B-53211, MAY 22, 1946, 25 COMP. GEN. 794

B-53211, MAY 22, 1946, 25 COMP. GEN. 794

HOLIDAY COMPENSATION - TEMPORARY PER DIEM EMPLOYEES TEMPORARY PER DIEM EMPLOYEES APPOINTED UNDER SECTION 2 OF REGULATION VIII OF THE TEMPORARY CIVIL SERVICE REGULATIONS, PENDING CERTIFICATION OF ELIGIBLES BY THE CIVIL SERVICE COMMISSION, WHO HAVE BEEN DEFINED BY THE COMMISSION (SECTION IV, DEPARTMENTAL CIRCULAR NO. 549, DATED FEBRUARY 1, 1946) AS "PERMANENT" EMPLOYEES WITHIN THE MEANING OF SECTION 1.1 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS, ARE TO BE REGARDED AS "REGULAR EMPLOYEES" ENTITLED TO COMPENSATION PURSUANT TO THE PER DIEM, ETC., EMPLOYEE HOLIDAY PAY STATUTE OF JUNE 29, 1938, FOR HOLIDAYS ON WHICH THEY PERFORM NO WORK, REGARDLESS OF THE ACTUAL PERIOD OF THEIR SERVICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MAY 22, 1946:

I HAVE YOUR LETTER OF MAY 13, 1946, REFERENCE JAG:II:RT:DS, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE CHIEF, OFFICE OF INDUSTRIAL RELATIONS OF THE NAVY DEPARTMENT, DATED MAY 7, 1946, WITH REFERENCE TO THE RIGHT OF TEMPORARY PER DIEM EMPLOYEES APPOINTED UNDER SECTION 2, REGULATION VIII,"1TEMPORARY CIVIL SERVICE REGULATIONS" TO RECEIVE PAY FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED.

IN YOUR DECISION OF APRIL 12, 1946, (B-53211), IT WAS HELD THAT "SINCE PERSONS HOLDING ,INDEFINITE WAR SERVICE APPOINTMENTS" AS DEFINED BY THE CIVIL SERVICE COMMISSION, ARE, IN CT,"PERMANENT" EMPLOYEES WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE REGULATIONS IT FOLLOWS THAT THEY ARE ENTITLED TO THE BENEFITS OF THE HOLIDAY PAY STATUTE OF 1938 REGARDLESS OF THE PERIOD OF THEIR ACTUAL SERVICE.' SINCE THE TEMPORARY PER DIEM EMPLOYEES REFERRED TO ABOVE ARE CONSIDERED BY THE CIVIL SERVICE COMMISSION TO BE PERMANENT EMPLOYEES FOR LEAVE PURPOSES IT WOULD APPEAR TO FOLLOW THAT UNDER YOUR DECISION CITED ABOVE AND YOUR PREVIOUS DECISIONS ON THE SAME SUBJECT, THIS CLASS OF EMPLOYEES IS ALSO ENTITLED TO THE BENEFITS OF THE HOLIDAY PAY STATUTE.

AS WILL BE SEEN FROM THE ENCLOSED LETTER FROM THE CHIEF, OFFICE OF INDUSTRIAL RELATIONS, EXISTING INSTRUCTIONS OF THE NAVY DEPARTMENT, PRECLUDE PAY TO THIS CLASS OF EMPLOYEES FOR A HOLIDAY ON WHICH NO WORK IS PERFORMED. IN VIEW OF THE DOUBT WHICH EXISTS ON THIS QUESTION YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTION PRESENTED IN PARAGRAPH 4 OF THE ENCLOSED LETTER.

IN THE REFERRED-TO LETTER FROM THE CHIEF OF INDUSTRIAL RELATIONS IT IS STATED, IN PART, AS FOLLOWS:

4. INQUIRIES HAVE BEEN RECEIVED FROM FIELD ACTIVITIES AS TO WHETHER OR NOT PER DIEM EMPLOYEES APPOINTED UNDER THE PROVISIONS OF SECTION 2, REGULATION VIII ARE ENTITLED TO PAY FOR A HOLIDAY ON WHICH NO WORK IS PERFORMED. THESE INQUIRIES HAVE BEEN ANSWERED IN THE NEGATIVE ON THE BASIS OF REFERENCES (B) ( COMPTROLLER GENERAL DECISION B-53211 OF 15 NOV. 1945) AND (C) ( COMPTROLLER GENERAL ITR. B-53211 OF 12 APR. 1946 TO THE SECNAV.). HOWEVER, THERE IS SOME DOUBT AS TO WHETHER SUCH ANSWER IS CORRECT, AND IN VIEW OF THE INFORMATION SET DOWN ABOVE, A DECISION OF THE COMPTROLLER GENERAL IS REQUESTED AS TO WHETHER OR NOT PER DIEM EMPLOYEES APPOINTED UNDER THE PROVISIONS OF SECTION 2, REGULATION VIII, ARE ENTITLED TO PAY FOR A HOLIDAY ON WHICH NO WORK IS PERFORMED.

THE DECISIONS OF THE OFFICE DATED NOVEMBER 15, 1945, AND APRIL 12, 1946 (B-53211), 25 COMP. GEN. 407; ID. 715, WERE DIRECTED TO A CONSIDERATION OF THE RIGHTS OF PERSONS HOLDING APPOINTMENTS UNDER THE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION GOVERNING WAR SERVICE APPOINTMENTS TO PAY FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED. HOWEVER, PURSUANT TO THE PROVISIONS OF EXECUTIVE ORDER 9691, FEBRUARY 4, 1946, DIRECTING THE CIVIL SERVICE COMMISSION TO RESUME OPERATIONS ON A PEACETIME BASIS, SUCH WAR SERVICE REGULATIONS WERE RESCINDED, AND, CONSEQUENTLY, THE CONCLUSION REACHED IN THE ABOVE MENTIONED DECISIONS IS NOT CONTROLLING WITH RESPECT TO THE RIGHTS OF EMPLOYEES APPOINTED UNDER THE REGULATIONS NOW IN EFFECT.

SECTION 2 OF REGULATION VIII OF THE TEMPORARY CIVIL SERVICE REGULATIONS PROVIDES:

2. PENDING ESTABLISHMENT OF RESISTOR.--- WHENEVER THERE ARE NO ELIGIBLES UPON A REGISTER FOR ANY GRADE IN WHICH A VACANCY EXISTS AND THE PUBLIC INTEREST REQUIRES THAT THE VACANCY BE FILLED BEFORE ELIGIBLES CAN BE CERTIFIED, THE COMMISSION MAY AUTHORIZE TEMPORARY APPOINTMENT PROVIDED THAT THE AGENCY DETERMINES THAT THE STANDARDS PRESCRIBED BY THE COMMISSION ARE MET. SUCH APPOINTMENT SHALL CONTINUE ONLY FOR SUCH PERIOD AS MAY BE NECESSARY TO MAKE APPOINTMENT THROUGH CERTIFICATION, AND IN NO CASE, WITHOUT PRIOR APPROVAL OF THE COMMISSION, SHALL EXTEND BEYOND THIRTY DAYS FROM THE DATE OF RECEIPT BY THE APPOINTING OFFICER OF THE CERTIFICATION OF ELIGIBLES.

SECTION IV OF DEPARTMENTAL CIRCULAR NO. 549, DATED FEBRUARY 1, 1946, ISSUED BY THE CIVIL SERVICE COMMISSION, PROVIDES:

IV. NATURE OF APPOINTMENT UNDER SECTION 2 OF REGULATION VIII.

APPOINTMENTS UNDER SECTION 2 OF REGULATION VIII SHALL BE TEMPORARY IN NATURE AND PERSONS OBTAINING SUCH APPOINTMENT SHALL NOT BE REGARDED AS OCCUPYING PERMANENT POSITIONS FOR THE PURPOSE OF SECTION VII OF THE CLASSIFICATION ACT OF MARCH 4, 1923, AS AMENDED, AND SHALL NOT BY VIRTUE OF SUCH APPOINTMENTS BE SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT. FOR REDUCTION IN FORCE PURPOSES SUCH EMPLOYEES SHALL BE IN GROUP B. TRIAL PERIOD SHALL NOT BE REQUIRED AND SUCH TEMPORARY EMPLOYEES SHALL NOT BE SUBJECT TO THE PROVISIONS OF REGULATION XII WITH RESPECT TO REMOVALS. SINCE SUCH APPOINTMENTS ARE NOT "LIMITED TO DEFINITE PERIODS OF TIME NOT EXCEEDING ONE YEAR," APPOINTEES SHALL BE SUBJECT TO THE PROVISIONS OF THE LEAVE REGULATIONS THAT PERTAIN TO "PERMANENT" EMPLOYEES.

IN THE LIGHT OF THE FOREGOING, IT CLEARLY APPEARS THAT EMPLOYEES APPOINTED UNDER THE PROVISIONS OF SECTION 2 OF REGULATIONS VIII ARE "PERMANENT EMPLOYEES" WITHIN THE DEFINITION OF THAT TERM AS CONTAINED SECTION 1.1 OF THE CURRENT LEAVE REGULATIONS. HENCE, IN CONSONANCE WITH THE CONSISTENT HOLDING BY THIS OFFICE THAT EMPLOYEES WHOSE COMPENSATION IS FIXED AT A RATE PER DAY, PER HOUR, OR ON A PIECE-WORK BASIS, AND WHO COME WITHIN THE DEFINITION OF "PERMANENT EMPLOYEES" AS CONTAINED IN THE LEAVE REGULATIONS, ARE "REGULAR" EMPLOYEES WITHIN THE MEANING OF THAT TERM AS USED IN THE HOLIDAY PAY STATUTE OF JUNE 29, 1938, 52 STAT. 1246, YOU ARE ADVISED THAT EMPLOYEES APPOINTED UNDER THE PROVISIONS OF SECTION 2, OF REGULATION VIII, SUPRA, ARE ENTITLED TO THE BENEFITS OF THE SAID 1938 STATUTE, REGARDLESS OF THE ACTUAL PERIOD OF THEIR SERVICE.