B-117924, DECEMBER 23, 1953, 33 COMP. GEN. 279

B-117924: Dec 23, 1953

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PROVIDED OVERTIME COMPENSATION IS PAID THE CLERKS ONLY WHEN THEY ARE REQUIRED TO PERFORM SERVICE IN EXCESS OF AN AVERAGE OF EIGHT HOURS DAILY FOR 253 DAYS PER ANNUM. 1953: REFERENCE IS MADE TO LETTER OF DECEMBER 4. RECEIPT IS ACKNOWLEDGED OF THE LETTER OF DECEMBER 10. WHICH IS STATED TO HAVE BEEN ESTABLISHED IN ACCORDANCE WITH DECISIONS OF THIS OFFICE (1 COMP. 1944) "OVERTIME COMPENSATION IS PAID SUCH EMPLOYEES AT THE END OF ANY PAY PERIOD WHEN OVERTIME HAS BEEN WORKED IN EXCESS OF THE NET DEFICIENCY IN TIME ACCUMULATED SINCE THE BEGINNING OF THE FISCAL YEAR.'. BECAUSE WORK SCHEDULES GENERALLY HAVE BEEN ESTABLISHED AT LESS THAN THE ALLOWABLE AVERAGE NUMBER OF HOURS IN AN EFFORT TO REDUCE THE NECESSITY FOR OVERTIME PAYMENTS.

B-117924, DECEMBER 23, 1953, 33 COMP. GEN. 279

COMPENSATION - OVERTIME - POSTAL TRANSPORTATION CLERKS ASSIGNED TO ROAD DUTY POST OFFICE DEPARTMENT MAY COMPUTE OVERTIME COMPENSATION FOR POSTAL TRANSPORTATION CLERKS ASSIGNED TO ROAD DUTY BY A METHOD WHICH WOULD CONFINE SUCH PAYMENT MORE CLOSELY TO THE REQUIREMENTS OF SECTION 16 (P) OF THE POSTAL EMPLOYEES PAY ACT OF 1945, SET OFF CURRENT DEFICIENCIES AGAINST OVERTIME AND ESTABLISH WORK SCHEDULES WITH A DAILY AVERAGE AS NEAR AS POSSIBLE TO THE MAXIMUM FIXED IN THE ACT, PROVIDED OVERTIME COMPENSATION IS PAID THE CLERKS ONLY WHEN THEY ARE REQUIRED TO PERFORM SERVICE IN EXCESS OF AN AVERAGE OF EIGHT HOURS DAILY FOR 253 DAYS PER ANNUM, AS PROVIDED BY THE ACT. OVERTIME COMPENSATION FOR POSTAL TRANSPORTATION CLERKS ASSIGNED TO ROAD DUTY MAY BE DETERMINED ON A CALENDAR YEAR BASIS INSTEAD OF A FISCAL YEAR BASIS.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, DECEMBER 23, 1953:

REFERENCE IS MADE TO LETTER OF DECEMBER 4, 1953, YOUR REFERENCE 4, FROM THE ACTING POSTMASTER GENERAL, REQUESTING A DECISION WITH RESPECT TO THE LEGALITY OF A PROPOSED CHANGE IN THE METHOD OF DETERMINING OVERTIME COMPENSATION FOR POSTAL TRANSPORTATION CLERKS ASSIGNED TO ROAD DUTY. ALSO, RECEIPT IS ACKNOWLEDGED OF THE LETTER OF DECEMBER 10, FROM THE ASSISTANT POSTMASTER GENERAL SUBMITTING TYPICAL EXAMPLES OF OVERTIME AND DEFICIENCIES IN INDIVIDUAL CASES.

UNDER THE PRESENT SYSTEM, WHICH IS STATED TO HAVE BEEN ESTABLISHED IN ACCORDANCE WITH DECISIONS OF THIS OFFICE (1 COMP. GEN. 496; 3 ID. 113; AND A-44011, MAY 25, 1944) "OVERTIME COMPENSATION IS PAID SUCH EMPLOYEES AT THE END OF ANY PAY PERIOD WHEN OVERTIME HAS BEEN WORKED IN EXCESS OF THE NET DEFICIENCY IN TIME ACCUMULATED SINCE THE BEGINNING OF THE FISCAL YEAR.' THE LETTER STATES THAT, UNDER THE PRESENT SYSTEM, BECAUSE WORK SCHEDULES GENERALLY HAVE BEEN ESTABLISHED AT LESS THAN THE ALLOWABLE AVERAGE NUMBER OF HOURS IN AN EFFORT TO REDUCE THE NECESSITY FOR OVERTIME PAYMENTS, EMPLOYEES ORDINARILY ENTER THE MONTH OF DECEMBER WITH A LARGE ACCUMULATED DEFICIENCY; THAT IN DECEMBER ALL EMPLOYEES ARE CALLED UPON TO WORK EXTRA TRIPS TO HANDLE THE CHRISTMAS MAILS, AND SINCE OVERTIME COMPENSATION CANNOT BE PAID UNTIL THE DEFICIENCY IS ABSORBED SOME EMPLOYEES MUST WORK SEVERAL EXTRA TRIPS IN DECEMBER BEFORE BECOMING ENTITLED TO ANY COMPENSATION IN EXCESS OF THEIR REGULAR PAY, WHICH HAS CAUSED DISSATISFACTION AMONG THE AFFECTED EMPLOYEES; AND THAT LARGE ADDITIONAL DEFICIENCIES ARE ACCUMULATED DURING THE LAST SIX MONTHS OF THE FISCAL YEAR WHICH ARE CANCELED AT THE END OF THE FISCAL YEAR AS AUTHORIZED IN 3 COMP. GEN. 113, WHICH CANCELLATIONS REPRESENT A CONSIDERABLE FINANCIAL LOSS TO THE DEPARTMENT.

THE PLAN PROPOSED TO OVERCOME THE PRESENT DIFFICULTIES IS STATED IN THE LETTER, AS FOLLOWS:

1. ESTABLISH WORK SCHEDULES WITH A DAILY AVERAGE AS NEAR AS POSSIBLE TO THE MAXIMUM OF 6 HOURS AND 25 MINUTES FOR CLASS B UNITS AND 7 HOURS AND 10 MINUTES FOR CLASS A UNITS, WITH AN ALLOWANCE OF NOT TO EXCEED 10 MINUTES IN DAILY AVERAGES WHEN NECESSARY TO PROTECT NATURAL CREWS OR TO AVOID EXCESSIVE RELIEF DUE TO THE LATE RUNNING OF TRAINS.

2. WHEN LATE RUNNING TIME HAS ACCUMULATED TO AN AMOUNT EQUAL TO ONE ROUND TRIP OF SERVICE, EMPLOYEES WILL BE RELIEVED OF MAKING ONE ROUND TRIP; EXCEPT THAT IF IN NOVEMBER THE ACCUMULATION OF LATE RUNNING FROM TRIPS COMPLETED PRIOR TO MIDNIGHT NOVEMBER 30 IS LESS THAN THE VALUE OF ONE ROUND TRIP, THE ACCUMULATION SHALL BE PAID AS OVERTIME.

3. FULL RELIEF TRIPS EARNED BY THE CLOSE OF NOVEMBER SHALL BE GRANTED NOT LATER THAN DECEMBER 10.

4. ALL SERVICE PERFORMED IN DECEMBER AS A RESULT OF LATE RUNNING AND EXTRA TRIPS WILL BE PAID FOR AT THE OVERTIME PAY RATE AFTER DEDUCTING ANY DEFICIENCY WHICH HAS ACCUMULATED FROM UNUSED ALLOWANCES FOR TRAIN DELAYS.

5. WHEN IN UNUSUAL CIRCUMSTANCES AN EMPLOYEE'S RECORD AT THE CLOSE OF DECEMBER SHOWS HE HAS PERFORMED LESS THAN 2024 HOURS OF SERVICE IN THE CALENDAR YEAR, THE DEFICIENCY SHALL BE CANCELLED. NEITHER DEFICIENCY NOR TIME ACCUMULATED DUE TO LATE RUNNING WILL BE CARRIED BEYOND DECEMBER 31. OVERTIME COMPENSATION WILL BE PAID FOR ALL ACCUMULATED OVERTIME WORK AS OF DECEMBER 31.

6. ANY ACCUMULATION OF TRAIN DELAYS IN EXCESS OF FIVE HOURS OCCURRING IN ANY TRIP WILL BE COMPENSATED FOR CURRENTLY AT OVERTIME PAY RATES. THIS WOULD PREVENT SERIOUS DISRUPTION OF WORK SCHEDULES WHICH WOULD RESULT FROM RELIEF TRIPS REQUIRED TO COVER ABNORMAL TRAIN DELAYS.

IT APPEARS THAT SOME QUESTION HAS BEEN RAISED AS TO THE LEGALITY OF THE PROPOSED PLAN BY WHICH THE EMPLOYEES WILL OMIT SCHEDULED TRIPS IN LIEU OF OVERTIME PAYMENT WHEN THE ACCUMULATION OF TIME IN EXCESS OF THE REQUIRED DAILY AVERAGE RESULTING FROM THE LATE RUNNING OF TRAINS AMOUNTS TO THE EQUIVALENT OF ONE TRIP.

SECTION 16 (P) OF THE ACT OF JULY 6, 1945, 49 U.S.C. 866, PROVIDES IN MATERIAL PART, AS FOLLOWS:

* * * THAT THE SERVICE OF RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY SHALL BE BASED ON AN AVERAGE OF NOT EXCEEDING EIGHT HOURS DAILY FOR TWO HUNDRED AND FIFTY-THREE DAYS PER ANNUM, INCLUDING ALLOWANCES FOR ALL SERVICES REQUIRED ON LAY-OFF PERIOD, AND SUCH ALLOWANCES SHALL NOT BE LESS THAN FIFTY MINUTES PER DAY FOR TWO HUNDRED AND FIFTY-THREE DAYS PER ANNUM FOR CLERKS ASSIGNED TO CLASS A RUNS AND NOT LESS THAN ONE HOUR AND THIRTY- FIVE MINUTES PER DAY FOR TWO HUNDRED AND FIFTY THREE DAYS PER ANNUM FOR CLERKS ASSIGNED TO CLASS B RUNS, AND RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY REQUIRED TO PERFORM SERVICE IN EXCESS OF AN AVERAGE OF EIGHT HOURS DAILY FOR TWO HUNDRED FIFTY-THREE DAYS SHALL BE PAID FOR SUCH OVERTIME SERVICE ON THE BASIS OF 150 PERCENTUM OF THE ANNUAL RATE OF PAY RECEIVED BY SUCH EMPLOYEES. IN COMPUTING COMPENSATION FOR SUCH OVERTIME EMPLOYMENT, THE ANNUAL SALARY OR COMPENSATION FOR SUCH EMPLOYEES SHALL BE DIVIDED BY TWO THOUSAND AND TWENTY-FOUR, THE NUMBER OF WORKING HOURS IN A YEAR. THE QUOTIENT THUS OBTAINED WILL BE THE BASE HOURLY COMPENSATION AND ONE AND ONE HALF TIMES THAT AMOUNT WILL BE HOURLY RATE OF OVERTIME PAY.

BY LETTER FROM THIS OFFICE, DATED OCTOBER 3, 1947, B-69584, THE ATTENTION OF THE THEN POSTMASTER GENERAL WAS DIRECTED TO THE ABOVE QUOTED LANGUAGE FROM THE 1945 POSTAL EMPLOYEES PAY ACT AND HE WAS REQUESTED TO INFORM THIS OFFICE WHY THE PAYMENT OF OVERTIME TO RAILWAY POSTAL CLERKS SHOULD NOT BE DELAYED UNTIL THE END OF THE YEAR AS IT WOULD NOT APPEAR POSSIBLE TO DETERMINE DEFINITELY WHETHER AN AVERAGE OF EIGHT HOURS DAILY FOR 253 DAYS HAD BEEN EXCEEDED BEFORE THAT TIME. IN THE DEPARTMENT'S REPLY OF OCTOBER 24, 1947, IT WAS URGED THAT THE PAST PRACTICE WHICH HAD BEEN IN FORCE SINCE THE ABOVE CITED DECISIONS, BE NOT CHANGED AND, IN DECISION OF NOVEMBER 26, 1947, B-69584, THERE WAS SAID AMONG OTHER THINGS THAT THE IMPORT OF THE STATUTE IS CLEAR AND UNAMBIGUOUS AND NO EXCESS OF SERVICE OVER AN AVERAGE OF EIGHT HOURS DAILY FOR 253 DAYS CAN BE DETERMINED UNTIL AFTER THE END OF THE PERIOD. BUT NEVERTHELESS IT WAS CONCLUDED THAT, IN VIEW OF THE LONG CONTINUED ADMINISTRATIVE PRACTICE OF WHICH THE CONGRESS WAS PRESUMED TO HAVE KNOWLEDGE, THIS OFFICE WOULD NOT BE REQUIRED TO INSIST UPON THE MODIFICATION OF THE THEN EXISTING METHOD OF COMPUTING THE PAYMENT OF OVERTIME EARNED BY RAILWAY MAIL CLERKS ASSIGNED TO ROAD DUTY.

IT NOW APPEARS FROM YOUR PRESENT SUBMISSION THAT THE PRESENT PRACTICE HAS RESULTED IN NUMEROUS COMPLAINTS FROM THE EMPLOYEES, AND IN LARGE DEFICIENCIES IN TIME SERVED BY SOME EMPLOYEES, WHEN CONSIDERING THE YEAR AS A WHOLE, NOTWITHSTANDING THAT THEY MAY HAVE BEEN PAID OVERTIME FOR SERVICE RENDERED EARLIER IN THE YEAR. AN EXAMINATION OF THE PROPOSED PLAN INDICATES THAT IT WOULD CONFINE THE PAYMENT OF OVERTIME MORE CLOSELY TO THE REQUIREMENTS OF THE STATUTE ITSELF IN THAT THE DETERMINATION OF AND PAYMENT FOR OVERTIME IN EXCESS OF THE AVERAGE OF EIGHT HOURS DAILY FOR 253 DAYS WOULD BE DELAYED FOR THE MOST PART UNTIL THE CLOSING MONTHS OF THE YEAR AND WOULD SAVE AN ESTIMATED $450,000 A YEAR AND MANPOWER OF ABOUT 150 EMPLOYEES.

IN LIGHT OF THE REPRESENTATIONS NOW MADE THIS OFFICE IS NOT REQUIRED TO OBJECT TO THE ADOPTION OF THE PROPOSED PLAN; PROVIDED THAT OVERTIME IS PAID THE CLERKS ONLY WHERE THEY ARE REQUIRED TO PERFORM SERVICE IN EXCESS OF AN AVERAGE OF EIGHT HOURS DAILY FOR 253 DAYS, AS PROVIDED BY THE ABOVE QUOTED LAW.

WITH RESPECT TO THE FURTHER QUESTION RAISED IN THE SUBMISSION, NAMELY, WHETHER THERE WOULD BE ANY OBJECTION TO USING THE CALENDAR YEAR AS A BASIS FOR THE APPLICATION OF THE PROPOSED PLAN INSTEAD OF THE FISCAL YEAR, YOU MAY BE INFORMED THAT THIS OFFICE KNOWS OF NO LEGAL OBJECTION TO THE ADOPTION OF THE CALENDAR YEAR INSTEAD OF THE FISCAL YEAR BASIS FOR PURPOSES OF OVERTIME COMPENSATION.