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Both employees performed the same hours of labor under the same conditions, one employee relieving the other when necessary in driving the prime mover and hauling the 90 m/m mount. Any decision governing the amount due Mr. Boyns will also apply to Mr. Carr. It would be appreciated if prompt decision were furnished as other drivers have performed duty subsequent to that performed by Mr. Boyns and Mr. Carr under travel orders dated October 24, 1941, and under similar conditions.

11. The travel order dated October 24 was furnished Mr. Boyns in order that he might be compensated for the additional expense involved for meals and lodging while away from his post of duty.

12. The question presented for a decision is whether this arsenal is authorized to pay truck drivers for the total time that a truck is being operated away from this station, computing pay at the rate of time and one-half in excess of 40 hours.

13. Mr. Boyns was paid the sum of $20 per diem allowance in accordance with paragraph 4 of the travel order dated Oct. 24, 1941. This is in addition to his pay in the amount of $86.03 as shown in paragraph 8 of this communication.

There is for consideration, also, third indorsement dated January 12, 1942, from the Chief of Ordnance, Washington, to the Chief of Finance, as follows:

1. It is recommended that this matter be referred to the Comptroller General for decision as requested in letter of November 12, 1941, from the Finance Officer at Watertown Arsenal to the General Accounting Office, in order that a precedent may be established and the decision published.

2. In addition to the information furnished by the Commanding Officer of Watertown Arsenal in Inclosure 2, the following information is furnished:

a. Under authority of the Secretary of War, the Ordnance Department, following the enactment into law of the provisions of Section 23 of the Act of March 28, 1934, placed practically all employees in its field service on a five-day week, of forty hours. Under date of May 13, 1941, the Ordnance Department, by administrative action, established the 40-hour weekly tour of duty for its field employees coming under the provisions of the forty-hour week statute to be from Monday through Friday, with Saturday and Sunday as nonwork days. See paragraphs 2 and 2a of letter of May 13, 1941, from the Chief of Ordnance to all Ordnance establishments, Subject: Tour of Duty, added as Inclosure 2 herewith. The work week at Watertown Arsenal, for pay purposes, is measured from 12:01 a. m. on Saturday through midnight the following Friday.

b. Rates of pay for all positions in the field service of the Ordnance Department not graded under the Classification Act of 1923, as amended, are estab. lished, based upon the findings of wage boards, which are appointed and conduct (See Inclosure 3.) wage surveys in accordance with Section XIV, Civilian Personnel Regulations for the Ordnance Department at Large, Pamphlet 1294, which have been approved by the Secretary of War and the Civil Service Commission.

c. With specific reference to paragraph 2 of Inclosure 2 (File O. O. 230.45/335) and to decision of the Comptroller General, B-11394, dated July 30, 1940, it is advised that the position of Truck Driver, Heavy Duty, was added to the list of positions for the Ordnance Department at Large not graded under the Classifi cation Act, as contained in paragraph 3 of Civilian Personnel Regulations, 1294-2, with the approval of the Civil Service Commission and the Secretary of War (see Inclosures 4, 5, and 6) after the Secretary of War had found that drivers of heavy-duty trucks in the field service of the War Department were performing duties not comparable to those performed by employees in the depart mental service whose positions are classified under the provisions of the Classifi cation Act of 1923, as amended.

The change in status of Mr. Albert E. Boyns from Senior Chauffeur, CU-3, $1,440 per annum, to the designation Truck Driver, Heavy Duty, at the rate of $8.16 per diem, for day work, and $8.88 per diem, for night work, was effected on October 4, 1941, by the Commanding Officer under authority delegated by the Secretary of War and the Civil Service Commission to the Chief of Ordnance and, in turn, delegated by him to Commanding Officers of Ordnance field stations. d. With reference to page 7 of Decision of Comptroller General, B-21237, dated November 3, 1941, overtime compensation for the "employment" of Mr. Boyns in excess of 40 hours during the administrative work week, October 25 to October 31, both dates inclusive, is computed on the attached voucher, Inclosure 3, at one and one-half times his regular rate under the provisions of the Act of

October 21, 1940, Public, No. 873, 76th Congress, and the authority of the Secretary of War dated November 20, 1940.

Section 2 of War Department Personnel Regulations No. 1294-14 dated October 15, 1936, is as follows:

2. DETERMINATION OF RATES OF PAY, UNGRADED EMPLOYEES.-Rates of pay for employees not graded under the Classification Act shall be determined by comparison with the prevailing rates paid for similar services in the vicinity, subject to limitations imposed by Section 23, act of March 28, 1934. These rates shall be determined by wage surveys conducted in the manner prescribed hereinafter. Rates for employees of the Ordnance Department resulting from wage surveys shall be established only with prior approval of the Chief of Ordnance. None of the rates so established shall be changed without prior approval of the Chief of Ordnance, and no rate which has not been authorized by the Chief of Ordnance shall be used for the pay of any ungraded employee. It shall be the duty of the commanding officer of each Ordnance establishment and the officer in charge of each Ordnance Office having ungraded employees, to keep personally in touch at all times with the industrial and wage situation in the vicinity, and to initiate formal survey of wages whenever in his judgment conditions warrant such action. *

War Department Personnel Regulations No. 1294-2 for the Ordnance Department, dated April 1, 1941, contains the following pertinent provisions:

2. Positions graded under the Classification Act, March 4, 1923, as amended by acts of May 28, 1928, and July 3, 1930. Under Decision of Comptroller General, A-64239, August 12, 1935, the Classification Act, as amended, applies to the positions of the Ordnance Department listed below in Schedule A, Professional and Scientific Service; Schedule B, Subprofessional Service; Schedule C, Clerical, Administrative, and Fiscal Service; and Schedule D, Custodial Service. For each service the authorized grades, with corresponding compensation ranges, and the authorized designations of positions are shown. Figures in parenthesis after each designated series show the retirement age for the positions of the series.

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3. Schedule E.-Classified positions not graded under Classification Act, as amended.

(Truck drivers, heavy duty, were not then included under this schedule.) By letter dated September 3, 1941, the Civil Service Commission advised the Secretary of War as follows:

In compliance with the request in the first indorsement of the Director of Personnel (CP 230.051) of August 29, 1941, upon the recommendation of the Active Chief of Ordnance of August 22, 1941, the Commission concurs with the Department in approving amendment of Section II of the Civil Service Regulations for the Ordnance Department at Large by inserting the following in paragraph 3: "Truck Driver, Heavy Duty (65):

Duties: Operating heavy duty trucks or truck-trailer combinations, or other trucks carrying special equipment, not light delivery trucks; making necessary minor repairs and adjustments."

Also, pertinent to the matter here submitted is Circular Letter

470350m-42-48

dated September 15, 1941, from the Office of the Chief of Ordnance to all Ordnance Establishments, as follows:

1. The designation Truck Driver, Heavy Duty, has been included in schedule E, CPR 1294-2, as a position authorized for use at Ordnance field stations. It will be noted that the description of duties provides for operators of heavy duty trucks or truck-trailer combinations, or trucks carrying special equipment, other than light delivery trucks.

2. The designations Chauffeur, CU-3, or Senior Chauffeur, CU-4, should be used, as at present, for positions involving the operation of pasesnger vehicles or of light delivery trucks.

3. Care must be exercised to distinguish between the two types of positions as the position of chauffeur is included in the graded service under the Classification Act of 1923, as amended. To avoid a suspension of accounts by the General Accounting Office, a clear line of demarcation must be drawn between the designation of Chauffeur and that of Truck Driver, Heavy Duty.

The authority to classify field positions under the War Department is vested by section 2 of the Brookhart Salary Act of July 3, 1930, 46 Stat. 1005, in the Secretary of War, subject to the rules stated in the decisions of this office. See decision of January 8, 1942, B-22862, 21 Comp. Gen. 649. In decision of January 6, 1932, 11 Comp. Gen. 259, it was held as follows (quoting the first paragraph of the syllabus):

The test for determining whether a field position is subject to the principles of classification under the terms of section 2 of the Brookhart Salary Act of July 3, 1930, 46 Stat. 1005, is the action taken by the Personnel Classification Board as to the same or similar position in the departmental service in the District of Columbia.

See, also, 10 Comp. Gen. 519, 521; 15 id. 128; 18 id. 796.

Heretofore, it has been the understanding of this office that the position of truck driver in the departmental service, including drivers of heavy duty trucks, was required by the Civil Service Commission to be classed as chauffeur and included within the purview of the Classification Act, and on that basis this office has required that the corresponding positions in the field service be classified by the administrative office under the terms of the Classification Act. See decision of January 18, 1941, 20 Comp. Gen. 392, 398, wherein it was stated:

There is noted the statement in the second paragraph of your letter, that "All of the above employees are outside the Classification Act of 1923, as amended, since their duties are not covered in any classification established therein." Regarding the position of truck driver, this office held in decision of July 30, 1940, B-11394, as follows:

"The Civil Service Commission advised this office informally that drivers of heavy-duty trucks have been classified for many agencies in the departmental service; for example, drivers of fuel trucks for the Procurement Division, Treasury Department-the classification in each instance being grade 3 of the custodial service. If such be found to be the fact, and the truck drivers be found comparable to those whose positions have been classified in the departmental service, you are advised that, in line with the decision, supra, and by virtue of the provisions of section 2 of the Brookhart Salary Act of July 3, 1930, 46 Stat. 1005, the position of truck driver in the field service should be classified by the administrative office in the appropriate grade." Compare 11 Comp. Gen. 259 and decision of August 18, 1938, A-95910, involving the related position of chauffeur. Accordingly, unless and until the exception of truck driver from the terms of the Classification Act is made by competent

authority, employees in such occupation may not be regarded as within the terms of the 40-hour week statute.

In view of the action of the Secretary of War, dated October 4, 1941, under the authority vested in him by the Brookhart Salary Act, supra, based upon the advisory opinion of the Civil Service Commission, above quoted, this office is not required to object to the elimination of the position of truck driver, heavy duty, in the field service of the Ordnance branch of the War Department from the purview of the Classification Act and the inclusion of such position under the 40-hour week statute of October 21, 1940, 54 Stat. 1205, pursuant to which it is proposed to pay overtime compensation in this case, said statute providing as follows:

That notwithstanding the provisions of any other law, compensation for employment in excess of forty hours in any administrative workweek computed at a rate not less than one and one-half times the regular rate is hereby authorized to be paid at such places and to such monthly, per diem, hourly, and piecework employees of the field services of the War Department and the field services of the Panama Canal whose wages are set by wage boards or other wage fixing authorities, and also to professional and subprofessional employees, and to blueprinters, photostat and rotoprint operators, inspectors, storekeepers, toolkeepers, and shop superintendents of the CAF service, as defined by the Classification Act of March 4, 1923 (42 Stat. 1488; 5 U. S. C. ch. 13), as amended, as shall be designated from time to time by the Secretary of War or the Governor of the Panama Canal, as the case may be, and the Secretary of War and the Governor of the Panama Canal are authorized to prescribe for their respective services, regulations for overtime employment for said employees or any of them: Provided, That in determining the overtime compensation of the foregoing per annum Government employees the pay for one day shall be considered to be one three-hundredand-sixtieth of their respective per annum salaries.

SEC. 2. The provisions of this Act shall be effective during the national emergency declared by the President on September 8, 1939, to exist, and shall terminate June 30, 1942, unless the Congress shall otherwise provide.

In the decision of November 3, 1941, B-21237, to Capt. Harvey Walker, referred to in the indorsement from the Chief of Ordnance, supra, it was stated:

While travel time of chauffeurs under circumstances such as here involved is legally susceptible of being regarded as "employment" within the meaning of the statute (compare 14 Comp. Gen. 907, holding that time spent in travel is not "labor" within the meaning of the 40-hour statute of 1934), there is no indication in the record transmitted to this office in the instant case that administrative action has been taken to bring chauffeurs or truck drivers within the purview of the act; that is, there is no evidence presented of an administratve determination that their "services are essential to and directly connected with the expeditious prosecution of the overtime work upon which the employees enumerated in section 1 of the Act of October 21, 1940, are engaged"; nor does it appear that their regular tour of duty has been fixed at 40 hours per week.

*

As it now appears that proper administrative action has been taken (1) to bring the position of truck driver, heavy duty, within the purview of the 40-hour week statute of October 21, 1940, supra, and (2) to fix a regular tour of duty of 40 hours per week, you are advised that payment of overtine compensation is authorized under the terms of the statute for "employment" while in the performance of the duties

of such position during travel time in excess of the regular tour of duty of 40 hours per week.

War Department circular letter dated May 13, 1941, addressed to all Ordnance Establishments, contains the following:

2. You are hereby directed to establish the forty-hour weekly tour of duty from Monday through Friday, with Saturday and Sunday as non-work days for all employees affected by the provisions of the forty hour week law, who are required to work five days a week, Monday through Friday, or six days a week, Monday through Saturday. This directive affects the tour of duty only and shall not be considered as disturbing your existing practice concerning the present work week whether it be now measured from 12:01 A. M. on Saturday through midnight the following Friday, or from 12:01 A. M. on Monday through midnight the following Sunday for pay purposes.

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Referring to the computation of the total amount of compensation alleged to be due Albert E. Boyns for the week beginning Saturday, October 25, 1941, and ending Friday, October 31, 1941, appearing in the letter from the commanding officer of the Watertown Arsenal, above quoted, it is noted that the regular rate of compensation has been computed for the first 40 hours of work performed during the week both within and without the employee's regular tour of duty from Monday through Friday, inclusive (presumably 8 hours each day), and overtime compensation has been computed for the work performed during the remainder of the week both within and without the employee's regular tour of duty.

In decision of December 30, 1938, 18 Comp. Gen. 575, 578, it was stated:

As stated in the decision of April 6, 1934, supra, while overtime compensation may not be computed on a daily basis, the proper procedure under the 40-hour week statute for computing regular and overtime compensation for any week is not to regard the first 40 hours of the week in a pay status as the work week of the employee for whom a regular tour of duty has been administratively fixed-in this case from Monday to Friday, inclusive-but to regard the entire tour of duty of the employee as the work week. On that basis the employee should be paid his regular rate of compensation for the 5 days comprising his regular work week if in a pay status-actually working, on leave of absence with pay, or idle because of a holiday occurring on any of his regular work days-for an aggregate of 40 hours during such week. For any time actually worked during the week in addition to the 40 hours thus computed, the employee is entitled under the law to compensation at the overtime rate of time and one-half regardless of the day of the week on which the overtime work is performed. Under that procedure overtime compensation would not be for paying for time not actually worked-regular time, only, being authorized for leave with pay or holidays.

See, also, decision of March 25, 1911, 20 Comp. Gen. 555, 557, applying the same rule under the 40-hour week statute approved June 28, 1940, 54 Stat. 678, applicable to field employees of the Navy Department. Accordingly, the same rule is for application in computing the regular and overtime compensation for field employees of the War Department under the act of October 21, 1940, supra. The voucher in question should be recomputed in accordance with the stated rule. The voucher and supporting papers are returned herewith.

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