A-35235, FEBRUARY 20, 1931, 10 COMP. GEN. 379

A-35235: Feb 20, 1931

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WAS OPERATIVE TO PREVENT A DECREASE ONLY IN THE REGULAR RATE OF PAY OF CIVILIAN EMPLOYEES UNDER THE NAVAL ESTABLISHMENT WHOSE COMPENSATION WAS REQUIRED TO BE ADJUSTED FROM A PER DIEM TO A PER ANNUM BASIS. WHO ARE REGULARLY AND CONTINUOUSLY REQUIRED TO BE AVAILABLE FOR DUTY OUTSIDE THE HOURS PRESCRIBED BY THE NAVY DEPARTMENT FOR THEIR REGULAR SERVICE. MAY PROPERLY BE INCLUDED IN COMPUTING THE REGULAR PAY OF EMPLOYEES TO WHICH THE SAVING CLAUSE IS APPLICABLE AND THEIR PER ANNUM SALARY SHOULD BE FIXED ACCORDINGLY. EMPLOYEES UNDER THE NAVAL ESTABLISHMENT WHOSE SALARY RATES HAVE BEEN ADJUSTED FROM A PER DIEM TO A PER ANNUM BASIS UNDER THE TERMS OF THE BROOKHART SALARY ACT ARE NO LONGER ENTITLED TO ADDITIONAL COMPENSATION FOR OVERTIME.

A-35235, FEBRUARY 20, 1931, 10 COMP. GEN. 379

CLASSIFICATION OF CIVILIAN EMPLOYEES - BROOKHART SALARY ACT - NAVAL ESTABLISHMENT THE SAVING CLAUSE IN THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, WAS OPERATIVE TO PREVENT A DECREASE ONLY IN THE REGULAR RATE OF PAY OF CIVILIAN EMPLOYEES UNDER THE NAVAL ESTABLISHMENT WHOSE COMPENSATION WAS REQUIRED TO BE ADJUSTED FROM A PER DIEM TO A PER ANNUM BASIS, EXCLUSIVE OF ADDITIONAL PAY FOR OVERTIME, SUNDAY, OR HOLIDAY SERVICE, PERFORMED IN AN EMERGENCY OR BECAUSE OF UNUSUAL EXIGENCIES OF THE SERVICE, BUT AS TO EMPLOYEES, SUCH AS POLICEMEN, TELEPHONE OPERATORS, AND TELEGRAPH OPERATORS, WHO ARE REGULARLY AND CONTINUOUSLY REQUIRED TO BE AVAILABLE FOR DUTY OUTSIDE THE HOURS PRESCRIBED BY THE NAVY DEPARTMENT FOR THEIR REGULAR SERVICE, THE INCREASED RATES OF PAY FOR OVERTIME AND NIGHT SERVICE AND FOR SERVICE ON SUNDAYS AND HOLIDAYS RECEIVED DURING THE YEAR ENDED JULY 2, 1930, MAY PROPERLY BE INCLUDED IN COMPUTING THE REGULAR PAY OF EMPLOYEES TO WHICH THE SAVING CLAUSE IS APPLICABLE AND THEIR PER ANNUM SALARY SHOULD BE FIXED ACCORDINGLY. EMPLOYEES UNDER THE NAVAL ESTABLISHMENT WHOSE SALARY RATES HAVE BEEN ADJUSTED FROM A PER DIEM TO A PER ANNUM BASIS UNDER THE TERMS OF THE BROOKHART SALARY ACT ARE NO LONGER ENTITLED TO ADDITIONAL COMPENSATION FOR OVERTIME, SUNDAY, OR HOLIDAY WORK.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, FEBRUARY 20, 1931:

THERE HAS BEEN RECEIVED YOUR REQUEST OF FEBRUARY 3, 1931, FOR DECISION AS TO THE PROPER METHOD OF ADJUSTING THE PAY OF POLICEMEN, TELEPHONE OPERATORS, TELEGRAPH OPERATORS, AND OTHER EMPLOYEES UNDER THE NAVAL ESTABLISHMENT, IN GROUP 4-B, PERFORMING OVERTIME, SUNDAY, AND HOLIDAY WORK, FROM A PER DIEM TO A PER ANNUM BASIS UNDER THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1004, AS CONSTRUED BY THIS OFFICE IN DECISION OF NOVEMBER 13, 1930, 10 COMP. GEN. 216, WHICH HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

SECTION 2 OF THE ACT OF JULY 3, 1930, 46 STAT. 1005, CONSTITUTES THE ONLY STATUTORY AUTHORITY FOR FIXING THE SALARY RATES OF EMPLOYEES CARRIED UNDER GROUP 4-B, INCLUDING DRAFTING GROUPS, IN THE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES UNDER THE NAVAL ESTABLISHMENT, AND NOT LATER THAN JANUARY 1, 1931, THE SALARY RATES OF ALL SUCH EMPLOYEES ARE REQUIRED TO BE ADJUSTED FROM A PER DIEM TO AN ANNUAL BASIS AND WITHIN GRADES OR SALARY RANGES, AND AT THE SPECIFIC RATES, PRESCRIBED IN THE SCHEDULES APPEARING IN THE CLASSIFICATION ACT.

PURSUANT TO THIS DECISION THE NAVY DEPARTMENT ISSUED A CIRCULAR LETTER DATED DECEMBER 31, 1930, EFFECTIVE JANUARY 1, 1931, CLASSIFYING ALL EMPLOYEES IN GROUP 4-B COMING WITHIN THE TERMS OF THE BROOKHART SALARY ACT TO GRADES OR SALARY RANGES AND AT SALARY RATES ON AN ANNUAL BASIS, AS PRESCRIBED BY THE CLASSIFICATION ACT, AS AMENDED.

IN SO FAR AS HERE MATERIAL SAID CIRCULAR LETTER PROVIDED AS FOLLOWS:

2. EMPLOYEES IN GROUP IV (B) AND IN EXCEPTED POSITIONS LISTED IN PARAGRAPH 1 SHALL BE TENTATIVELY ALLOCATED TO THE SERVICE IN WHICH THEIR RESPECTIVE RATINGS APPEAR IN THE AMENDED SCHEDULE.

3. EMPLOYEES IN GROUP IV (B) AND IN EXCEPTED POSITIONS LISTED IN PARAGRAPH 1 SHALL BE TENTATIVELY ALLOCATED TO THE GRADE IN THEIR RESPECTIVE SERVICES IN WHICH THE CLASSIFICATION RATE NEXT HIGHER THAN THE PER ANNUM EQUIVALENT OF THEIR PRESENT SALARY RATE FIRST APPEARS, AND AT SUCH CLASSIFICATION RATE.--- EXAMPLE: CLERK, $6.02 PER DIEM (PER ANNUM EQUIVALENT, $1,884.26); NEXT HIGHER CLASSIFICATION RATE IN CAF SERVICE, $1,920, GRADE 3.

7. * * * EMPLOYEES SHALL NOT SUFFER A REDUCTION IN PAY, IN VIEW OF THE SAVING CLAUSE AGAINST REDUCTION IN COMPENSATION IN THE BROOKHART ACT.

12. EMPLOYEES WHOSE SALARY RATES ARE CONVERTED TO A PER ANNUM BASIS SHALL NOT BE PAID ANY ADDITIONAL PAY, OR OVERTIME, SUNDAY AND HOLIDAY RATES OF PAY. IN THIS CONNECTION ATTENTION IS INVITED TO PARAGRAPH 6 OF "INSTRUCTIONS.'

14. EMPLOYEES SHALL CONTINUE TO PERFORM SEVEN HOURS OR EIGHT HOURS WORK PER DAY, AS THE CASE MAY BE, IN ACCORDANCE WITH PARAGRAPH FOUR OF THE "INSTRUCTIONS," AS AMENDED HEREIN.

IN THE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES UNDER THE NAVAL ESTABLISHMENT, RATES OF PAY HAD BEEN BASED ON REGULAR DAY SERVICE OF 7 OR 8 HOURS BETWEEN CERTAIN HOURS, AND INCREASED RATES WERE PROVIDED FOR SERVICE AT OTHER TIME DURING THE 24, ON SUNDAYS AND ON HOLIDAYS. ADJUSTING SALARY RATES FROM A PER DIEM TO A PER ANNUM BASIS UNDER THE PROVISIONS OF SAID CIRCULAR LETTER THE NAVY DEPARTMENT HAS USED IN ALL CASES THE REGULAR PER DIEM RATES OF PAY FOR REGULAR SERVICE EXCLUSIVE OF INCREASED RATES OF PAY FOR OVERTIME, SUNDAY AND HOLIDAY SERVICE, WHICH ACTION HAS ACTUALLY CAUSED A REDUCTION IN THE ANNUAL RATE OF PAY OF EMPLOYEES OCCUPYING POSITIONS THE DUTIES AND RESPONSIBILITIES OF WHICH REQUIRE THEM REGULARLY TO WORK OVERTIME OR ON SUNDAYS AND HOLIDAYS, SUCH AS POLICEMEN, TELEPHONE OPERATORS, AND TELEGRAPH OPERATORS.

SECTION 1 OF THE BROOKHART SALARY ACT CONTAINS THE FOLLOWING PROVISO:

* * * PROVIDED FURTHER, THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO DECREASE THE PAY OF ANY PRESENT EMPLOYEE * * *.

THE DECISION OF NOVEMBER 13, 1930, SUPRA, HELD:

PARTICULAR ATTENTION IS INVITED TO THE SAVING CLAUSE AGAINST REDUCTIONS IN COMPENSATION, APPEARING IN THE LAST PROVISO TO PARAGRAPH FROM SECTION 1 OF THE BROOKHART SALARY ACT ABOVE QUOTED. A SIMILAR SAVING CLAUSE APPEARED IN THE WELCH ACT WHICH WAS HELD TO BE APPLICABLE TO THE FIELD SERVICE. 8 COMP. GEN. 154; ID. 279. OF COURSE, THE SAVING CLAUSE IN THE BROOKHART SALARY ACT WOULD BE EFFECTIVE ONLY FROM ITS DATE, TO WIT, JULY 3, 1930.

THIS SAVING CLAUSE AGAINST DECREASE IN "PAY" WAS ENACTED WITH PARTICULAR REFERENCE TO THE PER ANNUM RATES OF PAY PRESCRIBED IN THE CLASSIFICATION ACT, AND IT IS DOUBTFUL WHETHER THERE WAS CONSIDERED ITS APPLICATION IN CONNECTION WITH THE CONVERTING OF PER DIEM RATES TO PER ANNUM RATES, BUT, NEVERTHELESS, THE SPIRIT AND PURPOSE OF THE SAVING CLAUSE REQUIRE ITS APPLICATION IN THE PRESENT INSTANCE.

THE WORD "PAY" APPEARING IN SAID PROVISO MEANS THE REGULAR PAY OF AN EMPLOYEE AND DOES NOT INCLUDE INCREASED PAY FOR EXTRA DUTY OR FOR OVERTIME, SUNDAY AND HOLIDAY SERVICE PERFORMED IN AN EMERGENCY. 5 COMP. DEC. 241. THEREFORE, THE SAVING CLAUSE WAS OPERATIVE TO PREVENT A DECREASE ONLY IN THE REGULAR RATE OF PAY, EXCLUSIVE OF ADDITIONAL PAY FOR OVERTIME, SUNDAY, OR HOLIDAY SERVICE PERFORMED IN AN EMERGENCY, OR BECAUSE OF UNUSUAL EXIGENCIES OF THE SERVICE, OF THOSE EMPLOYEES OCCUPYING POSITIONS THE DUTIES AND RESPONSIBILITIES OF WHICH DO NOT REGULARLY AND CONTINUOUSLY REQUIRE THEM TO BE AVAILABLE FOR DUTY OUTSIDE THE HOURS PRESCRIBED BY THE NAVY DEPARTMENT FOR THEIR REGULAR SERVICE.

CIRCUMSTANCES OR CONDITIONS INCIDENT TO EMPLOYMENT NECESSITATING AN EMPLOYEE OR A CLASS OF EMPLOYEES TO BE REGULARLY AND CONTINUOUSLY AVAILABLE FOR DUTY OUTSIDE THE HOURS EMPLOYEES ARE ORDINARILY ON DUTY AS REQUIRED BY THE NAVY DEPARTMENT, MUST BE CONSIDERED A PART OF THE DUTIES AND RESPONSIBILITIES OF THAT POSITION OR CLASS OF POSITIONS, AND THE "PAY" WITHIN THE MEANING OF THE SAVING CLAUSE, AND OTHERWISE, FOR THAT POSITION OR CLASS OF POSITIONS IS TO BE COMPUTED ACCORDINGLY. SEE DECISION TO YOU DATED FEBRUARY 13, 1931, A-35026, CITING 6 COMP. GEN. 359; ID. 588, WHEREIN THE PRINCIPLE WAS APPLIED IN CONNECTION WITH THE FURNISHING OF QUARTERS IN KIND TO EMPLOYEES UNDER THE NAVAL ESTABLISHMENT REQUIRED TO WORK AFTER REGULAR HOURS. IT IS UNDERSTOOD THAT POLICEMEN, TELEPHONE OPERATORS, AND TELEGRAPH OPERATORS, ARE OF THIS CLASS, BEING REQUIRED TO BE AVAILABLE FOR DUTY DURING THE ENTIRE 24 HOURS OF EACH DAY INCLUDING SUNDAYS AND HOLIDAYS. THEREFORE, AS TO THESE EMPLOYEES, THE INCREASED RATES OF PAY FOR OVERTIME OR NIGHT SERVICE, AND FOR SERVICE ON SUNDAYS AND HOLIDAYS, RECEIVED DURING THE YEAR ENDED JULY 2, 1930, MAY PROPERLY BE INCLUDED IN COMPUTING THE REGULAR "PAY" OF THE EMPLOYEES TO WHICH THE SAVING CLAUSE IS APPLICABLE AND THEIR PER ANNUM SALARY FIXED ACCORDINGLY UNDER THE ADMINISTRATIVE CIRCULAR OF DECEMBER 31, 1930.

THE ACTION OF THE NAVY DEPARTMENT IN DISCONTINUING PAYMENT OF EXTRA COMPENSATION FOR OVERTIME, SUNDAY OR HOLIDAY WORK TO EMPLOYEES WHOSE SALARY RATES HAVE BEEN ADJUSTED FROM A PER DIEM TO A PER ANNUM BASIS IS IN ACCORDANCE WITH THE ESTABLISHED RULE THAT EMPLOYEES OF THE GOVERNMENT ON A PER ANNUM BASIS ARE NOT ENTITLED TO ADDITIONAL COMPENSATION FOR OVERTIME, SUNDAY OR HOLIDAY WORK, IN THE ABSENCE OF A STATUTE SPECIFICALLY PROVIDING THEREFOR.