A-23218, JUNE 8, 1928, 7 COMP. GEN. 778

A-23218: Jun 8, 1928

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TO BE PAID TO POSTAL EMPLOYEES FOR NIGHT WORK IS TO BE APPLIED TO OVERTIME WORK AT NIGHT THAT IS IN EXCESS OF 8 HOURS. IS NOT SUBJECT TO RETIREMENT DEDUCTIONS. SUBMIT FOR DECISION THREE QUESTIONS PRESENTED AS FOLLOWS: (1) IT IS UNDERSTOOD THAT THE HOURLY PAY WILL BE COMPUTED IN PURSUANCE OF THE ACT OF MARCH 4. IS THIS CORRECT? (2) IT IS UNDERSTOOD THAT THE PAYMENT OF 10 PERCENT EXTRA FOR NIGHT WORK IS IN THE NATURE OF A BONUS AND THAT IT IS ADDED TO THE HOURLY PAY OF EMPLOYEES BASED UPON THEIR SALARIES AS FIXED BY LAW. THAT WHERE EMPLOYEES ON NIGHT WORK ARE EMPLOYED OVERTIME. FOR WHICH THEY ARE PAID ON THE BASIS OF THEIR ANNUAL PAY. THE 10 PERCENT BONUS FOR NIGHT WORK IS BASED ON THE PAY PER HOUR FOR SUCH OVERTIME OCCURRING AT NIGHT.

A-23218, JUNE 8, 1928, 7 COMP. GEN. 778

POSTAL EMPLOYEES - EXTRA PAY FOR NIGHT WORK UNDER THE ACT OF MAY 24, 1928, 45 STAT. 725, PROVIDING FOR PAYMENT TO POSTAL EMPLOYEES OF EXTRA PAY FOR NIGHT WORK AT THE RATE OF 10 PERCENT OF THEIR HOURLY PAY PER HOUR, THE "HOURLY PAY" OF ALL POSTAL EMPLOYEES AFFECTED BY THE ACT, EXCEPT CLERKS IN THE RAILWAY MAIL SERVICE, SHOULD BE COMPUTED IN ACCORDANCE WITH THE ACT OF MARCH 4, 1911, 36 STAT. 1339, ON THE BASIS OF 365 DAYS PER ANNUM, AND THE "HOURLY PAY" OF CLERKS IN THE RAILWAY MAIL SERVICE SHOULD BE COMPUTED IN ACCORDANCE WITH THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1063, ON THE BASIS OF 306 DAYS PER ANNUM. THE 10 PERCENT EXTRA PAY AUTHORIZED BY THE ACT OF MAY 24, 1928, 45 STAT. 725, TO BE PAID TO POSTAL EMPLOYEES FOR NIGHT WORK IS TO BE APPLIED TO OVERTIME WORK AT NIGHT THAT IS IN EXCESS OF 8 HOURS, ON THE BASIS OF 306 DAYS PER ANNUM, FOR ALL POSTAL EMPLOYEES ENTITLED TO BOTH OVERTIME PAY AND EXTRA PAY FOR NIGHT WORK. THE EXTRA PAY FOR NIGHT WORK AUTHORIZED FOR POSTAL EMPLOYEES BY THE ACT OF MAY 24, 1928, 45 STAT. 725, IS NOT SUBJECT TO RETIREMENT DEDUCTIONS.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, JUNE 8, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JUNE 1, 1928, IN WHICH YOU REFER TO THE ACT OF MAY 24, 1928, PROVIDING FOR THE PAYMENT OF EXTRA PAY FOR NIGHT SERVICE PERFORMED BY CERTAIN CLASSES OF EMPLOYEES IN THE POSTAL SERVICE, AND SUBMIT FOR DECISION THREE QUESTIONS PRESENTED AS FOLLOWS:

(1) IT IS UNDERSTOOD THAT THE HOURLY PAY WILL BE COMPUTED IN PURSUANCE OF THE ACT OF MARCH 4, 1911, PROVIDING THAT ANNUAL SALARIES SHALL BE DIVIDED INTO 12 DIFFERENT ANNUAL INSTALLMENTS, ONE OF WHICH SHALL BE THE PAY FOR EACH CALENDAR MONTH AND THAT IN MAKING PAYMENT FOR A FRACTIONAL PART OF ANY CALENDAR MONTH THERE SHALL BE PAID SUCH PROPORTION OF ONE OF SUCH INSTALLMENTS AS THE NUMBER OF DAYS IN THE FRACTIONAL PART OF THAT MONTH BEARS TO THE ACTUAL NUMBER OF DAYS IN THAT MONTH, THE HOURLY RATE OF PAY BEING DETERMINED BY DIVIDING THE DAILY RATE OF PAY BY 8. IS THIS CORRECT?

(2) IT IS UNDERSTOOD THAT THE PAYMENT OF 10 PERCENT EXTRA FOR NIGHT WORK IS IN THE NATURE OF A BONUS AND THAT IT IS ADDED TO THE HOURLY PAY OF EMPLOYEES BASED UPON THEIR SALARIES AS FIXED BY LAW, AND THAT WHERE EMPLOYEES ON NIGHT WORK ARE EMPLOYED OVERTIME, FOR WHICH THEY ARE PAID ON THE BASIS OF THEIR ANNUAL PAY, THE RATE PER HOUR BEING DETERMINED AS PROVIDED BY THE ACT OF FEBRUARY 28, 1925, BY DIVIDING THE ANNUAL SALARY BY 306 AND DIVIDING THE QUOTIENT THUS OBTAINED BY 8, THE 10 PERCENT BONUS FOR NIGHT WORK IS BASED ON THE PAY PER HOUR FOR SUCH OVERTIME OCCURRING AT NIGHT. IS THIS CORRECT?

(3) IT IS UNDERSTOOD THAT AS EXTRA PAY FOR NIGHT WORK IS IN THE NATURE OF A BONUS IT IS NOT SUBJECT TO THE DEDUCTION OF 3 1/2 PERCENT FOR THE RETIREMENT FUND. IS THIS CORRECT?

THE ACT OF MAY 24, 1928, PUBLIC NO. 496, 45 STAT. 725, PROVIDES AS FOLLOWS:

THAT AFTER JULY 1, 1928, SUPERVISORY EMPLOYEES, SPECIAL CLERKS, CLERKS, SUBSTITUTE CLERKS, WATCHMEN, MESSENGERS, LABORERS, AND EMPLOYEES IN THE MOTOR-VEHICLE SERVICE, IN FIRST AND SECOND CLASS POST OFFICES; CARRIERS AND SUBSTITUTE CARRIERS IN THE CITY DELIVERY SERVICE; AND RAILWAY POSTAL CLERKS, SUBSTITUTE RAILWAY POSTAL CLERKS, AND LABORERS IN THE RAILWAY MAIL SERVICE, WHO ARE REQUIRED TO PERFORM NIGHT WORK, SHALL BE PAID EXTRA FOR SUCH WORK AT THE RATE OF 10 PERCENTUM OF THEIR HOURLY PAY PER HOUR: PROVIDED, THAT NIGHT WORK IS DEFINED AS ANY WORK DONE BETWEEN THE HOURS OF SIX O-CLOCK POST MERIDIAN AND SIX O-CLOCK ANTEMERIDIAN.

SECTION 4 OF THE ACT OF MARCH 4, 1911, 36 STAT. 1339, PROVIDES AS FOLLOWS:

THAT AFTER JUNE THIRTIETH, NINETEEN HUNDRED AND ELEVEN, WHERE THE SALARY OR COMPENSATION OF ANY EMPLOYEE IN THE POSTAL SERVICE IS AT AN ANNUAL OR MONTHLY RATE, THE FOLLOWING RULES SHALL BE FOLLOWED IN COMPUTING THE AMOUNT DUE: AN ANNUAL SALARY OR COMPENSATION SHALL BE DIVIDED INTO TWELVE EQUAL INSTALLMENTS, ONE OF WHICH SHALL BE THE PAY FOR EACH CALENDAR MONTH; AND IN MAKING PAYMENT FOR A FRACTIONAL PART OF ANY CALENDAR MONTH THERE SHALL BE PAID SUCH PROPORTION OF ONE OF SUCH INSTALLMENTS, OR OF THE AMOUNT OF THE MONTHLY SALARY OR COMPENSATION, AS THE NUMBER OF DAYS IN THE FRACTIONAL PART OF THAT MONTH BEARS TO THE ACTUAL NUMBER OF DAYS IN THAT MONTH.

SECTION 4 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1059, AUTHORIZES OVERTIME FOR CLERKS AND LABORERS IN FIRST AND SECOND CLASS POST OFFICES AND LETTER CARRIERS IN THE CITY DELIVERY SERVICE IN THE FOLLOWING TERMS:

* * * PROVIDED FURTHER, THAT HEREAFTER SPECIAL CLERKS, CLERKS, AND LABORERS, IN THE FIRST AND SECOND CLASS POST OFFICES AND CARRIERS IN THE CITY DELIVERY SERVICE SHALL BE REQUIRED TO WORK NOT MORE THAN EIGHT HOURS A DAY: PROVIDED FURTHER, THAT THE EIGHT HOURS OF SERVICE SHALL NOT EXTEND OVER A LONGER PERIOD THAN TEN CONSECUTIVE HOURS, AND THE SCHEDULES OF DUTY OF THE EMPLOYEES SHALL BE REGULATED ACCORDINGLY: PROVIDED FURTHER, THAT IN CASES OF EMERGENCY, OR IF THE NEEDS OF THE SERVICE REQUIRE, AND IT IS NOT PRACTICABLE TO EMPLOY SUBSTITUTES, SPECIAL CLERKS, CLERKS, AND LABORERS, IN FIRST AND SECOND CLASS POST OFFICES AND CARRIERS IN THE CITY DELIVERY SERVICE CAN BE REQUIRED TO WORK IN EXCESS OF EIGHT HOURS PER DAY, AND FOR SUCH OVERTIME SERVICE THEY SHALL BE PAID ON THE BASIS OF THE ANNUAL PAY RECEIVED BY SUCH EMPLOYEES: AND PROVIDED FURTHER, THAT IN COMPUTING THE COMPENSATION FOR SUCH OVERTIME, THE ANNUAL SALARY OR COMPENSATION FOR SUCH EMPLOYEES SHALL BE DIVIDED BY THREE HUNDRED AND SIX, THE NUMBER OF WORKING DAYS IN THE YEAR LESS ALL SUNDAYS AND LEGAL HOLIDAYS ENUMERATED IN THE ACT OF JULY 28, 1916; THE QUOTIENT THUS OBTAINED WILL BE THE DAILY COMPENSATION WHICH DIVIDED BY EIGHT WILL GIVE THE HOURLY COMPENSATION FOR SUCH OVERTIME SERVICE: * * *.

A SIMILAR PROVISION APPEARS IN SECTION 6 GOVERNING OVERTIME OF EMPLOYEES IN THE MOTOR-VEHICLE SERVICE, 43 STAT. 1061.

THE SAME ACT, 43 STAT. 1063, PROVIDES THE FOLLOWING WITH RESPECT TO THE CLERKS IN THE RAILWAY MAIL SERVICE:

* * * PROVIDED, THAT SERVICE OF CLERKS SHALL BE BASED ON AN AVERAGE OF NOT EXCEEDING EIGHT HOURS DAILY FOR THREE HUNDRED AND SIXTY DAYS PER ANNUM, INCLUDING PROPER ALLOWANCES FOR ALL SERVICE REQUIRED ON LAY OFF PERIODS. CLERKS REQUIRED TO PERFORM SERVICE IN EXCESS OF EIGHT HOURS DAILY, AS HEREIN PROVIDED, SHALL BE PAID IN CASH AT THE ANNUAL RATE OF PAY OR GRANTED COMPENSATORY TIME AT THEIR OPTION FOR SUCH OVERTIME. RAILWAY POSTAL CLERKS ASSIGNED TO TERMINAL RAILWAY POST OFFICES AND TRANSFER OFFICES AND LABORERS IN THE RAILWAY MAIL SERVICE SHALL BE REQUIRED TO WORK NOT MORE THAN EIGHT HOURS A DAY, AND THAT THE EIGHT HOURS OF SERVICE SHALL NOT EXTEND OVER A LONGER PERIOD THAN TEN CONSECUTIVE HOURS, AND THAT IN CASES OF EMERGENCY, OR IF THE NEEDS OF THE SERVICE REQUIRE, THEY MAY BE REQUIRED TO WORK IN EXCESS OF EIGHT HOURS A DAY, AND FOR SUCH ADDITIONAL SERVICE THEY SHALL BE PAID IN PROPORTION TO THEIR SALARIES AS FIXED BY LAW.

SEE ALSO SIMILAR PROVISION IN THE PRIOR STATUTE OF JUNE 5, 1920, 41 STAT. 1053.

IT WILL BE NOTED THAT AS TO ALL POSTAL EMPLOYEES AFFECTED BY THE ABOVE- QUOTED PROVISIONS OF LAW, EXCEPT CLERKS IN THE RAILWAY MAIL SERVICE, ONLY OVERTIME PAY IS TO BE COMPUTED ON THE BASIS OF 306 DAYS PER ANNUM. THE REGULAR COMPENSATION OF ALL POSTAL EMPLOYEES, EXCEPT CLERKS IN THE RAILWAY MAIL SERVICE, IS COMPUTED IN ACCORDANCE WITH THE ACT OF MARCH 4, 1911, SUPRA, AND THE HOURLY RATE WITHIN THE MEANING OF THE ACT OF MAY 24, 1928, WOULD BE COMPUTED ACCORDINGLY. BUT AS TO CLERKS IN THE RAILWAY MAIL SERVICE BOTH THE REGULAR COMPENSATION AND OVERTIME PAY ARE REQUIRED TO BE COMPUTED ON THE BASIS OF 306 DAYS PER ANNUM. IN THIS CONNECTION REFERENCE IS MADE TO DECISION OF THIS OFFICE DATED MARCH 11, 1922, 1 COMP. GEN. 498, WHEREIN IT IS STATED:

* * * THE PROVISION OF LAW HEREINBEFORE QUOTED PLACING THE SERVICE OF RAILWAY POSTAL CLERKS ON A BASIS OF NOT EXCEEDING 8 HOURS DAILY FOR 306 DAYS PER ANNUM SUPERSEDES THE PROVISION IN SECTION 4 OF THE ACT OF MARCH 4, 1911, 36 STAT. 1339, RELATIVE TO METHOD OF COMPUTING SALARY OR COMPENSATION, IN SO FAR AS RAILWAY POSTAL CLERKS ARE CONCERNED, AND MUST BE CONSTRUED TO AUTHORIZE PAYMENT TO SUCH CLERKS OF REGULAR COMPENSATION AT THE RATE OF 1/306 OF THE ANNUAL RATE FOR EACH DAY'S SERVICE--- THE DAY TO CONSIST OF 8 HOURS OR LESS AS HEREINBEFORE INDICATED. THIS OBVIATES THE NECESSITY OF ANY CONVERSION FROM A 306 DAY TO A 365 DAY BASIS. (SEE ALSO 6 COMP. GEN. 618.)

YOUR QUESTIONS ARE ANSWERED AS FOLLOWS:

(1) THIS STATEMENT IS CORRECT WITH RESPECT TO ALL POSTAL EMPLOYEES AFFECTED BY THE ACT OF MAY 24, 1928, EXCEPT CLERKS IN THE RAILWAY MAIL SERVICE. THE HOURLY PAY FOR CLERKS IN THE RAILWAY MAIL SERVICE SHOULD BE COMPUTED IN ACCORDANCE WITH THE ACT OF FEBRUARY 28, 1925, SUPRA.

(2) IF THIS STATEMENT MEANS THAT THE 10 PERCENT INCREASE FOR NIGHT WORK IS TO BE APPLIED TO OVERTIME WORK AT NIGHT, THAT IS, IN EXCESS OF 8 HOURS, ON THE BASIS OF 306 DAYS PER ANNUM, RATHER THAN ON THE BASIS OF 365 DAYS PER ANNUM, IT IS CORRECT AND IS APPLICABLE TO ALL POSTAL EMPLOYEES ENTITLED TO BOTH OVERTIME PAY AND EXTRA PAY FOR NIGHT WORK UNDER THE ACT OF MAY 24, 1928.

(3) THIS STATEMENT IS CORRECT. SEE SECTION 4, 2D PARAGRAPH, OF THE CIVIL RETIREMENT ACT AS AMENDED BY THE ACT OF JULY 3, 1926, 44 STAT. 907, WHICH PROVIDES AS FOLLOWS:

THE TERM "BASIC SALARY, PAY, OR COMPENSATION," WHEREVER USED IN THIS ACT SHALL BE SO CONSTRUED AS TO EXCLUDE FROM THE OPERATION OF THE ACT ALL BONUSES, ALLOWANCES, OVERTIME PAY, OR SALARY, PAY, OR COMPENSATION GIVEN IN ADDITION TO THE BASE PAY OF THE POSITION AS FIXED BY LAW OR REGULATION.

SEE ALSO SIMILAR PROVISION IN THE ORIGINAL CIVIL RETIREMENT ACT OF MAY 22, 1920, 41 STAT. 615, AND CONSTRUCTION THEREOF, 27 COMP. DEC. 152; 3 COMP. GEN. 210; 4 ID. 875; 5 ID. 139.

YOUR ATTENTION IS INVITED TO THE PROVISION THAT THE ACT OF MAY 24, 1928, IS APPLICABLE "AFTER JULY 1, 1928.' THEREFORE, THE ADDITIONAL COMPENSATION FOR NIGHT WORK AUTHORIZED BY THE ACT MAY NOT BE PAID FOR THE HOURS FROM 6 O-CLOCK POST MERIDIAN, JULY 1, 1928, TO MIDNIGHT OF THAT DATE.