B-128225, JUN. 25, 1956

B-128225: Jun 25, 1956

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THAT AMOUNT REPRESENTS PROPOSED ADDITIONAL COMPENSATION FOR THE 34 EMPLOYEES IN THE OFFICE OF THE SECRETARY OF THE TREASURY WHOSE POSITIONS WERE CONVERTED ON JULY 3. SUCH CONVERSION WAS ACCOMPLISHED IN THE TREASURY DEPARTMENT AS INDICATED BELOW. SUCH EMPLOYEES' COMPENSATION "SHALL BE FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES.'. 1955) IS AS FOLLOWS: "SOME CPC EMPLOYEES ASSIGNED TO NIGHT WORK ARE RECEIVING AN AGGREGATE RATE OF PAY (BASIC SALARY PLUS NIGHT DIFFERENTIAL) HIGHER THAN THE NIGHT WAGE RATE FOR THE WAGE BOARD GRADES IN WHICH THEIR JOBS WILL BE PLACED JULY 3. HIS AGGREGATE RATE FOR NIGHT WORK IS $1.54 AN HOUR.

B-128225, JUN. 25, 1956

TO MRS. GOLDA F. SOLTER, AUTHORIZED CERTIFYING OFFICER, TREASURY DEPARTMENT:

YOUR LETTER OF JUNE 12, 1956, REQUESTS OUR DECISION WHETHER YOU LEGALLY MAY CERTIFY FOR PAYMENT THE ENCLOSED SUPPLEMENTAL PAYROLL VOUCHER IN THE AMOUNT OF $2,158.61. THAT AMOUNT REPRESENTS PROPOSED ADDITIONAL COMPENSATION FOR THE 34 EMPLOYEES IN THE OFFICE OF THE SECRETARY OF THE TREASURY WHOSE POSITIONS WERE CONVERTED ON JULY 3, 1955, FROM CLASSIFICATION ACT GRADES (CPC) TO PREVAILING WAGE RATE GRADES (WB-C) PURSUANT TO THE ACT OF SEPTEMBER 1, 1954, PUBLIC LAW 763, TITLE I, SECTIONS 105/A), 106/A), AND 114, 68 STAT. 1106, 1107, 1108.

SECTION 114 OF THE ACT PROVIDES AS FOLLOWS:

"NOTHING CONTAINED IN THIS TITLE SHALL BE CONSTRUED TO DECREASE THE EXISTING RATE OF BASIC COMPENSATION OF ANY PRESENT EMPLOYEE, BUT WHEN HIS POSITION BECOMES VACANT ANY SUBSEQUENT APPOINTEE TO SUCH POSITION SHALL BE COMPENSATED IN ACCORDANCE WITH THE SCALE OF PAY APPLICABLE TO SUCH POSITION.'

THE FIRST CLAUSE OF THAT PROVISION PRESCRIBES THE MINIMUM HOURLY RATE WHICH MUST BE SAVED AT THE TIME OF CONVERSION. SUCH CONVERSION WAS ACCOMPLISHED IN THE TREASURY DEPARTMENT AS INDICATED BELOW.

UNDER THE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION PURSUANT TO THE ACT, THE EMPLOYING AGENCY MAY ALSO SAVE THE PRIOR NIGHT DIFFERENTIAL OF 10 PERCENT. AFTER CONVERSION TO A PREVAILING WAGE SYSTEM, AND IN ACCORDANCE WITH SECTION 202/7) OF THE CLASSIFICATION ACT, AS AMENDED, 68 STAT. 1106, SUCH EMPLOYEES' COMPENSATION "SHALL BE FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES.'

IN THAT REGARD, THE TREASURY DEPARTMENT WAGE BOARD DECISION (APPROVED BY THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE TREASURY JUNE 27, 1955) IS AS FOLLOWS:

"SOME CPC EMPLOYEES ASSIGNED TO NIGHT WORK ARE RECEIVING AN AGGREGATE RATE OF PAY (BASIC SALARY PLUS NIGHT DIFFERENTIAL) HIGHER THAN THE NIGHT WAGE RATE FOR THE WAGE BOARD GRADES IN WHICH THEIR JOBS WILL BE PLACED JULY 3, 1955, OR ON SOME LATER DATE AFTER JULY 3, BUT BEFORE SEPTEMBER 12, 1955.

"EXAMPLE: A CPC-2 LABORER, ON THE NIGHT SHIFT, NOW RECEIVES A BASIC RATE OF $1.40 AN HOUR ($2910 P.A.) UNDER THE CLASSIFICATION ACT. HE RECEIVES A NIGHT DIFFERENTIAL OF 10 PERCENT OF .14. HIS AGGREGATE RATE FOR NIGHT WORK IS $1.54 AN HOUR. THE NIGHT RATE ESTABLISHED FOR HIS JOB UNDER WAGE BOARD PROCEDURE WILL BE $1.12 AN HOUR, (110 PERCENT OF THE DAY RATE OF $1.02 AN HOUR.)

"SECTION 114 OF THE FRINGE BENEFITS ACT PROVIDES CPC EMPLOYEES WILL CONTINUE TO BE PAID AT THEIR "BASIC" CLASSIFICATION ACT RATES WHERE SUCH RATES ARE HIGHER THAN THE WAGE RATES ESTABLISHED FOR THEM UNDER WAGE BOARD PROCEDURE. LITERAL APPLICATION OF THIS LANGUAGE WOULD REQUIRE A REDUCTION IN "TAKE HOME" PAY FOR SOME EMPLOYEES. FOR INSTANCE, IT WOULD REQUIRE A REDUCTION FROM AN AGGREGATE OF $1.54 AN HOUR TO $1.40 AN HOUR IN THE EXAMPLE ABOVE. DAY EMPLOYEES SUBJECT TO THE SAME CIRCUMSTANCES IN THE EXAMPLE ABOVE WILL RETAIN $1.40 AN HOUR UNDER THE SECTION 114 "SAVINGS" PROVISION. SAVING THE BASIC CPC RATE FOR BOTH NIGHT AND DAY EMPLOYEES WOULD RESULT IN BOTH RECEIVING THE SAME RATE OF $1.40 AN HOUR.

"THE WAGE BOARD BELIEVES THAT NIGHT EMPLOYEES SHOULD RECEIVE MORE PAY THAN DAY EMPLOYEES. THIS PRACTICE IS GENERALLY FOLLOWED IN INDUSTRY AND GOVERNMENT. THE WAGE BOARD HAS ADEQUATE AUTHORITY AND JUSTIFICATION UNDER (1) THE "PUBLIC INTEREST" CLAUSE IN SECTION 202/7) OF THE CLASSIFICATION ACT, AND (2) THE SPIRIT AND PRINCIPLE OF THE SAVINGS PROVISION IN SECTION 114 OF THE FRINGE BENEFITS ACT, TO APPROVE CONTINUANCE OF THE PRESENT AGGREGATE RATE FOR THE NIGHT EMPLOYEES. IT IS THE DECISION OF THE WAGE BOARD THAT:

"AN EMPLOYEE ON NIGHT WORK WHOSE CPC POSITION WILL BE CHANGED TO A WAGE BOARD JOB SHALL BE PERMITTED TO RETAIN HIS PRESENT AGGREGATE RATE OF PAY AS A SPECIAL NIGHT WAGE RATE, IF THE NIGHT WAGE RATE ESTABLISHED FOR HIS JOB UNDER THE WAGE BOARD SYSTEM IS LESS THAN HIS BASIC CLASSIFICATION ACT SALARY RATE PLUS HIS CLASSIFICATION ACT NIGHT DIFFERENTIAL.'

IT APPEARS THE TOUR OF DUTY OF THE 34 EMPLOYEES HERE INVOLVED WAS FROM 5 P.M. TO 1 A.M. DURING THE PERIOD FROM JULY 3, 1955, TO JUNE 2, 1956. HOWEVER, FOR THE ACTUAL TIME WORKED, THEY WERE PAID THE "SAVED" DAY RATE FOR 1 HOUR (5 P.M. TO 6 P.M.) AND FOR 7 HOURS (6 P.M. TO 1 A.M.) THEIR PAY WAS COMPUTED AT THEIR "SAVED" DAY RATE PLUS 10 PERCENT. ALSO, WE UNDERSTAND THAT YOUR OFFICE CONTINUED TO COMPUTE THEIR COMPENSATION WHILE ON LEAVE WITH PAY OF 8 OR MORE HOURS AT THE "SAVED" DAY RATE IN ACCORDANCE WITH SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 68 STAT. 1110, NOTWITHSTANDING THE PROVISIONS OF SECTION 102 (C) OF THAT ACT.

SUBSEQUENTLY, AFTER REFERENCE TO OUR DECISIONS AT 31 COMP. GEN. 48, 391, AND 34 COMP. GEN 708, AND TO THE CIVIL SERVICE COMMISSION'S CONVERSION REGULATIONS, 5 C.F.R. 25.501 TO 25.505 (F.P.M. Z1-331), THE DIRECTOR OF ADMINISTRATIVE SERVICES OF THE OFFICE OF THE SECRETARY ADVISED YOU ON JUNE 7, 1956, THAT THE "SPECIAL NIGHT WAGE RATE" DESCRIBED IN THE ABOVE-QUOTED WAGE BOARD DECISION CONSTITUTES "BASIC PAY" AND IS THE "BASIC NIGHT RATE" OF THESE CONVERTED EMPLOYEES. SUCH VIEW APPEARS CONSISTENT WITH THE WAGE PRACTICES IN OTHER AGENCIES OF THE TREASURY DEPARTMENT AND OTHER DEPARTMENTS WHEREIN THE NIGHT "SAVED" RATE IS PAID FOR THE ENTIRE DAILY TOUR OF DUTY WHEN HALF OR MORE OF THE SHIFT OR NIGHT WORK IS PERFORMED AFTER 6 P.M. HENCE, THE DIRECTOR FURTHER ADVISED YOU THAT THESE NIGHT EMPLOYEES SHOULD BE PAID AT THEIR "BASIC NIGHT RATE" FOR ALL 8 OF THE HOURS, 5 P.M. TO 1 A.M. WHILE IN A PAY STATUS. THEREFORE, YOUR SPECIFIC QUESTION, WHETHER SUCH NIGHT BASIC WAGE RATE OF THESE CONVERTED OR "SAVED RATE" EMPLOYEES IS VALID FOR RETIREMENT, OVERTIME, AND LEAVE COMPUTATIONS, IS ANSWERED IN THE AFFIRMATIVE.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.