A-66123, OCTOBER 19, 1935, 15 COMP. GEN. 308

A-66123: Oct 19, 1935

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ARE NOT AFFECTED BY THE ACT OF AUGUST 14. 1935: THERE WAS RECEIVED YOUR LETTER OF OCTOBER 4. AS FOLLOWS: REFERENCE IS MADE TO THE FORTY-HOUR-WEEK LAW APPROVED AUGUST 14. YOUR DECISION IS REQUESTED AS TO WHETHER THIS ACT IS BINDING ON ALL EMPLOYEES IN THE MAIL EQUIPMENT SHOPS OR WHETHER THE PROVISIONS OF THE ACT OF MARCH 28. THE HOURLY RATES OF PAY OF THE TWENTY-ONE EMPLOYEES IN THE MAIL EQUIPMENT SHOPS REFERRED TO WERE DETERMINED BY DIVIDING THE COMPENSATION PAID FOR FORTY-EIGHT HOURS' SERVICE ON JUNE 1. DEDUCTIONS FOR ABSENCES WITHOUT PAY HAVE ALSO BEEN MADE AT THE REVISED RATES. IS NOT A COMPENSATION STATUTE AND THAT PREVIOUS EXISTING STATUTORY BASES FOR FIXING THE DAILY. OR ANNUAL RATES OF COMPENSATION OF POSTAL EMPLOYEES HAVE NOT BEEN AFFECTED BY THIS NEW LEGISLATION.

A-66123, OCTOBER 19, 1935, 15 COMP. GEN. 308

COMPENSATION - POST OFFICE DEPARTMENT - PER DIEM EMPLOYEES OF MAIL EQUIPMENT SHOPS THE HOURLY RATES ESTABLISHED FOR PER DIEM SKILLED TRADES EMPLOYEES IN THE MAIL EQUIPMENT SHOPS PURSUANT TO THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ARE NOT AFFECTED BY THE ACT OF AUGUST 14, 1935, 49 STAT. 650, ESTABLISHING A 40-HOUR WEEK FOR POSTAL EMPLOYEES; NEITHER DOES SAID ACT OF AUGUST 14, 1935, REQUIRE RESTATEMENT OF THE PER DIEM SALARY RATES OF OTHER PER DIEM EMPLOYEES OF MAIL EQUIPMENT SHOPS, NOT UNDER THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, FOR THE PURPOSE OF ABSENCE WITHOUT PAY OR OTHERWISE.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, OCTOBER 19, 1935:

THERE WAS RECEIVED YOUR LETTER OF OCTOBER 4, 1935, AS FOLLOWS:

REFERENCE IS MADE TO THE FORTY-HOUR-WEEK LAW APPROVED AUGUST 14, 1935, AND YOUR DECISION IS REQUESTED AS TO WHETHER THIS ACT IS BINDING ON ALL EMPLOYEES IN THE MAIL EQUIPMENT SHOPS OR WHETHER THE PROVISIONS OF THE ACT OF MARCH 28, 1934, STILL APPLY WITH RESPECT TO THE TWENTY ONE PER DIEMSKILLED TRADES EMPLOYEES IN THE SHOPS AS HELD IN YOUR DECISION OF MAY 17, 1934 (A-55528). PURSUANT TO THAT DECISION AND A SIMILAR DECISION WHICH YOU RENDERED TO THE PUBLIC PRINTER ON APRIL 6, 1934 (A-54736), THE HOURLY RATES OF PAY OF THE TWENTY-ONE EMPLOYEES IN THE MAIL EQUIPMENT SHOPS REFERRED TO WERE DETERMINED BY DIVIDING THE COMPENSATION PAID FOR FORTY-EIGHT HOURS' SERVICE ON JUNE 1, 1932, BY FORTY. DEDUCTIONS FOR ABSENCES WITHOUT PAY HAVE ALSO BEEN MADE AT THE REVISED RATES.

UNDER YOUR DECISION OF SEPTEMBER 6, 1935 (A-65125), HOLDING THAT THE ACT OF AUGUST 14, 1935, IS NOT A COMPENSATION STATUTE AND THAT PREVIOUS EXISTING STATUTORY BASES FOR FIXING THE DAILY, MONTHLY, OR ANNUAL RATES OF COMPENSATION OF POSTAL EMPLOYEES HAVE NOT BEEN AFFECTED BY THIS NEW LEGISLATION, IT WOULD SEEM THAT DEDUCTIONS FOR ABSENCES WITHOUT PAY SHOULD BE MADE AT THE PRESENT OR EXISTING RATES OF PAY. BY WAY OF ILLUSTRATION, AT THE PRESENT TIME UNDER THE PROVISIONS OF THE ACT OF MARCH 28, 1934, AN EMPLOYEE WHO FORMERLY WAS PAID $1 AN HOUR FOR FORTY-EIGHT HOURS NOW RECEIVES $1.20 AN HOUR FOR FORTY HOURS AND IS DEDUCTED AT THAT RATE FOR ABSENCES WITHOUT PAY. DOES THE ACT OF AUGUST 14, 1935, SUPERSEDE THE ACT OF MARCH 28, 1934, WITH RESPECT TO THE TWENTY-ONE EMPLOYEES OF THE MAIL EQUIPMENT SHOPS REFERRED TO, THEREBY MAKING IT NECESSARY TO RETURN TO THE OLD RATES, E.G., IN THE CASE OF THE $1.20 PER HOUR MAN BY PAYING HIM AT THE RATE OF $1 AN HOUR FOR FORTY-EIGHT HOURS AND DEDUCTING FROM HIS SALARY ACCORDINGLY FOR ABSENCES WITHOUT PAY?

IN THE EVENT YOUR DECISION IS TO THE EFFECT THAT THE DEPARTMENT MUST RETURN TO THE OLD RATES, THE FURTHER QUESTION ARISES AS TO THE RATE PAYABLE FOR SEPTEMBER 30, WHICH IS THE BEGINNING OF THE FIRST WEEK IN OCTOBER. IN OTHER WORDS, IF THE $1.20 PER HOUR MAN IS PAID $9.60, THE PRESENT RATE, FOR SEPTEMBER 20, AND $8.00 A DAY FOR THE REMAINING FIVE DAYS IN THAT WEEK, HE WILL RECEIVE A TOTAL OF $49.60, WHEREAS IT WOULD APPEAR THAT HE IS ENTITLED TO ONLY $48.00. WHAT ADJUSTMENT, IF ANY, SHOULD BE MADE TO TAKE CARE OF THIS SITUATION?

IN THE CASE OF THE OTHER EMPLOYEES IN THE MAIL EQUIPMENT SHOPS, WHILE IT IS ENTIRELY CLEAR FROM YOUR DECISION OF SEPTEMBER 6, 1935, THAT THE ACT OF AUGUST 14, 1935, IS NOT A COMPENSATION STATUTE AND THAT THE BASES FOR FIXING THE RATES OF COMPENSATION FOR POSTAL EMPLOYEES HAVE NOT BEEN AFFECTED BY THIS NEW LEGISLATION, A SPECIFIC RULING IS DESIRED AS TO THE METHOD OF MAKING DEDUCTIONS FOR ABSENCES WITHOUT PAY. THE POST OFFICE DEPARTMENT DIVISION OF THE GENERAL ACCOUNTING OFFICE CONSTRUES YOUR DECISION AS REQUIRING DEDUCTIONS TO BE MADE AT THE REGULAR RATE OF PAY. FOLLOWING THIS OUT AN EMPLOYEE WHOSE BASE PAY IS $8.00 PER DAY AND WHO RECEIVES $48.00 FOR 5 DAYS' WORK WOULD BE DEDUCTED ONLY $40.00 IF HE WERE ABSENT WITHOUT PAY AN ENTIRE WEEK, AND IF HE WERE ABSENT WITHOUT PAY FOR ONE YEAR WOULD STILL BE PAID FOR 52 SATURDAYS. TO AVOID THIS SHOULD SALARIES BE RESTATED ON A 48/40 BASIS FOR PURPOSES OF ABSENCE WITHOUT PAY?

SINCE THE ACT OF AUGUST 14, 1935, BECOMES EFFECTIVE ON OCTOBER 1, YOUR PROMPT DECISION WILL BE APPRECIATED.

SECTION 1 OF THE ACT OF AUGUST 14, 1935, 49 STAT. 650, PROVIDES AS FOLLOWS:

THAT WHEN THE NEEDS OF THE SERVICE REQUIRE SUPERVISORY EMPLOYEES, SPECIAL CLERKS, CLERKS, AND LABORERS IN FIRST- AND SECOND-CLASS POST OFFICES, AND EMPLOYEES OF THE MOTOR-VEHICLE SERVICE, AND CARRIERS IN THE CITY DELIVERY SERVICE AND IN THE VILLAGE-DELIVERY SERVICE, AND EMPLOYEES OF THE RAILWAY MAIL SERVICE, CLERKS AT DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS, EMPLOYEES OF THE STAMPED ENVELOPE AGENCY AND EMPLOYEES OF THE MAIL EQUIPMENT SHOPS; CLEANERS, JANITORS, TELEPHONE OPERATORS, AND ELEVATOR CONDUCTORS, PAID FROM APPROPRIATIONS OF THE FIRST ASSISTANT POSTMASTER GENERAL; AND ALL EMPLOYEES OF THE CUSTODIAL SERVICE EXCEPT CHARWOMEN AND CHARMEN AND THOSE WORKING PART TIME, TO PERFORM SERVICE ON SATURDAY THEY SHALL BE ALLOWED COMPENSATORY TIME FOR SUCH SERVICE ON ONE DAY WITHIN FIVE WORKING DAYS NEXT SUCCEEDING THE SATURDAY ON WHICH THE EXCESS SERVICE WAS PERFORMED: PROVIDED, THAT EMPLOYEES WHO ARE GRANTED COMPENSATORY TIME ON SATURDAY FOR WORK PERFORMED THE PRECEDING SUNDAY OR THE PRECEDING HOLIDAY SHALL BE GIVEN THE BENEFITS OF THIS ACT ON ONE DAY WITHIN FIVE WORKING DAYS FOLLOWING THE SATURDAY WHEN SUCH COMPENSATORY TIME WAS GRANTED: PROVIDED FURTHER, THAT THE POSTMASTER GENERAL MAY, IF THE EXIGENCIES OF THE SERVICE REQUIRE IT, AUTHORIZE THE PAYMENT OF OVERTIME FOR SERVICE ON THE LAST THREE SATURDAYS IN THE CALENDAR YEAR IN LIEU OF COMPENSATORY TIME, EXCEPT CLEANERS, JANITORS, TELEPHONE OPERATORS, AND ELEVATOR CONDUCTORS PAID FROM THE APPROPRIATION OF THE FIRST ASSISTANT POSTMASTER GENERAL, AND CUSTODIAL EMPLOYEES WHO SHALL BE GIVEN COMPENSATORY TIME IN LIEU OF OVERTIME PAY WITHIN THIRTY DAYS NEXT SUCCEEDING: AND PROVIDED FURTHER, THAT FOR THE PURPOSE OF EXTENDING THE BENEFITS OF THIS ACT TO RAILWAY POSTAL CLERKS THE SERVICE OF SAID RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY SHALL BE BASED ON AN AVERAGE NOT EXCEEDING 6 HOURS AND 40 MINUTES PER DAY FOR THREE HUNDRED AND SIX DAYS PER ANNUM, INCLUDING A PROPER ALLOWANCE FOR ALL SERVICE REQUIRED ON LAY-OFF PERIODS AS PROVIDED IN POST OFFICE DEPARTMENT CIRCULAR LETTER NUMBERED 1348, DATED MAY 12, 1921; AND RAILWAY POSTAL CLERKS REQUIRED TO PERFORM SERVICE IN EXCESS OF SIX HOURS AND FORTY MINUTES 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.

IN DECISION OF SEPTEMBER 6, 1935 (15 COMP. GEN. 175), IT WAS HELD AS FOLLOWS:

THE ACT OF AUGUST 14, 1935, PUBLIC, NO. 275, IS NOT A COMPENSATION STATUTE, BUT A STATUTE TO REGULATE THE HOURS OF WORK OF POSTAL EMPLOYEES ONLY. THE PREVIOUSLY EXISTING STATUTORY BASES FOR FIXING THE DAILY,MONTHLY, OR ANNUAL RATES OF COMPENSATION OF THE POSTAL EMPLOYEES INVOLVED HAVE NOT BEEN AFFECTED BY SAID STATUTE. ACCORDINGLY, THE DAILY COMPENSATION RATES OF PART-TIME EMPLOYEES OR OTHERS THUS REQUIRED TO BE PAID, HAVE NOT BEEN INCREASED FROM 1/306 OR 1/365 TO 1/254 OF THE ANNUAL RATE OF COMPENSATION, BUT CONTINUE TO BE COMPUTED AS PRIOR TO THE EFFECTIVE DATE OF THIS STATUTE. IN OTHER WORDS, THE STATUTE DID NOT INCREASE THE DAILY, MONTHLY, OR ANNUAL RATES OF COMPENSATION OF ANY POSTAL EMPLOYEE. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.

IN DECISION OF MAY 17, 1934 (13 COMP. GEN. 367), IT WAS HELD AS FOLLOWS(QUOTING FROM THE SYLLABUS):

THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, ESTABLISHING A 40-HOUR WEEK, ARE APPLICABLE TO THE EMPLOYEES OF THE MAIL EQUIPMENT SHOPS UNDER THE POST OFFICE DEPARTMENT WHOSE COMPENSATION IS NOT CONTROLLED BY THE CLASSIFICATION ACT, AS AMENDED, OR ANY OTHER FEDERAL STATUTE, BUT FIXED AND ADJUSTED BY THE POSTMASTER GENERAL WITH REFERENCE TO RATES OF WAGES PAID TO SIMILAR CLASSES IN COMMERCIAL INDUSTRY.

THERE IS NO CONFLICT BETWEEN SECTION 23 OF THE ACT OF MARCH 28, 1934 (48 STAT. 522), ESTABLISHING THE 40-HOUR WEEK FOR CERTAIN EMPLOYEES IN THE SEVERAL TRADES AND CRAFTS, AND THE ACT OF AUGUST 14, 1935, SUPRA, ESTABLISHING A 40-HOUR WEEK FOR POSTAL EMPLOYEES. HENCE, THE FIRST MENTIONED STATUTE REMAINS APPLICABLE TO THE 21 EMPLOYEES OF THE MAIL EQUIPMENT SHOPS PROPERLY WITHIN ITS TERMS, AND THE LAST-MENTIONED STATUTE IS APPLICABLE TO ALL OTHER EMPLOYEES OF THE MAIL EQUIPMENT SHOPS. HOWEVER, THE DIFFERENCE IN THE EFFECT OF THE TWO STATUTES ON THE COMPENSATION OF THE TWO CLASSES OF EMPLOYEES IS VERY MARKED. THE EARLIER LAW NOT ONLY REDUCED THE HOURS OF WORK OF THE EMPLOYEES COMING WITHIN ITS TERMS FROM 44 TO 40 HOURS PER WEEK, BUT IN ADDITION SPECIFICALLY AUTHORIZED AND REQUIRED THE PAYMENT OF "FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN ACCORDANCE WITH THE FULL-TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932," WHICH HAD THE EFFECT OF AUTHORIZING 6 DAYS' COMPENSATION FOR 5 DAYS' WORK PER WEEK. THE LATER LAW APPLICABLE TO POSTAL EMPLOYEES HAS THE EFFECT OF REDUCING THE HOURS OF WORK FROM 44 TO 40 PER WEEK, BUT HAS NO EFFECT WHATEVER ON RATES OF COMPENSATION. SATURDAY IS MADE A NONWORKDAY THE SAME AS SUNDAY. THE COMPENSATION OF POSTAL EMPLOYEES PAID ON AN ANNUAL BASIS FOR EVERY DAY IN THE YEAR, IF IN AN ACTIVE DUTY STATUS EVERY WORKDAY OF THE YEAR, IS NEITHER INCREASED NOR DECREASED; THAT IS, SUCH EMPLOYEES CONTINUE TO BE ENTITLED TO COMPENSATION FOR SATURDAYS WHETHER WORK IS OR IS NOT PERFORMED ON THAT DAY, BUT POSTAL EMPLOYEES WHO ARE PAID ON A PER DIEM OR PER HOUR BASIS MAY NOT BE PAID FOR SATURDAYS ON WHICH NO WORK IS PERFORMED ANY MORE THAN THEY CAN BE PAID FOR SUNDAYS ON WHICH NO WORK IS PERFORMED. THE ACT OF AUGUST 14, 1935, DOES NOT PROVIDE THAT PER DIEM AND PER HOUR EMPLOYEES SHALL RECEIVE 6 DAYS' COMPENSATION FOR 5 DAYS' WORK. WHILE IT IS REALIZED THE CONGRESS MAY NOT HAVE INTENDED TO REDUCE THE TOTAL WEEKLY EARNINGS OF PER DIEM OR PER HOUR POSTAL EMPLOYEES, THERE IS NO ALTERNATIVE BUT TO SO CONCLUDE UNDER THE TERMS OF THE STATUTE.

ANSWERING YOUR QUESTION SPECIFICALLY YOU ARE ADVISED THAT THE SALARIES OF PER DIEM EMPLOYEES OF THE MAIL EQUIPMENT SHOPS NOT UNDER THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, SHOULD NOT BE RESTATED ON A 48/40 BASIS FOR THE PURPOSE OF ABSENCE WITHOUT PAY OR OTHERWISE.