B-138845, OCTOBER 19, 1959, 39 COMP. GEN. 293

B-138845: Oct 19, 1959

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POSTAL FIELD SERVICE EMPLOYEES - COMPENSATORY TIME - UNUSED AT TIME OF DEATH - DECEDENT'S ESTATE ENTITLEMENT COMPENSATORY TIME WHICH IS NOT REQUESTED OR USED BY POSTAL EMPLOYEES IN GRADE PFS-8 OR ABOVE AT THE TIME OF DEATH MAY NOT BE REGARDED AS A PERIOD OF TIME FOR WHICH COMPENSATION IS DUE TO THE DECEDENT'S ESTATE IN THE ABSENCE OF A PROVISION IN THE POSTAL FIELD SERVICE ACT OF 1955. POSTAL FIELD SERVICE EMPLOYEES IN GRADE PFS-7 OR BELOW WHO AT THE TIME OF DEATH HAVE UNUSED COMPENSATORY TIME FOR WORK ON SATURDAYS OR SUNDAYS OTHER THAN DURING THE MONTH OF DECEMBER MAY NOT HAVE CASH PAYMENTS MADE TO THEIR ESTATES FOR SUCH TIME IN THE ABSENCE OF AUTHORITY IN THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955 FOR PAYMENT OF OVERTIME FOR SUCH WORK.

B-138845, OCTOBER 19, 1959, 39 COMP. GEN. 293

POSTAL FIELD SERVICE EMPLOYEES - COMPENSATORY TIME - UNUSED AT TIME OF DEATH - DECEDENT'S ESTATE ENTITLEMENT COMPENSATORY TIME WHICH IS NOT REQUESTED OR USED BY POSTAL EMPLOYEES IN GRADE PFS-8 OR ABOVE AT THE TIME OF DEATH MAY NOT BE REGARDED AS A PERIOD OF TIME FOR WHICH COMPENSATION IS DUE TO THE DECEDENT'S ESTATE IN THE ABSENCE OF A PROVISION IN THE POSTAL FIELD SERVICE ACT OF 1955, WHICH AUTHORIZES THE PAYMENT OF OVERTIME PAY IN LIEU OF COMPENSATORY TIME TO EMPLOYEES IN OR ABOVE SUCH GRADE, AND THE ACT OF AUGUST 3, 1950, WHICH AUTHORIZES THE SETTLEMENT OF ACCOUNTS OF DECEASED EMPLOYEES, MAY NOT BE CONSTRUED AS AUTHORIZING PAYMENT FOR ANY ITEMS NOT OTHERWISE ALLOWABLE BY LAW. POSTAL FIELD SERVICE EMPLOYEES IN GRADE PFS-7 OR BELOW WHO AT THE TIME OF DEATH HAVE UNUSED COMPENSATORY TIME FOR WORK ON SATURDAYS OR SUNDAYS OTHER THAN DURING THE MONTH OF DECEMBER MAY NOT HAVE CASH PAYMENTS MADE TO THEIR ESTATES FOR SUCH TIME IN THE ABSENCE OF AUTHORITY IN THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955 FOR PAYMENT OF OVERTIME FOR SUCH WORK; HOWEVER, UNUSED COMPENSATORY TIME FOR WHICH OVERTIME PAY IS AUTHORIZED UNDER SUBSECTIONS 603 (2) (A) AND 603 (3) RELATING TO SATURDAYS AND SUNDAYS DURING DECEMBER AND TO HOLIDAYS, RESPECTIVELY, MAY BE REGARDED AS A PERIOD OF TIME FOR WHICH PAYMENT MAY BE MADE TO THE DECEASED EMPLOYEE'S ESTATE.

TO THE POSTMASTER GENERAL, OCTOBER 19, 1959:

ON AUGUST 31, 1959, YOUR REFERENCE 800, THE DEPUTY POSTMASTER GENERAL REQUESTED THAT WE CONSIDER FURTHER THE PROBLEM WHICH WAS THE SUBJECT OF OUR DECISION DATED MARCH 24, 1959, B-138845, TO AN AUTHORIZED CERTIFYING OFFICER OF THE POST OFFICE DEPARTMENT, IN THE CASE OF THE DECEDENT, MR. NORWOOD A. DAVIS, PFS-8.

OUR DECISION TO THE CERTIFYING OFFICER HELD THAT ALTHOUGH SUBSECTION 603 (4) OF THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955, PUBLIC LAW 68, 84TH CONGRESS, 69 STAT. 125, 126, 39 U.S.C. 1003 (4), REQUIRES THE GRANTING OF COMPENSATORY TIME TO POSTAL FIELD SERVICE EMPLOYEES IN OR ABOVE SALARY LEVEL PFS-8, THAT ACT CONTAINS NO PROVISION AUTHORIZING A PAYMENT OF OVERTIME PAY--- IN LIEU OF GRANTING COMPENSATORY TIME--- TO SUCH EMPLOYEES. THUS, WE CONCLUDED THAT PAYMENT TO MR. DAVIS' ESTATE, OR HIS WIDOW, FOR THE COMPENSATORY TIME HE HAD NOT USED PRIOR TO HIS DEATH IS NOT AUTHORIZED BY THE 1955 ACT.

SUBSECTIONS 603 (1), (2), AND (3) OF THE ACT, 39 U.S.C. 1003 (1), (2), (3), WHICH AUTHORIZE PAYMENT FOR COMPENSATORY TIME UNDER THE CIRCUMSTANCES DESCRIBED THEREIN, EXPRESSLY APPLY ONLY TO EMPLOYEES IN OR BELOW SALARY LEVEL PFS-7. HENCE, IN LIGHT OF THE RESTRICTIONS WHICH SECTION 603, 39 U.S.C. 1003, IMPOSES UPON PAYMENT FOR COMPENSATORY OVERTIME, OUR DECISION CONSTRUED SECTION 756.24 OF THE POSTAL MANUAL, WHICH DEALS WITH PAYMENT FOR COMPENSATORY TIME IN CERTAIN CIRCUMSTANCES INCLUDING THAT OF A DECEDENT, AS BEING APPLICABLE ONLY TO THOSE EMPLOYEES WHO OTHERWISE ARE ENTITLED TO OVERTIME COMPENSATION UNDER SUBSECTION 603 (1), (2), AND (3).

AS POINTED OUT IN OUR DECISION OF MARCH 24, 1959, THE STATEMENT MADE AT PAGE 38 OF HOUSE OF REPRESENTATIVES REPORT NO. 728, 84TH CONGRESS, UPON THE BILL S. 2061, WHICH BECAME PUBLIC LAW 68, IS TO THE EFFECT THAT SUCH EMPLOYEES IN OR ABOVE PFS-8, WHO ARE REQUIRED TO WORK OVERTIME OR ON HOLIDAYS, MAY NOT RECEIVE OVERTIME OR HOLIDAY PAY, AND THAT SUCH EMPLOYEES' SATURDAY AND SUNDAY WORK WILL COME WITHIN THIS RULE. NOTWITHSTANDING THAT CONGRESSIONAL VIEW, HOWEVER, SUBSECTION 756.24 OF THE POSTAL MANUAL PURPORTS TO PROVIDE FOR REGULAR EMPLOYEES-- OTHER THAN THOSE CLASSES NAMED IN SUBSECTIONS 756.21 TO .23, WHICH ARE NOT INVOLVED HERE--- "COMPENSATORY TIME EARNED BY THE EMPLOYEE THAT CANNOT BE TAKEN WITHIN THE PRESCRIBED TIME LIMIT BECAUSE OF THE INTERVENTION OF * * * DEATH * * * SHALL BE GRANTED AND PAID FOR AT THE EARLIEST SUBSEQUENT DATE.'

YOUR DEPUTY POSTMASTER GENERAL REQUESTS US TO RECONSIDER THE MATTER UPON THE GROUND THAT OUR DECISION OF MARCH 24, 1959, AND THE DECISION 31 COMP. GEN. 515 CITED THEREIN DID NOT SPECIFICALLY CONSIDER THE PROVISIONS OF PUBLIC LAW 636, 81ST CONGRESS, 64 STAT. 395. SECTION 1 OF THAT ACT, 5 U.S.C. 61F, PROVIDES THE ORDER OF PAYMENT FOR "ALL UNPAID COMPENSATION DUE" AN EMPLOYEE AT THE TIME OF HIS DEATH. FOR THE PURPOSES OF THAT ACT, SECTION 2, 5 U.S.C. 61G, SAYS THE TERM "UNPAID COMPENSATION" MEANS THE PAY, SALARY, OR ALLOWANCES, OR OTHER COMPENSATION DUE ON ACCOUNT OF THE SERVICES OF THE DECEDENT; THAT IT SHALL INCLUDE, BUT NOT BE LIMITED TO CERTAIN REIMBURSEMENTS, ALLOWANCES, AWARDS, REFUNDS, ETC., THEREIN DESCRIBED, INCLUDING "OVERTIME OR PREMIUM PAY" AND "/6), 5 U.S.C. 61F NOTE, PAYMENT FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE EQUAL TO THE COMPENSATION THE DECEDENT WOULD HAVE RECEIVED HAD HE REMAINED IN SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE.'

WE HAVE CAREFULLY CONSIDERED THE IMPORT OF THE PHRASE "ANNUAL OR VACATION LEAVE," AS EMPHASIZED IN YOUR DEPARTMENT'S LETTER OF AUGUST 31. OUR SEARCH OF THE LEGISLATIVE HISTORIES OF STATUTES USING THAT PHRASE ( PUBLIC LAW 525, 78TH CONGRESS, 58 STAT. 845, 5 U.S.C. 61B; PUBLIC LAW 102, 83D CONGRESS, 67 STAT. 136, 5 U.S.C. 2061; PUBLIC LAW 763, 83D CONGRESS, 68 STAT. 1105, 1115) REVEALS NO ASPECT OR CIRCUMSTANCE SUGGESTING THAT SUCH PHRASE SHOULD HAVE MEANING OTHER THAN THAT WHICH USUALLY SHOULD BE GIVEN A GRAMMATICAL CORRELATIVE. THAT IS TO SAY, THE WORDS "ANNUAL" AND ,VACATION" WHEN USED IN CONJUNCTION WITH THE WORD "LEAVE" IN THE STATUTES ARE REGARDED GENERALLY AS BEING SYNONYMOUS IN NATURE. MOREOVER, IT IS EVIDENT FROM THE LEGISLATIVE HISTORY OF PUBLIC LAW 636 THAT THE REASONS FOR ITS ENACTMENT WERE TO EXPEDITE THE PAYMENT OF AMOUNTS DUE DECEASED CIVILIAN EMPLOYEES AND REDUCE ADMINISTRATIVE EXPENSES RATHER THAN TO AUTHORIZE PAYMENT OF ANY ITEMS NOT OTHERWISE ALLOWABLE UPON THE DEATH OF THE EMPLOYEE.

THE DECISION IN 31 COMP. GEN. 245, REFERRED TO IN THE DEPUTY POSTMASTER GENERAL'S LETTER OF AUGUST 31, 1959, CONCERNED A DEPARTMENTAL EMPLOYEE TO WHOM COMPENSATION FOR IRREGULAR OVERTIME SERVICE WAS PAYABLE UNDER SECTION 202 OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 912. THAT ACT AND THE DECISION IN 31 COMP. GEN. 245 HAVE NO APPLICATION WHATEVER TO THE POSTAL FIELD SERVICE EMPLOYEES, WHOSE COMPENSATION IS GOVERNED BY THE PROVISIONS OF PUBLIC LAW 68, 84TH CONGRESS, WHICH SUPERSEDES VARIOUS SIMILAR PROVISIONS OF PUBLIC LAW 134, 79TH CONGRESS, AS AMENDED. SECTION 3/D) OF PUBLIC LAW 134, 39 U.S.C. 853 (D), PLACED A LIMIT OF 180 DAYS WITHIN WHICH CERTAIN GRADES OF SUPERVISORY EMPLOYEES "SHALL BE ALLOWED COMPENSATORY TIME.' SECTION 603 (4) OF PUBLIC LAW 68 DID NOT REENACT SUCH LIMITATION, BUT THE REGULATIONS ( POSTAL MANUAL, SECTION 755.14) PRESCRIBED THEREUNDER SET A LIMITATION OF "13 PAY PERIODS FOLLOWING THE END OF THE PAY PERIOD IN WHICH THE SERVICE WAS PERFORMED," WITHIN WHICH THE ACCRUED COMPENSATORY TIME OF AN EMPLOYEE (PFS-8 OR ABOVE) "SHALL BE GRANTED.' THAT REGULATION ALSO PROVIDES SUCH COMPENSATORY TIME SHALL BE GRANTED WHEN THE EMPLOYEE'S SERVICES CAN BEST BE SPARED AND, WHEN SUPERVISORY COVERAGE IS SUFFICIENT, THAT SATURDAY- SUNDAY COMPENSATORY TIME SHALL BE GRANTED WITHIN 5 WORKING DAYS FOLLOWING THE SATURDAY OR SUNDAY ON WHICH THE SERVICE WAS PERFORMED IN THAT CONNECTION, THE WORD ,GRANT" CONNOTES THAT A REQUEST BE MADE BY THE SUPERVISORY EMPLOYEE WITHIN THE TIME LIMITS SPECIFIED. THUS, WHEN THE SUPERVISORY EMPLOYEE FOR PERSONAL REASONS DOES NOT REQUEST AND USE THE COMPENSATORY TIME IN QUESTION, OUR VIEW IS THAT NEITHER ACT, PUBLIC LAW 68 NOR PUBLIC LAW 134, WOULD VEST IN HIS BENEFICIARY, WIDOW, ESTATE, ETC., A RIGHT TO A PAYMENT OF COMPENSATION OR ADDITIONAL SALARY THEREFOR UNDER PUBLIC LAW 636.

REGARDING EMPLOYEES IN OR BELOW SALARY LEVEL PFS-7, OUR VIEW REGARDING A PFS-8 EMPLOYEE'S REQUEST, GRANT, AND USE OF COMPENSATORY TIME APPLIES, EXCEPT AS OTHERWISE PROVIDED IN SECTION 603 (1) REGARDING WORK IN EXCESS OF 8 HOURS IN ONE DAY AND IN SECTION 603 (2) (A) SECOND CLAUSE, 5 U.S.C. 1003 (2) (A) REGARDING SATURDAYS AND SUNDAYS DURING THE MONTH OF DECEMBER, AND EXCEPTING SECTION 603 (3) REGARDING "PREMIUM COMPENSATION" FOR THE HOLIDAY AND CHRISTMAS DAY SERVICE DESCRIBED THEREIN.

THEREFORE, REGARDING THE LAST PARAGRAPH OF YOUR DEPUTY POSTMASTER GENERAL'S LETTER, NAMELY, WHETHER CASH PAYMENTS LEGALLY MAY BE MADE ON ACCOUNT OF UNUSED COMPENSATORY TIME CREDITED AT TIME OF DEATH, TO EMPLOYEES IN PFS-7 AND BELOW, OUR ANSWER TO QUESTION 1 (A) IS IN THE NEGATIVE, CONCERNING SATURDAY OR SUNDAY WORK OTHER THAN DURING THE MONTH OF DECEMBER. QUESTION 1 (B) IS ANSWERED IN THE AFFIRMATIVE, CONCERNING "PFS-7 AND BELOW" EMPLOYEE'S SERVICE ON SATURDAYS AND SUNDAYS DURING DECEMBER (SUBSECTION 603 (2) (A) SECOND CLAUSE) AND ON HOLIDAYS UNDER SECTION 603 (3). HOWEVER, IN THE ABSENCE OF SIMILAR PROVISIONS IN SECTION 603 (4), OUR ANSWER TO QUESTION 2, REGARDING EMPLOYEES IN PFS-8 AND ABOVE, IS IN THE NEGATIVE REGARDING PAYMENT OF STRAIGHT HOURLY RATES TO SUCH DECEDENTS' ESTATES FOR UNUSED COMPENSATORY TIME.