B-126339, JAN. 20, 1956

B-126339, JAN. 20, 1956

TO THE HONORABLE POSTMASTER GENERAL:

ON OCTOBER 18, 1955, YOUR ASSISTANT REGIONAL CONTROLLER, REGIONAL ACCOUNTING OFFICER, BOSTON, MASSACHUSETTS, TRANSMITTED TO OUR OFFICE FOR SETTLEMENT THE CLAIM OF MR. RICHARD J. SCHOENFELD FOR RETROACTIVE COMPENSATION UNDER THE PROVISION OF THE ACT OF JUNE 21, 1955, 69 STAT. 170, PUBLIC LAW 90, COVERING THE PERIOD JULY 1, 1952, THROUGH JUNE 30, 1953. IN HIS COMMUNICATION HE ALSO REQUESTED OUR DECISION AS TO WHAT ACTION SHOULD BE TAKEN CONCERNING OVERTIME COMPENSATION PAID MR. SCHOENFELD FOR OVERTIME WORK PERFORMED IN THE MONTH OF DECEMBER 1952. ADVISES THAT THERE ARE PENDING IN THE BOSTON REGIONAL ACCOUNTING OFFICE OTHER SIMILAR CLAIMS AND THAT A DECISION IS NECESSARY FOR DETERMINING THE PROPER DISPOSITION TO BE MADE OF THESE SIMILAR CLAIMS.

WE HAVE ASCERTAINED INFORMALLY FROM YOUR DEPARTMENT THAT THE ASSISTANT CONTROLLER AT THE BOSTON REGIONAL OFFICE IS NEITHER A CERTIFYING NOR A DISBURSING OFFICER TO WHOM WE PROPERLY MAY RENDER A DECISION. SEE 31 U.S.C. 74 (THIRD PARAGRAPH), 82D AND 82E. HOWEVER, SINCE A DECISION ON THE QUESTION PRESENTED IS NECESSARY FOR THE DISPOSITION OF SIMILAR CLAIMS WE CONSIDER IT APPROPRIATE TO RENDER OUR DECISION TO YOU BECAUSE THE MATTER INVOLVED IS OF GENERAL INTEREST TO YOUR DEPARTMENT.

THE PERTINENT FACTS ARE AS FOLLOWS: EFFECTIVE JULY 1, 1951, MR. SCHOENFELD WHO THEN WAS EMPLOYED AS ASSISTANT SUPERINTENDENT, MOTOR VEHICLE SERVICE, AT A SALARY OF $4,370 PER ANNUM (LONGEVITY GRADE C) RECEIVED A SALARY INCREASE OF $800 THUS MAKING HIS PER ANNUM SALARY $5,170 (INCLUSIVE OF LONGEVITY SALARY) IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF OCTOBER 24, 1951, PUBLIC LAW 204. THAT LAW PRESCRIBED FOR ASSISTANT SUPERINTENDENTS SUPERVISING MORE THAN 100 EMPLOYEES AN ANNUAL SALARY RATE OF$5,170, EXCLUSIVE OF LONGEVITY SALARY, AND SINCE MR. SCHOENFELD WAS IN LONGEVITY GRADE C HE WOULD HAVE BEEN ENTITLED TO $300 MORE PER ANNUM HAD NOT SECTION 16 OF THAT LAW EXPRESSLY LIMITED THE SALARY INCREASE THAT COULD BE GRANTED UNDER ITS PROVISIONS TO $800 PER ANNUM. HOWEVER, PUBLIC LAW 90 REMOVED THE $800 LIMITATION CONTAINED IN SECTION 16 OF PUBLIC LAW 204 AND AUTHORIZED PAYMENT RETROACTIVELY TO JULY 1, 1952, OF THE COMPENSATION PRESCRIBED BY PUBLIC LAW 204 FOR THE VARIOUS CATEGORIES OF OFFICERS AND EMPLOYEES IN THE POSTAL FIELD SERVICE. IN DECEMBER 1952, PRIOR TO ENACTMENT OF PUBLIC LAW 90, MR. SCHOENFELD PERFORMED CERTAIN OVERTIME SERVICES FOR WHICH HE WAS PAID OVERTIME COMPENSATION IN THE AMOUNT OF $119.30. THE SOLE QUESTION FOR DECISION HERE IS WHETHER THIS OVERTIME PAYMENT MUST BE COLLECTED IF MR. SCHOENFELD'S COMPENSATION IS ADJUSTED RETROACTIVELY BY JULY 1, 1952, IN ACCORDANCE WITH PUBLIC LAW 90.

PRIOR TO THE EFFECTIVE DATE OF PUBLIC LAW 68 APPROVED JUNE 10, 1955, THE RIGHTS OF SUPERVISORY EMPLOYEES ARISING FROM THE PERFORMANCE OF DUTY ON SATURDAYS, SUNDAYS, AND ON CHRISTMAS DAY IN THE MONTH OF DECEMBER WERE GOVERNED BY SUBSECTIONS (C) AND (D) OF SECTION 3 OF THE ACT OF JULY 6, 1945, AS AMENDED BY THE ACT OF JULY 10, 1952, 66 STAT. 548, PUBLIC LAW 494, READING AS FOLLOWS:

"/C) THE POSTMASTER GENERAL MAY, IF THE EXIGENCIES OF THE SERVICE REQUIRE, AUTHORIZE THE PAYMENT OF OVERTIME TO EMPLOYEES OTHER THAN SUPERVISORY EMPLOYEES WHOSE BASE SALARIES, EXCLUSIVE OF LONGEVITY SALARY, ARE MORE THAN $4,970 PER ANNUM, FOR SERVICES PERFORMED ON SATURDAYS, SUNDAYS, AND CHRISTMAS DAY DURING THE MONTH OF DECEMBER, IN LIEU OF COMPENSATORY TIME.

"/D) SUPERVISORY EMPLOYEES SHALL BE ALLOWED COMPENSATORY TIME FOR SERVICES PERFORMED IN EXCESS OF EIGHT HOURS PER DAY, AND THOSE WHOSE BASE SALARIES, EXCLUSIVE OF LONGEVITY SALARY, ARE MORE THAN $4,970 PER ANNUM SHALL BE ALLOWED COMPENSATORY TIME FOR SERVICES PERFORMED ON SATURDAYS, SUNDAYS, AND ON CHRISTMAS DAY DURING THE MONTH OF DECEMBER, WITHIN ONE HUNDRED AND EIGHTY DAYS FROM THE DAYS SUCH SERVICE WAS PERFORMED.'

UNDER THE STATUTE JUST QUOTED SUPERVISORY EMPLOYEES WHOSE BASE SALARIES, EXCLUSIVE OF LONGEVITY SALARY, EXCEED $4,970 PER ANNUM WERE REQUIRED TO BE GRANTED COMPENSATORY TIME FOR SERVICES PERFORMED ON SATURDAYS, SUNDAYS, AND CHRISTMAS DAY DURING THE MONTH OF DECEMBER, WHEREAS SUPERVISORY EMPLOYEES WHOSE BASE SALARY, EXCLUSIVE OF LONGEVITY SALARY, ARE $4,970 PER ANNUM OR LESS COULD IN THE DISCRETION OF THE POSTMASTER GENERAL HAVE BEEN PAID OVERTIME COMPENSATION IN LIEU OF COMPENSATORY TIME FOR WORK PERFORMED ON SUCH DAYS.

IN DECEMBER 1952, MR. SCHOENFELD'S BASE SALARY, EXCLUSIVE OF LONGEVITY SALARY, WAS LESS THAN $4,970 PER ANNUM AND APPARENTLY HE WAS PAID OVERTIME COMPENSATION IN ACCORDANCE WITH SECTION 3 (C) OF THE ACT OF JULY 6, 1945, AS AMENDED. AN ADJUSTMENT OF MR. SCHOENFELD'S COMPENSATION TO $5,170 PER ANNUM, EXCLUSIVE OF LONGEVITY SALARY, RETROACTIVELY TO JULY 1, 1952, AS PROVIDED FOR IN PUBLIC LAW 90 TECHNICALLY MIGHT BE CONSTRUED AS RETROACTIVELY INVALIDATING THE PAYMENTS COVERING OVERTIME SERVICES RENDERED DURING THE MONTH OF DECEMBER 1952. HOWEVER, WE DO NOT CONSIDER THAT SUCH A CONSTRUCTION IS REQUIRED HERE SINCE THE OVERTIME PAYMENTS WERE VALID WHEN MADE AND SINCE, IF SUCH A CONSTRUCTION WERE ADOPTED, IT WOULD BE IMPOSSIBLE AS OF THE TIME OF THE RETROACTIVE ADJUSTMENT TO COMPLY WITH SUBSECTION 3 (D) OF THE ACT OF JULY 6, 1945, REQUIRING THE GRANTING OF COMPENSATORY TIME WITHIN 180 DAYS TO THOSE SUPERVISORY EMPLOYEES WHO DO NOT RECEIVE OVERTIME COMPENSATION FOR SERVICES PERFORMED ON SATURDAYS, SUNDAYS, AND ON CHRISTMAS DAY DURING THE MONTH OF DECEMBER.

ACCORDINGLY, OUR VIEW IS THAT OTHERWISE PROPER PAYMENTS OF OVERTIME COMPENSATION TO SUPERVISORY EMPLOYEES COVERING WORK PERFORMED ON SATURDAYS, SUNDAYS, AND CHRISTMAS DAY IN THE MONTH OF DECEMBER IN A SITUATION LIKE THIS, NEED NOT BE QUESTIONED SOLELY BECAUSE THE EMPLOYEES MAY BE GRANTED RETROACTIVE SALARY INCREASES IN ACCORDANCE WITH PUBLIC LAW 90.

WE ARE ENCLOSING THE PAYROLL VOUCHER WHICH WAS TRANSMITTED HERE BY YOUR ASSISTANT CONTROLLER, BOSTON REGIONAL ACCOUNTING OFFICE. THAT PAYROLL MAY BE PROCESSED FOR PAYMENT IN ACCORDANCE WITH THE FOREGOING HOLDING.