B-153107, JUN 22, 1971

B-153107, JUN 22, 1971

CIVILIAN EMPLOYEE - PREMIUM PAY - EARLY DISMISSAL DENYING CLAIM OF MR. STANCEL BURNS FOR AN ADDITIONAL 2 HOURS AND 45 MINUTES PREMIUM PAY BELIEVED DUE AS THE RESULT OF WORK PERFORMED ON A LEGAL HOLIDAY. ACTION ALLOWING AN UNSCHEDULED INTERRUPTION AND AN EARLY DISMISSAL FROM WORK ON A HOLIDAY THEREBY PREVENTING CLAIMANT FROM RECEIVING HOLIDAY PAY FOR A FULL 8-HOUR DAY WAS PROPER SINCE IT RESULTED FROM THE EXIGENCIES OF THE OPERATION BEING PERFORMED. SECTION 6101(A)(3) OF 5 U.S.C. SUBSECTION F, LIMITING BREAKS IN WORKING HOURS TO NOT MORE THAN ONE HOUR IN A BASIC WORKDAY DOES NOT HERE APPLY SINCE "A BASIC WORKDAY" IS NOT SYNONYMOUS WITH A HOLIDAY.

TO MR. STANCEL BURNS:

THIS WILL REFER TO YOUR LETTER OF DECEMBER 11, 1970, CONCERNING YOUR CLAIM FOR AN ADDITIONAL 2 HOURS AND 45 MINUTES HOLIDAY PREMIUM PAY TO WHICH YOU BELIEVE YOU ARE ENTITLED FOR WORK PERFORMED ON FRIDAY, MAY 29, 1970, A LEGAL HOLIDAY. WE REGRET THE DELAY IN RESPONDING TO YOUR CLAIM. HOWEVER, WE FOUND IT NECESSARY TO REQUEST A REPORT FROM THE FACILITY AT WHICH YOU ARE EMPLOYED IN ORDER TO REPLY FULLY AND THAT REPORT HAS ONLY RECENTLY BEEN RECEIVED.

THE RECORD SHOWS THAT YOU ARE EMPLOYED AS AN ENGINE MAN W-10, THIRD STEP, A POSITION THE COMPENSATION OF WHICH IS FIXED IN ACCORDANCE WITH THE PREVAILING RATES BY A WAGE BOARD OR SIMILAR ADMINISTRATIVE AUTHORITY. YOUR CLAIM FOR THE ADDITIONAL PREMIUM PAY IS BASED ON THE FACT THAT AFTER WORKING FROM 6:30 A.M. TO 11 A.M. YOU WERE DISMISSED FOR A 2-HOUR PERIOD AND AFTER RETURNING TO WORK AT 1 P.M. YOU WERE DISMISSED AT 3:15 P.M., 45 MINUTES PRIOR TO THE END OF YOUR REGULAR WORK SHIFT. YOU WERE PAID 8 HOURS REGULAR PAY FOR THE HOLIDAY; PREMIUM PAY AT YOUR REGULAR RATE FOR THE PERIODS 7:30 A.M. TO 11 A.M. AND 1 P.M. TO 3:15 P.M. WHICH YOU WORKED; AND OVERTIME PAY AT THE RATE OF 1 1/2 TIMES YOUR REGULAR RATE PLUS 1/2 HOUR THIRD SHIFT NIGHT DIFFERENTIAL PAY FOR THE HOUR BETWEEN 6:30 A.M. AND 7:30 A.M., THE LATTER TIME BEING THE BEGINNING OF YOUR REGULAR SHIFT.

THE REPORT WE HAVE RECEIVED FROM THE PEARL HARBOR NAVAL SUPPLY CENTER EXPLAINS THE REASON FOR THE OFF-DUTY INTERVAL BETWEEN 11 A.M. AND 1 P.M. AND THE EARLY DISMISSAL AS FOLLOWS:

"SUBJ: WORK ASSIGNMENTS FOR MR. STANCEL BURNS ON 29 MAY 1970

"1. PRIOR TO SECURING ON 28 MAY 1970, MR. STANCEL BURNS, MR. KANG & MR. OTHOLT WERE INSTRUCTED TO REPORT FOR DUTY AT 0630 HOURS ON 29 MAY 1970 (WHICH WAS A LEGAL HOLIDAY) TO REMOVE AND INSTALL BROWS ON SHIPS SCHEDULED TO ARRIVE AND DEPART. AS PER THE ATTACHED SCHEDULE, ALL THE WORK WAS COMPLETED EXCEPT THE ASSIGNMENT WHICH WAS SCHEDULED FOR 1045 AND WAS CANCELLED BECAUSE THE SHIP WAS NOT READY TO MOVE TO THE NEW LOCATION UNTIL 1300 HOURS.

"2. INASMUCH AS THIS WAS A HOLIDAY AND THE EMPLOYEE'S SERVICES COULD NOT BE UTILIZED TO PERFORM OTHER DUTIES, THEY WERE INSTRUCTED TO SECURE AT 1100 HOURS AND REPORT BACK AT 1300. THIS ASSIGNMENT WAS COMPLETED AT 1543 AND THEY SECURED AT 1545."

BASICALLY, IT IS YOUR CONTENTION THAT YOUR SUPERVISORS VIOLATED THE LAW AND NAVY DEPARTMENT REGULATIONS BY ALLOWING AN UNSCHEDULED INTERRUPTION AND A PREMATURE TERMINATION OF WORK ON A HOLIDAY, THEREBY PREVENTING YOU FROM RECEIVING HOLIDAY PREMIUM PAY FOR A FULL 8-HOUR SHIFT. YOU SAY THAT THE EXPLANATION FOR THIS GIVEN BY YOUR SUPERVISORS WAS THAT WORK ASSIGNMENTS ON A HOLIDAY ARE TO BE REGARDED THE SAME AS OVERTIME ASSIGNMENTS, DURING WHICH DISMISSALS SUCH AS GIVEN TO YOU WERE PROPER UNDER THE REGULATIONS. THE BASIS FOR THIS RATIONALE IS SAID TO BE THAT THE LAW PROVIDING FOR HOLIDAYS STATES THAT AN EMPLOYEE IS ENTITLED TO A MINIMUM OF 2 HOURS PAY IF HE IS CALLED IN TO WORK ON A HOLIDAY.

IN REGARD TO THE ADMINISTRATIVE EXPLANATION, WE WISH TO POINT OUT THAT THE STATUTE AUTHORIZING PAY FOR HOLIDAY AND HOLIDAY WORK (5 U.S.C. 5546) HAS LONG BEEN CONSTRUED TO PROVIDE PREMIUM COMPENSATION ONLY FOR HOURS - ABOVE THE MINIMUM OF 2 AND NOT EXCEEDING 8 - ACTUALLY WORKED ON A HOLIDAY. SEE B-148794, APRIL 12, 1965, COPY ENCLOSED.

APPARENTLY, YOU BASE YOUR CLAIM ON THE FOLLOWING PROVISIONS OF SUBSECTION 6101(A)(3) OF TITLE 5, UNITED STATES CODE:

"(3) EXCEPT WHEN THE HEAD OF AN EXECUTIVE AGENCY, A MILITARY DEPARTMENT, OR OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA DETERMINES THAT HIS ORGANIZATION WOULD BE SERIOUSLY HANDICAPPED IN CARRYING OUT ITS FUNCTIONS OR THAT COSTS WOULD BE SUBSTANTIALLY INCREASED, HE SHALL PROVIDE, WITH RESPECT TO EACH EMPLOYEE IN HIS ORGANIZATION, THAT -

"(A) ASSIGNMENTS TO TOURS OF DUTY ARE SCHEDULED IN ADVANCE OVER PERIODS OF NOT LESS THAN 1 WEEK;

"(B) THE BASIC 40-HOUR WORKWEEK IS SCHEDULED ON 5 DAYS, MONDAY THROUGH FRIDAY WHEN POSSIBLE, AND THE 2 DAYS OUTSIDE THE BASIC WORKWEEK ARE CONSECUTIVE;

"(C) THE WORKING HOURS IN EACH DAY IN THE BASIC WORKWEEK ARE THE SAME;

"(D) THE BASIC NONOVERTIME WORKDAY MAY NOT EXCEED 8 HOURS;

"(E) THE OCCURRENCE OF HOLIDAYS MAY NOT AFFECT THE DESIGNATION OF THE BASIC WORKWEEK; AND

"(F) BREAKS IN WORKING HOURS OF MORE THAN 1 HOUR MAY NOT BE SCHEDULED IN A BASIC WORKDAY."

SECTION 6101(A)(1) OF TITLE 5 PROVIDES THAT THIS (SUBSECTION (A)) DOES NOT APPLY TO AN EMPLOYEE EXCLUDED FROM THE DEFINITION OF EMPLOYEE IN SECTION 5541(2) OF TITLE 5 WHICH, IN EFFECT, SAYS THAT THE TERM "EMPLOYEE" DOES NOT APPLY TO ANY "EMPLOYEE WHOSE BASIC PAY IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES BY A WAGE BOARD OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE." HOWEVER, WE NOTE THAT BY REGULATION THE DEPARTMENT OF THE NAVY HAS APPLIED TO WAGE BOARD EMPLOYEES AS WELL AS GENERAL SCHEDULE WORKERS THE PROVISIONS QUOTED ABOVE. SEE APPENDIX A, CMMI 610.S1-A-1-B AND CMMI 610.S1-1F, NAVY DEPARTMENT CIVILIAN MANPOWER MANAGEMENT INSTRUCTIONS. IT IS TO BE NOTED THAT EACH OF THESE REGULATIONS IS EXCEPTED FROM APPLICATION IN SITUATIONS WHERE THE COMMANDING OFFICER OR HEAD OF AN ACTIVITY DETERMINES THAT THE ACTIVITY WOULD BE SEVERELY HANDICAPPED IN CARRYING OUT ITS MISSION, OR WHERE COSTS WOULD BE SUBSTANTIALLY INCREASED.

IT IS OUR UNDERSTANDING OF YOUR INTERPRETATION OF THE ABOVE-QUOTED PROVISIONS OF LAW THAT THE INCLUSION OF SUBSECTION (E) REQUIRES THE APPLICATION OF SUBSECTION (F) TO HOLIDAYS, THUS PROHIBITING BREAKS IN WORKING HOURS OF MORE THAN 1 HOUR ON HOLIDAYS AS WELL AS BASIC WORKDAYS.

WE WOULD POINT OUT THAT SUBSECTION (F) BY ITS TERMS APPLIES TO "A BASIC WORKDAY" WHICH IS NOT SYNONYMOUS WITH A HOLIDAY. WE ARE AWARE OF NO SPECIFIC LEGISLATION OR REGULATION GOVERNING INTERRUPTIONS OF WORK ON HOLIDAYS ON WHICH WORK IS PERFORMED SIMILAR TO SUBSECTION (F).

ON THE BASIS OF THE INFORMATION AVAILABLE TO US, OUR VIEW IS THAT THE ADMINISTRATIVE DISMISSALS ON THE HOLIDAY WHICH PRECLUDED PAYMENT OF HOLIDAY PREMIUM PAY FOR 2 HOURS AND 45 MINUTES IN THIS CASE WERE PROPER. THE INTERRUPTION OF WORK AND THE EARLY DISMISSAL APPEAR TO HAVE RESULTED FROM EXIGENCIES OF THE OPERATION BEING PERFORMED AND WERE NOT ORDERED FOR THE PURPOSE OF DEFEATING YOUR RIGHT TO HOLIDAY PREMIUM PAY. ACCORDINGLY, YOUR CLAIM FOR ADDITIONAL COMPENSATION MUST BE DENIED.