A-74038, APRIL 23, 1936, 15 COMP. GEN. 937

A-74038: Apr 23, 1936

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PAYMENT OF COMPENSATION FOR SO-CALLED OVERTIME WORK TO EMPLOYEES WHOSE COMPENSATION IS COMPUTED UPON AN ANNUAL BASIS IS NOT AUTHORIZED. ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR WORK PERFORMED IN EXCESS OF THEIR USUAL HOURS OF DUTY NOTWITHSTANDING AN EMERGENCY REQUIRED THEIR WORKING "DAY AND NIGHT.'. DURING WHICH THE BASEMENT OF THE FEDERAL BUILDING AT THAT PLACE WAS INUNDATED BY MORE THAN TWENTY FEET OF WATER IT WAS FOUND NECESSARY TO CALL UPON THE CUSTODIAL EMPLOYEES TO WORK DAY AND NIGHT IN AN EFFORT TO PRESERVE GOVERNMENT PROPERTY. 265 HOURS OF OVERTIME WAS REQUIRED OF THESE EMPLOYEES AND IT WOULD SERIOUSLY HAMPER THE EFFICIENT CONDUCT OF THE POST OFFICE. - IF THE DEPARTMENT WERE REQUIRED TO ALLOW COMPENSATORY TIME INSTEAD OF PAYING OVERTIME TO THESE EMPLOYEES.

A-74038, APRIL 23, 1936, 15 COMP. GEN. 937

COMPENSATION - OVERTIME - PER ANNUM EMPLOYEES - POSTAL SERVICE IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY THEREFOR, PAYMENT OF COMPENSATION FOR SO-CALLED OVERTIME WORK TO EMPLOYEES WHOSE COMPENSATION IS COMPUTED UPON AN ANNUAL BASIS IS NOT AUTHORIZED, SUCH EMPLOYEES BEING PAID FOR EVERY DAY OF THE YEAR AND NOT BEING ENTITLED TO ADDITIONAL COMPENSATION FOR ANY AMOUNT OF WORK REQUIRED IN EXCESS OF THEIR USUAL HOURS OF DUTY. EMPLOYEES OF A FIRST-CLASS POST OFFICE PAID COMPENSATION ON AN ANNUAL BASIS, IF NOT WITHIN THE CLASS OF CLERKS AND LABORERS REFERRED TO IN SECTION 4 OF THE ACT OF FEBRUARY 28, 1935, 43 STAT. 1059, ARE NOT ENTITLED TO OVERTIME COMPENSATION FOR WORK PERFORMED IN EXCESS OF THEIR USUAL HOURS OF DUTY NOTWITHSTANDING AN EMERGENCY REQUIRED THEIR WORKING "DAY AND NIGHT.'

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, APRIL 23, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 18, 1936, AS FOLLOWS:

IN THE RECENT EMERGENCY OCCASIONED BY THE FLOOD AT PITTSBURGH, PENNSYLVANIA, DURING WHICH THE BASEMENT OF THE FEDERAL BUILDING AT THAT PLACE WAS INUNDATED BY MORE THAN TWENTY FEET OF WATER IT WAS FOUND NECESSARY TO CALL UPON THE CUSTODIAL EMPLOYEES TO WORK DAY AND NIGHT IN AN EFFORT TO PRESERVE GOVERNMENT PROPERTY. THE POSTMASTER STATES THAT AN AGGREGATE OF 4,265 HOURS OF OVERTIME WAS REQUIRED OF THESE EMPLOYEES AND IT WOULD SERIOUSLY HAMPER THE EFFICIENT CONDUCT OF THE POST OFFICE--- PARTICULARLY THE OPERATIONS OF THE MECHANICAL FORCE--- IF THE DEPARTMENT WERE REQUIRED TO ALLOW COMPENSATORY TIME INSTEAD OF PAYING OVERTIME TO THESE EMPLOYEES.

IN VIEW OF THE EXTRAORDINARY SITUATION WHICH REQUIRED THAT THESE SERVICES BE RENDERED, AND IN CONSIDERATION OF THE ADMINISTRATIVE DIFFICULTIES INCIDENT TO THE ADJUSTMENT OF THE LEAVE OF SUCH EMPLOYEES, YOUR PROMPT DECISION IS REQUESTED AS TO WHETHER COMPENSATION FOR OVERTIME MAY BE ALLOWED IN LIEU OF COMPENSATORY TIME.

IT WILL BE APPRECIATED IF THIS DECISION MAY BE RENDERED AT AN EARLY DATE.

THERE WAS TRANSMITTED WITH YOUR LETTER A STATEMENT LISTING THE CLASSES OF EMPLOYEES INVOLVED AS FOLLOWS: TELEPHONE OPERATORS, WATCHMEN, CLERK, JANITOR, ASSISTANT ENGINE MEN, ELEVATOR MECHANICS, ENGINE MEN HELPERS, ELEVATOR MECHANIC HELPER, HEAD ELEVATOR MECHANIC, ELECTRICIAN, CABINETMAKER, LAMPISTS, ELEVATOR OPERATORS, MARBLE POLISHER, LABORERS, JUNIOR LABOR FOREMAN, AND CUSTODIAN. THESE CLASSES OF EMPLOYEES ARE REFERRED TO IN YOUR LETTER AS "CUSTODIAL EMPLOYEES.'

IT IS UNDERSTOOD THAT ALL OF THESE EMPLOYEES ARE PAID COMPENSATION ON AN ANNUAL BASIS (14 COMP. GEN. 448). IT IS WELL SETTLED THAT, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY THEREFOR, PAYMENT OF COMPENSATION FOR SO- CALLED OVERTIME WORK TO EMPLOYEES WHOSE COMPENSATION IS COMPUTED UPON AN ANNUAL BASIS IS NOT AUTHORIZED, SUCH EMPLOYEES BEING PAID FOR EVERY DAY OF THE YEAR AND NOT BEING ENTITLED TO ADDITIONAL COMPENSATION FOR ANY AMOUNT OF WORK REQUIRED IN EXCESS OF THEIR USUAL HOURS OF DUTY.

THE ONLY LAW AUTHORIZING PAYMENT OF OVERTIME COMPENSATION TO EMPLOYEES IN FIRST- AND SECOND-CLASS POST OFFICES FOR EMERGENCY SERVICES IN SECTION 4 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1059, INCORPORATED IN SECTION 117, TITLE 39, U.S.C. PROVIDING IN PART AS FOLLOWS:

* * * 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 8 HOURS PER DAY, AND FOR SUCH OVERTIME SERVICE THEY SHALL BE PAID ON THE BASIS OF THE ANNUAL PAY RECEIVED BY SUCH EMPLOYEES: * * *

IT IS NOT CLEAR WHETHER "CLERK CARROLL" AND THE "LABORERS" WHO PERFORMED THE OVERTIME SERVICE IN THE PITTSBURGH POST OFFICE, A FIRST CLASS OFFICE, WERE "CLERKS AND LABORERS" WITHIN THE MEANING OF THIS STATUTE, OR WHETHER THEY WERE EXCLUSIVELY PART OF THE CUSTODIAL SERVICE AND, THEREFORE, NOT WITHIN THE PROVISIONS OF THE STATUTE. IF THEY WERE, IN FACT, WITHIN THE FORMER CLASS, OVERTIME COMPENSATION WOULD BE PAYABLE SUBJECT, OF COURSE, TO THE TERMS AND WITHIN THE LIMITATIONS OF THE STATUTE.

THERE APPEARS TO BE NO OTHER STATUTE PURSUANT TO WHICH OVERTIME COMPENSATION IS PAYABLE TO EMPLOYEES AT FIRST- AND SECOND-CLASS POST OFFICES, AND IT WOULD APPEAR TO BE THE INTENTION OF THE CONGRESS THAT EMPLOYEES IN THE CUSTODIAL SERVICE SHALL NOT BE ENTITLED TO RECEIVE OVERTIME COMPENSATION. THERE IS PARTICULARLY FOR NOTING IN THIS CONNECTION THE SECOND PROVISO TO SECTION 1 OF THE ACT OF AUGUST 14, 1935, 49 STAT. 650, MAKING SATURDAY A NONWORK DAY, AS FOLLOWS:

* * * 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: * * *

YOU ARE ADVISED, THEREFORE, THAT WITH THE EXCEPTION OF THE CLERK AND LABORERS (IF, IN FACT, THEY COME WITHIN THE TERMS OF THE ACT OF FEB. 28, 1925, SUPRA), YOUR QUESTION MUST BE ANSWERED IN THE NEGATIVE.