B-32053, FEBRUARY 4, 1943, 22 COMP. GEN. 752

B-32053, FEBRUARY 4, 1943, 22 COMP. GEN. 752

ADDITIONAL AND OVERTIME COMPENSATION - ACT OF DECEMBER 22, 1942 IN VIEW OF THE AUTHORITY CONFERRED UPON ADMINISTRATIVE OFFICERS BY SECTION 1 OF EXECUTIVE ORDER NO. 9289, ISSUED PURSUANT TO THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, IN THE MATTER OF FIXING OFFICIAL HOURS OF DUTY AND A REGULAR WORKWEEK FOR EMPLOYEES, THE QUESTION OF WHETHER THE OVERTIME FORMULA OF THE SAID ACT--- WHICH IS EXCLUSIVELY APPLICABLE TO FULL TIME EMPLOYEES PAID ON A TIME BASIS FOR EMPLOYMENT IN EXCESS OF 40 HOURS PER WEEK--- IS TO BE MADE APPLICABLE TO PARTICULAR GROUPS OF EMPLOYEES IS PRIMARILY FOR ADMINISTRATIVE CONSIDERATION. UNDER THE AUTHORITY CONFERRED UPON ADMINISTRATIVE OFFICERS BY SECTION 7 OF EXECUTIVE ORDER NO. 9289, ISSUED PURSUANT TO THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, IT IS FOR THE ADMINISTRATIVE OFFICERS CONCERNED TO DETERMINE WHETHER THE ADDITIONAL COMPENSATION FORMULA OF THAT ACT IS TO BE MADE APPLICABLE TO EMPLOYEES IN CLASSES SIMILAR TO THOSE ENUMERATED IN SECTION 7 OF THE EXECUTIVE ORDER. IN THE ABSENCE OF DEFINITE EVIDENCE THAT THE ADMINISTRATIVE ACTION IN FIXING THE REGULAR WORKWEEK WITH REGARD TO THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, IS CLEARLY ERRONEOUS, THIS OFFICE WILL NOT OBJECT TO THE OVERTIME FORMULA OF THAT ACT BEING APPLIED TO FULL TIME EMPLOYEES WHO ARE PAID COMPENSATION ON A TIME BASIS AND WHO WORK REGULAR HOURS BASED ON AN AVERAGE NUMBER OF HOURS PER WEEK EXCEEDING 40, AND THERE MAY BE INCLUDED IN THE REGULAR WORKWEEK OF SUCH FULL TIME EMPLOYEES COMPENSATORY TIME OFF FROM DUTY DUE TO A REQUIREMENT THAT EMPLOYEES WORK LONG PERIODS AT A TIME AND BECAUSE OF THE NECESSITY TO ROTATE EMPLOYEES OVER A 24-HOUR PERIOD EVERY DAY OF THE YEAR. FULL TIME EMPLOYEES WHO ARE PAID COMPENSATION ON A TIME BASIS FOR A WORKWEEK ADMINISTRATIVELY FIXED AT 40 HOURS, OR LESS, AND WHO, THEREFORE, ARE NOT WITHIN THE PROVISIONS OF THE ACT OF DECEMBER 22, 1942, AUTHORIZING OVERTIME COMPENSATION FOR SUCH EMPLOYEES WHOSE WORKWEEK IS IN EXCESS OF 40 HOURS, MAY NOT BE PAID, IN LIEU OF THE OVERTIME COMPENSATION, THE 10 PERCENT ADDITIONAL COMPENSATION AUTHORIZED BY SAID ACT FOR THE CLASSES OF EMPLOYEES ENUMERATED THEREIN. FULL TIME SCHOOL TEACHERS OF THE PANAMA CANAL WHOSE REGULARLY ESTABLISHED WORKWEEK IS LESS THAN 40 HOURS PER WEEK ARE NOT ENTITLED TO PAYMENT OF EITHER "OVERTIME" OR "ADDITIONAL" COMPENSATION UNDER THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, WHICH LIMITS PAYMENT OF OVERTIME COMPENSATION EXCLUSIVELY TO FULL TIME EMPLOYEES PAID ON A TIME BASIS FOR EMPLOYMENT IN EXCESS OF 40 HOURS PER WEEK, AND ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS IN LIEU OF OVERTIME COMPENSATION TO PART TIME, ETC., EMPLOYEES. POLICEMEN AND FIREMEN EMPLOYED BY THE PANAMA CANAL, WHOSE COMPENSATION IS BASED ON THE SALARY RATES--- PLUS A 25 PERCENT DIFFERENTIAL--- PAID POLICEMEN AND FIREMEN OF THE DISTRICT OF COLUMBIA WHO HAVE NOT BEEN INCLUDED WITHIN THE PURVIEW OF THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, ARE NOT WITHIN THE PURVIEW OF THE SAID ACT, AND, THEREFORE, ARE NOT ENTITLED TO EITHER THE OVERTIME OR ADDITIONAL COMPENSATION SO PROVIDED. IF IT BE ADMINISTRATIVELY DETERMINED THAT THE COMPENSATION OF EMPLOYEES OF THE PANAMA CANAL TUG FAVORITE, WHOSE PRIMARY DUTIES MAKE PRACTICABLE THEIR EMPLOYMENT ON A 48-HOUR WEEK BASIS ALTHOUGH THE VARIED CONDITIONS OF THEIR EMPLOYMENT MAKE IT DIFFICULT TO RECORD THE ACTUAL HOURS OF WORK, IS NOT TO BE DETERMINED, UNDER SECTION 6 OF EXECUTIVE ORDER NO. 9289 ISSUED PURSUANT TO THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, IN ACCORDANCE WITH THE WAGE PRACTICES OF THE MARITIME INDUSTRY, A 48 -HOUR WORKWEEK MAY BE ADMINISTRATIVELY ESTABLISHED FOR SUCH EMPLOYEES, AND OVERTIME COMPENSATION MAY BE PAID UNDER THE SAID ACT, IF THE EMPLOYEES WORK, OR ARE ON DUTY, AN AVERAGE OF 48 HOURS OR MORE PER WEEK. COURT EMPLOYEES--- INCLUDING MAGISTRATES AND CONSTABLES--- OF THE PANAMA CANAL ARE TO BE REGARDED AS IN THE "JUDICIAL" BRANCH OF THE GOVERNMENT, WITHIN THE MEANING OF THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, AND, THEREFORE, ENTITLED TO ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS IN LIEU OF OVERTIME COMPENSATION, WITHIN THE LIMITATIONS OF THE SAID ACT. IF IT BE ADMINISTRATIVELY DETERMINED THAT MARINE DISPATCHERS EMPLOYED BY THE PANAMA CANAL WHO WORK LESS THAN 40 HOURS PER WEEK ARE OF A CLASS SUCH AS ARE TO BE CONSIDERED AS HAVING ,INTERMITTENT" OR "IRREGULAR" HOURS OF DUTY WITHIN THE MEANING OF SECTION 7 OF EXECUTIVE ORDER NO. 9289 ISSUED PURSUANT TO THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, THEN SUCH EMPLOYEES MAY BE PAID THE ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS AUTHORIZED BY SAID ACT IN LIEU OF OVERTIME COMPENSATION, BUT IF IT BE DETERMINED THAT THE SAID EMPLOYEES DO NOT FALL WITHIN THE PURVIEW OF SECTION 7, IT MUST BE CONCLUDED THAT SUCH EMPLOYEES ARE FULL TIME EMPLOYEES WORKING LESS THAN 40 HOURS PER WEEK AND PAID ON A TIME BASIS, AND, AS SUCH, THEY ARE NOT ENTITLED TO EITHER OVERTIME OR ADDITIONAL COMPENSATION UNDER THE SAID ACT.

COMPTROLLER GENERAL WARREN TO THE GOVERNOR, PANAMA CANAL, FEBRUARY 4, 1943:

I HAVE YOUR LETTER OF JANUARY 23, 1943, AS FOLLOWS:

1. APPLICATION OF PUBLIC LAW NO. 821, APPROVED DECEMBER 22, 1942, AND EXECUTIVE ORDER 9289 OF DECEMBER 26, 1942, TO CERTAIN CLASSES OF EMPLOYEES OF THE PANAMA CANAL RAISES CERTAIN QUESTIONS WHICH WE SUBMIT HEREINBELOW, RESPECTFULLY REQUESTING THE DECISION OF YOUR OFFICE.

2. TEACHERS IN THE EMPLOY OF THE PANAMA CANAL RECEIVE COMPENSATION UNDER RATES OF PAY DERIVED FROM THE ANNUAL RATES APPLICABLE TO TEACHERS IN THE DISTRICT OF COLUMBIA WITH THE ADDITION OF AN INCREMENT NOT TO EXCEED 25 PERCENT OVER THE DISTRICT OF COLUMBIA RATES. THE ANNUAL SALARIES PAID IN THE CANAL ZONE MAY BE PAID IN 9, 10 OR 12 MONTHS, ACCORDING TO THE CONDITIONS OF EMPLOYMENT; IN THE GREAT MAJORITY OF CASES, THEY ARE PAID IN 9 MONTHS. THE RATES OF COMPENSATION IN THE CANAL SERVICE ARE DETERMINED BY THE GOVERNOR OF THE PANAMA CANAL UNDER AUTHORITY RESTING IN SECTION 4 OF THE PANAMA CANAL ACT OF AUGUST 24, 1912, (37 STAT., 560-569), AS AMENDED JULY 9, 1937 (50 STAT., 487), WHICH AUTHORIZES THE PRESIDENT TO FIX THE COMPENSATION OF CANAL AND RAILROAD EMPLOYEES, AND SECTION 1 OF EXECUTIVE ORDER NO. 1888, FEBRUARY 2, 1914, BY WHICH THE AUTHORITY TO FIX SALARIES AND COMPENSATION OF THE CANAL AND PANAMA RAILROAD EMPLOYEES WAS TRANSFERRED TO THE GOVERNOR, SUBJECT TO THE LIMITATION THAT SUCH SALARIES OR COMPENSATION SHALL IN NO INSTANCE EXCEED BY MORE THAN 25 PERCENT THE SALARIES OR COMPENSATION PAID FOR THE SAME OR SIMILAR SERVICES TO PERSONS EMPLOYED BY THE GOVERNMENT IN THE CONTINENTAL UNITED STATES. THE SCHEDULED WORKING HOURS FOR THESE TEACHERS ARE APPROXIMATELY SIX AND ONE- HALF HOURS PER DAY, MONDAYS TO FRIDAYS, INCLUSIVE, WITH NO SCHEDULED HOURS ON SATURDAYS AND SUNDAYS. THUS THEY AGGREGATE 32 1/2 HOURS PER WEEK. ADDITION, TEACHERS ARE REQUIRED TO DO OUT-OF-CLASS WORK ON THEIR OWN TIME, IN PREPARATION FOR LESSONS, CORRECTING PAPERS, PREPARING REPORTS, ETC. SUCH WORK IS NOT PERFORMED WITHIN SCHEDULED HOURS.

3. AS THE SCHEDULED HOURS OF EMPLOYMENT FOR THESE EMPLOYEES ARE LESS THAN 48 OR 40 HOURS PER WEEK, IT WAS THE INCLINATION OF THIS OFFICE TO ALLOW THEM ADDITIONAL COMPENSATION UNDER THE PROVISO IN SECTION 1 OF PUBLIC LAW 821,"THAT OFFICERS OR EMPLOYEES * * * WHOSE HOURS OF DUTY ARE INTERMITTENT, IRREGULAR, OR LESS THAN FULL TIME * * * SHALL BE PAID ADDITIONAL COMPENSATION, IN LIEU OF THE OVERTIME COMPENSATION AUTHORIZED HEREIN, AMOUNTING TO 10 PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF THE RATE OF $2900.00 PER ANNUM * * *.' THE QUESTION AROSE, HOWEVER, WHETHER THIS PROVISION IS APPLICABLE TO EMPLOYEES WHOSE SCHEDULED HOURS OF EMPLOYMENT ARE REGULAR, EVEN THOUGH THE SCHEDULED HOURS MAY BE LESS THAN 40 OR 48 PER WEEK.

4. QUESTION: MAY TEACHERS IN THE CANAL SERVICE WHOSE COMPENSATION AND EMPLOYMENT IS IN ACCORD WITH THE PRECEDING STATEMENT BE ALLOWED THE 10 PERCENT INCREMENT IN COMPENSATION OR OTHERWISE RECEIVE INCREASED COMPENSATION UNDER PUBLIC LAW 821?

5. POLICEMEN IN THE CANAL SERVICE ARE PAID AT MONTHLY RATES ESTABLISHED BY THE GOVERNOR WITH RELATION TO THE RATES OF PAY FOR THE METROPOLITAN POLICE IN THE DISTRICT OF COLUMBIA, WITH AN INCREMENT NOT EXCEEDING 25 PERCENT OF THE COMPENSATION FOR THE SAME OR SIMILAR SERVICE IN WASHINGTON.

6. MEMBERS OF THE CANAL POLICE FORCE ARE NORMALLY ON ACTIVE DUTY 8 HOURS PER DAY, SIX DAYS PER WEEK. SUCH ACTIVE DUTY MAY CONSIST OF WALKING A BEAT, MOTORCYCLE PATROL SERVICE, DESK SERVICE IN A STATION, AND, IN A FEW INSTANCES, GUARD SERVICES AT OFFICES OF THE COLLECTOR AND PAYMASTER. ADDITION TO SUCH REGULAR SERVICE, 8 HOURS A DAY, OR 48 HOURS A WEEK, POLICE OFFICERS MAY HAVE TO BE ON DUTY IN GATHERING EVIDENCE IN CONNECTION WITH ACCIDENTS OR ARRESTS OCCURRING AT SUCH TIME DURING THE SCHEDULED TOUR AS TO MAKE IT IMPRACTICABLE TO COMPLETE THE REQUIRED ACTIVITY DURING THE SPAN OF THE REGULAR TOUR; AND MAY ALSO HAVE TO APPEAR IN COURT AS WITNESSES IN TIME WHICH OTHERWISE WOULD BE OFF OR FREE TIME.

7. INASMUCH AS THE EXTRA DUTIES OF POLICEMEN, OUTSIDE OF THEIR SCHEDULED TOURS OF DUTIES, INVOLVE ACTIVITIES UNDER THE INITIATIVE OF THE INDIVIDUAL POLICE OFFICER CONCERNED, AND THE AMOUNT OF TIME WHICH MAY BE DEVOTED TO SUCH WORK IS DETERMINED LARGELY BY THE INDIVIDUAL, IT HAS APPEARED IMPRACTICABLE TO ALLOW OVERTIME COMPENSATION FOR THIS EXTRA WORK IN ADDITION TO THE REGULAR TOUR OF 48 HOURS PER WEEK. IN THIS SITUATION, IT IS DESIRABLE ADMINISTRATIVELY TO LIMIT OVERTIME COMPENSATION TO THAT APPROPRIATE TO 48 HOURS OF SCHEDULED EMPLOYMENT WITH NO EXTRA PAY FOR ANY IRREGULAR HOURS OF DUTIES OUTSIDE OF THE REGULAR SCHEDULED HOURS.

8. QUESTION: WITHOUT CHANGING THE CONDITIONS OF EMPLOYMENT OR DUTIES OF POLICEMEN, AS INDICATED ABOVE, MAY I ADMINISTRATIVELY ESTABLISH A REGULAR 48-HOUR WORK WEEK FOR POLICEMEN AND LIMIT THE PAYMENT OF OVERTIME TO ONLY 8 HOURS IN ANY WEEK, DISREGARDING FOR PAY PURPOSES INCIDENTAL DUTIES REQUIRED TO BE PERFORMED OUTSIDE THE REGULAR TOUR OF DUTY?

9. FIREMEN IN THE PANAMA CANAL FIRE PROTECTION SERVICE ARE COMPENSATED ON RATES OF PAY ESTABLISHED BY THE GOVERNOR WITH RELATION TO COMPENSATION OF FIREMEN IN THE DISTRICT OF COLUMBIA. FOR A NUMBER OF YEARS, THE COMPENSATION OF POLICEMEN AND FIREMEN IN THE GRADES OF FIRST CLASS OR PRIVATE OFFICER HAVE BEEN THE SAME, BUT IN GRADES OF SERGEANT, LIEUTENANT AND CAPTAIN THE RATES FOR POLICE OFFICERS HAVE BEEN HIGHER THAN FOR THE COMPARABLE GRADES IN THE FIRE-FIGHTING SERVICE.

10. FIREMEN, INCLUDING SERGEANTS AND LIEUTENANTS, WORK ON THE TWO PLATOON SYSTEM. THEY ARE ON DUTY 24 HOURS THEN OFF DUTY 24 HOURS. IN THE ON-DUTY PERIOD, APPROXIMATELY EIGHT HOURS OF THE DAY ARE DEVOTED TO MAINTENANCE OF EQUIPMENT AND STATION, AND TO INSPECTIONS OF BUILDINGS AND FIRE EXTINGUISHERS AWAY FROM THE STATION. FOR THE REMAINING 16 HOURS, INCLUDING EIGHT HOURS DEVOTED TO SLEEP, IN THE ABSENCE OF ALARMS, THE FIREMEN ARE HELD AT THE STATION IN READINESS FOR CALLS. EXCEPT AS ALARMS MAY OCCUR, THIS PORTION OF THE PERIOD ON DUTY DOES NOT INVOLVE MUCH "ACTUAL K.'

11. IN THE SUCCEEDING OR OFF-DAY OF 24 HOURS, THE FIREMAN HAS NO ACTIVE DUTIES UNLESS THERE SHOULD BE A FIRE OF SUFFICIENT EXTENT TO NECESSITATE HIS WORKING, WHICH IS RARE. DURING THE OFF PERIOD, THE FIREMAN IS NOT ALLOWED TO LEAVE THE FIRE DISTRICT WITHOUT PERMISSION, AND, IN CASES OF ALARM FOR UNUSUAL FIRE HE IS REQUIRED TO REPORT IN PERSON AT HIS STATION.

12. AS WITH THE POLICEMAN, IT IS ADMINISTRATIVELY DESIRABLE TO CONSIDER THAT THE FIREMAN HAS 8 ACTIVE SCHEDULED HOURS OF WORK PER DAY FOR 6 DAYS PER WEEK AND SHOULD RECEIVE OVERTIME FOR 8 HOURS COMPENSATION PER WEEK, PARTICULARLY SINCE THE RATE OF PAY OF BOTH GROUPS ARE CORRELATED AND BOTH GROUPS COME WITHIN THE SAME DIVISION, UNDER THE SUPERVISION OF THE CHIEF, POLICE AND FIRE DIVISION.

13. QUESTION: WITHOUT CHANGING THE CONDITIONS OF EMPLOYMENT OR DUTIES OF FIREMEN, AS INDICATED ABOVE, MAY I ADMINISTRATIVELY ESTABLISH A REGULAR 48 -HOUR WORK WEEK FOR FIREMEN AND LIMIT THE PAYMENT OF OVERTIME TO ONLY 8 HOURS IN ANY WEEK, OR SHOULD THEY BE PAID ADDITIONAL COMPENSATION AMOUNTING TO 10 PERCENT OF THEIR BASIC COMPENSATION AS PROVIDED IN THE LAST PROVISO OF SECTION 1 OF THE ACT?

14. TUG FAVORITE: THE RATES OF PAY FOR EMPLOYEES ON TOWBOATS IN THE CANAL SERVICE ARE FIXED BY THE GOVERNOR WITH GENERAL RELATION TO THE COMPENSATION FOR EMPLOYEES ENGAGED IN THE SAME OR SIMILAR WORK ON GOVERNMENT OPERATED TOWBOATS IN THE CONTINENTAL UNITED STATES. FOR THE FAVORITE, WHICH IS LARGER AND MORE POWERFUL THAN THE OTHER TUGS, SALARIES ARE ESTABLISHED ON DIFFERENTIALS OVER SALARIES FOR CORRESPONDING POSITIONS ON THE SMALLER TUGS. RATES OF PAY ARE PER MONTH.

15. THE PANAMA CANAL EMPLOYS THE FAVORITE FOR DUTY PRIMARILY IN ATTENDANCE ON LIGHTS AND BUOYS IN THE PANAMA CANAL AREA. WHEN THE FAVORITE IS ENGAGED IN SUCH SERVICE IN CANAL WATERS, IT IS PRACTICABLE IN MOST INSTANCES FOR THE CREW TO BE EMPLOYED REGULARLY EIGHT HOURS PER DAY, 6 DAYS PER WEEK ALTHOUGH SOME JOBS REQUIRE A LONGER DAY. IN ADDITION TO THIS SERVICE AS LIGHTHOUSE TENDER, THE FAVORITE IS CALLED UPON OCCASIONALLY TO ACT AS A SALVAGE VESSEL. THE SALVAGE OPERATIONS MAY TAKE PLACE WITHIN CANAL WATERS OR AT SOME DISTANCE AT SEA, DEPENDING ON THE LOCATION OF THE ACCIDENT. WHEN THE FAVORITE IS ENGAGED ON SALVAGE JOBS, THE HOURS OF ACTUAL WORK MAY BE CONSIDERABLY PROLONGED.

16. IN CERTAIN SALVAGE OPERATIONS THE MEMBERS OF THE CREW ARE ALLOWED A SALVAGE BONUS, EQUAL TO THE PER DIEM EQUIVALENT OF THE OFFICERS' OR EMPLOYEES' REGULAR MONTHLY COMPENSATION, I.E., DOUBLE PAY FOR THE DETERMINED SALVAGE PERIOD. SALVAGE OPERATIONS HAVE OCCURRED ABOUT TWICE A YEAR IN CANAL WATERS, AND TWICE A YEAR OUTSIDE OF CANAL WATERS, BUT THEIR OCCURRENCE IS A MATTER OF GREAT IRREGULARITY.

17. A FURTHER EMPLOYMENT OF THE FAVORITE IS AS LIGHTHOUSE TENDER FOR LIGHTS IN THE CARIBBEAN OR PACIFIC, AS FAR AS 220 MILES FROM THE CANAL. WHEN THE VESSEL GOES TO SEA ON SUCH EXPEDITIONS, OR ON SALVAGING OR TOWING TRIPS ON THE OCEAN, THE HOURS OF OFFICERS AND CREW ON DUTY WHEN THE SHIP IS UNDER WAY ARE THOSE USUAL TO MERCHANT SHIPS AT SEA, WITH SERVICE FOUR HOURS ON AND EIGHT HOURS OFF DUTY, IN THREE SHIFTS.

18. THE WAGES AND ALLOWANCES OF THE CREW OF THE FAVORITE ARE NOT COMPUTED ON THE BASIS OF THE SPECIAL HOURS AND CONDITIONS OF SEAGOING VESSELS OPERATED BY THE UNITED STATES, BUT ARE ESTABLISHED AS HEREINBEFORE STATED; NAMELY ON THE BASIS OF COMPENSATION OF EMPLOYEES ON TOWBOATS EMPLOYED IN RIVERS AND HARBORS IN THE UNITED STATES, WITH DIFFERENTIALS, AND WITH THE SPECIAL BONUS COMPENSATION ALLOWED ON CERTAIN SALVAGE JOBS.

19. THE VARIED CONDITIONS OF EMPLOYMENT OF THE FAVORITE AND HER CREW MAKE IT DIFFICULT TO RECORD THE ACTUAL HOURS OF WORK. IT APPEARS ADMINISTRATIVELY DESIRABLE TO CONSIDER THAT THE REGULAR WORK WEEK IS 48 HOURS IN CANAL WATERS OR AT SEA AND TO ALLOW ADDITIONAL OVERTIME ONLY AS MAY BE AUTHORIZED BY THE GOVERNOR IN SPECIFIC INSTANCES WHERE ACTUAL WORK IS PERFORMED IN EXCESS OF 48 HOURS, AS DETERMINED BY THE GOVERNOR. ON THE OTHER HAND, THE IRREGULAR CONDITIONS OF EMPLOYMENT MAY INDICATE THAT THE 10 PERCENT INCREMENT, IN LIEU OF OVERTIME, SHOULD BE APPLIED.

20. QUESTION: ON WHAT BASIS SHOULD INCREASED COMPENSATION TO THE OFFICERS AND CREW OF THE TUG FAVORITE, WORKING UNDER THE CONDITIONS OUTLINED HEREINBEFORE, BE PAID UNDER THE PROVISIONS OF PUBLIC LAW 821 AND EXECUTIVE ORDER 9289?

21. MAGISTRATES AND CONSTABLES EMPLOYED IN THE PANAMA CANAL WORK IN THE COURT DAILY FROM 8 A.M. TO 4 P.M., MONDAY TO FRIDAY, WITH AN HOUR OFF FOR LUNCH AND FROM 8 A.M. TO 12 NOON ON SATURDAYS, OR 39 HOURS A WEEK. THE RATES OF PAY FOR THE MAGISTRATES ARE THOSE OF GRADE 4, PROFESSIONAL SERVICE, UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED. THE CONSTABLES HAVE RATES OF PAY EQUAL TO THE RATES OF PAY FOR POLICEMEN FOR SIMILAR LENGTH OF SERVICE. NO CHANGE IN WORKING HOURS APPEARS NECESSARY. THE MAGISTRATES AND CONSTABLES, WHEN NECESSARY, WORK EXTRA BUT INTERMITTENT HOURS. EXTRA SESSIONS AND OVERTIME SESSIONS ARE HELD WHEN NECESSARY AND SOME NIGHT SESSIONS HAVE BEEN HELD WHEN THE CASES BEFORE THE COURT REQUIRE IT, OR SESSIONS ON SUNDAY. IN OTHER WORDS, ALTHOUGH THE COURT EMPLOYEES REGULARLY WORK 39 HOURS PER WEEK, THERE ARE MANY TIMES WHEN THE COURT MUST BE OPENED IN THE PUBLIC INTEREST AND SERVICES PERFORMED BY ANY MEMBER OF THE STAFF.

22. QUESTION: MAY THE EMPLOYEES OF MAGISTRATE COURTS, BECAUSE OF THE WORKING CONDITIONS DESCRIBED ABOVE, BE ALLOWED THE 10 PERCENT INCREMENT OF COMPENSATION UNDER PUBLIC LAW 821, SINCE NO BENEFIT WOULD BE DERIVED FROM AN EXTENSION OF THE WORK WEEK?

23. MARINE DISPATCHERS IN THE PANAMA CANAL HAVE RATES OF PAY BASED UPON RATES OF PAY FOR CERTAIN GRADES WITHIN THE CLASSIFIED SERVICE. THE HOURS OF WORK FOR THESE POSITIONS AVERAGE 6 1/2 HOURS A DAY, 6 DAYS A WEEK OR 39 HOURS A WEEK. THE WORK OF THE DISPATCHERS IS EXACTING, REQUIRING CLOSE ATTENTION TO DETAILS, COORDINATION OF ACTIVITIES OF MULTIPLE AGENCIES, FORESIGHT AND ABILITY TO PLAN. BECAUSE OF THE IMPORTANCE OF THE JOB AND THE TENSION UNDER WHICH THE DISPATCHERS WORK, IT IS NOT CONSIDERED ADVISABLE TO WORK THESE EMPLOYEES LONGER THAN 6 1/2 HOURS A DAY. IT IS POSSIBLE TO PLACE THESE EMPLOYEES ON A 40-HOUR WEEK BASIS AND PAY OVERTIME FOR 8 HOURS IN EXCESS OF 40, BUT SUCH ACTION MAY RESULT IN DECREASED EFFICIENCY IN CONNECTION WITH SHIPPING IN THE PANAMA CANAL. THEREFORE, IT DOES NOT APPEAR ADVISABLE AT THE PRESENT TIME TO WORK THESE EMPLOYEES LONGER THAN 6 1/2 HOURS A DAY.

24. QUESTION: MAY THE MARINE DISPATCHERS BE ALLOWED THE 10 PERCENT INCREASE IN COMPENSATION UNDER PUBLIC LAW 821?

25. YOUR PROMPT DECISION ON THE QUESTIONS PRESENTED WILL BE GREATLY APPRECIATED.

THERE ARE PROVIDED UNDER THE JOINT RESOLUTION OF DECEMBER 22, 1942, 56 STAT. 1068, PUBLIC LAW 821, FORMULAS FOR PAYMENT OF TWO SEPARATE AND DISTINCT CLASSES OF INCREASED SALARY PAYMENTS, TO IT: (1) "OVERTIME COMPENSATION" AT THE RATE OF TIME AND ONE-HALF THE REGULAR RATE FOR EMPLOYMENT IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK, WHICH IS APPLICABLE TO EMPLOYEES WHO ARE PAID COMPENSATION ON A TIME BASIS AND WHO ARE FULL TIME EMPLOYEES, AND (2) ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS, WHICH IS APPLICABLE TO EMPLOYEES WHO ARE PAID COMPENSATION ON OTHER THAN A TIME BASIS, SUCH AS MILEAGE, FEES, POSTAL RECEIPTS, OR WHO ARE EMPLOYED ON A TIME BASIS BUT WHOSE WORK IS INTERMITTENT, IRREGULAR, OR LESS THAN FULL TIME, THAT IS, PART TIME EMPLOYEES. BOTH CLASSES OF INCREASED SALARY PAYMENTS ARE LIMITED TO THE FIRST $2,900 PER ANNUM OF AN EMPLOYEE'S BASIC COMPENSATION AND NEITHER CLASS OF INCREASED SALARY PAYMENTS MAY BE MADE TO ANY EMPLOYEE TO AN EXTENT THAT WOULD INCREASE HIS TOTAL COMPENSATION TO MORE THAN $5,000 PER ANNUM.

WHETHER, AND IF SO UPON WHAT BASIS, EITHER ONE OF THE TWO FORMULAS FOR INCREASING COMPENSATION MAY APPLY TO PARTICULAR CLASSES OF EMPLOYEES OF THE PANAMA CANAL WOULD DEPEND UPON (1) THE NUMBER OF HOURS WORK THEY ARE REQUIRED TO PERFORM EACH WEEK, (2) THE NATURE AND TENURE OF THEIR EMPLOYMENT, AND (3) THE BASIS UPON WHICH THEY ARE PAID COMPENSATION. WHETHER THE OVERTIME FORMULA WOULD BE APPLICABLE TO SUCH EMPLOYEES IS PRIMARILY FOR YOUR CONSIDERATION IN THE MATTER OF ESTABLISHING OFFICIAL HOURS OF DUTY AND A REGULAR WORKWEEK FOR SUCH EMPLOYMENT PURSUANT TO SECTION 1 OF THE PRESIDENT'S REGULATION, EXECUTIVE ORDER NO. 9289, DATED DECEMBER 26, 1942, PROVIDING:

SECTION 1. HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES, OR SUCH OFFICERS OR EMPLOYEES AS THEY MAY DESIGNATE, SHALL ESTABLISH OFFICIAL HOURS OF DUTY AND A REGULAR WORKWEEK FOR EACH EMPLOYEE OR GROUP OF EMPLOYEES. EMPLOYEE SHALL BE REQUIRED TO WORK IN EXCESS OF THE OFFICIALLY ESTABLISHED HOURS OF DUTY EXCEPT UPON THE ORDER OF THE HEAD OF THE DEPARTMENT OR AGENCY OR OF SUCH OFFICER OR EMPLOYEE AS HAS BEEN DELEGATED SPECIFIC AUTHORITY TO REQUIRE SUCH ADDITIONAL WORK.

SEE, ALSO, SECTIONS 6 AND 7 OF THE PRESIDENT'S REGULATIONS, PROVIDING:

SECTION 6. NOTWITHSTANDING THE PROVISIONS OF THIS ORDER, FEDERAL CIVILIAN EMPLOYEES ON VESSELS OPERATED BY THE UNITED STATES WHOSE WAGES AND ALLOWANCES ARE COMPUTED ON THE BASIS OF THE SPECIAL HOURS AND CONDITIONS OF THEIR WORK MAY BE COMPENSATED IN ACCORDANCE WITH THE WAGE PRACTICES OF THE MARITIME INDUSTRY.

SECTION 7. EMPLOYEES SUCH AS CERTAIN FOREST-FIRE LOOKOUTS, FOREST GUARDS, AND LIGHTHOUSE KEEPERS THE NATURE OF WHOSE WORK (AS DETERMINED BY THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED) REQUIRES THEM TO REMAIN AT OR WITHIN THE CONFINES OF THEIR POSTS OF DUTY FOR MORE THAN 40 HOURS PER WEEK BUT DOES NOT REQUIRE THAT ALL OF THEIR TIME BE DEVOTED TO ACTUAL WORK SHALL BE CONSIDERED TO HAVE INTERMITTENT OR IRREGULAR HOURS OF DUTY WITHIN THE MEANING OF THE LAST PROVISO OF SECTION 1 OF THE SAID SENATE JOINT RESOLUTION 170, 77TH CONGRESS.

CLEARLY, THE PRESIDENT HAS VESTED IN ADMINISTRATIVE OFFICERS THE PRIMARY DUTY AND RESPONSIBILITY OF FIXING THE OFFICIAL HOURS OF DUTY OF EMPLOYEES AND, ALSO, THE AUTHORITY, UNDER SECTION 7 OF THE REGULATIONS, TO DETERMINE IN DOUBTFUL CASES WHICH OF THE TWO FORMULAS FOR INCREASING COMPENSATION SHOULD BE APPLIED TO VARIOUS CLASSES OF EMPLOYEES. OTHER STATUTES HAVE RECOGNIZED THAT THE FIXING OF HOURS OF DUTY PRIMARILY IS AN ADMINISTRATIVE ACTION BASED UPON THE PARTICULAR EXIGENCIES OF THE SERVICES INVOLVED. SEE 5 U.S.C. 29 AND 29 (A).

ACCORDINGLY, IN THE ABSENCE OF DEFINITE EVIDENCE THAT ADMINISTRATIVE ACTION BE CLEARLY ERRONEOUS, THIS OFFICE WOULD NOT BE DISPOSED TO QUESTION ADMINISTRATIVE ACTION TAKEN BY YOU IN RESPECT OF FIXING OFFICIAL HOURS OF DUTY OF EMPLOYEES. HOWEVER, IT MUST BE CONCLUDED THAT, AS THE OVERTIME FORMULA IS EXCLUSIVELY APPLICABLE TO FULL TIME EMPLOYEES WHO ARE PAID COMPENSATION ON A TIME BASIS INVOLVING WORK IN EXCESS OF 40 HOURS A WEEK, THERE IS NO AUTHORITY TO INCREASE BY 10 PERCENT THE COMPENSATION OF FULL TIME EMPLOYEES WHOSE REGULAR WORKWEEK HAS BEEN ADMINISTRATIVELY FIXED AT 40 HOURS, OR LESS, PER WEEK. OTHERWISE, HOWEVER, THIS OFFICE WILL NOT OBJECT TO APPLYING THE OVERTIME FORMULA TO FULL TIME EMPLOYEES WHO ARE PAID COMPENSATION ON A TIME BASIS AND WHO WORK REGULAR HOURS BASED ON AN AVERAGE NUMBER OF HOURS PER WEEK EXCEEDING 40, AND THERE MAY BE INCLUDED IN THE REGULAR WORKWEEK OF SUCH FULL TIME EMPLOYEES COMPENSATORY TIME OFF FROM DUTY DUE TO A REQUIREMENT THAT EMPLOYEES WORK LONG PERIODS AT A TIME AND BECAUSE OF THE NECESSITY TO ROTATE EMPLOYEES OVER A 24-HOUR PERIOD EVERY DAY OF THE YEAR. SEE 21 COMP. GEN. 853, 855, AND THE DECISIONS THEREIN CITED. IN OTHER WORDS, ANY REASONABLE ADMINISTRATIVE DETERMINATION UNDER THE REGULATIONS OF THE PRESIDENT THAT EMPLOYEES WORK 48 HOURS PER WEEK, OR ANY OTHER LENGTH OF OVERTIME INCLUDING ACTUAL DUTY AND AUTHORIZED COMPENSATORY TIME OFF FROM DUTY, WILL NOT BE QUESTIONED BY THIS OFFICE.

ON THE BASIS OF THE FACTS PRESENTED, THE FIRST QUESTION IN PARAGRAPH 4 OF YOUR LETTER MUST BE AND IS ANSWERED IN THE NEGATIVE. THIS CONCLUSION IS JUSTIFIED, ALSO, BY REASON OF THE FACT THAT TEACHERS IN THE DISTRICT OF COLUMBIA HAVE NOT BEEN INCLUDED WITHIN THE PURVIEW OF THE LAW HERE INVOLVED.

REFERRING TO THE SECOND AND THIRD QUESTIONS, PARAGRAPHS 8 AND 13 OF YOUR LETTER, WHILE THE POLICEMEN AND FIREMEN IN THE CANAL ZONE MAY BE ON DUTY AN AVERAGE OF 48 HOURS PER WEEK, NEVERTHELESS, IT IS CONCLUDED- - IN VIEW OF THE NATURE OF THEIR DUTIES AND SINCE THEIR COMPENSATION IS BASED ON THE SALARY RATES PAID POLICEMEN AND FIREMEN OF THE DISTRICT OF COLUMBIA (PLUS A 25 PERCENT DIFFERENTIAL) WHO HAVE NOT BEEN INCLUDED WITHIN THE PURVIEW OF THE JOINT RESOLUTION OF DECEMBER 22, 1942--- THAT POLICEMEN AND FIREMEN IN THE CANAL ZONE ARE NOT ENTITLED TO AN INCREASE IN COMPENSATION UNDER SAID LAW. SEE THE ACT OF AUGUST 24, 1912, 37 STAT. 560-569, AS AMENDED BY THE ACT OF JULY 9, 1937, 50 STAT. 487.

REFERRING TO THE FOURTH QUESTION, PARAGRAPH 20 OF YOUR LETTER, IF IT BE ADMINISTRATIVELY DETERMINED THAT THE EMPLOYEES ON THE TUG FAVORITE DO NOT COME WITHIN THE PURVIEW OF SECTION 6 OF THE PRESIDENT'S REGULATIONS ABOVE- QUOTED, INCREASE IN COMPENSATION TO SUCH EMPLOYEES MAY BE PAID ON AN OVERTIME FORMULA, AS SUGGESTED IN PARAGRAPH 19 OF YOUR LETTER--- IF SUCH EMPLOYEES WORK, OR ARE ON DUTY, FOR AN AVERAGE OF 48 HOURS OR MORE PER WEEK.

REFERRING TO THE FIFTH QUESTION, PARAGRAPH 22 OF YOUR LETTER, IT IS CONCLUDED THAT COURT EMPLOYEES OF THE PANAMA CANAL PROPERLY ARE TO BE REGARDED AS IN THE "JUDICIAL" BRANCH OF THE GOVERNMENT WITHIN THE MEANING AND FOR THE PURPOSE OF INCREASING COMPENSATION ON A 10 PERCENT BASIS PURSUANT TO THE FOURTH PROVISO TO SECTION 1 OF THE ACT OF DECEMBER 22, 1942. SEE DECISION OF JANUARY 21, 1943, B-31791, 22 COMP. GEN. 685, TO THE REGISTER OF WILLS AND CLERK OF THE PROBATE COURT, DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, AND DECISION OF FEBRUARY 4, 1943, B-31974, TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, INVOLVING THE EMPLOYEES OF THE MUNICIPAL COURTS OF THE DISTRICT OF COLUMBIA.

REFERRING TO THE SIXTH QUESTION, PARAGRAPH 24 OF YOUR LETTER, IF IT BE ADMINISTRATIVELY DETERMINED THAT MARINE DISPATCHERS FALL WITHIN THE PURVIEW OF SECTION 7 OF THE PRESIDENT'S REGULATIONS, THEY ARE ENTITLED TO INCREASE IN COMPENSATION ON A 10 PERCENT BASIS. IF IT BE ADMINISTRATIVELY DETERMINED THAT THEY DO NOT FALL WITHIN THE PURVIEW OF SECTION 7 OF THE REGULATIONS, THEN IT MUST BE CONCLUDED THAT THEY ARE FULL TIME EMPLOYEES WHOSE COMPENSATION IS PAID ON A TIME BASIS, IN WHICH EVENT--- SINCE THEY DO NOT WORK IN EXCESS OF 40 HOURS PER WEEK--- THEY WOULD NOT BE ENTITLED TO ANY INCREASE IN PAY UNDER THE LAW HERE INVOLVED.