B-24262, JULY 29, 1943, 23 COMP. GEN. 68

B-24262, JULY 29, 1943, 23 COMP. GEN. 68

POSTAL EMPLOYEES - OVERTIME COMPENSATION DURING COMPENSATORY TIME OFF ON SATURDAYS FOR WORK ON SUNDAYS OR HOLIDAYS UNDER THE PROVISIONS OF SECTION 117, 118, AND 832, TITLE 39, U.S. CODE, CONTROLLING THE HOURS OF WORK, AND OVERTIME COMPENSATION OR COMPENSATORY TIME FOR WORK ON SATURDAYS, SUNDAYS, AND HOLIDAYS, OF POSTAL EMPLOYEES, A POSTAL EMPLOYEE OF A CLASS ENTITLED TO COMPENSATION AT THE OVERTIME RATE FOR SERVICE REQUIRED ON SATURDAYS AS A SIXTH DAY OF WORK MAY NOT BE GRANTED COMPENSATORY TIME OFF FROM DUTY ON A SATURDAY FOR WORK ON A PRECEDING SUNDAY OR HOLIDAY AND PAID COMPENSATION AT THE OVERTIME RATE FOR THE SATURDAY, ON WHICH NO WORK IS PERFORMED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JULY 29, 1943:

I HAVE YOUR LETTER OF JULY 14, 1943, AS FOLLOWS:

IN YOUR DECISION OF MARCH 11, 1942 (B-24262) TO ME YOU COMMENTED, IN PART, AS FOLLOWS:

"A POSTAL EMPLOYEE OF THE CLASS IN QUESTION MAY BE SCHEDULED FOR WORK ON THE SAME DAY HE IS GRANTED TIME OFF FROM DUTY IN LIEU OF WORK REQUIRED ON SATURDAY, BUT BOTH COMPENSATORY TIME OFF FROM DUTY AND OVERTIME COMPENSATION MAY NOT BE ALLOWED FOR THE SAME PERIOD OF THE DAY.'

ON MARCH 27, 1942, SIXTEEN DAYS AFTER THE DATE OF THE ABOVE MENTIONED DECISION, SECTION 832, TITLE 39, U.S.C. WAS AMENDED (CH. 201, 56 STAT. 188) SO AS TO AUTHORIZE THE PAYMENT OF OVERTIME FOR SATURDAY SERVICE RENDERED BY CERTAIN GROUPS OF POSTAL EMPLOYEES. PURSUANT TO THIS AMENDMENT I ISSUED ORDER NO. 21116 ON APRIL 27, 1943, DIRECTING THAT THE MINIMUM 48-HOUR WORKWEEK, PREVIOUSLY INAUGURATED UNDER SENATE JOINT RESOLUTION 170, BE CONTINUED IN ALL BRANCHES OF THE POSTAL SERVICE WHERE A SAVING IN MANPOWER COULD BE EFFECTED. IN THE SAME ORDER POSTMASTERS WERE DIRECTED TO MAKE OVERTIME PAYMENTS FOR ALL SERVICE PERFORMED ON SATURDAYS BY THOSE EMPLOYEES COMING WITHIN THE PURVIEW OF THE ACT OF MARCH 27, 1942.

FOR ALL PRACTICAL PURPOSES, FROM THE STANDPOINT OF SERVICE RENDERED IN THE FIELD SERVICE OF THE POSTAL ESTABLISHMENT, SATURDAYS ARE THE SAME AS THE OTHER DAYS OF THE WEEK, MONDAY THROUGH FRIDAY, INCLUSIVE. A SAVING IN MANPOWER CAN BE EFFECTED AT SOME OFFICES AND ARRANGEMENT OF THE SCHEDULES CAN BE FACILITATED BY GRANTING COMPENSATORY TIME ON SATURDAY FOR SERVICE PERFORMED ON THE PRECEDING SUNDAY OR A HOLIDAY.

IN VIEW OF THE AMENDMENT TO SECTION 832 OF TITLE 39 U.S.C., A REVIEW OF YOUR DECISION OF MARCH 11, 1942, IS REQUESTED. UNDER EXISTING STATUTES AND REGULATIONS, MAY AN EMPLOYEE OTHERWISE ENTITLED TO OVERTIME PAY FOR SATURDAY SERVICE, WHO IS GRANTED COMPENSATORY TIME ON SATURDAY FOR SERVICE RENDERED ON THE PRECEDING SUNDAY OR A HOLIDAY, BE PAID AT THE OVERTIME RATE OF PAY FOR THE NUMBER OF HOURS COMPENSATORY TIME GRANTED ON SATURDAY?

SECTIONS 117, 118, AND 832 (WITH THE AMENDMENT OF MARCH 27, 1942, 56 STAT. 188), TITLE 39, U.S. CODE, PROVIDE:

SEC. 117. HOURS OF WORK FOR SPECIAL CLERKS, CLERKS AND LABORERS IN FIRST - AND SECOND-CLASS OFFICES, AND CARRIERS IN CITY DELIVERY SERVICE; OVERTIME PAY.

SPECIAL CLERKS, CLERKS, AND LABORERS, IN THE FIRST- AND SECOND-CLASS POST OFFICES AND CARRIERS IN THE CITY DELIVERY SERVICE SHALL BE REQUIRED TO WORK NOT MORE THAN EIGHT HOURS A DAY. THE NIGHT HOURS OF SERVICE SHALL NOT EXTEND OVER A LONGER PERIOD THAN TEN CONSECUTIVE HOURS, AND THE SCHEDULES OF DUTY OF THE EMPLOYEES SHALL BE REGULATED ACCORDINGLY. CASES OF EMERGENCY, OR IF THE NEEDS OF THE SERVICE REQUIRE, AND IT IS NOT PRACTICABLE TO EMPLOY SUBSTITUTES, SPECIAL CLERKS, CLERKS, AND LABORERS, IN FIRST- AND SECOND-CLASS POST OFFICES AND CARRIERS IN THE CITY DELIVERY SERVICE CAN BE REQUIRED TO WORK IN EXCESS OF EIGHT HOURS PER DAY, AND FOR SUCH OVERTIME SERVICE THEY SHALL BE PAID ON THE BASIS OF THE ANNUAL PAY RECEIVED BY SUCH EMPLOYEES. IN COMPUTING COMPENSATION FOR SUCH OVERTIME THE ANNUAL SALARY OR COMPENSATION FOR SUCH EMPLOYEES SHALL BE DIVIDED BY THREE HUNDRED AND SIX, THE NUMBER OF WORKING DAYS IN THE YEAR LESS ALL SUNDAYS AND LEGAL HOLIDAYS ENUMERATED IN SECTION 119 OF THIS TITLE; THE QUOTIENT THUS OBTAINED WILL BE THE DAILY COMPENSATION WHICH DIVIDED BY EIGHT WILL GIVE THE HOURLY COMPENSATION FOR SUCH OVERTIME SERVICE. ( MAR. 4, 1911, CH. 241, SEC. 3, 36 STAT. 1339; AUG 24, 1912, CH. 389, SEC. 5, 37 STAT. 554; JULY 28, 1916, CH. 261, SEC. 1, 39 STAT. 416; FEB. 28, 1925, CH. 368, SEC. 4, 43 STAT. 1059.)

SEC. 118. COMPENSATORY TIME TO FOREMEN, SPECIAL CLERKS, CARRIERS, WATCHMEN, MESSENGERS, OR LABORERS, AT FIRST- AND SECOND-CLASS OFFICES FOR WORK ON SUNDAYS OR HOLIDAYS; OVERTIME IN LIEU THEREOF.

WHEN THE NEEDS OF THE SERVICE REQUIRE THE EMPLOYMENT ON SUNDAYS AND HOLIDAYS OF FOREMEN, SPECIAL CLERKS, CLERKS, CARRIERS, WATCHMEN, MESSENGERS, OR LABORERS AT FIRST- AND SECOND-CLASS POST OFFICES THEY SHALL BE ALLOWED COMPENSATORY TIME ON ONE DAY WITHIN SIX DAYS NEXT SUCCEEDING THE SUNDAY, EXCEPT THE LAST THREE SUNDAYS IN THE CALENDAR YEAR, AND ON ONE DAY WITHIN THIRTY DAYS NEXT SUCCEEDING THE HOLIDAY AND THE LAST THREE SUNDAYS IN THE YEAR ON WHICH SERVICE IS PERFORMED: PROVIDED, HOWEVER, THAT THE POSTMASTER GENERAL MAY, IF THE EXIGENCIES OF THE SERVICE REQUIRE IT, AUTHORIZE THE PAYMENT OF OVERTIME FOR SERVICE ON THE LAST THREE SUNDAYS IN THE CALENDAR YEAR OR ON CHRISTMAS DAY IN LIEU OF COMPENSATORY TIME. MAR. 3, 1917, CH. 162, SEC. 1, 39 STAT. 1062; FEB. 28, 1925, CH. 368, SEC. 4, 43 STAT. 1059.)

SEC. 832. COMPENSATORY TIME OR OVERTIME FOR SATURDAY OR OVERTIME WORK.

WHEN THE NEEDS OF THE SERVICE REQUIRE SUPERVISORY EMPLOYEES, SPECIAL CLERKS, CLERKS, LABORERS, WATCHMEN, AND MESSENGERS IN FIRST- AND SECOND- CLASS POST OFFICES AND EMPLOYEES OF THE MOTOR-VEHICLE AND PNEUMATIC-TUBE SERVICES, AND CARRIERS IN THE CITY DELIVERY SERVICE AND IN THE VILLAGE DELIVERY SERVICE, AND EMPLOYEES OF THE RAILWAY MAIL SERVICE, CLERKS AT DIVISION HEADQUARTERS OF POST OFFICE INSPECTORS, EMPLOYEES OF THE STAMPED ENVELOPE AGENCY AND EMPLOYEES OF THE MAIL EQUIPMENT SHOPS; CLEANERS, JANITORS, TELEPHONE OPERATORS, AND ELEVATOR CONDUCTORS, PAID FROM APPROPRIATIONS OF THE FIRST ASSISTANT POSTMASTER GENERAL; AND ALL EMPLOYEES OF THE CUSTODIAL SERVICE EXCEPT CHARWOMEN AND CHARMEN AND THOSE WORKING PART TIME, TO PERFORM SERVICE ON SATURDAY THEY SHALL BE ALLOWED COMPENSATORY TIME FOR SUCH SERVICE ON ONE DAY WITHIN FIVE WORKING DAYS NEXT SUCCEEDING THE SATURDAY ON WHICH THE EXCESS SERVICE WAS PERFORMED: PROVIDED, THAT EMPLOYEES WHO ARE GRANTED COMPENSATORY TIME ON SATURDAY FOR WORK PERFORMED THE PRECEDING SUNDAY OR THE PRECEDING HOLIDAY SHALL BE GIVEN THE BENEFITS OF THIS SECTION ON ONE DAY WITHIN FIVE WORKING DAYS FOLLOWING THE SATURDAY WHEN SUCH COMPENSATORY TIME WAS GRANTED: PROVIDED FURTHER, THAT THE POSTMASTER GENERAL MAY, IF THE EXIGENCIES OF THE SERVICE REQUIRE IT, AUTHORIZE THE PAYMENT OF OVERTIME FOR SATURDAYS IN LIEU OF COMPENSATORY TIME, EXCEPT CLEANERS, JANITORS, TELEPHONE OPERATORS, AND ELEVATOR CONDUCTORS PAID FROM THE APPROPRIATION OF THE FIRST ASSISTANT POSTMASTER GENERAL, AND CUSTODIAL EMPLOYEES WHO SHALL BE GIVEN COMPENSATORY TIME IN LIEU OF OVERTIME PAY WITHIN THIRTY DAYS NEXT SUCCEEDING * * *. ( ITALICS SUPPLIED.)

IN A DECISION OF MAY 29, 1943, 22 COMP. GEN. 1057, IT WAS HELD (QUOTING FROM THE SYLLABUS):

POSTAL EMPLOYEES WHO ARE REQUIRED BY A GENERAL ADMINISTRATIVE ORDER TO WORK ON HOLIDAYS MAY NOT BE PAID OVERTIME COMPENSATION FOR SUCH WORK, IN LIEU OF COMPENSATORY TIME AUTHORIZED AND REQUIRED BY 39 U.S.C. 118 TO BE GRANTED POSTAL EMPLOYEES WHO ARE REQUIRED TO WORK ON ANY HOLIDAY EXCEPT CHRISTMAS; NOR IS THERE ANY AUTHORITY TO DENY POSTAL EMPLOYEES THEIR STATUTORY RIGHT TO COMPENSATORY TIME FOR WORK ON SUCH HOLIDAYS.

PRESIDENTIAL OR ADMINISTRATIVE ORDERS REQUIRING WORK ON LEGAL HOLIDAYS DURING THE WAR EMERGENCY DO NOT AND CANNOT CHANGE THE STATUS OF SUCH HOLIDAYS FOR THE PURPOSE OF APPLYING STATUTES AND REGULATIONS HAVING THE FORCE AND EFFECT OF LAW GRANTING RIGHTS AND BENEFITS ON THE BASIS OF THE HOLIDAYS.

UNDER SECTION 117 OF THE U.S. CODE, SUPRA, EMPLOYEES ARE ENTITLED TO OVERTIME COMPENSATION FOR WORK IN EXCESS OF EIGHT HOURS PER DAY. UNDER SECTION 118 OF THE CODE COMPENSATORY TIME OFF FROM DUTY MUST BE GRANTED TO EMPLOYEES WHO WORK ON A SUNDAY OR A HOLIDAY, EXCEPT THAT OVERTIME COMPENSATION MAY BE PAID FOR WORK ON THE LAST THREE SATURDAYS ( SUNDAYS) OF THE YEAR AND ON CHRISTMAS DAY. UNDER SECTION 832 OF THE CODE IT IS WITHIN THE DISCRETION OF THE POSTMASTER GENERAL TO GRANT (1) COMPENSATORY TIME OFF FROM DUTY,"WITHIN FIVE WORKING DAYS NEXT SUCCEEDING THE ATURDAY" OR (2) TO PAY OVERTIME COMPENSATION FOR WORK ON SATURDAY, EXCEPT AS TO CERTAIN CLASSES OF EMPLOYEES NOT HERE INVOLVED. THAT IS, THE REGULAR COMPENSATION OF THE EMPLOYEE IS EARNED DURING FIVE DAYS OF EIGHT HOURS EACH PER WEEK, EXCLUDING SATURDAYS, SUNDAYS, AND HOLIDAYS, BUT INCLUDING THE DAYS OFF FROM DUTY GRANTED IN LIEU OF SATURDAYS, SUNDAYS, OR HOLIDAYS BECAUSE OF WORK ANTECEDENTLY PERFORMED ON SUCH DAYS.

HOWEVER, WHEN WORK IS REQUIRED ON SATURDAY AS A SIXTH DAY OF DUTY, AN EMPLOYEE IS ENTITLED TO OVERTIME COMPENSATION AT THE RATE OF 1/306 OF HIS ANNUAL RATE (39 U.S.C. 117), WHEREAS IF SATURDAY WERE TO BE USED AS AN IN- LIEU DAY OFF FROM DUTY FOR WORK PERFORMED ON A PRECEDING SUNDAY OR HOLIDAY, THE EMPLOYEE WOULD BE PAID COMPENSATION ON A STRAIGHT TIME BASIS- -- THAT IS, HE WOULD BE PAID HIS REGULAR COMPENSATION FOR THAT DAY COMPUTED IN ACCORDANCE WITH THE ACT OF MARCH 4, 1911, 36 STAT. 1339 (39 U.S.C. 822/--- WHICH LATTER SITUATION EVIDENTLY WAS NOT INTENDED BY THE CONGRESS. FOR THE REASONS STATED IN THE DECISION OF MAY 29, 1943, SUPRA, THE ADMINISTRATIVE REGULATION OF THE POSTMASTER GENERAL REQUIRING EMPLOYEES TO WORK REGULARLY ON SATURDAYS MAY NOT BE REGARDED AS SUPERSEDING OR RENDERING INOPERATIVE THE ABOVE PROVISIONS OF LAW. HENCE, IT WILL BE SEEN THAT SATURDAY MAY NOT BE USED AS AN IN-LIEU DAY OFF FROM DUTY FOR WORK PERFORMED ON A PRECEDING SUNDAY OR HOLIDAY AND ADDITIONAL COMPENSATION AT THE OVERTIME RATE PAID FOR SATURDAY ON WHICH NO WORK IS PERFORMED.

THE RULE STATED IN THE DECISION OF MARCH 11, 1942 (B-24262), 21 COMP. GEN. 853, TO WHICH YOU REFER, WAS AS FOLLOWS (QUOTING FROM THE SYLLABUS):

SPECIAL CLERKS, CLERKS, AND LABORERS, IN FIRST- AND SECOND-CLASS POST OFFICES, AND CARRIERS IN THE CITY DELIVERY SERVICE MAY BE SCHEDULED FOR WORK ON THE SAME DAY THEY ARE GRANTED COMPENSATORY TIME OFF FROM DUTY IN LIEU OF WORK WHICH WAS REQUIRED ON A PRECEDING SATURDAY, AND SUCH TIME OFF MAY BE INCLUDED AS A PART OF THE REGULAR 8 HOUR WORK DAY IN DETERMINING THE OVERTIME COMPENSATION PAYABLE FOR WORK REQUIRED ON THAT DAY IN ADDITION TO THE 8 HOURS THUS COMPUTED, BUT BOTH COMPENSATORY TIME OFF AND OVERTIME COMPENSATION MAY NOT BE ALLOWED FOR THE SAME PERIOD OF THE DAY.

THAT RULE RELATED TO A DAY OFF FROM DUTY GRANTED IN LIEU OF WORK ON A PRECEDING SATURDAY AND WAS NOT INTENDED TO, AND DOES NOT, AUTHORIZE THE GRANTING OF SATURDAY AS A DAY OFF FROM DUTY FOR WORK PERFORMED ON A PRECEDING SUNDAY OR HOLIDAY.

THE QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.