B-39044, DECEMBER 31, 1943, 23 COMP. GEN. 475

B-39044, DECEMBER 31, 1943, 23 COMP. GEN. 475

RIGHTS OF POSTAL EMPLOYEES REQUIRED TO WORK HOLIDAYS FALLING ON SATURDAYS THE PROVISION IN 39 U.S.C. 118, WHICH AUTHORIZES AND REQUIRES THE GRANTING OF COMPENSATORY TIME--- NOT OVERTIME COMPENSATION--- TO CERTAIN CLASSES OF POSTAL EMPLOYEES FOR WORK ON A HOLIDAY, MUST YIELD, INSOFAR AS CONCERNS A HOLIDAY FALLING ON A SATURDAY, TO THE PROVISION IN 39 U.S.C. 832, AUTHORIZING PAYMENT TO POSTAL EMPLOYEES DURING THE PRESENT WAR AND SIX MONTHS THEREAFTER OF OVERTIME COMPENSATION FOR FOR WORK ON SATURDAYS IN LIEU OF COMPENSATORY TIME, AND, THEREFORE, POSTAL EMPLOYEES WHO ARE REQUIRED TO WORK ON NEW YEAR'S DAY, SATURDAY, JANUARY 1, 1944--- A HOLIDAY --- MAY EITHER BE GRANTED COMPENSATORY TIME OFF FROM DUTY, OR PAID OVERTIME COMPENSATION FOR SUCH WORK. 22 COMP. GEN. 1057, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL DECEMBER 31, 1943:

I HAVE YOUR LETTER OF DECEMBER 20, 1943, AS FOLLOWS:

SECTION 832, TITLE 39, U. S. CODE, WAS AMENDED MARCH 27, 1942, BY THE ADDITION OF A PROVISO AUTHORIZING THE PAYMENT OF OVERTIME FOR SATURDAYS, IN LIEU OF COMPENSATORY TIME, TO CERTAIN CLASSES OF EMPLOYEES.

ON MAY 29, 1943, YOU RENDERED A DECISION (B-34749) STATING THAT THERE WAS NO AUTHORITY OF LAW TO PAY EMPLOYEES OVERTIME COMPENSATION FOR WORK PERFORMED ON MONDAYS FOLLOWING THE HOLIDAYS WHICH OCCURRED ON MAY 30 AND JULY 4, 1943, RESPECTIVELY.

JANUARY 1, 1944, A LEGAL HOLIDAY, WILL FALL ON SATURDAY. YOUR DECISION IS REQUESTED AS TO WHETHER IT IS WITHIN MY DISCRETION EITHER TO GRANT COMPENSATORY TIME OR TO PAY OVERTIME FOR SERVICE RENDERED ON JANUARY 1, 1944 BY THOSE EMPLOYEES AFFECTED BY THE AMENDMENT OF MARCH 27, 1942 TO SECTION 832, TITLE 39, U.S.C.

SECTION 118, TITLE 39, U.S. CODE, PROVIDES:

COMPENSATORY TIME TO FOREMEN, SPECIAL CLERKS, CARRIERS, WATCHMEN, MESSENGERS, OR LABORERS, AT FIRST AND SECOND-CLASS OFFICES FOR WORK ON SUNDAYS OR HOLIDAYS; OVERTIME IN LIEU THEREOF.

WHEN THE NEEDS OF THE SERVICE REQUIRE THE EMPLOYMENT ON SUNDAYS AND HOLIDAYS OF FOREMEN, SPECIAL CLERKS, CLERKS, CARRIERS, WATCHMEN, MESSENGERS, OR LABORERS AT FIRST AND SECOND-CLASS POST OFFICES THEY SHALL BE ALLOWED COMPENSATORY TIME ON ONE DAY WITHIN SIX DAYS NEXT SUCCEEDING THE SUNDAY, EXCEPT THE LAST THREE SUNDAYS IN THE CALENDAR YEAR, AND ON ONE DAY WITHIN THIRTY DAYS NEXT SUCCEEDING THE HOLIDAY AND THE LAST THREE SUNDAYS IN THE YEAR ON WHICH SERVICE IS PERFORMED; PROVIDED, HOWEVER, THAT THE POSTMASTER GENERAL MAY, IF THE EXIGENCIES OF THE SERVICE REQUIRE IT, AUTHORIZE THE PAYMENT OF OVERTIME FOR SERVICE ON THE LAST THREE SUNDAYS IN THE CALENDAR YEAR OR ON CHRISTMAS DAY IN LIEU OF COMPENSATORY TIME. MAR. 3, 1917, CH. 162, SEC. 1, 39 STAT. 1062; FEB. 28, 1925, CH. 368, SEC. 4, 43 STAT. 1059).

SECTION 832, TITLE 39, U.S.C. (40-HOUR WEEK STATUTE FOR POSTAL EMPLOYEES) CONTAINS THE FOLLOWING PROVISO:

* * * PROVIDED FURTHER, THAT THE POSTMASTER GENERAL MAY, IF THE EXIGENCIES OF THE SERVICE REQUIRE IT, AUTHORIZE THE PAYMENT OF OVERTIME FOR SATURDAYS IN LIEU OF COMPENSATORY TIME, EXCEPT CLEANERS, JANITORS, TELEPHONE OPERATORS, AND ELEVATOR CONDUCTORS PAID FROM THE APPROPRIATION OF THE FIRST ASSISTANT POSTMASTER-1GENERAL, AND CUSTODIAL EMPLOYEES WHO SHALL BE GIVEN COMPENSATORY TIME IN LIEU OF OVERTIME PAY WITHIN THIRTY DAYS NEXT SUCCEEDING * * *.

IN THE DECISION OF MAY 29, 1943 (B-34749), 22 COMP. GEN. 1057, TO WHICH YOU REFER, THERE WAS CONSIDERED A QUESTION--- SIMILAR TO THE ONE HERE PRESENTED--- WITH REGARD TO HOLIDAYS FALLING ON MONDAY, AND IT WAS HELD (QUOTING FROM THE SYLLABUS):

POSTAL EMPLOYEES WHO ARE REQUIRED BY A GENERAL ADMINISTRATIVE ORDER TO WORK ON HOLIDAYS MAY NOT BE PAID OVERTIME COMPENSATION FOR SUCH WORK, IN LIEU OF COMPENSATORY TIME AUTHORIZED AND REQUIRED BY 39 U.S.C. 118 TO BE GRANTED POSTAL EMPLOYEES WHO ARE REQUIRED TO WORK ON ANY HOLIDAY EXCEPT CHRISTMAS; NOR IS THERE ANY AUTHORITY TO DENY POSTAL EMPLOYEES THEIR STATUTORY RIGHT TO COMPENSATORY TIME FOR WORK ON SUCH HOLIDAYS.

PRESIDENTIAL OR ADMINISTRATIVE ORDERS REQUIRING WORK ON LEGAL HOLIDAYS DURING THE WAR EMERGENCY DO NOT AND CANNOT CHANGE THE STATUS OF SUCH HOLIDAYS FOR THE PURPOSE OF APPLYING STATUTES AND REGULATIONS HAVING THE FORCE AND EFFECT OF LAW GRANTING RIGHTS AND BENEFITS ON THE BASIS OF THE HOLIDAYS.

WHILE JANUARY 1, 1944, IS ONE OF THE HOLIDAYS PROVIDED FOR POSTAL EMPLOYEES (SEE SECTION 437, POSTAL LAWS AND REGULATIONS, 1940, AS AMENDED, QUOTED IN THE CITED DECISION), TO WHICH THE PROVISIONS OF 39 U.S.C. 118 APPLY, IT IS A SATURDAY, ALSO--- A DAY OF THE WEEK EXPRESSLY MENTIONED IN THE QUOTED PROVISO OF 39 U.S.C. 832. THE PROVISIONS OF THE LATTER STATUTE ABOVE QUOTED CONSTITUTE SPECIAL LEGISLATION AND ARE TO REMAIN IN EFFECT "ONLY DURING THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER.' HENCE, THE RULE STATED IN THE DECISION, SUPRA, RELATIVE TO THE OPERATION OF THE ABOVE -QUOTED PROVISIONS OF 39 U.S.C. 118, WITH RESPECT TO HOLIDAYS IN GENERAL, MUST YIELD TO SAID LATTER STATUTE SO FAR AS CONCERNS A HOLIDAY FALLING ON A SATURDAY. CONSEQUENTLY, BY VIRTUE OF SAID SPECIAL LEGISLATION, IT IS WITHIN YOUR ADMINISTRATIVE DISCRETION EITHER TO GRANT COMPENSATORY TIME OFF FROM DUTY, OR TO PAY OVERTIME COMPENSATION, FOR SERVICE RENDERED ON SATURDAY, JANUARY 1, 1944, TO POSTAL EMPLOYEES OF THE CLASSES WITHIN THE PURVIEW OF 39 U.S.C. 832, AS AMENDED. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.