B-144304, NOV. 4, 1960

B-144304, NOV. 4, 1960

TO MR. JACK C. STOLLER:

ON OCTOBER 4, 1960, YOU REQUESTED REVIEW OF OUR SETTLEMENT OF AUGUST 2, 1960, WHICH DISALLOWED YOUR CLAIM FOR HOLIDAY PREMIUM PAY WHICH YOU CONTEND IS DUE YOU BECAUSE OF YOUR ATTENDANCE AT A TRAINING COURSE IN HAWAII FOR FOUR HOURS ON MARCH 12 AND FOR ALL DAY ON MARCH 13, 1959 -- A PERIOD DURING WHICH FEDERAL EMPLOYEES IN HAWAII WERE EXCUSED FROM DUTY BY THE PRESIDENT'S LETTER OF MARCH 12, 1959, IN RECOGNITION OF STATEHOOD FOR HAWAII.

ON THE MORNING OF MARCH 12, 1959, FINAL CONGRESSIONAL ACTION WAS TAKEN TO APPROVE THE HAWAII STATEHOOD ACT. ON THE SAME DAY, THE PRESIDENT BY THE LETTER REFERRED TO ABOVE EXCUSED FEDERAL EMPLOYEES IN HAWAII FROM THEIR DUTIES FOR THE REMAINING HOURS OF DUTY ON THURSDAY, MARCH 12 AND ALL DAY FRIDAY, MARCH 13, 1959, AND PROVIDED THAT SUCH PERIOD SHOULD BE REGARDED AS A HOLIDAY FOR LEAVE AND COMPENSATION PURPOSES. ON MARCH 12 AND 13, 1959, YOU WERE IN ATTENDANCE AT A SAFETY TRAINING COURSE SPONSORED BY THE FEDERAL SAFETY COUNCIL AND CONDUCTED BY A TECHNICIAN FROM THE DEPARTMENT OF LABOR.

IN REGARD TO WHAT TRANSPIRED IN YOUR TRAINING COURSE ON MARCH 12 AND 13, CONCERNING THE HOLIDAYS, WE QUOTED FROM FIRST ENDORSEMENT OF THE ASSISTANT CHIEF OF STAFF (ADMINISTRATION), DATED JUNE 9, 1960, AS FOLLOWS:

"D. UPON HIS RETURN TO WORK ON MONDAY, 16 MARCH 1959, STOLLER REPORTED TO HIS HEAD OF DEPARTMENT, CDR M. L. SCOTT, USN, INDUSTRIAL RELATIONS OFFICER, CONCERNING THE COURSE OF TRAINING WHICH HE HAD ATTENDED THE PREVIOUS WEEK. HE VOLUNTEERED INFORMATION TO THE EFFECT THAT THE INSTRUCTOR HAD INFORMED THE CLASS DURING THE AFTERNOON OF 12 MARCH THAT 13 MARCH WOULD BE A HOLIDAY AND THAT THEY NEED NOT ATTEND. HOWEVER, THEY WERE ENJOYING THE SUBJECT MATTER SO MUCH THAT BY COMMON CONSENT AND AGREEMENT THE ATTENDEES ASKED THE INSTRUCTOR TO COMPLETE THE COURSE. STOLLER, ALONG WITH A MAJORITY, IF NOT ALL THE OTHERS, VOLUNTARILY ATTENDED THE FINAL SESSION OF THE CLASS ON FRIDAY, 13 MARCH 1959. THUS, IT APPEARS THAT THE INSTRUCTOR, A FEDERAL EMPLOYEE ENTITLED TO THE HOLIDAY, AND THE CLASS, ALL OF WHOM WERE AWARE OF THEIR HOLIDAY PRIVILEGE, OF THEIR OWN FREE WILL ELECTED TO CONTINUE THE TRAINING SESSION. UNDER THE CIRCUMSTANCES AND WITHOUT CONSIDERATION OF THE REGULATIONS DENYING HOLIDAY PREMIUM PAY TO EMPLOYEES ON TRAINING DUTY, IT IS CONTENDED THAT STOLLER WAS PROPERLY INFORMED OF HIS HOLIDAY PRIVILEGE, WAS NOT REQUIRED TO REPORT FOR WORK OR TO PERFORM ANY SERVICE FOR THE GOVERNMENT ON 13 MARCH 1959 AND THAT BY HIS VOLUNTARY ATTENDANCE, THE RIGHT OF MANAGEMENT TO CONTROL THE EXTRAORDINARY EXPENSE OF PREMIUM PAY FOR HOLIDAY WORK WAS SUBSTANTIALLY DENIED. * * *"

IN YOUR REQUEST FOR REVIEW OF OUR SETTLEMENT YOU CORRECTLY POINT OUT THAT SECTION 10 OF THE GOVERNMENT EMPLOYEES TRAINING ACT, 5 U.S.C. 2301, WHICH EXCLUDES HOLIDAY PREMIUM PAY FROM COMPENSATION PAYABLE TO EMPLOYEES TRAINING UNDER THAT ACT, IS NOT APPLICABLE TO YOUR CASE, BECAUSE SECTION 7 OF THE ACT PROVIDES FOR A TRANSITION PERIOD OF 270 DAYS AFTER ITS EFFECTIVE DATE AND THE DEPARTMENT OF NAVY HAD NOT, AT THE TIME OF THE HOLIDAYS IN QUESTION, ADOPTED ITS NEW PROCEDURES UNDER THE ACT. THEREFORE, HOLIDAY PREMIUM PAY FOR MARCH 12 AND 13, 1959, WAS NOT PRECLUDED AS A MATTER OF LAW.

HOWEVER, THE INAPPLICABILITY OF SECTION 10 OF THE TRAINING ACT IS NOT SOLELY DETERMINATIVE IN YOUR CASE. THE APPLICABLE NAVY REGULATION, NCPI 85.6-2 OF JUNE 13, 1958, PROVIDES AS FOLLOWS:

"PAY FOR HOLIDAYS ON WHICH THE EMPLOYEE IS EXCUSED FROM WORK IS COVERED BY NCPI 105. THIS PARAGRAPH PERTAINS TO THE PAY OF EMPLOYEES WHO ARE REQUIRED TO WORK ON A HOLIDAY.' (UNDERSCORING SUPPLIED.)

THE FACTS AS OFFICIALLY REPORTED HERE IN THE ABOVE QUOTED PART OF THE FIRST ENDORSEMENT, A COPY OF WHICH IS SAID TO HAVE BEEN FURNISHED YOU, ARE THAT YOU WERE NOTIFIED OF THE HOLIDAYS BY YOUR INSTRUCTOR AND WERE SPECIFICALLY TOLD BY HIM THAT YOU NEED NOT REPORT FOR DUTY ON MARCH 13, 1959. IN THAT REGARD, YOU CONTEND THAT YOU WERE NOT NOTIFIED BY YOUR EMPLOYING AGENCY THAT YOU WERE NOT TO ATTEND THE COURSE ON MARCH 12 AND 13, 1959. THIS LACK OF NOTIFICATION FROM YOUR EMPLOYING UNIT IS NOT GROUNDS FOR ENTITLEMENT TO THE HOLIDAY PAY WHICH YOU CLAIM IN THE FACE OF THE NOTICE REFERRED TO ABOVE.

WE DO NOT KNOW THE EXACT TIME ON MARCH 12 THAT YOU WERE INFORMED THAT HOLIDAYS HAD BEEN DECLARED FOR MARCH 12 AND 13. IN ANY EVENT, THE RECORD SHOWS THAT YOU WERE TOLD THAT YOU NEED NOT ATTEND THE COURSE ON MARCH 13. ACTUALLY, YOU SHOULD HAVE BEEN EXCUSED FOR THE REMAINDER OF MARCH 12 AS WELL AS MARCH 13.

IN B-138985, APRIL 6, 1959, WE CONSIDERED THE APPLICATION OF THE PRESIDENT'S LETTER TO EMPLOYEES OF THE VETERANS ADMINISTRATION WHO WERE ON DUTY IN HAWAII. IN THAT DECISION WE RULED THAT THE TERM "REMAINING HOURS OF DUTY" IN THE PRESIDENT'S LETTER MEANS THOSE SCHEDULED HOURS OF DUTY AFTER 12 NOON, REGARDLESS OF THE NORMAL CLOSING TIME OF ANY PARTICULAR AGENCY AND THAT EMPLOYEES OF THE VETERANS ADMINISTRATION NOT EXCUSED UNTIL 2 O-CLOCK POST MERIDIAN, HONOLULU TIME, WERE ENTITLED TO TWO (2) HOURS HOLIDAY PREMIUM PAY. IN YOUR CASE, IN VIEW OF THE FACT THAT YOU WERE DEFINITELY INFORMED THAT YOU WERE TO BE EXCUSED ON MARCH 13 ONLY, THE APPLICATION OF THE RULE OF B 138985, APRIL 6, 1959, ENTITLES YOU TO HOLIDAY PREMIUM PAY FOR THE HOURS YOU ATTENDED THE COURSE FROM 12 NOON ON MARCH 12, 1959. SETTLEMENT IN THE PROPER AMOUNT WILL BE MADE ON THAT BASIS.

YOUR STATEMENT THAT OTHER EMPLOYEES IN ATTENDANCE AT THE COURSE WERE PAID HOLIDAY PREMIUM PAY FOR MARCH 12 AND 13, HAS NO BEARING ON YOUR ENTITLEMENT. AS A MATTER OF LAW THE EMPLOYEES IN ATTENDANCE AT THE COURSE WHO RECEIVED PREMIUM PAY IN EXCESS OF THE AMOUNT ALLOWED YOU IN THIS DECISION WERE NOT ENTITLED TO SUCH PAY AND CORRECTIVE ACTION WILL BE TAKEN IN THEIR CASES.

WE HAVE NOT OVERLOOKED YOUR CONTENTION THAT THE FACTS ALLEGED IN THE ABOVE QUOTED PORTION OF THE FIRST ENDORSEMENT CONCERNING NOTICE OF THE HOLIDAY DO NOT CORRECTLY REPRESENT THE SITUATION. WHEN THERE IS A CONFLICT BETWEEN THE FACTS ADMINISTRATIVELY REPORTED AND THOSE ALLEGED BY A CLAIMANT OUR OFFICE CONSISTENTLY ACCEPTS THE ADMINISTRATIVE VERSION IN THE ABSENCE OF EVIDENCE THAT IT IS INCORRECT OR THAT THE FACTS ARE NOT OBJECTIVELY REPORTED. YOU HAVE FURNISHED NO EVIDENCE, OTHER THAN YOUR SELF-SERVING STATEMENT, THAT THE REPORTED CONVERSATION WITH COMMANDER SCOTT DID NOT IN FACT TAKE PLACE. WE FIND NO EVIDENCE OF ERROR IN THE FACTS AS REPORTED BY YOUR DEPARTMENT AND CONSEQUENTLY MUST ACCEPT THE FACTS ADMINISTRATIVELY REPORTED AS CORRECT.

THEREFORE, OUR SETTLEMENT OF AUGUST 2, 1960, OTHER THAN AS MODIFIED ABOVE MUST BE SUSTAINED.