B-51076, JULY 26, 1945, 25 COMP. GEN. 102

B-51076: Jul 26, 1945

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WHOSE SALARY IS FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT. IS ENTITLED TO THE INCREASE IN BASIC COMPENSATION PRESCRIBED BY SECTION 405 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. WHICH HAVE THE EFFECT OF EXCLUDING "HEADS OF DEPARTMENTS OR OF INDEPENDENT ESTABLISHMENTS OR AGENCIES OF THE FEDERAL GOVERNMENT" FROM THE OVERTIME COMPENSATION BENEFITS PROVIDED BY SECTION 201 OF SAID ACT. IS ENTITLED TO SUCH OVERTIME COMPENSATION BENEFITS. IT IS PROPER UNDER THE PROVISIONS OF SECTION 202 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 TO GRANT COMPENSATORY TIME OFF FROM DUTY ON SATURDAY. IS SYNONYMOUS WITH A DUTY STATUS TO BE INCLUDED WITHIN THE BASIC 40-HOUR WORKWEEK ESTABLISHED PURSUANT TO SECTION 604 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.

B-51076, JULY 26, 1945, 25 COMP. GEN. 102

FEDERAL EMPLOYEES PAY ACT OF 1945 THE ARCHITECT OF THE CAPITOL, WHOSE SALARY IS FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, IS ENTITLED TO THE INCREASE IN BASIC COMPENSATION PRESCRIBED BY SECTION 405 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. THE PROVISIONS OF SECTION 102 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, WHICH HAVE THE EFFECT OF EXCLUDING "HEADS OF DEPARTMENTS OR OF INDEPENDENT ESTABLISHMENTS OR AGENCIES OF THE FEDERAL GOVERNMENT" FROM THE OVERTIME COMPENSATION BENEFITS PROVIDED BY SECTION 201 OF SAID ACT, RELATE ONLY TO THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND, THEREFORE, THE ARCHITECT OF THE CAPITOL, WHO FUNCTIONS AS AN OFFICER OR AGENT OF THE LEGISLATIVE BRANCH, IS ENTITLED TO SUCH OVERTIME COMPENSATION BENEFITS, SUBJECT TO THE AGGREGATE COMPENSATION LIMITATIONS PRESCRIBED BY SECTION 603 (B). IN THE CASE OF EMPLOYEES OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL OCCUPYING POSITIONS SUBJECT TO THE CLASSIFICATION ACT, IT IS PROPER UNDER THE PROVISIONS OF SECTION 202 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 TO GRANT COMPENSATORY TIME OFF FROM DUTY ON SATURDAY--- THE ,OVERTIME" DAY OF THE ADMINISTRATIVE WORKWEEK OF MORE THAN 40 HOURS -- IN LIEU OF PAYING OVERTIME COMPENSATION UNDER SECTION 201 FOR WORK PREVIOUSLY PERFORMED IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK AND TO PAY FOR SUCH COMPENSATORY TIME OFF AT OVERTIME RATES. A LEAVE WITH PAY STATUS, EITHER ANNUAL OR SICK, IS SYNONYMOUS WITH A DUTY STATUS TO BE INCLUDED WITHIN THE BASIC 40-HOUR WORKWEEK ESTABLISHED PURSUANT TO SECTION 604 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND, THEREFORE, AN EMPLOYEE OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL OCCUPYING A POSITION SUBJECT TO THE CLASSIFICATION ACT MAY BE GRANTED OTHERWISE PROPER COMPENSATORY TIME OFF FROM DUTY ON A SATURDAY DURING A WORKWEEK OF MORE THAN 40 HOURS IN WHICH HE HAD BEEN GRANTED ANNUAL OR SICK LEAVE WITH PAY DURING HIS BASIC 40-HOUR WORKWEEK, AND BE PAID THEREFOR AT OVERTIME RATES. WHERE AN EMPLOYEE OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL OCCUPYING A POSITION SUBJECT TO THE CLASSIFICATION ACT DOES NOT WORK OR IS NOT OTHERWISE IN A PAY STATUS DURING LEAVE OR ON A HOLIDAY FOR ALL OF THE 40 HOURS OF HIS BASIC WORKWEEK ESTABLISHED PURSUANT TO SECTION 604 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, TIME WORKED OUTSIDE OF SUCH 40-HOUR WORKWEEK EQUIVALENT TO THE NONPAY STATUS PERIOD SHOULD BE SUBSTITUTED FOR THE TIME LOST AND SHOULD BE PAID FOR AT THE STRAIGHT TIME RATE (PLUS ANY NIGHT DIFFERENTIAL PAYABLE UNDER SECTION 301 OF SAID ACT), RATHER THAN AT THE OVERTIME RATE. THE ADDITIONAL COMPENSATION OF 10 PERCENT FOR NIGHT WORK PAYABLE UNDER SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS NOT TO BE REGARDED AS PART OF AN EMPLOYEE'S BASIC COMPENSATION FROM WHICH RETIREMENT DEDUCTIONS UNDER THE CIVIL SERVICE RETIREMENT ACT ARE REQUIRED TO BE MADE. THE PROVISIONS OF SECTION 301 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AUTHORIZING A DIFFERENTIAL FOR EMPLOYEES "ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY" ANY PART OF WHICH FALLS BETWEEN 6 P.M. AND 6 A.M., RELATE NOT ONLY TO AN EMPLOYEE'S OWN TOUR OF DUTY BUT, ALSO, TO ANY REGULARLY SCHEDULED TOUR OF DUTY AT NIGHT TO WHICH AN EMPLOYEE MAY BE ASSIGNED FOR ONE OR MORE NIGHTS OF THE BASIC WORKWEEK, FOR WHICH STRAIGHT TIME (AS DISTINGUISHED FROM OVERTIME) COMPENSATION OTHERWISE WOULD BE PAID. AN EMPLOYEE OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL WHO, ON JULY 1, 1945, HELD A PERMANENT POSITION SUBJECT TO THE CLASSIFICATION ACT TO WHICH HE HAD BEEN APPOINTED AFTER A PERIOD OF MILITARY SERVICE ENTERED UPON FROM A TEMPORARY POSITION IS ENTITLED UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND REGULATIONS PURSUANT THERETO, TO COUNT MILITARY SERVICE AND PRIOR CIVILIAN SERVICE FOR THE PURPOSE OF A WITHIN- GRADE PROMOTION EFFECTIVE AS OF JULY 1, 1945, NOTWITHSTANDING THE FACT THAT HE WAS APPOINTED TO THE PERMANENT POSITION PRIOR TO THAT DATE. COMPARE 24 COMP. GEN. 491; ID. 688. IN VIEW OF THE TERMS OF SECTION 501 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, WHICH, IN AUTHORIZING AN INCREASE IN THE BASIC COMPENSATION OF OFFICERS AND EMPLOYEES OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT, PROVIDE THAT THE INCREASE SHALL NOT BE TAKEN INTO CONSIDERATION IN DETERMINING WHETHER THE COMPENSATION PAID IS "WITHIN ANY LIMIT NOW PRESCRIBED BY LAW," SUCH ADDITIONAL BASIC COMPENSATION SHOULD BE EXCLUDED IN APPLYING THE $2,000 PER ANNUM LIMITATION PRESCRIBED BY THE DUAL COMPENSATION STATUTE OF MAY 10, 1916, AS AMENDED. IN THE CASE OF PER DIEM AND PER HOUR EMPLOYEES OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL MADE SUBJECT TO THE FORTY-HOUR WEEK STATUTE OF MARCH 28, 1934, FOR OVERTIME PAY PURPOSES, BY SECTION 503 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, IS NOT ENTITLED TO COMPENSATION AT OVERTIME RATES FOR WORK ON SATURDAY--- THE "OVERTIME" DAY OF THE WORKWEEK--- OF THE WEEK DURING WHICH HE WAS APPOINTED AFTER THE BEGINNING OF THE REGULAR TOUR OF DUTY FOR THAT WEEK. WHERE AN EMPLOYEE OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL SUBJECT TO THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 WORKS ON A SATURDAY TO MAKE UP TIME IN A LEAVE WITHOUT PAY STATUS DURING THE BASIC 40-HOUR WORKWEEK, THE COMPENSATION FOR SUCH MAKE-UP TIME, PAYABLE AT STRAIGHT-TIME RATHER THAN OVERTIME RATES, IS TO BE REGARDED AS BASIC COMPENSATION FROM WHICH RETIREMENT DEDUCTION SHOULD BE MADE. THE SPECIAL PROVISIONS OF THE LEGISLATIVE BRANCH APPROPRIATIONS ACT, 1946, FOR EXTRA SERVICES OF EMPLOYEES OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL IN CONNECTION WITH SUNDAY OPENING OF THE LIBRARY OF CONGRESS ARE NOT SUPERSEDED BY THE GENERAL OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, EITHER AS TO EMPLOYEES WORKING IN THEIR OWN JOBS ON SUNDAY OR EMPLOYEES WORKING IN OTHER THAN THEIR OWN JOBS; AND THE TIME SO WORKED IS NOT TO BE CONSIDERED FOR OVERTIME COMPENSATION PURPOSES.

COMPTROLLER GENERAL WARREN TO THE ARCHITECT OF THE CAPITOL, JULY 26, 1945:

I HAVE YOUR LETTER OF JULY 14, 1945, SUBMITTING FOR DECISION A NUMBER OF QUESTIONS ARISING UNDER THOSE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, 59 STAT. 295, PUBLIC LAW 106, THAT ARE APPLICABLE TO THE PERSONNEL OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL. THE QUESTIONS PRESENTED IN GROUPS UNDER DESIGNATIONS (A), (B), (C), AND (D) WILL BE STATED AND ANSWERED IN THE ORDER LETTER.

(A) RE. EMPLOYEES OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1023, AS AMENDED.

THESE EMPLOYEES ARE REGARDED AS SUBJECT TO TITLE II, SECTIONS 201 AND 202 (B); TITLE III, SECTIONS 301 AND 302; TITLE IV, SECTIONS 401, 402, 403, 404, 405; TITLE VI, SECTIONS 603, 604 (E), 608, 609, 610.

YOUR STATED UNDERSTANDING THAT THE CITED SECTIONS OF THE STATUTE ARE APPLICABLE TO GROUP (A) EMPLOYEES IS CORRECT.

THE FIRST QUESTION PRESENTED WITH RESPECT TO THIS GROUP IS WHETHER YOU ARE CORRECT IN ASSUMING THAT THE ARCHITECT OF THE CAPITOL IS ENTITLED TO THE BENEFITS OF SECTION 405 OF TITLE IV, 59 STAT. 300, PROVIDING INCREASES IN BASIC COMPENSATION, AND OF SECTION 201 OF TITLE II, 59 STAT. 296, RELATING TO OVERTIME COMPENSATION, SUBJECT TO THE LIMITATIONS OF SECTION 603 (B) OF TITLE VI OF THE STATUTE, 59 STAT. 303.

SECTIONS 101 (A) AND (B) AND 102 (A) OF TITLE I, 59 STAT. 295, 296, AND SECTION 405 (A) OF TITLE IV, 59 STAT. 300, PROVIDE:

SEC. 101. (A) SUBJECT TO THE EXEMPTIONS SPECIFIED IN SECTION 102 OF THIS ACT, TITLES II AND III OF THIS ACT SHALL APPLY (1) TO ALL CIVILIAN OFFICERS AND EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND IN OR UNDER THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, AND (2) TO THOSE OFFICERS AND EMPLOYEES OF THE JUDICIAL BRANCH OF THE GOVERNMENT, THE LIBRARY OF CONGRESS, THE BOTANIC GARDEN, AND THE OFFICE OF THE ARCHITECT OF THE CAPITOL WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.

(B) TITLE IV OF THIS ACT SHALL APPLY TO OFFICERS AND EMPLOYEES WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.

SEC. 102. (A) THIS ACT SHALL NOT APPLY TO (1) ELECTED OFFICIALS; (2) FEDERAL JUDGES; (3) HEADS OF DEPARTMENTS OR OF INDEPENDENT ESTABLISHMENTS OR AGENCIES OF THE FEDERAL GOVERNMENT, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS; (4) EMPLOYEES OF THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT WHOSE COMPENSATION IS FIXED BY THE TEACHERS' SALARY ACT OF JUNE 4, 1924, AS AMENDED; AND (5) OFFICERS AND MEMBERS OF THE METROPOLITAN POLICE OR OF THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA. AS USED IN THIS SUBSECTION THE TERM "ELECTED OFFICIALS" SHALL NOT INCLUDE OFFICERS ELECTED BY THE SENATE OR HOUSE OF REPRESENTATIVES WHO ARE NOT MEMBERS OF EITHER BODY.

SEC. 405. (A) EACH OF THE EXISTING RATES OF BASIC COMPENSATION SET FORTH IN SECTION 13 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, EXCEPT THOSE AFFECTED BY SUBSECTION (B) OF THIS SECTION, IS HEREBY INCREASED BY 20 PERCENTUM OF THAT PART THEREOF WHICH IS NOT IN EXCESS OF $1,200 PER ANNUM, PLUS 10 PERCENTUM OF THAT PART THEREOF WHICH IS IN EXCESS OF $1,200 BUT NOT IN EXCESS OF $4,600 PER ANNUM, PLUS 5 PERCENTUM OF THAT PART THEREOF WHICH IS IN EXCESS OF $4,600 PER ANNUM. SUCH AUGMENTED RATES SHALL BE CONSIDERED TO BE THE REGULAR BASIC RATES OF COMPENSATION PROVIDED BY SUCH SECTION.

THE SALARY RATE OF THE ARCHITECT OF THE CAPITOL HAS BEEN FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED. 5 U.S.C. 662. THAT IS TO SAY, THE SALARY RATE FOR THAT OFFICE HAS NOT BEEN SPECIFICALLY PRESCRIBED BY STATUTE (COMPARE SECTION 602 (B) OF THE NEW PAY STATUTE, 59 STAT. 302), BUT IT IS UNDERSTOOD FROM YOUR LETTER THAT SAID OFFICE WAS ALLOCATED BY THE CIVIL SERVICE COMMISSION IN A SALARY GRADE PRESCRIBED BY THE CLASSIFICATION ACT, AS AMENDED, AND THAT THE SALARY RATE THEREFOR WAS FIXED ACCORDINGLY. AS STATED IN YOUR LETTER, SUBSECTION (B) OF SECTION 101, ABOVE QUOTED, HAS NOT BEEN MADE "SUBJECT TO EXEMPTIONS SPECIFIED IN SECTION 102 OF THIS ACT," SUCH AS IS THE CASE WITH RESPECT TO TITLES II AND III BY SUBSECTION (A) OF SECTION 101 OF THE STATUTE. THEREFORE, THE ARCHITECT OF THE CAPITOL IS ENTITLED TO THE BASIC INCREASE IN COMPENSATION PURSUANT TO THE FORMULA PRESCRIBED BY SECTION 405 OF THE STATUTE APPLICABLE TO THE POSITIONS SUBJECT TO THE CLASSIFICATION ACT. THIS CONCLUSION FINDS SUPPORT IN THE COMMENTS OF CONGRESSMEN RAMSPECK AND JACKSON ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES JUNE 13, 1945, WITH REFERENCE TO AN AMENDMENT PROPOSING TO ELIMINATE THE LIMITATIONS PRESCRIBED BY SECTION 603 (B) OF THE STATUTE, WHICH AMENDMENT WAS DEFEATED (SEE PAGE 6173 OF THE CONGRESSIONAL RECORD OF THAT DATE), AND, ALSO, IN THE COMMENTS OF CONGRESSMAN JACKSON ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES JUNE 11, 1945 (SEE PAGE 6011 OF THE CONGRESSIONAL RECORD OF THAT DATE).

SECTION 101 (A) OF THE STATUTE HAS THE EFFECT OF EXEMPTING FROM SECTION 201, TITLE II, OF THE STATUTE (FORMULA FOR OVERTIME COMPENSATION) "/3) HEADS OF DEPARTMENTS OR OF INDEPENDENT ESTABLISHMENTS OR AGENCIES OF THE FEDERAL GOVERNMENT.' IN DECISION OF JUNE 25, 1943, 22 COMP. GEN. 1132, IT WAS HELD WITH RELATION TO A SIMILAR EXEMPTION FROM THE OVERTIME PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943, AS FOLLOWS (QUOTING FROM THE SYLLABUS).

"THE PROVISIONS OF SECTION 1 (C) OF THE WAR OVERTIME PAY ACT OF 1943 EXCLUDING FROM THE BENEFITS OF THE ACT HEADS OF DEPARTMENTS, INDEPENDENT ESTABLISHMENTS AND AGENCIES RELATE ONLY TO THE EXECUTIVE BRANCH OF THE GOVERNMENT, AND, THEREFORE, THE ARCHITECT OF THE CAPITOL, WHO FUNCTIONS AS AN OFFICER OR AGENT OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT, IS NOT EXCLUDED FROM SUCH BENEFITS BY SAID PROVISIONS.

THE ONLY DIFFERENCE IN THE WORDING OF THE EXEMPTION FROM THE OVERTIME PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND IN THE WORDING OF THE EXEMPTION FROM THE OVERTIME PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943, 57 STAT. 75, CONSISTS, SO FAR AS HERE MATERIAL, IN THE ADDITION OF THE WORDS,"OF THE FEDERAL GOVERNMENT.' THE ADDITION OF THOSE WORDS IN THE PRESENT LAW WAS EXPLAINED BY CONGRESSMAN RANDOLPH ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES JUNE 12, 1945, AS FOLLOWS (QUOTING FROM PAGE 6110 OF THE CONGRESSIONAL RECORD OF THAT DATE/---

IN ORDER TO MAKE SURE THAT JUDGES OF LOCAL COURTS AND THE DISTRICT COMMISSIONERS ARE DEFINITELY COVERED BY THE BILL, I OFFERED THE AMENDMENT IN SECTION 102 (A), DEALING WITH EXEMPTIONS, SO AS TO EXCLUDE FROM THE BILL ONLY FEDERAL JUDGES AND THE HEADS OF DEPARTMENTS OR AGENCIES OF THE FEDERAL GOVERNMENT. IN VIEW OF THAT COMMENT AND SINCE IT MAY BE ASSUMED THAT THE CONGRESS ENACTED THE OVERTIME PROVISIONS OF THE NEW STATUTE IN THE LIGHT OF THE QUOTED DECISION OF THIS OFFICE WITH RELATION TO THE OVERTIME PROVISIONS IN THE FORMER STATUTE AND NO CHANGE HAVING BEEN MADE IN THE PRESENT LAW JUSTIFYING A CONTRARY VIEW, THE CONCLUSION STATED IN THE DECISION OF JUNE 25, 1943, SUPRA, IS FOR APPLICATION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, ALSO.

THEREFORE, IN ADDITION TO THE ENTITLEMENT OF THE ARCHITECT OF THE CAPITOL TO THE BASIC INCREASE AS HEREINABOVE HELD, HE IS ENTITLED TO RECEIVE, ALSO, OVERTIME COMPENSATION PURSUANT TO THE FORMULA PRESCRIBED BY SECTION 201 OF THE STATUTE--- THE AGGREGATE COMPENSATION BEING SUBJECT, OF COURSE, TO THE LIMITATION PRESCRIBED BY SECTION 603 (B) OF THE STATUTE.

THE SECOND QUESTION ARISING UNDER THIS GROUP IS WHETHER THE TWO ADMINISTRATIVE ORDERS ISSUED BY YOU JULY 5, 1945, ENTITLED (1)," RE. FULL- TIME CAPITOL POWER PLANT EMPLOYEES OCCUPYING POSITIONS UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, EXCLUSIVE OF SUCH EMPLOYEES WHO SERVE ON REVOLVING SHIFTS," AND (2)," RE. FULL-TIME CAPITOL POWER PLANT EMPLOYEES OCCUPYING POSITIONS UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, WHO SERVE ON REVOLVING SHIFTS," PROPERLY CONFORM TO THE REQUIREMENTS OF SECTION 604 (A) AND (E), TITLE VI, OF THE STATUTE, 59 STAT. 303, 304, AND SECTION 202 (B) OF THE STATUTE, 59 STAT. 297.

SECTION 604 (E) VESTS A DISCRETION IN THE ARCHITECT OF THE CAPITOL TO APPLY TO ANY OF THE EMPLOYEES OF HIS OFFICE THE PROVISIONS OF SECTION 604 (A) OF THE STATUTE REQUIRING THE ESTABLISHMENT OF A BASIC ADMINISTRATIVE WORKWEEK OF 40 HOURS AND TO REQUIRE THAT THE HOURS OF WORK IN BE PERFORMED "WITHIN A PERIOD OF NOT MORE THAN SIX OF ANY SEVEN CONSECUTIVE DAYS.' SECTION 202 (B) OF THE STATUTE VESTS A DISCRETION IN THE ARCHITECT OF THE CAPITOL TO GRANT COMPENSATORY TIME OFF FROM DUTY IN LIEU OF OVERTIME COMPENSATION FOR ANY WORK PERFORMED IN EXCESS OF 40 HOURS IN ANY REGULARLY SCHEDULED WORKWEEK. THIS PROVISION IS MATERIALLY DIFFERENT FROM THE PROVISIONS OF SECTION 202 (A) OF THE STATUTE, 59 STAT. 297, AUTHORIZING THE HEADS OF OTHER AGENCIES TO PROMULGATE REGULATIONS AUTHORIZING THE GRANTING OF COMPENSATORY TIME OFF FROM DUTY IN LIEU OF OVERTIME COMPENSATION "FOR IRREGULAR OR OCCASIONAL DUTY IN EXCESS OF FORTY-EIGHT HOURS IN ANY REGULARLY SCHEDULED ADMINISTRATIVE WORKWEEK, TO THOSE PER ANNUM EMPLOYEES REQUESTING SUCH COMPENSATORY TIME OFF FROM DUTY.' THEREFORE, I HAVE TO ADVISE THAT THE TERMS AND CONDITIONS OF THE TWO ADMINISTRATIVE ORDERS REFERRED TO DO NOT CONTRAVENE THE CITED PROVISIONS OF THE STATUTE.

THE THIRD QUESTION PRESENTED WITH RESPECT TO GROUP (A) IS WHETHER IT IS PROPER TO ALLOW COMPENSATORY TIME OFF FROM DUTY ON SATURDAY, THE OVERTIME DAY, IN LIEU OF PAYING OVERTIME COMPENSATION FOR OVERTIME WORK PREVIOUSLY PERFORMED IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK AND TO MAKE PAYMENT AT OVERTIME RATES FOR THE SATURDAY ON WHICH THE COMPENSATORY TIME OFF FROM DUTY IS GRANTED. YOU HAVE STATED A NUMBER OF EXAMPLES SHOWING THE PARTICULAR CONDITIONS EXISTING IN CONNECTION WITH THE SESSIONS AND RECESSES OF THE CONGRESS WHICH REQUIRE EMPLOYEES UPON CERTAIN OCCASIONS TO PERFORM CONSIDERABLE OVERTIME WORK AT NIGHT AND ON SATURDAYS DURING THE SESSIONS OF THE CONGRESS, BUT TO PERFORM NO OVERTIME WORK DURING THE RECESSES OF THE CONGRESS EVEN ON SATURDAY, MAKING IT DESIRABLE TO ALLOW THE EMPLOYEES TO SAVE UP THEIR COMPENSATORY TIME ADMINISTRATIVELY GRANTED TO BE USED LATER ON SATURDAY, OR ON SEVERAL DAYS OF THE WEEK AT A TIME INCLUDING SATURDAY, WHEN THE SERVICES OF THE EMPLOYEES BETTER MAY BE SPARED, THEREBY PERMITTING THE EMPLOYEES TO RECEIVE THEIR REGULAR OVERTIME COMPENSATION FOR SATURDAY WITHIN AN ADMINISTRATIVE WORKWEEK ON WHICH COMPENSATORY TIME OFF FROM DUTY WILL BE TAKEN.

SINCE ALL OVERTIME COMPENSATION FOR WORK IN EXCESS OF 40 HOURS PER WEEK EITHER AFTER THE REGULAR HOURS OF DUTY ON ANY DAY DURING THE 40 HOUR BASIC WORKWEEK OR ON SATURDAY OR OTHER OVERTIME DAY WITHIN THE ADMINISTRATIVE WORKWEEK IS TO BE PAID AT THE RATES PRESCRIBED BY SECTION 201 OF THE STATUTE; AND AS AN EMPLOYEE WOULD NOT RECEIVE ANY MORE OVERTIME COMPENSATION BY PERMITTING THE GRANTING OF COMPENSATORY TIME OFF FROM DUTY ON SATURDAY OR OTHER OVERTIME DAY ON WHICH HE OTHERWISE WOULD BE REQUIRED TO WORK AND BE PAID AT THE OVERTIME RATES, THERE IS NO LEGAL OBJECTION TO ALLOWING COMPENSATORY TIME OFF FROM DUTY ON SATURDAY OR OTHER OVERTIME DAY WITHIN AN ADMINISTRATIVE WORKWEEK OF MORE THAN 40 HOURS. OF COURSE, WHEN BOTH THE BASIC WORKWEEK AND THE ADMINISTRATIVE WORKWEEK ARE ONLY 40 HOURS AND NO OVERTIME DAY ACTUALLY EXISTS, THE ABOVE-STATED RULE WOULD NOT APPLY, BUT IN THAT EVENT COMPENSATORY TIME WOULD BE REQUIRED TO BE GRANTED FOR TIME DURING THE EMPLOYEES' REGULAR TOUR OF DUTY, ONLY.

IN CONNECTION WITH THIS PRINCIPAL QUESTION YOU ASK THE FOLLOWING ADDITIONAL QUESTIONS:

A NUMBER OF OUR PER ANNUM EMPLOYEES NOW HAVE COMPENSATORY TIME DUE THEM AND ONE OF THESE EMPLOYEES, WORKING ON A 48 HOURS PER WEEK BASIS, HAS BEEN ABSENT ON SICK LEAVE DURING THE WEEK OF JULY 8 TO 14. IN THE EVENT THAT COMPENSATORY TIME OFF FROM DUTY MAY BE GRANTED ON SATURDAYS UNDER THE CONDITIONS OUTLINED ABOVE, MAY THE ARCHITECT CHARGE THIS EMPLOYEE WITH SICK LEAVE FOR THE BASIC 40 HOUR WORKWEEK, MONDAY THROUGH FRIDAY, AND ALLOW HIM TO BE CHARGED COMPENSATORY TIME OFF FROM DUTY ON SATURDAY AND RECEIVE HIS USUAL PAY FOR 40 HOURS REGULAR TIME AND 8 HOURS OVERTIME FOR THE WEEK OF JULY 8 TO 14? IF SO, IT IS ASSUMED THAT THE SAME PRINCIPLE WOULD APPLY IN THE CASE OF ANNUAL LEAVE.

IT HAS BEEN HELD CONSISTENTLY BY THIS OFFICE UNDER OTHER 40-HOUR WEEK STATUTES THAT A LEAVE WITH PAY STATUS, EITHER SICK OR ANNUAL, IS SYNONYMOUS WITH A DUTY STATUS TO BE INCLUDED WITHIN THE BASIC WORKWEEK OF 40 HOURS AS THOUGH THE EMPLOYEE HAD BEEN WORKING. 13 COMP. GEN. 370; 14 ID. 351; 20 ID. 555; 21 ID. 217, 965. THERE IS NOTHING IN THE FEDERAL EMPLOYEES PAY ACT OF 1945 JUSTIFYING THE ADOPTION OF ANY OTHER RULE TO EMPLOYEES WHOSE 40-HOUR BASIC WORKWEEK IS ESTABLISHED IN ACCORDANCE WITH SECTION 604 OF THE STATUTE. THEREFORE, THE QUOTED QUESTION IS ANSWERED IN THE AFFIRMATIVE, BOTH AS TO SICK AND ANNUAL LEAVE. COMPARE SECTION 402, PART IV, CHAP. I, OF THE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION AND APPROVED BY THE PRESIDENT FOR THE EXECUTIVE BRANCH OF THE GOVERNMENT PURSUANT TO THE AUTHORITY CONTAINED IN SECTION 605 OF THE STATUTE, 59 STAT. 304 ( DEPARTMENTAL CIRCULAR NO. 729, DATED JUNE 30, 1945,) ADOPTING THE RULE STATED IN THE CITED DECISIONS. YOUR FOURTH QUESTION IS PRESENTED AS FOLLOWS:

(4) SEC. 301, TITLE III. IN CERTAIN ACTIVITIES UNDER THE ARCHITECT OF THE CAPITOL, IT IS NECESSARY TO MAINTAIN THREE 8-HOUR WORKING SHIFTS DAILY, THROUGHOUT THE YEAR. ALTHOUGH THE WORKING HOURS AND WORKING CONDITIONS VARY IN DIFFERENT UNITS, THE FOLLOWING CASE WILL SERVE AS A TYPICAL EXAMPLE INVOLVED:

(A) A WATCH ENGINEER'S BASIC 40 HOURS ADMINISTRATIVE WORKWEEK IS FIXED FROM MONDAY TO FRIDAY INCLUSIVE--- ONE WEEK FROM MIDNIGHT TO 8:00 A.M.; ONE WEEK FROM 8.00 A.M. TO 4.00 P.M.; ONE WEEK FROM 4.00 P.M. TO MIDNIGHT. DURING THE WEEK THAT HE IS ON THE 4.00 P.M. TO MIDNIGHT SHIFT, HE IS REQUIRED TO WORK FROM MONDAY THROUGH SATURDAY. IS THIS OFFICE CORRECT IN ITS INTERPRETATION THAT HE IS ENTITLED TO THE 10 PERCENT NIGHT PAY DIFFERENTIAL FOR 6 HOURS SATURDAY, HIS OVERTIME DAY, IN ADDITION TO THE 10 PERCENT NIGHT PAY DIFFERENTIAL FOR 6 HOURS ON EACH OF THE PRECEDING 5 DAYS--- MONDAY TO FRIDAY, INCLUSIVE?

(B) IF THIS ENGINEER, IN ADDITION TO WORKING HIS 48 HOURS, 4.00 P.M. TO MIDNIGHT, MONDAY THROUGH SATURDAY, IS REQUIRED TO WORK ALSO FROM MIDNIGHT TUESDAY TO 8.00 A.M. WEDNESDAY, DUE TO FAILURE OF THE WATCH ENGINEER WHO WAS TO RELIEVE HIM AT THE COMPLETION OF HIS 4.00 P.M. TO MIDNIGHT DUTY TUESDAY, TO REPORT FOR DUTY, MAY HE BE PAID THE 10 PERCENT NIGHT PAY DIFFERENTIAL FOR 12 HOURS ON WEDNESDAY ( MIDNIGHT TO 6:00 A.M., AND 6.00 P.M. TO MIDNIGHT), IN ADDITION TO THE 10 PERCENT NIGHT DIFFERENTIAL FOR 6 HOURS DAILY ON MONDAY, TUESDAY, THURSDAY, FRIDAY AND ATURDAY? THE DOUBT ARISES, PRIMARILY, AS TO THE MEANING OF THE WORDING "REGULARLY SCHEDULED TOUR OF DUTY"--- AS TO WHETHER OR NOT THE NIGHT PAY DIFFERENTIAL IS LIMITED TO SERVICE PERFORMED BY AN EMPLOYEE DURING HIS OWN REGULARLY SCHEDULED OR ASSIGNED TOUR OF DUTY FOR A PARTICULAR WEEK, OR APPLIES TO SERVICE PERFORMED BY HIM DURING ANY NIGHT WORKING SHIFT FIXED FOR EMPLOYEES GENERALLY.

(C) IF THIS WATCH ENGINEER WORKS FROM 4.00 P.M. TO MIDNIGHT ON MONDAY, TUESDAY, THURSDAY, FRIDAY, AND SATURDAY, BUT IS ON LEAVE WITHOUT PAY ON WEDNESDAY, IS THIS OFFICE CORRECT IN ITS INTERPRETATION THAT HE IS ENTITLED TO NIGHT PAY DIFFERENTIAL FOR 6 HOURS ON SATURDAY, IN ADDITION TO THE OTHER DAYS ON WHICH HE WAS IN A PAY STATUS?

(D) IS THIS OFFICE CORRECT IN ITS INTERPRETATION THAT NO RETIREMENT DEDUCTIONS UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED, ARE TO BE MADE FROM THE 10 PERCENT NIGHT PAY DIFFERENTIAL FOR SATURDAY (IF ALLOWABLE), OR ANY OTHER DAY&.

IN THE CASE OF SUCH ACTIVITIES AS THE CAPITOL POWER PLANT, WHERE 24 HOURS SERVICE IS MAINTAINED DAILY THROUGHOUT THE YEAR, NECESSITATING THE MAINTENANCE OF THREE OPERATING SHIFTS, IS AN EMPLOYEE WHO IS NORMALLY ASSIGNED TO MAINTENANCE WORK ON THE DAY SHIFT AND DOES NOT ORDINARILY SERVE AS A WATCH ENGINEER, ENTITLED TO THE 10 PERCENT NIGHT PAY DIFFERENTIAL, IF HE IS CALLED UPON TO SERVE ON A MIDNIGHT TO 8.00 A.M. OR 4.00 P.M. TO MIDNIGHT SHIFT AS A WATCH ENGINEER FOR ONE OR MORE NIGHTS, OR EVEN FOR SEVERAL WEEKS, IN THE ABSENCE OR DISABILITY OF ONE OF THE WATCH ENGINEERS? IF THE LANGUAGE "REGULARLY SCHEDULED TOUR OF DUTY" RELATES SOLELY TO AN INDIVIDUAL'S REGULAR TOUR OF DUTY, IT IS APPRECIATED THAT THE ANSWER TO THIS QUESTION WILL BE ENTIRELY DIFFERENT THAN IF SUCH LANGUAGE RELATES TO ANY TOUR OF NIGHT DUTY REGULARLY SCHEDULED IN ANY BUILDING OR ACTIVITY WITHOUT REGARD TO THE INDIVIDUAL.

SECTION 301 OF THE NEW PAY STATUTE, 59 STAT. 298, PROVIDES:

SEC. 301. ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY, ANY PART OF WHICH FALLS BETWEEN THE HOURS OF 6 O-CLOCK POST MERIDIAN AND 6 O-CLOCK ANTEMERIDIAN, SHALL, FOR DUTY BETWEEN SUCH HOURS, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, BE PAID COMPENSATION AT A RATE OF 10 PERCENTUM IN EXCESS OF HIS BASIC RATE OF COMPENSATION FOR DUTY BETWEEN OTHER HOURS: PROVIDED, THAT SUCH DIFFERENTIAL FOR NIGHT DUTY SHALL NOT BE INCLUDED IN COMPUTING ANY OVERTIME COMPENSATION TO WHICH THE OFFICER OR EMPLOYEE MAY BE ENTITLED. AND PROVIDED FURTHER, THAT THIS SECTION SHALL NOT OPERATE TO MODIFY THE PROVISIONS OF THE ACT OF JULY 1, 1944 ( PUBLIC LAW NUMBERED 394, SEVENTY-EIGHTH CONGRESS), OR ANY OTHER LAW AUTHORIZING ADDITIONAL COMPENSATION FOR NIGHT WORK. ( ITALICS SUPPLIED.)

(A) THE QUESTION PRESENTED IN THIS EXAMPLE IS ANSWERED IN THE NEGATIVE. SEE ANSWER TO QUESTION 1, UNDER THE HEADING " SECTION 301," IN THE DECISION OF JULY 18, 1945, B-50927, 25 COMP. GEN. 62, TO THE FEDERAL WORKS ADMINISTRATOR.

(B) WHERE AN EMPLOYEE WORKS HIS ENTIRE REGULARLY SCHEDULED TOUR OF DUTY OF 40 HOURS FOR ALL OR A PORTION OF WHICH A NIGHT DIFFERENTIAL IS PAYABLE, ANY OVERTIME WORKED IN EXCESS OF THE 40-HOUR BASIC WORKWEEK IN THE SAME ADMINISTRATIVE WORKWEEK MAY NOT BE PAID FOR AT THE NIGHT DIFFERENTIAL RATE, BUT PAYMENT SHOULD BE MADE AT THE OVERTIME RATE (NOT INCLUDING NIGHT DIFFERENTIAL) UNLESS COMPENSATORY TIME OFF FROM DUTY BE GRANTED IN ACCORDANCE WITH YOUR ADMINISTRATIVE ORDER. HENCE, THE ENGINEER IN THE CASE PRESENTED UNDER THIS QUESTION SHOULD BE PAID OVERTIME COMPENSATION FOR THE PERIOD MIDNIGHT TUESDAY TO 8 A.M. WEDNESDAY OR, IN LIEU THEREOF, BE GRANTED COMPENSATORY TIME OFF FROM DUTY.

(C) IN DECISION OF SEPTEMBER 16, 1941, 21 COMP. GEN. 217, THE FOLLOWING RULES, AMONG OTHERS, WERE STATED UNDER THE 40-HOUR WEEK LAW OF MARCH 28, 1934 (QUOTING FROM THE SYLLABUS):

IF A 40-HOUR-WEEK EMPLOYEE DOES NOT WORK OR IS NOT OTHERWISE IN A PAY STATUS DURING LEAVE OR ON A HOLIDAY FOR ALL OF THE 40 HOURS OF HIS REGULAR TOUR OF DUTY, COMPENSATION FOR ANY WORK PERFORMED, ON A HOLIDAY OR ANY OTHER DAY, OUTSIDE OF HIS REGULAR TOUR OF DUTY TO MAKE UP FOR THE TIME LOST IS NOT PAYABLE AT THE OVERTIME RATE BUT ONLY AT THE REGULAR RATE.

TIME WORKED BY A 40-HOUR-WEEK EMPLOYEE ON ANY DAY DURING OTHER THAN THE REGULAR HOURS OF HIS WEEKLY TOUR OF DUTY IS COMPENSABLE AT THE OVERTIME RATE UNLESS THE WORK WAS PERFORMED TO MAKE UP TIME PREVIOUSLY LOST DURING THE REGULAR HOURS OF HIS WEEKLY TOUR OF DUTY.

NO REASON IS PERCEIVED WHY THE SAME RULES SHOULD NOT BE FOR APPLICATION TO THOSE EMPLOYEES FOR WHOM A 40-HOUR BASIC WORKWEEK HAS BEEN ESTABLISHED PURSUANT TO SECTION 604 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. THEREFORE, THE WORK ON SATURDAY NIGHT BETWEEN 6 P.M. AND MIDNIGHT SHOULD BE SUBSTITUTED FOR THE CORRESPONDING TIME LOST WEDNESDAY NIGHT AND STRAIGHT TIME PLUS NIGHT DIFFERENTIAL PAID FOR THE SATURDAY NIGHT WORK.

(D) AS THE STATUTE PROVIDES THAT THE NIGHT DIFFERENTIAL SHALL NOT BE INCLUDED IN COMPUTING THE NIGHT OVERTIME COMPENSATION, IT IS QUITE EVIDENT THAT THE CONGRESS INTENDED THE ADDITIONAL COMPENSATION OF 10 PERCENT FOR NIGHT WORK TO BE REGARDED AS NOT A PART OF THE BASIC COMPENSATION OF THE EMPLOYEE. HENCE, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. 7 COMP. GEN. 778. SEE, ALSO, THE COMMENTS OF THE COMMITTEE IN HOUSE OF REPRESENTATIVES REPORT NO. 726 (PAGE 10), ON THE BILL WHICH BECAME THE LAW HERE INVOLVED, WITH REGARD TO SECTION 301 OF THE STATUTE. COMPARE 23 COMP. GEN. 962; 24 ID. 39, 155, 189, 550, STATING THE RULE WITH REGARD TO EMPLOYEES UNDER SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522.

REFERRING TO THE QUESTION IN THE LAST PARAGRAPH OF THAT PART OF YOUR LETTER QUOTED ABOVE, THE WORDS "ASSIGNED TO A REGULARLY SCHEDULED TOUR OF DUTY" APPEARING IN SECTION 301, SUPRA, DO NOT NECESSARILY RELATE SOLELY TO AN INDIVIDUAL'S OWN REGULARLY SCHEDULED TOUR OF DUTY AT NIGHT, BUT MAY RELATE ALSO TO AN EMPLOYEE WHO IS ASSIGNED TO ANY REGULARLY SCHEDULED TOUR OF DUTY AT NIGHT OF AN AGENCY FOR ONE OR MORE NIGHTS OF THE BASIC WORKWEEK FOR WHICH STRAIGHT TIME OTHERWISE WOULD BE PAID. THEREFORE, IF, AS IS UNDERSTOOD, THE EMPLOYEE REFERRED TO IN THIS QUESTION WOULD NOT RECEIVE OVERTIME COMPENSATION FOR SUCH NIGHT DUTY UNDER THE RULES HEREINBEFORE STATED FOR WORK IN EXCESS OF 40 HOURS PER WEEK FOR ONE OR MORE NIGHTS WHICH HE WORKED IN LIEU OF CORRESPONDING TIME DURING HIS REGULARLY SCHEDULED TOUR OF DUTY DURING THE DAYTIME, HE MAY BE PAID THE NIGHT DIFFERENTIAL IN ADDITION TO HIS BASIC COMPENSATION FOR THE TIME HE SERVED AT NIGHT BETWEEN 6 P.M. AND 6 A.M., IT BEING UNDERSTOOD THAT THE TERM "REGULARLY SCHEDULED TOUR OF DUTY" IS SYNONYMOUS WITH THE TERM ,BASIC WORKWEEK" IN THIS CONNECTION.

YOUR QUESTION NUMBERED (5) IS PRESENTED AS FOLLOWS:

(5) SEC. 402, TITLE IV.

AN EMPLOYEE OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL WAS APPOINTED AS A TEMPORARY CPC-6 SUBSTATION OPERATOR AT $1,860 PER ANNUM, MARCH 8, 1943 AND CONTINUED IN THAT CAPACITY UNTIL TERMINATION OF HIS SERVICES AUGUST 31, 1944, DUE TO HIS INDUCTION INTO THE ARMED FORCES. HE WAS HONORABLY DISCHARGED FROM THE ARMED FORCES DECEMBER 5, 1944. IN VIEW OF HIS TEMPORARY EMPLOYMENT, HE WAS NOT CONSIDERED ENTITLED TO ANY STATUTORY REEMPLOYMENT RIGHTS. HE WAS AGAIN APPOINTED AS A TEMPORARY CPC-6 SUBSTATION OPERATOR AT $1,860 PER ANNUM DECEMBER 16, 1944 AND CONTINUED IN THAT CAPACITY UNTIL MAY 16, 1945, WHEN HE WAS TRANSFERRED TO A PERMANENT CPC-6 SUBSTATION OPERATOR POSITION AT $1,860 PER ANNUM, THAT BECAME VACANT ON THAT DATE. HE IS NOW SERVING AS A PERMANENT EMPLOYEE IN THAT CAPACITY, AND HAS RECEIVED NO SALARY INCREASE, EXCEPT THE BASIC PAY INCREASE AUTHORIZED BY SEC. 405 OF PUBLIC LAW 106. 79TH CONGRESS.

THE QUESTION ARISES AS TO WHETHER OR NOT THIS EMPLOYEE IS ENTITLED TO A WITHIN-GRADE PROMOTION EFFECTIVE JULY 1, 1945. HE HAS BEEN IN A FULL-PAY STATUS AT ALL TIMES DURING HIS SEVERAL PERIODS OF EMPLOYMENT UNDER THIS OFFICE. IN THIS CONNECTION, REFERENCE IS MADE TO STATEMENTS IN THIS REGARD APPEARING ON PAGE 15 OF THE CONFERENCE REPORT ( H.REPT. 784, 79TH CONGRESS) ACCOMPANYING S. 807; ALSO PAGE 16 OF HOUSE REPORT 726, 79TH CONGRESS.

SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, AMENDS SUBSECTION (B) OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY THE ACT OF AUGUST 1, 1941, 55 STAT. 613, TO INCLUDE THE FOLLOWING:

(4) THAT ANY EMPLOYEE, (A) WHO, WHILE SERVING UNDER PERMANENT, WAR SERVICE, TEMPORARY, OR ANY OTHER TYPE OF APPOINTMENT, HAS LEFT HIS POSITION TO ENTER THE ARMED FORCES OR THE MERCHANT MARINE, OR TO COMPLY WITH A WAR TRANSFER AS DEFINED BY THE CIVIL SERVICE COMMISSION, (B) WHO HAS BEEN SEPARATED UNDER HONORABLE CONDITIONS FROM ACTIVE DUTY IN THE ARMED FORCES, OR HAS RECEIVED A CERTIFICATE OF SATISFACTORY SERVICE IN THE MERCHANT MARINE, OR HAS A SATISFACTORY RECORD ON WAR TRANSFER, AND (C) WHO, UNDER REGULATIONS OF THE CIVIL SERVICE COMMISSION OR THE PROVISIONS OF ANY LAW PROVIDING FOR RESTORATION OR REEMPLOYMENT, OR UNDER ANY OTHER ADMINISTRATIVE PROCEDURE WITH RESPECT TO EMPLOYEES NOT SUBJECT TO CIVIL SERVICE RULES AND REGULATIONS, IS RESTORED, REEMPLOYED, OR REINSTATED IN ANY POSITION SUBJECT TO THIS SECTION, SHALL UPON HIS RETURN TO DUTY BE ENTITLED TO WITHIN-GRADE SALARY ADVANCEMENTS WITHOUT REGARD TO PARAGRAPHS (2) AND (3) OF THIS SUBSECTION, AND TO CREDIT SUCH SERVICE IN THE ARMED FORCES, IN THE MERCHANT MARINE, AND ON WAR TRANSFER, TOWARD SUCH WITHIN- GRADE SALARY ADVANCEMENTS. AS USED IN THIS PARAGRAPH THE TERM "SERVICE IN THE MERCHANT MARINE" SHALL HAVE THE SAME MEANING AS WHEN USED IN THE ACT ENTITLED "AN ACT TO PROVIDE REEMPLOYMENT RIGHTS FOR PERSONS WHO LEAVE THEIR POSITIONS TO SERVE IN THE MERCHANT MARINE, AND FOR OTHER PURPOSES," APPROVED JUNE 23, 1943 ( U.S.C., 1940 EDITION, SUPP. IV, TITLE 50 APP., SECS. 1471 TO 1475, INC. ). ( ITALICS SUPPLIED.)

WHILE, AS STATED IN YOUR SUBMISSION, THE REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION UNDER AUTHORITY OF SECTION 605 OF THE NEW STATUTE DO NOT APPLY TO EMPLOYEES OF THE ARCHITECT OF THE CAPITOL, NEVERTHELESS, CHAPTER II ENTITLED " PERIODIC WITHIN-GRADE SALARY ADVANCEMENT REGULATIONS") CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 529 OF JUNE 30, 1945) ISSUED PURSUANT TO THE AUTHORITY VESTED IN THE COMMISSION BY SUBSECTION (G) OF SECTION 7 OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 404 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 300, IS APPLICABLE TO EMPLOYEES OF THE ARCHITECT OF THE CAPITOL WHO ARE SUBJECT TO THE CLASSIFICATION ACT AS AMENDED. SECTION 301, PART III OF THOSE REGULATIONS CONTAINS THE FOLLOWING:

(E) SERVICE IN THE ARMED FORCES, IN THE MERCHANT MARINE, OR ON WAR TRANSFER SUBJECT TO THE FOLLOWING CONDITIONS: THE EMPLOYEE MUST HAVE (1) LEFT HIS POSITION TO ENTER THE ARMED FORCES OR THE MERCHANT MARINE, OR TO COMPLY WITH A WAR TRANSFER, (2) BEEN SEPARATED UNDER HONORABLE CONDITIONS FROM ACTIVE DUTY IN THE ARMED FORCES, OR HAVE RECEIVED A CERTIFICATE OF SATISFACTORY SERVICE IN THE MERCHANT MARINE, OR HAVE A SATISFACTORY RECORD ON WAR TRANSFER, AND (3) BEEN RESTORED, REEMPLOYED, OR REINSTATED IN ANY PERMANENT POSITION WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, UNDER REGULATIONS OF THE CIVIL SERVICE COMMISSION, OR THE PROVISIONS OF ANY LAW PROVIDING FOR RESTORATION OR REEMPLOYMENT, OR ANY OTHER ADMINISTRATIVE PROCEDURE WITH RESPECT TO EMPLOYEES NOT SUBJECT TO CIVIL SERVICE RULES AND REGULATIONS. ANY EMPLOYEE ENTITLED TO BE CREDITED WITH SERVICE UNDER THIS SUBSECTION SHALL ALSO BE ENTITLED TO CREDIT FOR CIVILIAN EMPLOYMENT PRIOR TO LEAVING HIS POSITION TO ENTER THE ARMED FORCES OR THE MERCHANT MARINE, OR TO COMPLY WITH A WAR TRANSFER, IN ACCORDANCE WITH SUBSECTIONS (A), (B), (C), AND (D) OF THIS SECTION. IN THE OPINION OF THE ATTORNEY GENERAL OF MAY 26, 1943, 40 OP. ATTY. GEN.--- , NO. 66, IT WAS CONCLUDED THAT WAR SERVICE APPOINTEES HELD TEMPORARY POSITIONS AND, THEREFORE, WERE NOT ENTITLED TO RESTORATION TO THEIR CIVILIAN POSITIONS UPON RETURN FROM THE ARMED FORCES. UPON THE BASIS OF THAT OPINION, THIS OFFICE HELD IN DECISIONS OF JANUARY 3, 1945, 24 COMP. GEN. 491, AND MARCH 16, 1945, 24 COMP. GEN. 688, THAT WAR SERVICE APPOINTEES WERE NOT ENTITLED TO COUNT MILITARY SERVICE TOWARD WITHIN-GRADE SALARY ADVANCEMENTS. HAVING REGARD FOR THE WORDS OF SECTION 402 AS ITALICIZED ABOVE, WHICH, SO FAR AS WITHIN-GRADE SALARY ADVANCEMENTS ARE CONCERNED, HAVE THE EFFECT OF MODIFYING THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF SEPTEMBER 16, 1940, 54 STAT. 890, AND STATUTES IN PARI MATERIA, LIMITING REEMPLOYMENT BENEFITS TO EMPLOYEES WHO LEFT POSITIONS OTHER THAN TEMPORARY TO ENTER THE ARMED FORCES, AND AS SECTION 610 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 306, PROVIDES THAT " THIS ACT SHALL TAKE EFFECT ON JULY 1, 1945," IT IS CONCLUDED THAT THE PURPOSE OR INTENT OF SUBSECTION (B) (4) OF SECTION 7 OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, WAS TO ESTABLISH A RULE WHICH WOULD SUPERSEDE THE RULE STATED IN THE CITED DECISIONS OF THIS OFFICE AND TO ALLOW THE COUNTING OF ALL MILITARY SERVICE AND CIVILIAN SERVICE PRIOR TO MILITARY SERVICE FOR THE PURPOSE OF COMPUTING WITHIN-GRADE SALARY ADVANCEMENTS AS OF JULY 1, 1945, TO ANY EMPLOYEE WHO ON THAT DATE HELD A PERMANENT POSITION AND OTHERWISE MET THE TERMS AND CONDITIONS OF THE STATUTE AND REGULATIONS OF THE CIVIL SERVICE COMMISSION, REGARDLESS OF THE FACT THAT SUCH EMPLOYEE MAY HAVE BEEN RESTORED OR APPOINTED TO A PERMANENT POSITION PRIOR TO JULY 1, 1945. THEREFORE, AS THE SUBSTATION OPERATOR WHOSE CASE IS COVERED BY THIS QUESTION HELD A PERMANENT POSITION ON JULY 1, 1945, WHEN THE STATUTE WENT INTO EFFECT, ALL OF HIS MILITARY SERVICE AND HIS CIVILIAN SERVICE PRIOR TO HIS MILITARY SERVICE MAY BE CREDITED TOWARD COUNTING SERVICE FOR THE PURPOSE OF GRANTING A WITHIN-GRADE SALARY ADVANCEMENT EFFECTIVE AS OF JULY 1, 1945, PROVIDED HE OTHERWISE MET THE TERMS AND CONDITIONS OF THE LAW AND REGULATIONS ON THAT DATE.

THE QUESTIONS UNDER GROUP (B) ARE PRESENTED AS FOLLOWS:

(B) RE: PER ANNUM EMPLOYEES OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL WHOSE COMPENSATION IS NOT FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED:

THESE EMPLOYEES ARE REGARDED AS SUBJECT TO SECTIONS 501 AND 502 OF TITLE V; SEC. 603 (B), 604 (E), 608, 609, 610 OF TITLE VI.

(1) IN DECISION B-34310, DATED MAY 12, 1943, IT WAS STATED IN PERTINENT PART WITH REFERENCE TO THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED:

"THE LIMITATION OF $2,000 PER ANNUM FIXED BY THAT STATUTE ON THE COMBINED RATE OF MORE THAN ONE SALARY THAT AN EMPLOYEE MAY RECEIVE FOR THE SAME PERIOD OF TIME RELATES TO THE REGULAR OR BASIC SALARIES. * * *"

IS THE ADDITIONAL COMPENSATION AUTHORIZED BY SEC. 501 OF TITLE V TO BE REGARDED AS REGULAR OR BASIC SALARY WITHIN THE MEANING OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED?

(2) IN THE PREPARATION OF PAYROLLS COVERING PAYMENT OF SALARIES OF EMPLOYEES UNDER THE ARCHITECT OF THE CAPITOL SUBJECT TO SECTIONS 501 AND 502 OF TITLE V, IS IT NECESSARY TO SHOW ON SUCH PAYROLLS THREE SEPARATE AMOUNTS FOR EACH EMPLOYEE: THAT IS, THE BASE PAY AMOUNT, THE ADDITIONAL COMPENSATION UNDER SECTION 501, AND THE TEMPORARY ADDITIONAL COMPENSATION UNDER SEC. 502; OR SHOULD THE ADDITIONAL COMPENSATION UNDER SEC. 501 AND THE BASIC PAY BE COMBINED, SINCE THE ADDITIONAL COMPENSATION UNDER SEC. 501 IS TO BE CONSIDERED A PART OF BASIC COMPENSATION FOR PURPOSES OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED?

EXAMPLE: ELEVATOR OPERATOR AT $1,200 PER ANNUM

PERIODS: HALF-MONTH--- JULY 1 TO 15, 1945:

$ 6.00

10.00 OR $ 6.00

50.00 60.00

YOUR UNDERSTANDING IS CORRECT THAT THE CITED SECTIONS OF THE NEW STATUTE ARE APPLICABLE TO GROUP (B) EMPLOYEES.

THE LAST TWO SENTENCES OF SECTION 501 OF THE NEW STATUTE, 59 STAT. 301, CONTAINING THE FORMULA FOR INCREASING THE BASIC COMPENSATION OF OFFICERS AND EMPLOYEES OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT NOT SUBJECT TO THE CLASSIFICATION ACT PROVIDE:

* * * THE ADDITIONAL COMPENSATION PROVIDED BY THIS SECTION SHALL BE CONSIDERED A PART OF THE BASIC COMPENSATION OF ANY SUCH OFFICER OR EMPLOYEE FOR THE PURPOSES OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED. THE ADDITIONAL COMPENSATION PROVIDED FOR BY THIS SECTION AND SECTION 502 SHALL NOT BE TAKEN INTO ACCOUNT IN DETERMINING WHETHER ANY AMOUNT EXPENDED FOR CLERK HIRE, OR THE COMPENSATION PAID TO AN OFFICER OR EMPLOYEE, IS WITHIN ANY LIMIT NOW PRESCRIBED BY LAW. ( ITALICS SUPPLIED.)

THE COMMENTS OF THE HOUSE OF REPRESENTATIVES COMMITTEE ON H.R. 3393, APPEARING IN REPORT NO. 726 (PAGE 18) WITH REGARD TO SECTION 501 OF THE BILL, WHICH BECAME THE NEW PAY ACT, ARE AS FOLLOWS:

SECTION 501. INCREASE IN RATES OF COMPENSATION.--- THIS SECTION APPLIES TO LEGISLATIVE EMPLOYEES NOT UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, THE SAME PAY-INCREASE FORMULA AS IS PROVIDED IN SECTION 405 FOR EMPLOYEES UNDER SUCH ACT, AS AMENDED. THERE IS A DIFFERENCE IN ITS OPERATION, HOWEVER, IN THAT WHILE UNDER SECTION 405 THE GRANTING OF THE ADDITIONAL COMPENSATION HAS THE EFFECT OF ESTABLISHING NEW RATES OF BASIC COMPENSATION, THE LEGISLATIVE EMPLOYEES AFFECTED BY THIS SECTION WILL CONTINUE TO RECEIVE, OR BE APPOINTED AT, A "BASIC" RATE OF COMPENSATION UPON THE BASIS OF WHICH THIS ADDITIONAL COMPENSATION WILL BE COMPUTED. CONSISTENTLY WITH THIS, IT IS PROVIDED THAT NEITHER THE ADDITIONAL COMPENSATION PROVIDED FOR BY THIS SECTION, NOR THE TEMPORARY ADDITIONAL COMPENSATION PROVIDED FOR BY SECTION 502, IS TO BE TAKEN INTO ACCOUNT IN DETERMINING WHETHER ANY AMOUNT EXPENDED FOR CLERK HIRE, OR THE COMPENSATION PAID TO AN OFFICER OR EMPLOYEE, IS WITHIN ANY LIMIT NOW PRESCRIBED BY LAW. TO AVOID ANY UNCERTAINTY AS TO THE STATUS, UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED, OF THE ADDITIONAL COMPENSATION PROVIDED FOR BY THIS SECTION, IT IS SPECIFICALLY PROVIDED THAT FOR THE PURPOSES OF THAT ACT IT IS TO CONSTITUTE BASIC COMPENSATION.

(1) IN THE LIGHT OF THOSE COMMENTS, AND IN VIEW OF THE WORDING OF THE LAST SENTENCE OF SECTION 501 OF THE STATUTE--- PARTICULARLY THE WORDS ITALICIZED ABOVE--- IT IS CONCLUDED THAT THE ADDITIONAL BASIC COMPENSATION PROVIDED BY SECTION 501 OF THE STATUTE IS NOT TO BE TAKEN INTO CONSIDERATION IN APPLYING THE DUAL COMPENSATION ACT OF 1916, AS AMENDED, 39 STAT. 582.

(2) THE FIRST ALTERNATE OF YOUR SECOND QUESTION UNDER THIS GROUP IS ANSWERED IN THE NEGATIVE AND THE SECOND IN THE AFFIRMATIVE. SECTION 501 OF THE STATUTE OTHERWISE WILL BE TAKEN INTO CONSIDERATION BY THIS OFFICE IN THE ADJUDICATION OF ANY DUAL COMPENSATION CASE THAT MAY ARISE INVOLVING PAYMENTS UNDER THAT SECTION ON AND AFTER JULY 1, 1945.

GROUP (C) IS DESCRIBED IN YOUR LETTER AS FOLLOWS:

(C) RE: PER DIEM AND PER HOUR EMPLOYEES OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL: NOT SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED:

YOU HAVE INCLUDED IN YOUR LETTER IN CONNECTION WITH QUESTIONS RELATING TO THIS GROUP A DISCUSSION OF CERTAIN ADMINISTRATIVE DIFFICULTIES WHICH HAVE ARISEN IN MEETING THE DEMANDS OF THE TRADESMEN AND, ALSO, YOU SUGGEST CERTAIN POSSIBLE INTERPRETATIONS OF SECTION 503 OF THE NEW PAY STATUTE APPLICABLE TO SAID CLASS OF EMPLOYEES, ALL OF WHICH HAS BEEN GIVEN CAREFUL CONSIDERATION IN ARRIVING AT THE CONCLUSIONS HEREINAFTER STATED. YOUR QUESTIONS AS TO GROUP (C) EMPLOYEES ARE PRESENTED AS FOLLOWS:

BEFORE DEFINITELY AGREEING TO A CONTINUATION OF A SIX DAYS PER WEEK EMPLOYMENT BASIS FOR SUCH EMPLOYEES, IT IS NECESSARY THAT THE ARCHITECT HAVE DEFINED FOR HIM BY THE COMPTROLLER GENERAL OF THE UNITED STATES THE EXTENT OF HIS AUTHORITY UNDER SEC. 503, TITLE V, OF PUBLIC LAW 106, WITH REGARD TO THE FOLLOWING MATTERS, BECAUSE OF CERTAIN PRACTICES THAT ARE PREVALENT AMONG SUCH TRADESMEN, WITH WHICH THIS OFFICE HAS BEEN ASKED TO COMPLY:

SPECIFICALLY, HAS THE ARCHITECT OF THE CAPITOL THE AUTHORITY UNDER SEC. 503, TITLE V, OF PUBLIC LAW 106, TO PROVIDE BY REGULATION FOR PAYMENT FOR WORK ON SATURDAY AT THE OVERTIME RATE OF "TIME AND ONE HALF," IN THE CASE OF PER DIEM AND PER HOUR EMPLOYEES--- SUCH AS PAINTERS, CARPENTERS, PLASTERERS, ETC.--- WHOSE COMPENSATION IS FIXED BY THE ARCHITECT OF THE CAPITOL UNDER AUTHORITY OF LAW WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, UNDER THE FOLLOWING CONDITIONS:

(A) A PER DIEM OR PER HOUR MECHANIC, SUCH AS A PAINTER AT PRESENT RECEIVING THE PREVAILING WAGE RATE OF $14.20 PER DIEM, IS WORKING ON A 48 HOURS PER WEEK BASIS. HE IS ENGAGED IN EXTERIOR PAINTING WORK. DUE TO WEATHER CONDITIONS OR SOME ACTION (OTHER THAN DISCIPLINARY) ON THE PART OF THE GOVERNMENT, HE IS PREVENTED FROM WORKING, THROUGH NO FAULT OF HIS OWN, ON WEDNESDAY. DURING THIS SAME WEEK IN WHICH HE IS IN A " WITHOUT PAY" STATUS ON WEDNESDAY, HE WORKS ON MONDAY, TUESDAY, THURSDAY, AND FRIDAY--- A TOTAL OF 32 HOURS. MAY THE ARCHITECT OF THE CAPITOL UNDER SEC. 503 PROVIDE BY REGULATION THAT, UNDER SUCH CONDITIONS, SUCH A MECHANIC MAY BE PAID "TIME AND A HALF" FOR WORK ON SATURDAY OF THAT WEEK?

(B) A PER DIEM OR PER HOUR MECHANIC, SUCH AS A PAINTER AT PRESENT RECEIVING THE PREVAILING WAGE RATE OF $14.20 PER DIEM, IS WORKING ON A 48 HOURS PER WEEK BASIS. HE IS NOT APPOINTED UNTIL WEDNESDAY OF A PARTICULAR WEEK. HE WORKS ON WEDNESDAY, THURSDAY, AND FRIDAY OF THAT WEEK--- A TOTAL OF 24 HOURS. MAY THE ARCHITECT OF THE CAPITOL UNDER SEC. 503 PROVIDE BY REGULATION THAT, UNDER SUCH CONDITIONS, SUCH A MECHANIC MAY BE PAID "TIME AND A HALF" FOR WORK ON SATURDAY OF THAT WEEK?

(C) A PER DIEM OR PER HOUR MECHANIC, SUCH AS A PAINTER RECEIVING THE PREVAILING WAGE RATE OF $14.20 PER DIEM, IS WORKING ON A 48 HOURS PER WEEK BASIS. HE WORKS ON MONDAY, TUESDAY, THURSDAY AND FRIDAY IN ONE WEEK--- A TOTAL OF 32 HOURS, BUT IN THAT WEEK DOES NOT WORK ON WEDNESDAY, DUE TO ABSENCE, SUCH AS SICKNESS, NOT CAUSED BY THE GOVERNMENT. IN THE EVENT THAT THE ANSWER TO (A) AND (B) IS YES, MAY THE ARCHITECT OF THE CAPITOL UNDER SEC. 503 PROVIDE BY REGULATION THAT, UNDER CONDITION (C), SUCH AN EMPLOYEE (IN A PAY STATUS ON MONDAY, TUESDAY, THURSDAY, FRIDAY, AND IN A " WITHOUT PAY" STATUS ON WEDNESDAY) WOULD NOT BE PAID "TIME AND A HALF" FOR WORK ON SATURDAY, BUT WOULD BE GIVEN THE OPTION OF EITHER WORKING ON THAT SATURDAY AT STRAIGHT TIME OR NOT WORKING AT ALL ON THAT DAY?

IT IS REALIZED THAT THE DETERMINATION OF THESE MATTERS WILL, IN ALL PROBABILITY, DEPEND UPON THE CONSTRUCTION PLACED UPON SEC. 503; AND IN THIS CONNECTION, IT IS TO BE NOTED THAT THE EMPLOYEES COVERED BY THIS SECTION UNDER THE ARCHITECT OF THE CAPITOL ARE ONLY TEMPORARY, SEASONAL, INTERMITTENT, IRREGULAR EMPLOYEES--- NOT YEAR-AROUND EMPLOYEES, OR EMPLOYEES THAT CAN RELY UPON REGULAR WORK, AS CONTRASTED TO MANY OF THE GROUPS OF EMPLOYEES FALLING UNDER SEC. 23 OF THE ACT OF MARCH 28, 1934.

SECTION 503 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 301, PROVIDES:

COMPENSATION FOR OVERTIME

SEC. 503. HEREAFTER, FOR OVERTIME PAY PURPOSES, PER DIEM AND PER HOUR EMPLOYEES UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL NOT SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, SHALL BE REGARDED AS SUBJECT TO THE PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934 ( S.C., 1940 EDITION, TITLE 5, SEC. 673C), AND SECTIONS 501 AND 502 OF THIS ACT SHALL NOT BE APPLICABLE TO SUCH EMPLOYEES. ( ITALICS SUPPLIED.)

THE COMMENTS OF THE CONFERENCE COMMITTEE ON THE BILL WHICH BECAME THE LAW HERE INVOLVED, WITH REGARD TO SECTION 503 (PAGES 15 AND 16 OF REPORT NO. 784), ARE AS FOLLOWS.

PART 1 OF TITLE V OF THE HOUSE AMENDMENT APPLIES TO OFFICERS AND EMPLOYEES IN THE LEGISLATIVE BRANCH WHOSE COMPENSATION IS NOT FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED. CERTAIN TEMPORARY, SEASONAL, INTERMITTENT, AND IRREGULAR EMPLOYEES, SUCH AS PAINTERS, CARPENTERS, LABORERS, ETC., UNDER THE ARCHITECT OF THE CAPITOL WOULD, UNDER THE HOUSE AMENDMENT, BE ELIGIBLE FOR BOTH THE PERMANENT PAY INCREASE AND THE ADDITIONAL COMPENSATION INCREASE (TEMPORARY) PROVIDED UNDER SECTIONS 501 AND 502. SUCH INCREASES WOULD THROW MOST OF THE BASIC WAGES OF SUCH EMPLOYEES INTO A MUCH HIGHER SCALE THAN PAID IN INDUSTRY FOR SIMILAR WORK. FOR THIS REASON, THE CONFERENCE SUBSTITUTE ADDS A NEW SECTION (SEC. 503) TO SUCH PART WHICH WOULD MAKE SECTIONS 501 AND 502 INAPPLICABLE TO SUCH EMPLOYEES AND MAKE THEM SUBJECT TO THE OVERTIME PAY PROVISIONS OF SECTION 23 OF THE ACT OF MARCH 28, 1934. THIS WOULD, OF COURSE, LEAVE THE BASIC PAY RATES OF THESE EMPLOYEES UNDISTURBED.

SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, PROVIDES:

THE WEEKLY COMPENSATION, MINUS ANY GENERAL PERCENTAGE REDUCTION WHICH MAY BE PRESCRIBED BY ACT OF CONGRESS, FOR THE SEVERAL TRADES AND OCCUPATIONS, WHICH IS SET BY WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES, SHALL BE REESTABLISHED AND MAINTAINED AT RATES NOT LOWER THAN NECESSARY TO RESTORE THE FULL WEEKLY EARNINGS OF SUCH EMPLOYEES IN ACCORDANCE WITH THE FULL- TIME WEEKLY EARNINGS UNDER THE RESPECTIVE WAGE SCHEDULES IN EFFECT ON JUNE 1, 1932. PROVIDED, THAT THE REGULAR HOURS OF LABOR SHALL NOT BE MORE THAN FORTY PER WEEK; AND ALL OVERTIME SHALL BE COMPENSATED FOR AT THE RATE OF NOT LESS THAN TIME AND ONE HALF. IT IS THE VIEW OF THIS OFFICE THAT THE WORDS "FOR OVERTIME PAY PURPOSES" (ITALICIZED ABOVE) APPEARING IN SAID SECTION 503 HAVE THE EFFECT OF BRINGING GROUP (C) EMPLOYEES WITHIN THE PURVIEW OF ALL OF THE TERMS AND CONDITIONS OF THE PROVISO OF SECTION 23 OF THE ACT OF 1934, SUPRA, BUT NOT WITHIN THE PURVIEW OF THE BODY OF THAT SECTION. THAT IS TO SAY, THERE IS REQUIREMENT THAT SIX DAYS' BASIC COMPENSATION BE PAID FOR FIVE DAYS' WORK AS OF JUNE 1, 1932 (COMPARE 13 COMP. GEN. 265, 295), OR THAT IT IS NECESSARY TO REGARD THE ARCHITECT OF THE CAPITOL AS A "WAGE-FIXING AUTHORITY" SIMILAR TO A WAGE BOARD PURSUANT TO THE PROVISIONS CONTAINED IN THE BODY OF THE SECTION, BUT IT IS NECESSARY, UNDER THE TERMS OF THE PROVISO OF THE SECTION, FOR YOU TO ESTABLISH THE "REGULAR HOURS OF LABOR" (ITALICIZING SUPPLIED) FOR GROUP (C) EMPLOYEES WHICH "SHALL NOT BE MORE THAN FORTY PER WEEK" AND TO PRESCRIBE THE RATE OF OVERTIME COMPENSATION AT "NOT LESS THAN TIME AND ONE HALF" FOR ALL WORK PERFORMED BY SUCH EMPLOYEES IN EXCESS OF THE REGULAR HOURS OF LABOR NOT TO EXCEED 40 IN ANY ADMINISTRATIVE WORKWEEK. THERE IS AUTHORITY UNDER THE LAW TO ESTABLISH THE REGULAR HOURS OF LABOR DURING A WEEK AT LESS THAN 40 AND TO PAY OVERTIME COMPENSATION AT A RATE OF MORE THAN ONE AND ONE-HALF TIMES THE BASIC RATE, BUT I AM CONSTRAINED TO THE CONCLUSION THAT THERE IS NO AUTHORITY UNDER THE PROVISO OF SECTION 23 OF THE 1934 STATUTE FOR YOU TO ESTABLISH IRREGULAR HOURS OF LABOR FOR PARTICULAR EMPLOYEES SO AS TO PAY OVERTIME COMPENSATION AT A RATE NOT LESS THAN TIME AND ONE-HALF FOR WORK ON SATURDAY OR ON ANY OTHER DAY DESIGNATED AS THE OVERTIME DAY, WHEN THE REGULAR HOURS OF LABOR DURING THAT WEEK HAVE NOT BEEN WORKED, AS WOULD APPEAR TO BE SUGGESTED IN QUESTIONS (A), (B), AND (C). ON THE CONTRARY, AS THERE IS NO PROVISION IN THE STATUTE OR ANY SUGGESTED INTERPRETATION IN THE LEGISLATIVE HISTORY THEREOF TO THE CONTRARY, IT IS NECESSARY TO CONCLUDE THAT THE SAME RULES HERETOFORE STATED BY THIS OFFICE FOR COMPUTING AND PAYING OVERTIME COMPENSATION TO EMPLOYEES THROUGHOUT THE FEDERAL SERVICE FALLING WITHIN THE PROVISO TO SECTION 23 OF THE ACT OF 1934 APPLY, ALSO, TO GROUP (C) EMPLOYEES OF THE ARCHITECT OF THE CAPITOL; AND IT IS IMMATERIAL WHETHER THOSE EMPLOYEES WORK FULL TIME OR INTERMITTENTLY. IN OTHER WORDS, THE PROVISO TO THE SAID SECTION 23 NEVER HAS BEEN REGARDED BY THIS OFFICE AS AUTHORIZING THE ESTABLISHMENT OF AN OVERTIME RATE OF COMPENSATION FOR SATURDAY OR FOR ANY OTHER DAY TO BE DESIGNATED AS THE OVERTIME DAY WHEN THE EMPLOYEE DOES NOT WORK THE REGULAR TOUR OF DUTY DURING THAT WEEK, IN ADDITION TO THE SO- CALLED OVERTIME DAY, FOR THE REASON THAT IT CANNOT BE SAID THAT OVERTIME IS WORKED FOR WHICH AN OVERTIME RATE OF COMPENSATION WOULD BE PAYABLE UNLESS AN EMPLOYEE WORKS IN EXCESS OF HIS BASIC TOUR OF DUTY DURING THE WEEK. THEREFORE, QUESTIONS (A), (B), AND (C) ARE ANSWERED AS FOLLOWS:

(A) REFERENCE IS MADE TO THE RULES STATED IN THE DECISION OF SEPTEMBER 16, 1941, 21 COMP. GEN. 217, THE PERTINENT PORTION OF WHICH HAS BEEN QUOTED HEREINBEFORE IN ANSWER TO QUESTION (4) (C) RELATING TO GROUP (A) EMPLOYEES. THOSE RULES WERE STATED WITH REFERENCE TO EMPLOYEES WH OVERTIME COMPENSATION WAS COMPUTED AND PAID IN ACCORDANCE WITH THE PROVISO TO THE 1934 LAW. HENCE, THIS QUESTION IS ANSWERED IN THE NEGATIVE.

(B) IN DECISION OF MARCH 12, 1945, B-48091 (NOT PRINTED), AFTER QUOTING ONE OF THE RULES FROM THE DECISION OF SEPTEMBER 16, 1941, SUPRA, IT WAS STATED:

WHILE THAT RULE WAS NOT STATED WITH PARTICULAR REFERENCE TO EMPLOYEES WHO WERE FIRST APPOINTED DURING THE WORKWEEK OF 40 HOURS, AND WHO, THEREFORE, WERE NOT ON THE ROLLS THE FIRST PART OF THE WORKWEEK, NEVERTHELESS, THE RULE IS APPLICABLE HERE FOR THE REASON THAT 40 HOURS OF LABOR HAD NOT BEEN PERFORMED BY THE EMPLOYEES DURING THE WEEK ENDED SATURDAY, OCTOBER 14, 1944. THAT IS, THE CONTROLLING STATUTE OF 1934, SUPRA, AUTHORIZES PAYMENT OF COMPENSATION AT THE OVERTIME RATE FOR THE SIXTH DAY OF A WEEK, ONLY IN THE EVENT WORK ON THAT DAY IS IN EXCESS OF 40 HOURS LABOR ALREADY PERFORMED DURING THE SAME WEEK, AND NO DIFFERENT RULE MAY BE STATED BECAUSE OF THE FACT THAT THE EMPLOYEES HERE INVOLVED WERE NOT APPOINTED UNTIL AFTER THE BEGINNING OF THE WEEK, THE FACT REMAINING THAT THEY DID NOT PERFORM 40 HOURS OF LABOR DURING THE WEEK IN QUESTION, AND THEREFORE, ARE NOT ENTITLED TO COMPENSATION AT THE OVERTIME RATE FOR SATURDAY, OCTOBER 14, 1944. EXECUTIVE ORDERS NOS. 9240 AND 9248, DATED SEPTEMBER 9 AND SEPTEMBER 17, 1942, RESPECTIVELY, HAVE NO APPLICATION TO FEDERAL EMPLOYEES WHOSE COMPENSATION IS REQUIRED TO BE COMPUTED AND PAID PURSUANT TO THE ACT OF MARCH 28, 1934, AND ACCORDINGLY, THE DEPARTMENT OF LABOR APPEARS TO BE WITHOUT AUTHORITY TO STATE THE RULE APPLICABLE IN THE INSTANT CASE (CF. DECISION OF JANUARY 14, 1943, 22 COMP. GEN. 651, LAST PARAGRAPH OF THE SYLLABUS).

IN LINE WITH THE RULE THUS STATED, QUESTION (B) IS ANSWERED IN THE NEGATIVE.

IN VIEW OF THE NEGATIVE ANSWERS TO QUESTIONS (A) AND (B), IT IS UNNECESSARY TO ANSWER QUESTION (C):

THE QUESTIONS UNDER GROUP (D) ARE STATED AS FOLLOWS:

(D) GENERAL:

1. RETIREMENT ACT:

AN EMPLOYEE WHOSE REGULAR 40 HOURS BASIC WORKWEEK IS FIXED FROM MONDAY THROUGH FRIDAY. HIS OVERTIME DAY IS SATURDAY. HE IS WITHOUT PAY ON WEDNESDAY AND THEREFORE ENTITLED ONLY TO STRAIGHT TIME FOR 40 HOURS WORKED MONDAY THROUGH SATURDAY. IN SUCH INSTANCES, ARE RETIREMENT DEDUCTIONS TO BE MADE THROUGH SATURDAY, WHICH, AS INDICATED, IS NORMALLY HIS OVERTIME DAY?

2. SUNDAY OPENING, LIBRARY BUILDINGS AND GROUNDS:

A FORCE OF APPROXIMATELY 50 MECHANICS AND HELPERS ARE EMPLOYED ON A YEAR- AROUND BASIS AT THE LIBRARY OF CONGRESS BUILDINGS UNDER THE ARCHITECT OF THE CAPITOL IN CONNECTION WITH THE STRUCTURAL AND MECHANICAL CARE OF THOSE TWO BUILDINGS. THEIR COMPENSATION IS FIXED ON A PER ANNUM BASIS UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED. FOR THEIR REGULAR SERVICES, THEY HAVE FOR A NUMBER OF YEARS BEEN PAID FROM THE REGULAR SALARY APPROPRIATION PROVIDED FOR SUCH PURPOSE IN THE ANNUAL LEGISLATIVE BRANCH APPROPRIATION ACT UNDER THE " ARCHITECT OF THE CAPITOL" SECTION OF THAT ACT. FOR SUNDAY AND HOLIDAY WORK, THEY HAVE DURING THIS SAME PERIOD BEEN PAID FROM A SPECIAL " SUNDAY OPENING" APPROPRIATION PROVIDED FOR SUCH PURPOSE, ALSO IN THE ANNUAL LEGISLATIVE BRANCH APPROPRIATION ACT UNDER THE " ARCHITECT OF THE CAPITOL" SECTION OF THAT ACT.

THE REGULAR SALARY AND THE SUNDAY OPENING APPROPRIATION ITEMS AS THEY APPEAR IN THE 1946 LEGISLATIVE BRANCH APPROPRIATION ACT, PUBLIC LAW 85, 79TH CONGRESS, APPROVED JUNE 13, 1945, READ AS FOLLOWS:

" LIBRARY BUILDINGS AND GROUNDS

" MECHANICAL AND STRUCTURAL MAINTENANCE

"SALARIES: FOR CHIEF ENGINEER AND ALL PERSONAL SERVICES AT RATES OF PAY PROVIDED BY LAW, $97,800.

"SALARIES, SUNDAY OPENING: FOR EXTRA SERVICES OF EMPLOYEES AND ADDITIONAL EMPLOYEES UNDER THE ARCHITECT OF THE CAPITOL TO PROVIDE FOR THE OPENING OF THE LIBRARY BUILDINGS ON SUNDAYS AND ON HOLIDAYS, AT RATES TO BE FIXED BY SUCH ARCHITECT, $7,000.'

THE QUESTION ARISES AS TO WHETHER PUBLIC LAW 106 SUPERSEDES AND RENDERS INOPERATIVE THAT PORTION OF THE SUNDAY OPENING APPROPRIATION WHICH PROVIDES FOR "EXTRA SERVICES OF EMPLOYEES," IN THE CASE OF EMPLOYEES WHO WORK IN THEIR OWN JOB ON A SUNDAY, NOW THAT OVERTIME PAY FOR WORK IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK IS AUTHORIZED FOR EMPLOYEES UNDER THE ARCHITECT OF THE CAPITOL WHOSE SALARIES ARE FIXED UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED; ALSO PAYMENT FOR HOLIDAYS.

AS YOU KNOW, A GRADE CPC-8 MECHANIC MAY WORK ON ONE SUNDAY IN HIS OWN JOB, AND ON ANOTHER SUNDAY IN A DIFFERENT JOB--- SUCH AS IN THE JOB PERFORMED DURING THE WEEKDAYS BY HIS GRADE CPC-7 ASSISTANT. UNDER PREVIOUS CONSTRUCTION OF THE LIBRARY SUNDAY OPENING STATUTES, IT WOULD APPEAR PROPER, IN CASES WHERE A MAN DOES NOT WORK IN HIS OWN JOB ON A SUNDAY, TO CONTINUE TO COMPENSATE HIM FOR SUCH SUNDAY WORK UNDER THE "EXTRA SERVICES" PROVISION OF THE PREVIOUSLY CITED " SUNDAY OPENING" APPROPRIATION APPEARING IN THE 1946 LEGISLATIVE BRANCH APPROPRIATION ACT; BUT IN CASES WHERE A MAN ACTUALLY WORKS IN HIS OWN JOB ON A SUNDAY, THERE IS SOME DOUBT IN MY MIND AS TO WHETHER HE IS TO BE PAID OVERTIME PAY UNDER SEC. 201 OF PUBLIC LAW 106, OR TO CONTINUE TO BE COMPENSATED UNDER THE PROVISIONS OF THE " SUNDAY OPENING" APPROPRIATION; ALSO WHETHER, IN THE EVENT THAT SEC. 201 OF PUBLIC LAW 106 IS DEEMED TO GOVERN, SUCH SUNDAY OVERTIME IS TO BE PAID FROM THE REGULAR " SALARIES" APPROPRIATION OR THE " SUNDAY OPENING" APPROPRIATION.

(1) THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE FOR THE REASON THAT THE SATURDAY WORK IS AUTHORIZED TO BE SUBSTITUTED FOR THE LEAVE WITHOUT PAY ON WEDNESDAY AND PAID FOR AT BASIC RATES. COMPARE ANSWER TO QUESTION (4) (C) RELATING TO GROUP (A) EMPLOYEES.

(2) IN ANSWERING THIS QUESTION THERE IS FOR APPLICATION THE WELL SETTLED RULE OF STATUTORY INTERPRETATION THAT A LATER GENERAL STATUTE IS NOT TO BE CONSTRUED AS AFFECTING THE OPERATION OF AN EARLIER SPECIAL STATUTE UNLESS THE SPECIAL STATUTE IS EXPRESSLY REPEALED OR IS SO WHOLLY INCONSISTENT WITH IT THAT ITS REPEAL MUST OF NECESSITY BE IMPLIED. UNITED STATES V. NIX, 189 U.S. 199; RODGERS V. UNITED STATES, 185 U.S. 83; EX PARTE CROW DOG V. UNITED STATES, 109 U.S. 556, 570; WASHINGTON V. MILLER, 235 U.S. 422. AS THE CONGRESS HAS MADE SPECIAL PROVISION FOR THE EXTRA SERVICES OF EMPLOYEES OF THE ARCHITECT OF THE CAPITOL IN CONNECTION WITH THE SUNDAY OPENING OF THE LIBRARY AND HAS PROVIDED THAT COMPENSATION SHALL BE PAID FOR SUCH EXTRA SERVICES "AT RATES TO BE FIXED BY SUCH ARCHITECT," AND AS THERE IS NOTHING IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, OR OTHERWISE, TO JUSTIFY THE CONCLUSION THAT THE REPEAL OF THE SPECIAL PROVISION MAY BE IMPLIED, IT IS CONCLUDED THAT SAID SPECIAL STATUTORY PROVISION FOR SUNDAY OPENING REMAINS IN EFFECT AND TAKES PRECEDENCE OVER THE GENERAL PROVISION FOR OVERTIME COMPENSATION APPEARING IN SECTION 201 OF THE NEW PAY STATUTE, BOTH AS TO EMPLOYEES WORKING IN THEIR OWN JOBS ON SUNDAY AND AS TO EMPLOYEES WORKING IN OTHER THAN THEIR OWN JOBS ON SUNDAY--- AND THE TIME SO WORKED IS NOT TO BE CONSIDERED IN COMPUTING THEIR HOURS OF WORK FOR OVERTIME PAY PURPOSES.