A-55103, JULY 26, 1934, 14 COMP. GEN. 71

A-55103: Jul 26, 1934

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

HOLIDAYS - GOVERNMENT PRINTING OFFICE - PER-ANNUM EMPLOYEES PER-ANNUM EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE ARE NOT ENTITLED TO GRATUITY PAY FOR LEGAL HOLIDAYS OCCURRING DURING A PERIOD OF LEAVE OF ABSENCE WITHOUT PAY ON WHICH NO WORK IS PERFORMED. 1934: FURTHER REFERENCE IS MADE TO LETTER OF APRIL 17. - 3.52 THE REASON STATED FOR THESE DISALLOWANCES IS: "A PER-ANNUM EMPLOYEE IN A NONPAY STATUS IMMEDIATELY PRECEDING AND IMMEDIATELY FOLLOWING A HOLIDAY IS NOT ENTITLED TO PAY FOR THE INTERVENING HOLIDAY ON WHICH NO SERVICE IS PERFORMED (12 COMP. THE WORD "EMPLOYEES" IS ALL-INCLUSIVE. NO DIFFERENTIATION IS MADE BETWEEN ANNUAL AND HOURLY EMPLOYEES. IT WAS RULED: "FOR THE 60 DAYS' PERIOD COVERED BY THESE RULES (NOW REDUCED TO 30 DAYS) THEY ARE EMPLOYEES OF THE OFFICE AND ARE ENTITLED TO THE SAME RIGHT IN THE MATTER OF PAY FOR HOLIDAYS AS OTHER EMPLOYEES ON DUTY OR ON LEAVE WITH PAY.'.

A-55103, JULY 26, 1934, 14 COMP. GEN. 71

HOLIDAYS - GOVERNMENT PRINTING OFFICE - PER-ANNUM EMPLOYEES PER-ANNUM EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE ARE NOT ENTITLED TO GRATUITY PAY FOR LEGAL HOLIDAYS OCCURRING DURING A PERIOD OF LEAVE OF ABSENCE WITHOUT PAY ON WHICH NO WORK IS PERFORMED.

COMPTROLLER GENERAL MCCARL TO THE PUBLIC PRINTER, JULY 26, 1934:

FURTHER REFERENCE IS MADE TO LETTER OF APRIL 17, 1934, AS FOLLOWS:

I SUBMIT THE FOLLOWING APPEAL FROM DISALLOWANCES ISSUED BY YOUR OFFICE MARCH 21, 1934, TO E. J. WILVER, DISBURSING CLERK, SYMBOL 92633:

CHART VOUCHER 2, SEPTEMBER QUARTER, 1933:

MICHAEL J. MCINERNEY ----------------------------------------- $8.14

GRACE W. MARSHALL -------------------------------------------- 2.99

MARIAN K. BATEMAN -------------------------------------------- 4.07

IDA NOBLE ---------------------------------------------------- 3.80

MYRTLE L. WOOD ----------------------------------------------- 3.66

HUGH D. GLISSON ---------------------------------------------- 2.44

HELEN R. GILLIN ---------------------------------------------- 3.52 VOUCHER 1152, SEPTEMBER QUARTER, 1933:

RAYMOND E. ORCUTT -------------------------------------------- $2.05

ANN T. SOMACH ------------------------------------------------ 3.52

CHARLES E. BURKE --------------------------------------------- 2.44

MAGDALENE K. SUMMERS ----------------------------------------- 2.86

RUTH H. BENHAM ----------------------------------------------- 3.52

THE REASON STATED FOR THESE DISALLOWANCES IS:

"A PER-ANNUM EMPLOYEE IN A NONPAY STATUS IMMEDIATELY PRECEDING AND IMMEDIATELY FOLLOWING A HOLIDAY IS NOT ENTITLED TO PAY FOR THE INTERVENING HOLIDAY ON WHICH NO SERVICE IS PERFORMED (12 COMP. GEN. 534). REPLY OF MARCH 7, 1934, ON FORM 2085 NOTED. LAWS AND DECISIONS CITED APPLY TO HOURLY OR PER DIEM EMPLOYEES ONLY.'

U.S.C. TITLE 44, SECTION 44, PROVIDES THAT EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE SHALL BE ALLOWED LEGAL HOLIDAYS WITH PAY. THE WORD "EMPLOYEES" IS ALL-INCLUSIVE; NO DIFFERENTIATION IS MADE BETWEEN ANNUAL AND HOURLY EMPLOYEES.

IN DECISION BY COMPTROLLER WARWICK, FEBRUARY 16, 1916 (22 C.D., PP. 404- 406), IT WAS RULED:

"FOR THE 60 DAYS' PERIOD COVERED BY THESE RULES (NOW REDUCED TO 30 DAYS) THEY ARE EMPLOYEES OF THE OFFICE AND ARE ENTITLED TO THE SAME RIGHT IN THE MATTER OF PAY FOR HOLIDAYS AS OTHER EMPLOYEES ON DUTY OR ON LEAVE WITH PAY.'

ALSO---

"EMPLOYEES SHOULD NOT BE PAID FOR HOLIDAYS EXCEPT FOR SUCH AS OCCUR WITHIN THE PERIOD OF 60 DAYS (NOW REDUCED TO 30) COVERED BY THE RULES.'

THE RULE ABOVE REFERRED TO IS: EMPLOYEES ARE PAID FOR HOLIDAYS OCCURRING WITHIN A PERIOD OF NOT EXCEEDING 30 DAYS' LEAVE OF ABSENCE WITHOUT PAY.

IT IS SUBMITTED THAT THE DECISION QUOTED IN DISALLOWANCES (C.G. 12, PAGE 534) DOES NOT SUPPORT THE DISALLOWANCES. ON THE OTHER HAND, THAT DECISION QUOTED SECTION 46 OF THE ACT OF JANUARY 12, 1895, TO THE EFFECT THAT EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE SHALL BE ALLOWED LEGAL HOLIDAYS WITH PAY.

THE FACTS THAT CURRENT APPROPRIATION FOR THE GOVERNMENT PRINTING OFFICE AUTHORIZES THE PUBLIC PRINTER TO COMPLY WITH THE PROVISIONS OF LAW GRANTING HOLIDAYS TO EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE WITH PAY; THAT THE HOLIDAY PAY IN DISALLOWANCE COVERED A LEGAL HOLIDAY; THAT THE LEAVE LAW EMBRACES "EMPLOYEES," AND NOT ONLY THOSE EMPLOYEES ON AN HOURLY BASIS, ALL APPEAR TO MAKE THE DISALLOWANCES CONTRARY TO INTENT AND WORDING OF LAW. FURTHER, FOR AT LEAST 40 YEARS, UNDER ORIGINAL HOLIDAY LAW, EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE HAVE RECEIVED PAY FOR HOLIDAYS, WITHIN EXISTING RULE, WITHOUT REGARD TO WORK BEFORE OR AFTER SUCH HOLIDAY, AND THE ACCOUNTS HAVE BEEN PASSED.

IN VIEW OF THE ABOVE, I REQUEST THE DISALLOWANCES ABOVE LISTED BE REMOVED, AND THE ACCOUNTS PASSED.

SECTION 46 OF THE ACT OF JANUARY 12, 1895, 28 STAT. 607, PROVIDES AS FOLLOWS:

THE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE SHALL BE ALLOWED THE FOLLOWING LEGAL HOLIDAYS WITH PAY, TO WIT: THE FIRST DAY OF JANUARY, THE TWENTY-SECOND DAY OF FEBRUARY, THE FOURTH DAY OF JULY, THE TWENTY FIFTH DAY OF DECEMBER, INAUGURATION DAY, MEMORIAL DAY, LABOR'S HOLIDAY, AND SUCH DAY AS MAY BE DESIGNATED BY THE PRESIDENT OF THE UNITED STATES AS A DAY OF PUBLIC FAST AND THANKSGIVING.

THIS WAS ENACTED AT A TIME WHEN THERE WERE FEW PER-ANNUM EMPLOYEES AT THE GOVERNMENT PRINTING OFFICE. THE GREAT MAJORITY OF THE EMPLOYEES WERE, AND IT IS UNDERSTOOD ARE NOW, PAID ON A PER-HOUR OR PER-DIEM BASIS, WHO, THEREFORE, WOULD NOT BE ENTITLED TO PAY FOR LEGAL HOLIDAYS WHEN THE OFFICE IS CLOSED WERE IT NOT FOR THE SPECIAL STATUTE. ON THE OTHER HAND, EMPLOYEES WHOSE COMPENSATION IS FIXED ON AN ANNUAL BASIS ARE IN AN ACTUAL OR PRESUMPTIVE DUTY STATUS ON, AND PAID FOR, EVERY DAY OF THE YEAR, INCLUDING LEGAL HOLIDAYS, UNLESS ON LEAVE WITHOUT PAY OR ABSENT WITHOUT AUTHORITY. HENCE, NO SPECIAL STATUTE WAS NECESSARY TO PREVENT THEM FROM LOSING PAY DUE TO THE CLOSING OF THE OFFICE ON ACCOUNT OF A HOLIDAY. ACCORDINGLY, THE PHRASE,"EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE," IN THE ACT OF 1895, SUPRA, WAS INTENDED AND MUST BE CONSTRUED TO HAVE REFERENCE ONLY TO THE PER-HOUR OR PER DIEM EMPLOYEES FOR WHOM SPECIAL LEGISLATION WAS NECESSARY TO AUTHORIZE PAYMENT FOR LEGAL HOLIDAYS, IN LINE WITH THE MORE GENERAL STATUTES OF JANUARY 6, 1885, 23 STAT. 516, AND FEBRUARY 23, 1887, 24 STAT. 644. AS WAS SAID IN DECISION OF FEBRUARY 14, 1901, 7 COMP. DEC. 433, 434--

THE OBJECT OF THE ACT OF JANUARY 12, 1895, SUPRA, GIVING PAY FOR THE HOLIDAYS NAMED, IS CLEARLY TO PREVENT THE EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE FROM BEING OBLIGED TO LOSE PAY WHICH THEY MIGHT OTHERWISE EARN, OWING TO THE TEMPORARY CLOSING OF THE OFFICE ON ACCOUNT OF THE HOLIDAYS, AND NOT TO ABSOLUTELY GRANT THEM PAY FOR THESE DAYS, IRRESPECTIVE OF OTHER CONDITIONS WHICH MIGHT AFFECT THEIR RIGHTS IN THE PREMISES. * * *

IN MY LETTER OF MAY 23, 1934, REFERENCE WAS MADE TO THE STATEMENT IN THE QUOTED LETTER OF APRIL 17 THAT---

* * * FOR AT LEAST 40 YEARS, UNDER ORIGINAL HOLIDAY LAW, EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE HAVE RECEIVED PAY FOR HOLIDAYS, WITHIN EXISTING RULE, WITHOUT REGARD TO WORK BEFORE OR AFTER SUCH HOLIDAY, AND THE ACCOUNTS HAVE BEEN PASSED.

AND YOUR ATTENTION WAS INVITED TO A LETTER FROM THE PUBLIC PRINTER, DATED FEBRUARY 9, 1901, QUOTED IN THE DECISION OF FEBRUARY 14, 1901, 7 COMP. DEC. 433, 434, WHEREIN IT WAS STATED:

IT HAS BEEN THE CUSTOM OF THIS OFFICE FOR SOME YEARS PAST NOT TO PAY THOSE OF ITS EMPLOYEES FOR A HOLIDAY WHO WERE ABSENT BOTH THE DAY PRECEDING AND THE DAY FOLLOWING A HOLIDAY, UPON THE PRINCIPLE THAT THOSE ABSENT WOULD NOT, IN ALL PROBABILITY, HAVE WORKED ON THE DAY THAT SUCH HOLIDAY OCCURRED HAD THE DAY NOT BEEN A HOLIDAY; OTHERWISE EMPLOYEES WHO MAY BE ABSENT ON ACCOUNT OF SICKNESS AND WHO MAY HAVE EXHAUSTED THEIR ANNUAL LEAVE OF ABSENCE WOULD BE PAID FOR A HOLIDAY WHICH MIGHT OCCUR DURING SUCH ABSENCE.

IN YOUR LETTER OF JUNE 26, 1934, IN REPLY TO MY SAID LETTER OF MAY 23, 1934, YOU ERRONEOUSLY REFER TO SAID LETTER AS "DATED FEBRUARY 6, 1906," WHEREAS IT WAS REALLY DATED FEBRUARY 9, 1901, AND YOU SUGGEST THAT THE STATEMENT IN SAID LETTER AS TO WHAT THE PRACTICE HAD BEEN FOR "SOME YEARS PAST" DID NOT INDICATE THAT THE PRACTICE MAY NOT HAVE BEEN OTHERWISE FROM THE DATE OF THE ACT (JANUARY 12, 1895) UP TO THE BEGINNING OF THE PERIOD WHICH, IN THE LETTER OF FEBRUARY 9, 1901, WAS REFERRED TO AS "SOME YEARS PAST.' HOWEVER, IT WOULD SEEM MORE LIKELY THAT THE "SOME YEARS" MEANT OVER 6 YEARS WHICH WOULD EXTEND BACK TO THE DATE OF THE ACT. HENCE, THERE WOULD APPEAR NO REASONABLE BASIS FOR ANY ASSUMPTION THAT THE PRACTICE WHICH HAD EXISTED FOR "SOME EARS" PRIOR TO FEBRUARY 1901, AND WHICH THE DECISION OF FEBRUARY 14, 1901, AUTHORIZED TO BE CONTINUED THEREAFTER, HAD NOT MAINTAINED CONTINUOUSLY SINCE JANUARY 12, 1895, THE DATE OF THE ACT.

THE CITED DECISION OF THE COMPTROLLER OF THE TREASURY, DATED FEBRUARY 16, 1916, 22 COMP. DEC. 404, REVERSING THE ACTION OF THE AUDITOR IN DISALLOWING BY SETTLEMENT NO. 7407, DATED DECEMBER 7, 1915, CREDIT FOR PAYMENTS AGGREGATING $704.99 MADE TO EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE FOR HOLIDAYS OCCURRING WITHIN PERIODS OF AUTHORIZED ABSENCE WITHOUT PAY DURING THE FISCAL YEAR ENDED JUNE 30, 1915, WAS SPECIFICALLY LIMITED TO EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE OTHER THAN PER-ANNUM EMPLOYEES AS INDICATED BOTH IN THE BODY OF THE DECISION AND IN THE SYLLABUS THEREOF.

ANY DOUBT THAT OTHERWISE MAY HAVE EXISTED AS TO WHAT WAS INTENDED BY SAID DECISION IN THIS RESPECT WAS CLEARLY REMOVED BY LETTER OF FEBRUARY 21, 1916, TO THE PUBLIC PRINTER, AS FOLLOWS:

REFERRING TO MY DECISION TO YOU OF THE 16TH INSTANT, REVERSING THE ACTION OF THE AUDITOR FOR THE STATE AND OTHER DEPARTMENTS IN DISALLOWING BY SETTLEMENT NO. 7404, DATED DECEMBER 7, 1915, CREDIT FOR PAYMENTS AGGREGATING $704.99 MADE TO EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE FOR HOLIDAYS INTERVENING PERIODS OF AUTHORIZED ABSENCE WITHOUT PAY DURING THE FISCAL YEAR ENDING JUNE 30, 1915, YOUR ATTENTION IS INVITED TO THE FACT THAT SAID DECISION WAS RENDERED UPON THE ASSUMPTION THAT ALL OF THESE EMPLOYEES WERE PER-DIEM EMPLOYEES.

THE AUDITOR NOW INFORMS ME THAT THE AMOUNT INVOLVED INCLUDED A PAYMENT OF $5 MADE TO FRANK E. BUCKLAND AND A PAYMENT OF $4 MADE TO GEORGE OYSTER, BOTH PER-ANNUM EMPLOYEES. THEREFORE, THE AMOUNT ALLOWABLE UNDER SAID DECISION IS $695.99 INSTEAD OF $704.99, AND THE CERTIFICATE OF DIFFERENCES HAS BEEN AMENDED ACCORDINGLY.

TO THE SAME EFFECT IS DECISION OF APRIL 15, 1924, TO THE PUBLIC PRINTER, 3 COMP. GEN. 756, 759, SPECIFICALLY HOLDING AS FOLLOWS:

PER-ANNUM EMPLOYEES ARE PAID FOR EACH DAY IN THE YEAR, AND WHEN A HOLIDAY OCCURS DURING A PERIOD OF ABSENCE WITHOUT PAY, NO PAY IS DUE FOR THE HOLIDAY; THAT IS, THERE MUST BE DEDUCTED IN SUCH CASE ONE DAY'S PAY FOR EACH DAY OF ABSENCE, INCLUDING SUNDAYS AND HOLIDAYS NOT OCCURRING AT THE BEGINNING OR ENDING OF THE PERIOD.

SEE ALSO DECISION TO THE PUBLIC PRINTER, DATED FEBRUARY 28, 1933, 12 COMP. GEN. 534, WHEREIN THE HOLIDAY STATUTE FOR THE GOVERNMENT PRINTING OFFICE, SUPRA, WAS LIMITED TO PER-DIEM EMPLOYEES ON A 5-DAY WEEK.

IN DECISION DATED JUNE 5, 1933, A-48194, DENYING THE REQUEST OF THE PUBLIC PRINTER THAT THE GOVERNMENT PRINTING OFFICE BE PERMANENTLY EXEMPTED FROM THE REQUIREMENT THAT PAY ROLLS INDICATE THE PERIODS OF ABSENCE OF EMPLOYEES WITHOUT PAY (9 COMP. GEN. 481), IT WAS STATED AS FOLLOWS:

FURTHERMORE, THE PARTICULAR DAYS AND HOURS AN EMPLOYEE IS ABSENT WITHOUT PAY IS ESSENTIAL IN ORDER TO DETERMINE WHETHER THE VARIOUS RULES ANNOUNCED IN DECISIONS OF THE ACCOUNTING OFFICERS HAVE BEEN COMPLIED WITH IN MAKING DEDUCTION FROM PAY FOR THE PERIOD OF ABSENCE. THAT IS, CERTAIN OF THESE RULES REQUIRE DIFFERENT AMOUNTS TO BE DEDUCTED, DEPENDING ON WHETHER THE ABSENCE WITHOUT PAY PRECEDES AND/OR FOLLOWS A HOLIDAY AND/OR SUNDAY, ETC. (SEE 20 COMP. DEC. 38; 22 ID. 440; 23 ID. 893; 26 ID. 687; 3 COMP. GEN. 1022; 5 ID. 935; 9 ID. 481; 11 ID. 119, 129, 216.) THERE ARE BOTH PER- ANNUM AND PER-DIEM EMPLOYEES UNDER THE GOVERNMENT PRINTING OFFICE.

THE CURRENT APPROPRIATION FOR THE GOVERNMENT PRINTING OFFICE--- PUBLIC PRINTER TO COMPLY WITH THE PROVISIONS OF LAW GRANTING HOLIDAYS TO EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE, IS NO BROADER AND HAS NO DIFFERENT APPLICATION THAN THE BASIC STATUTE AND THE DECISIONS THEREUNDER.