B-81042, NOVEMBER 15, 1948, 28 COMP. GEN. 314

B-81042, NOVEMBER 15, 1948, 28 COMP. GEN. 314

POSTAL SERVICE EMPLOYEES - COMPENSATORY TIME FOR NIGHT WORK - NIGHT DIFFERENTIAL ENTITLEMENT POSTAL SERVICE EMPLOYEES WHO COME WITHIN THE PURVIEW OF SECTION 5 OF THE POSTAL SERVICE PAY STATUTE OF JULY 6, 1945, AUTHORIZING THE PAYMENT OF A NIGHT DIFFERENTIAL FOR WORK BETWEEN THE HOURS OF 6 P.M. AND 6 A.M., MAY BE PAID EXTRA COMPENSATION FOR NIGHT WORK FOR EACH HOUR OF SUCH WORK ACTUALLY PERFORMED ON SATURDAYS, SUNDAYS, OR HOLIDAYS REGARDLESS OF WHETHER COMPENSATORY TIME IS GRANTED UNDER SECTION 3 OF THE STATUTE FOR THE SAME PERIOD. 25 COMP. GEN. 838, OVERRULED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, NOVEMBER 15, 1948:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF OCTOBER 25, 1948, REFERENCE 50, IN WHICH IT IS STATED THAT A NUMBER OF CASES RECENTLY HAVE BEEN BROUGHT TO YOUR ATTENTION IN WHICH THE POSTAL ACCOUNTS DIVISION, GENERAL ACCOUNTING OFFICE, HAS DISALLOWED CREDIT IN ACCOUNTS RENDERED BY POSTMASTERS FOR NIGHT DIFFERENTIAL PAYMENTS MADE TO EMPLOYEES FOR SERVICES RENDERED BETWEEN 6 P.M. AND 6 A.M. ON DAYS FOR WHICH COMPENSATORY TIME SUBSEQUENTLY WAS GRANTED. YOU POINT OUT THAT THE NIGHT DIFFERENTIAL PAY FIRST WAS PROVIDED UNDER PUBLIC LAW 496, APPROVED MAY 24, 1928, 45 STAT. 725, AND THAT, WITH THE EXCEPTION OF SUPERVISORY EMPLOYEES, IT HAS BEEN BEEN THE POLICY OF YOUR DEPARTMENT TO PAY EMPLOYEES THE ADDITIONAL COMPENSATION PROVIDED FOR NIGHT WORK REGARDLESS OF WHETHER SUCH EMPLOYEES WERE COMPENSATED FOR THE TIME INVOLVED OR WERE GRANTED COMPENSATORY TIME. THAT PRACTICE FINDS SUPPORT IN OFFICE DECISION OF DECEMBER 7, 1935, 15 COMP. GEN. 477, WHICH INDICATED APPROVAL OF PAYMENT AT THE REGULAR NIGHT DIFFERENTIAL RATE FOR SERVICES PERFORMED BETWEEN 6 P.M. AND 6 A.M. ON SATURDAYS FOR WHICH COMPENSATORY TIME WAS GRANTED WITHIN THE FOLLOWING FIVE WORK DAYS.

COMPENSATORY TIME AND THE PAYMENT OF NIGHT DIFFERENTIAL TO EMPLOYEES OF THE POSTAL SERVICE PRESENTLY ARE GOVERNED BY SECTION 3 OF PUBLIC LAW 134, APPROVED JULY 6, 1945, 59 STAT. 435, AS AMENDED BY PUBLIC LAW 265, APPROVED JULY 30, 1947, 60 STAT. 522, AND BY SECTION 5 OF PUBLIC LAW 134, SUPRA, 59 STAT. 436, WHICH PROVIDE:

SEC. 3. WHEN THE NEEDS OF THE SERVICE REQUIRE EMPLOYEES TO PERFORM SERVICE ON SATURDAYS, SUNDAYS, OR HOLIDAYS, THEY SHALL BE ALLOWED COMPENSATORY TIME FOR SUCH SERVICE ON ONE DAY WITHIN FIVE WORKING DAYS NEXT SUCCEEDING THE SATURDAY OR SUNDAY AND WITHIN THIRTY DAYS NEXT SUCCEEDING THE HOLIDAY: PROVIDED, THAT THE POSTMASTER GENERAL MAY, IF THE EXIGENCIES OF THE SERVICE REQUIRE, AUTHORIZE THE PAYMENT OF OVERTIME TO EMPLOYEES OTHER THAN SUPERVISORY EMPLOYEES WHOSE BASE SALARIES ARE MORE THAN $3,600 PER ANNUM FOR SERVICES PERFORMED ON SATURDAYS, SUNDAYS, AND CHRISTMAS DAY DURING THE MONTH OF DECEMBER IN LIEU OF COMPENSATORY TIME: PROVIDED FURTHER, THAT SUPERVISORY EMPLOYEES SHALL BE DAY, AND THOSE WHOSE BASE SALARIES ARE MORE THAN $3,600 PER ANNUM SHALL BE ALLOWED COMPENSATORY TIME FOR SERVICES PERFORMED ON SATURDAYS, SUNDAYS, AND ON CHRISTMAS DAY DURING THE MONTH OF DECEMBER WITHIN ONE HUNDRED AND EIGHTY DAYS FROM THE DAYS SUCH SERVICE WAS PERFORMED: AND PROVIDED FURTHER, THAT THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO EMPLOYEES OF THE RAILWAY MAIL SERVICE AND THE AIR MAIL SERVICE; POST-OFFICE INSPECTORS; RURAL CARRIERS; TRAVELING MECHANICIANS; EXAMINERS OF EQUIPMENT AND SUPPLIES; CLERKS IN THIRD-CLASS POST OFFICES; AND EMPLOYEES PAID ON AN HOURLY BASIS.

SEC. 5. EMPLOYEES WHO ARE REQUIRED TO PERFORM NIGHT WORK SHALL BE PAID EXTRA FOR EACH HOUR OF SUCH WORK AT THE RATE OF 10 PERCENTUM OF THEIR BASE HOURLY COMPENSATION, COMPUTED BY DIVIDING THE BASE ANNUAL SALARY BY TWO THOUSAND AND EIGHTY. NIGHT WORK SHALL BE DEFINED AS ANY WORK PERFORMED BETWEEN THE HOURS AT 6 O-CLOCK POST MERIDIAN AND 6 O CLOCK ANTEMERIDIAN: PROVIDED, THAT SUCH DIFFERENTIAL FOR NIGHT DUTY SHALL NOT BE INCLUDED IN COMPUTING ANY OVERTIME COMPENSATION TO WHICH THE OFFICER OR EMPLOYEE MAY BE ENTITLED. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO POST- OFFICE INSPECTORS; TRAVELING MECHANICIANS; EXAMINERS OF EQUIPMENT AND SUPPLIES; OFFICERS OF THE RAILWAY MAIL SERVICE AND OF THE AIR MAIL SERVICE; AND RURAL CARRIERS.

IN DECISION OF JUNE 6, 1946, 25 COMP. GEN. 838, WHICH CONSIDERED THOSE SECTIONS IT WAS CONCLUDED, INTER ALIA, THAT COMPENSATORY TIME WHEN LAWFULLY GRANTED IS IN LIEU OF ALL OTHER COMPENSATION FOR THE TIME SERVED. ON THE BASIS OF THE FACTS THEN PRESENTED SUCH CONCLUSION APPEARED WARRANTED. HOWEVER, IN ARRIVING AT THAT CONCLUSION THERE WAS NOT CONSIDERED THE FACT NOW BROUGHT TO ATTENTION THAT THE PAYMENT OF NIGHT DIFFERENTIAL TO EMPLOYEES FOR WHOM COMPENSATORY TIME IS GRANTED WAS IN ACCORDANCE WITH THE POLICY AND RECOGNIZED PRACTICE OF THE POST OFFICE DEPARTMENT UNDER THE PREVIOUSLY EXISTING PROVISIONS OF THE ACT OF MAY 24, 1928, 45 STAT. 725, SUPRA. THERE IS NOTHING IN THE PRESENTLY EXISTING PROVISIONS OF LAW, NOR DO I FIND ANYTHING IN THE LEGISLATIVE HISTORY OF SUCH PROVISIONS, WHICH WOULD INDICATE A LEGISLATIVE INTENTION THAT SUCH POLICY AND PRACTICE SHOULD BE CHANGED.

ACCORDINGLY, IT MAY BE CONCLUDED ON THE BASIS OF THE PRESENT SUBMISSION THAT THOSE EMPLOYEES OF THE POSTAL SERVICE WHO COME WITHIN THE PROVISIONS OF SECTION 5 OF THE PUBLIC LAW 134, SUPRA, PROPERLY MAY BE PAID THE EXTRA COMPENSATION PROVIDED FOR NIGHT WORK FOR EACH HOUR OF SUCH WORK ACTUALLY PERFORMED REGARDLESS OF WHETHER COMPENSATORY TIME IS GRANTED FOR THE SAME PERIOD. TO THE EXTENT THAT THE DECISION REPORTED IN 25 COMP. GEN. 838 EXPRESSES A DIFFERENT VIEW, THAT DECISION NO LONGER WILL BE FOLLOWED.