B-19447, AUGUST 22, 1941, 21 COMP. GEN. 165

B-19447, AUGUST 22, 1941, 21 COMP. GEN. 165

COMPENSATION - RATES - PER DIEM EMPLOYEES - FORTY-HOUR WEEK IN CREATING ADDITIONAL POSITIONS UNDER THE PROVISION IN THE NAVAL APPROPRIATION ACT, FISCAL YEAR 1942, PROHIBITING THE USE OF APPROPRIATIONS REFERRED TO THEREIN FOR ADDITIONAL POSITIONS AT SALARY RATES IN EXCESS OF $5,000 PER ANNUM, THE NAVY DEPARTMENT MAY COMPUTE THE PER DIEM SALARY EQUIVALENT OF THE PER ANNUM RATE OF $5,000, FOR POSITIONS IN WHICH THE EMPLOYEES ARE SUBJECT TO THE 40-HOUR WEEK LAWS AND FOR WHICH THE REGULAR TOUR OF DUTY IS FIXED ADMINISTRATIVELY AT 5 DAYS PER WEEK WITH 2 NONWORK DAYS FOR WHICH NO COMPENSATION IS PAID EXCEPT FOR OVERTIME SERVICES, BY DIVIDING $5,000 BY 261 (365 LESS 104 (52 BY 2) ( DAYS FOR THE YEAR, BUT IF THE NUMBER OF WORK DAYS PER WEEK IS INCREASED OR DECREASED THE DIVISOR SHOULD BE INCREASED OR DECREASED ACCORDINGLY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 22, 1941:

I HAVE YOUR LETTER OF AUGUST 2, 1941, REFERENCE L1-1 (11) (1942) ( EN (410512) K, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT,DATED JULY 26, 1941, REQUESTING YOUR DECISION ON THE QUESTION THEREIN PRESENTED AS TO WHETHER THE NAVY DEPARTMENT IS AUTHORIZED TO CREATE, WITHOUT SPECIFIC LEGISLATION, ADDITIONAL POSITIONS IN THE SUPERVISORY MECHANICAL SERVICE IN NAVY YARDS AT A PER DIEM RATE OF PAY NOT TO EXCEED $19.15 OR $5,000 DIVIDED BY 261.

THE REFERRED-TO LETTER READS AS FOLLOWS:

1. THE FIRST PROVISO UNDER THE APPROPRIATION " MISCELLANEOUS EXPENSES" IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1942, APPROVED MAY 6, 1941 ( PUBLIC, NO. 48-77TH CONGRESS), PROVIDES:

"THAT NO PART OF THIS OR ANY OTHER APPROPRIATION FOR THE NAVY DEPARTMENT OR THE NAVAL ESTABLISHMENT FOR THE FISCAL YEARS 1941 AND 1942, OR OF FUNDS ALLOTTED TO THE NAVY DEPARTMENT, SHALL BE AVAILABLE AFTER MARCH 13, 1941, FOR ANY ADDITIONAL POSITIONS IN THE DISTRICT OF COLUMBIA OR ELSEWHERE AT RATES OF COMPENSATION IN EXCESS OF $5,000 PER ANNUM, EITHER ON A PER DIEM OR PER ANNUM BASIS, EXCEPT IN PURSUANCE OF SPECIFIC AUTHORIZATION HEREIN OR HEREAFTER GRANTED.'

2. IN A DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES, B-16883 OF MAY 21, 1941, IT WAS HELD THAT THE PER DIEM EQUIVALENT OF THE SALARY RATE OF $5,000 PER ANNUM IS CALCULATED BY DIVIDING $5,000 BY 360 AND IS $13.88, AND IN SUPPORT OF THIS RULING THERE WAS CITED, AMONG OTHERS, ANOTHER DECISION OF THE COMPTROLLER GENERAL DATED JULY 23, 1940 (20 COMP. GEN. 39). THIS LATTER DECISION STATES THAT:

"IN THE PAYMENT OF THE COMPENSATION OF PER ANNUM EMPLOYEES IT IS USUALLY CONSIDERED THAT THE EMPLOYEE RECEIVES COMPENSATION FOR THE NONWORK DAYS AS WELL AS FOR THE DAYS ON WHICH WORK IS PERFORMED, SO THAT, IN THE CASE OF AN EMPLOYEE SUCH AS THE ONE REFERRED TO IN YOUR LETTER, ALTHOUGH HE IS REQUIRED TO WORK ONLY 5 DAYS OF 8 HOURS EACH DURING A WEEK TO BE ENTITLED TO HIS REGULAR SALARY PAYMENTS, SAID PAYMENTS ARE COMPUTED ON THE BASIS OF A 30-DAY MONTH.' THEREFORE, IT IS ASSUMED THAT THE RULE IN DECISION OF MAY 21, 1941, APPLIES ONLY TO EMPLOYEES REGULARLY PAID A PER DIEM FOR EVERY DAY IN THE YEAR.

3. THE CURRENT SCHEDULE OF WAGES FOR CIVIL EMPLOYEES OF THE FIELD SERVICE OF THE NAVY DEPARTMENT AND MARINE CORPS PROVIDES PER DIEM RATES OF PAY FOR THE SUPERVISORY MECHANICAL SERVICE RANGING FROM $16.00 TO $22.00. INCUMBENTS OF THESE POSITIONS ARE EMPLOYED ON A 5-DAY, 40 HOUR WEEK BASIS BUT ARE NOT, AS IN THE CASE OF PER ANNUM EMPLOYEES REFERRED TO ABOVE, PAID THEIR REGULAR COMPENSATION FOR NONWORK DAYS AND, CONSEQUENTLY, RECEIVE REGULAR COMPENSATION ONLY OF 261 TIMES THE PER DIEM RATE PER YEAR.

4. IN THE PAST, WHERE CONGRESS HAS SPECIFICALLY REQUIRED THE CONVERSION OF AN ANNUAL SALARY TO A PER DIEM BASIS, THE DIVISOR HAS BEEN FIXED AT THE NUMBER OF NORMAL WORK DAYS OF THE CLASS OF EMPLOYEES CONCERNED. FOR EXAMPLE, SECTION 6 OF THE ACT OF JULY 3, 1918, (40 STAT. 814) PROVIDES:

"SUCH EMPLOYEES AS ARE ENGAGED ON PIECEWORK, BY THE HOUR, OR AT PER DIEM RATES, IF OTHERWISE ENTITLED TO RECEIVE THE ADDITIONAL COMPENSATION SHALL RECEIVE THE SAME AT THE RATE TO WHICH THEY ARE ENTITLED IN THIS SECTION WHEN THEIR FIXED RATE OF PAY FOR THE REGULAR WORKING HOURS AND ON THE BASIS OF THREE HUNDRED AND THIRTEEN DAYS IN THE SAID FISCAL YEAR WOULD AMOUNT TO $2,500 OR LESS: PROVIDED, THAT THIS METHOD OF COMPUTATION SHALL NOT APPLY TO ANY PER DIEM EMPLOYEES REGULARLY PAID A PER DIEM FOR EVERY DAY IN THE YEAR.'

5. THERE IS URGENT NEED AT THIS TIME FOR ADDITIONAL SUPERVISORY MECHANICAL SERVICE EMPLOYEES IN THE VARIOUS NAVY YARDS TO MEET THE NEEDS OF NATIONAL DEFENSE, BUT THE ESTABLISHMENT OF THESE ADDITIONAL POSITIONS IS BEING HELD IN ABEYANCE IN VIEW OF THE DECISION OF MAY 21, 1941. IT IS, THEREFORE, REQUESTED THAT A DECISION OF THE COMPTROLLER GENERAL BE OBTAINED ON THE QUESTION AS TO WHETHER THE DEPARTMENT IS AUTHORIZED TO CREATE, WITHOUT SPECIFIC LEGISLATION, ADDITIONAL POSITIONS IN THE SUPERVISORY MECHANICAL SERVICE IN NAVY YARDS AT A PER DIEM SALARY OF NOT TO EXCEED $5,000 DIVIDED BY 261 OR $19.15.

QUESTION AND ANSWER 10 IN DECISION OF MAY 21, 1941, 20 COMP. GEN. 803- 809, WERE AS FOLLOWS:

IN THOSE CASES WHERE THE LANGUAGE IN THE FIRST PROVISO, QUOTED SUPRA, IS APPLICABLE, ON WHAT NUMBER OF DAYS IS $5,000 PER ANNUM CALCULATED FOR THE PURPOSE OF DETERMINING THE PERMISSIBLE PER DIEM RATE OF COMPENSATION?

THE PER DIEM EQUIVALENT OF THE SALARY RATE OF $5,000 PER ANNUM IS CALCULATED BY DIVIDING $5,000 BY 360 AND IS $13.88. SEE SALARY TABLES, 1936; ALSO, SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763; SECTION 5 (A) OF THE ACT OF JUNE 28, 1940, 54 STAT. 678; 20 COMP. GEN. 39; ID. 147; ID. 149; ID. 484, AND THE DECISIONS THEREIN CITED. AS THE APPROPRIATION SALARY RESTRICTION IS DEFINITELY MADE APPLICABLE TO A PER DIEM RATE EQUIVALENT TO THE ANNUAL RATE OF $5,000 PER ANNUM, THE RATE OF $13.88 PER DIEM IS THE MAXIMUM COMPENSATION RATE PAYABLE TO A PERSON OCCUPYING AN ,ADDITIONAL" PART-TIME OR INTERMITTENT POSITION CREATED AFTER MARCH 13, 1941, REGARDLESS OF THE NUMBER OF DAYS WORKED DURING THE YEAR. COMPARE 17 COMP. GEN. 249, 252, WHEREIN WAS CONSIDERED AN APPROPRIATION RESTRICTION ON COMPENSATION OF $5,000 OR MORE PER ANNUM.

THAT QUESTION WAS UNDERSTOOD AS RELATING TO EMPLOYEES WHOSE COMPENSATION WAS FIXED ON AN ANNUAL OR MONTHLY BASIS AND THE ANSWER WAS LIMITED ACCORDINGLY.

UNDER THE PROVISIONS OF THE 40-HOUR WEEK STATUTES, SUCH AS SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, AND THE ACT OF JUNE 28, 1940, 54 STAT. 678, IT IS UNDERSTOOD THAT THE REGULAR 40-HOUR WEEKLY TOUR OF DUTY FOR THE EMPLOYEES HERE INVOLVED HAS BEEN FIXED ADMINISTRATIVELY AT 5 DAYS PER WEEK AND THAT 2 DAYS OF THE WEEK--- USUALLY SATURDAY AND SUNDAY--- ARE NONWORK DAYS FOR WHICH COMPENSATION IS NOT PAID EXCEPT FOR OVERTIME WORK PERFORMED ON SAID NONWORK DAYS. 20 COMP. GEN. 555.

IT HAS BEEN HELD GENERALLY THAT IN THE ABSENCE OF A STATUTE OTHERWISE PROVIDING THE PER ANNUM EQUIVALENT OF A PER DIEM RATE OF COMPENSATION IS COMPUTED ON THE BASIS OF THE NUMBER OF DAYS OF THE YEAR FOR WHICH THE EMPLOYEES RECEIVE THEIR REGULAR PAY. 8 COMP. GEN. 261; 11 ID. 217; ID. 362; 12 ID. 11; ID. 271; 13 ID. 167; 15 ID. 305; 16 ID. 1010, 18 ID. 768.

STATUTES HAVE BEEN ENACTED ON THAT BASIS. AN EXAMPLE IS STATED IN THE QUOTED LETTER TO YOU FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS. SEE, ALSO, SECTION 104 (C) OF THE ECONOMY ACT APPROVED JUNE 30, 1932, 47 STAT. 400. THE CASES ARISE IN A NUMBER OF SITUATIONS INCLUDING APPLICATION OF THE DUAL COMPENSATION STATUTES. I DO NOT FIND ANY PROVISION OF LAW FIXING THE NUMBER OF DAYS OF THE YEAR ON THE BASIS OF WHICH THE PER ANNUM EQUIVALENT OF THE PER DIEM RATE OF COMPENSATION OF EMPLOYEES SUBJECT TO THE 40-HOUR WEEK STATUTES WORKING ON A 5-DAY WEEK IS REQUIRED TO BE COMPUTED. IN THE ABSENCE THEREOF, AND FOLLOWING THE RULE USED GENERALLY AND IN MOST STATUTES, IT IS CONCLUDED THAT THE EQUIVALENT PER ANNUM RATE OF COMPENSATION FOR EMPLOYEES OF THE NAVAL ESTABLISHMENT WHO ARE SUBJECT TO THE 40-HOUR WEEK LAWS ABOVE CITED, WHO ARE PAID ON THE BASIS OF THE DAY OR HOUR AND WHOSE REGULAR TOUR OF DUTY IS FIXED AT 5 DAYS PER WEEK, SHOULD BE COMPUTED ON THE BASIS OF 261 (365 LESS 104 (52 TIMES 2) ( DAYS FOR THE YEAR. ON THAT BASIS THE EQUIVALENT PER DIEM RATE OF COMPENSATION FOR $5,000 PER ANNUM IS $19.15 ($5,000 DIVIDED BY 261). COMPARE DECISION OF MARCH 15, 1937, A-83511, TO THE SECRETARY OF THE NAVY RENDERED PRIOR TO THE APPROVAL OF THE HOLIDAY STATUTE OF JUNE 29, 1938, 52 STAT. 1246, AND IN THAT CONNECTION SEE 18 COMP. GEN. 191; ID. 206.

ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.

OF COURSE, IF THE REGULAR TOUR OF DUTY OF THE EMPLOYEES SHOULD BE FIXED AT MORE OR LESS THAN 5 DAYS PER WEEK THE DIVISOR WOULD BE THE NUMBER OF DAYS DURING THE YEAR THE EMPLOYEES REGULARLY ARE REQUIRED TO WORK AND FOR WHICH THEY RECEIVE PAY.