLOYEES WHOSE COMPENSATION IS SET BY WAGE BOARD. IT IS IMMATERIAL THAT THE COMPENSATION OF SOME PER ANNUM EMPLOYEES MAY BE FIXED AT RATES COMPARABLE TO "GS" RATES UNDER THE CLASSIFICATION ACT. AS WELL AS THE PROVISIONS IN ADMINISTRATIVE ORDERS ISSUED BY THE PUBLIC PRINTER TO ESTABLISH THE SALARIES OF HOURLY EMPLOYEES WHO ARE NOT COVERED BY WAGE AGREEMENTS.

View Decision

B-150253, DECEMBER 14, 1962, 42 COMP. GEN. 309

GOVERNMENT PRINTING OFFICE - EMPLOYEES - OVERTIME COMPENSATION - WORK HOURS ACT OF 1962 - COVERAGE. GOVERNMENT PRINTING OFFICE - EMPLOYEES OVERTIME COMPENSATION - WORK HOURS ACT OF 1962 - EFFECTIVE DATE ALL EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WHOSE COMPENSATION IS FIXED UNDER THE AUTHORITY OF THE KIESS ACT, 44 U.S.C. 40, INCLUDING PER ANNUM EMPLOYEES PAID RATES COMPARABLE TO THE GS GRADES IN THE CLASSIFIED CIVIL SERVICE, ARE ENTITLED TO THE OVERTIME COMPENSATION BENEFITS OF SECTION 201 OF THE WORK HOURS ACT OF 1962 (5 U.S.C. 673C), WHICH AMENDED SECTION 23 OF THE ACT OF MARCH 28, 1934, TO REQUIRE PAYMENT OF OVERTIME FOR WORK IN EXCESS OF 8 HOURS PER DAY AND IN EXCESS OF 40 HOURS PER WEEK, THE WORK HOURS ACT IN AMENDING THE OVERTIME PROVISIONS OF THE 1934 ACT NOT CHANGING THE COVERAGE OF THE ACT TO EMPLOYEES WHOSE COMPENSATION IS SET BY WAGE BOARD, OR OTHER WAGE-FIXING AUTHORITIES, AND THE PROHIBITIONS AGAINST PAYING OVERTIME COMPENSATION TO PER ANNUM EMPLOYEES HAVING BEEN REMOVED, AND IT IS IMMATERIAL THAT THE COMPENSATION OF SOME PER ANNUM EMPLOYEES MAY BE FIXED AT RATES COMPARABLE TO "GS" RATES UNDER THE CLASSIFICATION ACT. THE OVERTIME COMPENSATION PROVISIONS IN THE WAGE AGREEMENTS BETWEEN THE PUBLIC PRINTER AND EMPLOYEE COMMITTEES OF THE GOVERNMENT PRINTING OFFICE NEGOTIATED UNDER THE KIESS ACT, 44 U.S.C. 40, AS WELL AS THE PROVISIONS IN ADMINISTRATIVE ORDERS ISSUED BY THE PUBLIC PRINTER TO ESTABLISH THE SALARIES OF HOURLY EMPLOYEES WHO ARE NOT COVERED BY WAGE AGREEMENTS, WHICH ARE IN CONFLICT WITH THE MANDATORY PROVISIONS IN SECTION 201 OF THE WORK HOURS ACT OF 1962 (5 U.S.C. 673C), REQUIRING THE PAYMENT OF OVERTIME COMPENSATION FOR WORK IN EXCESS OF 8 HOURS PER DAY AND IN EXCESS OF 40 HOURS PER WEEK, ARE ABROGATED AFTER OCTOBER 12, 1962, THE EFFECTIVE DATE OF THE WORK HOURS ACT, THE EXCEPTIONS TO THE EFFECTIVE DATE OF THE ACT PROVIDED IN SECTION 204 HAVING NO BEARING ON CURRENT WAGE AGREEMENTS OR EXISTING ADMINISTRATIVE ORDERS.

TO THE PUBLIC PRINTER, UNITED STATES GOVERNMENT PRINTING OFFICE, DECEMBER 14, 1962:

ON NOVEMBER 7, 1962, YOU REQUESTED OUR DECISION ON THE FOLLOWING QUESTIONS ARISING IN CONNECTION WITH SECTION 201 OF THE WORK HOURS ACT OF 1962 (PUBLIC LAW 87-581, APPROVED AUGUST 13, 1962, 76 STAT. 360), AMENDING SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, 5 U.S.C. 673C:

1. ARE THE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE SUBJECT TO PROVISIONS OF SEC. 201 OF P.L. 57 (87/-581, APPROVED AUGUST 13, 1962?

2. IN ACCORDANCE WITH SEC. 40, TITLE 44, U.S. CODE, IT IS REQUIRED THAT THE RATE OF WAGES, INCLUDING COMPENSATION FOR NIGHT AND OVERTIME WORK FOR MORE THAN 10 EMPLOYEES OF THE SAME OCCUPATION, SHALL BE DETERMINED BY 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. THIS IS CONSTRUED AS AN AGREEMENT OR CONTRACT. HOWEVER, SEC. 204 OF P.L. 57 (87/- 581 PROVIDES: "THIS ACT SHALL TAKE EFFECT 60 DAYS AFTER ITS ENACTMENT, BUT SHALL NOT AFFECT ANY CONTRACT THEN EXISTING OR ANY CONTRACT THAT MAY THEREAFTER BE ENTERED INTO PURSUANT TO INVITATIONS FOR BIDS THAT ARE OUTSTANDING AT THE TIME OF THE ENACTMENT OF THIS ACT.' DOES THE PROVISION IN THE WAGE AGREEMENTS REGARDING CONTINUATION OF TIME AND ONE-HALF FOR HOURS WORKED IN EXCESS OF 40 IN ANY ONE WORK WEEK REMAIN IN EFFECT UNTIL A NEW WAGE AGREEMENT, AT WHICH TIME SEC. 201 OF P.L. 87-581 WOULD TAKE EFFECT, OR DO THE NEW PROVISIONS BECOME EFFECTIVE AS OF OCTOBER 12, 1962?

3. THERE ARE OTHER GROUPS OF HOURLY EMPLOYEES WHO DO NOT HAVE WAGE AGREEMENTS, BUT WHOSE SALARIES ARE ESTABLISHED BY THE PUBLIC PRINTER BY MEANS OF ADMINISTRATIVE ORDERS WHICH STATE THAT TIME AND ONE-HALF FOR HOURS WORKED IN EXCESS OF 40 IN ANY WORK WEEK WILL BE PAID. WHAT WILL BE THE EFFECT OF THE WORK HOURS ACT OF 1962, ON THESE EMPLOYEES?

4. WHAT WILL BE THE EFFECT OF THIS LEGISLATION ON EMPLOYEES CONSIDERED AS PER ANNUM WHO ARE PAID RATES UNDER AUTHORITY TO THE KIESS ACT, SEC. 40, TITLE 44, U.S.C., COMPARABLE TO THE GS GRADES IN THE CLASSIFIED CIVIL SERVICE?

SECTION 201 OF PUBLIC LAW 87-581, PROVIDES AS FOLLOWS:

THE PROVISO OF SECTION 23 OF THE ACT OF MARCH 28, 1934 (48 STAT. 509, 522), AS AMENDED, IS HEREBY AMENDED TO READ AS FOLLOWS: "PROVIDED, THAT THE REGULAR HOURS OF LABOR ARE HEREBY ESTABLISHED AT NOT MORE THAN EIGHT PER DAY OR FORTY PER WEEK, BUT WORK IN EXCESS OF SUCH HOURS SHALL BE PERMITTED WHEN ADMINISTRATIVELY DETERMINED TO BE IN THE PUBLIC INTEREST: PROVIDED FURTHER, THAT OVERTIME WORK IN EXCESS OF EIGHT HOURS PER DAY OR IN EXCESS OF FORTY HOURS PER WEEK SHALL BE COMPENSATED FOR AT NOT LESS THAN TIME AND ONE-HALF THE BASIC RATE OF COMPENSATION, EXCEPT THAT EMPLOYEES SUBJECT TO THIS SECTION WHO ARE REGULARLY REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF THEIR POST OF DUTY IN EXCESS OF EIGHT HOURS PER DAY IN A STANDBY OR ON-CALL STATUS SHALL BE PAID OVERTIME RATES ONLY FOR HOURS OF DUTY, EXCLUSIVE OF EATING AND SLEEPING TIME, IN EXCESS OF FORTY PER WEEK.'

UNDER THE COVERAGE PROVISION OF THE FIRST PART OF SECTION 23 OF THE ACT OF MARCH 28, 1934, THE SECTION WAS TO BE APPLICABLE TO EMPLOYEES IN THE TRADES OR OCCUPATIONS WHOSE COMPENSATION IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES. THE PROVISO OF THE SECTION ESTABLISHED 40 HOURS PER WEEK AS THE MAXIMUM REGULAR HOURS OF LABOR AND PROVIDED FOR PAYMENT OF NOT LESS THAN TIME AND ONE-HALF FOR ALL OVERTIME. SECTION 201 OF THE NEW LAW AMENDED THE OVERTIME PROVISION OF THE PROVISO BUT DID NOT CHANGE THE COVERAGE PROVISIONS OF THE FIRST PART OF SUCH SECTION. THE 1934 STATUTE HAS BEEN HELD TO HAVE BEEN APPLICABLE FROM THE DATE OF ITS ENACTMENT TO EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WHOSE COMPENSATION IS FIXED UNDER AUTHORITY OF THE ACT OF JUNE 7, 1924 (KIESS ACT), 43 STAT. 658 (44 U.S.C. 40, CITED IN YOUR QUESTION 2 QUOTED ABOVE). 13 COMP. GEN. 265. QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE TO THE EXTENT THAT IT CONCERNS EMPLOYEES TO WHOM THE 1934 STATUTE HERETOFORE WAS PROPERLY APPLICABLE.

AS YOU SAY IN CONNECTION WITH YOUR STATEMENT CONCERNING QUESTION 2, THE WAGE SCHEDULES, ETC., ARRIVED AT BY CONFERENCES BETWEEN THE PUBLIC PRINTER AND EMPLOYEE COMMITTEES, AS PROVIDED BY THE KIESS ACT, 76 STAT. 360, HAVE BEEN REFERRED TO AS "AGREEMENTS" OR "CONTRACTS.' SEE UNITED STATES V. KELLY, 342 U.S. 193; UNITED STATES V. BERGH, 352 ID. 40, 47. HOWEVER, ASIDE FROM OTHER CONSIDERATIONS, THE USE IN SECTION 204 OF PUBLIC LAW 87- 581, WHICH YOU QUOTE, OF THE WORDS ,INVITATION FOR BIDS" IN CONNECTION WITH THE WORD "CONTRACT" INDICATES TO US THE CLEAR CONGRESSIONAL INTENT TO APPLY THE EXCEPTIONS OF THE SECTION ONLY IN THE CASE OF CONTRACTS WITH INDEPENDENT CONTRACTORS AFFECTED BY OTHER PROVISIONS OF THE LAW AND NOT TO SO-CALLED "CONTRACTS" AFFECTING THE COMPENSATION OF GOVERNMENT EMPLOYEES. WE REGARD THE PROVISIONS OF SECTION 201 OF THE NEW LAW FOR THE PAYMENT OF OVERTIME COMPENSATION FOR WORK IN EXCESS OF 8 HOURS PER DAY AS WELL AS IN EXCESS OF 40 HOURS PER WEEK AS MANDATORY AND AS ABROGATING, FROM AND AFTER THE 60-DAY EFFECTIVE DATE SPECIFIED (OCTOBER 12, 1962), ANY PROVISIONS OF CURRENT WAGE AGREEMENTS NEGOTIATED UNDER THE KIESS ACT WHICH MIGHT BE IN CONFLICT WITH THE TERMS OF SAID SECTION 201. CF. 23 COMP. GEN. 962. QUESTION 2 IS ANSWERED ACCORDINGLY.

CONSISTENT WITH OUR ANSWER TO QUESTION 2, QUESTION 3 IS ANSWERED BY SAYING THAT ANY PROVISIONS OF EXISTING ADMINISTRATIVE ORDERS, CONCERNING OVERTIME COMPENSATION OF EMPLOYEES SUBJECT TO THE 1934 STATUTE, WHICH MAY BE IN CONFLICT WITH THE TERMS OF THE NEW LAW MUST YIELD THERETO. CF. 13 COMP. GEN. 370, 375; ID. 444.

CONCERNING QUESTION 4, IT INITIALLY WAS HELD IN 13 COMP. GEN. 265, SUPRA, THAT THE HOURS-OF-WORK PROVISIONS OF THE 1934 STATUTE WERE APPLICABLE TO ALL EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, INCLUDING PER ANNUM EMPLOYEES, EXCEPT CERTAIN EMPLOYEES OF THE OFFICE OF THE SUPERINTENDENT OF DOCUMENTS WHOSE COMPENSATION WAS BY LAW SPECIFICALLY MADE SUBJECT TO THE CLASSIFICATION ACT, 5 U.S.C. 1071, RATHER THAN THE KIESS ACT, BUT THAT THE OVERTIME COMPENSATION PROVISIONS WERE NOT APPLICABLE TO PER ANNUM EMPLOYEES. THE LATTER HOLDING AS TO OVERTIME COMPENSATION FOR PER ANNUM EMPLOYEES HAS BEEN SUPERSEDED AS THE RESULT OF THE DECISIONS OF THE SUPREME COURT IN UNITED STATES V. TOWNSLEY, 323 U.S. 557, AND THE COURT OF CLAIMS IN HEARNE V. UNITED STATES, 107 CT.CL. 335, CERT. DENIED, 331 U.S. 858. SEE B-71629, JANUARY 27, 1948. FURTHERMORE, THE EXCEPTION AS TO THE EMPLOYEES OF THE OFFICE OF THE SUPERINTENDENT OF DOCUMENTS HAS BEEN REMOVED IN RECENT YEARS BY PROVISIONS IN ANNUAL APPROPRIATION ACTS, BEGINNING WITH THE LEGISLATIVE BRANCH APPROPRIATION ACT, 1959, 72 STAT. 452, FOR PAYMENT OF ALL EMPLOYEES OF THAT OFFICE IN ACCORDANCE WITH THE KIESS ACT. IN LINE WITH 13 COMP. GEN. 265, SUPRA, AND OUR ANSWERS TO QUESTIONS 1 AND 3, OUR VIEW IS THAT THE OVERTIME COMPENSATION PROVISIONS OF THE 1934 ACT AS AMENDED BY PUBLIC LAW 87-581 ARE APPLICABLE TO ALL EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, INCLUDING PER ANNUM EMPLOYEES, WHOSE COMPENSATION IS FIXED UNDER AUTHORITY OF THE KIESS ACT. THE CIRCUMSTANCE THAT THE COMPENSATION FOR SOME EMPLOYEES MAY BE FIXED UNDER THAT AUTHORITY AT RATES COMPARABLE TO "GS" RATES UNDER THE CLASSIFICATION ACT IS IMMATERIAL. SEE SAMPLE, ET AL. V. UNITED STATES, 135 CT.CL. 945 (WITH PARTICULAR REFERENCE TO THE PROVISIONS OF "ORDER NO. 2424" QUOTED IN FINDING OF FACT NO. 26 AT PAGE 966). QUESTION 4 IS ANSWERED ACCORDINGLY.

GAO Contacts

Office of Public Affairs