A-98334, OCTOBER 13, 1938, 18 COMP. GEN. 333

A-98334: Oct 13, 1938

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IS AS FOLLOWS: THE ACT. DECISION OF THE COMPTROLLER GENERAL (10-C.G.-400) HOLDS THAT: "WHILE THE COMPENSATORY TIME FOR EACH SATURDAY ON WHICH WORK IS PERFORMED IN EXCESS OF FOUR HOURS IS CUMULATIVE IN THE SENSE THAT THE EMPLOYEE'S RIGHT THEREIN IS NOT LOST WHEN FOR PUBLIC REASONS IT CANNOT BE GRANTED BEFORE THE EMPLOYEE IS REQUIRED TO WORK MORE THAN FOUR HOURS ON A SUBSEQUENT SATURDAY. - WHICH WAS ENACTED PRIMARILY FOR THE BENEFIT OF EMPLOYEES. ONE OR MORE MEN BE ON DUTY AT ALL TIMES AND WATCH LISTS ARE SO ARRANGED THAT AN EMPLOYEE WHO IS REQUIRED TO BE ON DUTY EIGHT HOURS ON SATURDAY OF ONE WEEK IF OFF DUTY ONE-HALF DAY DURING THE SUCCEEDING WEEK. IT IS MORE CONVENIENT TO ARRANGE THESE WATCH LISTS SO AS TO PERMIT TIME OFF FOR SATURDAY AFTERNOON ON THE BASIS OF A ONE-DAY UNIT.

A-98334, OCTOBER 13, 1938, 18 COMP. GEN. 333

COMPENSATORY TIME FOR OVERTIME ON SATURDAYS - NONEFFECT OF ANNUAL LEAVE ACT OF MARCH 14, 1936, AND RATE AT WHICH TO BE GRANTED THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, PROVIDING FOR THE ADMINISTRATIVE ISSUANCE OF GENERAL PUBLIC REGULATIONS SETTING FORTH THE HOURS OF DUTY PER DAY AND PER WEEK FOR EACH GROUP OF EMPLOYEES DOES NOT NULLIFY THAT PORTION OF THE SATURDAY HALF HOLIDAY LAW OF MARCH 3, 1931, 46 STAT. 1482, PROVIDING FOR COMPENSATORY TIME FOR WORK REQUIRED IN EXCESS OF FOUR HOURS ON A SATURDAY, BUT SUCH COMPENSATORY TIME MAY NOT BE GRANTED "AT THE RATE OF ONE WHOLE DAY AT THE TIME.'

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, CIVIL AERONAUTICS AUTHORITY, OCTOBER 13, 1938:

YOUR LETTER OF OCTOBER 3, 1938, IS AS FOLLOWS:

THE ACT, APPROVED MARCH 3, 1931 (46 STAT. 1482), GRANTING SATURDAY HALF HOLIDAY FOR CERTAIN GOVERNMENT EMPLOYEES PROVIDES:

"THAT IN ALL CASES WHERE FOR SPECIAL PUBLIC REASONS, TO BE DETERMINED BY THE HEAD OF THE DEPARTMENT OF ESTABLISHMENT HAVING SUPERVISION OR CONTROL OF SUCH EMPLOYEES, THE SERVICES OF SUCH EMPLOYEES CANNOT BE SPARED, SUCH EMPLOYEES SHALL BE ENTITLED TO AN EQUAL SHORTENING OF THE WORKDAY ON SOME OTHER DAY: * * *.'

DECISION OF THE COMPTROLLER GENERAL (10-C.G.-400) HOLDS THAT:

"WHILE THE COMPENSATORY TIME FOR EACH SATURDAY ON WHICH WORK IS PERFORMED IN EXCESS OF FOUR HOURS IS CUMULATIVE IN THE SENSE THAT THE EMPLOYEE'S RIGHT THEREIN IS NOT LOST WHEN FOR PUBLIC REASONS IT CANNOT BE GRANTED BEFORE THE EMPLOYEE IS REQUIRED TO WORK MORE THAN FOUR HOURS ON A SUBSEQUENT SATURDAY, THERE APPEARS NOTHING IN THE STATUTE--- WHICH WAS ENACTED PRIMARILY FOR THE BENEFIT OF EMPLOYEES--- TO GRANT AN ADMINISTRATIVE OFFICE SUCH BROAD DISCRETIONARY POWERS WITH RESPECT TO THE GRANTING OF COMPENSATORY TIME AS TO DISSIPATE THE HALF HOLIDAY BY DIVIDING THE PERIOD EQUAL TO THE OVERTIME WORK PERFORMED ON ANY SATURDAY AND REQUIRING THE EMPLOYEE TO TAKE OFF A PORTION THEREOF IN ONE OR TWO HOUR PERIODS ON TWO OR MORE SUBSEQUENT DAYS, NOR TO REQUIRE THAT THE SATURDAY OVERTIME BE ACCUMULATED UNTIL IT AMOUNTS TO SEVERAL DAYS AND THEN ALL BE GRANTED AT ONE TIME, WHICH WOULD BE TENTAMOUNT TO INCREASING ANNUAL LEAVE INSTEAD OF SHORTENING WORK DAYS. SUCH A PROCEDURE WOULD DEFEAT THE PURPOSE OF THE LAW.'

THE NECESSITIES OF THE SERVICE REQUIRE THAT AT AIRWAYS COMMUNICATION STATIONS, ONE OR MORE MEN BE ON DUTY AT ALL TIMES AND WATCH LISTS ARE SO ARRANGED THAT AN EMPLOYEE WHO IS REQUIRED TO BE ON DUTY EIGHT HOURS ON SATURDAY OF ONE WEEK IF OFF DUTY ONE-HALF DAY DURING THE SUCCEEDING WEEK. IT IS MORE CONVENIENT TO ARRANGE THESE WATCH LISTS SO AS TO PERMIT TIME OFF FOR SATURDAY AFTERNOON ON THE BASIS OF A ONE-DAY UNIT, BUT THE WATCH LISTS HAVE BEEN BASED ON THE ONE-HALF DAY LIBERTY PER WEEK IN PURSUANCE OF THE DECISION MENTIONED ABOVE.

THE LEAVE ACT, APPROVED MARCH 14, 1936 (49 STAT. 1161) PROVIDES:

"SEC. 2. EACH HEAD OF A DEPARTMENT OR INDEPENDENT ESTABLISHMENT SHALL ISSUE GENERAL PUBLIC REGULATIONS, NOT INCONSISTENT WITH LAW, SETTING FORTH THE HOURS OF DUTY PER DAY AND PER WEEK FOR EACH GROUP OF EMPLOYEES.'

UNDER DATE OF JUNE 10, 1936, THE SECRETARY OF COMMERCE ISSUED REGULATIONS (UNDER WHICH THE AUTHORITY WILL CONTINUE TO OPERATE UNTIL CHANGED BY REGULATION OF THIS BODY) FROM WHICH THE FOLLOWING ARE EXCERPTS:

PURSUANT TO SECTIONS 2 AND 3 OF THE ACT APPROVED MARCH 14, 1936, AN ACT TO PROVIDE FOR VACATIONS TO GOVERNMENT EMPLOYEES, AND FOR OTHER PURPOSES (PUBLIC NO. 471, 74TH CONGRESS), THE FOLLOWING REGULATIONS SHALL GOVERN THE HOURS OF EMPLOYMENT OF ALL EMPLOYEES OF THE DEPARTMENT OF COMMERCE WHEREVER SITUATED AND THE RENDITION OF SERVICE BEYOND THE HOURS HEREIN SPECIFIED:

"WHERE NOT INCONSISTENT WITH LAW, EMPLOYEES SHALL BE REGARDED AS FALLING WITHIN THREE HOURS OF LABOR GROUPS. * * *

"GROUP 3. DUTY OF AN AVERAGE OF 8 HOURS PER DAY OR AN AVERAGE OF 44 HOURS A WEEK WITH THE ENFORCEMENT OF THIS AVERAGE SPREAD OVER A THREE- MONTH PERIOD. IN OTHER WORDS, THE STANDARD WILL BE A LIMIT OF 572 HOURS DURING A THREE-MONTH PERIOD 44 TIMES 52 MINUS 572 -------- ------------

4 * * *

"OCCUPATIONS FALLING WITHIN GROUP 3. * * *

"EMPLOYEES WILL BE REQUIRED TO WORK EITHER 7 OR 8 HOURS (EXCLUSIVE OF TIME FOR LUNCH) EACH WEEK DAY EXCEPT SATURDAY AND 4 HOURS ON SATURDAY OR A TOTAL OF 39 OR 44 HOURS A WEEK. * * *

"IN CONFORMITY WITH THE FOREGOING, EMPLOYEES OF THE DEPARTMENT HAVE BEEN ASSIGNED TO THE FOLLOWING HOURS OF LABOR GROUPS: * * *

"FIELD SERVICE

"BUREAU OF AIR COMMERCE

"GROUP 3.

RADIO OPERATORS

AIRWAYS KEEPERS

AIRWAYS MECHANICIANS

RADIO ELECTRICIANS AND GENERAL MECHANICS.'

COMPTROLLER GENERAL'S DECISION OF JULY 3, 1937 (17-C.C.-3) IS TO THE EFFECT THAT SECTION 2 OF THE ACT OF MARCH 14, 1936, VESTS EXCLUSIVELY IN THE ADMINISTRATIVE OFFICERS THE DUTY AND RESPONSIBILITY FOR FIXING THE HOURS OF WORK OF FEDERAL EMPLOYEES AND THAT YOUR OFFICE IS WITHOUT AUTHORITY TO REVIEW THE ADMINISTRATIVE ACTION TAKEN PURSUANT TO EXISTING STATUTES WITH RESPECT TO FIXING SCHEDULES OF WORK HOURS, ET CETERA.

ADVICE IS REQUESTED AS TO WHETHER SECTION 2 OF THE ACT OF MARCH 14, 1936, AUTHORIZING THE HEAD OF A DEPARTMENT OR INDEPENDENT ESTABLISHMENT TO ISSUE REGULATIONS, NOT INCONSISTENT WITH LAW, SETTING FORTH THE HOURS OF DUTY PER DAY AND PER WEEK OF EACH GROUP OF EMPLOYEES HAS THE EFFECT OF NULLIFYING THAT PORTION OF THE ACT OF MARCH 4, 1931, WHICH PROVIDES THAT WHEN AN EMPLOYEE TO WHOM THE BENEFITS OF THE ACT APPLY CANNOT BE SPARED FROM SERVICE ON SATURDAY AFTERNOON HE SHALL BE ENTITLED TO AN EQUAL SHORTENING OF THE WORK DAY ON SOME OTHER DAY AND WHETHER THERE IS NOW OBJECTION TO PERMITTING THE ACCUMULATION TO THE AMOUNT OF ONE DAY OF COMPENSATORY TIME ACCRUING TO ANY EMPLOYEE FALLING IN GROUP 3 ABOVE BY REASON OF THE PUBLIC NECESSITY THAT HE REMAIN ON DUTY MORE THAN FOUR HOURS ON SATURDAY, SO LONG AS THE EMPLOYEE PUTS IN THE NUMBER OF HOURS PER QUARTER STIPULATED IN THE REGULATIONS PROMULGATED BY THE SECRETARY OF COMMERCE UNDER DATE OF JULY 10, 1936.

SECTION 2 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, QUOTED IN YOUR LETTER, SPECIFICALLY PROVIDES THAT GENERAL PUBLIC REGULATIONS SETTING FORTH THE HOURS OF DUTY PER DAY AND PER WEEK FOR EACH GROUP OF EMPLOYEES SHALL NOT BE "INCONSISTENT WITH LAW.' THIS MEANS THAT THE SATURDAY HALF HOLIDAY LAW MUST BE TAKEN INTO CONSIDERATION BY AN ADMINISTRATIVE OFFICE IN FIXING THE HOURS OF DUTY OF ALL GROUPS OF EMPLOYEES TO WHOM THE STATUTE APPLIES. YOU ARE ADVISED THEREFORE THAT THE LEAVE STATUTE DOES NOT SPECIFICALLY NOT BY NECESSARY IMPLICATION NULLIFY THAT PORTION OF THE SATURDAY HALF HOLIDAY LAW PROVIDING:

* * * THAT IN ALL CASES WHERE FOR SPECIAL PUBLIC REASONS, TO BE DETERMINED BY THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT HAVING SUPERVISION OR CONTROL OF SUCH EMPLOYEES, THE SERVICES OF SUCH EMPLOYEES CAN NOT BE SPARED, SUCH EMPLOYEES SHALL BE ENTITLED TO AN EQUAL SHORTENING OF THE WORKDAY ON SOME OTHER DAY: * * *

IT WAS HELD IN DECISION OF MAY 6, 1938, 17 COMP. GEN. 920, IN ANSWER TO QUESTION 5 (B) THAT COMPENSATORY TIME FOR WORK REQUIRED IN EXCESS OF FOUR HOURS ON SATURDAY MAY NOT BE GRANTED "AT THE RATE OF ONE WHOLE DAY AT THE TIME.'