One of the provisos of the Resolution is that the extension of overtime compensation therein provided shall not apply to "(a) those whose wages are fixed on a daily or hourly basis and adjusted from time to time in accordance with prevailing rates by wage boards or similar administrative authority serving the same purpose

Up until the passage of this Resolution, the employees at the headquarters office had been on a 44-hour week basis, and those in the field. doing construction and operation and maintenance work had been on a 48-hour week basis, pursuant to the provisions of 5 U. S. C. A. 26c. No overtime compensation has been paid, the provisions of Section 23 of the Act of March 28, 1934 not being believed to be applicable. In fact, in decision B-22255, dated December 12, 1941 addressed to this office, it was ruled by your office that the provisions of Section 23 of the Act of March 28, 1934 were not then applicable to the employees of this office and that there was no authority to pay overtime compensation to them.

Prior to February 1, 1939, compensation of mechanics, tradesmen, skilled and semi-skilled positions of this Commission was administratively fixed to agree as nearly as possible with the prevailing wage rates for similar positions in the locality where the work was being performed. Appointments since that date have been at the same rates.

The wages of common labor were similarly fixed administratively, and varied from about $2.00 to $3.00 a day. Recently, with the permission of the War Labor Board, the wages of all common labor were equalized at the rate of $3.00 per day, with certain exceptions. Generally speaking, these rates are below the prevailing wage rates for similar positions in the localities where the work is being performed. No wage board has ever been appointed and there have been no periodical adjustments.

Under the circumstances, this office is of the opinion that the per diem employees of this Commission do not come within the provisions of the proviso above quoted, but that they are entitled to overtime compensation the same as the per annum employees. This would seem to be in keeping with the decisions of the Comptroller General in 13 Comp. Gen. 486, 14 id. 42, 156, 199, 215 and 552. These decisions are mentioned not because they are believed to be controlling, but because they interpret a somewhat similar phrase in the 40-hour week law: "The weekly compensation which is set by wage boards or other wage-fixing

authorities

However, since there seems to be some doubt about the interpretation of the phrase "similar administrative authority serving the same purpose", it is deemed advisable to have an interpretation by your office before paying to our per diem employees the overtime for the month of December and thereafter, under the provisions of Senate Joint Resolution 170. Furthermore, the answer to this question might be influenced to some extent by a consideration of the powers granted to the Economic Stabilization Director under the provisions of Executive Order 9250 of October 3, 1942, and by him delegated to the National War Labor Board under the regulations issued by the Economic Stabilization Director and approved October 27, 1942 (7 Federal Register 8748).

As we interpret this Executive Order and the regulations issued pursuant thereto, however, the powers conferred on the War Labor Board are negative in character-that is, the War Labor Board, within certain limitations, is authorized to veto increases or decreases in salaries and wages, but it is not authorized affirmatively to adjust salaries and wages periodically "in accordance with prevailing rates" so as to constitute the War Labor Board, in effect, a "wage board" or "similar administrative authority serving the same purpose," within the meaning of the proviso of Senate Joint Resolution 170.

In the light of the facts as herein set out, therefore, we should appreciate your decision on the specific question:

May the per diem employees of this Commission be paid overtime compensation on the basis of one and one-half times the regular rate for all work performed in excess of 40 hours in any administrative workweek, retroactively for the month of December and thereafter, in accordance with the provisions of Senate Joint Resolution 170?

The preparation of the supplemental nay roll for the month of December is being withheld pending a decision on this question, but since it is desired to make up the regular pay roll for the first half of January in accordance with your ruling, it would be deeply appreciated if we could have your decision prior to the 15th of January.

In the decision of December 12, 1941, B-22255, to which you refer, it was stated, in pertinent part, as follows:

No statute, Executive order, or administrative regulation has been called to attention, requiring the fixing of the rates of compensation and hours of labor of the employees of the United States Section of the International Boundary Commission, United States and Mexico, in accordance with a procedure similar to that used by wage boards. See title 22, section 277, U. S. Code, and the appropriation item for the International Boundary Commission, United States and Mexico, appearing in the current fiscal year appropriation act approved June 28, 1941, Public Law 135. In view of the foregoing I have to advise that the provisions of section 23 of the act of March 28, 1934, supra, are not now applicable to said employees and that there is no authority to pay overtime compensation to such employees for the overtime work performed by them in the emergency referred to in your letter.

In decision of January 11, 1943, B-31530, 22 Comp. Gen. 641, to the Secretary of the Interior, it was recognized that there might be classes of employees, other than those in "the several trades and occupations" coming within the purview of section 23 of the act of March 28, 1934, 48 Stat. 522, whose wages are fixed and adjusted from time to time in accordance with prevailing rates by wage boards or similar administrative authority serving the same purpose as a wage board, who would be excluded from the benefits of overtime compensation authorized by Public Law 821, approved December 22, 1942, because of the terms of the second proviso in section 1 thereof (quoted in the second paragraph of your letter). Also, it was stated in that decision. as follows:

However, employees whose rates of wages are administratively fixed under general administrative authority granted by or pursuant to statute without reference to prevailing wages, do fall within the purview of the act of December 22, 1942, and are entitled to the benefits thereof regardless of whether they be paid on a per annum, per diem, or some other basis.

To come within exception (a) to the second proviso in section 1 of the new overtime compensation law, an administrative authority which purports to be serving the same purpose as a wage board must adopt a wage-board procedure, the primary element of which is the adjustment of wages from time to time in accordance with prevailing rates in the locality. See 20 Comp. Gen. 392, and decisions therein cited. In other words, it is only where an administrative authority has adopted the same procedure as a wage board pursuant to which wages may be adjusted at any time to correspond to prevailing wages based upon living costs, etc., that it may be concluded the administrative authority serves the same purpose as a wage board.

It does not appear that the International Boundary Commission has ever been recognized or regarded, by law or otherwise, as an administrative authority serving the same purpose as a wage board. That view seems borne out by the statement made in your letter that the rates of wages fixed for the involved employees "are below the prevailing wage rates for similar positions in the localities where

the work is being performed", and, also, that "there have been no periodical adjustments.'

This office is in agreement with the view expressed in the antepenultimate paragraph of your letter to the effect that the National War Labor Board is not a "wage board" within the meaning of Public Law 821, approved December 22, 1942.

In the light of the foregoing the question posed in the penultimate paragraph of your letter is answered in the affirmative.

(B-31570)

COMPENSATION-DOUBLE-REFUND OF ERRONEOUS PAYMENTS FOR ANNUAL LEAVE IN ONE POSITION-RESTORATION OF LEAVE CREDIT

An employee who has received payment of two salaries in two positions in contravention of the dual compensation statute of 1916 should be afforded an opportunity to elect to refund the salary of either position, especially where annual leave in one of the positions is involved, and only in the event the employee fails to make an election will it be presumed that he would elect to retain the salary of the position which would give him the greater

sum.

An employee who, during a period of terminal leave in one agency, accepted a position with another agency and received concurrent salary payments for both positions in contravention of the dual compensation statute of 1916 may have the annual leave earned in the prior position restored and transferred to the position in the latter agency-there having been no break in service if the employee has elected to refund, and has refunded, the salary received for the annual leave taken in the prior position, but such leave may not be restored and transferred if the employee has either affirmatively or impliedly-elected to retain the salary received during the period of his annual leave in the prior position.

Comptroller General Warren to the Secretary of War, January 15, 1943:

I have your letter of December 29, 1942, as follows:

Section 6 of the Act of May 10, 1916 (39 Stat. 120) as amended by the Act of August 29, 1916 (39 Stat. 582) provides as follows:

"Unless otherwise specifically authorized by law, no money appropriated by any act shall be available for payment to any person receiving more than one salary when the combined amount of said salaries exceeds the sum of $2,000 per annum (5 U. S. C. 58)."

The Department is familiar with the various decisions emanating from your office which require that a refund be made when the above cited statute is violated. However, no decision is found to indicate what further action is required to amend an employee's leave record after refund is made. This problem is particularly recurrent in those cases involving dual compensation resulting from service performed in the Department while the employee is in a pay status on terminal annual leave from another agency. The following set of facts are therefore submitted for your consideration and decision as to the present and similar cases arising in the future.

On December 15, 1941, Mr. Arnold P. Dohm was appointed in the Ordnance Department at Large, Birmingham Ordnance District, as a Minor Engineering Aide, SP-1, $1020 per annum. Mr. Dohm was appointed by transfer from the Naval Air Station, Miami, Florida where he had served as Classified Laborer at $4.32 per diem since March 25, 1941. The employee had been placed on annual leave from the position at the Naval Air Station and remained in that status from December 15, to 24, 1941. Dual service was therefore present over a period of ten days, a condition which was not discovered until a retirement

record card was transmitted to the Birmingham Ordnance District from the Navy Department.

Upon discovery of the dual payment, refund in the amount of $27.33 was immediately secured from the employee. This refund represented the salary received from the War Department position during the period of dual service inasmuch as it was the lesser salary.

On August 31, 1942, Mr. Dohm was furloughed for entry on military duty and he now requests that he be credited with the ten days' annual leave earned in and paid by the Navy Department. No action was taken at the time refund was secured to adjust the leave records of the station involved and the question is raised as to whether Mr. Dohm may now be credited with annual leave for the period December 15 to 24, 1941, representing the dual service period for which refund was secured, although at the lower compensation rate of the War Department position. If the above set of facts require a negative decision, further information is required as to whether your decision would be different if the employee had refunded the amount paid by the Navy Department to cover annual leave earned in that Department.

Your early consideration and decision on the above matter will be appreciated." The decisions hold in cases involving payment of two salaries in two positions in contravention of the dual compensation act of 1916, 39 Stat. 582, that the employee has a right of election to refund the salary of either position or employment and that only in event the employee fails to make an election will it be presumed that he would elect to retain the salary of the position which would give him the greater sum. 8 Comp. Gen. 261, 17 id. 238. It may be stated that when annual leave in one of the positions is involved (as in the instant case) which could have been transferred to the new positionthere having been no break in service-the election of the employee is particularly desirable because the transferred leave may be of more value to him than his retaining the greater salary during the period of dual employment.

It is not stated in your letter whether the employee, in the illustration stated, was afforded an opportunity to elect which salary he would retain. If the employee was afforded an opportunity of election and he elected to retain the greater sum received during the period of his annual leave in his prior position in the Navy Department-the effect of which would, under the above cited decisions, be the same as if he had failed to make an election-it would have to be concluded that the employee was paid for the annual leave granted him by the Navy Department which otherwise could have been transferred to the War Department, and, hence, that he could not now be paid for such leave upon entry into the active military service under the act of August 1, 1941, as amended by the act of April 7, 1942, Public Law 517, 56 Stat. 200. If the employee had elected to refund and had refunded the greater salary received forthe period of annual leave granted and taken in his position in the Navy Department, then such leave could be restored to him and transferred to his position in the War Department under the provisions of section 6 of the annual leave regulations-there appearing no break

in service and he could have been paid for such leave upon entry into the active military service.

The question presented is answered accordingly.

(B-31446)

INTEREST-COMPUTATION-INTEREST PAYABLE AT END OF MONTHLY, QUARTERLY, OR SEMIANNUAL INTERVALS

Where, by virtue of agreement or statutory requirement, interest is payable to the Government in installments at the end of monthly, quarterly, or semiannual intervals considered to represent fractions of an interest year, the interest earned during each such calendar period is regarded as being equivalent to a corresponding fraction of the year's interest, and where less than such a calendar period is involved the interest should be computed by employing a fraction whose numerator is the actual number of days elapsed and whose denominator is the actual number of days in the particular (calendar) period.

Comptroller General Warren to Ensign W. C. McLaughlin, U. S. Navy, January 18, 1943:

I have your letter of December 29, 1942, as follows:

A question has arisen with respect to the proper method of computing interest on advances under Navy Contracts.

Contract NOS-87959, Blaw-Knox Company, provides that interest at 2% on an advance of $2,000,000.00 be deducted from fixed fee payments. This advance was made on August 20, 1942.

Interest has been deducted for the period August 20, 1942 through September 30, 1942. The amount of this interest was computed as follows:

$2,000,000.00×21⁄2 % ×41/365=$5,616.44

It is expected that future deductions will be made monthly by the Navy Cost Inspector of an amount computed as follows:

$2,000,000.00×21⁄2% X1/12=$4,166.67

It is suggested that the Disbursing Officer be advised with respect to the correctness of the above computations in order that necessary adjustments can be made as soon as possible.

Presumably the referred-to advance payment to the Blaw-Knox Company, of $2,000,000 on August 20, 1942, was made in accordance with section 12 1(c) of supplementary contract NOs-87959, dated April 24, 1942, which provides as follows:

The Government shall advance to the Contractor after the date of this amendment in one sum, or in installments from time to time at intervals of not less than fifteen (15) days, as may be requested by the Contractor, a further sum or sums in the aggregate not exceeding $4,000,000.00. The aggregate sum represented by advances made under this Subparagraph (c) is sometimes hereinafter referred to as the "Third Advance Fund."

The contractor was not required to pay interest to the Government on sums advanced to it prior to April 24, 1942, but, with respect to the "Third Advance Fund," section 12 2(b) of said contract provides that:

The Contractor shall pay interest to the Government at the rate of 22% per annum on the unliquidated amount of the advance or advances made to Contractor pursuant to Subparagraph (c) of Subsection (1) of this Section 12 from the time of the making of such advance or advances until complete liquidation thereof as provided in Subparagraph (c) of Subsection (3) of this Section 12. Said interest