A-74882, JUNE 15, 1936, 15 COMP. GEN. 1091

A-74882: Jun 15, 1936

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THE HOURLY PAY FOR THE PURPOSE OF COMPUTING THE NIGHT DIFFERENTIAL COMPENSATION RATE OF SUCH EMPLOYEES IS FOR FIXING AT 1/6 AND 2/3 OF THE DAILY RATE OF PAY RATHER THAN 1/8 OF SUCH DAILY RATE. AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISIONS OF SEPTEMBER 6. THE TOTAL HOURS OF SERVICE PERFORMED ON EACH ROUND TRIP HAVE BEEN DIVIDED BY 6 2/3 TO FIND THE TRIP VALUE ON A DAILY BASIS AND A SUFFICIENT NUMBER OF TRIPS SCHEDULED PER YEAR TO MAKE THE REQUIRED DAILY AVERAGE. SINCE THE FRACTIONS OF A DAY WHICH MAY BE INVOLVED ARE FRACTIONS OF AN EIGHT-HOUR DAY AND NOT OF A 6 2/3 HOUR DAY. SOME OF THE RAILWAY POSTAL CLERKS AFFECTED SUGGESTED THAT A CHANGE IN THE PROCEDURE OUTLINED IN THE PRECEDING PARAGRAPH WAS NECESSITATED BY REASON OF THE PROVISIONS OF THE ACT OF AUGUST 14.

A-74882, JUNE 15, 1936, 15 COMP. GEN. 1091

RAILWAY POSTAL CLERKS - NIGHT DIFFERENTIAL COMPENSATION RATE - ACT OF AUGUST 14, 1935 THE ACT OF AUGUST 14, 1935, 49 STAT. 650, HAVING REDUCED TO 6 HOURS 40 MINUTES THE LENGTH OF THE WORK DAY OF RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY, THE HOURLY PAY FOR THE PURPOSE OF COMPUTING THE NIGHT DIFFERENTIAL COMPENSATION RATE OF SUCH EMPLOYEES IS FOR FIXING AT 1/6 AND 2/3 OF THE DAILY RATE OF PAY RATHER THAN 1/8 OF SUCH DAILY RATE.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, JUNE 15, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MAY 5, 1936, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISIONS OF SEPTEMBER 6, AUGUST 14, AND OCTOBER 14, 1935, RELATIVE TO THE COMPENSATION OF RAILWAY POSTAL CLERKS.

IN COMPUTING THE TIME CREDITS OF RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY SINCE THE EFFECTIVE DATE OF THE ACT OF AUGUST 14, 1935, THE TOTAL HOURS OF SERVICE PERFORMED ON EACH ROUND TRIP HAVE BEEN DIVIDED BY 6 2/3 TO FIND THE TRIP VALUE ON A DAILY BASIS AND A SUFFICIENT NUMBER OF TRIPS SCHEDULED PER YEAR TO MAKE THE REQUIRED DAILY AVERAGE, THE CLERKS BEING PAID ON THE REGULAR BASIS OF 306 DAYS OF EIGHT HOURS EACH. OVERTIME OF ROAD CLERKS HAS BEEN COMPUTED BY DIVIDING THE TOTAL HOURS OF OVERTIME BY 6 2/3 AND PAYING THE CLERKS FOR THE RESULTANT NUMBER OF DAYS ON THE SAME REGULAR BASIS, NO CHANGE BEING MADE IN THE HOURLY RATE OF PAY IN EITHER CASE, SINCE THE FRACTIONS OF A DAY WHICH MAY BE INVOLVED ARE FRACTIONS OF AN EIGHT-HOUR DAY AND NOT OF A 6 2/3 HOUR DAY. THIS SAME PRACTICE HAS BEEN FOLLOWED IN COMPUTING THE PAY FOR NIGHT WORK, BUT, OF COURSE, TEN PERCENT ADDITIONAL HAS BEEN ADDED TO THE HOURLY RATE OF PAY.

SOME OF THE RAILWAY POSTAL CLERKS AFFECTED SUGGESTED THAT A CHANGE IN THE PROCEDURE OUTLINED IN THE PRECEDING PARAGRAPH WAS NECESSITATED BY REASON OF THE PROVISIONS OF THE ACT OF AUGUST 14, 1935. HOWEVER, THE DEPARTMENT HELD THAT UNDER THE RULES LAID DOWN IN YOUR DECISIONS ABOVE REFERRED TO NO CHANGE IN THE EXISTING PROCEDURE SEEMED NECESSARY. THE RAILWAY MAIL ASSOCIATION HAS PROTESTED THIS RULING AND MAINTAINS THAT RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY ARE ENTITLED TO A HIGHER RATE OF PAY FOR NIGHT WORK UNDER THE NEW LAW.

AS A PRACTICAL MATTER THE DEPARTMENT, IN CONVERTING THE SERVICE OF ROAD CLERKS, INCLUDING OVERTIME, INTO AN EIGHT-HOUR DAY FOR PAY PURPOSES, HAS DIVIDED THE SERVICE PERFORMED BY 400 MINUTES (6 2/3 HOURS). THE QUESTION AS TO NIGHT DIFFERENTIAL IS WHETHER CLERKS ASSIGNED TO ROAD DUTY SHOULD BE PAID TEN PERCENT ADDITIONAL FOR EACH HOUR OF NIGHT WORK ACTUALLY PERFORMED OR WHETHER THE PERIOD OF NIGHT WORK SHOULD BE DIVIDED BY 400 MINUTES FOR PAY PURPOSES, THUS GIVING SUCH CLERKS THE BENEFIT OF THE SHORTER DAY FOR NIGHT WORK PAY THE SAME AS FOR REGULAR WORK AND OVERTIME.

A PROMPT DECISION ON THIS POINT WILL BE APPRECIATED.

THE ACT OF AUGUST 14, 1935 (49 STAT. 650), PROVIDES, IN PART, AS FOLLOWS:

* * * 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 OCTOBER 14, 1935 (15 COMP. GEN. 298), AFTER QUOTING SECTION 1 OF THE ACT OF AUGUST 14, 1935, SUPRA, AND SECTION 7 OF THE ACT OF FEBRUARY 28, 1925 (43 STAT. 1062, 1063), IT WAS STATED:

THE EARLIER STATUTE OF FEBRUARY 28, 1925, UNQUESTIONABLY FIXED 8 HOURS AS THE LENGTH OF A WORK DAY, AND 306 DAYS AS THE LENGTH OF THE WORK YEAR FOR ALL REGULAR RAILWAY POSTAL CLERKS, INCLUDING THOSE ON ROAD DUTY. THE LATER ACT OF AUGUST 14, 1935, UNQUESTIONABLY REDUCES TO 6 HOURS 40 MINUTES THE LENGTH OF THE WORK DAY OF RAILWAY POSTAL CLERKS ON ROAD DUTY, RETAINS THE LENGTH OF THEIR WORK YEAR AT 306 DAYS, BUT MAKES NO CHANGE IN THE LENGTH OF THE WORK DAY OR WORK YEAR OF OTHER CLASSES OF RAILWAY POSTAL CLERKS. THESE STATUTORY DISTINCTIONS MAY NOT BE ELIMINATED BY CONSTRUCTION. * * *

AND IN DECISION OF MARCH 12, 1936 (15 COMP. GEN. 788), AFTER QUOTING FROM THE ABOVE ACT OF AUGUST 14, 1935, IT WAS STATED:

THUS, A DAY OF 6 HOURS AND 40 MINUTES APPEARS THE ONLY PROPER BASIS FOR COMPUTING OVERTIME COMPENSATION FOR THE CLASS OF EMPLOYEES THEREIN INVOLVED.

ANSWERING YOUR QUESTION SPECIFICALLY, THEREFORE, YOU ARE ADVISED THAT SINCE THE HOURS OF DUTY FOR RAILWAY POSTAL EMPLOYEES ON ROAD WORK ARE NO LONGER 8 HOURS PER DAY, BUT 6 HOURS AND 40 MINUTES INSTEAD, THE EXISTING PRACTICE OF THE DEPARTMENT BASED ON THE DECISION OF THIS OFFICE DATED MARCH 11, 1922, WHICH CONSTRUED THE 8-HOUR DAY STATUTE OF 1920, SHOULD BE ALTERED TO ACCORD WITH THE REQUIREMENTS OF THE ACT OF AUGUST 14, 1935, SUPRA--- THAT IS TO SAY, WHILE THE RULE STATED IN THE DECISION OF MARCH 11, 1922, FOR COMPUTING THE ADJUSTMENT FOR OVERTIME REMAINS THE SAME, THE DIVISOR PROPERLY FOR USING IN THE APPLICATION OF THE RULE IS NOW 6 2/3 (6 HOURS AND 40 MINUTES) INSTEAD OF 8.

THE ACT OF MAY 24, 1928 (45 STAT 725), PRESCRIBES A NIGHT DIFFERENTIAL COMPENSATION RATE FOR CERTAIN POSTAL EMPLOYEES WHO ARE REQUIRED TO WORK AT NIGHT--- BETWEEN 6 P.M. AND 6 A.M.--- INCLUDING RAILWAY POSTAL CLERKS, OF "10 PERCENTUM OF THEIR HOURLY PAY PER HOUR.' IT WOULD APPEAR THAT THE "HOURLY PAY" FOR THE PURPOSE OF COMPUTING THE NIGHT-DIFFERENTIAL COMPENSATION RATE OF RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY IS FOR FIXING AT ONE-SIXTH AND TWO-THIRDS OF THE DAILY RATE OF PAY RATHER THAN ONE-EIGHTH OF SUCH DAILY RATE.