B-43724, AUGUST 24, 1944, 24 COMP. GEN. 155

B-43724: Aug 24, 1944

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ARE APPLICABLE TO FORTY-HOUR WEEK EMPLOYEES OF THE NAVY DEPARTMENT SUBJECT TO SAID ACT. 13 COMP. 1944: THERE WAS RECEIVED AUGUST 8. THAT RATE OF COMPENSATION RECEIVED BY HIM DURING HIS REGULAR TOUR OF DUTY AT NIGHT IS HIS BASE PAY AND THE OVERTIME COMPENSATION PROVIDED FOR UNDER THE 1934 STATUTE SHOULD BE COMPUTED ON THE BASIS THEREOF DURING THE PERIOD OF HIS CLAIM. IT IS STATED THAT THE RULING IN THE CASE OF MR. KELLY IS APPLICABLE IN THE CASE OF ANY EMPLOYEE "WHOSE HOURS OF LABOR" AND "WEEKLY COMPENSATION" ARE AUTHORIZED AND REQUIRED TO BE FIXED IN ACCORDANCE WITH THE 1934 STATUTE. "IS PERMANENT LEGISLATION. " THAT IT IS EFFECTIVE "FROM AND AFTER THE DATE OF THE ACT. " AND THAT IT IS CLEARLY APPLICABLE TO ALL EMPLOYEES OF THE CLASSES THEREIN MENTIONED WHOSE COMPENSATION IS AUTHORIZED BY LAW TO BE FIXED BY "WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES.

B-43724, AUGUST 24, 1944, 24 COMP. GEN. 155

OVERTIME COMPENSATION - FORTY-HOUR WEEK EMPLOYEES - NIGHT WORK THE RULES STATED IN DECISION OF JUNE 17, 1944, 23 COMP. GEN. 962, AS AMPLIFIED BY DECISION OF JULY 20, 1944, 24 COMP. GEN. 39, WITH RESPECT TO THE INCLUSION OF A NIGHT DIFFERENTIAL IN COMPUTING THE OVERTIME COMPENSATION OF FORTY-HOUR WEEK EMPLOYEES UNDER THE ACT OF MARCH 28, 1934, THE INCLUSION OF THE DIFFERENTIAL IN COMPENSATION PAYABLE DURING ANNUAL AND SICK LEAVE, THE NECESSITY FOR MAKING RETROACTIVE PAYMENTS TO EMPLOYEES, ETC., ARE APPLICABLE TO FORTY-HOUR WEEK EMPLOYEES OF THE NAVY DEPARTMENT SUBJECT TO SAID ACT. 13 COMP. GEN. 370, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 24, 1944:

THERE WAS RECEIVED AUGUST 8, 1944, YOUR UNDATED LETTER, AS FOLLOWS:

IN A DECISION OF JUNE 17, 1944 (B-41933) TO MR. STUART KELLY, THE ACTING COMPTROLLER GENERAL RULED THAT UNDER THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, THE OVERTIME RATE OF TIME AND ONE HALF FOR WORK IN ADDITION TO THE REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK SHOULD BE BASED UPON THE RATE RECEIVED BY THE EMPLOYEE DURING HIS REGULAR TOUR OF DUTY OF 40 HOURS--- THE EMPLOYEE'S BASE PAY--- REGARDLESS OF WHETHER THE REGULAR TOUR OF DUTY BE SERVED DURING THE DAY OR DURING THE NIGHT, AND THAT RATE OF COMPENSATION RECEIVED BY HIM DURING HIS REGULAR TOUR OF DUTY AT NIGHT IS HIS BASE PAY AND THE OVERTIME COMPENSATION PROVIDED FOR UNDER THE 1934 STATUTE SHOULD BE COMPUTED ON THE BASIS THEREOF DURING THE PERIOD OF HIS CLAIM. IN A FURTHER DECISION DATED JULY 20, 1944 (B-43115) TO THE SECRETARY OF WAR, IT IS STATED THAT THE RULING IN THE CASE OF MR. KELLY IS APPLICABLE IN THE CASE OF ANY EMPLOYEE "WHOSE HOURS OF LABOR" AND "WEEKLY COMPENSATION" ARE AUTHORIZED AND REQUIRED TO BE FIXED IN ACCORDANCE WITH THE 1934 STATUTE.

THE COMPTROLLER GENERAL HAS HELD THAT SECTION 23, REFERRED TO ABOVE, "IS PERMANENT LEGISLATION; " THAT IT IS EFFECTIVE "FROM AND AFTER THE DATE OF THE ACT, MARCH 28, 1934; " AND THAT IT IS CLEARLY APPLICABLE TO ALL EMPLOYEES OF THE CLASSES THEREIN MENTIONED WHOSE COMPENSATION IS AUTHORIZED BY LAW TO BE FIXED BY "WAGE BOARDS OR OTHER WAGE FIXING AUTHORITIES," INCLUDING EMPLOYEES WHOSE COMPENSATION IS AUTHORIZED TO BE FIXED ADMINISTRATIVELY UNDER A PROCEDURE SIMILAR TO THAT FOLLOWED BY WAGE BOARDS, THAT IS, WITH REFERENCE TO WAGES, ETC., PAID TO SIMILAR CLASSES IN COMMERCIAL INDUSTRY RATHER THAN WITH REFERENCE TO SALARY RATES OR SCHEDULES FIXED BY OR PURSUANT TO STATUTE (13 COMP. GEN. 265). IT IS THUS APPARENT THAT THE PROVISIONS OF SAID SECTION 23 ARE APPLICABLE TO CIVILIAN EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT.

IN THE COMPTROLLER GENERAL'S DECISION OF 17 JUNE 1944, IT IS POINTED OUT THAT THOUGH THE WAGE AGREEMENT ENTERED INTO BETWEEN THE PUBLIC PRINTER AND EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE IN 1926 PROVIDED THAT THE OVERTIME RATE WAS BASED UPON "THE REGULAR DAY RATE," NEVERTHELESS, SINCE THE COMPUTATION OF OVERTIME COMPENSATION ON THE BASIS OF SUCH DAILY WAGE RATE WAS INCONSISTENT WITH THE PROVISION OF SECTION 23 OF THE 1934 ^ACT,"IT MAY NOT BE REGARDED AS HAVING REMAINED IN EFFECT AFTER MARCH 28, 1934," AND THAT, IN THE ABSENCE OF ANY OTHER AGREEMENT PROVIDING FOR COMPUTATION OF OVERTIME COMPENSATION ON A WEEKLY BASIS, THE OVERTIME COMPENSATION OF CLAIMANT "IS CONTROLLED BY THE PROVISIONS OF THE STATUTE," WHICH, AS TO OVERTIME COMPENSATION, WAS CONSTRUED AS FOLLOWS:

"OVERTIME COMPENSATION IS PAYABLE UNDER THE TERMS OF THE ACT OF MARCH 28, 1934,"AT A RATE OF NOT LESS THAN TIME AND ONE HALF.' IT IS NOT BELIEVED THE CONGRESS INTENDED THEREBY ANY CONSTRUCTION OTHER THAN THAT THE OVERTIME RATE OF TIME AND ONE HALF FOR WORK IN ADDITION TO THE REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK SHOULD BE BASED UPON THE RATE RECEIVED BY THE EMPLOYEE DURING HIS REGULAR TOUR OF DUTY OF 40 HOURS--- THE EMPLOYEE'S BASE PAY--- REGARDLESS OF WHETHER THE REGULAR TOUR OF DUTY BE SERVED DURING THE DAY OR DURING THE NIGHT.'

IN THE DECISION OF 17 JUNE 1944, THE COMPTROLLER GENERAL DISTINGUISHES PRIOR DECISIONS APPLICABLE TO THE POSTAL SERVICE (7 COMP. GEN. 778; 22 ID. 791) BY POINTING OUT THAT THESE DECISIONS INVOLVED INTERPRETATION OF A STATUTE FIXING A NIGHT DIFFERENTIAL DENOMINATED AS "EXTRA" COMPENSATION BASED UPON THE EMPLOYEE'S "HOURLY PAY PER HOUR" AND CONCLUDED THAT IN VIEW OF THE EARLIER STATUTE APPLICABLE TO THE POSTAL SERVICE THE NIGHT DIFFERENTIAL WAS REGARDED "NOT AS THE BASE PAY OF THE EMPLOYEE REQUIRED TO DO NIGHT WORK, BUT AS "EXTRA" COMPENSATION.' BUT IN THE CASE OF THE GOVERNMENT PRINTING OFFICE EMPLOYEE, THE COMPTROLLER GENERAL HELD---

"* * * IT IS BELIEVED THE NIGHT RATE--- THAT IS, THE RATE OF COMPENSATION RECEIVED BY YOU DURING YOUR REGULAR TOUR OF DUTY AT NIGHT- - IS YOUR BASE PAY AND THAT THE OVERTIME COMPENSATION PROVIDED FOR UNDER THE 1934 STATUTE AT THE RATE OF NOT LESS THAN TIME AND ONE HALF SHOULD BE COMPUTED ON THE BASIS THEREOF DURING THE PERIOD OF YOUR CLAIM. THAT VIEW IS STRENGTHENED WHEN CONSIDERED IN THE LIGHT OF THE FACT THAT RETIREMENT DEDUCTIONS AS MADE BY THE GOVERNMENT PRINTING OFFICE, WHERE NIGHT TOUR OF DUTY IS INVOLVED, FOR MANY YEARS HAVE BEEN BASED UPON THE NIGHT RATE RATHER THAN THE DAY RATE, THE RETIREMENT ACT PROVIDING THAT THE TERM "BASIC" SALARY, PAY, OR COMPENSATION IS EXCLUSIVE OF "ALL BONUSES, ALLOWANCES, OVERTIME PAY, OR SALARY, PAY, OR COMPENSATION GIVEN IN ADDITION TO THE BASE PAY OF THE POSITION AS FIXED BY LAW OR REGULATION.'"

THE SCHEDULE OF WAGES GOVERNING THE PAY OF CIVIL EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT, REVISED TO NOVEMBER 30, 1943, PROVIDES, IN PARAGRAPH 22, AS AMENDED, WITH RESPECT TO NIGHT WORK, THAT ALL PER DIEM EMPLOYEES, EXCEPT AS OTHERWISE SPECIFIED,"WHOSE WHOLE TIME OF WORK OR ANY PART THEREOF IS BETWEEN THE HOURS OF 6:00 P.M. AND 7:00 A.M., SHALL BE PAID $0.06 PER HOUR IN ADDITION TO THEIR SCHEDULE RATE OF PAY FOR WORK PERFORMED BETWEEN THE HOURS MENTIONED, EXCEPT THAT NO EMPLOYEE SHALL RECEIVE ADDITIONAL PAY FOR NIGHT WORK FOR WHICH HE IS PAID SUNDAY, HOLIDAY OR OVERTIME RATES OF PAY.' IT SHOULD HERE BE NOTED THAT THE ADDITIONAL PAY THUS AUTHORIZED FOR NIGHT WORK IS NOT PAYABLE TO EMPLOYEES ENTITLED TO OVERTIME RATES OF PAY, AND THE PERIOD FOR WHICH THE ADDITIONAL PAY IS AUTHORIZED IS NOT THE "REGULAR TOUR OF DUTY" OF THE EMPLOYEE FIXED ADMINISTRATIVELY TO INCLUDE DEFINITE DAYS OF THE WEEK AND DEFINITE BEGINNING AND ENDING TIME ON EACH DAY. THE COMPTROLLER GENERAL IN A DECISION, DATED MAY 19, 1934, TO THE SECRETARY OF THE NAVY (13 COMP. GEN. 370), ON THE QUESTION--- " IS AN EMPLOYEE WHO IS PAID OVERTIME FOR WORK PERFORMED IN EXCESS OF 40 HOURS, OR ADDITIONAL PAY FOR SUNDAY OR HOLIDAY WORK, ENTITLED TO NIGHT WORK PAY ON THE DAY FOR WHICH HE IS PAID OVERTIME, SUNDAY OR HOLIDAY RATE UNDER THE PROVISION OF PARAGRAPH 7, PAGE 60, OF THE SCHEDULE OF WAGES * * *," RULED AS FOLLOWS:

IT IS PRESUMED THAT EACH EMPLOYEE HAS A REGULAR TOUR OF DUTY FIXED ADMINISTRATIVELY TO INCLUDE DEFINITE DAYS OF THE WEEK, AND, ALSO, DEFINITE BEGINNING AND ENDING TIME ON EACH DAY. THE NIGHT WORK RATE IS PAYABLE UNDER THE QUOTED REGULATION ONLY FOR WORK PERFORMED BETWEEN THE HOURS OF 6 P.M. AND 7 A.M., DURING THE REGULAR TOUR OF DUTY OF THE EMPLOYEES, AND THERE IS NOTHING IN THE 40-HOUR WEEK STATUTORY PROVISION TO AUTHORIZE PAYMENT OF A NIGHT DIFFERENTIAL IN ADDITION TO OVERTIME, SUNDAY, OR HOLIDAY PAY, TO AN EMPLOYEE ALL OF WHOSE REGULAR TOUR OF DUTY IS SERVED BETWEEN 7 A.M. AND 6 P.M., WHO MAY BE REQUIRED TO WORK OVERTIME BETWEEN THE HOURS OF 6 P.M. AND 7 A.M. THE QUESTION IS ANSWERED IN THE NEGATIVE.'

WITH REGARD TO OVERTIME WORK, PARAGRAPH 2 (B), AS AMENDED, OF THE CURRENT SCHEDULE OF WAGES FOR CIVILIAN EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT PROVIDES:

"/B) FOR LABOR IN EXCESS OF 40 HOURS PER WEEK, PERFORMED UNDER PROPER AUTHORITY, THE SCHEDULE RATE OF PAY PLUS 50 PERCENT ADDITIONAL SHALL BE ALLOWED, EXCEPT THAT AN EMPLOYEE SHALL NOT RECEIVE THE ADDITIONAL PAY FOR NIGHT WORK AUTHORIZED BY PARAGRAPH 22, FOR THE SAME HOURS HE IS ALLOWED SUNDAY, HOLIDAY OR OVERTIME RATES OF PAY.'

UNDER THIS PROVISION IN THE SCHEDULE OF WAGES, THE OVERTIME RATE OF PAY IS CLEARLY INTENDED TO BE BASED ON THE "SCHEDULE RATE OF PAY PLUS 50 PERCENT ADDITIONAL.' SINCE THERE IS BUT ONE RATE OF PAY, NAMELY THE DAY RATE, PRESCRIBED IN THE REGULAR SCHEDULE OF WAGES FOR CIVILIAN EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT, IT APPEARS THAT THE OVERTIME RATE OF TIME AND ONE HALF FOR WORK IN ADDITION TO THE 40 HOURS PER WEEK MUST NECESSARILY BE BASED UPON THE DAY RATE, WHICH IS THE ONLY RATE OF PAY PRESCRIBED IN THE SCHEDULE OF WAGES ON WHICH OVERTIME COMPENSATION MAY PROPERLY BE COMPUTED.

IN THE COMPTROLLER GENERAL'S DECISION OF 17 JUNE 1944, IT IS POINTED OUT THAT THE CONCLUSION THEREIN REACHED IS STRENGTHENED BY THE FACT THAT RETIREMENT DEDUCTIONS AS MADE BY THE GOVERNMENT PRINTING OFFICE, WHERE NIGHT TOUR OF DUTY IS INVOLVED,"FOR MANY YEARS HAVE BEEN BASED UPON THE NIGHT RATE RATHER THAN THE DAY RATE, THE RETIREMENT ACT PROVIDING THAT THE TERM "BASIC" SALARY PAY, OR COMPENSATION IS EXCLUSIVE OF "ALL BONUSES, ALLOWANCES, OVERTIME PAY, OR SALARY, PAY, OR COMPENSATION GIVEN IN ADDITION TO THE BASE PAY OF THE POSITION AS FIXED BY LAW OR REGULATION.'" IN THIS CONNECTION, RETIREMENT DEDUCTIONS FROM THE PAY OF CIVILIAN EMPLOYEES IN THE FIELD SERVICE OF THE DEPARTMENT ARE NOW, AND ALWAYS HAVE BEEN, BASED UPON THE DAY RATE SET FORTH IN THE SCHEDULE OF WAGES FOR SUCH FIELD EMPLOYEES. IN ACCORDANCE WITH THE DECISION OF THE COMPTROLLER GENERAL, DATED OCTOBER 1, 1924 (4 COMP. GEN. 343), THE REGULATIONS OF THE DEPARTMENT PROVIDE THAT "RETIREMENT FUND DEDUCTIONS WILL BE BASED ON THE BASIC PAY OF EACH EMPLOYEE" AND THAT "BASIC PAY DOES NOT INCLUDE OVERTIME PAY, ADDITIONAL PAY FOR NIGHT WORK AND EARNINGS OF PIECE WORKERS DURING OVERTIME.' HENCE, THE REASONING CITED BY THE COMPTROLLER GENERAL IN SUPPORT OF HIS DECISION IN THE CASE OF THE GOVERNMENT PRINTING OFFICE EMPLOYEE IS CLEARLY INAPPLICABLE TO FIELD EMPLOYEES OF THE NAVY DEPARTMENT. MOREOVER, TWO SEPARATE RATES OF PAY ARE PRESCRIBED FOR EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, NAMELY, A REGULAR DAY RATE AND A REGULAR NIGHT RATE, WHEREAS, ONLY ONE RATE OF PAY, NAMELY, THE DAY RATE, IS AUTHORIZED FOR FIELD EMPLOYEES OF THE NAVY DEPARTMENT UNDER THE SCHEDULE OF WAGES.

FIELD EMPLOYEES ARE PAID AT THE DAY RATE SET FORTH IN THE SCHEDULE OF WAGES DURING PERIODS OF ANNUAL LEAVE AND SICK LEAVE, AS NIGHT WORK PAY IS NOT PART OF THE EMPLOYEE'S BASIC COMPENSATION.

IN CONSIDERATION OF THE FOREGOING, IT IS REQUESTED THAT THE DEPARTMENT BE ADVISED WHETHER ITS UNDERSTANDING THAT THE RULING OF THE COMPTROLLER GENERAL OF JUNE 17, 1944 IS INAPPLICABLE TO CIVILIAN EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT IS CORRECT.

THE RULES STATED IN DECISION OF JULY 20, 1944, B-43115, 24 COMP. GEN. 39, TO THE SECRETARY OF WAR, WHICH AMPLIFIED THE RULE STATED IN THE DECISION OF JUNE 17, 1944, B-41933, 23 COMP. GEN. 962, TO STUART KELLY--- BOTH DECISIONS BEING REFERRED TO AND DISCUSSED IN YOUR LETTER- - WERE AS FOLLOWS (QUOTING FROM THE SYLLABUS OF THE DECISION OF JULY 20):

THE BASIC RATE OF COMPENSATION ON WHICH THE OVERTIME COMPENSATION PRESCRIBED BY THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, IS REQUIRED TO BE COMPUTED IS THE RATE RECEIVED DURING AN EMPLOYEE'S REGULAR HOURS OF LABOR OF NOT MORE THAN FORTY HOURS PER WEEK, REGARDLESS OF THE TIME DURING THE TWENTY-FOUR HOURS OF THE DAY OR THE SEVEN DAYS OF THE WEEK SUCH REGULAR HOURS OF LABOR MAY BE PERFORMED.

THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, VESTS NO DISCRETION TO EXCLUDE A NIGHT DIFFERENTIAL OR BONUS FIXED BY A WAGE BOARD OR OTHER WAGE- FIXING AUTHORITY FOR A REGULAR TOUR OF DUTY AT NIGHT FROM THE BASIC RATE OF COMPENSATION UPON WHICH THE OVERTIME COMPENSATION UNDER THE STATUTE IS TO BE COMPUTED FOR WORK IN EXCESS OF THE REGULAR FORTY HOUR WEEKLY TOUR OF DUTY. B-41933, JUNE 17, 1944, 23 COMP. GEN. 962, AMPLIFIED.

THE RULE STATED IN DECISION OF JUNE 17, 1944, 23 COMP. GEN. 962, WITH RESPECT TO THE INCLUSION OF A NIGHT DIFFERENTIAL IN COMPUTING THE OVERTIME COMPENSATION OF FORTY-HOUR WEEK EMPLOYEES, CONSTITUTES AN ORIGINAL CONSTRUCTION OF THE ACT OF MARCH 28, 1934, AND, ACCORDINGLY, IS TO BE REGARDED AS EFFECTIVE ON AND AFTER THE DATE OF THE STATUTE, AND AS AFFECTING ALL ACCOUNTS NOT SO ADJUSTED SINCE THAT DATE.

ADMINISTRATIVE ACTION BY THE WAR DEPARTMENT IS REQUIRED TO COMPUTE PAY ROLLS AND TO MAKE RETROACTIVE PAYMENTS TO ALL EMPLOYEES STILL IN THE SERVICE WHO ARE AFFECTED BY THE RULE STATED IN DECISION OF JUNE 17, 1944, 23 COMP. GEN. 962, WITH RESPECT TO THE INCLUSION OF A NIGHT DIFFERENTIAL IN COMPUTING THE OVERTIME COMPENSATION OF FORTY-HOUR WEEK EMPLOYEES UNDER THE ACT OF MARCH 28, 1934; HOWEVER, AS TO EMPLOYEES NOT NOW IN THE SERVICE, NO ACTION SHOULD BE TAKEN UNLESS AND UNTIL A CLAIM OVER THE SIGNATURE OF THE FORMER EMPLOYEE SHALL HAVE BEEN FILED (SEE B-42776, JULY 4, 1944, 24 COMP. GEN. 9).

AN EMPLOYEE COMING WITHIN THE PURVIEW OF THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, WHO IS GRANTED AN AUTHORIZED LEAVE OF ABSENCE WITH PAY FROM A REGULAR TOUR OF DUTY AT NIGHT IS ENTITLED TO RECEIVE DURING THE ABSENCE THE REGULAR RATE OF COMPENSATION (INCLUDING A NIGHT DIFFERENTIAL) FOR NIGHT DUTY RECEIVED BY HIM WHEN HE GOES ON LEAVE, WHETHER FOR A SHORT OR LONG PERIOD; BUT AN EMPLOYEE ROTATING ON DAY AND NIGHT SHIFTS WHO IS GRANTED LEAVE WHILE NOT ON THE NIGHT SHIFT AND NOT RECEIVING THE NIGHT DIFFERENTIAL IS NOT ENTITLED TO THE NIGHT DIFFERENTIAL WHILE ON LEAVE. YOUR LETTER AND THE APPLICABLE REGULATIONS OF THE NAVY DEPARTMENT CONTAINED IN THE SCHEDULE OF WAGES GOVERNING THE PAY OF CIVILIAN EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT SHOW THAT THE COMPENSATION OF THE EMPLOYEES HERE INVOLVED IS REQUIRED TO BE COMPUTED AND PAID IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MARCH 28, 1934, 48 STAT. 522; THAT A REGULAR TOUR OF DUTY IS FIXED FOR SUCH EMPLOYEES BOTH DURING THE DAYTIME AND DURING THE NIGHTTIME; AND THAT A NIGHT DIFFERENTIAL IS FIXED FOR EMPLOYEES "WHOSE WHOLE TIME OF WORK OR ANY PART THEREOF IS BETWEEN THE HOURS OF 6:00 P.M. AND 7:00 A.M.'--- SUCH NIGHT DIFFERENTIAL CLEARLY REFERRING TO ALL OR ANY PORTION OF A REGULAR TOUR OF DUTY WORKED BETWEEN THOSE HOURS.

THE RULE STATED IN THE DECISION OF MAY 19, 1934, 13 COMP. GEN. 370, TO WHICH YOU REFER, RELATIVE TO QUESTION NO. 10 THEREIN CONSIDERED, HAS NO APPLICATION HERE. IN THAT DECISION REGARDING SAID QUESTION NO. 10, THERE WAS CONSIDERED THE CASE OF EMPLOYEES OF THE NAVY DEPARTMENT WHOSE REGULAR TOUR OF DUTY WAS NOT AT NIGHT BUT DURING THE DAY, AND IT WAS CORRECTLY HELD THAT THE EMPLOYEE COULD NOT RECEIVE BOTH OVERTIME COMPENSATION AND THE NIGHT DIFFERENTIAL FOR OVERTIME WORKED AT NIGHT, WHEREAS HERE THERE IS INVOLVED EMPLOYEES WHOSE REGULAR TOUR OF DUTY IS AT NIGHT DURING WHICH THEY RECEIVE A NIGHT DIFFERENTIAL PROPERLY CONSIDERED AS A PART OF BASIC COMPENSATION, THE EMPLOYEES WORKING OVERTIME--- BEYOND SUCH REGULAR TOUR OF DUTY--- EITHER DURING THE NIGHTTIME OR DAYTIME, THE OVERTIME RATE OF NOT LESS THAN TIME AND ONE HALF TO BE COMPUTED ON THE TOTAL BASIC COMPENSATION FOR NIGHT WORK INCLUDING THE NIGHT DIFFERENTIAL. THE RESULT IS NOT A PYRAMIDING OF NIGHT DIFFERENTIAL AND OVERTIME COMPENSATION AS YOUR LETTER SEEMS TO SUGGEST. SUCH, HOWEVER, WOULD HAVE BEEN THE RESULT IN THE CLASS OF EMPLOYEES CONSIDERED IN THE DECISION OF MAY 19, 1934, HAD THE RULE STATED IN THAT DECISION NOT BEEN ADOPTED.

I AM UNABLE TO PERCEIVE UPON WHAT BASIS YOU REGARD THE DECISION OF OCTOBER 1, 1924, 4 COMP. GEN. 343, TO WHICH YOU REFER, AS HAVING ANY APPLICATION HERE, OR AS HAVING JUSTIFIED OR AUTHORIZED THE ADOPTION OF A REGULATION THAT "BASIC PAY DOES NOT INCLUDE * * * ADDITIONAL PAY FOR NIGHT WORK" (QUOTING FROM YOUR LETTER). THE DECISION IN QUESTION GAVE NO CONSIDERATION WHATEVER TO THE NIGHT DIFFERENTIAL. ON THE CONTRARY, THE DECISION HELD (1) THAT "THE HIGHER RATE PAID FOR A POSITION REQUIRING SPECIAL QUALIFICATIONS IS ITSELF THE "BASIC SALARY, PAY, OR COMPENSATION, OF A DIFFERENT AND HIGHER-CLASSED POSITION TEMPORARILY FILLED BY THE EMPLOYEE AND THE TOTAL AMOUNT THEREOF IS SUBJECT TO RETIREMENT DEDUCTIONS," AND (2) THAT "RETIREMENT DEDUCTIONS FROM COMPENSATION OF NAVAL ESTABLISHMENT EMPLOYEES PAID BY THE PIECE SHOULD BE BASED ON THE TOTAL AMOUNT EARNED BY THE EMPLOYEES DURING THE REGULAR WORKING HOURS, EXCLUDING EARNINGS DURING OVERTIME" (QUOTING FROM THE SYLLABUS).

YOU REFER TO THE FACT THAT THE ADMINISTRATIVE ACTION OF THE NAVY DEPARTMENT HAS BEEN CONSISTENT AS TO ALL EMPLOYEES IN THE EXCLUSION OF THE NIGHT DIFFERENTIAL FROM BASIC COMPENSATION FOR THE PURPOSE OF COMPUTING OVERTIME COMPENSATION, RETIREMENT DEDUCTIONS, AND LEAVE PAYMENTS, WHEREAS IN THE GOVERNMENT PRINTING OFFICE AND IN THE WAR DEPARTMENT, CONSIDERED IN THE EARLIER DECISIONS, THERE WAS AN INCONSISTENCY IN THAT RESPECT, WHICH FACT, YOU PROPOSE, SHOULD BE REGARDED IN SOME MANNER AS JUSTIFYING A DIFFERENT CONCLUSION AS TO THE EMPLOYEES OF THE NAVY DEPARTMENT. HOWEVER, AS POINTED OUT IN THE DECISION OF JULY 20, 1944, BECAUSE THERE HAS EXISTED AN INCONSISTENCY THROUGHOUT THE FEDERAL SERVICE AS TO SAME CLASSES OF EMPLOYEES WHOSE COMPENSATION IS REQUIRED TO BE COMPUTED AND PAID UNDER THE SAME STATUTE OF 1934, THE GENERAL PRINCIPLE OF LAW THAT A CONSISTENT ADMINISTRATIVE PRACTICE SHOULD BE GIVEN GREAT WEIGHT DOES NOT REQUIRE THIS OFFICE TO CONCLUDE IN THE SITUATION HERE PRESENTED THAT THE ADMINISTRATIVE PRACTICE OF THE NAVY DEPARTMENT AS TO ONE GROUP OF EMPLOYEES COMING WITHIN THE SCOPE OF THE 1934 STATUTE NEED NOT BE DISTURBED, OR TO CONCLUDE THAT ANY CHANGE IN THE PRACTICE SHOULD BE MADE EFFECTIVE PROSPECTIVELY, ONLY. IT IS NOT TO BE PRESUMED THAT THE CONGRESS INTENDED DIFFERENT APPLICATIONS OF THE SAME LAW TO THE SAME CLASS OF EMPLOYEES IN DIFFERENT BRANCHES OF THE FEDERAL SERVICE.

FOR THE ABOVE-STATED REASONS, AND IN THE LIGHT OF THE CAREFUL REVIEW OF THE ENTIRE MATTER MADE IN THE DECISION OF JULY 20, 1944, I FIND NOTHING IN YOUR LETTER TO AUTHORIZE OR JUSTIFY ANY CONCLUSION OTHER THAN THAT THE RULES STATED IN SAID DECISION OF JULY 20, 10944, TO THE SECRETARY OF WAR, ARE APPLICABLE, ALSO, TO THE EMPLOYEES OF THE NAVY DEPARTMENT HERE INVOLVED. ACCORDINGLY, THE UNDERSTANDING EXPRESSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS NOT CORRECT.