B-23395, APRIL 23, 1952, 31 COMP. GEN. 532

B-23395: Apr 23, 1952

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NIGHT DIFFERENTIAL COMPENSATION OF WAGE BOARD EMPLOYEES OF THE DEPARTMENT OF THE ARMY OCCUPYING POSITIONS CARRYING DUAL DESIGNATIONS (SUCH AS DECKHAND-DIVER) IN WHICH DIFFERENT RATES OF COMPENSATION FOR THE TWO KINDS OF WORK ARE FIXED TO CONFORM WITH THE PRACTICE PREVAILING IN PRIVATE INDUSTRY. 1952: REFERENCE IS MADE TO LETTER OF SEPTEMBER 6. NIGHT DIFFERENTIAL PAY UNDER A REPORTED CHANGE IN THE EMPLOYMENT SITUATION IN RESPECT OF THE CLASS OF EMPLOYEES THAT WERE COVERED IN THAT DECISION. WAS BASED UPON A REPORTED SITUATION IN WHICH A PERSON REGULARLY EMPLOYED AS LOCKMASTER. 430 PER ANNUM WAS INTERMITTENTLY EMPLOYED AS A DIVER AT $20 PER DAY. IT WAS HELD IN THAT DECISION THAT THE EMPLOYEE WAS ENTITLED TO STRAIGHT TIME ONLY FOR DAYTIME DUTY PERFORMED AS DIVER PLUS 10 PERCENT NIGHT DIFFERENTIAL FOR THAT PORTION OF THE DIVING DUTY WHICH WAS RENDERED AFTER 6:00 P.M.

B-23395, APRIL 23, 1952, 31 COMP. GEN. 532

COMPENSATION - OVERTIME, PREMIUM PAY, NIGHT DIFFERENTIAL - WAGE BOARD, ETC., EMPLOYEES IN POSITIONS CARRYING DUAL DESIGNATIONS AND COMPENSATION RATES THE OVERTIME, HOLIDAY, AND NIGHT DIFFERENTIAL COMPENSATION OF WAGE BOARD EMPLOYEES OF THE DEPARTMENT OF THE ARMY OCCUPYING POSITIONS CARRYING DUAL DESIGNATIONS (SUCH AS DECKHAND-DIVER) IN WHICH DIFFERENT RATES OF COMPENSATION FOR THE TWO KINDS OF WORK ARE FIXED TO CONFORM WITH THE PRACTICE PREVAILING IN PRIVATE INDUSTRY, MAY BE DETERMINED BY THE WAGE BOARD IN ACCORDANCE WITH COMMERCIAL PRACTICES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, APRIL 23, 1952:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 6, 1951, FROM THE ACTING SECRETARY OF THE ARMY, REQUESTING DECISION WITH RESPECT TO THE APPLICATION OF THE DECISION OF JANUARY 16, 1946, B-23395, TO OVERTIME, HOLIDAY, AND NIGHT DIFFERENTIAL PAY UNDER A REPORTED CHANGE IN THE EMPLOYMENT SITUATION IN RESPECT OF THE CLASS OF EMPLOYEES THAT WERE COVERED IN THAT DECISION.

THE DECISION OF JANUARY 16, 1946, WAS BASED UPON A REPORTED SITUATION IN WHICH A PERSON REGULARLY EMPLOYED AS LOCKMASTER, CPC-7, AT $2,430 PER ANNUM WAS INTERMITTENTLY EMPLOYED AS A DIVER AT $20 PER DAY, AND IT WAS HELD IN THAT DECISION THAT THE EMPLOYEE WAS ENTITLED TO STRAIGHT TIME ONLY FOR DAYTIME DUTY PERFORMED AS DIVER PLUS 10 PERCENT NIGHT DIFFERENTIAL FOR THAT PORTION OF THE DIVING DUTY WHICH WAS RENDERED AFTER 6:00 P.M., IRRESPECTIVE OF WHETHER IT WAS PERFORMED WITHIN OR OUTSIDE THE 40-HOUR BASIC WORK WEEK, AND THAT WHILE SUCH SERVICES MIGHT BE COUNTED TOWARD THE 40-HOUR BASIC WORK WEEK, OVERTIME COMPENSATION PROPERLY WAS BASED UPON THE RATE OF COMPENSATION OF HIS REGULAR POSITION AS LOCKMASTER. THAT CONCLUSION WAS BASED UPON THE PREMISE THAT UNDER THE FACTS THERE CONSIDERED AN EMPLOYEE'S REGULAR POSITION IS THE ONE FOR WHICH HE PRIMARILY WAS EMPLOYED AND IN WHICH THE GREATER PORTION OF HIS TIME IS DEVOTED AND THAT UNDER THE LAWS APPLICABLE TO THE REPORTED FACTS OVERTIME COMPENSATION AND HOLIDAY PREMIUM PAY WERE REQUIRED TO BE COMPUTED UPON THE BASIC PAY FOR SUCH REGULAR POSITION.

HOWEVER, UNDER THE FACTS AS THEY NOW EXIST, A STATEMENT OF WHICH ACCOMPANIED YOUR SUBMISSION, THE VIEW IS EXPRESSED THAT THE CONCLUSION REACHED IN THE SAID DECISION OF JANUARY 16 SHOULD BE MODIFIED. THE STATEMENT OF FACTS IS AS FOLLOWS:

* * * THE DIVING DUTY MAY BE REQUIRED OF LOCKMASTERS AND DAMTENDERS ON INLAND WATERWAYS, OR OF DECKHANDS OR OTHER VESSEL EMPLOYEES ENGAGED IN THE OPERATION OF DREDGES AND OTHER FLOATING PLANT EQUIPMENT. THE GREAT VARIATION IN RATES OF PAY FOR THE TWO KINDS OF DUTY AND THE IMPOSSIBILITY OF FORECASTING THE TIME, FREQUENCY, OR DURATION OF EMERGENCIES REQUIRING PERFORMANCE OF DIVING DUTY MAKE IT IMPOSSIBLE TO ESTABLISH A SINGLE RATE OF PAY WHICH WOULD BE PAYABLE FOR ALL HOURS WORKED. ACCORDINGLY, IT HAS BEEN NECESSARY TO ESTABLISH JOBS CARRYING DUAL DESIGNATIONS (SUCH AS DECKHAND-DIVER) WITH DIFFERENT RATES OF PAY FOR THE TWO KINDS OF WORK (SUCH AS $1.50 PER HOUR AS DECKHAND AND $5.00 PER HOUR AS DIVER).

* * * IN ACTUAL PRACTICE, HOWEVER, THE EMPLOYEE OCCUPIES A DUAL POSITION WITH TWO RATES OF PAY OFFICIALLY ESTABLISHED SO THAT NEITHER SHOULD PROPERLY BE CONSIDERED AS A "REGULAR" RATE TO THE EXCLUSION OF THE OTHER.

THE 1946 SUBMISSION ALSO STATED THAT PAY FOR DIVING DUTY WAS FIXED ADMINISTRATIVELY ON A PER DIEM BASIS, BUT THAT WAGE BOARD PROCEDURES WERE NOT UTILIZED. THAT WAS A TRUE STATEMENT OF THE SITUATION THEN PREVAILING, BUT IN THE INTERIM IT HAS BEEN FOUND NECESSARY TO ADOPT LOCAL PREVAILING RATES OF PAY IN ORDER TO ASSURE WORKING CONDITIONS SUBSTANTIALLY EQUAL TO THOSE OFFERED BY COMPETING PRIVATE EMPLOYERS. ACCORDINGLY, RATES FOR DIVING DUTY ARE NOW FIXED ON AN HOURLY BASIS IN ACCORDANCE WITH THE FINDINGS OF LOCALITY SURVEYS CONDUCTED BY THE ARMY AIR FORCE WAGE BOARD, BRINGING THE INDIVIDUALS INVOLVED CLEARLY WITHIN THE FORTY-HOUR STATUTE OF 1934. IN THE COURSE OF SUCH WAGE SURVEYS, IT HAS BECOME INCREASINGLY EVIDENT THAT CONTINUED APPLICATION OF THE RULE SET FORTH IN YOUR 1946 DECISION CONSTITUTES A SUBSTANTIAL IMPEDIMENT TO FULL EQUALIZATION OF WAGES WITH PRIVATE EMPLOYERS DUE TO THE DIFFERENT METHODS USED IN COMPUTING PREMIUM PAY. THE CHIEF OF ENGINEERS HAS DETERMINED THAT THE EXISTING PRACTICE IN PRIVATE INDUSTRY IS TO PAY PREMIUM RATES (FOR OVERTIME, HOLIDAY, OR NIGHT WORK) BASED UPON THE RATE APPLICABLE TO THE WORK ACTUALLY PERFORMED DURING THOSE HOURS. THE DEPARTMENT DESIRES TO CONFORM TO THAT PRACTICE IN THE INTEREST OF PRESERVING ITS FUNDAMENTAL POLICY OF PAYING PREVAILING LOCALITY WAGE RATES FOR OCCUPATIONS NOT SUBJECT TO STATUTORY SALARY SCHEDULES.

THE FACTS RECITED IN THE FOREGOING STATEMENT DIFFER FROM THOSE CONSIDERED IN THE SAID DECISION OF JANUARY 16 IN THAT DIVING DUTY NOW IS SPECIFICALLY INCLUDED IN THE JOB DESIGNATIONS OF LOCKMASTERS OR DECKHANDS, WHEREAS FORMERLY IT WAS NOT SO INCLUDED, BUT NEVERTHELESS WAS REQUIRED OF SUCH EMPLOYEES. ALSO, THE RATE OF COMPENSATION FOR DIVING DUTY NOW IS FIXED BY WAGE BOARD PROCEDURES TO CONFORM WITH PREVAILING PRACTICES OF THE INDUSTRY, WHEREAS FORMERLY SUCH COMPENSATION WAS FIXED ADMINISTRATIVELY.

WITH RESPECT TO THE AUTHORITY OF FEDERAL WAGE BOARDS TO ADJUST ALL ELEMENTS OF A WAGE PROGRAM TO CONFORM WITH COMMERCIAL PRACTICES, IT WAS HELD IN DECISION OF FEBRUARY 7, 1946, 25 COMP. GEN. 584, THAT ALL SUCH WAGE ELEMENTS NOT OTHERWISE FIXED BY STATUTE OR ESTABLISHED RULE APPLICABLE TO FEDERAL PERSONNEL MAYBE SO ADJUSTED WITHOUT PRIOR LEGISLATIVE AUTHORITY. ACCORDINGLY, UNDER THE FACTS REPORTED THE QUESTION OF PREMIUM PAY FOR WORK AS A DIVER ON HOLIDAYS--- DIVERS' COMPENSATION NOW BEING FIXED BY WAGE BOARD PROCEDURES--- WOULD BE FOR DETERMINATION BY THE WAGE BOARD AND CLEARLY SUCH DETERMINATION MAY TAKE INTO CONSIDERATION THE PRACTICES FOLLOWED IN PRIVATE INDUSTRY. ALSO, WITH RESPECT TO OVERTIME COMPENSATION, SINCE THE STATUTE UNDER WHICH SUCH PAYMENTS NOW ARE MADE FOR DIVING DUTY--- THE ACT OF MARCH 28, 1934, 5 U.S.C. 673C--- DOES NOT PRESCRIBE THE METHOD OF COMPUTATION WHERE WORK IS PERFORMED IN TWO SEPARATE POSITIONS DURING THE SAME ADMINISTRATIVE WORK WEEK AT DIFFERENT RATES OF PAY, IT REASONABLY MAY BE CONCLUDED THAT COMMERCIAL PRACTICES LIKEWISE MAY BE CONSIDERED IN DETERMINING THE OVERTIME COMPENSATION PAYABLE IN SUCH CASES. IN THAT CONNECTION COMPARE THE CONCLUSION REACHED IN DECISION OF APRIL 9, 1948, 27 COMP. GEN. 613, WITH RESPECT TO COMPENSATION OF WAGE BOARD EMPLOYEES FOR TRAVEL TIME, AND THE REASONS UPON WHICH THAT CONCLUSION WAS BASED.

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