B-36397, AUGUST 28, 1943, 23 COMP. GEN. 145

B-36397, AUGUST 28, 1943, 23 COMP. GEN. 145

OFFICERS AND EMPLOYEES - REGULAR AND OVERTIME COMPENSATION PAYABLE DURING PERIOD OF DETAIL AN EMPLOYEE WHO IS DETAILED FROM ONE POSITION TO ANOTHER IN THE SAME DEPARTMENT OR AGENCY OF THE GOVERNMENT IS ENTITLED, DURING THE PERIOD OF THE DETAIL, TO THE COMPENSATION FIXED BY LAWS AND REGULATIONS APPLICABLE TO HIS REGULAR POSITION RATHER THAN THE COMPENSATION APPLICABLE TO THE POSITION TO WHICH DETAILED, AND, THEREFORE, A CIVILIAN EMPLOYEE OF THE COAST GUARD WHO WAS DETAILED TO THE OFFICE OF MARINE INSPECTION--- BOTH OF WHICH NOW ARE UNDER THE NAVY DEPARTMENT--- MAY NOT BE PAID OVERTIME COMPENSATION UNDER THE ACT OF MAY 26, 1936, RESPECTING OVERTIME COMPENSATION FOR OFFICE OF MARINE INSPECTION EMPLOYEES, BUT, RATHER, IS REQUIRED TO BE PAID OVERTIME COMPENSATION UNDER THE WAR OVERTIME PAY ACT OF 1943. THE PROVISION IN SECTION 7 OF THE WAR OVERTIME PAY ACT OF 1943, THAT "* * * THIS ACT SHALL NOT OPERATE TO PREVENT PAYMENT FOR OVERTIME SERVICES IN ACCORDANCE WITH ANY OF THE FOLLOWING STATUTES: * * * ACT OF MAY 27, 1936, AS AMENDED," VESTS A DISCRETION IN THE SECRETARY OF THE NAVY TO PAY OVERTIME COMPENSATION TO EMPLOYEES WHOSE REGULAR POSITIONS COME WITHIN THE PURVIEW OF THE 1936 ACT--- WHICH PRESCRIBES COMPENSATION FOR OVERTIME SERVICE OF UNITED STATES SHIPPING COMMISSIONERS, ETC., OF THE BUREAU OF MARINE INSPECTION, THE FUNCTIONS OF WHICH WERE TRANSFERRED TO THE NAVY DEPARTMENT--- EITHER IN ACCORDANCE WITH THE FORMULA PRESCRIBED BY THAT ACT OR THAT PRESCRIBED BY SECTION 2 OF THE 1943 ACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 28, 1943:

I HAVE YOUR LETTER OF AUGUST 13, 1943 (FILE JAG: P: WMCL: EY 44403) AS FOLLOWS:

DURING THE PRESENT EMERGENCY IT HAS BEEN NECESSARY FROM TIME TO TIME TO DETAIL FROM THE COAST GUARD TO THE MERCHANT MARINE INSPECTION OFFICES CIVILIAN EMPLOYEES FOR THE PURPOSE OF PERFORMING THE DUTIES OF SHIPPING COMMISSIONER UPON A VACANCY OCCURRING IN THAT POSITION,ALSO OF SUCH EMPLOYEES AS ASSISTANTS TO THE SHIPPING COMMISSIONER.

UNDER THE PROVISIONS OF SECTION 6 OF THE ACT APPROVED MAY 27, 1936 (49 STAT. 1385; 46 U.S.C. 382B) AS AMENDED, COMPENSATION FOR OVERTIME SERVICES OF UNITED STATES SHIPPING COMMISSIONERS AND THEIR DEPUTIES AND ASSISTANTS, WHO MAY BE REQUIRED TO REMAIN ON DUTY BETWEEN THE HOURS OF 5 O-CLOCK POST MERIDIAN AND 8 O-CLOCK ANTEMERIDIAN OR ON SUNDAYS OR HOLIDAYS TO PERFORM SERVICES IN CONNECTION WITH THE INSPECTION OF VESSELS OR THEIR EQUIPMENT, ETC., IS ALLOWED AS PROVIDED FOR IN THE ABOVE MENTIONED SECTION.

BY SECTION 7 OF THE " WAR OVERTIME PAY ACT OF 1943," APPROVED MAY 7, 1943 ( PUBLIC LAW 49--- 78TH CONGRESS), IT IS SPECIFICALLY PROVIDED THAT THAT ACT SHALL NOT OPERATE TO PREVENT PAYMENT FOR OVERTIME SERVICES IN ACCORDANCE WITH THE ACT OF MAY 27, 1936, SUPRA; ALSO THAT THE OVERTIME SERVICES COVERED BY PAYMENTS UNDER THE ACT OF MAY 27, 1936 SHALL NOT FORM A BASIS FOR OVERTIME COMPENSATION UNDER THE "1WAR OVERTIME PAY ACT OF 1943.'

YOUR DECISION IS REQUESTED WHETHER PAYMENT OF OVERTIME FOR CIVILIAN EMPLOYEES OF THE COAST GUARD DETAILED AS OUTLINED ABOVE MAY BE MADE IN ACCORDANCE WITH THE ACT OF MAY 27, 1936, SUPRA.

IT IS UNDERSTOOD FROM THE NOTES UNDER 14 U.S.C. 1, SUPP. II, 1942, SECS. 5 AND 6A, ACT, JULY 11, 1941, 55 STAT. 585, THAT THE FUNCTIONS PERFORMED BY THE CIVILIAN EMPLOYEES MENTIONED IN THE FIRST PARAGRAPH OF YOUR LETTER- -- INCLUDING BOTH THOSE IN THE COAST GUARD AND THOSE IN THE MERCHANT MARINE INSPECTION OFFICES--- ARE, DURING THE PRESENT WAR EMERGENCY, UNDER THE NAVY DEPARTMENT.

SECTION 38, TITLE 5, U.S. CODE, PROVIDES:

DETAILS OF OFFICERS, EMPLOYEES, OR CLERKS WITHIN DEPARTMENT.

EACH HEAD OF A DEPARTMENT MAY, FROM TIME TO TIME, ALTER THE DISTRIBUTION AMONG THE VARIOUS BUREAUS AND OFFICES OF HIS DEPARTMENT, OF THE CLERKS AND OTHER EMPLOYEES ALLOWED BY LAW, EXCEPT SUCH CLERKS AS MAY BE REQUIRED BY LAW TO BE EXCLUSIVELY ENGAGED UPON SOME SPECIFIC WORK, AS HE MAY FIND IT NECESSARY AND PROPER TO DO, BUT ALL DETAILS HEREUNDER SHALL BE MADE BY WRITTEN ORDER OF THE HEAD OF THE DEPARTMENT, AND IN NO CASE BE FOR A PERIOD OF TIME EXCEEDING ONE HUNDRED AND TWENTY DAYS. DETAILS SO MADE MAY, ON EXPIRATION, BE RENEWED FROM TIME TO TIME BY WRITTEN ORDER OF THE HEAD OF THE DEPARTMENT, IN EACH PARTICULAR CASE, FOR PERIODS OF NOT EXCEEDING ONE HUNDRED AND TWENTY DAYS. ( R.S. SEC. 166; MAY 28, 1896, CH. 252, SEC. 3, 29 STAT. 179.)

ASSUMING THAT NONE OF THE EMPLOYEES INVOLVED IS "REQUIRED BY LAW TO BE EXCLUSIVELY ENGAGED UPON SOME SPECIFIC WORK" AND, AS SUCH, DOES NOT COME WITHIN THE PURVIEW OF THE EXPRESS EXCEPTION (SEE 4 COMP. DEC. 102; 12 ID. 217; 15 COMP. GEN. 184), THE ABOVE-QUOTED STATUTE CONSTITUTES AUTHORITY FOR THE DETAIL OF CIVILIAN EMPLOYEES FROM THE COAST GUARD TO THE MERCHANT MARINE INSPECTION OFFICES.

IN THE DECISION OF AUGUST 14, 1914, 21 COMP. DEC. 66, 67, A "DETAIL" WAS DEFINED AS FOLLOWS:

AS GENERALLY UNDERSTOOD IN THE GOVERNMENT SERVICE, A DETAIL IS A LOAN OF AN EMPLOYEE BY ONE DEPARTMENT, BUREAU, OFFICE OR ESTABLISHMENT TO ANOTHER- -- SAID EMPLOYEE RECEIVING HIS COMPENSATION FROM THE DEPARTMENT, BUREAU, OFFICE, OR ESTABLISHMENT BY WHICH LOANED WHILE PERFORMING SERVICE FOR AND UNDER THE DIRECTION OF THE OTHER. * * *

DURING THE PERIOD OF DETAIL FROM ONE POSITION TO ANOTHER IN THE SAME DEPARTMENT OR AGENCY OF THE GOVERNMENT PURSUANT TO THE QUOTED STATUTE, AN EMPLOYEE REMAINS IN HIS REGULAR POSITION AND HIS COMPENSATION DURING THE PERIOD OF DETAIL CONTINUES TO BE THAT FIXED IN ACCORDANCE WITH THE LAWS AND REGULATIONS APPLICABLE TO HIS REGULAR POSITION. SEE SECTIONS 1764 AND 1765, REVISED STATUTES, AND 14 COMP. DEC. 294; 16 ID. 161; 3 COMP. GEN. 913; 4 ID. 126, 1030; 5 ID. 319, 374; 9 ID. 128; 18 ID. 923. IT IS NOT UNTIL THE EMPLOYEE'S DETAIL IS FORMALLY TERMINATED AND HE ACTUALLY IS APPOINTED TO THE POSITION IN WHICH HE HAS SERVED UNDER DETAIL, THAT THE SALARY OF THE POSITION TO WHICH HE HAD BEEN DETAILED MAY BE PAID TO HIM. SEE DECISION OF JUNE 30, 1943, B-35161.

PAYMENT OF OVERTIME COMPENSATION FOR CIVILIAN EMPLOYEES OF THE COAST GUARD IS CONTROLLED BY THE PROVISIONS OF SECTION 2 OF THE WAR OVERTIME ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 76, PUBLIC LAW 49. SECTION 7 OF THAT STATUTE, 57 STAT. 77, SO FAR AS HERE MATERIAL, PROVIDES:

THE PROVISIONS OF THIS ACT SHALL NOT OPERATE TO PREVENT PAYMENT FOR OVERTIME SERVICES IN ACCORDANCE WITH ANY OF THE FOLLOWING STATUTES: * * * ACT OF MAY 27, 1936, AS AMENDED (52 STAT. 45; U.S.C., TITLE 46, SEC. 382B); * * * PROVIDED, THAT THE OVERTIME SERVICES COVERED BY SUCH PAYMENT SHALL NOT ALSO FORM A BASIS FOR OVERTIME COMPENSATION UNDER THIS ACT.

THAT SECTION OF THE STATUTE VESTS A DISCRETION IN THE SECRETARY OF THE NAVY TO PAY OVERTIME COMPENSATION TO EMPLOYEES WHOSE REGULAR POSITIONS COME WITHIN THE PURVIEW OF THE ACT OF MAY 27, 1936, 49 STAT. 1385, EITHER IN ACCORDANCE WITH THE FORMULA PRESCRIBED BY SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943. BUT THERE IS NOTHING IN SECTION 7 OF THE LATTER STATUTE, OR IN THE PROVISIONS OF THE FORMER STATUTE, WHICH MAY BE REGARDED AS WARRANTING ANY EXCEPTION TO THE GENERAL RULE ABOVE STATED THAT THE COMPENSATION OF AN EMPLOYEE ON DETAIL FROM HIS REGULAR POSITION TO PERFORM TEMPORARILY THE DUTIES OF ANOTHER POSITION MUST CONTINUE TO BE FIXED IN ACCORDANCE WITH THE LAWS AND REGULATIONS APPLICABLE TO HIS REGULAR POSITION.