A-65125, SEPTEMBER 6, 1935, 15 COMP. GEN. 175

A-65125, SEPTEMBER 6, 1935, 15 COMP. GEN. 175

POST OFFICE DEPARTMENT - POSTAL EMPLOYEES - FORTY-HOUR WEEK THE PREVIOUSLY EXISTING STATUTORY BASES FOR FIXING THE DAILY, MONTHLY, OR ANNUAL RATES OF COMPENSATION OF THE POSTAL EMPLOYEES MENTIONED IN THE ACT OF AUGUST 14, 1935, 49 STAT. 650, ESTABLISHING A FORTY-HOUR WEEK FOR CERTAIN POSTAL EMPLOYEES, ARE NOT AFFECTED BY THE PROVISIONS OF SAID ACT.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, SEPTEMBER 6, 1935:

THERE WAS RECEIVED AUGUST 30, 1935, YOUR LETTER AS FOLLOWS:

THE NEW LEGISLATION CONTAINED IN THE ACT OF AUGUST 14, 1935, PUBLIC NO. 275, PRESENTS SOME DIFFICULTIES IN THE PAYMENT OF EMPLOYEES IN THE RAILWAY MAIL SERVICE, OTHER THAN RAILWAY POSTAL CLERKS ASSIGNED TO ROAD DUTY, IN THAT THESE EMPLOYEES ARE APPARENTLY CONTINUED ON A 306-DAY PAY BASIS FOR CLERKS AND 365 FOR OFFICIALS AND LABORERS, ALTHOUGH BEING REQUIRED TO PERFORM SERVICE ONLY 5 DAYS PER WEEK. IT IS EVIDENTLY THE INTENT OF THE BILL THAT A 5-DAY WEEK BE PUT INTO EFFECT, BUT THIS IS BROUGHT ABOUT BY THE PROVISION THAT EMPLOYEES PERFORMING SERVICE ON SATURDAY SHALL BE ALLOWED COMPENSATORY TIME FOR SUCH SERVICE WITHIN A STATED PERIOD.

UNDER THE EXISTING SO-CALLED 44-HOUR WEEK LAW EMPLOYEES IN OFFICES, ON SATURDAY ARE GIVEN COMPENSATORY TIME FOR THE EXCESS OVER 4 HOURS, WHICH GIVES A 5 1/2 DAY WEEK BUT DOES NOT PRESENT ANY PROBLEMS IN DAILY PAY SINCE 4 HOURS ON SATURDAY CONSTITUTES A FULL DAY AND EMPLOYEES RECEIVE FULL COMPENSATION FOR THAT DAY IF THEY PERFORM 4 HOURS OF SERVICE. UNDER THE NEW LAW NO SERVICE IS DUE TO BE PERFORMED ON SATURDAY AND THE QUESTION NATURALLY ARISES WHETHER FULL PAYMENT FOR THAT DAY CAN LEGALLY BE MADE. IT IS ASSUMED THE INTENT OF THE LAW IS THAT EMPLOYEES WHO PERFORM 5 DAYS' SERVICE SHALL RECEIVE FULL COMPENSATION, AND UNLESS OTHERWISE INSTRUCTED IT IS THE INTENTION TO PAY EMPLOYEES IN THE RAILWAY MAIL SERVICE ASSIGNED TO OFFICES, TRANSFER OFFICES, AND TERMINALS FULL TIME WHEREVER THEY HAVE PERFORMED FULL 5 DAYS' SERVICE PER WEEK. A PROBLEM ARISES, HOWEVER, WITH RESPECT TO THE DAILY COMPENSATION. CLERKS ARE PAID 1/306 AND OFFICIALS AND LABORERS 1/365 OF THEIR ANNUAL RATE FOR 1 DAY'S SERVICE, AND UNDER THE NEW LAW, EFFECTIVE OCTOBER 1, WHEN THEY ARE EMPLOYED ONLY PART OF A WEEK OR WHEN CALLED UPON TO PERFORM EXTRA SERVICE, WHICH IS FREQUENTLY NECESSARY, THEY APPARENTLY CAN BE PAID ONLY THAT PART OF THEIR ANNUAL SALARY FOR A DAY'S SERVICE, ALTHOUGH UNDER THE LAW THEY ARE REQUIRED TO PERFORM ONLY 254 DAYS' SERVICE PER YEAR.

AT PRESENT SUBSTITUTES ARE PAID BY THE DAY, OR 1/306 OF $1,850, FOR SERVICE ACTUALLY PERFORMED, IN ACCORDANCE WITH PARAGRAPH 4, SECTION 2011, P.L. AND R. THAT SECTION SPECIFIES THAT THE FIRST YEAR OF SERVICE SHALL CONSTITUTE A PROBATIONARY TERM. THE QUESTION NATURALLY ARISES AS TO WHETHER SUBSTITUTE CLERKS MUST BE PAID BEGINNING OCTOBER 1 ON THE BASIS OF 254 DAYS, AND, IF SO, WHETHER THIS CHANGES THE PROBATIONARY TERM WHICH HAS HERETOFORE BEEN COUNTED AS THE FIRST CALENDAR YEAR OF SERVICE, ACCORDING TO THE ORIGINAL LAW ON THE SUBJECT IN THE ACT OF JUNE 5, 1920, WHICH PROVIDED THAT: "SUBSTITUTE RAILWAY POSTAL CLERKS SHALL BE PAID THE SALARY OF GRADE ONE FOR SERVICE ACTUALLY PERFORMED DURING THE FIRST CALENDAR YEAR OF SERVICE, WHICH SHALL CONSTITUTE HIS PROBATIONARY PERIOD.' IF THE YEAR OF SERVICE FOR PROBATION AND/OR PAY PURPOSES IS CHANGED FROM 306 DAYS TO 254 DAYS, THEN WE MUST KNOW WHETHER THE YEAR FOR APPOINTMENT PURPOSES IS ALSO CHANGED TO 254 DAYS. AT PRESENT 306 DAYS OF SUBSTITUTE SERVICE ENTITLES SUBSTITUTES TO PERMANENT APPOINTMENT AT GRADE 2, AND AN ADDITIONAL GRADE WITHIN THE SUCCESSIVE PROMOTION LIMIT IS ALLOWED FOR EACH ADDITIONAL 306 DAYS OF SUBSTITUTE SERVICE, AS STATED IN PARAGRAPH 4, SECTION 2011, P.L. AND R., WHICH IS AS FOLLOWS: "SUBSTITUTE RAILWAY POSTAL CLERKS SHALL BE PAID FOR SERVICES ACTUALLY PERFORMED AT THE RATE OF $1,850 PER ANNUM, THE FIRST YEAR OF SERVICE TO CONSTITUTE A PROBATIONARY PERIOD, AND WHEN APPOINTED REGULAR CLERKS SHALL RECEIVE CREDIT ON THE BASIS OF ONE YEAR (FOR EACH THREE HUNDRED AND SIX DAYS OF EIGHT HOURS) OF ACTUAL SERVICE PERFORMED AS A SUBSTITUTE AND BE APPOINTED, TO THE GRADE TO WHICH SUCH CLERK WOULD HAVE PROGRESSED HAD HIS ORIGINAL APPOINTMENT AS A SUBSTITUTE BEEN TO GRADE 1. ANY FRACTIONAL PART OF A YEAR'S SUBSTITUTE SERVICE WILL BE INCLUDED WITH HIS SERVICE AS A REGULAR CLERK IN DETERMINING ELIGIBILITY FOR PROMOTION TO THE NEXT HIGHER GRADE FOLLOWING APPOINTMENT TO A REGULAR POSITION.'

IF THE YEAR IS CHANGED TO 254 DAYS FOR APPOINTMENT PURPOSES, WE SHOULD KNOW WHETHER SERVICE RENDERED ON THE BASIS OF 306 DAYS PRIOR TO OCTOBER 1 MAY BE COUNTED DAY FOR DAY ON THE NEW BASIS IN MAKING APPOINTMENTS ON AND AFTER OCTOBER 1. THIS IS IMPORTANT AS A CHANGE FROM 306 DAYS PER AND A MATERIAL INCREASE IN THE ANNUAL COST DUE TO EARLIER ADVANCEMENT OF NEW APPOINTEES TO THE HIGHER GRADES. IT WOULD APPEAR THAT IF 254 CAN BE USED AS A DIVISOR IN COMPUTING THE DAILY PAY FOR ALL RAILWAY MAIL SERVICE EMPLOYEES EXCEPT SUBSTITUTE LABORERS AND ROAD CLERKS THEY COULD BE GIVEN THE PROPER COMPENSATION FOR EACH DAY OF SERVICE PERFORMED, AND IT WILL BE APPRECIATED IF AN OPINION ON THIS QUESTION CAN BE GIVEN.

IF IT IS HELD THAT SERVICE IN OFFICES, TERMINALS, AND TRANSFER OFFICES IS TO BE RECKONED ON THE BASIS OF 254 DAYS PER ANNUM FOR PAY, APPOINTMENT, AND PROMOTION PURPOSES, WE SHOULD KNOW WHETHER THE SHORTER DAYS ON THE ROAD BASED ON 306 DAYS PER ANNUM MUST BE KEPT SEPARATE OR BE CONVERTED TO THE 254-DAY BASIS FOR APPOINTMENT PURPOSES. SUBSTITUTES SOMETIMES WORK INTERCHANGEABLY IN THE DIFFERENT ORGANIZATIONS, AND IT WOULD BE CONFUSING TO KEEP A RECORD OF THE TWO KINDS OF DAY VALUES, BUT APPARENTLY THIS WOULD BE NECESSARY IF A 254 DAY PAY BASIS IS ESTABLISHED FOR ORGANIZATIONS OTHER THAN LINES AS A SUBSTITUTE WORKING FULL TIME IN A TERMINAL WOULD HAVE ONLY 254 DAYS TO HIS CREDIT FOR APPOINTMENT PURPOSES, WHEREAS A SUBSTITUTE ON THE ROAD DURING THE SAME TIME WOULD HAVE CREDIT FOR 306 DAYS UNDER THE NEW LAW. IF 306 DAYS CONTINUES AS THE BASIS FOR APPOINTMENT PURPOSES, A SUBSTITUTE EMPLOYED ON THE ROAD COULD BE PROMOTED TO GRADE 2 AFTER ONE YEAR OF SERVICE, BUT A TERMINAL SUBSTITUTE WOULD NOT HAVE THE REQUIRED NUMBER OF DAYS FOR THAT GRADE. THIS WOULD BE MANIFESTLY INEQUITABLE. YOU WILL NOTE THAT ACCORDING TO PARAGRAPH 4, SECTION 2011, QUOTED ABOVE, THAT APPOINTMENT CREDIT FOR SUBSTITUTES IS ON THE BASIS OF 8 HOURS PER DAY, AND UNDER THE NEW LAW ROAD CLERKS WILL NOT WORK 8 HOURS A DAY.

AT PRESENT REGULAR LABORERS ARE PAID ON THE BASIS OF 365 DAYS PER ANNUM, OR 1/365 OF THE ANNUAL RATE FOR EACH DAY. UNDER THE NEW LAW THEY WILL WORK ACTUALLY ONLY 254 DAYS. WILL THE DAILY RATE BE CHANGED TO 254 DAYS OR MAY THEY BE CONTINUED ON THE PRESENT PAY BASIS? PARAGRAPH 10, SECTION 2011, P.L. AND R., SPECIFIES THAT:"SUBSTITUTE LABORERS IN THE RAILWAY MAIL SERVICE SHALL BE PAID FOR SERVICES ACTUALLY PERFORMED AT THE RATE OF 55 CENTS PER HOUR, AND WHEN APPOINTED TO THE POSITION OF REGULAR LABORER THE SUBSTITUTE SERVICE PERFORMED SHALL BE INCLUDED IN ELIGIBILITY FOR PROMOTION TO GRADE 2 ON THE BASIS OF 306 DAYS OF 8 HOURS CONSTITUTING A YEAR'S SERVICE.' UNDER THIS PARAGRAPH A REGULAR LABORER WORKING FULL TIME WOULD BE PROMOTED TO GRADE 2 AFTER SERVING 254 DAYS, BUT A SUBSTITUTE WORKING IN THE SAME ASSIGNMENT WOULD LACK 52 OF THE 306 DAYS REQUIRED FOR APPOINTMENT AT GRADE 2. THIS CHANGE OF CREDIT, THEREFORE, MAKES IT NECESSARY FOR US TO KNOW WHETHER THE NEW LAW CHANGES PARAGRAPH 10.

YOUR DECISION ON THE SEVERAL QUESTIONS PROPOUNDED ABOVE IS REQUESTED. WILL BE APPRECIATED IF THIS MATTER MAY RECEIVE PREFERRED ATTENTION INASMUCH AS THE DEPARTMENT MUST MAKE A NUMBER OF APPOINTMENTS UNDER THE NEW LAW SHORTLY AFTER SEPTEMBER 1.

THE ACT OF AUGUST 14, 1935, 49 STAT. 650, IS NOT A COMPENSATION STATUTE, BUT A STATUTE TO REGULATE THE HOURS OF WORK OF POSTAL EMPLOYEES ONLY. THE PREVIOUSLY EXISTING STATUTORY BASES FOR FIXING THE DAILY, MONTHLY, OR ANNUAL RATES OF COMPENSATION OF THE POSTAL EMPLOYEES INVOLVED HAVE NOT BEEN AFFECTED BY SAID STATUTE. ACCORDINGLY, THE DAILY COMPENSATION RATES OF PART-TIME EMPLOYEES OR OTHERS THUS REQUIRED TO BE PAID, HAVE NOT BEEN INCREASED FROM 1/306 OR 1/365 TO 1/254 OF THE ANNUAL RATE OF COMPENSATION, BUT CONTINUE TO BE COMPUTED AS PRIOR TO THE EFFECTIVE DATE OF THIS STATUTE. IN OTHER WORDS, THE STATUTE DID NOT INCREASE THE DAILY, MONTHLY, OR ANNUAL RATES OF COMPENSATION OF ANY POSTAL EMPLOYEE. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.