B-131457, NOV. 14, 1962

B-131457, NOV. 14, 1962

TO MR. THEODORE SPECTOR:

YOUR LETTERS OF SEPTEMBER 25 AND 26, 1962, REFER FURTHER TO YOUR EMPLOYMENT CONTRACTS FOR PERSONAL SERVICES WITH THE DEPARTMENT OF THE NAVY DURING THE PERIOD JULY 16, 1959, TO JUNE 30, 1961, UNDER WHICH YOU CLAIM COMPENSATION FOR HOLIDAYS ALTHOUGH YOU PERFORMED NO SERVICES ON THOSE DAYS. YOUR LETTER OF SEPTEMBER 25 IN THAT REGARD, READS AS FOLLOWS:

"YOUR LETTER STATES THAT PROVISIONS COULD BE INCORPORATED IN CONTRACTS FOR HOLIDAY COMPENSATION, ALTHOUGH NO SERVICE WAS TO BE PERFORMED.

"HOWEVER, NAVY REGULATIONS PREVENTED SUCH A PROVISION IN CONTRACTS. ALTHOUGH SUCH A PROVISION WAS INSERTED AND APPROVED BY THE COUNSEL FOR THE BUREAU OF WEAPONS AND THE GENERAL COUNSEL OF NAVY, SUCH A PROVISION WAS EXCLUDED. IT SHOULD BE OBSERVED THE NCPI SEC. 306.3-5 PROVIDES THAT IT IS THE POLICY OF NAVY NOT TO PAY FOR HOLIDAYS. THUS, IT IS NOT POSSIBLE TO INCORPORATE A PROVISION FOR SUCH COMPENSATION WHICH WOULD BE CONSISTENT WITH EXISTING LAW AND THE DECISIONS OF THE COMPTROLLER GENERAL. IT IS A VETO OF SUCH LEGISLATION BY AN ARBITRARY AND IMPROPER REGULATION NOT AUTHORIZED BY LAW.

"YOUR DECISIONS STATE THAT COMPENSATION IS PERMITTED, ALTHOUGH NO SERVICE WAS TO BE PERFORMED. THE REGULATION STATES THAT NO COMPENSATION IS PERMITTED UNLESS WORK IS ACTUALLY PERFORMED ON SUCH HOLIDAYS. SEE ALSO YOUR SETTLEMENT CERTIFICATE DATED JULY 9, 1962, WHICH REFERS TO THIS PROVISION TO SUPPORT A DENIAL OF MY CLAIM. THAT PROVISION IS CONTRARY TO THE DECISIONS OF THE COMPTROLLER GENERAL.

"IN THE CIRCUMSTANCES AND SINCE NAVY DOES NOT INCLUDE SUCH CLAUSES BECAUSE OF ITS POLICY, WE ARE CONFRONTED BY SEPARATE LAWS FOR EVERY AGENCY WHICH MAKES FOR THE UNEQUAL APPLICATION OF THE LAW AND THE REGULATION OF NAVY IS THEREFORE VOID.'

IN VIEW OF THE MATTERS QUOTED ABOVE YOU ASK THAT WE RECONSIDER OUR DECISION OF SEPTEMBER 19, 1962, TO YOU, AFFIRMING OUR OFFICE SETTLEMENT OF JULY 9, 1962, DISALLOWING YOUR CLAIM.

THE APPLICABLE NAVY CIVILIAN PERSONNEL REGULATIONS (35.3-5, COMPENSATION, DATED JUNE 20, 1958, COVER SHEET 760, AS AMENDED BY COVER SHEET 836, DATED DECEMBER 22, 1959) PROVIDE AS FOLLOWS:

"A FULL DAY'S BASIC PAY WILL BE PAID FOR NOT LESS THAN EIGHT HOURS OF SERVICE. PAYMENT IS MADE FOR DAYS WORKED OR FOR DAYS CHARGED TO LEAVE WITH PAY; SUNDAYS OR OTHER DAYS ON WHICH NO SERVICES ARE PERFORMED ARE EXCLUDED. THE GENERAL POLICY IS NOT TO PAY FULL-TIME CONTRACT EMPLOYEES FOR HOLIDAYS WITHIN THE REGULAR TOUR OF DUTY UNLESS WORK IS ACTUALLY PERFORMED. HOWEVER, IF JUSTIFIED, EXCEPTIONS MAY BE GRANTED AND IN SUCH CASES FULL-TIME EMPLOYEES MAY BE PAID FOR HOLIDAYS WHERE A PROVISION ENTITLING CONTRACTORS THERETO IS INCORPORATED IN THE CONTRACT (28 COMP. GEN. 727, B-56009 OF 22 JUNE 1949), AND EXCEPTION IS APPROVED BY THE SECRETARY OF THE NAVY.'

THAT REGULATION IS IN CONFORMITY WITH OUR DECISION 28 COMP. GEN. 727, WHEREIN WE HELD THAT IT IS PERMISSIVE TO INCLUDE IN CONTRACTS WITH EXPERTS AND CONSULTANTS EMPLOYED UNDER AUTHORITY IN SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 55A, A PROVISION FOR PAYMENT FOR HOLIDAYS. NEITHER UNDER OUR DECISION NOR THE APPLICABLE REGULATIONS OF THE DEPARTMENT OF THE NAVY IS IT MANDATORY TO INCLUDE SUCH A PROVISION.

THE REPORT OF THE DEPARTMENT OF THE NAVY AND AN EXAMINATION OF THE CONTRACTS IN YOUR CASE SHOW THAT NO SUCH PROVISION WAS INCLUDED IN THE TERMS OF THE AGREEMENTS FOR YOUR EMPLOYMENT.

WE FIND NO CONFLICT OF LAW AS SUGGESTED BY YOU SINCE THE DEPARTMENT OF THE NAVY MERELY DECLINED TO USE THE PERMISSIVE AUTHORITY WITH WHICH OUR DECISION RULED IT WAS VESTED.

IN VIEW OF THE FOREGOING THERE IS NO LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIM AND OUR DECISION OF SEPTEMBER 19 AND THE SETTLEMENT OF JULY 9, 1962, MUST BE SUSTAINED.