B-159950, JUN. 25, 1969

B-159950, JUN. 25, 1969

TO MR. POSTMASTER GENERAL:

BY LETTER DATED MAY 16, 1969, THE ASSISTANT POSTMASTER GENERAL, BUREAU OF PERSONNEL, REQUESTED OUR DECISION WHETHER HOURLY RATE REGULAR EMPLOYEES OF THE POST OFFICE DEPARTMENT ARE ENTITLED TO RECEIVE SUNDAY PREMIUM PAY UNDER THE PROVISIONS OF 39 U.S.C. 3573 (E), AS FOLLOWS:

"EACH REGULAR EMPLOYEE WHOSE REGULAR WORK SCHEDULE INCLUDES AN EIGHT-HOUR PERIOD OF SERVICE ANY PART OF WHICH IS WITHIN THE PERIOD COMMENCING AT MIDNIGHT SATURDAY AND ENDING AT MIDNIGHT SUNDAY SHALL BE PAID EXTRA COMPENSATION AT THE RATE OF 25 PERCENTUM OF HIS HOURLY RATE OF BASIC COMPENSATION FOR EACH HOUR OF WORK PERFORMED DURING THAT EIGHT-HOUR PERIOD OF SERVICE.'

ACCORDING TO 39 U.S.C. 3573 (H) (2) AN HOURLY RATE REGULAR EMPLOYEE IS AN EMPLOYEE FOR WHOM THE POSTMASTER GENERAL HAS ESTABLISHED A REGULAR WORK SCHEDULE CONSISTING OF NOT MORE THAN 40 HOURS A WEEK. WE UNDERSTAND THAT HOURLY RATE REGULAR EMPLOYEES ORDINARILY WORK LESS THAN 40 HOURS A WEEK AND, THEREFORE, FOR THE MOST PART, CAN BE CONSIDERED PART-TIME EMPLOYEES.

THE ASSISTANT POSTMASTER GENERAL ADVISES THAT PURSUANT TO THE ABOVE QUOTED STATUTORY PROVISIONS AND SECTION 755.121 OF THE POSTAL MANUAL, HOURLY RATE REGULAR EMPLOYEES HAVE BEEN RECEIVING EXTRA COMPENSATION FOR WORK PERFORMED ON SUNDAYS (NOTE EXCEPTION REFERRED TO IN FINAL PARAGRAPH HEREIN). HOWEVER, THE PROPRIETY OF SUCH PRACTICE IS NOW QUESTIONED IN VIEW OF OUR DECISION B-159950, OCTOBER 19, 1966, 46 COMP. GEN. 337.

IN THE CITED DECISION WE HELD THAT PART-TIME EMPLOYEES SUBJECT TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AND WAGE BOARD EMPLOYEES ARE NOT ENTITLED TO THE PREMIUM PAY FOR SUNDAY WORK AUTHORIZED UNDER SUBSECTIONS 405 (C) AND 405 (F) OF PUBLIC LAW 89-504, 80 STAT. 297, 298.

SUBSECTION 3573 (E) OF TITLE 39, U.S.C. AS AMENDED BY SECTION 5 (B) OF PUBLIC LAW 89-301, APPROVED OCTOBER 29, 1965, QUOTED ABOVE, PROVIDES GENERALLY THAT PREMIUM PAY FOR SUNDAY WORK SHALL BE PAID TO "EACH REGULAR EMPLOYEE.' MOREOVER, WE NOTE THAT SECTION 3575 OF TITLE 39, AS AMENDED, DOES NOT EXEMPT HOURLY RATE REGULAR EMPLOYEES FROM THE SUNDAY PREMIUM PAY PROVISION (3573 (E) ( AS IT DOES SUBSTITUTE EMPLOYEES. IN VIEW OF THOSE STATUTORY PROVISIONS AND SINCE HOURLY RATE EMPLOYEES HAVE BEEN RECEIVING, UNDER CERTAIN CONDITIONS, SUNDAY PREMIUM PAY SINCE THE ENACTMENT OF PUBLIC LAW 89-301, WE WILL NOT OBJECT TO THE CONTINUED PAYMENT OF SUNDAY PREMIUM PAY TO HOURLY RATE REGULAR EMPLOYEES UNDER THE PROVISIONS OF 39 U.S.C. 3573 (E).

WE NOTE THAT THE CURRENT PROVISIONS OF SECTION 755.121 OF THE POSTAL MANUAL PRECLUDE THE PAYMENT OF SUNDAY PREMIUM PAY TO AN HOURLY RATE REGULAR EMPLOYEE WHOSE REGULAR WORK SCHEDULE (1) CONSISTS OF LESS THAN 40 HOURS AND (2) DOES NOT INCLUDE AN 8-HOUR PERIOD OF SERVICE, ANY PART OF WHICH IS WITHIN THE PERIOD COMMENCING AT MIDNIGHT SATURDAY AND ENDING AT MIDNIGHT SUNDAY. HOWEVER, THE SECOND SENTENCE OF SECTION 755.121 PROVIDES, IN EFFECT, THAT AN HOURLY RATE EMPLOYEE WHOSE REGULAR SCHEDULE EMBRACES 40 HOURS IN A SERVICE WEEK SHALL BE PAID SUNDAY PREMIUM PAY FOR SCHEDULED DUTY OF EIGHT HOURS OR LESS ANY PART OF WHICH IS PERFORMED ON SUNDAY.

IN 46 COMP. GEN. 337 WE CONSTRUED THE WORDS "EIGHT-HOUR PERIOD OF SERVICE" APPEARING IN SUBSECTIONS 405 (C) AND 405 (F) OF PUBLIC LAW 89 504 AS BEING A LIMITATION UPON THE NUMBER OF HOURS FOR WHICH SUNDAY PREMIUM COMPENSATION MAY BE PAID FOR THE PERIOD OF SERVICE AND NOT AS REQUIRING THAT THE EMPLOYEE HAVE A REGULARLY SCHEDULED 8-HOUR PERIOD OF DUTY FOR THE DAY FOR WHICH SUCH PREMIUM COMPENSATION IS OTHERWISE PAYABLE. THE WORDS "EIGHT-HOUR PERIOD OF SERVICE" APPEARING IN 39 U.S.C. 3573 (E) ARE SUSCEPTIBLE TO THE SAME CONSTRUCTION. THEREFORE, WHILE THE SECOND SENTENCE OF SECTION 755.121, CONCERNING EMPLOYEES WHOSE TOURS OF DUTY EMBRACE 40 HOURS IN A SERVICE WEEK, CONFORMS WITH OUR DECISION IN 46 COMP. GEN. 337, AS DISCUSSED ABOVE, WE BELIEVE THAT SECTION 755.121 SHOULD BE AMENDED SO AS TO PROVIDE FOR THE PAYMENT OF SUNDAY PREMIUM PAY TO EACH HOURLY RATE REGULAR EMPLOYEE WHOSE REGULAR WORK SCHEDULE (WHETHER 40 HOURS OR LESS) INCLUDES A PERIOD OF SERVICE EMBRACING SUNDAY NOTWITHSTANDING THAT SUCH SCHEDULED PERIOD OF SERVICE MAY BE LESS THAN EIGHT HOURS.