B-4909, JULY 24, 1939, 19 COMP. GEN. 97

B-4909, JULY 24, 1939, 19 COMP. GEN. 97

CONTRACTS - LABOR STIPULATION VIOLATIONS - DISPOSITION OF UNUSED MONEYS PLACED BY CONTRACTOR WITH GOVERNMENT FOR PAYMENT OF ITS UNDERPAID EMPLOYEES WHERE IT WAS DEFINITELY DETERMINED THAT AT LEAST THE SPECIFIED SUM IS "DUE AND UNPAID TO EMPLOYEES OF SAID RESPONDENT COMPANY FOR OVERTIME," VIOLATIONS OF THE PROVISIONS OF THE PUBLIC CONTRACTS ACT OF JUNE 30, 1936, 49 STAT. 2036, THE FACT THAT ALL EMPLOYEES DID NOT APPLY FOR THE WAGES DUE THEM WITHIN THE TIME ALLOWED BY LAW DOES NOT GIVE RISE TO A RIGHT IN THE COMPANY'S FAVOR FOR A REFUND OF THE BALANCE OF THE SPECIFIED AMOUNT DEPOSITED BY IT WITH THE GOVERNMENT BUT NOT PAID THE EMPLOYEES, AND SUCH BALANCE SHOULD BE DEPOSITED INTO THE TREASURY OF THE UNITED STATES AS A MISCELLANEOUS RECEIPT.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF LABOR, JULY 24, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 12, 1939, AS FOLLOWS:

RE: UNITED STATES OF AMERICA, DIVISION OF PUBLIC CONTRACTS, DEPARTMENT OF LABOR. IN THE MATTER OF THE BLUE RIDGE OVERALL COMPANY, A CORPORATION, NO. W-669-QM-ECW-117.

YOUR ATTENTION IS RESPECTFULLY CALLED TO THE MATTER OF THE UNEXPENDED BALANCE OF $1,205.70 REMAINING IN A SPECIAL DEPOSIT ACCOUNT OF THE SECRETARY OF LABOR, REPRESENTING THE RESIDUE OF THE SUM OF $4,800 DEPOSITED BY THE BLUE RIDGE OVERALL COMPANY IN SETTLEMENT OF AMOUNTS DUE ITS EMPLOYEES FOR CERTAIN OVERTIME WORKED WHILE IN THE PERFORMANCE OF THE ABOVE NUMBERED GOVERNMENT CONTRACT.

THE SOLICITOR OF LABOR HAS CONCLUDED THAT THIS BALANCE IS NOT FEDERAL FUNDS AND SHOULD BE REMITTED TO THE BLUE RIDGE OVERALL COMPANY. I AM ATTACHING HERETO A COPY OF THIS OPINION AND RESPECTFULLY REQUEST A DECISION OF YOUR OFFICE IN THIS MATTER.

THE SOLICITOR'S OPINION, REFERRED TO IN YOUR LETTER, IS DATED JUNE 6, 1939, AND IS AS FOLLOWS:

AN OPINION HAS BEEN REQUESTED OF THIS OFFICE RELATIVE TO THE ULTIMATE DISPOSITION OF THE SUM OF $1,205.70, REPRESENTING THE UNEXPENDED BALANCE OF $4,800 DEPOSITED BY THE COMPANY IN SETTLEMENT OF AMOUNTS DUE ITS EMPLOYEES FOR CERTAIN OVERTIME WORKED WHILE IN PERFORMANCE OF THE ABOVE NUMBERED GOVERNMENT CONTRACT.

ON JANUARY 1, 1937, THE UNITED STATES GOVERNMENT AWARDED ITS CONTRACT NO. W-669-QM-ECW-117 TO THE BLUE RIDGE OVERALL COMPANY FOR THE MANUFACTURE OF WORK TROUSERS AND WORK COATS IN THE AMOUNT OF $1,193,000. THIS CONTRACT BEING FOR AN AMOUNT IN EXCESS OF $10,000, CONTAINED REPRESENTATIONS AND STIPULATIONS REQUIRED BY THE PUBLIC CONTRACTS ACT (49 STAT. 2036) AND REGULATIONS THEREUNDER OF THE SECRETARY OF LABOR. COMPLAINT NO. 100 WAS ISSUED ON JULY 22, 1937, CHARGING THAT THE COMPANY IN PERFORMANCE OF SAID CONTRACT HAD VIOLATED SAID ACT, REGULATIONS AND CONTRACT BY PERMITTING EMPLOYEES TO WORK IN EXCESS OF 8 HOURS PER DAY OR 40 HOURS PER WEEK WITHOUT THE PAYMENT OF AT LEAST ONE AND ONE-HALF TIMES THE BASIC HOURLY RATE OF PAY FOR HOURS SO WORKED; BY KNOWINGLY EMPLOYING CERTAIN FEMALE PERSONS UNDER THE AGE OF 18 YEARS; AND BY FAILING TO MAINTAIN AND MAKE AVAILABLE FOR INSPECTION BY AUTHORIZED REPRESENTATIVES OF THE SECRETARY OF LABOR THE RECORDS REQUIRED BY ARTICLE 501 OF THE REGULATIONS OF THE SECRETARY OF LABOR. NOTICE WAS GIVEN THE SAID COMPANY AND HEARINGS WERE HELD COMMENCING ON JULY 12, 1937, AND ENDING ON JULY 26, 1937, AT ROANOKE, VIRGINIA. AFTER VARIOUS EMPLOYEES OF THE SAID COMPANY HAD BEEN HEARD, AND DURING THE PENDENCY OF SAID HEARINGS TO DETERMINE THE AMOUNT DUE BY THE SAID COMPANY TO ITS EMPLOYEES, A CONSENT ORDER WAS ENTERED, SIGNED BY JULIAN JOHNSON, COUNSEL FOR THE GOVERNMENT, AND MORRIS L. MASINTER, COUNSEL FOR THE COMPANY, AND APPROVED BY GEORGE W. KRETZINGER, JR., EXAMINER FOR THE GOVERNMENT AS FOLLOWS:

"IT APPEARING TO THE SATISFACTION OF THE GOVERNMENT OF THE UNITED STATES THAT CAROL ROSENBLOOM, PRESIDENT AND TREASURER OF THE RESPONDENT, BLUE RIDGE OVERALL COMPANY, HAD NO KNOWLEDGE OF THE ALLEGED VIOLATION OF THOSE CERTAIN PROVISIONS OF THE WALSH-HEALEY ACT, AND THE REGULATIONS PERTAINING THERETO, AS ALLEGED IN THE COMPLAINT AGAINST SAID RESPONDENT.

"AND IT APPEARING FURTHER THAT THE RESPONDENT, BLUE RIDGE OVERALL COMPANY HAS MADE SATISFACTORY ARRANGEMENTS TO ADEQUATELY SATISFY THE CLAIM OF ANY EMPLOYEES WHO MAY BE CLAIMANTS AGAINST THE RESPONDENT, BLUE RIDGE OVERALL COMPANY. IT IS THEREFORE ORDERED AND ADJUDGED THAT THE COMPLAINT AGAINST THE BLUE RIDGE OVERALL COMPANY BE, AND THE SAME IS, HEREBY DISMISSED.'

PURSUANT TO THE DIRECTION OF THIS ORDER, THE COMPANY DELIVERED TO THE EXAMINER A CERTIFIED CHECK IN THE AMOUNT OF $4,800, AND HEARINGS WERE CONTINUED TO DETERMINE, IF POSSIBLE, THE EXACT AMOUNT DUE EMPLOYEES OF THE COMPANY AS OVERTIME.

ON OCTOBER 12, 1937, THE ADMINISTRATOR FILED HIS DECISION IN COMPLIANCE WITH THE FINDINGS AND RECOMMENDATIONS OF THE EXAMINER, AS FOLLOWS:

"IT IS DETERMINED THAT THE BLUE RIDGE OVERALL COMPANY VIOLATED THE AFOREMENTIONED ACT AND REGULATIONS IN THAT AVAILABLE PAY-ROLL RECORDS WERE NOT KEPT IN ACCORDANCE WITH ARTICLE 501 OF SAID REGULATIONS; AND IN THAT THE SUM OF $4,800.00 IS DUE AND UNPAID TO EMPLOYEES OF SAID RESPONDENT COMPANY FOR OVERTIME WORKED IN EXCESS OF 8 HOURS IN ANY ONE DAY AND 40 HOURS IN ANY ONE WEEK WHILE EMPLOYED ON SAID GOVERNMENT CONTRACT.

"THE RESPONDENT HAVING GIVEN THE EXAMINER A CERTIFIED CHECK IN THE AMOUNT OF $4,800.00 IN SETTLEMENT OF THE AMOUNTS DUE SAID EMPLOYEES, AND HAVING AGREED TO SETTLE, IN THE EVENT THAT THE SAID AMOUNT OF $4,800.00 SHOULD NOT BE SUFFICIENT, ANY FURTHER OR FUTURE AMOUNTS THAT MAY BE DETERMINED BY THE SECRETARY OF LABOR DUE TO EMPLOYEES OF RESPONDENT FOR UNDERPAYMENT OF WAGES WHILE EMPLOYED IN PERFORMANCE OF SAID GOVERNMENT CONTRACT, THE PROCEEDINGS INSOFAR AS ANY OTHER ALLEGATIONS OF VIOLATION CONTAINED IN SAID COMPLAINT ARE HEREBY DISCONTINUED AND THE CASE MARKED CLOSED, SUBJECT, OF COURSE, TO BE REOPENED UPON THE PRESENTATION OF FURTHER CLAIMS BY EMPLOYEES.' ( ITALICS SUPPLIED.)

SECTION 2 OF THE PUBLIC CONTRACTS ACT (49 STAT. 2036) WHICH PROVIDES THE METHOD OF ENFORCEMENT OF SAID ACT, IS AS FOLLOWS:

"THAT ANY BREACH OR VIOLATION OF ANY OF THE REPRESENTATIONS AND STIPULATIONS IN ANY CONTRACT FOR THE PURPOSES SET FORTH IN SECTION 1 HEREOF SHALL RENDER THE PARTY RESPONSIBLE THEREFOR LIABLE TO THE UNITED STATES OF AMERICA FOR LIQUIDATED DAMAGES, IN ADDITION TO DAMAGES FOR ANY OTHER BREACH OF SUCH CONTRACT, THE SUM OF $10 PER DAY FOR EACH MALE PERSON UNDER SIXTEEN YEARS OF AGE OR EACH FEMALE PERSON UNDER EIGHTEEN YEARS OF AGE, OR EACH CONVICT LABORER KNOWINGLY EMPLOYED IN THE PERFORMANCE OF SUCH CONTRACT, AND A SUM EQUAL TO THE AMOUNT OF ANY DEDUCTIONS, REBATES, REFUNDS, OR UNDERPAYMENT OF WAGES DUE TO ANY EMPLOYEE ENGAGED IN THE PERFORMANCE OF SUCH CONTRACT; AND, IN ADDITION, THE AGENCY OF THE UNITED STATES ENTERING INTO SUCH CONTRACT SHALL HAVE THE RIGHT TO CANCEL SAME AND TO MAKE OPEN-MARKET PURCHASES OR ENTER INTO OTHER CONTRACTS FOR THE COMPLETION OF THE ORIGINAL CONTRACT, CHARGING ANY ADDITIONAL COST TO THE ORIGINAL CONTRACTOR. ANY SUMS OF MONEY DUE TO THE UNITED STATES OF AMERICA BY REASON OF ANY VIOLATION OF ANY OF THE REPRESENTATIONS AND STIPULATIONS OF SAID CONTRACT SET FORTH IN SECTION 1 HEREOF MAY BE WITHHELD FROM ANY AMOUNTS DUE ON ANY SUCH CONTRACTS OR MAY BE RECOVERED IN SUITS BROUGHT IN THE NAME OF THE UNITED STATES OF AMERICA BY THE ATTORNEY GENERAL THEREOF. ALL SUMS WITHHELD OR RECOVERED AS DEDUCTIONS, REBATES, REFUNDS, OR UNDERPAYMENTS OF WAGES SHALL BE HELD IN A SPECIAL DEPOSIT ACCOUNT AND SHALL BE PAID, ON ORDER OF THE SECRETARY OF LABOR, DIRECTLY TO THE EMPLOYEES WHO HAVE BEEN PAID LESS THAN MINIMUM RATES OF PAY AS SET FORTH IN SUCH CONTRACTS AND ON WHOSE ACCOUNT SUCH SUMS WERE WITHHELD OR RECOVERED: PROVIDED, THAT NO CLAIMS BY EMPLOYEES FOR SUCH PAYMENTS SHALL BE ENTERTAINED UNLESS MADE WITHIN ONE YEAR FROM THE DATE OF ACTUAL NOTICE TO THE CONTRACTOR OF THE WITHHOLDING OR RECOVERY OF SUCH SUMS BY THE UNITED STATES OF AMERICA.'

THE ORDER AND DECISION OF THE ADMINISTRATOR HEREINBEFORE SET OUT LIMITED THE PENALTY TO BE IMPOSED UPON THE COMPANY FOR VIOLATION OF THIS ACT TO A PAYMENT TO THE EMPLOYEES OF SAID COMPANY FOR SUCH OVERTIME AS THEY WORKED IN PERFORMANCE OF THE SAID CONTRACT. THE DECISION OF THE ADMINISTRATOR EXPRESSLY SETS FORTH AND EARMARKS THE SAID SUM OF $4,800 AS A FUND TO BE USED IN ITS ENTIRETY FOR THE PAYMENT OF SUCH OVERTIME, AND RECITES THAT IN THE EVENT THE AMOUNT OF $4,800 SHOULD NOT BE SUFFICIENT ANY ADDITIONAL SUM FOUND BY THE GOVERNMENT TO BE DUE THE COMPANY'S EMPLOYEES SHOULD BE PAID IN ADDITION TO THE SAID $4,800. THE ORDER AFORESAID, AFTER RECITING THAT THE VIOLATION OF THE ACT WAS INADVERTENT ON THE PART OF THE COMPANY, ORDERED AND ADJUDGED THAT THE COMPLAINT AGAINST THE COMPANY BE AND THE SAME WAS THEREBY DISMISSED. THE GOVERNMENT HAVING WAIVED ITS RIGHT TO BREACH THE CONTRACT AND ITS RIGHT TO ASSESS LIQUIDATED DAMAGES AGAINST THE COMPANY FOR THE EMPLOYMENT OF FEMALE EMPLOYEES UNDER 18 YEARS OF AGE, CONFINED ITSELF IN ITS PROSECUTION OF THE COMPANY TO ITS LIABILITY TO ITS EMPLOYEES FOR OVERTIME WORK. WE THEREFORE ARE ONLY CONCERNED WITH THIS PORTION OF SECTION 2, SUPRA:

"ANY SUMS OF MONEY DUE TO THE UNITED STATES OF AMERICA BY REASON OF ANY VIOLATION OF ANY OF THE REPRESENTATIONS AND STIPULATIONS OF SAID CONTRACT SET FORTH IN SECTION 1 HEREOF MAY BE WITHHELD FROM ANY AMOUNTS DUE ON ANY SUCH CONTRACTS OR MAY BE RECOVERED IN SUITS BROUGHT IN THE NAME OF THE UNITED STATES OF AMERICA BY THE ATTORNEY GENERAL THEREOF. ALL SUMS WITHHELD OR RECOVERED AS DEDUCTIONS, REBATES, REFUNDS, OR UNDERPAYMENTS OF WAGES SHALL BE HELD IN A SPECIAL DEPOSIT ACCOUNT AND SHALL BE PAID, ON ORDER OF THE SECRETARY OF LABOR, DIRECTLY TO THE EMPLOYEES WHO HAVE BEEN PAID LESS THAN MINIMUM RATES OF PAY AS SET FORTH IN SUCH CONTRACTS AND ON WHOSE ACCOUNT SUCH SUMS WERE WITHHELD OR RECOVERED: PROVIDED, THAT NO CLAIMS BY EMPLOYEES FOR SUCH PAYMENTS SHALL BE ENTERTAINED UNLESS MADE WITHIN ONE YEAR FROM THE DATE OF ACTUAL NOTICE TO THE CONTRACTOR OF THE WITHHOLDING OR RECOVERY OF SUCH SUMS BY THE UNITED STATES OF AMERICA.'

THIS SECTION SPECIFICALLY STATES THAT SUMS COLLECTED FROM THE VIOLATING COMPANY FOR UNDERPAYMENT OF WAGES SHALL BE HELD IN A SPECIAL DEPOSIT ACCOUNT SEPARATE AND APART FROM ANY OTHER FUNDS OF THE UNITED STATES GOVERNMENT FOR A SPECIFIC PURPOSE, THAT IS, TO BE PAID DIRECTLY TO THE EMPLOYEES WHO HAVE BEEN PAID LESS THAN THE MINIMUM WAGE AS SET FORTH IN THE CONTRACT AND ONE WHOSE ACCOUNT SUCH FUNDS WERE WITHHELD OR RECOVERED. CERTAINLY THEN AS BETWEEN THE EMPLOYEE AND THE SECRETARY OF LABOR THE SECRETARY COLLECTS THE MONEY FOR AND IN BEHALF OF THE EMPLOYEE AS A TRUSTEE FOR THE BENEFIT OF SUCH EMPLOYEES. THIS SECTION ALSO IMPOSES A STATUTE OF LIMITATION REQUIRING SAID EMPLOYEES TO FILE THEIR CLAIMS WITHIN ONE YEAR. IF IN THIS CASE THE GOVERNMENT HAD WITHHELD SAID SUM OF $4,800 FROM THE CONTRACT PRICE, LEAVING THAT AMOUNT DUE TO THE EMPLOYEES (UPON WHOSE ACCOUNTS SUCH SUMS WERE WITHHELD) AND AFTER THE PERIOD OF ONE YEAR HAD ELAPSED FINDING THE SUM OF $1,205.70 STILL REMAINING IN SAID ACCOUNT, THE GOVERNMENT WOULD BE COMPELLED TO PAY THAT SUM TO THE COMPANY IN ORDER TO COMPLETE THE PAYMENT OF THE CONTRACT PRICE FOR THE MERCHANDISE. THE FILING, THEREFORE, OF THE EMPLOYEES' CLAIMS WIHIN THE ONE YEAR PERIOD, DETERMINES THE AMOUNT OF LIABILITY OF THE COMPANY TO ITS EMPLOYEES FOR UNDERPAYMENT OF WAGES.

THE GOVERNMENT CANNOT RETAIN THIS SUM ON THE THEORY THAT IT WAS AN AGREEMENT OF COMPROMISE OF THE COMPANY'S LIABILITY, FOR THE DECISION SPECIFICALLY RECITES THAT IF THE AMOUNT DUE TO ITS EMPLOYEES SHOULD EXCEED THE SUM OF $4,800 THEN IT, THE COMPANY, SHOULD BE COMPELLED TO PAY SUCH ADDITIONAL AMOUNT. IT IS APPARENT, THEREFORE, THAT THE COMPANY WAS NOT RELIEVED OF ANY OF ITS LIABILITY TO ITS EMPLOYEES BY REASON OF THIS PAYMENT.

THE GOVERNMENT COULD HAVE EXTRACTED PAYMENTS OF DAMAGES FROM THE COMPANY DIRECTLY TO THE UNITED STATES, AND THE ACT HAVING RECITED THE EXACT MANNER IN WHICH SUCH DAMAGES SHOULD ACCRUE AND BE ASSESSED THEY CANNOT ACCRUE OR BE ASSESSED IN ANY OTHER MANNER. THIS THE GOVERNMENT ELECTED NOT TO DO PRESUMABLY UPON THE THEORY AS OUTLINED IN THE ORDER THAT SUCH VIOLATION WAS INADVERTENT AND THAT UNDER THESE CIRCUMSTANCES THE EQUITABLE MANNER IN WHICH TO HANDLE THE MATTER WAS TO EXACT PAYMENT OF SUCH WAGES AS WERE DUE ITS EMPLOYEES, WHICH IS THE INTENT OF THE ACT. I DO NOT BELIEVE AS A MATTER OF POLICY THAT THIS COMPANY SHOULD BE PENALIZED FOR PAYING THE AMOUNT THAT BOTH IT AND THE GOVERNMENT THOUGHT TO BE DUE AT THE OUTSET OF THIS MATTER, INSTEAD OF PAYING AN EXACT FIGURE AT ITS TERMINATION. TO DO SO WOULD VIOLATE THE SPIRIT AND THE LETTER OF THE AGREEMENT ENTERED INTO BY THE ATTORNEY FOR THE COMPANY AND THE REPRESENTATIVES OF THE GOVERNMENT AT THE TIME THE ORDER WAS AGREED, ENTERED, AND AFTERWARDS CONFIRMED BY THE DECISION OF THE ADMINISTRATOR.

I AM, THEREFORE, OF THE OPINION IN THIS PARTICULAR CASE AND UNDER THESE CIRCUMSTANCES THAT THE SUM THE COMPANY IS LEGALLY ACCOUNTABLE FOR TO ITS EMPLOYEES FOR UNDERPAYMENT OF WAGES IS $3,594.30, THE AMOUNT FILED FOR BY ITS EMPLOYEES WITHIN THE PERIOD OF LIMITATION, AND THAT THE RESIDUE IN THE SUM OF $1,205.70 SHOULD BE REFUNDED TO THE BLUE RIDGE OVERALL COMPANY THROUGH MORRIS L. MASINTER, ITS ATTORNEY OF RECORD.

THIS OPINION CONCLUDING THAT THE BALANCE OF $1,205.70 SHOULD BE REFUNDED TO THE CONTRACTOR APPEARS TO OVERLOOK ONE IMPORTANT FEATURE OF THE DECISION OF THE ADMINISTRATOR OF THE PUBLIC CONTRACTS DIVISION DATED OCTOBER 12, 1937, WHEREIN IT IS DEFINITELY DETERMINED THAT "THE SUM OF $4,800.00 IS DUE AND UNPAID TO EMPLOYEES OF SAID RESPONDENT COMPANY FOR OVERTIME.' SUCH DETERMINATION BY THE ADMINISTRATOR TAKEN TOGETHER WITH THE NEXT PARAGRAPH OF SAID DECISION THAT IN THE EVENT THE AMOUNT IN QUESTION SHOULD NOT BE SUFFICIENT TO PAY THE CLAIMS OF EMPLOYEES, THE COMPANY WOULD BE REQUIRED TO PAY SUCH ADDITIONAL AMOUNT AS MIGHT "BE DETERMINED BY THE SECRETARY OF LABOR DUE TO EMPLOYEES" OF THE COMPANY, MUST BE CONSIDERED AS A DEFINITE FINDING OR DETERMINATION THAT AT LEAST THE SUM OF $4,800 WAS "DUE AND UNPAID TO EMPLOYEES OF SAID RESPONDENT COMPANY FOR OVERTIME WORKED.' THAT FACT BEING THUS ESTABLISHED, THE FACT THAT ALL EMPLOYEES DID NOT APPLY FOR THE WAGES DUE THEM WITHIN THE TIME ALLOWED BY LAW IS NOT A MATTER WHICH SHOULD CONCERN THE COMPANY OR GIVE RISE TO A RIGHT IN ITS FAVOR FOR A REFUND OF THE BALANCE NOT PAID THE EMPLOYEES. ON THE CONTRARY, IT WOULD APPEAR ON THE FACTS AS PRESENTED, THAT THE BALANCE OF $1,205.70 IS FOR DISPOSITION AS STATED IN MY DECISION OF JUNE 30, 1939, A- 44009 TO YOU; THAT IS TO SAY, SAID AMOUNT SHOULD BE DEPOSITED AND COVERED INTO THE TREASURY OF THE UNITED STATES AS A MISCELLANEOUS RECEIPT UNDER THE RECEIPT ACCOUNT "2435--- VIOLATIONS, PUBLIC CONTRACTS ACT.'