B-31316, JANUARY 2, 1943, 22 COMP. GEN. 589

B-31316, JANUARY 2, 1943, 22 COMP. GEN. 589

COMPENSATION - ADDITIONAL OR OVERTIME - ACT OF DECEMBER 22, 1942 ALL EMPLOYEES IN OR UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL - INCLUDING EMPLOYEES OF THE HOUSE OF REPRESENTATIVES AND UNITED STATES SENATE RESTAURANTS--- ARE "IN OR UNDER THE LEGISLATIVE BRANCH" WITHIN THE MEANING OF THE ACT OF DECEMBER 22, 1942, PROVIDING FOR THE PAYMENT OF 10 PERCENT ADDITIONAL COMPENSATION IN LIEU OF OVERTIME COMPENSATION TO CERTAIN CLASSES OF EMPLOYEES, INCLUDING EMPLOYEES IN OR UNDER THE LEGISLATIVE BRANCH, AND THEREFORE, SUCH EMPLOYEES ARE ENTITLED TO THE ADDITIONAL COMPENSATION, WITHIN THE LIMITATIONS OF THE STATUTE, REGARDLESS OF THE NUMBER OF HOURS PER WEEK THEY ARE REQUIRED TO WORK AND REGARDLESS OF WHETHER THEIR COMPENSATION IS COMPUTED ON A PER HOUR, PER DIEM OR PER ANNUM BASIS. THE PAYMENT OF 10 PERCENT ADDITIONAL COMPENSATION IN LIEU OF OVERTIME COMPENSATION TO CERTAIN CLASSES OF EMPLOYEES, AS AUTHORIZED BY THE ACT OF DECEMBER 22, 1942, IS NOT CONDITIONED UPON THE RENDITION OF OVERTIME SERVICES. NO EMPLOYEE IS ENTITLED TO RECEIVE BOTH OVERTIME COMPENSATION AND ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS BY REASON OF THE ACT OF DECEMBER 22, 1942, PROVIDING FOR PAYMENT, WITHIN THE LIMITATIONS PRESCRIBED THEREIN, OF OVERTIME COMPENSATION OR 10 PERCENT ADDITIONAL COMPENSATION IN LIEU THEREOF. IN APPLYING THE SALARY LIMITATIONS OF $2,900 AND $5,000 PER ANNUM, PRESCRIBED BY THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, TO THE COMPENSATION OF EMPLOYEES PAID ON PER DIEM OR PER HOUR BASIS, THE PER DIEM EQUIVALENTS OF THE PER ANNUM SALARY LIMITATIONS ARE COMPUTED BY DIVIDING $2,900 OR $5,000 PER ANNUM, AS THE CASE MAY BE, BY THE NUMBER OF DAYS DURING THE YEAR FOR WHICH THE EMPLOYEES RECEIVE THEIR COMPENSATION, AND THE PER HOUR EQUIVALENTS BY DIVIDING THE DAILY SALARY LIMITATIONS BY THE NUMBER OF HOURS THE EMPLOYEES ARE REGULARLY REQUIRED TO WORK EACH DAY. THE DECISION SETS FORTH THE COMPUTATION FOR EMPLOYEES RECEIVING COMPENSATION FOR EVERY DAY OF THE YEAR EXCEPT SUNDAYS, AND FOR THOSE WORKING AND RECEIVING COMPENSATION FOR FIVE AND ONE-HALF DAYS PER WEEK, RESPECTIVELY. IN APPLYING ON A DAILY BASIS THE SALARY LIMITATIONS OF $2,900 AND $5,000 PRESCRIBED BY THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, TO THE COMPENSATION OF EMPLOYEES PAID ON A PER ANNUM BASIS FOR PART TIME OR INTERMITTENT SERVICE, THE PER DIEM EQUIVALENTS OF THE PER ANNUM SALARY LIMITATIONS ARE COMPUTED BY DIVIDING $2,900 OR $5,000, AS THE CASE MAY BE, BY 360; THUS, THE PER DIEM EQUIVALENT OF $2,900 PER ANNUM IS $8.05, AND OF $5,000, $13.88. THE PAYMENT OF OVERTIME COMPENSATION, OR 10 PERCENT ADDITIONAL COMPENSATION IN LIEU THEREOF, UNDER THE ACT OF DECEMBER 22, 1942, DOES NOT CONSTITUTE AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, AND DOES NOT AFFECT AN EMPLOYEE'S ELIGIBILITY TO A WITHIN-GRADE SALARY ADVANCEMENT THEREUNDER.

COMPTROLLER GENERAL WARREN TO THE ARCHITECT OF THE CAPITOL, JANUARY 2, 1943:

I HAVE YOUR LETTER OF DECEMBER 22, 1942, AS FOLLOWS:

THE FOLLOWING MATTERS ARE PRESENTED FOR YOUR CONSIDERATION AND ADVISE:

1. RE: EMPLOYEES OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL.

THE ACT OF JUNE 6, 1930 (46 STAT. 513) PROVIDES:

"APPROPRIATIONS UNDER THE CONTROL OF THE ARCHITECT OF THE CAPITOL SHALL BE AVAILABLE HEREAFTER FOR EXPENSES OF PERSONAL AND OTHER SERVICES;

THE ACT OF JUNE 20, 1929 " LEGISLATIVE PAY ACT" (46 STAT. 38) PROVIDES:

"SEC. 3. SECTION 2 OF THE ACT ENTITLED "AN ACT TO PROVIDE FOR THE CLASSIFICATION OF CIVILIAN POSITIONS WITHIN THE DISTRICT OF COLUMBIA IN THE FIELD SERVICES," APPROVED MARCH 4, 1923 ( UNITED STATES CODE, TITLE 5, SECTION 662), IS HEREBY AMENDED SO AS TO INCLUDE WITHIN THE DEFINITION OF THE TERM "DEPARTMENT," CONTAINED IN THE SECOND PARAGRAPH OF SUCH SECTION, THE OFFICE OF THE ARCHITECT OF THE CAPITOL: PROVIDED, THAT THIS SECTION SHALL NOT OPERATE TO REDUCE THE COMPENSATION OF THE PRESENT INCUMBENT IN ANY POSITION NOR TO PREVENT THE ARCHITECT OF THE CAPITOL FROM EMPLOYING PROFESSIONAL AND TECHNICAL SERVICES IN CONNECTION WITH CONSTRUCTION PROJECTS AT SUCH RATES OF COMPENSATION AS HE MAY DEEM NECESSARY IN THE PUBLIC INTEREST.'

THE ACT OF AUGUST 1, 1941 (55 STAT. 615) PROVIDES:

"SEC. 6. SECTION 3 OF THE LEGISLATIVE PAY ACT OF 1929 IS HEREBY AMENDED EFFECTIVE ON THE DATE OF THE ENACTMENT OF THIS ACT BY ADDING AT THE END OF THE FIRST PARAGRAPH THEREOF, BEFORE THE PERIOD, THE FOLLOWING: PROVIDED FURTHER, THAT THE COMPENSATION OF ANY EMPLOYEES UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL WHOSE TENURE OF EMPLOYMENT IS TEMPORARY OR OF UNCERTAIN DURATION MAY BE FIXED BY THE ARCHITECT OF THE CAPITOL WITHOUT REFERENCE TO THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.'

PURSUANT TO THESE PROVISIONS OF LAW, ALL EMPLOYEES ON THE REGULAR FORCE OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL WHOSE TENURE OF EMPLOYMENT IS PERMANENT IN CHARACTER ARE COMPENSATED IN ACCORDANCE WITH THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.

THE RATES OF PAY FOR OTHER EMPLOYEES UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL ARE GENERALLY FIXED BY THE ARCHITECT OF THE CAPITOL WITHOUT REGARD TO THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED; THE TENURE OF EMPLOYMENT OF SUCH EMPLOYEES BEING TEMPORARY OR OF UNCERTAIN DURATION.

THESE TEMPORARY EMPLOYEES INCLUDE PRINCIPALLY (A) ELEVATOR OPERATORS AND LABORERS SERVING UNDER PATRONAGE APPOINTMENTS, WHOSE RATES OF PAY HAVE BEEN FIXED WITH THE APPROVAL OF THE PROPER COMMITTEES AND COMMISSIONS OF CONGRESS AT THE UNIFORM RATE OF $1200 PER ANNUM FOR THE ELEVATOR OPERATORS AND $1140 PER ANNUM FOR THE LABORERS; (B) LABORERS AND MECHANICS EMPLOYED AS NEEDED FROM TIME TO TIME TO TEMPORARILY SUPPLEMENT THE REGULAR MAINTENANCE FORCE, WHOSE RATES OF PAY ARE USUALLY FIXED ON EITHER A PER ANNUM OR A PER DIEM BASIS--- THE PER ANNUM BASIS GENERALLY BEING ABOUT THE SAME RATES AS THE SALARY RATES OF SIMILAR EMPLOYEES ON THE PERMANENT FORCE, AND THE PER DIEM BASIS GENERALLY BEING $4.00 OR $5.00 PER DIEM FOR GENERAL LABORERS OR HELPERS, AND PREVAILING PER DIEM WAGE RATES FOR THE VARIOUS MECHANICS; (C) LABORERS AND MECHANICS EMPLOYED ON A PER DIEM OR PER HOUR BASIS AND PAID PREVAILING WAGE RATES; (D) INTERMITTENT EMPLOYEES USUALLY PAID BY THE HOUR, SUCH AS INTERMITTENT OR RELIEF ELEVATOR OPERATORS PAID 50 CENTS PER HOUR FOR TIME ACTUALLY SERVED.

MOST OF THE TEMPORARY EMPLOYEES UNDER GROUP (C) SERVE FOR BRIEF PERIODS-- - RUNNING ON AN AVERAGE FROM TWO WEEKS TO TWO OR THREE MONTHS -- AND INCLUDE SUCH MECHANICS AS PAINTERS, CARPENTERS, PLASTERERS, BRICKLAYERS, STONEMASONS, ELECTRICIANS, ETC., AND HELPERS AND LABORERS. THEIR TEMPORARY EMPLOYMENT, WHEN AT PER DIEM OR PER HOUR RATES, IS ALMOST ALWAYS ON THE BASIS OF TIME ACTUALLY SERVED. THEY ARE EMPLOYED ON A PURELY TEMPORARY BASIS AND IN SUCH NUMBERS AND FOR SUCH PERIODS AS NEEDED. SOON AS THE WORK FOR WHICH THEY HAVE BEEN HIRED HAS BEEN COMPLETED, THEY ARE SEPARATED FROM THE ROLLS AND NO LONGER HAVE ANY CONNECTION WITH THE WORK UNDER THE ARCHITECT, UNLESS SUBSEQUENTLY RE-EMPLOYED FOR OTHER WORK.

TEMPORARY EMPLOYEES ARE APPOINTED BY THE ARCHITECT OF THE CAPITOL AND ARE PAID FROM LUMP SUM APPROPRIATIONS UNDER THE ARCHITECT OF THE CAPITOL AND ALTHOUGH THEY ARE USUALLY PAID AT RATES EITHER IN LINE WITH RATES PAID FOR SIMILAR WORK UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, OR IN LINE WITH PREVAILING WAGE RATES FOR MECHANICS, YET, WITH THE EXCEPTION OF THE PATRONAGE EMPLOYEES, THERE ARE NO FORMAL REGULATIONS FIXING SUCH RATES FOR THE VARIOUS CLASSES OF TEMPORARY WORKMEN EMPLOYED; THE RATE FOR EACH EMPLOYEE BEING FIXED IN HIS LETTER OF APPOINTMENT, TRANSFER, PROMOTION, DEMOTION, OR OTHER PERSONNEL CHANGE.

SENATE JOINT RESOLUTION 170, 77TH CONGRESS, PASSED-BY THE SENATE AND THE HOUSE DECEMBER 15, 1942, PROVIDES IN PART:

"RESOLVED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, THAT THE JOINT RESOLUTION ENTITLED " JOINT RESOLUTION EXTENDING THE PERIOD FOR WHICH OVERTIME RATES OF COMPENSATION MAY BE PAID UNDER CERTAIN ACTS" , APPROVED JULY 3, 1942, IS AMENDED BY STRIKING OUT " NOVEMBER 30, 1942," AND INSERTING " APRIL 30, 1943": PROVIDED, THAT THE AUTHORIZATION CONTAINED HEREIN TO PAY OVERTIME COMPENSATION TO CERTAIN GROUPS OF EMPLOYEES IS HEREBY EXTENDED, EFFECTIVE DECEMBER 1, 1942, TO ALL CIVILIAN EMPLOYEES IN OR UNDER THE UNITED STATES GOVERNMENT, INCLUDING GOVERNMENT-OWNED OR CONTROLLED ORGANIZATIONS (EXCEPT EMPLOYEES IN THE LEGISLATIVE AND JUDICIAL BRANCHES), * * *:

"PROVIDED FURTHER, THAT SUCH EXTENSION 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, * * *: AND PROVIDED FURTHER, THAT OFFICERS OR EMPLOYEES WHOSE COMPENSATION IS BASED ON MILEAGE POSTAL RECEIPTS, FEES, PIECEWORK, OR OTHER THAN A TIME PERIOD BASIS OR WHOSE HOURS OF DUTY ARE INTERMITTENT, IRREGULAR, OR LESS THAN FULL TIME, SUBSTITUTE EMPLOYEES WHOSE COMPENSATION IS BASED UPON A RATE PER HOUR OR PER DAY, AND EMPLOYEES IN OR UNDER THE LEGISLATIVE AND JUDICIAL BRANCHES, SHALL BE PAID ADDITIONAL COMPENSATION, IN LIEU OF THE OVERTIME COMPENSATION AUTHORIZED HEREIN, AMOUNTING TO 10 PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900 PER ANNUM, AND EACH 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. * * *"

THE SENATE COMMITTEE ON CIVIL SERVICE, IN ITS REPORT NO. 1847, 77TH CONGRESS, ON THIS JOINT RESOLUTION, STATED IN PART:

"THE JOINT RESOLUTION WILL NOT AFFECT EMPLOYEES WHOSE COMPENSATION IS BASED UPON HOURLY RATES FIXED AND ADJUSTED BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE WAGE-FIXING AUTHORITY, ELECTED OFFICIALS, HEADS OF DEPARTMENTS AND AGENCIES, AND CERTAIN EMPLOYEES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WHO ARE PAID AT NATIVE WAGE RATES PREVAILING IN THE AREAS IN WHICH THEY ARE EMPLOYED.'

THIS REPORT ALSO STATES:

"PROVISION IS MADE FOR THE PAYMENT OF ADDITIONAL COMPENSATION TO CERTAIN EMPLOYEES, THE NATURE OF WHOSE WORK DOES NOT READILY LEND ITSELF TO AN OVERTIME PAY PROGRAM. SUCH ADDITIONAL COMPENSATION WOULD AMOUNT TO 10 PERCENT OF SO MUCH OF AN EMPLOYEE'S SALARY AS DOES NOT EXCEED A RATE OF $2,900 PER ANNUM, AND WOULD BE SUBJECT TO THE $5,000 CEILING REFERRED TO IN THE PRECEDING PARAGRAPH. INCLUDED IN THIS CATEGORY WOULD BE EMPLOYEES WHOSE COMPENSATION IS BASED ON MILEAGE, POSTAL RECEIPTS, FEES, PIECEWORK, OR OTHER THAN A TIME-PERIOD BASIS OR WHOSE HOURS OF DUTY ARE INTERMITTENT, IRREGULAR, OR LESS THAN FULL TIME, SUBSTITUTE EMPLOYEES WHO ARE PAID AT HOURLY OR DAILY RATES, AND EMPLOYEES IN THE LEGISLATIVE AND JUDICIAL BRANCHES OF THE GOVERNMENT.'

THE OFFICE OF THE ARCHITECT OF THE CAPITOL IS A PART OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT. THE COMPTROLLER GENERAL IN DECISION OF MARCH 3, 1927 (6 COMP. GEN. 565) TO THE ARCHITECT OF THE CAPITOL STATED "PERSONAL SERVICES PAID FOR FROM APPROPRIATIONS UNDER YOUR CONTROL ARE PERFORMED IN POSITIONS IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT.' FURTHER DEFINITION OF EMPLOYEES OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL AS LEGISLATIVE EMPLOYEES AND OTHER INFORMATION, IN GENERAL, BEARING UPON THE AUTHORITY OF THE ARCHITECT OF THE CAPITOL ARE ALSO SET FORTH IN COMP. GEN. A-26211, MARCH 14, 1929, 12 COMP. GEN. 83 ( JULY 20, 1932), 12 COMP. GEN. 82 ( JULY 20, 1932), COMP. GEN. A-52072, DECEMBER 4, 1933. REFERENCE IS ALSO MADE TO COMP. DEC. VOL. IV, PAGES 125-129, SEPTEMBER 18, 1897, TO THE LIBRARIAN OF CONGRESS, COMP. GEN. DEC. OF AUGUST 11, 1932 TO CHAS. F. PACE, FINANCIAL CLERK OF THE SENATE, (A-43837) AND COMP. GEN. DECISION OF AUGUST 1, 1932 TO SENATOR STEIWER (A-43201).

IN THE OPINION OF THIS OFFICE IT IS CLEAR THAT UNDER THE TERMS OF S.J. RESOLUTION 170, ALL EMPLOYEES UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL, COMPENSATED ON A PER ANNUM BASIS, WHETHER TEMPORARY OR PERMANENT, AND ALL PER DIEM AND PER HOUR TEMPORARY EMPLOYEES, OTHER THAN THOSE PAID PREVAILING WAGE RATES, ARE ENTITLED TO THE 10 PERCENT ADDITIONAL COMPENSATION BENEFIT AUTHORIZED UNDER THE FINAL PROVISO OF SECTION 1 OF S.J. RES. 170.

WITH REFERENCE TO TEMPORARY EMPLOYEES WHO ARE PAID PREVAILING WAGE RATES, ALTHOUGH THE ARCHITECT OF THE CAPITOL HAS THE AUTHORITY TO FIX THE RATES OF PAY FOR SUCH EMPLOYEES WITHOUT REFERENCE TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND PRIOR TO THE ACT OF AUGUST 1, 1941, ALSO HAD SUCH AUTHORITY UNDER SECTION 5 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, YET THE ARCHITECT OF THE CAPITOL HAS NEVER BEEN UNDERSTOOD TO BE A WAGE- FIXING AUTHORITY WITHIN THE MEANING OF SECTION 23 OF THE ACT OF MARCH 28, 1934 (48 STAT. 522). IN THIS CONNECTION, REFERENCE IS MADE TO 13 COMP. GEN. 486 AND 14 COMP. GEN. 496.

HOWEVER, IT IS NOT ENTIRELY CLEAR TO THIS OFFICE AS TO WHETHER OR NOT TEMPORARY PER DIEM OR PER HOUR EMPLOYEES WHO ARE PAID PREVAILING WAGE RATES, ARE INCLUDED UNDER THE 10 PERCENT ADDITIONAL COMPENSATION BENEFIT AUTHORIZED BY S.J. RES. 170, IN VIEW OF THE WORDING OF THE FOLLOWING PROVISO OF SECTION 1 OF SUCH RESOLUTION:

"PROVIDED FURTHER, THAT SUCH EXTENSION 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, * * *"

REFERENCE IS ALSO MADE TO THE FOLLOWING STATEMENT CONTAINED IN SENATE REPORT NO. 1847, 77TH CONGRESS, PREVIOUSLY REFERRED TO:

"THE JOINT RESOLUTION WILL NOT AFFECT EMPLOYEES WHOSE COMPENSATION IS BASED UPON HOURLY RATES FIXED AND ADJUSTED BY WAGE BOARDS OR SIMILAR ADMINISTRATIVE WAGE-FIXING AUTHORITY, * * *"

YOUR OPINION IS THEREFORE REQUESTED AS TO WHETHER ANY EMPLOYEES UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL ARE EXCLUDED FROM THE BENEFITS OF S. J. RES. 170, OR WHETHER EACH AND EVERY EMPLOYEE UNDER THE ARCHITECT OF THE CAPITOL, REGARDLESS OF TENURE OF EMPLOYMENT, METHOD OF SALARY FIXING, HOURS OF DUTY, OR NATURE OF EMPLOYMENT, SHOULD BE GRANTED THE 10 PER CENT ADDITIONAL COMPENSATION, SUBJECT, OF COURSE, TO THE RESTRICTIONS CONTAINED IN THE RESOLUTION RELATIVE TO THE $2900 AND $5000 SALARY RATES.

IN THE CASE OF TEMPORARY MECHANICS OR OTHER EMPLOYEES RECEIVING PER DIEM OR PER HOUR RATES, IF THE SAME ARE CONSIDERED ELIGIBLE FOR THE 10 PERCENT ADDITIONAL COMPENSATION, SHOULD THEIR DAILY RATE BE MULTIPLIED BY 313 DAYS IN DETERMINING THE $2900 AND $5000 SALARY LIMITATIONS, OR BY 287 DAYS WHERE WORK IS PERFORMED ON A 5 1/2 DAYS PER WEEK BASIS, OR BY 261 DAYS WHERE WORK IS PERFORMED ON A 5 DAYS PER WEEK BASIS?

IN GRANTING THE 10 PERCENT ADDITIONAL COMPENSATION, IT IS UNDERSTOOD THAT CERTAIN EMPLOYEES, SUCH AS CHARWOMEN WHO WORK 3 OR 4 HOURS PER DAY AND ARE EMPLOYED ON A YEAR-ROUND BASIS AND COMPENSATED UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND EMPLOYEES WHO WORK ON A 5 DAYS PER WEEK BASIS, ARE NOT REQUIRED TO SERVE ANY ADDITIONAL HOURS OF DUTY IN ORDER TO RECEIVE THE 10 PER CENT ADDITIONAL COMPENSATION. INSOFAR AS REQUIRING PER ANNUM EMPLOYEES TO WORK, HEREAFTER, ON SATURDAY AFTERNOONS IS CONCERNED, IT IS ASSUMED THAT THE PRINCIPLE LAID DOWN IN 12 COMP. GEN. 83 IS APPLICABLE.

THE ACT OF AUGUST 1, 1941 (55 STAT. 613-614) PROVIDES IN PART:

" * * * THE CLASSIFICATION ACT OF 1923, AS AMENDED, IS HEREBY FURTHER AMENDED AS FOLLOWS:

"SEC. 2. SECTION 7 OF THE SAID ACT IS HEREBY AMENDED BY INSERTING THE LETTER "/A)" AFTER THE FIGURE "7" AT THE BEGINNING OF SAID SECTION, AND BY ADDING THE FOLLOWING PARAGRAPHS AS SUBSECTIONS THEREOF: "/B) ALL EMPLOYEES COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT, WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED, SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT QUARTER, FOLLOWING THE COMPLETION OF: (1) EACH EIGHTEEN MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $60 OR $100, OR (2) EACH THIRTY MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $200 OR $250, SUBJECT TO THE FOLLOWING CONDITIONS: "/1) THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD, EXCEPT INCREASE MADE PURSUANT TO SUBSECTION (F) OF THIS SECTION; * * *"

YOUR OPINION IS REQUESTED AS TO WHETHER OR NOT THE 10 PERCENT ADDITIONAL COMPENSATION AUTHORIZED UNDER S.J. RES. 170 IS TO BE CONSTRUED AS AN INCREASE IN COMPENSATION WITHIN THE MEANING OF THE ABOVE-CITED ACT OF AUGUST 1, 1941,"THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD * * *," PARTICULARLY IN VIEW OF THE FACT THAT THE 10 PERCENT ADDITIONAL COMPENSATION BENEFIT IS TEMPORARY IN CHARACTER; SECTION 4 OF S.J. RES. 170, READING:

"SEC. 4. THIS JOINT RESOLUTION SHALL TAKE EFFECT AS OF DECEMBER 1, 1942, AND SHALL TERMINATE ON APRIL 30, 1943, OR SUCH EARLIER DATE AS THE CONGRESS BY CONCURRENT RESOLUTION MAY PRESCRIBE.'

2. RE: EMPLOYEES OF THE HOUSE OF REPRESENTATIVES AND UNITED STATES SENATE RESTAURANTS:

(A) HOUSE RESTAURANT:

HOUSE RESOLUTION 590, 76TH CONGRESS, AGREED TO SEPTEMBER 5, 1940, PROVIDES IN PART:

"RESOLVED, THAT EFFECTIVE OCTOBER 1, 1940, UNTIL OTHERWISE ORDERED BY THE HOUSE, THE MANAGEMENT OF THE HOUSE RESTAURANT AND ALL MATTERS CONNECTED THEREWITH SHALL BE UNDER THE DIRECTION OF THE ARCHITECT OF THE UNITED STATES CAPITOL UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE FOR THE OPERATION AND THE EMPLOYMENT OF NECESSARY ASSISTANCE FOR THE CONDUCT OF SAID RESTAURANT BY SUCH BUSINESS METHODS AS MAY PRODUCE THE BEST RESULTS CONSISTENT WITH ECONOMICAL AND MODERN MANAGEMENT. * * *"

SECTION 208 OF THE " FIRST SUPPLEMENTAL CIVIL FUNCTIONS APPROPRIATION ACT, 1941," APPROVED OCTOBER 9, 1940 (54 STAT. 1056) PROVIDES IN PART:

"SEC. 208. (A) THE ARCHITECT OF THE CAPITOL IS HEREBY AUTHORIZED AND DIRECTED TO CARRY INTO EFFECT FOR THE HOUSE OF REPRESENTATIVES, AND TO EXERCISE THE AUTHORITIES CONTAINED IN, THE RESOLUTION OF THE HOUSE OF REPRESENTATIVES NUMBERED 590, ADOPTED SEPTEMBER 5, 1940, AND ANY OTHER RESOLUTION OF SUCH HOUSE AMENDATORY THEREOF OR SUPPLEMENTARY THERETO HEREAFTER ADOPTED. SUCH AUTHORITY AND DIRECTION SHALL CONTINUE UNTIL THE HOUSE OF REPRESENTATIVES SHALL BY RESOLUTION OTHERWISE ORDER.'

THE COMPTROLLER GENERAL IN DECISION B-15712, APRIL 14, 1941, STATED IN PART:

"AS TO THE QUESTION PRESENTED RELATIVE TO THE STATUS OF THE RESTAURANT EMPLOYEES, IT IS NOTED THAT SECTION 208 (A) OF THE ACT OF OCTOBER 9, 1940, SUPRA, EXPRESSLY PROVIDES THAT THE ARCHITECT OF THE CAPITOL IS TO OPERATE THE RESTAURANT "FOR THE HOUSE OF REPRESENTATIVES" AND THAT, UNDER SECTION 208 (B), APPROPRIATIONS FOR SUCH RESTAURANT ARE TO BE A PART OF THE APPROPRIATION " CONTINGENT EXPENSES, HOUSE OF REPRESENTATIVES.' THE TRANSFER OF THE OPERATION AND CONTROL OF THE RESTAURANT FROM THE COMMITTEE ON ACCOUNTS OF THE HOUSE OF REPRESENTATIVES TO THE ARCHITECT OF THE CAPITOL DID NOT OPERATE TO MAKE THE RESTAURANT AN ACTIVITY OR FUNCTION OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL, BUT LEFT IT AS AN ACTIVITY OR FUNCTION OF THE HOUSE OF REPRESENTATIVES, THE ARCHITECT OF THE CAPITOL BEING MERELY THE AGENT OR MEANS THROUGH WHICH THE RESTAURANT IS OPERATED BY THAT BODY. THE SALARIES OR WAGES OF THE PERSONNEL OF THE RESTAURANT ARE PAID EITHER FROM RECEIPTS FROM THE OPERATION OF THE RESTAURANT, OR FROM FUNDS APPROPRIATED AS PART OF THE CONTINGENT EXPENSE APPROPRIATION OF THE HOUSE OF REPRESENTATIVES, OR FROM BOTH; AND ALL SUCH FUNDS WHETHER DERIVED FROM RECEIPTS OR FROM THE APPROPRIATION ARE PUBLIC MONEYS. WOULD SEEM CLEAR, THEREFORE, THAT THE PERSONNEL OF THE RESTAURANT ARE EMPLOYEES OF THE UNITED STATES IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT. * * *

" * * * FURTHERMORE, SINCE, AS HEREINBEFORE SHOWN, EMPLOYEES OF THE RESTAURANT AFTER SEPTEMBER 30, 1940, ARE IN THE SAME STATUS INSOFAR AS BEING EMPLOYEES OF THE HOUSE OF REPRESENTATIVES IS CONCERNED, AS WERE EMPLOYEES OF THE RESTAURANT PRIOR TO OCTOBER 1, 1940, IT IS NOT APPARENT WHY EMPLOYEES OF THE RESTAURANT AFTER SEPTEMBER 30, 1940, ARE NOT ENTITLED TO THE BENEFITS AND SUBJECT TO THE REQUIREMENTS OF THE RETIREMENT ACT APPLICABLE TO LEGISLATIVE EMPLOYEES TO THE SAME EXTENT AND SUBJECT TO THE SAME CONDITIONS AS WERE EMPLOYEES OF THE RESTAURANT PRIOR TO OCTOBER 1, 1940. * * *"

(B) SENATE RESTAURANTS:

PUBLIC LAW 709, 77TH CONGRESS, APPROVED SEPTEMBER 9, 1942, PROVIDES IN PART:

" * * * EFFECTIVE SEPTEMBER 15, 1942, THE MANAGEMENT OF THE SENATE RESTAURANTS AND ALL MATTERS CONNECTED THEREWITH, HERETOFORE UNDER THE DIRECTION OF THE SENATE COMMITTEE ON RULES, SHALL BE UNDER THE DIRECTION OF THE ARCHITECT OF THE CAPITOL UNDER SUCH RULES AND REGULATIONS AS THE ARCHITECT MAY PRESCRIBE FOR THE OPERATION AND THE EMPLOYMENT OF NECESSARY ASSISTANCE FOR THE CONDUCT OF SAID RESTAURANTS BY SUCH BUSINESS METHODS AS MAY PRODUCE THE BEST RESULTS CONSISTENT WITH ECONOMICAL AND MODERN MANAGEMENT, SUBJECT TO THE APPROVAL OF THE SENATE COMMITTEE ON RULES AS TO MATTERS OF GENERAL POLICY: PROVIDED, THAT THE MANAGEMENT OF THE SENATE RESTAURANTS BY THE ARCHITECT OF THE CAPITOL SHALL CEASE AND THE RESTAURANTS REVERT FROM THE JURISDICTION OF THE ARCHITECT OF THE CAPITOL TO THE JURISDICTION OF THE SENATE COMMITTEE ON RULES UPON ADOPTION BY THAT COMMITTEE OF A RESOLUTION ORDERING SUCH TRANSFER OF JURISDICTION AT ANY TIME HEREAFTER.

"SEC. 2 * * *.

"SEC. 3. THE ARCHITECT OF THE CAPITOL IS HEREBY AUTHORIZED AND DIRECTED TO CARRY INTO EFFECT FOR THE UNITED STATES SENATE THE PROVISIONS OF THIS ACT AND TO EXERCISE THE AUTHORITIES CONTAINED HEREIN, AND ANY RESOLUTION OF THE SENATE AMENDATORY HEREOF OR SUPPLEMENTARY HERETO HEREAFTER ADOPTED. SUCH AUTHORITY AND DIRECTION SHALL CONTINUE UNTIL THE UNITED STATES SENATE SHALL BY RESOLUTION OTHERWISE ORDER, OR UNTIL THE SENATE COMMITTEE ON RULES SHALL BY RESOLUTION ORDER THE RESTAURANTS TO BE RETURNED TO THE COMMITTEE'S JURISDICTION.

"SEC. 4 * * *.

"SEC. 5 * * *.

"SEC. 6 * * *.

"SEC. 7. THIS ACT SHALL SUPERSEDE ANY OTHER ACTS OR RESOLUTIONS HERETOFORE APPROVED FOR THE MAINTENANCE AND OPERATION OF THE SENATE RESTAURANTS: PROVIDED, HOWEVER, THAT ANY ACTS OR RESOLUTIONS NOW IN EFFECT SHALL AGAIN BECOME EFFECTIVE, SHOULD THE RESTAURANTS AT ANY FUTURE TIME REVERT TO THE JURISDICTION OF THE SENATE COMMITTEE ON RULES.'

YOUR OPINION IS FURTHER REQUESTED AS TO WHETHER THIS OFFICE IS CORRECT IN ITS INTERPRETATION THAT ALL EMPLOYEES OF THE HOUSE OF REPRESENTATIVES AND UNITED STATES SENATE RESTAURANTS ARE TO BE GRANTED THE 10 PERCENT ADDITIONAL COMPENSATION AUTHORIZED BY S.J. RESOLUTION 170.

YOUR EARLY ADVICE IN THESE MATTERS WILL BE APPRECIATED.

PUBLIC LAW 821, APPROVED DECEMBER 22, 1942, 56 STAT. 1068 ( SENATE JOINT RESOLUTION 170), EXPRESSLY EXCEPTS EMPLOYEES IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT FROM THOSE PROVISIONS OF THE RESOLUTION RELATING TO THE PAYMENT OF OVERTIME COMPENSATION BUT IT EXPRESSLY INCLUDES EMPLOYEES IN OR UNDER THE LEGISLATIVE BRANCH OF THE GOVERNMENT WITHIN THOSE PROVISIONS OF THE RESOLUTION REQUIRING PAYMENT OF ADDITIONAL COMPENSATION ON A 10 PERCENTUM BASIS IN LIEU OF THE OVERTIME COMPENSATION, SUBJECT TO THE SALARY LIMITATIONS OR CEILING RATES OF $2,900 AND $5,000 PER ANNUM THEREIN FIXED. BASED UPON THE LAWS AND DECISIONS CITED IN YOUR LETTER, IT IS CONCLUDED THAT THE OFFICE OF THE ARCHITECT OF THE CAPITOL IS IN OR UNDER THE LEGISLATIVE BRANCH OF THE GOVERNMENT; AND IT WOULD FOLLOW THAT ALL OF THE EMPLOYEES IN OR UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL, INCLUDING EMPLOYEES OF THE HOUSE OF REPRESENTATIVES AND UNITED STATES SENATE RESTAURANTS, AND REGARDLESS OF THE BASIS UPON WHICH THEIR COMPENSATION IS COMPUTED--- PER HOUR, PER DAY, OR PER ANNUM--- AND, ALSO, REGARDLESS OF THE NUMBER OF HOURS PER WEEK THEY ARE REQUIRED TO WORK, ARE PROPERLY FOR REGARDING AS IN OR UNDER THE LEGISLATIVE BRANCH OF THE GOVERNMENT WITHIN THE MEANING OF PUBLIC LAW 821. THE VIEW THAT SUCH EMPLOYEES ARE IN OR UNDER THE LEGISLATIVE BRANCH OF THE GOVERNMENT IS STRENGTHENED BY THE FACT THAT THE CONGRESS FOUND IT NECESSARY TO ENACT SPECIAL LEGISLATION (ACT OF JUNE 20, 1929, 46 STAT. 38) IN ORDER TO BRING CERTAIN EMPLOYEES IN THE OFFICE OF THE ARCHITECT OF THE CAPITOL WITHIN THE PURVIEW OF THE CLASSIFICATION ACT.

OF COURSE, IT WAS CLEARLY THE PURPOSE AND INTENT OF THE CONGRESS THAT NO EMPLOYEE IS ENTITLED TO RECEIVE, BY REASON OF SAID RESOLUTION, BOTH OVERTIME COMPENSATION AND ADDITIONAL COMPENSATION ON A 10 PERCENTUM BASIS. SEE PAGE 9932 OF THE CONGRESSIONAL RECORD FOR DECEMBER 15, 1942. THE PAYMENT OF ADDITIONAL COMPENSATION ON A 10 PERCENTUM BASIS AUTHORIZED BY THE NEW STATUTE IS IN NOWISE CONDITIONED UPON THE RENDITION OF OVERTIME SERVICE--- SUCH ADDITIONAL COMPENSATION BEING EXPRESSLY STATED IN THE STATUTE AS "IN LIEU OF THE OVERTIME COMPENSATION AUTHORIZED HEREIN.' HENCE, NO EMPLOYEE OF THE ARCHITECT OF THE CAPITOL IS REQUIRED TO WORK ADDITIONAL HOURS IN ORDER TO RECEIVE THE ADDITIONAL COMPENSATION ON A 10 PERCENTUM BASIS. OF COURSE, PER ANNUM EMPLOYEES MAY, WITHIN ADMINISTRATIVE DISCRETION, BE REQUIRED TO WORK ADDITIONAL HOURS WITHOUT REGARD TO PUBLIC LAW 821; AND THE SAME WOULD BE TRUE OF EMPLOYEES PAID ON ANY OTHER BASIS PROVIDED THEIR HOURS OF LABOR ARE NOT REGULATED BY A LAW WHICH HAS NOT BEEN SUSPENDED.

IN VIEW OF WHAT IS STATED ABOVE, IT IS UNNECESSARY TO CONSIDER HEREIN WHETHER THE ARCHITECT OF THE CAPITOL IS, OR IS NOT, A "SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE" AS "WAGE BOARDS" WITHIN THE MEANING OF EXCEPTION (A) OF THE FIRST PROVISO OF THE STATUTE.

IN DETERMINING THE SALARY LIMITATIONS OR CEILING RATES OF $2,900 AND $5,000 PER ANNUM FOR EMPLOYEES WHO ARE PAID ON A PER DIEM OR PER HOUR BASIS RATHER THAN ON A PER ANNUM BASIS, FOR FULL TIME, INTERMITTENT OR PART TIME SERVICE, IT IS NECESSARY TO COMPUTE THE PER ANNUM EQUIVALENT OF THE DAILY OR HOURLY RATES OF THE EMPLOYEES. IN THAT CONNECTION, REFERENCE IS MADE TO DECISION OF AUGUST 22, 1941, 21 COMP. GEN. 165, 166, WHEREIN IT WAS STATED:

IT HAS BEEN HELD GENERALLY THAT IN THE ABSENCE OF A STATUTE OTHERWISE PROVIDING THE PER ANNUM EQUIVALENT OF A PER DIEM RATE OF COMPENSATION IS COMPUTED ON THE BASIS OF THE NUMBER OF DAYS OF THE YEAR FOR WHICH THE EMPLOYEES RECEIVE THEIR REGULAR PAY. 8 COMP. GEN. 261; 11 ID. 217; ID. 362; 12 ID. 11; ID. 271; 13 ID. 167; 15 ID. 305; 16 ID. 1010; 18 ID. 768.

THE SYLLABUS OF THE DECISION READS:

IN CREATING ADDITIONAL POSITIONS UNDER THE PROVISION IN THE NAVAL APPROPRIATION ACT, FISCAL YEAR 1942, PROHIBITING THE USE OF APPROPRIATIONS REFERRED TO THEREIN FOR ADDITIONAL POSITIONS AT SALARY RATES IN EXCESS OF $5,000 PER ANNUM, THE NAVY DEPARTMENT MAY COMPUTE THE PER DIEM SALARY EQUIVALENT OF THE PER ANNUM RATE OF $5,000, FOR POSITIONS IN WHICH THE EMPLOYEES ARE SUBJECT TO THE 40-HOUR WEEK LAWS AND FOR WHICH THE REGULAR TOUR OF DUTY IS FIXED ADMINISTRATIVELY AT 5 DAYS PER WEEK WITH 2 NONWORK DAYS FOR WHICH NO COMPENSATION IS PAID EXCEPT FOR OVERTIME SERVICES, BY DIVIDING $5,000 BY 261 (365 LESS 104 (52 BY 2) ( DAYS FOR THE YEAR, BUT IF THE NUMBER OF WORK DAYS PER WEEK IS INCREASED OR DECREASED THE DIVISOR SHOULD BE INCREASED OR DECREASED ACCORDINGLY.

ACCORDINGLY, IN LINE WITH SAID DECISION, IT IS HELD THAT IN APPLYING THE SALARY LIMITATIONS OR CEILING RATES OF $2,900 AND $5,000 PER ANNUM FOR EMPLOYEES WHO ARE PAID COMPENSATION ON A PER DIEM OR PER HOUR BASIS, RATHER THAN ON A PER ANNUM BASIS FOR FULL TIME, INTERMITTENT, OR PART TIME SERVICE, THE PER DIEM SALARY LIMITATIONS OR CEILING RATES MAY BE COMPUTED BY DIVIDING THE RATES OF $2,900 AND $5,000 PER ANNUM BY THE NUMBER OF DAYS DURING THE YEAR FOR WHICH THE EMPLOYEES RECEIVE THEIR COMPENSATION. THAT IS TO SAY: (1) IF THE EMPLOYEES RECEIVE COMPENSATION FOR EVERY DAY OF THE YEAR, INCLUDING NATIONAL HOLIDAYS BUT EXCEPTING SUNDAYS, THE DIVISOR FOR COMPUTING ONE DAY'S SALARY LIMITATION OR CEILING RATE WOULD BE 313 (365 LESS 52); (2) IF THE EMPLOYEES WORK AND ARE PAID FOR ONLY FIVE DAYS PER WEEK, THE DIVISOR WOULD BE 261 (365 LESS 104); AND (3) IF THE EMPLOYEES WORK AND ARE PAID FOR FIVE AND ONE-HALF DAYS PER WEEK, THE DIVISOR WOULD BE 287 (365 LESS 78). THUS, THE 10 PERCENTUM WOULD BE COMPUTED ON THAT PART OF A DAILY RATE NOT TO EXCEED (1 ABOVE) $9.26, PROVIDED THE ADDITIONAL COMPENSATION DOES NOT CAUSE THE DAILY RATE TO EXCEED $17.42. THE SALARY LIMITATIONS OR CEILING RATES ON AN HOURLY BASIS WOULD BE COMPUTED BY DIVIDING THE DAILY SALARY LIMITATION OR CEILING RATE BY THE NUMBER OF HOURS THE EMPLOYEES ARE REGULARLY REQUIRED TO WORK EACH DAY, USUALLY EIGHT. 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 PERCENTUM 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. THERE IS NO PURPOSE OR INTENT SHOWN EITHER IN THE STATUTE OR IN ITS LEGISLATIVE HISTORY TO AFFECT IN ANY MANNER THE OPERATION OF THE WITHIN GRADE SALARY ADVANCEMENT PLAN PRESCRIBED BY THE ACT OF AUGUST 1, 1941, FOR EMPLOYEES FALLING WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, AS AMENDED. THE ACT OF AUGUST 1, 1941, OPERATES UPON THE BASE PAY, WHEREAS THE OVERTIME OR ADDITIONAL COMPENSATION AUTHORIZED OR REQUIRED TO BE PAID BY PUBLIC LAW 821 IS IN ADDITION TO BASE PAY. IT IS CONCLUDED, THEREFORE, THAT THE PAYMENT OF THE OVERTIME OR ADDITIONAL COMPENSATION WILL CONSTITUTE AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF SECTION 7 (B) (1) OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 1, 1941, 55 STAT. 613. COMPARE 21 COMP. GEN. 478; ID. 947, 953.