B-118539, MARCH 29, 1954, 33 COMP. GEN. 418

B-118539, MARCH 29, 1954, 33 COMP. GEN. 418

COMPENSATION - HOLIDAYS - WAGE BOARD EMPLOYEES; FIREFIGHTERS - "STAND BY" OR "ON-CALL" TIME UNDER SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AND SECTIONS 2 (B) AND (6) OF EXECUTIVE ORDER NO. 10358, FIREFIGHTERS AND OTHER "ON-CALL" EMPLOYEES WITH WORKDAY OF 12 HOURS, WHO, THROUGH APPLICATION OF TWO-THIRDS RULE, ARE PAID FOR EIGHT HOURS, ARE ENTITLED TO HOLIDAY COMPENSATION COMPUTED AT TWO-THIRDS OF THE TIME THEY ACTUALLY SERVED ON A HOLIDAY, BUT NOT TO EXCEED EIGHT HOURS NOTWITHSTANDING DUTY BEGAN ON A DAY PRIOR TO THE HOLIDAY. WAGE BOARD EMPLOYEES, WHO ARE ASSIGNED TO PERFORM A DIFFERENT KIND OF WORK FROM THAT FOR WHICH REGULARLY EMPLOYED, AND FOR WHICH, IN ACCORDANCE WITH PRACTICE OF PRIVATE INDUSTRY, ADDITIONAL PAY SCHEDULES HAVE BEEN PROVIDED, MAY BE PAID FOR OVERTIME AND HOLIDAY WORK PERFORMED AT THE RATE ESTABLISHED IN ACCORDANCE WITH COMMERCIAL PRACTICES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MARCH 29, 1954:

REFERENCE IS MADE TO LETTER OF JANUARY 27, 1954, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, REQUESTING A DECISION UPON CERTAIN QUESTIONS RELATIVE TO HOLIDAY AND OVERTIME COMPENSATION OF CERTAIN EMPLOYEES OF THE DEPARTMENT OF THE NAVY.

IT IS STATED THAT IN THE APPLICATION OF THE HOLIDAY BENEFITS PROVIDED UNDER EXECUTIVE ORDER NO. 10358, DATED JUNE 9, 1952, IT WAS NOTED THAT FIREFIGHTERS IN THE DEPARTMENT OF THE NAVY, AND OTHER ,ON CALL" EMPLOYEES, WHOSE NORMAL WORKWEEK CONSISTS OF THREE 24-HOUR WORKDAYS, ARE PREVENTED BY SECTION 6 OF THE ORDER FROM RECEIVING HOLIDAY BENEFITS ON TWO OF THE FIVE DAYS OF THEIR BASIC WORKWEEK AND THAT IN ORDER TO PROVIDE HOLIDAY BENEFITS FOR "ON-CALL" EMPLOYEES COMPARABLE WITH THE BENEFITS ENJOYED BY OTHER EMPLOYEES, A 12-HOUR WORKDAY WAS ESTABLISHED FOR FIREFIGHTERS AND OTHER ,ON-CALL" EMPLOYEES IN PARAGRAPH 4-3 PAGES 10 AND 11, OF NAVY CIVILIAN PERSONNEL INSTRUCTION 85. THROUGH APPLICATION OF THE TWO-THIRDS RULE SET FORTH THEREIN, THOSE EMPLOYEES HAVE AN EIGHT PAID HOUR WORKDAY, A FIVE DAY 40 HOURS BASIC WORKWEEK, AND A SIX DAY 48 HOUR SCHEDULED WORKWEEK.

IN LIGHT OF THE WORKWEEK SCHEDULE THUS ESTABLISHED A DECISION IS REQUESTED AS TO WHETHER UNDER A TYPICAL NAVY WORKWEEK SCHEDULE SET FORTH BELOW, A HOLIDAY ON CALENDAR TUESDAY MAY, UNDER SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AND SECTIONS 2 (B) AND 6 OF EXECUTIVE ORDER NO. 10358, PROPERLY BE CONSIDERED A HOLIDAY FOR ALL 12 HOURS OF THE TUESDAY WORKDAY, THE SHIFT FOR WHICH BEGAN AT 8 P.M. ON MONDAY.

CHART

WORKDAY HOURS OF THE WORKDAY MONDAY -------------------------------- 8 A.M. TO 8 P.M. MONDAY. TUESDAY ------------------------------- 8 P.M. MONDAY TO 8 A.M.

TUESDAY WEDNESDAY------------------------------

8 A.M. TO 8 P.M. WEDNESDAY. THURSDAY------------------------------- 8 P.M. WEDNESDAY TO 8 A.M.

THURSDAY FRIDAY--------------------------------

8 A.M. TO 8 P.M. FRIDAY. SATURDAY (OVERTIME DAY/---------------- 8 P.M. FRIDAY TO 8 A.M.

SATURDAY

SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 298, AS AMENDED BY SECTION 11 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 218, PROVIDES:

ANY OFFICER OR EMPLOYEE TO WHOM THIS TITLE APPLIES WHO IS ASSIGNED TO DUTY ON A HOLIDAY DESIGNATED BY FEDERAL STATUTE OR EXECUTIVE ORDER DURING HOURS WHICH FALL WITHIN HIS BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS SHALL BE COMPENSATED FOR NOT TO EXCEED EIGHT HOURS OF SUCH DUTY, EXCLUDING PERIODS WHEN HE IS IN A LEAVE STATUS, IN LIEU OF HIS REGULAR RATE OF BASIC COMPENSATION FOR SUCH DUTY, AT THE RATE OF TWICE SUCH REGULAR RATE OF BASIC COMPENSATION, IN ADDITION TO ANY EXTRA COMPENSATION FOR NIGHT DUTY PROVIDED BY SECTION 301 OF THIS ACT.

SECTION 2 (B) AND 6 OF EXECUTIVE ORDER NO. 10358, DATED JUNE 9, 1952, PROVIDES:

(B) "WORKDAY" MEANS THOSE HOURS WHICH COMPRISE IN SEQUENCE THE EMPLOYEE'S REGULAR DAILY TOUR OF DUTY WITHIN ANY 24-HOUR PERIOD, WHETHER FALLING ENTIRELY WITHIN ONE CALENDAR DAY OR NOT.

SEC. 6. ANY EMPLOYEE WHOSE WORKDAY COVERS PORTIONS OF TWO CALENDAR DAYS AND WHO WOULD, EXCEPT FOR THIS SECTION, ORDINARILY BE EXCUSED FROM WORK SCHEDULED FOR THE HOURS OF ANY CALENDAR DAY ON WHICH A HOLIDAY FALLS, SHALL INSTEAD BE EXCUSED FROM WORK ON HIS ENTIRE WORKDAY WHICH COMMENCES ON ANY SUCH CALENDAR DAY.

WHILE EXECUTIVE ORDER NO. 10358, PROVIDES THAT THE TERM HOLIDAY AS USED THEREIN SHALL INCLUDE THE SPECIFIC DAYS MENTIONED AND ANY OTHER CALENDAR DAY DESIGNATED AS A HOLIDAY BY FEDERAL STATUTE OR EXECUTIVE ORDER, IT IS THE CONSIDERED VIEW OF THIS OFFICE THAT THE EXECUTIVE ORDER WAS NOT INTENDED TO OPERATE SO AS TO INCREASE THE HOLIDAY PAY WHICH OTHERWISE WOULD BE PAYABLE UNDER SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT, TO INCLUDE PORTIONS OF WORKDAYS WHICH BEGAN ON THE DAY PRIOR TO THE HOLIDAYS MENTIONED THEREIN.

AS SECTION 302 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, PROVIDES THAT EMPLOYEES WOULD BE ENTITLED TO DOUBLE COMPENSATION FOR ANY PORTION OF HIS REGULAR TOUR OF DUTY FOR NOT TO EXCEED EIGHT HOURS DURING WHICH HE IS REQUIRED TO RENDER SERVICE ON A HOLIDAY, THE EMPLOYEE CITED IN THE LETTER OF JANUARY 27, 1954, HAVING PERFORMED ON CALL DUTY OF EIGHT HOURS ON THE HOLIDAY INVOLVED WOULD, UNDER THE TWO THIRDS RULE AND THE HOLIDAY PROVISIONS OF THE STATUTE, BE ENTITLED TO HOLIDAY PAY FOR TWO- THIRDS OF EIGHT HOURS OF DUTY ACTUALLY SERVED ON THE HOLIDAY.

THE SECOND QUESTION RAISED IN THE ASSISTANT SECRETARY'S LETTER RELATES TO THE BASE TO BE USED TO MAKE OVERTIME PAYMENTS AND HOLIDAY PREMIUM PAYMENTS TO UNGRADED (WAGE-BOARD) EMPLOYEE WHEN ASSIGNED TO DUTIES FOR WHICH, IN ACCORDANCE WITH THE PRACTICE OF PRIVATE INDUSTRY, ADDITIONAL PAY SCHEDULES HAVE BEEN PROVIDED EITHER BECAUSE OF THE CONDITIONS UNDER WHICH THE WORK IS PERFORMED OR BECAUSE DIFFERENT OR HIGHER SKILLS ARE REQUIRED THAN THE SKILLS INHERENT IN THE EMPLOYEE'S USUAL POSITION.

IN THAT CONNECTION, IT IS STATED THAT RECENTLY, AN ACTIVITY OF THE DEPARTMENT OF THE NAVY FOUND IT NECESSARY TO ASSIGN A NUMBER OF ITS LABORERS TO STEVEDORING, BECAUSE OF A WATERFRONT STRIKE. ACCORDING TO THEIR AVAILABILITY, SOME WERE ASSIGNED TO STEVEDORING ON A DAY OUTSIDE THEIR BASIC WORKWEEK, OTHERS WERE ASSIGNED INTERMITTENTLY, AND STILL OTHERS WERE ASSIGNED EXCLUSIVELY TO STEVEDORING. THREE GROUPS WORKED EIGHT HOURS A DAY, MONDAY THROUGH SATURDAY, AT THE HOURLY PAY RATES INDICATED IN THE FOLLOWING SCHEDULE, YET THE OVERTIME RATE OF PAY OF EACH GROUP WAS DIFFERENT ALTHOUGH THE OVERTIME WORK WAS THE SAME FOR ALL GROUPS.

$1.23 PER HOUR, PAY RATE OF LABORER.

$1.60 PER HOUR, PAY RATE OF STEVEDORE.

CHART OMITTED

IN DECISION OF APRIL 23, 1952, B-23395, 31 COMP. GEN. 532, REFERRED TO IN THE ASSISTANT SECRETARY'S LETTER, IT WAS HELD, QUOTING FROM THE SYLLABUS:

THE OVERTIME, HOLIDAY, AND NIGHT DIFFERENTIAL COMPENSATION OF WAGE BOARD EMPLOYEES OF THE DEPARTMENT OF THE ARMY OCCUPYING POSITIONS CARRYING DUAL DESIGNATIONS (SUCH AS DECKHAND-DIVER) IN WHICH DIFFERENT RATES OF COMPENSATION FOR THE TWO KINDS OF WORK ARE FIXED TO CONFORM WITH THE PRACTICE PREVAILING IN PRIVATE INDUSTRY, MAY BE DETERMINED BY THE WAGE BOARD IN ACCORDANCE WITH COMMERCIAL PRACTICES.

IN UNPUBLISHED DECISION OF FEBRUARY 6, 1953, B-94091, IT WAS HELD THAT WAGE BOARD EMPLOYEES OF THE DEPARTMENT OF THE INTERIOR SUBJECT TO THE 40 HOUR WEEK STATUTE OF MARCH 28, 1934, WHOSE REGULAR TOUR OF DUTY IS MONDAY THROUGH FRIDAY AND WHO PERFORM A DIFFERENT KIND OF WORK ON OVERTIME DAY COULD BE PAID FOR OVERTIME AND HOLIDAY WORK PERFORMED OUTSIDE THEIR REGULAR TOUR OF DUTY AT THE RATE ESTABLISHED AS NEARLY AS COMPARABLE WITH THOSE IN PRIVATE INDUSTRY FOR THE SAME WORK WITHOUT NECESSITY OF ESTABLISHING POSITIONS CARRYING DUAL DESIGNATION. THE WORKING CONDITIONS SET FORTH IN THE ASSISTANT SECRETARY'S LETTER OF JANUARY 27, 1954, REASONABLY APPEAR TO BE ANALOGOUS TO THE SITUATION CONSIDERED IN THE SAID DECISION OF FEBRUARY 6, 1953. HENCE, THE CONCLUSION REACHED IN THAT DECISION EQUALLY IS FOR APPLICATION TO THE WORK PERFORMED UNDER THE CONDITIONS REFERRED TO IN THE SUBMISSION.