A-43421, JULY 26, 1932, 12 COMP. GEN. 117

A-43421: Jul 26, 1932

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IS ENTITLED TO RECEIVE HIS HOLIDAY PAY FOR JULY 4. 000 PER ANNUM OR LESS ARE NOT TO SUFFER ANY LOSS OF PAY BY REASON OF NO WORK BEING REQUIRED OF THEM OF SATURDAY UNDER A 5-DAY WEEK PLAN. IS NOT TO BE REGARDED AS AN ADMINISTRATIVE PROMOTION AND IS NOT PROHIBITED BY THE TERMS OF SECTION 202 OF THE ECONOMY ACT. THERE IS NO REQUIREMENT DURING THE FISCAL YEAR 1933 EITHER TO INCREASE OR DECREASE THE SALARY RATES OF FIELD EMPLOYEES TO THE NEXT HIGHER OR LOWER RATES PRESCRIBED BY THE CLASSIFICATION ACT FOR THE GRADE IN WHICH THE POSITIONS HAVE BEEN ALLOCATED. THE QUESTIONS WILL BE HEREINAFTER STATED AND CONSIDERED IN THE ORDER APPEARING IN YOUR SUBMISSION: (A) A PER DIEM EMPLOYEE WAS ON FURLOUGH WITHOUT PAY ON SATURDAY.

A-43421, JULY 26, 1932, 12 COMP. GEN. 117

ECONOMY ACT - PER DIEM EMPLOYEES - HOLIDAY PAY - ADMINISTRATIVE PROMOTIONS A REGULAR FULL-TIME PER DIEM EMPLOYEE, ABSENT ON FURLOUGH WITHOUT PAY ON SATURDAY, JULY 2, 1932, WHO RETURNED TO DUTY JULY 5, 1932, IS ENTITLED TO RECEIVE HIS HOLIDAY PAY FOR JULY 4, 1932, UNDER THE TERMS OF THE ACT OF JANUARY 6, 1885, 23 STAT. 516, NOTWITHSTANDING ANY PROVISION IN THE ECONOMY ACT. EMPLOYEES RECEIVING COMPENSATION AT A RATE OF $1,000 PER ANNUM OR LESS ARE NOT TO SUFFER ANY LOSS OF PAY BY REASON OF NO WORK BEING REQUIRED OF THEM OF SATURDAY UNDER A 5-DAY WEEK PLAN. THE RESTORATION, DURING THE FISCAL YEAR 1933, OF FIELD EMPLOYEES UNDER THE ENGINEER DEPARTMENT OF THE ARMY TO THEIR PERMANENT SALARY RATE FROM SALARY RATES GIVEN THEM TEMPORARILY DURING THE FISCAL YEAR 1932, UNDER REGULATIONS AUTHORIZING SUCH TEMPORARY REDUCTIONS, IS NOT TO BE REGARDED AS AN ADMINISTRATIVE PROMOTION AND IS NOT PROHIBITED BY THE TERMS OF SECTION 202 OF THE ECONOMY ACT. IN VIEW OF THE PROVISIONS OF THE ECONOMY ACT, THERE IS NO REQUIREMENT DURING THE FISCAL YEAR 1933 EITHER TO INCREASE OR DECREASE THE SALARY RATES OF FIELD EMPLOYEES TO THE NEXT HIGHER OR LOWER RATES PRESCRIBED BY THE CLASSIFICATION ACT FOR THE GRADE IN WHICH THE POSITIONS HAVE BEEN ALLOCATED, BUT THE EXISTING RATE IN EFFECT ON JUNE 30, 1932, MAY BE PAID EVEN THOUGH IT DOES NOT CORRESPOND EXACTLY WITH THE RATES PRESCRIBED BY THE CLASSIFICATION ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JULY 26, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 13, 1932, PRESENTING FOR CONSIDERATION A NUMBER OF QUESTIONS INVOLVING THE APPLICATION OF THE ECONOMY ACT, PART II OF THE ACT OF JUNE 30, 1932, PUBLIC NO. 212.

THE QUESTIONS WILL BE HEREINAFTER STATED AND CONSIDERED IN THE ORDER APPEARING IN YOUR SUBMISSION:

(A) A PER DIEM EMPLOYEE WAS ON FURLOUGH WITHOUT PAY ON SATURDAY, JULY 2, 1932, AND RETURNED TO DUTY TUESDAY, JULY 5, 1932. IS HE ENTITLED TO PAY FOR MONDAY, JULY 4, 1932, UNDER THE ACT OF JANUARY 6, 1885, 23 STAT. 516?

THAT THE EMPLOYEES OF THE NAVY YARD, GOVERNMENT PRINTING OFFICE, BUREAU OF PRINTING AND ENGRAVING, AND ALL OTHER PER DIEM EMPLOYEES OF THE GOVERNMENT ON DUTY AT WASHINGTON, OR ELSEWHERE IN THE UNITED STATES, SHALL BE ALLOWED THE FOLLOWING HOLIDAYS, TO WIT: THE FIRST DAY OF JANUARY, THE TWENTY-SECOND DAY OF FEBRUARY, THE FOURTH DAY OF JULY, THE TWENTY-FIFTH DAY OF DECEMBER, AND SUCH DAYS AS MAY BE DESIGNATED BY THE PRESIDENT AS DAYS FOR NATIONAL THANKSGIVING, AND SHALL RECEIVE THE SAME PAY AS ON OTHER DAYS.

IN DECISION OF FEBRUARY 15, 1915, 21 COMP. DEC. 566, IT WAS HELD THAT THIS STATUTE WAS SELF-EXECUTING IN THAT IT EXCUSED EMPLOYEES FROM WORK ON THE DAYS MENTIONED THEREIN AND GRANTED THEM HOLIDAYS WITH PAY. DECISION OF OCTOBER 31, 1925, 5 COMP. GEN. 312, IT WAS HELD (QUOTING FROM THE SYLLABUS):

EMPLOYEES OF THE GOVERNMENT WHO COME WITHIN THE MEANING OF THE STATUTES GRANTING PAY FOR CERTAIN HOLIDAYS TO PER DIEM EMPLOYEES WHEN NOT WORKING, AND ENTITLING THEM TO DOUBLE PAY WHEN WORKING ON THOSE STATUTORY HOLIDAYS, ARE THOSE WHO ARE EMPLOYED FOR SUBSTANTIALLY CONTINUOUS INDEFINITE PERIODS AND PAID ON A PER DIEM BASIS FOR THE DAYS ACTUALLY WORKING AS DISTINGUISHED FROM THOSE ENGAGED FROM DAY TO DAY OR FOR A DEFINITELY FIXED BRIEF PERIOD.

EMPLOYEES OF THE GOVERNMENT WHOSE CONTRACT OF EMPLOYMENT ENTITLES THEM TO PAY FOR STRAIGHT TIME--- THAT IS, INCLUDING SUNDAYS AND HOLIDAYS ON WHICH DAYS NO WORK IS PERFORMED--- ARE NOT PER DIEM EMPLOYEES, NOTWITHSTANDING THEIR COMPENSATION MAY BE STATED AT A PER DIEM RATE, AND ARE NOT ENTITLED TO DOUBLE PAY WHEN REQUIRED TO WORK ON HOLIDAYS.

IN DECISION OF JULY 12, 1932, TO THE PUBLIC PRINTER, A-43055, 12 COMP. GEN. 21, WHICH CONSIDERED THE RIGHT OF GOVERNMENT PRINTING OFFICE EMPLOYEES TO HOLIDAY PAY UNDER A SIMILAR STATUTE DATED JANUARY 12, 1895, 28 STAT. 607, APPLICABLE ONLY TO EMPLOYEES UNDER THE GOVERNMENT PRINTING OFFICE, IT WAS STATED:

THE ACT OF JANUARY 12, 1895, 28 STAT. 607, QUOTED IN YOUR SUBMISSION, MAKES AN ABSOLUTE GRANT TO EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE OF THEIR REGULAR RATE OF COMPENSATION FOR HOLIDAYS MENTIONED THEREIN WITHOUT PERFORMANCE OF ANY WORK ON SUCH HOLIDAYS. THE RESTRICTION ON THE RATE OF COMPENSATION CONTAINED IN SECTION 211 (1) OF THE ACT OF JUNE 30, 1932, PUBLIC, NO. 212, ALSO QUOTED IN YOUR SUBMISSION, IS AGAINST A HIGHER RATE OF PAY FOR OVERTIME WORK AND "FOR WORK ON SUNDAYS AND HOLIDAYS.' THE LATTER STATUTE DOES NOT SUPERSEDE NOR RENDER INOPERATIVE THE FORMER STATUTE, THERE BEING NO INCONSISTENCY 802 OF THE LATTER STATUTE.

THE SAME IS TRUE AS TO EMPLOYEES ENTITLED TO HOLIDAYS WITH PAY UNDER THE TERMS OF THE ACT OF JANUARY 6, 1885, SUPRA. ASSUMING THAT THE PER DIEM EMPLOYEE REFERRED TO IN CASE (A) IS ONE EMPLOYED FOR A SUBSTANTIALLY CONTINUOUS INDEFINITE PERIOD AND PAID ON A PER DIEM BASIS FOR ONLY DAYS ACTUALLY WORKED, AS DISTINGUISHED FROM THOSE ENGAGED FROM DAY TO DAY OR FOR A DEFINITELY FIXED BRIEF PERIOD, HE IS ENTITLED TO PAY FOR JULY 4, 1932.

(B) THE DISTRICT ENGINEER, ENGINEER DEPARTMENT AT LARGE, MEMPHIS TENNESSEE, REPORTS THAT IT IS THE PLAN OF HIS OFFICE TO FURLOUGH PRACTICALLY ALL EMPLOYEES ON SATURDAYS, INCLUDING A FEW OF THOSE ON MONTHLY BASIS WHOSE COMPENSATION FIGURES LESS THAN $1,000 PER ANNUM. GENERAL, THIS PLAN NECESSARILY WILL RESULT IN NO WORK FOR THE LATTER CLASS. IS IT COMPULSORY THAT THEY BE KEPT ON IF THERE IS NO WORK FOR THEM ON SATURDAYS?

NO, BUT THE EMPLOYEES RECEIVING COMPENSATION AT A RATE OF LESS THAN $1,000 PER ANNUM ARE NOT TO SUFFER ANY LOSS OF PAY BY REASON OF NO WORK BEING REQUIRED OF THEM ON SATURDAYS; THAT IS TO SAY, THEY ARE TO RECEIVE THE SAME PAY FOR THE WEEK WHEN NO WORK IS REQUIRED ON SATURDAY AS THEY WERE RECEIVING DURING THE FISCAL YEAR 1932 WHEN WORK WAS REQUIRED ON SATURDAYS. DECISIONS OF JULY 8, 1932, TO THE PUBLIC PRINTER, A-43126; JULY 14, 1932, TO THE SECRETARY OF THE NAVY, A-43185; AND JULY 14, 1932, TO THE SECRETARY OF WAR, A-43197.

(C) UNDER THE PROVISIONS OF SECS. 202-203 OF THE ACT ABOVE REFERRED TO INCREASES ARE PROHIBITED IN THE PAY OF CIVILIAN EMPLOYEES DURING THE FISCAL YEAR 1933. THE REGULATIONS GOVERNING THE ADMINISTRATION OF THE CIVIL SERVICE IN THE ENGINEER DEPARTMENT AT LARGE CONTAIN THE FOLLOWING PROVISION:

"1029. REDUCTIONS AND RESTORATIONS TO FORMER GRADE.--- WHEN THE CONDITION OF THE WORK MAKES IT EXPEDIENT TO DO SO, THE OFFICER IN CHARGE MAY TEMPORARILY REDUCE ANY CLASSIFIED EMPLOYEE OF NONEDUCATIONAL GRADE TO A LOWER GRADE OR RATE OF PAY AND MAY SUBSEQUENTLY RESTORE HIM TO HIS FORMER GRADE OR RATE OF PAY OR TO ANY INTERMEDIATE GRADE OR RATE OF PAY WITHOUT REFERENCE TO THE CHIEF OF ENGINEERS, THE PROVISIONS OF PARAGRAPH 1033 OF THESE REGULATIONS TO GOVERN WITH REFERENCE TO REDUCTIONS IN GRADE OR PAY OF HONORABLY DISCHARGED SOLDIERS OR SAILORS OR THE WIDOWS AND ORPHANS OF SUCH PERSONS.'

THE PURPOSE OF THIS REGULATION IS TO PERMIT DISTRICT ENGINEERS DURING THE OFF SEASON TO UTILIZE THE SERVICES OF EMPLOYEES ON LOWER PAID POSITIONS, SUCH AS REPAIR OF FLOATING PLANT. THIS PROCEDURE RESULTS IN SAVINGS TO THE UNITED STATES.

UNDER THE ABOVE-QUOTED PROVISION A FEW EMPLOYEES WERE SERVING ON JUNE 30, 1932, UNDER TEMPORARY REDUCTIONS IN PAY, WHICH HAD BEEN SO REPORTED TO THE CIVIL SERVICE COMMISSION AND WHICH HAVE BEEN SO ENTERED ON THE RECORDS OF THIS DEPARTMENT. THESE TEMPORARY REDUCTIONS ARE WITHOUT FAULT ON THE PART OF THE EMPLOYEE AND REPRESENT A TEMPORARY CHANGE, FOR THE CONVENIENCE OF THE GOVERNMENT, TO DUTIES OF A LESS IMPORTANT NATURE, MADE NECESSARY BECAUSE OF SEASONAL CHANGES IN THE FORCE. IT WAS ANTICIPATED THAT UPON RESTORATIONS TO THEIR FORMER POSITIONS OR TO THE FULL DUTIES OF THEIR FORMER POSITIONS THESE EMPLOYEES WOULD BE RESTORED TO THE REGULAR RATES OF COMPENSATION PERTAINING TO THEIR POSITIONS IN THE MANNER PROVIDED BY ORDERS AND REGULATIONS 1029, ABOVE QUOTED. WITH THE OPENING OF THE NEW WORKING SEASON A NUMBER OF THESE MEN SOON WILL BE RESTORED TO THEIR FORMER DUTIES. A RULING IS REQUESTED AS TO WHETHER THE PROVISIONS OF THE LEGISLATIVE APPROPRIATION ACT APPROVED JUNE 30, 1932, PROHIBIT THE RESTORATION OF THESE MEN TO THE REGULAR RATES OF COMPENSATION APPLICABLE TO THEIR POSITIONS, OR WHETHER IT IS HELD THAT THE PROVISIONS OF THE ACT HAVE NO APPLICATION IN MATTER OF RESTORATIONS TO GRADES FROM WHICH EMPLOYEES HAVE BEEN TEMPORARILY REDUCED FOR THE CONVENIENCE OF THE GOVERNMENT.

THE POSITIONS TO WHICH THE RESTORATION OF THESE EMPLOYEES IS PROPOSED ARE SEASONAL IN NATURE AND THEREFORE MAY BE FILLED UNDER THE PROVISIONS OF SEC. 203 OF THE ECONOMY ACT WITHOUT REFERENCE TO THE PRESIDENT. IT WOULD BE POSSIBLE TO FILL THESE POSITIONS AT THE RATE REGULARLY APPLYING TO SUCH POSITIONS EITHER BY APPOINTMENT FROM CIVIL SERVICE REGISTER OR BY REEMPLOYMENT OF PERSONS LAID OFF AT THE CLOSE OF THE PREVIOUS WORKING SEASON OR LAID OFF FROM OTHER POSITIONS IN THE ENGINEER DEPARTMENT AT LARGE. UNDER SUCH CIRCUMSTANCES IS IT NOT ALSO PROPER TO FILL THE POSITIONS BY "RESTORATION TO FORMER GRADE" IN THE MANNER INDICATED IN THE PRECEDING PARAGRAPH?

SECTION 202 OF THE ECONOMY ACT PROVIDES, IN PART:

NO ADMINISTRATIVE PROMOTIONS IN THE CIVIL BRANCH OF THE UNITED STATES GOVERNMENT OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA SHALL BE MADE DURING THE FISCAL YEAR ENDING JUNE 30, 1933 * * *.

THE TERMS OF THE REGULATIONS QUOTED IN YOUR SUBMISSION, NO. 1029, CONSTITUTE A PART OF THE CONTRACT OF EMPLOYMENT OF EACH PERSON AFFECTED THEREBY. THE REGULATION IS SIMILAR TO A REGULATION IN FORCE IN THE GOVERNMENT PRINTING OFFICE ENTITLED "UP-AND-DOWN RATING FOR TEMPORARY CHANGES," AUTHORIZING THE PUBLIC PRINTER TO TRANSFER EMPLOYEES FROM ONE TRADE TO ANOTHER WHEN NECESSARY, INVOLVING BOTH TEMPORARY INCREASES AND DECREASES IN COMPENSATION. IN APPLYING THE TERMS OF SECTION 202 OF THE ECONOMY ACT TO EMPLOYEES IN THE GOVERNMENT PRINTING OFFICE, IT WAS STATED IN DECISION OF JULY 7, 1932, A-43098, 12 COMP. GEN. 5, AS FOLLOWS:

* * * VARIATIONS IN THE RATES OF PAY RESULTING FROM THE APPLICATION OF THIS REGULATION PROMULGATED UNDER AUTHORITY OF THE ACT OF JUNE 7, 1924, SUPRA, DO NOT CONSTITUTE ADMINISTRATIVE PROMOTIONS OR DEMOTIONS WITHIN THE MEANING OF THE ACT OF JUNE 30, 1932. OF COURSE, THERE IS NO AUTHORITY ADMINISTRATIVELY TO INCREASE THE RATES OF COMPENSATION FOR THE VARIOUS TRADES DURING THE FISCAL YEAR 1933.

THE SAME PRINCIPLE IS APPLICABLE TO CHANGES AUTHORIZED UNDER REGULATION NO. 1029 QUOTED IN YOUR LETTER. ACCORDINGLY, RESTORATION OF THE EMPLOYEES IN QUESTION TO THEIR REGULAR RATES OF COMPENSATION APPLICABLE TO THEIR POSITIONS DURING THE FISCAL YEAR 1933 WOULD NOT BE PROHIBITED AS ADMINISTRATIVE PROMOTIONS UNDER SECTION 202 OF THE ECONOMY ACT.

(D) IN ACCORDANCE WITH RULING OF THE COMPTROLLER GENERAL DATED JANUARY 11, 1932 (A-39245), AND IN ACCORDANCE WITH INSTRUCTIONS OF THE SECRETARY OF WAR DATED MAY 4, 1932, THIS OFFICE HAS EFFECTED A CLASSIFICATION OF POSITIONS IN THE ENGINEER DEPARTMENT AT LARGE EFFECTIVE JULY 1, 1932. FEW POSITIONS, WHICH ON JUNE 30, 1932, WERE AT PER DIEM RATES, ARE AFFECTED. IN GENERAL THE EMPLOYEES SERVING IN THESE POSITIONS HAVE BEEN CARRIED ON A 313-DAY YEAR BASIS. IT IS SELDOM THAT IN MULTIPLYING THE PER DIEM RATE IN EFFECT ON JUNE 30, 1932, BY 313, TO OBTAIN THE EXACT ANNUAL EQUIVALENT OF THE PER DIEM RATE, THAT ONE OF THE STANDARD RATES OF THE SALARY SCHEDULES CONTAINED IN THE WELCH AND BROOKHART ACTS IS OBTAINED. RULING IS REQUESTED AS TO WHETHER IN SUCH CASES THE NEXT HIGHER STANDARD RATE MAY NOT BE PAID, BEARING IN MIND THE FACT THAT IN FUTURE ONE DAY'S PAY WILL BE COMPUTED AS 1/360TH OF THE ANNUAL SALARY RATE, OR WHETHER IN VIEW OF THE PROVISIONS OF THE LEGISLATIVE APPROPRIATION ACT APPROVED JUNE 30, 1932, FORBIDDING INCREASES IN SALARIES, THE EXACT EQUIVALENT ANNUAL RATE OBTAINED BY MULTIPLYING THE PER DIEM RATE IN EFFECT ON JUNE 30, 1932, SHALL BE PAID OR WHETHER THE NEXT LOWER STANDARD RATE IS REQUIRED.

IN DECISION OF JULY 15, 1932, A-39245, A-39328, 12 COMP. GEN. 48, IT WAS HELD THAT THE APPLICATION OF THE DECISION OF THIS OFFICE DATED JANUARY 11, 1932, IS SUSPENDED DURING THE FISCAL YEAR 1933. ACCORDINGLY, THERE IS NO REQUIREMENT DURING THE FISCAL YEAR 1933 EITHER TO INCREASE OR DECREASE RATES OF PAY OF THE EMPLOYEES IN QUESTION TO THE NEXT HIGHER OR LOWER RATES PRESCRIBED BY THE CLASSIFICATION ACT FOR THE GRADE IN WHICH THE POSITIONS HAVE BEEN ALLOCATED, BUT THE EXISTING RATE--- THAT IS, THE RATE IN EFFECT ON JUNE 30, 1932--- MAY BE PAID EVEN THOUGH IT DOES NOT CORRESPOND EXACTLY WITH THE RATES PRESCRIBED BY THE CLASSIFICATION ACT.