B-44002, SEPTEMBER 6, 1944, 24 COMP. GEN. 189

B-44002, SEPTEMBER 6, 1944, 24 COMP. GEN. 189

OVERTIME COMPENSATION - FORTY-HOUR WEEK EMPLOYEES - NIGHT WORK THE RULES STATED IN DECISION OF JULY 20, 1944, 24 COMP. GEN. 39, WITH RESPECT TO THE INCLUSION OF A NIGHT DIFFERENTIAL IN COMPUTING THE OVERTIME COMPENSATION OF FORTY-HOUR WEEK EMPLOYEES UNDER THE ACT OF MARCH 28, 1934, AND THE NECESSITY FOR MAKING RETROACTIVE PAYMENTS TO EMPLOYEES ARE APPLICABLE TO FORTY-HOUR WEEK EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING AND THE BUREAU OF THE MINT, TREASURY DEPARTMENT, WHOSE COMPENSATION IS REQUIRED TO BE COMPUTED AND PAID IN ACCORDANCE WITH SAID ACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, SEPTEMBER 6, 1944:

I HAVE YOUR LETTER OF AUGUST 19, 1944, AS FOLLOWS:

REFERENCE IS MADE TO THE DECISION OF YOUR OFFICE, DATED JUNE 17, 1944, TO MR. STUART KELLY, RELATIVE TO HIS CLAIM FOR THE PAYMENT OF ADDITIONAL OVERTIME COMPENSATION FOR HOURS WORKED AT NIGHT IN EXCESS OF THE REGULAR TOUR OF DUTY OF 40 HOURS PER WEEK. THE DECISION IS TO THE EFFECT THAT THE NIGHT RATE MUST BE PAID FOR HOURS WORKED IN EXCESS OF 40 IN ANY WORK WEEK, WITH OVERTIME COMPUTED ON THE NIGHT RATE.

THE DECISION REFERRED TO APPLIES TO AN EMPLOYEE OF THE UNITED STATES GOVERNMENT PRINTING OFFICE, BUT ITS LANGUAGE IS SUFFICIENTLY BROAD TO RAISE A QUESTION WHETHER THE SAME RULE APPLIES TO THE EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING AND THE BUREAU OF THE MINT IN THIS DEPARTMENT.

THE EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING IN THE TRADES AND CRAFTS ARE SUBJECT TO THE ACT OF MARCH 28, 1934, WHICH PROVIDED FOR A WORK WEEK OF 40 HOURS, WITH COMPENSATION FOR OVERTIME AT THE RATE OF NOT LESS THAN TIME AND ONE-HALF. IN THE BUREAU, NO NIGHT DIFFERENTIAL EXISTED UNTIL 1937. IN APRIL OF THAT YEAR THE SECRETARY ORDERED THE PAYMENT OF A NIGHT DIFFERENTIAL OF 15 PERCENT TO THE EMPLOYEES IN THE TRADES AND CRAFTS IN THE BUREAU, AND THIS ORDER WAS TRANSMITTED TO THE DIRECTOR OF THE BUREAU OF ENGRAVING AND PRINTING IN A MEMORANDUM SIGNED BY MR. WILLIAM H. MCREYNOLDS, THE ADMINISTRATIVE ASSISTANT. NO REFERENCE WAS MADE TO THE ESTABLISHMENT OF A NIGHT RATE AS SUCH. THE DIFFERENTIAL WAS LOOKED UPON AS A BONUS OR EXTRA COMPENSATION FOR THE INCONVENIENCE OF WORKING AT NIGHT. IT WAS NOT TO BE PAID WHILE EMPLOYEES WERE ON LEAVE, NOR WAS IT TO BE PAID WHEN OVERTIME PAY WAS EARNED. APPOINTMENTS TO POSITIONS IN THE TRADES AND CRAFTS ARE PROCESSED AT THE DAY RATE, EVEN THOUGH THE EMPLOYEE IS BEING ASSIGNED TO NIGHT WORK. NO PERSONNEL ACTION IS PREPARED OR APPROVED FOR A CHANGE FROM DAY TO NIGHT WORK OR VICE VERSA. THE BASIC RATE IN EITHER CASE IS CONSIDERED TO BE THE DAY RATE, WITH THE ADDITION OF 15 PERCENT TO THE PAY DUE TO AN EMPLOYEE FOR THE TIME THAT HE WORKS AT NIGHT, NOT EXCEEDING 40 HOURS PER WEEK. THIS PRACTICE PROBABLY AROSE OUT OF THE PRACTICE THAT WAS FOLLOWED IN THE GOVERNMENT PRINTING OFFICE, AS ONE OF THE OFFICIALS OF THE BUREAU OF ENGRAVING AND PRINTING INFORMALLY ASCERTAINED FROM THE GOVERNMENT PRINTING OFFICE THAT RETIREMENT DEDUCTIONS WERE BEING MADE FROM THE NIGHT DIFFERENTIAL IN THAT ORGANIZATION. THE BUREAU APPARENTLY FOLLOWED THE SAME PRACTICE WITHOUT GIVING CONSIDERATION TO THE FACT THAT IT WAS INCONSISTENT WITH ALL OTHER PROCEDURES FOR HANDLING THE NIGHT DIFFERENTIAL THAT WERE BEING FOLLOWED. THE BUREAU'S ACTION WAS NOT SUBMITTED TO OR APPROVED BY OFFICERS OF THE DEPARTMENT.

YOUR ATTENTION IS CALLED TO THE RECENT ACT, APPROVED JULY 1, 1944 ( PUBLIC LAW 394, 78TH CONGRESS), PROVIDING A NIGHT DIFFERENTIAL FOR THE CLERICAL-1MECHANICAL SERVICE, IN WHICH THE PAYMENT OF THE NIGHT DIFFERENTIAL OF 15 PERCENT IS LIMITED TO THE REGULAR WORK WEEK OF 40 HOURS, AND WHICH EXCLUDES SUCH PAYMENT WHEN EMPLOYEES ARE IN A LEAVE STATUS. THAT ACT IS CLEARLY INTENDED TO GIVE EMPLOYEES IN THE CLERICAL- 1MECHANICAL SERVICE THE SAME BENEFITS ENJOYED BY THE EMPLOYEES IN THE TRADES AND CRAFTS. THUS, THE REPORT ( NO. 1424) OF THE HOUSE COMMITTEE ON THE CIVIL SERVICE STATES THAT "THIS COMMITTEE FEELS THAT RECOGNITION SHOULD BE MADE OF THE DISCRIMINATION WHICH EXISTS IN THE BUREAU OF ENGRAVING AND PRINTING, WHERE THE SKILLED CRAFTS RECEIVE 15 PERCENT ADDITIONAL FOR NIGHT WORK AND THE CLERICAL-1MECHANICAL HELPERS, WHOSE WORKING CONDITIONS AND HOURS ARE SO CLOSELY RELATED IN PRODUCTION OPERATIONS, DO NOT RECEIVE IT.' A SIMILAR EXPRESSION OF INTENTION IS CONTAINED IN THE REPORT ( NO. 816) OF THE SENATE COMMITTEE ON CIVIL SERVICE.

IN THE BUREAU OF THE MINT, NO NIGHT DIFFERENTIAL WAS PAID TO EMPLOYEES UNTIL MAY 21, 1944, WHEN THE TREASURY DEPARTMENT WAGE BOARD RECOMMENDED, AND THE SECRETARY APPROVED, A NIGHT DIFFERENTIAL OF SIX CENTS AN HOUR BETWEEN THE HOURS OF 7:00 P.M. AND 8:00 A.M. FOR ALL EMPLOYEES IN THE TRADES AND CRAFTS IN THE MINTS. IN THE ORDER APPROVING THIS NIGHT DIFFERENTIAL, SPECIFIC LANGUAGE WAS INCORPORATED WHICH LIMITED THE PAYMENT OF THE DIFFERENTIAL FOR LEAVE, AND PROHIBITED ITS PAYMENT FOR NIGHT WORK FOR WHICH OVERTIME RATES ARE PAID. THE LANGUAGE IS AS FOLLOWS:

IT IS CONTEMPLATED THAT THE EMPLOYEES WHO ARE REGULARLY ASSIGNED TO DUTY ON SHIFTS OPERATING BETWEEN THE HOURS OF 7:00 P.M. AND 8:00 A.M. WILL RECEIVE THE ADDITIONAL COMPENSATION DURING PERIODS OF LEAVE OF ABSENCE WITH PAY, NOT EXCEEDING FIVE CONSECUTIVE LEAVE DAYS, AND ON HOLIDAYS FALLING WITHIN THEIR REGULAR WORK WEEK; PROVIDED, HOWEVER, THAT NO NIGHT DIFFERENTIAL WILL BE PAID TO EMPLOYEES ON TERMINAL LEAVE, INCLUDING FURLOUGH. HOWEVER, NO EMPLOYEE WILL BE PAID ADDITIONAL COMPENSATION FOR NIGHT WORK FOR WHICH HE IS PAID AT OVERTIME RATES (TIME AND ONE-HALF), NOR WILL ANY EMPLOYEE WHO IS REGULARLY ASSIGNED ON A DAY SHIFT, WHO IS REQUIRED TO WORK ANY OF THE TIME BETWEEN 7:00 P.M. AND 8:00 A.M., RECEIVE THE EXTRA PAY FOR NIGHT WORK IN ADDITION TO OVERTIME .'

IT IS SUBMITTED THAT, AS THERE IS NO STATUTORY REQUIREMENT TO PAY A NIGHT DIFFERENTIAL, THE ACTION AND THE INTENTION OF THE HEAD OF THE DEPARTMENT SHOULD DETERMINE WHETHER THE NIGHT DIFFERENTIAL GRANTED ESTABLISHES A NIGHT BASIC RATE, OR WHETHER IT IS MERELY A BONUS OR EXTRA COMPENSATION. ALL OF THE ACTIONS EXCEPT ONE, TAKEN BY THE TREASURY DEPARTMENT SINCE 1937, BOTH IN THE BUREAU OF ENGRAVING AND PRINTING AND IN THE BUREAU OF THE MINT, POINT TO THE FACT THAT THE NIGHT DIFFERENTIAL WAS CONSIDERED AND GRANTED AS A BONUS OR EXTRA COMPENSATION FOR THE INCONVENIENCE OF WORKING AT NIGHT. FURTHERMORE, IT IS BELIEVED THAT THE RECENT ACT, GRANTING THE NIGHT DIFFERENTIAL TO CLERICAL-1MECHANICAL EMPLOYEES, MAY BE CONSIDERED AS GIVING LEGISLATIVE SANCTION TO THE PRACTICE FOLLOWED IN THIS DEPARTMENT. CERTAINLY, IF OUR EMPLOYEES ARE REQUIRED TO BE PAID IN ACCORDANCE WITH THE DECISION RECENTLY RENDERED TO MR. STUART KELLY, THE DISCRIMINATION THAT HAS EXISTED IN THE BUREAU OF ENGRAVING AND PRINTING WILL CONTINUE TO EXIST IN PART, IN SPITE OF THE EXPRESSED INTENTION OF THE CONGRESS TO ELIMINATE ANY DISCRIMINATION BETWEEN THE TRADES AND CRAFTS AND THE CLERICAL- 1MECHANICAL EMPLOYEES.

YOUR DECISION IS REQUESTED: (1) AS TO WHETHER THE OVERTIME RATE OF COMPENSATION MUST BE CALCULATED ON THE DAY RATE PLUS THE NIGHT DIFFERENTIAL FOR NIGHT WORK IN EXCESS OF 40 HOURS PER WEEK IN THE BUREAU OF ENGRAVING AND PRINTING AND IN THE MINTS; AND (2) IF THE ANSWER TO (1) IS IN THE AFFIRMATIVE, WHETHER YOUR DECISION IS RETROACTIVE TO THE DATES ON WHICH THE NIGHT DIFFERENTIAL BECAME EFFECTIVE IN THE TWO BUREAUS.

THE MATTER PRESENTED IS SIMILAR TO THAT CONSIDERED IN THE DECISIONS OF THIS OFFICE DATED JUNE 17, 1944 (B-41933), 23 COMP. GEN. 962, TO MR. STUART KELLY; JULY 20, 1944 (B-43115), 24 COMP. GEN. 39, TO THE SECRETARY OF WAR; AND AUGUST 24, 1944 (B-43724), 24 COMP. GEN. 155, TO THE SECRETARY OF THE NAVY, COPIES OF THE LAST TWO OF WHICH ARE ENCLOSED HEREWITH. THUS APPEARS UNNECESSARY TO REPEAT HERE ALL OF THE CONSIDERATIONS WHICH NECESSITATED THE CONCLUSIONS REACHED IN THOSE DECISIONS.

REFERRING SPECIFICALLY TO YOUR CONTENTION THAT THE NIGHT DIFFERENTIAL PROPERLY MAY BE REGARDED AS A BONUS OR EXTRA COMPENSATION BECAUSE OF THE ADMINISTRATIVE PROCEDURE CONCERNING THE BUREAU OF ENGRAVING AND PRINTING, YOUR ATTENTION IS INVITED TO THAT PART OF THE ABOVE-CITED DECISION TO THE SECRETARY OF WAR READING AS FOLLOWS:

* * * UNLIKE THE STATUTES APPLICABLE TO POSTAL EMPLOYEES CONSIDERED IN THE DECISIONS OF THIS OFFICE TO WHICH YOUR REFER, THE 1934 STATUTE HERE UNDER CONSIDERATION MAKES NO REFERENCE TO REGULAR COMPENSATION, EXTRA COMPENSATION, DAY RATES, OR NIGHT RATES, AND PROVIDES NO OTHER METHOD FOR COMPUTING OVERTIME COMPENSATION THAN THAT APPEARING IN THE PROVISO, WHICH (1) LIMITS THE REGULAR HOURS OF LABOR TO FORTY PER WEEK AND (2) SPECIFICALLY FIXES THE MINIMUM LIMITATION ON OVERTIME COMPENSATION AS "THE RATE OF NOT LESS THAN TIME AND ONE-HALF.' READING THE TWO PARTS OF THE PROVISO TOGETHER, NO OTHER CONCLUSION REASONABLY IS JUSTIFIED THAN THAT THE BASIC RATE OF COMPENSATION ON WHICH THE OVERTIME COMPENSATION IS REQUIRED TO BE COMPUTED IS THE RATE RECEIVED DURING AN EMPLOYEE'S "REGULAR HOURS OF LABOR" OF NOT MORE THAN FORTY HOURS, REGARDLESS OF THE TIME DURING THE TWENTY-FOUR HOURS OF THE DAY OR THE SEVEN DAYS OF THE WEEK SUCH REGULAR HOURS OF LABOR MAY BE PERFORMED. SEE WALLING V. WM. SCHOLLHORN CO., 54 FED. SUPP. 1022, REGARDING THE STATUS OF DIFFERENTIAL PAYMENT FOR NIGHT SHIFT WORK IN RESPECT OF THE FAIR LABOR STANDARDS ACT. WHILE WAGE BOARDS OR OTHER WAGE-FIXING AUTHORITIES MAY HAVE DISCRETION IN FIXING BASIC RATES OF COMPENSATION FOR ANY TRADE OR OCCUPATION COMING WITHIN THE PURVIEW OF THE LAW FOR ANY PORTION OF THE TWENTY-FOUR HOURS AND MAY OR MAY NOT ESTABLISH A NIGHT DIFFERENTIAL, THEY HAVE NO DISCRETION UNDER THE STATUTE REGARDING THE METHOD FOR COMPUTING OVERTIME COMPENSATION AND MAY NOT FIX A LOWER RATE OF OVERTIME COMPENSATION THAN THE MINIMUM RATE PRESCRIBED BY THE STATUTE. REGARDLESS OF THE DESIGNATION THAT MAY BE GIVEN ADMINISTRATIVELY TO A NIGHT DIFFERENTIAL--- SEE WALLING V. WM. SCHOLLHORN CO., SUPRA--- IT MUST BE INCLUDED IN COMPUTING OVERTIME COMPENSATION UNDER THE STATUTE OF 1934 * * *

BY WAY OF COMPARISON, A REFERENCE WAS MADE IN SAID DECISION TO THE SECRETARY OF WAR (LAST SENTENCE), TO THE ACT OF JULY 1, 1944, 58 STAT. 648, PUBLIC LAW 394, WHICH YOU SUGGEST SHOWS A LEGISLATIVE SANCTION OR APPROVAL FOR THE PAST PRACTICE IN THE BUREAU OF ENGRAVING AND PRINTING OF COMPUTING OVERTIME COMPENSATION AND COMPENSATION DURING LEAVE WITHOUT REGARD TO THE NIGHT DIFFERENTIAL; AND, IN THAT CONNECTION, YOU MAKE REFERENCE TO THE COMMITTEE REPORT ON THE BILL WHICH BECAME THE ACT OF JULY 1, 1944. THAT STATUTE APPLIES TO A CLASS OF EMPLOYEES WHOSE COMPENSATION IS NOT COMPUTED AND PAID PURSUANT TO THE ACT OF MARCH 28, 1934, 48 STAT. 522, HERE UNDER CONSIDERATION. BILL H.R. 3891, WHICH BECAME THE ACT OF JULY 1, 1944, AS WELL AS THE COMPANION SENATE BILL S. 1705, WERE PRESENTED TO, AND CONSIDERED BY, THE CONGRESS WITHOUT REFERENCE TO THE RULE STATED IN THE RECENT DECISIONS OF THIS OFFICE APPLYING THE ACT OF 1934 TO EMPLOYEES IN THE TRADES AND OCCUPATIONS WHICH HELD THAT THE NIGHT DIFFERENTIAL MUST BE REGARDED AS A PART OF BASIC COMPENSATION. ACCORDINGLY, I AM UNABLE TO CONCLUDE THAT THE COMMITTEE STATEMENT TO WHICH YOU REFER, SHOWING AN INTENTION TO EQUALIZE THE RIGHTS OF ALL EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING TO A NIGHT DIFFERENTIAL, MAY BE REGARDED AS HAVING ANY BEARING UPON THE PROPER APPLICATION OF THE ACT OF MARCH 28, 1934.

ACCORDINGLY, THE RULES STATED IN THE DECISION TO THE SECRETARY OF WAR (SEE THE SYLLABUS THEREOF, QUOTED IN THE DECISION TO THE SECRETARY OF THE NAVY) ARE APPLICABLE, ALSO, TO THE EMPLOYEES OF THE BUREAU OF ENGRAVING AND PRINTING AND BUREAU OF THE MINT WHOSE COMPENSATION IS REQUIRED TO BE COMPUTED AND PAID IN ACCORDANCE WITH THE ACT OF MARCH 28, 1934. BOTH QUESTIONS POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER ARE ANSWERED IN THE AFFIRMATIVE.