B-78264, JULY 15, 1948, 28 COMP. GEN. 26

B-78264, JULY 15, 1948, 28 COMP. GEN. 26

POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948 THE ADDITIONAL COMPENSATION AUTHORIZED BY SECTION 301 OF THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948 IS PERMANENT IN NATURE AND CONSTITUTES A PART OF THE BASIC COMPENSATION WITHIN THE MEANING OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED, IN THE CASE OF EMPLOYEES UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND THOSE CLASSES OF LEGISLATIVE EMPLOYEES DESIGNATED IN SECTION 501 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED. WITH RESPECT TO EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, THE ADDITIONAL COMPENSATION AUTHORIZED BY SECTION 301 OF THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948 IS TO BE INCLUDED IN THE COMPUTATION OF NIGHT DIFFERENTIAL PAY, HOLIDAY PAY, AND OVERTIME COMPENSATION PROVIDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED. THE ADDITIONAL COMPENSATION AUTHORIZED BY SECTION 301 OF THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948 IS NOT TO BE INCLUDED IN THE BASIC SALARY OF EMPLOYEES IN OR UNDER THE LEGISLATIVE BRANCH UPON WHICH IS COMPUTED THE 10 PERCENT ADDITIONAL COMPENSATION IN LIEU OF OVERTIME AUTHORIZED BY SECTION 502 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, BUT MERELY IS FOR ADDING TO THE EXISTING BASIC COMPENSATION WHICH INCLUDES THE 10 PERCENT IN LIEU OF OVERTIME.

COMPTROLLER GENERAL WARREN TO THE ARCHITECT OF THE CAPITOL, JULY 15, 1948:

I HAVE YOUR LETTER OF JULY 10, 1948, AS FOLLOWS:

YOUR ADVICE IS REQUESTED WITH RESPECT TO THE FOLLOWING PROVISIONS OF TITLE III OF PUBLIC LAW 900, 80TH CONGRESS, APPROVED JULY 3, 1948:

(1) IS THE ADDITIONAL COMPENSATION OF $330 PER ANNUM AUTHORIZED BY SECTION 301 OF PUBLIC LAW 900 TO BE CONSTRUED AS "BASIC COMPENSATION" WITH RESPECT TO EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, IN THE SAME MANNER AS THE ADDITIONAL COMPENSATION AUTHORIZED BY SEC. 405 (A) OF PUBLIC LAW 106 AND SEC. 2 (A) OF PUBLIC LAW 390, 79TH CONGRESS?

FOR EXAMPLE: EMPLOYEE IN GRADE CPC-8:

PRESENT BASIC RATE ------------------------------------- $2,895.60

ADDITIONAL COMPENSATION--- PUBLIC LAW 900 ----------- 330.00

TOTAL BASIC COMPENSATION -------------------- 3,225.60

(2) IS THE ADDITIONAL COMPENSATION AUTHORIZED BY SEC. 301 FOR SUCH EMPLOYEES TO BE CONSIDERED IN COMPUTING NIGHT PAY DIFFERENTIAL, HOLIDAY PAY, AND OVERTIME PAY, AS AUTHORIZED BY PUBLIC LAWS 106 AND 390?

FOR EXAMPLE: IN THE CASE OF EMPLOYEE CITED IN (1), WOULD THE NIGHT PAY DIFFERENTIAL, HOLIDAY PAY, AND OVERTIME PAY BE COMPUTED ON THE BASIS OF $3,225.60 PER ANNUM?

(3) IN THE CASE OF EMPLOYEES UNDER THE ARCHITECT OF THE CAPITOL SUBJECT TO THE PROVISIONS OF SECTIONS 501 AND 502 OF PUBLIC LAW 106, AS AMENDED BY SEC. 5 OF PUBLIC LAW 390, IS THE ADDITIONAL COMPENSATION OF $330 PER ANNUM AUTHORIZED BY SEC. 301 OF PUBLIC LAW 900 TO BE ADDED TO THE BASIC COMPENSATION AS AUGMENTED BY SECTION 501 AND 502 OF PUBLIC LAW 106 AND SECTIONS 5 (A) AND (C) OF PUBLIC LAW 390, OR TO THE BASIC COMPENSATION AS AUGMENTED BY SEC. 501 OF PUBLIC LAW 106, AS AMENDED BY SEC. 5 (A) OF PUBLIC LAW 390, AND THE 10 PERCENT ADDITIONAL COMPENSATION AUTHORIZED BY SEC. 502 OF PUBLIC LAW 106, AS AMENDED BY SEC. 5 (C) OF PUBLIC LAW 390 TO BE ADDED TO THAT TOTAL?

FOR EXAMPLE: PER ANNUM

(A) ELEVATOR OPERATOR -------------------------- $1,200

ADD. COMP.--- SEC. 501, PUB. 106 ------------ 240

ADD. COMP.--- SEC. 5 (A), PAT. 390 ---------- 250

TOTAL BASIC COMPENSATION ----------- 1,690

ADD. COMP.--- SEC. 502, PUB. 106, AS AMENDED BY SEC. 5 (C)

OF PUB. LAW 390 -------------- 169 TOTAL

-------------------------------- 1,859

ADD. COMP.--- PUB. LAW 900 ------------------ 330

GROSS COMPENSATION ------------------ 2,189

OR

(B) ELEVATOR OPERATOR --------------------------- 1,200

ADD. COMP.--- SEC. 501, PUB. 106 ------------- 240

ADD. COMP.--- SEC. 5 (A), PUB. 390 ----------- 250

ADD. COMP.--- PUB. 900 ----------------------- 330

TOTAL BASIC COMPENSATION ----------- 2,020

ADD. COMP.--- SEC. 502, PUB. 106, AS AMENDED BY

SEC. 5 (C), PUB. 390 ------------------------ 202

GROSS COMPENSATION ------------------ 2,222

(4) IS THE $330 ADDITIONAL COMPENSATION AUTHORIZED BY PUBLIC LAW 900 TO BE CONSTRUED AS BASIC COMPENSATION WITHIN THE MEANING OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED, IN THE CASE OF BOTH EMPLOYEES UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND THOSE EMPLOYEES UNDER THE ARCHITECT OF THE CAPITAL WITHIN THE CLASSES OF LEGISLATIVE EMPLOYEES DESIGNATED IN SEC. 501 OF PUBLIC LAW 106?

SECTION 301 OF PUBLIC LAW 900, APPROVED JULY 3, 1948, 62 STAT. 1267, REFERRED TO IN YOUR LETTER, PROVIDES AS FOLLOWS:

SEC. 301. EXCEPT AS PROVIDED IN SECTION 303, EACH OFFICER AND EMPLOYEE OF THE FEDERAL GOVERNMENT, AND EACH OFFICER AND EMPLOYEE OF THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, WHOSE RATE OF COMPENSATION IS INCREASED BY SECTION 2, 3, 4, 5, OR 6 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 SHALL RECEIVE ADDITIONAL COMPENSATION AT THE RATE OF $330 PER ANNUM: PROVIDED, THAT ANY EMPLOYEE PAID ON AN HOURLY OR PART-TIME BASIS SHALL RECEIVE ADDITIONAL COMPENSATION AT THE RATE OF 20 CENTS PER HOUR.

WHILE SECTION 301 OF THE 1948 PAY STATUTE, QUOTED ABOVE, UNLIKE THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946, DOES NOT PROVIDE SPECIFICALLY THAT THE ADDITIONAL COMPENSATION AUTHORIZED THEREUNDER IS AN INCREASE IN BASIC RATES OF COMPENSATION, AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE SAID 1948 STATUTE LEAVES LITTLE DOUBT THAT SUCH WAS THE INTENT OF THE CONGRESS. IN THAT CONNECTION, IT WILL BE OBSERVED THAT VARIOUS BILLS CONCERNING INCREASED COMPENSATION FOR FEDERAL EMPLOYEES WHICH WE INTRODUCED IN THE HOUSE OF REPRESENTATIVE (SEE H.R. 5472; H.R. 6917) AND UNDER CONSIDERATION AT THE TIME OF THE PASSAGE OF H.R. 6916 WHICH BECAME PUBLIC LAW 900, SPECIFICALLY PROVIDED THAT SUCH ADDITIONAL COMPENSATION SHOULD BE TEMPORARY IN DURATION AND THAT IT SHOULD NOT BE CONSIDERED A PART OF THE BASIC COMPENSATION OF ANY OFFICER AND EMPLOYEE FOR PURPOSES OF THE CIVIL SERVICE RETIREMENT ACT. HOWEVER, SUCH PROVISIONS ARE NOT PRESENT IN PUBLIC LAW 900. THAT IS TO SAY, UNDER THE PROVISIONS OF THE STATUTE THE INCREASE IS PERMANENT IN NATURE AND THERE HAS BEEN OMITTED FROM THAT LAW ANY EXCLUSION OF THE ADDITIONAL COMPENSATION GRANTED THEREUNDER FROM BASIC COMPENSATION FOR RETIREMENT PURPOSES. IN THE LIGHT OF THE FOREGOING, IT REASONABLY APPEARS THAT THE ADDITIONAL COMPENSATION AUTHORIZED BY SECTION 301, SUPRA, IS AN ADDITION TO AND A PART OF THE BASIC COMPENSATION FOR ALL OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT ENTITLED THERETO. ACCORDINGLY, QUESTIONS 1 AND 4 ARE ANSWERED IN THE AFFIRMATIVE.

UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, THE NIGHT PAY DIFFERENTIAL, COMPENSATION FOR HOLIDAY WORK, AND OVERTIME COMPENSATION ARE COMPUTED UPON THE REGULAR BASIC RATE OF COMPENSATION. CONSEQUENTLY, SINCE, AS STATED ABOVE, THE ADDITIONAL COMPENSATION AUTHORIZED BY SECTION 301 OF THE 1948 PAY STATUTE IS A PART OF BASIC COMPENSATION, IT FOLLOWS THAT SUCH COMPENSATION IS TO BE INCLUDED IN THE COMPUTATION OF NIGHT DIFFERENTIAL PAY, HOLIDAY PAY, AND OVERTIME COMPENSATION UNDER THE 1945 PAY ACT, AS AMENDED. ACCORDINGLY, QUESTION IS ANSWERED IN THE AFFIRMATIVE.

SECTION 5 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 217, RESPECTING INCREASES IN PAY RATES IN THE LEGISLATIVE BRANCH, PROVIDES AS FOLLOWS:

SEC. 5. (A) THE FIRST SENTENCE OF SECTION 501 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS AMENDED BY INSERTING THE PERIOD AT THE END THEREOF A COMMA AND THE FOLLOWING: "PLUS (A) 14 PERCENTUM CENTUM OF HIS RATE OF COMPENSATION (INCLUDING THE ADDITIONS THERETO RESULTING FROM THE APPLICATION OF THE FOREGOING PERCENTAGES), OR (B) $250 PER ANNUM, WHICHEVER IS THE GREATER, EXCEPT THAT SUCH RATE OF COMPENSATION SHALL NOT BE INCREASED BY MORE THAN 25 PERCENTUM.'

(B) THE SECOND SENTENCE OF SUCH SECTION 501 IS AMENDED TO READ AS FOLLOWS: "THE ADDITIONAL COMPENSATION PROVIDED BY THIS SECTION AND SECTION 502 SHALL BE CONSIDERED A PART OF THE BASIC COMPENSATION OF ANY SUCH OFFICER OR EMPLOYEE FOR THE PURPOSES OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED.'

(C) SECTION 502 OF SUCH ACT IS AMENDED TO READ AS FOLLOWS:

" ADDITIONAL COMPENSATION IN LIEU OF OVERTIME

"SEC. 502. EACH OFFICER AND EMPLOYEE IN OR UNDER THE LEGISLATIVE BRANCH ENTITLED TO THE BENEFITS OF SECTION 501 OF THIS ACT SHALL BE PAID ADDITIONAL COMPENSATION AT THE RATE OF 10 PERCENTUM OF THE AGGREGATE OF THE RATE OF HIS BASIC COMPENSATION AND THE RATE OF ADDITIONAL COMPENSATION RECEIVED BY HIM UNDER SECTION 501 OF THIS ACT.'

SECTION 502 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 5, SUPRA, PROVIDES, IN EFFECT, THAT EMPLOYEES IN OR UNDER THE LEGISLATIVE BRANCH SHALL RECEIVE THE SPECIFIED PERCENTUM INCREASES IN LIEU OF OVERTIME BASED UPON THE AGGREGATE OF HIS BASIC COMPENSATION AND THE PERCENTUM INCREASES AUTHORIZED BY THE 1945 AND 1946 STATUTES. HOWEVER, SECTION 501 OF THE SAID 1945 PAY STATUTE, AS AMENDED BY SECTION 5/B) OF THE 1946 ACT, QUOTED ABOVE, PROVIDES THAT THE ADDITIONAL COMPENSATION PROVIDED BY THAT SECTION AND BY SECTION 502,"SHALL BE CONSIDERED A PART OF THE BASIC COMPENSATION OF ANY SUCH OFFICER AND EMPLOYEE FOR THE PURPOSES OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED.' IN THE LIGHT OF THOSE PROVISIONS, IT IS CLEAR THAT NOT ONLY THE PERCENTUM INCREASES AUTHORIZED BY SECTION 501 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, BUT ALSO THE PERCENTUM INCREASE AUTHORIZED BY SECTION 502 OF THAT ACT, AS AMENDED, ADDITIONAL COMPENSATION IN LIEU OF OVERTIME, IS A PART OF BASIC COMPENSATION. THAT IS TO SAY, ALL OF THE VARIOUS PERCENTUM INCREASES AUTHORIZED BY SECTIONS 501 AND 502 FOR LEGISLATIVE EMPLOYEES BECAME A PART OF THEIR BASIC COMPENSATION, ESTABLISHING, AS IT WERE, ENTIRELY NEW BASIC RATES OF COMPENSATION FOR SUCH EMPLOYEES. HENCE, WHILE AS ABOVE STATED, THE ADDITIONAL COMPENSATION AUTHORIZED BY SECTION 301 BECOMES A PART OF BASIC COMPENSATION, IT MERELY IS FOR ADDING TO THE EXISTING BASIC COMPENSATION, WHICH BASIC COMPENSATION INCLUDES THE 10 PERCENTUM IN LIEU OF OVERTIME AS AUTHORIZED BY SECTION 502 OF THE 1945 PAY ACT, AS AMENDED, SUPRA.

THAT SITUATION IS TO BE DISTINGUISHED FROM THE SITUATION DISCUSSED IN ANSWERING QUESTION 2, ABOVE. THE ADDITIONAL COMPENSATION AUTHORIZED FOR NIGHT WORK, OVERTIME, AND HOLIDAY WORK DOES NOT BECOME A PART OF BASIC COMPENSATION AND SUCH INCREASES PROPERLY ARE FOR COMPUTING UPON THE AMOUNT OF BASIC COMPENSATION AT ANY GIVEN TIME PLUS SUCH ADDITIONS THERETO AS MAY BE AUTHORIZED FROM TIME TO TIME. ON THE OTHER HAND, THE 10 PERCENTUM ADDITIONAL COMPENSATION IN LIEU OF OVERTIME, AS AUTHORIZED BY SECTION 502 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, IS A PART OF BASIC COMPENSATION AND DOES NOT AFFECT SUBSEQUENT ADDITIONS THERETO. THUS, THE SALARY COMPUTATION IN EXAMPLE (A) IN YOUR LETTER IS CORRECT. QUESTION 3 IS ANSWERED ACCORDINGLY.