1. In your decision of January 8, 1943 (B-31488) you stated that the 10% extra pay for night work authorized to be paid postal employees has never been regarded as a part of the base pay for retirement deductions or otherwise and that overtime or the 10% additional pay could not be based on the regular rate of pay plus the 10% night differential. In the case of substitute employees assigned to night duty, should the base pay, 65¢ per hour, plus the 10% additional, or 71.5¢ per hour, be used as the "hourly pay per hour" for the purpose of computing the 10% night differential?

2. In computing the 10% night differential of a regular employee performing overtime service at night, should the time and one-half overtime rate be considered as "the hourly pay per hour" for the purpose of computing the 10% night differential?

3. In your decision of June 2, 1942 (B-25908) it was held that the “basic salary, pay, or compensation" of employees at third-class post offices includes payments made to them from allowances for "Clerk Hire," "Separating Mails" and "Unusual Conditions." Are payments to fourth-class postmasters from appropriations for "Separating Mails" and "Unusual Conditions" subject to the 10% increase?

4. Are special delivery fees earned by and paid to postmasters, substitute employees, rural carriers and other postal employees subject to the 10% increase? 5. Under the basis used in computing the salaries of field employees in the postal service, $201.61 is equivalent to 15/31 of 1/12 of $5,000. Does the wording in Senate Joint Resolution 170 “and each such employee shall be paid only such additional compensation or portion thereof as will not cause his aggregate compensation to exceed a rate of $5,000 per annum" preclude the payment to an employee for the first fifteen days service in a 31 day month an amount in excess of $201.61, provided the total salary paid the employee during the year will not exceed $5,000. (It is assumed that your answer to this question will cover a situation where an employee earned by working overtime from December 16 to December 31, 1942 inclusive, an amount in excess of the pro rata portion of $5,000 for the period in question but whose earnings during the remainder of the year are considerably less than a rate of $5,000 per annum.)

In decision of January 8, 1943, B-31488, 22 Comp. Gen. 627, to you, questions 4 and 5 were stated and answered as follows:

QUESTIONS

4. Should the earned basic compensation of substitute employees on which the 10% bonus is calculated include payments for night differential?

5. Should night differential be included in salary payments to regular employees for the purpose of calculating the overtime pay?

ANSWERS

Section 828, Title 39, U. S. Code, provides:

"Night work in postal service; extra pay.

"After July 1, 1928, supervisory employees, special clerks, clerks, substitute clerks, watchmen, messengers, laborers, and employees of the motor-vehicle and pneumatic-tube services, in first and second class post offices; carriers and substitute carriers in the City Delivery Service; and railway postal clerks, substitute railway postal clerks, and laborers in the Railway Mail Service, who are required to perform night work, shall be paid extra for such work at the rate of 10 per centum of their hourly pay per hour: Provided, That night work is defined as any work done between the hours of six o'clock postmeridian and six o'clock antemeridian. (May 24, 1928, ch. 725, 45 Stat. 725; May 12, 1939, ch. 129, 53 Stat. 741.)"

The 10 percent extra pay for night work authorized to be paid to postal employees by said statute has never been regarded as a part of the base pay of the employees for retirement deductions or otherwise. See 7 Comp. Gen. 778. Accordingly, as the overtime compensation or additional compensation on a 10 percent basis authorized to be paid by the act of December 22, 1942, is in addition to base pay only, both questions 4 and 5 are answered in the negative.

Referring to question 1 in your present letter, sixty-five cents per hour (the basic rate of compensation for substitute employees) is

the proper basis or which to compute both the 10 percent incress authorized by the joint resolution of December 22 1941 3 Stat 1068, and, also, the 11 percent increase authorized by 38 U. S. Caže 828. for night work. Neither of the 10 percent increases may de included in competing the other 1 percent increase. Question 1s answered in the negative.

For the reasons sued in answering question 1, question 2, dist is answered in the negative

Sections 58 and 82. Title 39. U. S. Code, provide:

§ 58. Additional compensation to fourth-class postmasters for separating services and for unusual conditions during portion of year. The PostmasET General may allow to fourth-class postmasters additional compensation for separating services and for unusual conditions during a portion of the year, in lieu of an allowance for clerical services for this purpose. (May 12, 1910 eh. 230, 36 Stat. 359.)

$82. Distributing offices: allowance for clerk hire. The Postmaster General may designate offices at the intersection of mail routes as distributing or separating offices; and where any such office is of the third or fourth class, be may make a reasonable allowance to the postmaster for the necessary cost of clerical services arising from such duties (July 12, 1876, ch. 179, § 11, 19 Stat. 82)

Fourth-class postmasters are paid compensation on a fee basis subject to statutory limitations on the quarterly and annual allowances which have been increased 10 percent by the joint resolution of December 22, 1942. See question and answer 6, decision of January 8, 1943, to you. The additional compensation paid fourth-class postmasters under authority of section 58, Title 39, U. S. Code, above quoted, in lieu of the allowance for clerk hire authorized by section 82 id. would be regarded as compensation on "other than a time basis” within the meaning of the fourth proviso of section 1 of said joint resolution and, accordingly, is increased by 10 percent. Hence, question 3 is answered in the affirmative.

In decision of January 11, 1943, B-31596, 22 Comp. Gen. 644, to you, the following question and answer were stated:

QUESTION

Are special delivery messengers civilian employees of the Government and as such entitled to the 10% bonus authorized by the Joint Resolution? The special delivery service is authorized by the provisions of Title 39, Section 165, Ú. S. C., and Sections 167, 169, 169a, and 170 of the same Title govern the employment and payment of special delivery messengers.

ANSWER

The compensation authorized to be paid to special delivery messengers by the statutes cited in your letter consists of fees, or is for piece work, or is upon a basis other than a time basis. Accordingly, the question presented in your letter is answered in the affirmative.

Section 167, Title 39, U. S. Code, 24 Stat. 220, one of the statutes considered in said decision, authorizes the postmaster to "employ any persons, including clerks and assistants, at third- and fourth-class

offices, as messengers, on such terms as he shall fix as compensation for such delivery." Section 169a, Title 39, U. S. Code, provides:

Special delivery; messenger service; schedule of rates. For making special delivery there may be paid to the messenger or other person making such delivery 9 cents for matter of the first class weighing not in excess of two pounds, 10 cents for matter of other than the first class weighing not in excess of two pounds, 15 cents for mail matter of any class weighing more than two pounds but not in excess of ten pounds, and 20 cents for mail matter of any class weighing in excess of ten pounds. (Mar. 2, 1931, ch. 372, § 3, 46 Stat. 1469.)

As the compensation thus provided for is in the form of fees and is paid to regular postal employees for extra services as special delivery messengers, clearly it is increased by 10 percent under the joint resolution of December 22, 1942. The regular compensation and the additional compensation as special delivery messengers of postal employees should be kept separate and distinct in applying the formula for increasing compensation provided by the joint resolution. See decision of February 9, 1943, B-31747, 22 Comp. Gen. 776, to the Librarian of Congress. Question 4 is answered in the affirmative. Section 822, Title 39, U. S. Code, provides:

Salaries at annual or monthly rate; division of time and computation of pay. Where the salary or compensation of any employee in the Postal Service is at an annual or monthly rate, the following rules shall be followed in computing the amount due: An annual salary or compensation shall be divided into twelve equal installments, one of which shall be the pay for each calendar month; and in making payment for a fractional part of any calendar month there shall be paid such proportion of one of such installments, or of the amount of the monthly salary or compensation, as the number of days in the fractional part of that month bears to the actual number of days in that month.-(Mar. 4, 1911, ch. 241, § 4, 36 Stat. 1339.)

Said statute remains applicable for the purpose of computing a fractional month's regular or basic compensation of employees “in the postal service." However, for the purpose of computing the increased compensation either on an overtime basis or a 10 percent basis under the joint resolution of December 22, 1942, one day's compensation is required by the statutes extended by that resolution to be considered as 1/360, not 1/365, of a basic per annum salary. Also, the same divisor is required to be used in computing the salary limitation at the rate of $5,000 per annum for one day or for a pay period for employees who are paid compensation on a per annum basis either for full time or part time. See decision of January 2, 1943, B-31316, 22 Comp. Gen. 589, to the Architect of the Capitol, wherein it was stated:

Of course, the salary limitations or ceiling rates on a daily basis for employees who are paid on a per annum basis for part time or intermittent service would be computed by dividing $2,900 and $5,000 per annum by 360. On that basis the salary limitation or ceiling rate of $2,900 per annum for one day would be $8.05 and the salary limitation or ceiling rate of $5,000 per annum for one day would be $13.88. See salary tables. The 10 per centum would be computed on that part of the daily rate for such employees not to exceed $8.05, provided the additional compensation does not exceed the daily rate of $13.88.

Therefore, in the example stated in question 5 the salary limitation for a semi-monthly pay period would be 15/360 of $5,000, or $208.33 (see salary table). No increased compensation either on an overtime basis or on a 10 percent basis would be payable to an extent that would increase an employee's total compensation paid on a time basis to more than 1/360 of the per annum rate for any one day, that is, $208.33, for a semi-monthly pay period. As the employee's compensation is computed on a time basis, either for full-time or part-time service, and as the $5,000 salary limitation also is on a time basis, no adjustment is authorized or required as of April 30, 1943 (the expiration date of the statute) or prior thereto, as to employees (paid on a time basis) who receive an increase less than the rate of $5,000 per annum in one pay period, but whose increase would exceed a total of more than the rate of $5,000 per annum in another pay period but for the limitation. See question and answer 3 in decision of February 6, 1943, B-31945, 22 Comp. Gen. 764, to you, and decision of February 9, 1943, B-31747, 22 Comp. Gen. 776, to the Librarian of Congress; also, 8 Comp. Gen. 261. For rules applying the salary limitations to compensation paid on a fee basis, see the decision of January 30, 1943, B-31873, 22 Comp. Gen. 720, to the Director of the Administrative Office of United States Courts, wherein the salary limitations were considered in connection with the payment of fees to United States Commissioners which fees are not paid on a time basis. Question 5 is answered accordingly.

(B-32233)

OVERTIME COMPENSATION UNDER ACT OF DECEMBER 22, 1942RETIRED MILITARY PERSONNEL OCCUPYING CIVILIAN POSITIONS The limitation of $3,000 on the combined rate of retired pay and annual compensation from a civilian position which retired military personnel, otherwise authorized, may receive under the act of June 30, 1932, includes only the basic compensation of a civilian office or position, plus retired pay, and, therefore, the overtime compensation provided by the act of December 22, 1942, may be paid such personnel, if otherwise entitled thereto, even though such payment increase the combined compensation to a rate in excess of the $3,000 limitation.

Comptroller General Warren to the Director of Censorship, February 12, 1943: I have your letter of February 3, 1943, as follows:

The Office of Censorship has in its employ certain retired military personnel who are receiving retirement pay in addition to the salary attached to the positions they are filling. Inasmuch as Section 212 of the Act of June 30, 1932 (47 Stat. 406) limits the amount of combined pay that may be received by retired military personnel to $3,000 per annum, it is requested that the huge advised on the following points:

1. Are such employees entitled to receive overtime pay k of Senate Joint Resolution 170, 77th Congress, where the plu

time increases the combined compensation to a rate in excess of the $3,000 limitation?

2. If the $3,000 limitation may not be exceeded to the extent of overtime compensation, is it obligatory that such employees accept the overtime compensation due them where it means a sacrifice of a proportionate amount of the retirement pay to which they have been entitled?

Section 212 of the act of June 30, 1932, 47 Stat. 406, provides:

SEC. 212. (a) After the date of the enactment of this Act, no person holding a civilian office or position, appointive or elective, under the United States Government or the municipal government of the District of Columbia or under any corporation, the majority of the stock of which is owned by the United States, shall be entitled, during the period of such incumbency, to retired pay from the United States for or on account of services as a commissioned officer in any of the services mentioned in the Pay Adjustment Act of 1922 [U. S. C., title 37], at a rate in excess of an amount which when combined with the annual rate of compensation from such civilian office or position, makes the total rate from both sources more than $3,000; and when the retired pay amounts to or exceeds the rate of $3,000 per annum such person shall be entitled to the pay of the civilian office or position or the retired pay, whichever he may elect. As used in this section, the term "retired pay" shall be construed to include credits for all service that lawfully may enter into the computation thereof.

(b) This section shall not apply to any person whose retired pay plus civilian pay amounts to less than $3,000: Provided, That this section shall not apply to regular or emergency commissioned officers retired for disability incurred in combat with an enemy of the United States. [Italics supplied.]

Question one is understood as relating to civilian officers or employees holding positions the compensation of which is less than $2,500 per annum and whose retired pay is less than $2,500 per annum, or who otherwise are authorized under the law to receive both the compensation of a civilian office or position and retired pay, and who are paid the total salary of their civilian position plus retired pay to equal the maximum combined rate of $3,000 per annum authorized by the 1932 statute. See 21 Comp. Gen. 1129.

The words "annual rate of compensation from such civilian office or position" (italicized above) appearing in the 1932 statute, relate to the basic compensation of the civilian office or position. Hence, the maximum combined rate of $3,000 per annum fixed in the statute includes only the basic compensation of a civilian office or position, plus retired pay.

The increased compensation on an overtime basis provided by the joint resolution of December 22, 1942, 56 Stat. 1068, and the President's regulations thereunder, is authorized to be paid in addition to basic compensation. Accordingly, question one is answered in the affirmative, making it unnecessary to answer question two. See decisions of December 22, 1942, B-31220, 22 Comp. Gen. 570, to the Clerk of the House of Representatives, January 8, 1943, B-31488, 22 Comp. Gen. 627, to the Postmaster General, question and answer six, and decision of February 4, 1943, B-31948, 22 Comp. Gen. 745, to the Secretary of the Interior, question and answer one. Compare 13 Comp. Gen. 21.