B-128029, JULY 16, 1956, 36 COMP. GEN. 37

B-128029: Jul 16, 1956

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THE FIXING OF THE NIGHT DIFFERENTIAL IS FOR ADMINISTRATIVE DETERMINATION. EMPLOYEES WHOSE POSITIONS HAVE BEEN CONVERTED FROM CLASSIFIED SCHEDULE TO PREVAILING WAGE SYSTEM ARE ENTITLED TO LEAVE COMPENSATION COMPUTED IN ACCORDANCE WITH THE PRACTICE APPLICABLE TO WAGE BOARD EMPLOYEES AND. IS ENTITLED TO LEAVE COMPENSATION AT THE ESTABLISHED NIGHT RATE FOR THE POSITION. HENCE PAYROLL DEDUCTIONS FOR RETIREMENT AND INSURANCE ARE TO BE BASED ON THE EMPLOYEE'S AGGREGATE COMPENSATION. OUR DECISION IS REQUESTED UPON VARIOUS QUESTIONS THAT HAVE ARISEN IN THE MATTER OF PAYING THEM FOR OVERTIME SERVICES. THE VIEW EXPRESSED IN THE LETTER IS THAT SALARY TABLE NO. 37. IT HAS NO APPLICATION AFTER CONVERSION IS EFFECTED.

B-128029, JULY 16, 1956, 36 COMP. GEN. 37

COMPENSATION - CONVERSION OF POSITIONS FROM CLASSIFIED TO PREVAILING WAGE SYSTEM - OVERTIME, NIGHT DIFFERENTIAL, LEAVE PAYMENTS UPON CONVERSION OF A POSITION FROM CLASSIFIED SCHEDULE TO PREVAILING WAGE SYSTEM, THE POSITION BECOMES ONE OF THE "SEVERAL TRADES AND OCCUPATIONS," AND OVERTIME SHOULD BE COMPUTED IN ACCORDANCE WITH 5 U.S.C. 673C ON THE SAVED BASIC RATE OF COMPENSATION SO LONG AS THE EMPLOYEE REMAINS IN THE CONVERTED POSITION; HOWEVER, THE FIXING OF THE NIGHT DIFFERENTIAL IS FOR ADMINISTRATIVE DETERMINATION. EMPLOYEES WHOSE POSITIONS HAVE BEEN CONVERTED FROM CLASSIFIED SCHEDULE TO PREVAILING WAGE SYSTEM ARE ENTITLED TO LEAVE COMPENSATION COMPUTED IN ACCORDANCE WITH THE PRACTICE APPLICABLE TO WAGE BOARD EMPLOYEES AND, THEREFORE, AN EMPLOYEE WHOSE TOUR OF DUTY FALLS BETWEEN 6:00 P.M. AND 6:00 A.M. IS ENTITLED TO LEAVE COMPENSATION AT THE ESTABLISHED NIGHT RATE FOR THE POSITION. THE HOURLY DAY RATE SAVED TO AN EMPLOYEE, WHOSE POSITION HAS BEEN CONVERTED FROM CLASSIFIED SCHEDULE TO PREVAILING WAGE SYSTEM, CONSTITUTES THE BASIC PAY FOR THAT WAGE BOARD SHIFT, AND THE NIGHT RATE CONSTITUTES BASIC COMPENSATION FOR THE NIGHT SHIFT; HENCE PAYROLL DEDUCTIONS FOR RETIREMENT AND INSURANCE ARE TO BE BASED ON THE EMPLOYEE'S AGGREGATE COMPENSATION, EXCLUDING OVERTIME, FOR THE EMPLOYEE'S REGULARLY SCHEDULED TOURS OF DUTY FOR EACH PAY PERIOD.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, JULY 16, 1956:

THE LETTER OF THE ACTING SECRETARY, DATED MAY 22, 1956, STATES THAT UPON CONVERSION FROM THE CPC SCHEDULE TO A PREVAILING RATE SCHEDULE MANY EMPLOYEES OF YOUR DEPARTMENT RETAINED THEIR "EXISTING RATE OF BASIC COMPENSATION" UNDER THE CLASSIFICATION ACT OF 1949, AS PROVIDED IN SECTION 114 OF THE ACT OF SEPTEMBER 1, 1954, PUBLIC LAW 763, 68 STAT. 1108, 5 U.S.C. 1114. OUR DECISION IS REQUESTED UPON VARIOUS QUESTIONS THAT HAVE ARISEN IN THE MATTER OF PAYING THEM FOR OVERTIME SERVICES, NIGHT DIFFERENTIAL, ETC. THE VIEW EXPRESSED IN THE LETTER IS THAT SALARY TABLE NO. 37, SUPPLEMENT NO. 1, PRESCRIBES FOR CONVERTED EMPLOYEES THE SAME OVERTIME AND NIGHT PAY RATES AS THEY HAD RECEIVED IN THEIR CLASSIFIED ACT POSITIONS. WE WISH TO POINT OUT THAT SUPPLEMENT NO. 1 MERELY PROVIDES IN EASY REFERENCE FORM A LISTING OF HOURLY RATES OF COMPENSATION WHICH HAD BEEN OMITTED FROM SALARY TABLES NO. 36 AND NO. 37, AND THAT THE HOURLY EQUIVALENTS OF PER ANNUM SALARIES SHOWN THEREIN WOULD BE FOR CONSIDERATION ONLY IN THE CONVERSION OF CPC POSITIONS TO A WAGE RATE SYSTEM. IT HAS NO APPLICATION AFTER CONVERSION IS EFFECTED. THE 10 PERCENT NIGHT DIFFERENTIAL WHICH MAY BE SAVED ADMINISTRATIVELY (IN ADDITION TO THE BASIC DAY RATES SAVED BY SECTION 114) ARE NOT REQUIRED TO BE SAVED BY THE ACT, AND DO NOT APPLY AFTER THE CONVERSION OF POSITIONS UNLESS THE 10 PERCENT NIGHT RATE IS FOUND ADMINISTRATIVELY TO BE "CONSISTENT WITH THE PUBLIC INTEREST" UNDER SECTION 202 (7) OF THE CLASSIFICATION ACT, AS AMENDED, 68 STAT. 1106, 5 U.S.C. 901.

AS TO THE QUESTIONS PRESENTED, THE LETTER STATES THAT THE POSITION OF AN EMPLOYEE FORMERLY CLASSIFIED AS GS-9 ($6,250 PER ANNUM, OR $3 PER HOUR) WAS CONVERTED TO WAGE BOARD GRADE 23. AS THE TOP STEP OF GRADE 23 IN THE AREA IS $2.96 PER HOUR, THE CONVERTED EMPLOYEE RETAINED HIS CLASSIFIED DAY RATE OF $3 PER HOUR (THE HOURLY EQUIVALENT OF $6,250). ALSO, WHEN HE PERFORMED OVERTIME WORK HE WAS PAID $3.93 PER HOUR, THE OVERTIME RATE HE WOULD HAVE RECEIVED IN HIS FORMER GS-9 POSITION. AS A RESULT HE RECEIVED A LOWER RATE FOR OVERTIME WORK THAN AN ASSOCIATE WHOSE CLASSIFIED RATE HAD BEEN CONVERTED TO THE TOP STEP $2.96 PER HOUR) OF THE SAME GRADE 23, AND WHO THEREFORE RECEIVED $4.44 PER HOUR FOR OVERTIME WORK UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, 5 U.S.C. 673C. BECAUSE OF THE APPARENT INEQUITY, OUR REVIEW IS REQUESTED WHETHER THERE IS VALID BASIS FOR THE CONTINUED APPLICATION OF PER ANNUM HOURLY OVERTIME RATES TO SUCH CONVERTED EMPLOYEES WHO ARE RECEIVING "SAVED" BASIC RATES IN WAGE BOARD POSITIONS. IN THAT CONNECTION, WE ARE REQUESTED TO CONSIDER THE FOLLOWING COMMENTS SET OUT IN THE DEPARTMENT'S LETTER:

A. 5 U.S.C. 673C REQUIRES COMPENSATION "AT THE RATE OF NOT LESS THAN TIME AND ONE-HALF" FOR EMPLOYEES IN THE SEVERAL TRADES AND OCCUPATIONS FOR WHICH COMPENSATION IS "SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITY.' EMPLOYEES RECEIVING SAVED BASIC RATES ARE EMPLOYEES IN THESE TRADES.

B. THE PROVISION OF THE STATUTE WHICH SAVES THEIR RATES APPEARS TO ESTABLISH THESE SAVED BASIC RATES AS AUTHORIZED RATES OF THE WAGE BOARD GRADE AS LONG AS THE EMPLOYEES RECEIVING THEM REMAIN IN THE SAME POSITIONS.

C. SAVED BASIC RATES DIFFER FROM THE "SAVED NIGHT DIFFERENTIALS" AND "SAVED TERRITORIAL ALLOWANCES" WHICH WERE THE SUBJECT OF 34 CG708, B- 124070 OF JUNE 28, 1955, WHICH ARE SAVED ONLY BY ADMINISTRATIVE ACTION, BASED ON PREVIOUS CLASSIFICATION ACT RATES, RATHER THAN BY A STATUTORY PROVISION APPLYING TO ALL POSITIONS CONVERTED TO THE PREVAILING RATE SYSTEM.

THOSE CONCLUSIONS ARE SUBSTANTIALLY IN ACCORD WITH OUR VIEWS OF THE MATTER. THAT IS TO SAY, UPON CONVERSION FROM A CLASSIFICATION ACT POSITION TO A WAGE BOARD GRADE, THE COMPENSATION OF THE EMPLOYEE AFFECTED CEASES TO BE SUBJECT TO THE RULES THERETOFORE OBSERVED IN COMPUTING THE PER ANNUM PAY HE PREVIOUSLY RECEIVED BY VIRTUE OF THAT ACT. THE CONVERTED EMPLOYEE'S POSITION THEN BECOMES ONE OF THE "SEVERAL TRADES AND OCCUPATIONS" WHOSE OVERTIME COMPENSATION IS COMPUTED IN ACCORDANCE WITH THE CITED 1934 ACT, 5 U.S.C. 673C. SO LONG AS THE EMPLOYEE REMAINS IN THE SAME CONVERTED POSITION HIS "SAVED BASIC RATE" IS TO BE REGARDED AS HIS AUTHORIZED "WAGE BOARD RATE.' ALTHOUGH AN EMPLOYEE'S AGGREGATE RATE FOR NIGHT WORK OR FOR OVERSEA SERVICE IS ADMINISTRATIVELY SAVED TO HIM UPON CONVERSION TO A PREVAILING WAGE SYSTEM, SUCH NIGHT RATE OR OVERSEAS RATE THEREAFTER CONSTITUTES HIS BASIC COMPENSATION FOR SUCH SERVICE.

REGARDING THE NIGHT RATE OF THE EMPLOYEE DISCUSSED ABOVE, IN 34 COMP. GEN. 708 (B-124070) WE HELD THAT THE SAVING OF THE 10 PERCENT NIGHT DIFFERENTIAL IS NOT REQUIRED BY THE ACT, BUT THAT IT WAS FOR ADMINISTRATIVE DETERMINATION WHETHER SUCH ACTION IS NECESSARY IN THE PUBLIC INTEREST. IN THAT SITUATION THE DEPARTMENT'S LETTER PRESENTS THE FOLLOWING QUESTIONS:

A. WOULD IT BE WITHIN THE DISCRETION OF A DEPARTMENT TO PAY SUCH AN EMPLOYEE $3.10 FOR NIGHT WORK, IF THE 2D AND 3D SHIFT RATE FOR HIS AREA, BASED ON PREVAILING PRACTICE, WERE A FLAT 10 CENTS ABOVE THE DAY RATE?

B. ARE EMPLOYEES (WHO ARE) RECEIVING SAVED RATES AND ASSIGNED TO PREVAILING RATE SYSTEM POSITIONS TO BE PAID WHOLLY IN ACCORDANCE WITH REGULATIONS PRESCRIBED UNDER THE CLASSIFICATION ACT OF 1949? FOR EXAMPLE, MUST A NIGHT SHIFT EMPLOYEE WHO RECEIVES A SAVED BASIC RATE BE PAID AT HIS DAY RATE FOR ALL LEAVE WITH PAY OF 8 HOURS OR MORE IN A PAY PERIOD? MUST RETIREMENT AND INSURANCE COVERAGE AND DEDUCTIONS BE BASED ON HIS SAVED DAY RATE ONLY?

IN LIGHT OF WHAT IS SAID HEREINBEFORE--- TO THE EFFECT THAT A CLASSIFICATION ACT POSITION UPON CONVERSION UNDER PUBLIC LAW 763 BECOMES ONE OF THE SEVERAL TRADES AND OCCUPATIONS WHOSE COMPENSATION IS FIXED OR TO BE ADJUSTED FROM TIME TO TIME BY WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES--- QUESTION "A" IS ANSWERED IN THE AFFIRMATIVE, AND OUR ANSWER TO THE FIRST QUESTION UNDER "B" IS IN THE NEGATIVE.

THE SECOND PART OF QUESTION "B" APPARENTLY RELATES TO SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 921, AS AMENDED BY SECTION 206 OF PUBLIC LAW 763, 68 STAT. 1110. IN VIEW OF SECTION 102 (C) OF THAT ACT (5 U.S.C. 902 (C) (, SECTION 301 HAS NO APPLICATION TO CONVERTED EMPLOYEES WHOSE LEAVE COMPENSATION WHILE IN PAY STATUS IS FOR COMPUTATION IN ACCORDANCE WITH PREVAILING PRACTICES APPLICABLE TO REGULAR WAGE BOARD EMPLOYEES. WE UNDERSTAND THAT IN THE WASHINGTON, D.C. METROPOLITAN AREA, WHEN HALF OR MORE OF AN EMPLOYEE'S SCHEDULED TOUR OF DUTY FALLS BETWEEN 6 P.M. AND 6 A.M., ALL HOURS OF HIS WORK OR LEAVE DURING SUCH TOUR ARE COMPENSABLE AT THE ESTABLISHED NIGHT RATE FOR HIS POSITION. HENCE, OUR ANSWER TO THE SECOND PART OF QUESTION "B" IS IN THE NEGATIVE.

AS TO THE THIRD PART OF QUESTION "B," ALTHOUGH THE EMPLOYEE'S HOURLY DAY RATE IS "SAVED" BY STATUTE, IT CONSTITUTES HIS BASIC PAY FOR THAT WAGE BOARD SHIFT; HOWEVER, HIS NIGHT RATE CONSTITUTES BASIC COMPENSATION FOR HIS WAGE BOARD NIGHT WORK. IN OTHER WORDS, PAYROLL DEDUCTIONS FOR RETIREMENT AND INSURANCE COVERAGE ARE TO BE BASED UPON HIS AGGREGATE COMPENSATION--- EXCLUDING OVERTIME COMPENSATION--- PAID FOR HIS REGULARLY SCHEDULED TOURS OF DUTY EACH PAY PERIOD. SEE B 128225 DATED JUNE 25, 1956.