B-195921 L/M, OCT 20, 1982

B-195921 L/M, OCT 20, 1982

PRECIS-UNAVAILABLE

STEVE SYMMS, UNITED STATES SENATE:

THIS REFERS TO YOUR LETTER OF AUGUST 10, 1982, IN WHICH YOU ASKED FOR OUR COMMENTS ON A LETTER TO YOU FROM THE ADMINISTRATOR OF THE FOOD SAFETY AND INSPECTION SERVICE (FSIS), UNITED STATES DEPARTMENT OF AGRICULTURE. YOU ASK US TO ADDRESS SPECIFICALLY THE ADMINISTRATOR'S STATEMENT THAT DECISIONS HANDED DOWN BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM) AND BY THE GENERAL ACCOUNTING OFFICE (GAO) NECESSITATED THE FSIS PROPOSAL TO ALLOW OVERTIME COMPENSATION TO POULTRY AND MEAT SLAUGHTER INSPECTORS.

THE ADMINISTRATOR OF FSIS IS REFERRING TO OUR DECISIONS IN DEPARTMENT OF AGRICULTURE MEAT INSPECTORS, B-195921, JULY 31, 1981, 60 COMP.GEN. 611, AND NANCY C. JONES, B-196571, AUGUST 17, 1981, AND TO THE OPM DECISIONS ON WHICH OUR DECISIONS WERE BASED. OUR MEAT INSPECTORS DECISION WAS ISSUED IN RESPONSE TO THE SPECIFIC WRITTEN REQUEST OF THE SECRETARY OF AGRICULTURE THAT THE COMPTROLLER GENERAL RULE ON WHETHER RED MEAT INSPECTORS WHO SPENT TIME IN CLOTHES-CHANGING AND CLEANUP ACTIVITIES WERE ENGAGED IN COMPENSABLE WORK UNDER FLSA. THE SECRETARY OF AGRICULTURE WAS CONTESTING OPM'S DECISION THAT CERTAIN RED MEAT INSPECTORS ENGAGED IN COMPENSABLE WORK WHILE CHANGING CLOTHES AND PERFORMING CLEANUP ACTIVITIES. OUR DECISION IN JONES WAS IN RESPONSE TO A REQUEST FROM THE DEPARTMENT OF AGRICULTURE CONCERNING A FOOD INSPECTOR WHO PERFORMED DUTIES SIMILAR TO THOSE OF RED MEAT INSPECTORS.

IN ORDER TO ANSWER THE QUESTION RAISED IN YOUR CORRESPONDENCE, WE WILL FIRST DESCRIBE THE JURISDICTION OF GAO AND OPM TO HANDLE THIS MATTER. WILL THEN DISCUSS THE MERITS OF THE DECISIONS INVOLVED.

JURISDICTION OVER FAIR LABOR STANDARDS ACT CLAIMS

SECTION 6 OF THE FAIR LABOR STANDARDS AMENDMENTS OF 1974, PUBLIC LAW 93-259, APPROVED APRIL 8, 1974, 88 STAT. 55, EXPANDED COVERAGE OF THE FLSA TO INCLUDE FEDERAL EMPLOYEES, EFFECTIVE MAY 1, 1974. SECTION 6 ALSO AUTHORIZED THE CIVIL SERVICE COMMISSION, NOW OPM, "TO ADMINISTER THE PROVISIONS OF THIS ACT WITH RESPECT TO ANY INDIVIDUAL EMPLOYED BY THE UNITED STATES," WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE. THIS AUTHORIZATION, AS CODIFIED, IS NOW CONTAINED IN 29 U.S.C. SEC. 204(F) (1976).

HOWEVER, WHILE OPM IS GIVEN THE AUTHORITY TO ADMINISTER THE FLSA WITH RESPECT TO MOST FEDERAL EMPLOYEES, IT HAS NOT BEEN GIVEN THE AUTHORITY TO ADJUDICATE CLAIMS OR SETTLE ACCOUNTS UNDER THE FLSA. THAT AUTHORITY REMAINS WITH THE GAO AS GAO HAS BEEN GIVEN THE COMPREHENSIVE JURISDICTION TO SETTLE CLAIMS MADE BY OR AGAINST THE UNITED STATES BY 31 U.S.C. SEC. 71 (1970). B-163450.12, SEPTEMBER 20, 1978. SECTION 71 STATES AS FOLLOWS:

"ALL CLAIMS AND DEMANDS WHATEVER BY THE GOVERNMENT OF THE UNITED STATES OR AGAINST IT, AND ALL ACCOUNTS WHATEVER IN WHICH THE GOVERNMENT OF THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR, SHALL BE SETTLED AND ADJUSTED IN THE GENERAL ACCOUNTING OFFICE."

SEE ALSO IN THIS CONNECTION 31 U.S.C. SEC. 74 WHICH STATES IN PART AS FOLLOWS:

"BALANCES CERTIFIED BY THE GENERAL ACCOUNTING OFFICE, UPON THE SETTLEMENT OF PUBLIC ACCOUNTS, SHALL BE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH OF THE GOVERNMENT ***."

AS TO THE EFFECT THE DECISIONS OF THIS OFFICE MAY HAVE, IT HAS LONG BEEN RECOGNIZED THAT DECISIONS OF THE COMPTROLLER GENERAL ON MATTERS INVOLVING THE PAYMENT OF GOVERNMENT FUNDS ARE FINAL AND CONCLUSIVE AND ARE BINDING ON THE EXECUTIVE BRANCH. 54 COMP.GEN. 921 (1975). ACCORDINGLY, THIS OFFICE CLEARLY HAD JURISDICTION TO RENDER A DECISION WHETHER THE RED MEAT INSPECTORS WERE ENTITLED TO OVERTIME COMPENSATION UNDER FLSA, AND THE DEPARTMENT OF AGRICULTURE IS REQUIRED TO ACT IN ACCORDANCE WITH THE DECISION.

MERITS OF GAO DECISIONS

OUR DECISIONS IN MEAT INSPECTORS AND JONES STATE AT LENGTH THE FACTS ON WHICH FIRST OPM AND THEN GAO BASED THEIR DECISIONS, SO THE FACTS NEED NOT BE RESTATED HERE. WE THINK OUR DECISIONS WERE CORRECT AND IN FULL CONFORMANCE WITH THE LAW. WE STATED IN OUR DECISION IN MEAT INSPECTORS THAT GIVEN THE FACT THAT THESE MEAT INSPECTORS BECAME EXTENSIVELY SOILED OR CONTAMINATED AND GIVEN THE RIGOROUS SANITATION PROCEDURES IMPOSED ON THE MEAT INSPECTORS BY THE EMPLOYING AGENCY, THE CLOTHES-CHANGING AND CLEANUP ACTIVITIES ARE NOT MERELY FOR THE CONVENIENCE OF THE MEAT INSPECTORS. WE NOTE THAT THE DEPARTMENT OF LABOR, WHICH HAS LONG ADMINISTERED THE FLSA AS TO THE PRIVATE SECTOR, HAS ALSO SUPPORTED OPM'S FINDINGS IN THIS CASE. WE ARE AWARE OF NO REASON FOR US TO CHANGE OUR DECISIONS.

WE WOULD ALSO NOTE, HOWEVER, THAT OUR DECISION IN MEAT INSPECTORS WAS LIMITED TO THE FACTS PRESENTED IN THAT CASE. WE STATED IN OUR DECISION IN MEAT INSPECTORS ON PAGE 13 THAT WHETHER CLOTHES-CHANGING AND CLEANUP ACTIVITIES ARE HOURS OF WORK UNDER FLSA DEPENDS NOT ON THE POSITION CLASSIFICATION STANDARDS BUT ON THE ACTUAL CONDITIONS OF EMPLOYMENT. OTHER INSPECTORS CHANGE CLOTHES OR CLEANUP UNDER DIFFERENT CIRCUMSTANCES AND FOR THEIR OWN CONVENIENCE, THEIR ACTIVITIES MIGHT NOT BE COMPENSABLE UNDER FLSA. SINCE FSIS HAS PROMULGATED A RULE REQUIRING OVERTIME PAYMENTS FOR CLOTHES-CHANGING AND CLEANUP ACTIVITIES ON ACCOUNT OF OUR MEAT INSPECTORS DECISION, WE PRESUME IT HAS NECESSARILY FOUND THAT ALL THOSE AFFECTED BY THE RULE ARE SIMILARLY SITUATED TO THOSE INSPECTORS WHO WERE THE SUBJECT OF OUR DECISION.

WE TRUST THE ABOVE SATISFACTORILY RESPONDS TO YOUR INQUIRY. COPIES OF CITED COMPTROLLER GENERAL DECISIONS ARE ENCLOSED FOR YOUR READY REFERENCE.